IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Common Law Division
Group Proceedings List
S ECI 2024 00280

BARRY BERIH	Plaintiff	
		
v  		
		
STATE OF VICTORIA AND OTHERS (ACCORDING TO THE ATTACHED SCHEDULE)	Defendants	

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JUDGE:	Keogh J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	12 March 2024	
DATE OF RULING:	3 April 2024	
CASE MAY BE CITED AS:	Berih v State of Victoria	
MEDIUM NEUTRAL CITATION:	[2024] VSC 156	

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PRACTICE AND PROCEDURE — Interlocutory — Plaintiff alleges decision made by Cabinet to demolish and redevelop public housing towers — Whether defendants should be restrained from taking steps to demolish towers — Balance of convenience — Undertaking by third defendant to give notice before entering a contract or applying for a permit to demolish towers — Injunctive relief sought by plaintiff unnecessary — s 15(1) Housing Act 1983 (Vic) — Charter of Human Rights and Responsibilities Act 2006 (Vic) — Application refused.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	L Howard	Inner Melbourne Community Legal	
			
For the Defendants	L Brown SC with E Smith 	Victorian Government Solicitor	

HIS HONOUR:
1	The plaintiff Barry Berih (‘Berih’) is a longstanding public housing tenant living in the public housing tower at 33 Alfred Street, North Melbourne.  Berih is the tenant under a rental agreement with the third defendant (or its predecessor), Homes Victoria.
2	On 20 September 2023, the first defendant the State of Victoria (‘State’) published a document called ‘Victoria’s Housing Statement’ (‘Housing Statement’) signed by the then Premier, Daniel Andrews.  The Housing Statement contains the following:
We’ll launch Australia’s biggest ever urban renewal project: retiring and developing all of Melbourne’s 44 ageing high-rise public housing estates by 2051.  Starting with towers in Flemington, North Melbourne and Carlton, we’ll bring forward a program of works to progressively retire each tower and redevelop each site. (‘decision’)
3	In this proceeding, Berih characterises the decision as a decision to develop and/or manage the public housing towers located in Flemington and North Melbourne (‘Towers’) made by Cabinet under s 15(1) of the Housing Act 1983 (Vic) (‘Housing Act’) that was, in effect, a decision to demolish the Towers.  Berih challenges the decision on the following grounds:
(a)	The power in s 15(1) of the Housing Act to develop and manage land is vested exclusively in Homes Victoria.  Therefore the exercise of that power by Cabinet was affected by jurisdictional error (‘Ground 1’);
(b)	The decision was incompatible with group members’ human rights in breach of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’) (‘Ground 2’); and
(c)	When it made the decision, Cabinet did not consider or improperly considered group members’ human rights in further breach of the Charter (‘Ground 3’).
4	The third defendant, Homes Victoria, is a body corporate established under s 9(2) of the Housing Act.  The second defendant is sued as the Minister for Housing.
5	Also on 20 September 2023, Homes Victoria commenced a program to communicate information about a relocation process to tenants in the Towers who would be affected by the Towers being retired and the sites redeveloped.  Homes Victoria has since continued the voluntary relocation process which, it says, is supported by available alternate social housing close to the Towers.  Homes Victoria intends to continue the process of voluntary relocation of tower tenants and carrying out work in connection with the planned demolition of the Towers.  
6	Berih has applied for an interlocutory injunction restraining the defendants from demolishing the Towers, releasing a request for tender to demolish the Towers, or advising tenants that the Towers will be demolished.  Berih also seeks an order requiring Homes Victoria to give an agreed form of notice to tenants which states that, until further order of the court, the tenants’ residence will not be demolished.
7	The defendants oppose the interlocutory orders sought by Berih.
8	Three things became clear at and following the hearing of this application that were critical to determination of the application.  First, Homes Victoria will not enter into a contract to demolish the Towers until the third quarter of this year, and will not give any tower tenant notice to vacate their premises before 1 January 2025.
9	Second, the defendants agreed to Berih’s request for an expedited timetable with the proceeding to be listed for trial on an estimate of two days in July this year.  The court will accommodate the proposed timetable and trial date.  The defendants have foreshadowed that in the near future, they will apply for a declassing order, summary judgment and/or strikeout.  These applications have been timetabled and will not interfere with a July trial date.
