Berih v Homes Victoria (No 4)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

GROUP PROCEEDINGS LIST

S ECI 2024 00280

BARRY BERIH	Plaintiff
v
HOMES VICTORIA	Defendant

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	28–29 October 2024, 27–28 February 2025
DATE OF JUDGMENT:	4 April 2025
CASE MAY BE CITED AS:	Berih v Homes Victoria (No 4)
MEDIUM NEUTRAL CITATION:	[2025] VSC 169

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ADMINISTRATIVE LAW — Judicial review — Decision of Homes Victoria to implement a program to retire and redevelop 44 public housing towers in Melbourne — Group proceeding brought by resident of one public housing tower, seeking judicial review of Homes Victoria’s decision — Whether Homes Victoria’s decision justiciable — Housing Act 1983 (Vic) ss 9, 15 — Public Administration Act 2004 (Vic) ss 3, 5— Berih v State of Victoria (No 2) [2024] VSC 230 — Comcare v Banerji (2019) 267 CLR 373.

ADMINISTRATIVE LAW — Judicial review — Procedural fairness — Whether Homes Victoria was obliged to give Group Members opportunity to be heard before making decision — Whether relevant power conditioned on observance of procedural fairness — Whether decision affected any legally recognised right or interest of Group Members — Whether realistic possibility of Homes Victoria making different decision if Group Members had been heard — Housing Act 1983 (Vic) ss 6, 9, 10, 13, 14, 15, 18, 19, 32 — Residential Tenancies Act 1997 (Vic) s 91ZY, pt 7 div 1 — Keasey v Director of Housing (2022) 66 VR 45 — Badari v Minister for Territory Families and Urban Housing [2025] NTCA 1.

HUMAN RIGHTS — Charter of Human Rights and Responsibilities — Right to home — Whether s 38(1) of Charter applied to decision — Whether Homes Victoria gave proper consideration to relevant human rights in making decision — Whether decision limits Group Members’ human rights — Whether any limitation to human rights justified under s 7(2) of Charter — Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 4, 7(2), 13(a), 17(1), 20, 38 — Keasey v Director of Housing (2022) 66 VR 45 — Certain Children v Minister for Families and Children (No 2) (2017) 52 VR 441 — Thompson v Minogue (2021) 67 VR 301.

EVIDENCE — Objection to evidence — Plaintiff objected to evidence on grounds of inadmissible opinion and hearsay without identified basis, and sought exclusion of unfairly prejudicial evidence — Reasons for ruling that evidence admissible, other than some evidence excluded as unfairly prejudicial — Evidence Act 1995 (Cth) ss 135, 136.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms K O’Gorman SC, with Mr L Howard, Mr T Farhall, and Ms G Cafarella	Inner Melbourne Community Legal
For the Defendant	Mr L Brown SC, with Ms E Smith and Mr J Maxwell	Victorian Government Solicitor

TABLE OF CONTENTS

Relevant provisions — Housing Act................................................................................ 4
The Decision......................................................................................................................... 9
Ruling on objections to evidence..................................................................................... 12
Can the Decision be reviewed by the Court?................................................................ 18
Was Homes Victoria obliged to give Group Members an opportunity to be
heard?.................................................................................................................................. 26
Was Homes Victoria obliged to observe procedural fairness?........................... 34
Content of any obligation to observe procedural fairness.................................. 41
Could a hearing have made a difference to the Decision?.................................. 43

Did s 38(1) of the Charter apply to the Decision?......................................................... 45
Did Homes Victoria give proper consideration to human rights?............................. 47
Did the Decision limit human rights?............................................................................ 55
Is any limitation of human rights justified?................................................................... 72
Should any remedy be granted?...................................................................................... 87
Disposition.......................................................................................................................... 87

HER HONOUR:

Barry Berih lives in a flat in the public housing tower at 33 Alfred Street, North Melbourne, under a rental agreement with Homes Victoria. The Alfred Street tower is one of 44 public housing towers built by the former Housing Commission of Victoria in Melbourne between the 1950s and 1970s. All these public housing towers are now owned and managed by Homes Victoria, under the Housing Act 1983 (Vic).

Homes Victoria is a body corporate established under the Housing Act, consisting of the Chief Executive Officer, Homes Victoria.[1] At the relevant time, that person was Simon Newport.
[1]Housing Act 1983 (Vic), s 9(2).

In September 2023, the Victorian Government decided to retire all of Melbourne’s public housing towers and redevelop the land on which they are located, commencing with towers in Flemington, North Melbourne, and Carlton. Among the first towers to be retired are the Alfred Street tower in which Mr Berih lives and the towers located at 120 Racecourse Road, Flemington and 12 Holland Court, Flemington (together, the Towers). The Redevelopment Program was one of a number of policies related to housing supply and affordability set out in Victoria’s Housing Statement: The decade ahead 2024-2034, announced by the Premier on 20 September 2023.

On 18 September 2023, Mr Newport decided to implement the Redevelopment Program. That implementation Decision is the subject of this proceeding.

On 24 January 2024, Mr Berih commenced this proceeding as a representative proceeding under pt 4A of the Supreme Court Act 1986 (Vic), on his own behalf and on behalf of other renters in the Towers (Group Members). The defendant to the proceeding is Homes Victoria.[2]
[2]Mr Berih initially brought the proceeding against the State of Victoria, the Minister for Housing, and Homes Victoria. He reformulated his claim following my earlier decision in Berih v State of Victoria (No 2) [2024] VSC 230 (Berih No 2), including by removing the State and the Minister as defendants.

Mr Berih seeks judicial review remedies in respect of the Decision, on three grounds:

(a) First, he claims that in making the Decision under s 15(1) of the Housing Act, Homes Victoria was obliged to give Group Members an opportunity to be heard, it failed to do so, and its failure was material to the Decision.

(b) Second, he says that in making the Decision, Homes Victoria did not give proper consideration to relevant human rights of Group Members, contrary to s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

(c) Third, he contends that the Decision was incompatible with Group Members’ human rights, specifically their right under s 13(a) of the Charter not to have their home and family unlawfully or arbitrarily interfered with, their right under s 17(1) to protection of family, and their right under s 20 not to be deprived of their property other than in accordance with law.

Mr Berih seeks declarations that the Decision was invalid and unlawful. He also seeks injunctions restraining Homes Victoria from taking any further steps to implement the Decision, and requiring it to consult with Group Members before making any further decision to develop or demolish the Towers.

The issues for determination are:

(a) Can the Court review the Decision? In legal terms, is the Decision justiciable?

(b) Was Homes Victoria obliged to give Group Members an opportunity to be heard before making the Decision? If so, did it fail to do so?

(c) Was there a realistic possibility that Homes Victoria could have made a different decision if it had given Group Members an opportunity to be heard?

(d) Did s 38(1) of the Charter apply to the Decision?

(e) In making the Decision, did Homes Victoria give proper consideration to relevant human rights?

(f) Does the Decision limit Group Members’ human rights?

(g) Is any limitation of Group Members’ human rights justified under s 7(2) of the Charter?

(h) Should Mr Berih be granted the relief he seeks?

In summary, I have concluded that:

(a) The Decision is justiciable and can be reviewed by the Court.

(b) Homes Victoria did not have to give Group Members an opportunity to be heard before making the Decision. That is because Homes Victoria’s statutory power to develop land is not conditioned on observing procedural fairness, and the Decision did not affect any legally recognised right or interest of Group Members.

(c) In any event, there was no realistic possibility that Homes Victoria could have made a different decision, if it had heard from Group Members beforehand. A better understanding of the impact of the Decision on Group Members could not have changed Homes Victoria’s assessment that residents must be relocated in order to address the many problems with the Towers, whether the Towers are redeveloped or retrofitted. Further, a substantial increase in the amount of housing on the sites can only be achieved by demolishing the Towers and redeveloping the sites. Hearing from Group Members could not have changed that reality.

(d) Section 38(1) of the Charter applied to the Decision.

(e) In making the Decision, Homes Victoria gave proper consideration to relevant human rights.

(f) The Decision limited Group Members’ human right not to have their homes arbitrarily interfered with, under s 13(a) of the Charter. It diminished their security of tenure and will disperse the community that is an intrinsic part of their homes in the Towers. The Decision was made without prior notice or consultation, and so was arbitrary in the sense of being capricious and the result of unpredictable conduct.

(g) The Decision was lawful, reasonable, and justified in accordance with s 7(2) of the Charter. Homes Victoria must do something to address the ongoing deterioration of the Towers. The Redevelopment Program is rationally directed to achieving that purpose. While the implementation of the Decision has diminished Group Members’ security of tenure and will disperse their community, the alternative option of retrofitting the Towers would have a similar effect. In addition, the Redevelopment Program will substantially increase the amount of housing on the sites, to the benefit of a much wider group than the current renters in the Towers.

