Class action against government over housing removals to proceed on amended grounds

Class action proceedings over a government program to forcibly re-locate public housing residents have been given the green light.

Under the ACT Government’s Growth and Renewal program, some public housing residents were able to enrol voluntarily in the program to move to new residences between February 2019 and February 2022.

This was ultimately changed in February 2022, when tenants were told they would be forced to move.

Then, in November 2023, the tenants were told they would not be relocated and the relocations would be voluntary.

However, legal proceedings, including a case lodged in the Federal Court, followed.

In a judgement handed down on Tuesday (11 February), Justice Robert Bromwich dismissed an attempt to stop proceedings.

“I am not satisfied that this issue is appropriately disposed of at this stage by denying leave to amend and summarily dismissing the proceeding.”

The ACT Government and the Commissioner for Social Housing are now named as respondents.

The lead plaintiff argued that the relocation order was a breach of tenants’ human rights.

In response, the government argued the case did not have reasonable prospects of success.

According to Justice Bromwich’s judgement, no one had “ultimately been required to relocate” through the program, and some people involved in the class action were not affected by the proposed plan – such as people who were not leaseholders, had voluntarily moved or were living in homes unaffected by the proposal.

However, Justice Bromwich found the filing of an amended claim meant the case could proceed.

In amended filings, the class action argues the relocation notice was a breach of contract and that the tenants were also subject to unconscionable conduct.

“[The lead applicant] alleges that the relocation notice amounted to an exercise of undue influence or pressure or was an unfair tactic that was not reasonably necessary for the protection of the Commissioner’s legitimate business interests, and because the relocation decision was contrary to law it was not reasonable, due or fair,” he said.

In his judgement, Justice Bromwich said the way tenants were notified of their relocation would likely feature in future proceedings.

“The proper question for this case is whether the relocation notice is capable of having caused a sufficient degree of interference with the tenants’ use of the properties to amount to a breach of the Commissioner’s obligation”, he said.

Justice Bromwich said the extent to which the notice to relocate may have been a breach was a “question of degree”.

He also said he was “unable to be satisfied that there is no reasonable prospect of [the lead plaintiff’s] unconscionable conduct case succeeding”.

A damning ACT Ombudsman report that investigated the circumstances of the relocation program found Housing ACT had caused distress to vulnerable tenants through the proposed relocations.

No date was given for the matter to return to court.