10	Third, after the hearing of the application, Homes Victoria agreed to give 14 days’ notice before executing a contract to demolish the Towers or applying for a demolition permit.
11	I have concluded for the following reasons that the application for interlocutory orders made by Berih should be refused.  
Evidence
12	Berih relied on the following evidence:
(a)	Affidavits of Louisa Una Bassini (‘Bassini’), solicitor for the plaintiff, sworn 15 February 2024 and 8 March 2024;
(b)	Affidavit of Stephanie Price, solicitor for the plaintiff, sworn 8 March 2024.
13	The defendants relied on an affidavit of Simon Andrew Newport (‘Newport’), Chief Executive Officer of Homes Victoria, sworn 5 March 2024.
Background
14	The Towers are located at:
(a)	120 Racecourse Road, Flemington;
(b)	12 Holland Court, Flemington; and
(c)	33 Alfred Street, North Melbourne.
15	Bassini said that according to census data collected by the Australian Bureau of Statistics (‘ABS’) in 2021, there were 1,225 people residing in the Towers across 474 dwellings.  Bassini said the ABS data further indicates that over 30% of the Towers’ residents were born in a country other than Australia and that almost 90% speak a language other than English at home.  Bassini also referred to other data that indicates approximately 60% of residents have lived in the Towers for six years or more.
16	Bassini gave evidence about the significant social services and community facilities available to residents close to the Towers.
17	Bassini gave evidence about a report dated 10 November 2017 prepared by the Social Housing Renewal Standing Advisory Committee (‘committee’).  The committee was established under the Planning and Environment Act 1987 (Vic).  According to its terms of reference, the committee was constituted to provide advice to the Ministers of the State ‘on the suitability of planning proposals indorsed by the Director of Housing that seek to increase the number of social housing dwellings’.  The committee report gives specific consideration to the Flemington towers.  It recommends that there be resident and community engagement and involvement in any future proposal to redevelop the Flemington towers.  It does not recommend that they be demolished.
18	Bassini referred to other studies of public housing towers in Melbourne and said:
Public housing towers have been subject of studies and reports by practitioners with architecture, planning, design, construction or engineering expertise. These suggest refurbishment and retrofitting of older public housing stock, including the Towers, is preferable to demolition on the basis of social, economic and environmental measures.
19	Bassini said that in 2021 the ‘Paving the Way Forward’ initiative (‘PTWF’) was established by the Department of Families, Fairness and Housing (‘DFFH’).  Bassini said it was her understanding that because Homes Victoria is administratively organised to be within DFFH, the creation of PTWF was an exercise of power vested in Homes Victoria to generally control and manage the Towers under s 15(1)(b) of the Housing Act.
20	Bassini said the DFFH website records the following about PTWF:
In 2021, the Department of Families, Fairness and Housing (the department) set up the Paving the Way Forward (PTWF) initiative. The intent is to find better ways of working alongside residents at the Flemington and North Melbourne public housing estates. Through a partnership approach with residents and the department, they have sought to come together to:
− solve local issues
− build on local strengths
− positively change the way government and residents interact
− take learnings to inform housing policy and approaches
21	Bassini said that in October 2022, PTWF published a ‘Local Action Plan 2022–2023’ relevant to the Towers.  She said the Flemington local action plan was developed after consultation with residents and community feedback.
22	Newport said that Cabinet decided to approve the policies in the Housing Statement on 18 September 2023. 
23	The Housing Statement is a 44-page document subtitled ‘The decade ahead | 2024–2034’.  It commences with a message from the Premier that includes:
That’s why this Housing Statement puts forward an ambitious plan to tackle the root of the problem: housing supply. We’re setting a bold target to build 800,000 homes in Victoria over the next decade.
It’s a simple proposition: build more homes, and they’ll be more affordable. But the Government can’t fix the problem alone. We’ll do it in an Affordability Partnership with industry. We’ll foster the conditions needed to stimulate investment and build high-quality homes quickly in the places where Victorians want to live — and the private market will build more social and affordable housing for the Victorians who need it most.