(h) Mr Berih has not made out a case for the relief he seeks, and so the proceeding must be dismissed.

My reasons for those conclusions follow.

Relevant provisions — Housing Act

The Housing Act was enacted in 1983 to modernise housing law and improve housing administration in Victoria.[3] The objects of the Housing Act are set out in s 6(1), as follows:
[3]Housing Act, long title.

The objects of this Act are—
(a)to ensure that every person in Victoria has adequate and appropriate housing at a price within his or her means by encouraging—
(i)the provision of well maintained public housing of suitable quality and location;
(ia)the participation of non-profit bodies in the provision of well maintained, affordable rental housing of suitable quality and location;
(ii)the distribution, according to need, of Government housing financial assistance;
(iii)the promotion of the orderly planning, assembly and development of land;

(b)to expand and develop the role of the public sector in the provision of housing;
(c)to promote cost effectiveness in the provision of housing;
(d)to promote the integration of public and private housing;
(e)to provide in the public sector a variety of housing types in various locations;
(ea)to provide a regulatory framework to encourage the development of rental housing agencies serving the housing needs of low-income tenants by providing for the registration of those rental housing agencies and the regulation and monitoring of registered agencies;
(f)to promote security and variety of tenure;
(g)to seek the participation of tenants and other community groups in the management of public housing and non-distributing co-operatives engaged in the provision of rental housing to their members;
(h)to promote consultation on major housing policy issues with all persons and groups of persons involved in housing;
(i)to monitor the house building and housing finance industries in both the public and private sectors and to assist those industries to achieve growth and stability;
(j)to co-ordinate the provision of all necessary community services and amenities ancillary to public housing;
(l)to maximize employment opportunities in the housing sectors;
(m)to give due regard to the environmental impact of the activities of the public housing sector;
(n)to provide a safe and satisfying work environment for persons employed in the public housing sector; and
(o)to promote public awareness of the role and functions of the public housing sector.

Section 6(2) provides:

It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the objects set out in subsection (1) and that every power, authority, discretion, jurisdiction and duty conferred or imposed by this Act shall be exercised and performed so as by design and intent to promote and achieve those objects.

Homes Victoria is established by s 9(2) of the Housing Act as a body corporate constituted by the Chief Executive Officer of Homes Victoria and their successors in office.[4] It is capable of suing and being sued, acquiring, holding, and disposing of real property, and doing all other acts and things that a body corporate may by law do that are necessary for or incidental to the purposes of the Housing Act.[5]
[4]Housing Act, ss 4(1) (definition of ‘Homes Victoria’), 9.
[5] Housing Act, s 9(2).

The Chief Executive Officer of Homes Victoria is appointed and may be removed from office by the Governor in Council, and is in respect of that office subject to the Public Administration Act 2004 (Vic), other than pt 3 of that Act.[6]
[6]Housing Act, s 9(1)(a). Part 3 of the Public Administration Act 2004 (Vic) deals with public service employment.

The functions of Homes Victoria are those conferred by the Housing Act, together with any functions conferred by the Minister.[7]
[7]Housing Act, sub-ss 9(3), (3A).

Section 10 of the Housing Act provides that Homes Victoria is subject to the direction and control of the Minister, in the following terms:

(1)In the exercise of the powers, discretions, functions and authorities and in the discharge of the duties conferred or imposed upon Homes Victoria by or under this or any other Act, Homes Victoria shall be subject to the direction and control of the Minister.
(2)Homes Victoria shall furnish the Minister with such reports, documents, papers, minutes and other information as may be required by Parliament pursuant to any Act or pursuant to any order of either House of Parliament.
(3)Homes Victoria shall also provide the Minister with regular reports on all business of Homes Victoria and shall furnish the Minister with any information which the Minister may require.

Part III of the Housing Act gives Homes Victoria various powers in relation to property, which are also subject to Ministerial control. Section 13 provides:

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.

Section 14 enables Homes Victoria to acquire and dispose of land. Its powers under s 14 include a power to lease any land vested in it, subject to the Residential Tenancies Act 1997 (Vic).[8]
[8]Housing Act, s 14(1)(g).

Section 15 provides:

Power to develop and manage land
(1)Homes Victoria may for the purposes of this Act and for all purposes ancillary to those purposes—
(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; and
(c)maintain and repair and generally control, manage or use any houses and buildings situated on any such land as is referred to in paragraph (b); and
(ca)at the request of the Secretary, and on terms and conditions agreed between Homes Victoria and the Secretary—
(i)develop any land which is vested in the Secretary or in respect of which the Secretary has a leasehold estate;
(ii)generally control, manage or use any land which is vested in or leased to or subject to any mortgage or security in favour of the Secretary;
(iii)maintain and repair and generally control, manage or use any houses and buildings situated on land referred to in subparagraph (ii); and

(cb)at the request of a registered agency, and on terms and conditions agreed between Homes Victoria and the registered agency—
(i)develop any land which is vested in the agency or in respect of which the agency has a leasehold estate;
(ii)generally control, manage or use any land which is vested in or leased to or subject to any mortgage or security in favour of the agency;
(iii)maintain and repair and generally control, manage or use any houses and buildings situated on land referred to in subparagraph (ii); and

(d)with the consent of the Governor in Council and at the request and on behalf of, or in association with, and at the expense of the Commonwealth or the State of Victoria or any public department or authority of the Commonwealth or the State of Victoria or any municipal council—
(i)develop any land whether or not it is vested in Homes Victoria;
(ii)generally control, manage or use any such land; and
(iii)maintain and repair and generally control, manage or use any houses and buildings situated on any such land.

(2)In subsection (1) the words for all purposes ancillary to those purposes include the provision of all necessary community services and amenities.

Some relevant definitions are found in s 4(1) of the Housing Act:

building includes a structure or a part of a structure;
development in relation to land, means—
(a)the construction or demolition of a building on the land;
(b)the carrying out of works in, on, over or under the land;
(c)the making of a change in the use of the land;
(d)the division of the land into two or more parts each capable of being separately occupied, used or disposed of or the resubdivision of land into different parts each capable of being separately occupied, used or disposed of;
(e)the redevelopment of the land;

land includes buildings and other structures, land covered with water and any interest (including any leasehold interest), easement or right in or over land;
…

The Decision

Mr Berih initially sought judicial review of Cabinet’s policy decision to approve the Redevelopment Program, as announced in the Housing Statement. In Berih v State of Victoria (No 2) (Berih No 2),[9] I held that Cabinet’s policy decision was not justiciable, and that the claim as it was then formulated had no real prospect of success.[10] Mr Berih subsequently reformulated his claim to focus on Homes Victoria’s Decision to implement the Redevelopment Program.
[9][2024] VSC 230.
[10]Berih No 2 [2024] VSC 230, [41]–[51].

Against this background, and in light of the parties’ arguments, it is necessary to set out in some detail the evidence regarding how and when the Decision was made, and its relationship with decisions of Cabinet.

Mr Newport commenced in the role of Chief Executive Officer of Homes Victoria on 31 July 2023. On the same date, he took up the role of Deputy Secretary to the Department of Families, Fairness and Housing.[11] When he commenced in those roles, he was instructed by the Secretary to the Department to prepare the Redevelopment Program policy for consideration by Cabinet, for inclusion in the Housing Statement.[12]
[11]Affidavit of Simon Newport sworn 30 September 2024 (Second Newport affidavit), [1].
[12]Second Newport affidavit, [27].

In the following weeks, Mr Newport and Department staff assigned to Homes Victoria worked on a Cabinet submission recommending the Redevelopment Program.

The Cabinet submission, the documents provided to Cabinet committees about the Redevelopment Program, and the documents used by Homes Victoria to prepare the Cabinet submission have all been ruled to be immune from production on the ground of public interest immunity and under ss 130 and 131A of the Evidence Act 2008 (Vic).[13] Consequently, none of those documents was in evidence.
[13]Berih v Homes Victoria (No 3) [2025] VSC 30 (Berih No 3).