24	The Housing Statement considers Victoria’s housing needs over the coming decades, projected to 2051.  It addresses broad topics including the need to reform Victoria’s planning system to boost housing supply; identifying new spaces to build homes in a way that boosts supply, stops urban sprawl and means more homes are closer to essential services; protecting tenants’ rights; providing more social housing; and the development of a planning strategy to guide State growth and create a modern, fit-for-purpose planning system.
25	The social housing chapter of the Housing Statement describes the need for social housing in the following terms:
Every Victorian deserves a roof over their head — but for most, it means so much more than that. 
It gives you a base to hold down a job, or to get a good education. It’s also somewhere you can start a family — or keep your family safe. 
Just like with the private housing market, the supply of social and affordable homes needs to keep up demand. As of June 2023, there are around 55,800 new applicants who have expressed interest in social housing in Victoria.
The social housing chapter relevantly includes:
Launch Australia’s biggest ever urban renewal project
Melbourne’s high-rise public housing towers were built after World War II, between the 1950s and 1970s. They’re reaching the end of their useful lives, and no longer fit for modern living. Constructed at a time that pre-dates current building codes, the towers no longer meet the minimum standards Victorians expect — including many of Victoria’s Better Apartment Design Standards. The towers fail against noise, sustainability, waste and recycling, bedroom area dimensions, room depth, ventilation, private open space, accessibility and minimum amenity standards. Substantial investment would be needed to retrofit the towers. But even then, their design means that many tower homes would never be able to meet contemporary codes, nationwide energy rating schemes or accessibility needs for many households. 
We’ll launch Australia’s biggest ever urban renewal project: retiring and redeveloping all of Melbourne’s 44 ageing high-rise public housing estates by 2051. Starting with towers in Flemington, North Melbourne and Carlton, we’ll bring forward a program of works to progressively retire each tower and redevelop each site. 
Not only will the redevelopment mean households will move into a new home that meets every modern building standard — it’ll boost the overall number of social homes across these sites by 10 per cent, while also boosting the number of affordable and market homes across the sites. There are currently around 10,000 people living across the 44 towers. Once we’ve redeveloped them, we anticipate around 30,000 people will live across these sites.
26	No notice was given to residents or others of the Housing Statement before it was published.  There is no evidence before me that the planned demolition of the Towers was raised with residents through the PTWF initiative before the Housing Statement was published.
27	Newport said that on the day the Housing Statement was announced, Homes Victoria commenced a program to communicate information about the decision and the associated relocation process to tenants.  This included doorknocking every dwelling in the Towers over a period of three days; leaving a calling card directing how residents could access relevant information when there was no answer to the doorknock; establishing information booths in communal spaces at the Towers; and corresponding with tenants by letter and text message.  In late October 2023, Newport attended community forums held in North Melbourne and Flemington for the purpose of providing information to tenants and other interested members of the public about the decision and the relocation process.
28	Newport said that from 20 September 2023 he directed DFFH staff to meet with individual households of the Towers to provide an opportunity:
a.	for renters of the Towers to discuss the Decision and to inform DHHS staff of their housing requirements and preferences; 
b.	for DHHS staff to provide information in relation to the Decision and the Relocation Process.
Newport said that to date, 470 of the 484 households that occupy dwellings in the Towers have attended an individual meeting with DFFH staff in respect of the relocation process.  He said that to date, 427 of the 484 households have submitted an application with Homes Victoria providing details of their housing needs and preferences and their consent to commence the relocation process.
29	Newport said the relocation process was supported by alternative social housing that was available close to the Towers.  Newport said this alternative housing had been offered to tenants in the Towers as an option that would allow them to remain in the local area.  He said this alternative housing will meet the relocation needs of many households in the Towers.  Newport said:
In managing the Relocation Process, Homes Victoria will make all reasonable efforts to ensure relocation is achieved by agreement with the renters.
30	Newport said that if an agreement cannot be made for a tenant to voluntarily relocate then Homes Victoria may give notice to vacate pursuant to s 91ZY of the Residential Tenancies Act 1997 (‘RT Act’).  He said:
According to the current schedule of demolition and construction works in respect of the Towers, Homes Victoria will not give any renter in the Towers a notice to vacate before 1 January 2025.