According to Mr Newport, on Monday 18 September 2023, a Cabinet committee approved financial aspects of various initiatives for inclusion in the Housing Statement, including the Redevelopment Program, beginning with the Towers and the two towers in Carlton (the funding decision). That afternoon, Mr Newport was advised of the funding decision by the manager of his office, who regularly deals with the Cabinet office. He did not receive written notification of the funding decision, but was told that that the Redevelopment Program had been approved for inclusion in the Housing Statement.[14] The minute of the Cabinet committee’s funding decision was not in evidence.
[14]Second Newport affidavit, [28]–[29], [31]; Transcript of Proceedings, Berih v Homes Victoria (Supreme Court of Victoria, S ECI 2024 00280, Richards J, 28–29 October 2024, 27–28 February 2025) 27:11–30:8; 86:27–31 (Newport XXN) (Transcript).

Upon being informed of the funding decision, Mr Newport decided to take steps to give effect to it by commencing the Redevelopment Program.[15] This decision made on 18 September 2023 is the Decision under review in this proceeding. It was the necessary first step towards implementing the Redevelopment Program, a large and complex exercise that will involve many other decisions and will take decades to complete. The Decision was an exercise of Homes Victoria’s power to develop land, vested in it under s 15(1)(a) of the Housing Act.
[15]Second Newport affidavit, [32].

Mr Newport did not make a written record of the Decision. The Cabinet submission was in his mind when he made the Decision, and he took it into account.[16] He made some notes in his notebook of things to be done when the Redevelopment Program was announced. These notes were called for, produced, and tendered.[17] They are clearly not a record of the Decision or Mr Newport’s reasons for making it.
[16]Transcript, 35:8–37:31 (Newport XXN).
[17]Exhibit P4 – Mr Newport’s handwritten note of 18 September 2023.

On Wednesday 20 September 2023, Cabinet approved relevant respective Ministers progressing specific initiatives for inclusion in the Housing Statement, including the Redevelopment Program, beginning with the Towers and the two Carlton towers (the policy decision). On the same day, the then Premier, the Honourable Daniel Andrews, announced the Housing Statement and the Department of Premier and Cabinet published the Housing Statement on a Victorian Government website.[18]
[18]Second Newport affidavit, [30].

The Housing Statement began with a message from the Premier, and outlined a range of policies related to housing supply and affordability. In a section headed ‘More social housing’, the Housing Statement announced a plan to retire ‘ageing high-rise towers across Melbourne, to provide homes that are modern, comfortable and energy efficient’. The plan was outlined under the sub-heading ‘What we’ll do’:[19]
[19]Affidavit of Louisa Bassini affirmed 15 February 2024, Exhibit LB-1, 36 (First Bassini affidavit).

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.

The minute of Cabinet’s policy decision was not in evidence. It is not clear whether it was communicated to Mr Newport, or whether he learned of it when the Premier announced the Housing Statement. Mr Newport did not receive any formal direction from the Minister under the Housing Act in relation to the Decision,[20] or in relation to the Redevelopment Program generally.[21]
[20]Transcript, 86:12–18 (Newport XXN).
[21]Transcript, 87:1–6 (Newport XXN).

I have had difficulty reconciling the sequence of events with Mr Newport’s evidence that, in making the Decision, he also considered he was discharging his obligation to implement a policy decision made by Cabinet.[22] The cause of the difficulty is that Mr Newport made the Decision two days before Cabinet made the policy decision. The actual trigger for the Decision was learning that a Cabinet committee had approved funding for the Redevelopment Program recommended by Homes Victoria. Mr Newport was confirmed in his Decision by Cabinet’s subsequent approval of the Redevelopment Program. In other words, the policy decision of Cabinet aligned with the Decision that Mr Newport had already made.
[22]Second Newport affidavit, [35].

Mr Berih first learned that his home was to be demolished through the media on 20 September 2023, when watching the Premier’s press conference on television. On 21 September 2023, Mr Berih attended a meeting at the Alfred Street tower hosted by Homes Victoria where the retirement of the tower was announced.

Ruling on objections to evidence

The fact that Mr Newport had taken the Cabinet submission and related documents into account when he made the Decision did not emerge until he was cross-examined on the first day of the trial. Homes Victoria had until then maintained that there were no documents relevant to the Decision, and produced nothing in response to a disclosure order made on 17 September 2024.

After Mr Newport gave evidence that he had taken the Cabinet submission into account when he made the Decision, Mr Berih called for its production. He also called for the production of some technical reports that had informed Homes Victoria in its preparation of the Cabinet submission. Homes Victoria objected to producing the documents on the ground of public interest immunity, and sought additional time to file evidence in support of its claim. I adjourned the trial and referred the question whether the Cabinet submission was immune from production to another judge of the Court. Justice Keogh subsequently heard the objection, and determined that the documents were immune from production.[23]
[23]See Berih No 3 [2025] VSC 30.

When the trial resumed on 27 February 2025, Mr Berih objected to four paragraphs in Mr Newport’s affidavit of 30 September 2024 and seven passages of his evidence during cross-examination and in answer to questions from me. In summary, the evidence concerned Mr Newport’s assertions that:

(a) the public housing towers were reaching the end of their useful lives and were no longer fit for modern living;

(b) continued occupation of the towers with periodic minor maintenance and upgrades was not a viable option;

(c) retrofitting the towers would not be feasible, would not have any meaningful lower impact on renters than the redevelopment option, and would not achieve the objective of the Redevelopment Program as effectively and to the same extent; and

(d) there was no way to address the problems with the towers without causing significant disruption to the renters, and either option was going to cause significant disruption.

The objections were that the evidence was inadmissible opinion, hearsay without any identified basis, and unfairly prejudicial evidence that should be excluded under s 135 of the Evidence Act. Alternatively, Mr Berih sought a direction under s 136 of the Evidence Act, limiting the use to be made of the evidence.

After hearing argument, I ruled that four passages of evidence given in answer to questions from me should be excluded under s 135, but otherwise did not uphold the objections. I now give my reasons for that ruling.

Submissions

Mr Berih submitted that the opinions expressed in paragraphs 17, 18, 23, and 34 of Mr Newport’s affidavit were inadmissible because:

(a) Mr Newport was not qualified to express the opinions, being neither an engineer nor an architect; and

(b) the underlying facts and reasoning were not exposed.

Mr Berih made the same submission about some evidence given by Mr Newport in cross-examination, and in answer to my request that he elaborate on the basis for the opinion that retrofitting the towers was not feasible and would have no less impact on renters than demolishing the towers and redeveloping the sites.

Mr Berih identified a good deal of unattributed hearsay in the relevant paragraphs, on which Mr Newport apparently based his opinions. He made the point that it was not possible to tell whether Mr Newport was expressing his own opinions, or repeating the opinions of other people.

In relation to s 135, Mr Berih submitted that:

(a) the probative value of the evidence was low, being unqualified opinions based on unstated facts and reasoning;

(b) there was a danger that the evidence might be unfairly prejudicial to him, because without access to the Cabinet submission and supporting documents, he was unable to test the basis for the opinions; and

(c) that danger substantially outweighed the probative value of the evidence.

Mr Berih referred to Seven Network Ltd v News Ltd (No 8)[24] in relation to the meaning of ‘unfairly prejudicial’ in s 135. He emphasised that a procedural disadvantage may mean that a particular use of evidence might be unfairly prejudicial to a party. In Seven Network, there was a danger that generalised opinion evidence that could not effectively be tested in cross-examination might be unfairly prejudicial to the respondents.[25] Mr Berih submitted that the same danger existed in this case, both in relation to the opinions expressed by Mr Newport and as to whether he gave proper consideration to human rights in making the Decision.
[24](2005) 224 ALR 317 (Seven Network). Mr Berih also referred to Yara Pilbara Fertilisers Pty Ltd v Oswal [2016] VSC 440, [164].
[25]Seven Network, [23]–[24].

An additional basis on which Mr Berih submitted that the passages of oral evidence should be excluded under s 135 was that those passages contained opinion and hearsay evidence given by Mr Newport for the first time, to which Mr Berih had no prior opportunity to object.

In response, Homes Victoria submitted that it was too late to be objecting to Mr Newport’s evidence, when his affidavits had been read without objection and the answers were given in cross-examination. It said that the matters about which Mr Berih now complains were apparent at that time, regardless of whether the documents he took into account were immune from production. Homes Victoria submitted that it would be unfair to it to rule out critical evidence at this late stage, when it was too late for it to adduce other evidence to fill that gap.

In relation to the hearsay objection, Homes Victoria submitted that any hearsay was admissible for a non-hearsay purpose, being to establish Mr Newport’s state of mind. It added that, once the evidence was admitted for that purpose, it could be relied on for other purposes.

Homes Victoria argued that Mr Newport was well qualified to express the opinions in question, based on his training, study, and experience. It pointed to his extensive experience in administering public housing stock, including repairs and maintenance. In any event, it said that the opinions were admissible for a non-opinion purpose, related to Mr Newport’s state of mind and whether he gave proper consideration to relevant human rights.