31	On 7 March 2024, Homes Victoria uploaded an advance tender notice on its website stating an intention to release a request for tender or request for proposal in April 2024 for demolition works on the Towers.  The notice indicated that a demolition contract would be awarded in the third quarter of 2024.
32	Newport referred to Homes Victoria’s intention to obtain a demolition permit:
Further, if the Proposed Injunction were to be granted, Homes Victoria will be unable to obtain a demolition permit. This could have negative consequences for the Relocation Process. This is because (as set out above), part of the Relocation Process may involve, when necessary, issuing notices to vacate to occupants pursuant to s 91ZY of the RT Act. It is a statutory precondition to this form of notice that a permit for demolition be granted before a notice to vacate may be given.
It is not clear when Homes Victoria intends to apply for a demolition permit.
Submissions
Berih
33	The proceeding raises three triable questions, the first being jurisdictional error under the Housing Act, and the second and third arising under s 38(1) of the Charter. 
34	The jurisdictional error here is straightforward.  Under s 15(1) of the Housing Act, it is Homes Victoria — not Cabinet — that has the power to ‘develop’ the land and buildings vested in it.  Homes Victoria’s power to ‘develop’ includes the power to demolish.  Cabinet had no power to make the decision.  Further, in the manner that the decision was made, there was a breach of an implied obligation to afford procedural fairness to those affected by it.
35	The defendants’ characterisation of the decision as a ‘policy decision’ should be rejected.  The language of the decision as expressed in the Housing Statement was directory and promissory.  Further, there is no evidence of the development of ‘policy’ that justifies giving the decision such a label:
Ultimately, the defendants’ position is that Cabinet stands above the legislature. This is a risible premise. Where a statute invests a power into a body, then that power is not for Cabinet. Cabinet is not a device to withdraw governmental decision-making away from the conditions set down in the Housing Act.
36	Second, the decision involved a breach of s 38(1) of the Charter in that Cabinet failed to give ‘proper consideration’ to the following human rights prior to making it:
(a)	the right not to have one’s family or home unlawfully or arbitrarily interfered with (s 13(1));
(b)	the right to the protection of family (s 17(1));
(c)	the right to the protection of the best interests of children (s 17(2)); 
(d)	the right to not be deprived of property other than in accordance with law (s 20); and
(e)	the right to security (s 21(1)).
There is no evidence that proper consideration was given to any of the group members’ human rights before the decision was made by Cabinet.  In circumstances where there was no engagement with the decision-making model established by PTWF, which would have properly informed Cabinet of the precise nature and extent of the relevant human rights peculiar to renters in the Towers, there was no basis to infer that Cabinet had properly considered the group members’ human rights.
37	Cabinet is a ‘public authority’ for the purposes of the Charter and therefore this cause of action.  This is because when it made the decision, it did so as ‘an entity whose functions are or include functions of a public nature, when it is exercising those functions on behalf of the State or a public authority’.  
38	Third, Cabinet breached s 38(1) of the Charter when making the decision by acting in a way that was incompatible with a human right.  Further, by engaging in the process of making the decision, Cabinet acted in a way that was unlawful or arbitrary for the purposes of ss 13(1) and 20 of the Charter.
39	There are six matters that affect the balance of convenience.  First, the three questions raised by the proceeding should be characterised as strong, either separately or on a cumulative basis.
40	Second, the defendants intend to remove the status quo before trial by continuing to take steps towards the demolition of the Towers.  The defendants’ position that certiorari will be inutile at trial is clear confirmation that they intend to continue to implement the decision, to undermine the capacity of group members to influence it, and to further bind third parties to it.  Unless the injunction is granted, Berih and other group members will be severely prejudiced by the defendants’ further implementation of the decision before trial.
41	Third, Berih and group members’ potential injury cannot be cured by an award of damages.
42	Fourth, the impact of the decision on third parties is immense.  It has led to the destabilisation of homes and communities built and enjoyed by 1,225 people across 474 dwellings.  Absent an order restraining the demolition, these homes and communities will be further destabilised and ultimately destroyed.