Homes Victoria submitted that there was no danger of unfair prejudice, because both sides were disadvantaged by the unavailability of the documents that informed Mr Newport’s opinions. It emphasised that it could not have waived public interest immunity, and relied on the weighing exercise undertaken by Keogh J in determining that the Cabinet documents were immune from production.[26]
[26] Berih No 3 [2025] VSC 30, [83]–[92].

Homes Victoria said that the evidence in question was of significant probative value, as evidence of the decision-maker about his consideration of human rights and to justify any limitation of those rights. It submitted that the probative value of the evidence outweighed any prejudice to Mr Berih due to the application of a long-established immunity.

Homes Victoria relied on the Court of Appeal’s treatment of similar opinion evidence in Thompson v Minogue.[27] In that case, generalised opinion evidence based on unattributed hearsay was relied on to justify a random urine testing regime that limited a prisoner’s right to dignity in detention under s 22(1) of the Charter. The Court of Appeal considered that the evidence warranted ‘appropriate weight’ and was sufficient to justify the limitation.[28] Homes Victoria suggested that this analysis indicated the nature of evidence that could be relied on by public authorities in relation to s 38(1) of the Charter and used by the Court in ‘this very idiosyncratic form of judicial review’.[29]
[27] Thompson v Minogue (2021) 67 VR 301, [264]–[269].
[28]Thompson v Minogue (2021) 67 VR 301, [269]–[270].
[29]Transcript, 166:5–6.

Consideration

For the most part, the objections could and should have been taken at the time Mr Newport’s affidavit was read and when he gave his answers in cross-examination. The basis for the objections was apparent at that time. However, the evidence was received without objection on the first day of the trial. It was simply too late to raise these objections when the trial resumed. To uphold the objections would have resulted either in unfairness to Homes Victoria or further delay in completing the trial, neither of which would have facilitated the just, efficient, timely, and cost-effective resolution of the matters in dispute.[30]
[30]Civil Procedure Act 2010 (Vic), ss 7(1), 8(1).

Further, I accepted that Mr Newport was qualified to express opinions about the issues with the public housing towers and the options available to address them. He has specialised knowledge of asset management in the public housing sector, based on his study and experience. In relation to study, he has a bachelor’s degree in business, is a chartered accountant, holds a Certificate IV in building and construction, and has a graduate certificate in asset management. He has 12 years’ experience in the private residential building sector and another 12 years’ experience in public housing in New South Wales and Victoria.[31] Mr Newport’s qualifications and experience are more than sufficient to qualify him to express the opinions in issue.
[31]Second Newport affidavit, [5]–[6].

It is the case that Mr Newport’s opinions are based in large part on unattributed hearsay, and that key documents relevant to his opinion — including technical reports commissioned by Homes Victoria — were not available to Mr Berih. While that impaired Mr Berih’s ability to test the basis for Mr Newport’s opinions, it also disadvantaged Homes Victoria because it was unable to rely on the documents to substantiate the opinions. As Homes Victoria submitted, the disadvantage cut both ways.

Critically, the immunity of the Cabinet documents from production was not a forensic choice made by Homes Victoria. It was not entitled to waive public interest immunity over the Cabinet documents; determination of the claim was a matter for the Court.[32] In the event, the Court determined that the public interest in disclosure was outweighed by the public interest in maintaining the confidentiality of Cabinet deliberations.[33] In those circumstances, I was not persuaded that the unavailability of the documents created a danger of unfair prejudice to Mr Berih.
[32]Victoria v Seal Rocks Victoria (Australia) Pty Ltd (2001) 3 VR 1, [16]–[18] (Ormiston JA).
[33]Berih No 3 [2025] VSC 30, [92].

Different considerations applied to the answers given by Mr Newport in answer to my questions, to which timely objection was taken. In relation to that evidence, there was a danger of unfair prejudice to Mr Berih, who had no prior opportunity to consider or respond to the evidence. It was not evidence adduced by Homes Victoria, which indicated that it did not regard the evidence as having great probative value. I accepted that those answers should be excluded under s 135 of the Evidence Act.

I should add that I did not accept Homes Victoria’s suggestion that the Evidence Act somehow applies with less rigour to evidence adduced by a public authority to justify limiting a human right in accordance with s 7(2) of the Charter. The Court of Appeal’s consideration of the evidence in Thompson v Minogue concerned weight rather than admissibility, in circumstances where the decision-maker’s affidavit had been admitted without objection. It remains the case that a public authority that has limited a human right bears the onus of justifying that limitation by adducing admissible evidence sufficient to satisfy the stringent standard of demonstrable justification under s 7(2).[34]

Can the Decision be reviewed by the Court?

[34]Thompson v Minogue (2021) 67 VR 301, [71]–[77].

Submissions

In closing, Homes Victoria raised for the first time an argument that the Decision was not justiciable — that is, that it could not be reviewed by the Court — because it was, in substance, a challenge to Cabinet’s decision. Homes Victoria put the argument as follows:

(a) Mr Berih had called for the production of the documents that informed Cabinet’s decision, and then argued that it was unfair for Homes Victoria to defend the proceeding in the absence of those documents.

(b) Mr Newport was cross-examined about when, in the process of preparing the Cabinet submission, he formed a view on the question of redeveloping the towers.

(c) It is difficult to distinguish between the matters on which Mr Newport acted and the matters on which Cabinet acted.

(d) Mr Berih’s case focused heavily on the effect on him and other renters of the Premier’s announcement of Cabinet’s decision, to demonstrate lack of proper consideration and substantive limitation of human rights.

(e) In Berih No 2, the Court ruled that Cabinet’s decision was not justiciable. The reasons for that conclusion apply equally to the Decision made by Homes Victoria — the Decision did not have legal consequences, it was a policy decision involving competing considerations that the Court was not in a position to evaluate, and was not based on considerations specific to the individuals affected. Further, the Decision did not involve an exercise of statutory power; rather it was an exercise of a statutory capacity that Homes Victoria held in common with other legal persons and subject to the general law. The Decision did not have a sufficient effect on rights to be amenable to judicial review.

Homes Victoria referred to Shire of Beechworth v Attorney-General,[35] which concerned a decision of the Governor in Council to revoke the appointment of the Beechworth Court House as a place for the holding of Magistrates’ Courts. Justice Vincent held that the decision could not be separated from the Government’s policy of rationalising court administration, and was not properly the subject of judicial review.
[35][1991] 1 VR 325 (Beechworth).

The ultimate argument for Homes Victoria was that, if the Decision were amenable to judicial review, it would undermine the rationale for the non-justiciability of Cabinet decisions. It submitted that was so because in every case that Cabinet makes a policy decision of this nature, it must be followed by a decision of some character by a public servant to implement the decision. If those decisions were amenable to judicial review on standard grounds, it would be possible to attack any Cabinet decision through that proxy.

For those reasons, Homes Victoria submitted that the proceeding must fall at the first hurdle, because it was an attempt to impugn Cabinet’s decision through the proxy of Mr Newport.

Mr Berih had no notice of this submission before it was made on the final day of the trial. He said in reply that the submission was hugely significant as a matter of both constitutional and administrative law, which would, if seriously put, call for notice to be given of a constitutional matter under s 78B of the Judiciary Act 1903 (Cth). Mr Berih pointed out that the submission had the effect of short circuiting the Minister’s power of direction under the Housing Act. He said that if that were accepted, it could impermissibly trespass on the Court’s constitutionally protected supervisory jurisdiction.

Mr Berih disclaimed any intention to reagitate the issue of the justiciability of Cabinet decisions.

Consideration

Initially, Mr Berih did seek to impugn Cabinet’s decision to redevelop all of Melbourne’s public housing towers, starting with towers in Flemington, North Melbourne, and Carlton. Following my decision in Berih No 2, Mr Berih reformulated his claim to seek judicial review remedies in respect of a different ‘decision’ — namely, the Decision of Homes Victoria to implement the Redevelopment Program, described at [4] and [27] to [28] above. Although at times Mr Berih’s submissions focused on the impact of the Premier’s unheralded announcement that the towers were to be demolished, I accept that he is not seeking to challenge a decision of Cabinet by a sidewind.

It is worth repeating here what I said in Berih No 2 about the relationship between Cabinet and Homes Victoria:[36]
[36]Berih No 2 [2024] VSC 230, [41]–[45]. The ‘Decision’ referred to was the decision of Cabinet to retire and redevelop all 44 public housing towers, starting with towers in Flemington, North Melbourne, and Carlton.