43	Fifth, the public interest is in favour of the orders sought.  Whilst it is true that the public is interested in its government implementing its decisions, the public is just as interested in ensuring the government acts according to public welfare legislation such as the Housing Act and the human rights enshrined in the Charter.  Orders restraining the demolition will ensure that these conflicting public interests are reconciled until trial, and will remove the risk that one public interest is furthered at the expense of others.
44	Sixth, any inability by Berih to satisfy an undertaking as to damages should be given little weight when wider public interests in the administration of the law and the protection of human rights are at stake.
Defendants
45	The claim advanced by Berih does not raise a serious question to be tried.  There is no prospect that Berih will succeed at trial and therefore no basis for an interlocutory injunction to preserve the status quo.
46	First, the decision has no legal effect and therefore no consequences in terms of the rights of individual group members.  The decision is a quintessential expression of policy by the government.  It is only if steps are taken under the RT Act to terminate a resident’s tenancy, or under the Housing Act to redevelop the Towers, that the rights of group members may be engaged.  It follows that there is no utility in the proceeding because even if the relief sought was granted, it would have no consequence.
47	Second, the decision was made by Cabinet.  The Housing Act does not exclude the role of Cabinet as a policy decision-maker.  The decision was not an exercise of power conferred by s 15 of the Housing Act.  There is no basis for Berih’s allegation that the decision is an unlawful exercise of power under the Housing Act.
48	Third, the decision is a policy decision and is not justiciable.  The Housing Statement is a broad, complex statement of the government’s policy objectives that is multifaceted and multifactorial.  It is not the sort of decision that is reviewable by a court.
49	Fourth, Cabinet is not a public authority for the purposes of the Charter.
50	Fifth, jurisdiction to bring the Charter claims is not attracted because the first ground is so untenable as to be misconceived.
51	The following points are made about the balance of convenience.  First, Berih’s claim has no prospect of success for the reasons set out above.
52	Second, Berih and group members will not experience prejudice if the injunction is not granted.  The rights of individual tenants in the Towers are governed by their tenancy rights.  The decision does not interfere with those rights because it is an anterior or preliminary policy decision.  It is only when steps are taken by Homes Victoria, for instance by giving notices to vacate to tenants, that the rights of group members may be affected.  There is no evidence that Homes Victoria will take such steps before a trial of this proceeding.
53	Relatedly, Homes Victoria will not redevelop the Towers until it has possession of them.  On the evidence, that will not occur until after 1 January 2025, well after the trial of this proceeding has been heard.  Preparatory works in connection with the proposed future demolition of the Towers could not conceivably prejudice the legal rights and interests of the group members.
54	Further, even if the Housing Statement could be characterised as having an impact on group members’ rights, any impact is conditional on Homes Victoria taking lawful steps under the RT Act to recover possession and exercising its redevelopment functions under the Housing Act.
55	Third, an injunction will disrupt the process for relocation of tenants from the Towers to alternative social housing.  This will have detrimental consequences for the defendants and potentially other tenants, many of whom are not before the Court.
56	Fourth, the grant of an injunction would have significant financial consequences for the defendants and potentially third parties not before the Court.  The plaintiff’s undertaking as to damages has no meaningful value because he appears to be a ‘person of ordinary means’.
57	Fifth, the plaintiff’s claim that some general concept of ‘the public interest’ weighs in favour of the injunction should be rejected.  All that can be said at this level is that there may be some element of the public interest on both sides of the proceeding.
58	In the circumstances, the Court should conclude there is virtually no risk of injustice to Berih and group members if the injunction orders are not made.
Analysis
59	The principles governing the exercise of the discretion to grant an interlocutory injunction are well-established.  The Court must consider both whether there is a serious question to be tried, and whether the balance of convenience favours the granting of injunctive relief.  The two inquiries are related and are to be considered together.  The Court must take whichever course appears to carry the lower risk of injustice in the event the unsuccessful party on the interlocutory application is later successful at trial. 
60	The need for the interlocutory orders in this proceeding hinges on the risk of either of two things occurring before the plaintiff’s claim is determined or otherwise disposed of.  First is the risk that tenants will be evicted and the Towers demolished.  For the following reasons, this is not a real risk.