The Housing Act places Homes Victoria within the structure of the executive government of Victoria. The Minister for Housing may confer functions on Homes Victoria, and vary those functions, by notice published in the Government Gazette.[37] Homes Victoria is subject to Ministerial control and direction, both generally under s 10, and specifically under s 13 in relation to the exercise of its property-related powers.[38] Homes Victoria sits within the Department of Families, Fairness and Housing established under the Public Administration Act, and may delegate its powers to an employee of the Department.[39] In addition, the Chief Executive Officer, Homes Victoria holds that office subject to the Public Administration Act (other than Pt 3 dealing with public service employment).
Cabinet plays a central role in Victoria’s executive government:[40]
It is the chief decision-making organ of the government; it is a forum for political strategy and personal interaction between Ministers; it provides an opportunity to planning political strategy; it is a body for resolving disputes between Ministers and departments, and for co-ordinating the activities of government; it manages crises and budgets.

However, Cabinet keeps a ‘low legal profile’.[41] It is not mentioned in the Constitution Act 1975 (Vic), where its formal legal expression is the Executive Council.[42] I have been unable to identify any Victorian statute that gives Cabinet power to make a decision with legal effect. Typically, a statutory power conferred on the elected government is reposed in an individual Minister or the Governor in Council. Cabinet’s power within the structure of executive government derives from the conventions of responsible government, in particular the collective responsibility of Cabinet to Parliament for the administration of the executive government, and the convention that the Governor acts on the advice of the Executive Council.[43]
Section 15 of the Housing Act does not preclude Cabinet from making high-level policy decisions about public housing in Victoria. The structure of the Housing Act, with its repeated emphasis on Ministerial control,[44] presupposes that Cabinet’s deliberations will inform the Minister’s direction and control of Homes Victoria. It is unexceptionable that a commitment by the Victorian Government to replace a significant component of Victoria’s public housing stock should be the subject of a Cabinet decision — indeed, it would be extraordinary if it were not. A decision of that magnitude and complexity is exactly the kind of decision that should be made by Cabinet in a responsible government.
There is nothing at all to suggest that, in making the Decision, Cabinet purported to exercise any power under the Housing Act. There is no mention of the Housing Act in the Housing Statement, and no indication that the Decision involved any exercise of statutory power or was intended to have legal effect. Rather, the Decision formed part of a high-level policy statement on the large and complex issue of housing supply and affordability.

[37]Housing Act, s 9(3A).

[38]See also Housing Act, s 19 for Ministerial control in relation to finance powers of Homes Victoria, s 32 for Ministerial control in relation to other powers of Homes Victoria.

[39]Housing Act, ss 4(1) (definition of ‘Department’), 35.

[40]Greg Taylor, The Constitution of Victoria (The Federation Press, 2006), 144 (Taylor, The Constitution of Victoria).

[41]Taylor, The Constitution of Victoria, 144.

[42]Constitution Act 1975 (Vic), ss 87A–87E.

[43]FAI Insurances v Winneke (1982) 151 CLR 342, 364–5 (Mason J); Taylor, The Constitution of Victoria, 144‍-5, 157.

[44]Housing Act, ss 10, 13, 19, 32.

As Homes Victoria submitted, responsible government is a fundamental feature of Victoria’s Constitution Act 1975 (Vic). The essence of responsible government is that the government of the State is conducted by Ministers who enjoy the confidence of the people and are politically accountable to the people through the Parliament.[45] As explained by Gageler J in Comcare v Banerji, in relation to the Commonwealth Constitution:[46]

The political accountability of Ministers, Mason J observed in FAI Insurances Ltd v Winneke, has two elements. Each is facilitated by a different aspect of the operation of s 64 of the Constitution. One element, corresponding to the requirement of the section that Ministers be members of the Federal Executive Council, is the “collective responsibility” of Ministers to the Parliament and to electors for the whole conduct of the Executive Government of the Commonwealth. The other element, corresponding to the requirement of the section that Ministers be appointed to administer departments established by the Governor-General on the advice of the Federal Executive Council, is the “individual responsibility of Ministers to Parliament for the administration of their departments”.

[45]Comcare v Banerji (2019) 267 CLR 373, [59] (Gageler J) (Banerji).

[46] Banerji (2019) 267 CLR 373, [60] (Gageler J) (citations omitted).

In Banerji, all of the Justices held that laws directed to maintaining an apolitical public service were consistent with the system of representative and responsible government prescribed by the Commonwealth Constitution.[47] It is not a controversial proposition that responsible government depends upon an apolitical and professional public service that faithfully implements government policy.[48] In Victoria, this is reflected in the objects of the Public Administration Act, which include ensuring the maintenance of an apolitical public sector.[49]
[47]Banerji (2019) 267 CLR 373, [31] (Kiefel CJ, Bell, Keane and Nettle JJ), [100] (Gageler J), [111], [155] (Gordon J), [190] (Edelman J).
[48]Banerji (2019) 267 CLR 373, [34] (Kiefel CJ, Bell, Keane and Nettle JJ).
[49]Public Administration Act, s 3.

It does not follow that decisions of Cabinet are implemented by Ministers and public servants in a legal vacuum. Another feature of responsible government is that Parliament enacts legislation that confers powers and discretions on Ministers, statutory office-holders, and other public entities. This legislation, against the background of the common law, gives legal effect to political power. As noted in Berih No 2, Cabinet is typically not the repository of any legal power or discretion.[50] Decisions of Cabinet are implemented by Ministers, statutory office-holders and bodies, and the public service in accordance with their statutory powers and the general law.
[50]Berih No 2 [2024] VSC 230, [47].

These lines of accountability and responsibility are set out in the Victorian Public Sector Commission’s Secretaries Guide for Informing and Advising Ministers,[51] as follows:
[51]Second Newport affidavit, Exhibit SAN-2(1), 18–9.

Cabinet is the Victorian Government’s principal decision-making body. Cabinet considers questions of policy, administration and legislation. All Ministers are part of Cabinet and have collective decision-making responsibility for Cabinet decisions (See further the Victorian Cabinet Handbook, available at: Ministers may give directions to departments to implement their decisions or the decisions of Cabinet and are responsible for administering and overseeing their portfolios.
The role of the VPS is to support the government of the day to deliver its agenda. In accordance with the Public Administration Act 2004 (Vic) (PAA) and the Code of Conduct for Victorian Public Sector Employees (the Code), the VPS:
·is professional and apolitical
·provides frank and impartial advice to support government decision-making
·implements government decisions.

The line of accountability under the Victorian system of government links from Secretaries, to the Minister, to Parliament, to the community:
·Secretaries are accountable to the Minister for their departmental responsibilities
·the Minister is accountable to Parliament for the actions and outcomes of the department and their portfolio
·the Government is accountable to the people, in their capacity as the electorate for the Parliament.

The board of a public entity is also accountable to the Minister for the exercise of its functions. Secretaries support Ministers to oversee public entities to enable Ministers to account to Parliament for a public entity’s exercise of its functions.

Cabinet is not mentioned in the Housing Act. It has no power to own, develop, or manage property under the Housing Act. Those powers are conferred by Parliament on Homes Victoria, which as a public entity constituted under the Housing Act is accountable to the Minister.[52] The Minister’s powers of direction are the mechanism for ensuring that Government housing policy is implemented by Homes Victoria.
[52]Public Administration Act, s 5; Housing Act, s 9(2). Section 9(1) of the Housing Act provides that the Chief Executive Officer, Homes Victoria is in respect of that office subject to the Public Administration Act, other than pt 3 of that Act. In other words, the provisions of the Public Administration Act relating to public service employment do not apply to the Chief Executive Officer, Homes Victoria.

In this case, the Minister gave no direction. In his capacity as Chief Executive Officer, Homes Victoria,[53] Mr Newport decided to implement the Redevelopment Program on learning that a Cabinet committee had approved funding for it. The Decision was made two days before Cabinet approved the Redevelopment Program as part of the Housing Statement. While the Decision was informed by the work that Homes Victoria had done in preparing the Cabinet submission, it was a separate and distinct decision from that made by Cabinet.[54]
[53]As distinct from Mr Newport’s concurrent role of Deputy Secretary to the Department of Families, Fairness and Housing, which is not the repository of powers under the Housing Act.
[54]Cf Beechworth [1991] 1 VR 325, 332.

Critically, the Decision involved an exercise of statutory power by Homes Victoria under s 15 of the Housing Act. I examine the nature of that power later in this judgment.[55] On the question of justiciability, it is sufficient to note that the power under s 15 had to be exercised by Homes Victoria by reference to the subject-matter, scope, and purpose of the Housing Act.[56] It is the exercise of statutory power by a statutory body that distinguishes the Decision from Cabinet’s decision considered in Berih No 2.
[55]See [104]–[112] below.
[56]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39–40 (Mason J).

The supervisory jurisdiction of the State Supreme Courts is the mechanism for determining and enforcing the limits on the exercise of Victoria’s executive power.[57] There is nothing in the Housing Act to suggest that the exercise of Homes Victoria’s powers, including its power in s 15(1)(a), is not amenable to the supervisory jurisdiction of this Court in the usual way.
[57]Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, [99] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

Aside from all of that, there is no clarity about what Cabinet decided in relation to the Redevelopment Program. All of the material considered by Cabinet is protected by public interest immunity, as are the records of its deliberations. Unsurprisingly, the minutes recording the funding decision and the policy decision were not tendered by Homes Victoria, and I do not know the terms of either decision.[58] The Housing Statement approved by Cabinet contains only a high-level summary of the Redevelopment Program and, critically, does not identify which towers in Flemington and North Melbourne are to be the first to be demolished.[59] The proceeding is properly focused on the Decision made by Homes Victoria, and not on a related decision of Cabinet that is, necessarily, shrouded in secrecy.
[58]Cf Criminal Bar Association of New Zealand Inc v A-G [2013] NZAR 1409, where the Cabinet minutes and other Cabinet documents were before the Court and are set out in detail in the judgment at [8]–[22].
[59]See [30] above.

For those reasons, I reject Homes Victoria’s submission that the decision is not justiciable. The Decision may be judicially reviewed.

Was Homes Victoria obliged to give Group Members an opportunity to be heard?

Both parties referred to the High Court’s statement of general principle in Minister for Immigration and Border Protection v SZSSJ,[60] that ‘a statute conferring a power the exercise of which is apt to affect an interest of an individual is presumed to confer that power on condition that the power is exercised in a manner that affords procedural fairness to that individual’.[61] From that point, their arguments diverged.
[60](2016) 259 CLR 180 (SZSSJ).
[61]SZSSJ (2016) 259 CLR 180, [75].

Mr Berih’s submissions

Mr Berih argued that Homes Victoria’s power to demolish the Towers is the power in s 15(1)(a) of the Housing Act. He said that the power to demolish a building necessarily affects the interests of the residents in the building: they will permanently lose their tenancy and their home. Mr Berih referred to Burgess v Director of Housing[62] and said that, like the decision to issue a notice to vacate in that case, the decision to demolish the Towers sufficiently exposes tenants to the risk of losing their tenancy to be regarded as affecting their rights and interests. He pointed out that a rental provider that intends to demolish rented premises may give a renter notice to vacate under s 91ZY of the Residential Tenancies Act. As such, he submitted that procedural fairness is an implied condition on the exercise of the power in s 15(1)(a).
[62][2014] VSC 648, [157] (Burgess).

In Mr Berih’s submission, the requirements of procedural fairness are not confined to decisions affecting legal rights and interests. He characterised Homes Victoria’s focus on legal rights as ‘public law semantics’,[63] and said that it was hard to understand how a power to demolish a building could be said not to affect the rights of the people who live in it. Mr Berih submitted that Homes Victoria’s reliance on authorities concerning non-statutory executive power was misplaced, because the Decision was an exercise of Homes Victoria’s statutory power under s 15 of the Housing Act. A statutory power to develop land is not analogous to a bare capacity to enter into contracts and own land.[64]
[63]Transcript, 174:24–27.
[64]Referring to Johnson v Kent (1975) 132 CLR 164, 169–170 (Barwick CJ); cf Griffith University v Tang (2005) 221 CLR 99, [82] (Gummow, Callinan and Heydon JJ) (Griffith University).

The interests of Mr Berih that were affected by the Decision were identified as:

(a) the loss of his home, which has been modified to accommodate his disability, without any assurance that he will be provided with an alternative home that meets his needs;

(b) his security of tenure in his home;

(c) his interest in maintaining the community that exists in the Alfred Street tower; and

(d) his right of quiet enjoyment of his home.

Mr Berih emphasised that, as a tenant, he was in a specific bilateral legal relationship with Homes Victoria — as was every other Group Member. The obligation to afford procedural fairness in respect of the Decision was owed to a specific and readily identifiable group of people. On that basis, he distinguished this case from Geelong Community for Good Life Inc v Environment Protection Authority,[65] in which a decision to amend Shell’s licence was held not to affect the plaintiff organisation or any distinct body of persons of which it was a part.[66]
[65](2008) 20 VR 338 (Geelong Community).
[66]Geelong Community (2008) 20 VR 338, [21]–[22].

Mr Berih also sought to distinguish this case from the recent decision of the Northern Territory Court of Appeal in Badari v Minister for Territory Families and Urban Housing,[67] in which the Minister’s determinations of rent payable by public housing tenants were held not to require procedural fairness. In Badari, the determinations extended to unidentified and unidentifiable persons including future tenants, and was made by the Minister by reference to public policy considerations. Here, the Decision affected an identifiable group of tenants and was made by Homes Victoria rather than by a Minister.
[67][2025] NTCA 1 (Badari).

Mr Berih said that procedural fairness is not displaced by the scheme of the Housing Act, despite there being no procedure specified to hear tenants in respect of a decision under s 15(1)(a).[68] Section 6 of the Housing Act contains strong indications to the contrary, requiring Homes Victoria to exercise its powers so as to promote and achieve objects including seeking the participation of tenants in the management of public housing and promoting consultation on major housing policy issues with all persons involved in housing.[69]
[68]Cf Twist v Randwick Municipal Council (1976) 136 CLR 106.
[69] Housing Act, sub-ss 6(1)(g)–(h), (2), set out at [11]–[12] above.

Mr Berih rejected Homes Victoria’s characterisation of the Decision as merely an early step in a multi-stage decision-making process. He pointed to evidence that he said established that the Decision was a decision to do everything in Homes Victoria’s power to cause the demolition of the Towers — including a letter sent to renters in the Towers in October 2023 advising them that they would be moving house.[70]
[70]Affidavit of Louisa Bassini affirmed 30 August 2024, Exhibit LB-6 (Second Bassini affidavit). Mr Berih also relied on Transcript, 29:17–21, 53:2–7, 54:15–19, 56:27–57:1 (Newport XXN); Second Newport affidavit, [18].

As to the content of procedural fairness, Mr Berih referred to High Court authority to the effect that the procedure to be adopted must achieve fairness in all the circumstances of the case, having regard to the legal framework in which the decision is to be made.[71] He identified four circumstances that were relevant in this case:
[71]Referring to Kioa v West (1985) 159 CLR 550, 627 (Brennan J) (Kioa); O’Rourke v Miller (1985) 156 CLR 342, 353 (Gibbs CJ, Mason and Dawson JJ agreeing); Condon v Pompano Pty Ltd (2013) 252 CLR 38, [156] (Hayne, Crennan, Kiefel and Bell JJ); Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, [53] (Gageler and Gordon JJ) (WZARH); Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, [31]–[35] (Gleeson CJ and Hayne J), [129], [143] (McHugh J), [189]–[193] (Kirby J).

(a) First, the substantial impact of the Decision indicated that Group Members were entitled to a substantial opportunity to be heard before it was made.

(b) Second, the Paving The Way Forward (PTWF) Local Action Plans for the Flemington and North Melbourne estates, authorised and published by the Victorian Government in 2022, gave a commitment that residents would be involved in the key decisions that affect their home, neighbourhood, and services.[72] Meaningful involvement required an opportunity to be heard before the Decision to demolish the Towers was made, not a program to communicate information afterwards.

(c) Third, the second report of the Social Housing Renewal Standing Advisory Committee (SHRSAC Report 2), delivered to the Minister for Planning in 2017, noted the Department’s position that the towers in the Flemington public housing estate had recently been upgraded and that there was no current intention to replace them. The Committee agreed that a separate development plan would be required for any proposal to redevelop the towers, with community involvement in its preparation.[73]

(d) Fourth, the residents of the Towers have a diverse range of backgrounds and include vulnerable members of the community, so that the requirements of procedural fairness are more, not less, stringent.

[72]Second Bassini affidavit, Exhibits LB-02, LB-03.

[73]Second Bassini affidavit, Exhibit LB-21, 11–2.

In those circumstances, Homes Victoria was required to consult meaningfully with residents of the Towers and allow them an opportunity to be heard on any proposal to retire and redevelop the Towers before making the Decision. It should have consulted Group Members about the options being considered, the feasibility of alternative approaches such as retrofitting, the effect that demolition would have on individual renters and the community, how redevelopment could best meet their needs, and how the project should be managed to protect their interests.