61	First, the parties jointly seek an expedited trial date.  The proceeding has been fixed for trial on 22 July 2024.
62	Second, Newport’s evidence is that notices to vacate will not be given to tenants in the Towers before 1 January 2025.
63	Third, the trial in July will be heard before Homes Victoria enters into a contract with a third party for demolition of the Towers.  The advance tender notice published on Homes Victoria’s website indicates an expectation that a demolition contract will be awarded in the third quarter of 2024.
64	The second risk identified by Berih is that, unless it is restrained, Homes Victoria will continue to take steps to implement the decision in the exercise of its powers under the Housing Act, and that a step or steps taken by it may have the effect of rendering inutile the principal relief of certiorari that Berih seeks.
65	The only step identified by Berih that Homes Victoria may take before a trial of the proceeding that could arguably render inutile the relief of certiorari is entering into a contract to demolish the Towers following the proposed tender process.  That is unlikely to occur given the July trial date and the timing of the demolition tender process.  At the hearing of the application, I raised the possibility of Homes Victoria giving 14 days’ notice before entering into a contract to demolish the Towers as a means of giving Berih greater security on this issue.  I understood Berih to agree that in those circumstances there would be no need for the interlocutory orders.  Homes Victoria has since agreed to go further by giving an undertaking to the court in the following terms:
From [the date the order is made] until the earlier of:
(a) the final determination of the proceeding by the Supreme Court of Victoria; or
(b) further orders;
Homes Victoria undertakes to give to the plaintiff at least 14 days’ notice before Homes Victoria:
(c) executes a contract for the demolition of the three public housing towers which are the subject of the proceeding; or
(d) applies for a permit for the demolition of the three public housing towers which are the subject of the proceeding.
66	I accept in the circumstances outlined above that there is no real possibility that, before the trial of this proceeding, further steps will be taken by Homes Victoria that will interfere with the plaintiff and group members’ rights as tenants in the Towers.  Further, I accept that there is no identified prospect of Homes Victoria exercising the power under s 15(1) of the Housing Act in a manner that may arguably undermine the final relief claimed by the plaintiff in this proceeding without giving the plaintiff 14 days’ notice.  I conclude that there is no real risk of injustice to Berih if his application is refused, and no current need for the interlocutory orders.
67	I accept there are some potential adverse consequences to Homes Victoria or Tower tenants if the interlocutory application were granted.  The orders Berih seeks may delay the process of voluntary relocation of Tower tenants to alternative social housing.  As Newport said, this may mean that the alternative housing located close to the Towers identified by Homes Victoria as supporting the relocation process becomes unavailable to some tenants because of delay and other housing demands, or that Homes Victoria has to carry the cost of keeping the housing vacant and available for Tower tenants.
68	A summary dismissal/strikeout application foreshadowed by the defendants will be heard in the near future.  It is more appropriate that the viability of the claims brought by Berih be determined on that application following the hearing of comprehensive submissions on these issues.  For the purposes of this application I have proceeded on the basis that the claim made by Berih raises a serious question to be tried. 
69	As I have said, Berih’s case on Ground 1 depends on a characterisation of the decision as one made by Cabinet under s 15(1) of the Housing Act to develop or manage the land on which the Towers are located.  The defendants submitted the powers in s 15 of the Housing Act are reposed in Homes Victoria, and that there is no basis for Berih’s characterisation of the decision as an exercise of statutory power.
70	The Housing Act does not mention Cabinet.  The parties appear to agree that the Housing Act does not directly or indirectly give any powers to or impose any obligations on Cabinet.  Further, there appears to be nothing in the Housing Act that removes or in any way affects the role of Cabinet in making policy decisions. 
71	The Housing Act gives Homes Victoria certain powers as to property.  Under s 13, the exercise of those powers by Homes Victoria is subject to ministerial control:
Without derogating from the generality of section 10(1), Homes Victoria shall be subject to the direction and control of the Minister in exercising the powers, discretions, functions and authorities and discharging the duties conferred or imposed upon Homes Victoria by or under this Part.