Mr Berih also relied on the objects of the Housing Act — to promote security of tenure, to seek the participation of tenants in the management of public housing, and to promote consultation on major housing policy issues with all persons involved in housing.[74] He said that these objects were clear indications, not only that Parliament intended procedural fairness to be given, but also of the content of the obligation.
[74]Referring to Housing Act, sub-ss 6(1)(f)–(h).

Homes Victoria engaged in no consultation at all before making the Decision. Instead, it commenced a communications program to inform residents of the decision it had already made.

Mr Berih said that had Homes Victoria consulted with residents of the Towers, there was a realistic possibility that it would not have made the Decision — or at least not at that time. In particular, had Homes Victoria been informed by residents of the drastic and irrevocable effect that the Decision will have on the communities in the Towers, there is a realistic possibility that it would first have considered the feasibility of retrofitting the Towers with upgraded services.

Mr Berih rejected the alternative submission of Homes Victoria that the requirements of procedural fairness were satisfied with respect to the Decision, because any renter who does not agree to relocate to another home will have an opportunity to be heard at the Victoria Civil and Administrative Tribunal (VCAT) before any possession order is made requiring them to leave their home. He said that the VCAT process could not replace genuine consultation by Homes Victoria, because by the time a renter reaches VCAT their security of tenure has been damaged and their community has been affected.

Homes Victoria’s submissions

Homes Victoria submitted that its ability to make the Decision was not conditioned by an obligation to afford procedural fairness. It identified four features of the Decision that it said supported the contention that it was not subject to a requirement to afford procedural fairness.

First, Homes Victoria said that the power to develop land in s 15(1)(a) of the Housing Act is properly characterised as a bare capacity to (among other things) demolish a building. An exercise of the power does not, without more, affect tenants’ rights or have legal effect.[75] Section 15(1)(a) does not of itself empower Homes Victoria to demolish a building; it can only lawfully do that once the building is vacant and all required planning and other approvals have been obtained. The Decision was no more than a decision to commence the Redevelopment Program. As a mere exercise of the capacity to develop land in s 15(1)(a), the Decision did not affect the legal right of renters to occupy their homes in accordance with their rental agreements.[76]
[75]Referring to Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42, [135] (Gageler J) (Plaintiff M68).
[76]Referring to Griffith University (2005) 221 CLR 99, [82] (Gummow, Callinan and Heydon JJ).

Second, Homes Victoria submitted that the Decision was an early step to commence a multi-stage development process over an extended period. In these circumstances, the requirements of procedural fairness are ordinarily satisfied if the decision-making process viewed in its entirety entails procedural fairness.[77]
[77]Referring to South Australia v O’Shea (1987) 163 CLR 378, 389 (Mason CJ) (O’Shea); Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 578 (Mason CJ, Dawson, Toohey and Gaudron JJ); Melbourne Water Corporation v Caligiuri (2020) 60 VR 462.

It was relevant that Homes Victoria’s power to develop land under s 15(1)(a) was not exhausted once Mr Newport had made the Decision; in legal terms, he was not functus officio. Continued implementation of the Redevelopment Program is contingent on further authorisation from the Minister and Cabinet at various stages, and the Decision might change if new circumstances arise.

Further, Homes Victoria pointed out that the Towers can only lawfully be demolished if they are not let to anyone, and Homes Victoria can only obtain vacant possession in accordance with the Residential Tenancies Act. Only VCAT can make a possession order under s 322 of that Act, after a process in which the renter may be heard on a broad range of issues. In other words, Homes Victoria submitted, the point at which a renter is entitled to be heard is the point at which they are actually being asked to leave.

Third, Homes Victoria said that the nature of the Decision — to implement a policy decision of Cabinet, rather than to do justice to a particular individual — points against the existence of a duty to afford procedural fairness.[78] Policy decisions of this kind, involving political judgments, are not generally conditioned on procedural fairness.[79] Homes Victoria relied on the reasoning in Badari, and emphasised the need to have regard to the circumstances in which the Decision was made instead of focusing solely on the statute.[80]
[78]Referring to O’Shea (1987) 163 CLR 378; McGuinness v New South Wales (2009) 73 NSWLR 104, 120.
[79]Referring to Nicholson-Brown v Jennings (2007) 162 FCR 337, [62] (Nicholson-Brown); Beechworth [1991] 1 VR 325; Badari v Minister for Territory Families and Urban Housing [2022] NTSC 83, [46]–[48]; Badari [2025] NTCA 1, [128].
[80]Referring to Badari [2025] NTCA 1, [123].

Moreover, the scope of the obligation to afford procedural fairness depends on the interests affected; a person is only entitled to be heard in relation to the interest that may be affected by a decision.[81] Even if the Decision had affected tenants’ legal rights or interests, they would only have been entitled to be heard in relation to those interests, and not in relation to broader considerations such as the feasibility of retrofitting the Towers. The content of the duty to afford procedural fairness would have been nothing, because of the level of generality at which the Decision was made and the opportunities for renters to be heard about their individual circumstances later in the process.
[81]Referring to Disorganized Developments Pty Ltd v South Australia (2023) 410 ALR 508, [45] (Kiefel CJ, Gageler, Gleeson and Jagot JJ) (Disorganized Developments); Annetts v McCann (1990) 170 CLR 596, 601 (Mason CJ, Deane and McHugh JJ) (Annetts).

Fourth, Homes Victoria submitted that the objects in s 6 of the Housing Act relied on by Mr Berih do not support the presumption of procedural fairness applying to the Decision. It referred to Geelong Community, in which a similar argument with respect to the principle of accountability in the Environment Protection Act 1970 (Vic) was rejected.[82]
[82] Referring to Geelong Community (2008) 20 VR 338, [34].

Homes Victoria’s next contention was that, in any event, the requirements of procedural fairness were satisfied because the Decision was part of a multi-stage decision-making process that, viewed in its entirety, provides a fair opportunity for renters to be heard.[83] In particular:

(a) Renters have had an opportunity, following release of the Housing Statement, to make representations to Homes Victoria advocating for a change of policy position. If persuaded by those representations, Mr Newport could brief the Minister and Cabinet to recommend that Cabinet’s policy position be altered. Homes Victoria pointed out that, since the Decision, representations made on behalf of renters have achieved a written confirmation that residents who are relocated to alternative housing ‘will have a right of return to the site upon completion, based on their ongoing eligibility and needs’.[84]

(b) Any renter who does not agree to relocate to alternative accommodation has an opportunity to have VCAT consider their individual circumstances before deciding whether to grant a possession order. Homes Victoria referred to several decisions that it said illustrated the breadth of considerations that VCAT may consider when deciding whether it is reasonable and proportionate to grant a possession order.[85]

[83]Referring to Nicholson-Brown (2007) 162 FCR 337, [57]–[59], [62], [67].

[84]Second Bassini affidavit, Exhibit LB-41.

[85]Hanson v Director of Housing [2022] VSC 710 (Hanson); Homes Victoria v Kelly(Residential Tenancies) [2023] VCAT 807; BYJ v RTE (Residential Tenancies) [2024] VCAT 778.

Homes Victoria submitted that Mr Berih’s reliance on the PTWF Local Action Plans and the SHRSAC Report 2 was misconceived. It said that neither document created an expectation that renters would be consulted before the Decision was made.

Finally in relation to this ground, Homes Victoria argued that Mr Berih had not discharged his onus of showing that an opportunity to be heard could realistically have made any difference to the Decision.[86] Mr Newport’s clear evidence was that taking no action about the state of the Towers was not an option, retrofitting the Towers was not feasible, and both retrofitting and redeveloping would involve relocating renters. He was aware of, and considered, the significant disruption that the Redevelopment Program would cause existing renters, ‘by disrupting their home life, their connections to local supports and services, and their links to their communities in the towers and the surrounding area’.[87] The matters put to Mr Newport in cross-examination did not affect his reasons for making the Decision and could not realistically have made any difference.
[86]Referring to LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 418 ALR 152, [10], [14] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ) (LPDT).
[87]Second Newport affidavit, [34].

Consideration

It is logical to consider the issues relating to procedural fairness in the following order:

(a) Was Homes Victoria obliged to observe procedural fairness before making the Decision?

(b) What was the content of any obligation to observe procedural fairness?

(c) Could a hearing have made a difference to the Decision?

Was Homes Victoria obliged to observe procedural fairness?

As a general rule, a person is entitled to be heard before a decision that affects them is made. The entitlement to a hearing is one of the rules of procedural fairness, also known as natural justice.