72	Section 15 of the Housing Act, which concerns Homes Victoria’s power to develop and manage land, relevantly includes:
(a)	develop any land which is vested in Homes Victoria or in respect of which Homes Victoria has a leasehold estate; and
(b)	generally control, manage or use any land which is vested in or leased to or subject to any mortgage or security in favour of Homes Victoria; …
73	The Housing Statement appears to be a statement of Cabinet policy.  The plaintiff accepts that the first sentence of the decision is a statement of policy.  However, he submits the second sentence is a decision to demolish the Towers and therefore a decision made under the power in s 15 of the Housing Act.  There appears to be limited support for the plaintiff’s contentions in the contents of the Housing Statement.  The plaintiff is likely to face what may be an insurmountable hurdle in relation to Ground 1 if the decision is found to be a policy decision by Cabinet and not an exercise of statutory power.
74	The plaintiff faces the further difficulty that he does not seek to impugn any decision made by Homes Victoria, or suggest that it has or will act unlawfully.  There is merit in the defendants’ submission that there is no basis in this proceeding for an order prohibiting an exercise of power under the Housing Act by Homes Victoria, and on that basis no utility in certiorari being granted in relation to the decision by Cabinet.
75	I will not determine questions as to the proper characterisation of the decision and construction of provisions of the Housing Act on this application.  It is sufficient for me to note that there is considerable force in the defendants’ argument that the decision was not an attempted exercise of power under s 15(1) of the Housing Act, but was a policy decision that is not justiciable.  Further, there is significant merit in the defendants’ argument that an order should not be made restraining the otherwise lawful exercise of powers by Homes Victoria under s 15(1) of the Housing Act.
76	The defendants argue that Cabinet is not a public authority for the purposes of the Charter, and so on that basis Grounds 2 and 3 raised by the plaintiff in this proceeding must fail.  Section 4(1) of the Charter reads:
(1) For the purposes of this Charter a public authority is—
(a) a public official within the meaning of the Public Administration Act 2004; or
Note
A public official under the Public Administration Act 2004 includes employees of the public service, including the Head of a government department or an Administrative Office (such as the Secretary to the Department of Justice or the Chairman of the Environment Protection Authority) and the Victorian Public Sector Commissioner. It also includes the directors and staff of certain public entities, court staff, parliamentary officers and holders of certain statutory or prerogative offices.
(b) an entity established by a statutory provision that has functions of a public nature; or
Notes
1 In section 38 of the Interpretation of Legislation Act 1984 entity is defined to include a person (both a human being and a legal person) and an unincorporated body.
2 See subsection (2) in relation to “functions of a public nature”.
(c) an entity whose functions are or include functions of a public nature, when it is exercising those functions on behalf of the State or a public authority (whether under contract or otherwise); or
Example
A non-government school in educating students may be exercising functions of a public nature but as it is not doing so on behalf of the State it is not a public authority for the purposes of this Charter.
Note
See subsections (4) and (5) in relation to “on behalf of the State or a public authority”.
(d) Victoria Police; or
(e) a Council within the meaning of the Local Government Act 2020 and Councillors and members of Council staff within the meaning of that Act; or
(f) a Minister; or
(g) members of a Parliamentary Committee when the Committee is acting in an administrative capacity; or
(h) an entity declared by the regulations to be a public authority for the purposes of this Charter—
but does not include—
(i) Parliament or a person exercising functions in connection with proceedings in Parliament; or
(j) a court or tribunal except when it is acting in an administrative capacity; or
Note
Committal proceedings and the issuing of warrants by a court or tribunal are examples of when a court or tribunal is acting in an administrative capacity. A court or tribunal also acts in an administrative capacity when, for example, listing cases or adopting practices and procedures.
(k) an entity declared by the regulations not to be a public authority for the purposes of this Charter.
Subsections (4) and (5) are relevant to when an entity is exercising functions on behalf of the State:
(4) For the purposes of subsection (1)(c), an entity may be acting on behalf of the State or a public authority even if there is no agency relationship between the entity and the State or public authority.
(5) For the purposes of subsection (1)(c), the fact that an entity is publicly funded to perform a function does not necessarily mean that it is exercising that function on behalf of the State or a public authority.
The plaintiff submitted it was accepted that Cabinet is an entity for the purposes of s 4(1)(c), and that it was exercising functions of a public nature on behalf of the State when it made the decision.  The defendants argued that s 4(1)(c) is intended to capture entities that are not always exercising functions on behalf of the State, whereas Cabinet is always performing functions of a public nature.
77	In Metro West Housing Services Ltd v Sudi (Residential Tenancies) [2009] VCAT 2025, Bell J discussed the operation of s 4 of the Charter (citations omitted):
124	Sub-sections 4(1)(a), (b), (d), (e) (f) and (g) of the definition of public authority describe core public authorities and do not present difficulty.  Core public authorities are bound generally by the Charter and not just when they are exercising public functions.  Section 4(1)(a) is a powerful provision which brings in virtually the entire Victorian public service.  Section 4(1)(b) brings in entities established by statute which have functions of a public nature.  Sub-sections 4(2)-(3) are relevant to whether an entity has such function.  If it does, the entity is generally bound like any other core public authority.  To be a public authority under s 4(1)(b), it is not necessary for a statutory entity having functions of a public nature to be exercising them on behalf of the state or a public authority.  That the entity was established by statute and has such functions is enough.
125	The definition of a functional public authority in s 4(1)(c) focuses on the functions performed by the entity, not on the nature of the entity itself. The guiding factors in s 4(2) (except for s 4(2)(e)) likewise focus on the nature of the functions. The intended consequence is that private entities exercising public functions on behalf of the state will be bound to observe human rights.
There are similar statements in the second reading speech and explanatory memorandum for the Charter of Human Rights and Responsibilities Bill 2006 (Vic).  The explanatory memorandum relevantly states:
The obligation to comply with the Charter extends beyond these “core” government authorities, to cover other entities when they are performing functions of a public nature on behalf of the State (paragraph (c)). This reflects the reality that modern governments utilise diverse organisational arrangements to manage and deliver government services. The Charter applies to “downstream” entities, when they are performing functions of a public nature on behalf of another public authority.
78	Again, there is force to the defendants’ submissions that s 4(1)(c) is not intended to capture entities that only exercise public functions.  However, whether s 4(1)(c) of the Charter applied to Cabinet when it made the decision is a question that should be resolved after it has been fully argued.
79	The defendants also attacked Berih’s Charter claims in Grounds 2 and 3 on the basis that Ground 1 was so misconceived that it could not be the jurisdictional basis for a claim made under the Charter.  In Kheir v Robertson, McDonald J said in relation to such an argument (citations omitted):
100.	Ms Fitzgerald submits that ground eight is colourable and is pressed by the plaintiff solely for the purpose of enlivening jurisdiction to grant relief under s 39 of the Charter. I accept this submission.
101.	In Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation,  the Full Court of the Federal Court stated that claims are colourable if ‘they were made for the improper purpose of “fabricating” jurisdiction’.  In such a case, jurisdiction is not attracted.  To be non-colourable, the ground must be ‘bona fide and not spurious, hypothetical, illusory or misconceived’.  In Goode v Common Equity Housing Ltd, Bell J held that a ground of non-Charter unlawfulness may be unsuccessful but will nevertheless support relief for a ground of Charter unlawfulness.  The reasoning of Bell J is consistent with Burgundy Royale.  In Burgundy Royale, the Full Court of the Federal Court explained that ‘[a]ny other approach would involve the extremely inconvenient result that the existence or absence of jurisdiction to deal with a particular claim would depend upon the substantive result of that claim’.  I accept Ms Fitzgerald’s submission that the reasoning in Burgundy Royale applies to s 39 of the Charter.
Whether McDonald J’s reasoning should be applied in this case will depend, at least in part, on a full consideration of Ground 1.  For the reasons stated above, this should occur at the hearing of the defendants’ proposed summary dismissal/strikeout application. 
80	The claim brought by Berih is novel, faces significant hurdles and is not obviously strong.  The balance of convenience favours refusing the application for interlocutory orders. 
Conclusion
81	For the above reasons, I conclude that Berih’s application for interlocutory restraining orders should be dismissed.
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SCHEDULE OF DEFENDANTS
STATE OF VICTORIA	First Defendant
HARRIET SHING	Second Defendant
HOMES VICTORIA	Third Defendant