In legal terms, there is a strong presumption that the exercise of a statutory power that may adversely affect legally recognised rights or interests is conditioned on the observance of procedural fairness.[88] That is, it is presumed that a person whose rights or interests may be affected by the decision must be given a hearing by the decision-maker, before the decision is made. The presumption operates unless clearly displaced by the relevant statute, and requires the provision of procedural fairness to individuals whose rights or interests are directly affected.[89]
[88]Disorganized Developments (2023) 410 ALR 508, [33] (Kiefel CJ, Gageler, Gleeson and Jagot JJ), [49] (Steward J).
[89]Disorganized Developments (2023) 410 ALR 508, [33] (Kiefel CJ, Gageler, Gleeson and Jagot JJ), [49] (Steward J).

Although the presumption is a broad one, it does not apply to statutory powers that affect a person in their capacity as a member of the public or a section of the public, as distinct from their individual capacity.[90] A power that singles out a particular person and affects their interests directly must be exercised fairly, while a power that indirectly or indiscriminately affects the rights and interests of a section of the public is generally not conditioned on the observance of procedural fairness.[91] Drawing the distinction can be difficult, and requires close attention to the statutory power in question and the rights and interests that may be affected by its exercise. It may be relevant that the power is to be exercised by reference to broad questions of public interest, or political considerations, although that categorisation is not determinative.[92]
[90]Disorganized Developments (2023) 410 ALR 508, [34] (Kiefel CJ, Gageler, Gleeson and Jagot JJ), [60]–[62] (Steward J).
[91]Kioa (1985) 159 CLR 550, 584 (Mason J), 619–20 (Brennan J); Botany Bay City Council v Minister for Transport and Regional Development (1996) 66 FCR 537, 553–5; Nicholson-Brown (2007) 162 FCR 337, [62]; Geelong Community (2008) 20 VR 338, [22]; Castle v Director-General, State Emergency Services [2008] NSWCA 231, [6]–[9] (Basten JA) (Castle).
[92]O’Shea (1987) 163 CLR 378, 386 (Mason CJ); Castle [2008] NSWCA 231, [7]–[8] (Basten JA).

The starting point in the analysis is therefore the power in s 15(1)(a) of the Housing Act.

Section 15 is set out at [19] above. It is located in pt III of the Housing Act, which gives Homes Victoria various powers as to property. The other powers in pt III are as follows:

(a) Section 14 confers powers to acquire and dispose of land, including powers to purchase or compulsorily acquire land,[93] sell land vested in Homes Victoria,[94] and lease land vested in Homes Victoria or in which it has a leasehold interest.[95]
[93]Housing Act, s 14(1)(a).
[94]Housing Act, s 14(1)(e).
[95]Housing Act, sub-ss 14(1)(g)–(h).

(b) Section 16 provides power to create easements on land vested in Homes Victoria,[96] and to recommend that the Governor in Council close streets and extinguish easements and restrictive covenants on land developed by Homes Victoria.[97]

(c) Section 17 enables Homes Victoria to accept donations, gifts, devises, and bequests, either absolutely or subject to a trust not substantially different from the objects of the Housing Act.

(d) Section 18 allows Homes Victoria to enter into agreements for the sale or hire of a movable unit — that is, a house capable of being transferred from place to place.

[96]Housing Act, sub-ss 16(1)(a), (2).

[97]Housing Act, s 16(1)(b).

A number of the powers in pt III are expressed to be subject to another Act or to the provisions with respect to property in sch 2. In particular:

(a) the power to compulsorily acquire land is subject to the Land Acquisition and Compensation Act 1986 (Vic) (LAC Act);[98]
[98] Housing Act, s 14(2), sch 2 item 1.

(b) the power to lease land to another person is subject to the Residential Tenancies Act;[99]

(c) a recommendation to close a street or extinguish an easement or restrictive covenant may only be made by Homes Victoria after following the procedure in sch 2 item 8; and

(d) Part 7 of the Residential Tenancies Act applies where Homes Victoria requires a person to vacate a moveable unit in which they are accommodated, after a hiring agreement has been determined.[100]

[99] Housing Act, sub-ss 14(1)(g)–(h).

[100]Housing Act, s 18(3).

Homes Victoria is subject to the direction and control of the Minister in exercising all of the powers, discretions, and functions in pt III.[101] The Minister’s power to direct Homes Victoria in relation to property is in addition to the Minister’s general direction and control of Homes Victoria under s 10 of the Housing Act.
[101]Housing Act, s 13.

Homes Victoria said that the evidence of Professor Brendan McNiven did not go any further than saying that there were many options to extend the life of the Towers through maintenance, repair, or retrofitting, not all of which would be feasible. In the absence of evidence of any feasibility study, Homes Victoria said that Mr Newport’s evidence that renovation and retrofitting was not feasible should be accepted. It cautioned against requiring Mr Newport to prove a negative — that is, to prove that there were no less restrictive means reasonably available to achieve the aims of the Redevelopment Program.[207]
[207]Referring to Thompson v Minogue (2021) 67 VR 301, [75]–[77].

Mr Berih’s submissions

In response, Mr Berih relied on the reports of Professor McNiven as to the feasibility of retrofitting the Towers. He said that those reports established that retrofitting was a less restrictive means reasonably available to achieve the objectives of the Redevelopment Program.

Mr Berih argued that little weight should be given to Mr Newport’s opinion that retrofitting was not feasible, including because he was not an independent expert engaged to give an objective opinion. He said that there was no rational or reliable evidence that Mr Newport considered a specific retrofitting option, or that it was the best retrofitting option available. Mr Berih said that the evidence of Mr Newport did not meet the stringent standard of justification under s 7(2) of the Charter.[208]
[208]Referring to Thompson v Minogue (2021) 67 VR 301, [72]–[74].

Consideration

The limitation of the right to home in s 13(a) was ‘under law’ for the purposes of s 7(2). The Decision was a lawful exercise of Homes Victoria’s power to develop land under s 15(1)(a) of the Housing Act.

It is logical to start answering the question whether the limitation was demonstrably justified in the terms of s 7(2) by setting out the justification given for the Decision by Homes Victoria.

In November 2023, Mr Newport wrote to Mr Berih’s solicitors with the following summary of the considerations that underpinned the Decision:[209]

As the Housing Statement and media release indicate, this is a multi-year redevelopment. It is also a renter-focused redevelopment. The Department of Families, Fairness and Housing (Department) recognises that the towers are reaching the end of their useful lives and are no longer fit for modern living. The towers no longer meet the building and living standards we expect to provide renters, and in recent years, repairs have become more common and complex to maintain the quality, comfort and standards our renters deserve.
The rights and interests of our renters were at the forefront of the policy decision to retire and redevelop the ageing towers. This included considering future disruptions to established renter communities and their networks. It was acknowledged that this would be intensely felt by some residents, including older persons with close community connections and supports, as well as families with young children who are in school. The Department will be doing its best to mitigate these impacts as much as possible. Household-level discussions to understand needs and preferences are essential and will inform how we plan with households for alternate housing options in the neighbourhoods of their interest.
On balance, the redevelopment is a proportionate and necessary approach that will provide renters with better quality housing and deliver an increase to social housing. The redevelopment will meet every modern building standard, including for noise, sustainability, waste and recycling, bedroom area dimensions, room depth, ventilation, private open space, accessibility and minimum amenity standards.
In making the policy decision to retire and redevelop the ageing towers, consideration was also given to alternative options for repairing and retrofitting the towers. The design of the towers was assessed as an insurmountable obstacle to satisfying many contemporary codes, nationwide energy rating schemes and accessibility needs. The redeveloped contemporary buildings will provide an enhanced quality of life for residents, including significantly improved thermal performance and energy efficiency requirements that will reduce the cost of living for residents, as well as improved accessibility for people with disabilities. The redevelopment will ultimately promote the rights of residents in the long-term through improved well-being and better homes.

[209]Second Bassini affidavit, Exhibit LB-12.

Mr Newport elaborated on this explanation in his evidence at trial:[210]
[210]Second Newport affidavit, [17]–[20].

The towers were built between 1958 and 1975. Over the past 22 years, the Department has conducted ongoing works to maintain and replace essential services in the towers, such as lifts, boilers and fire systems. Despite those works, the towers are reaching the end of their useful lives and, in my view, are no longer fit for modern living. The issues with the towers include:
a. Noise: The walls and floors between homes are not constructed to meet contemporary standards regarding noise attenuation meaning residents experience more noise entering their apartment from outside the building and from neighbouring apartments.
b. Thermal performance: The majority of the towers are constructed from large, uninsulated concrete panels. It is difficult to manage and purge heat due to small window openings, the absence of external window shading, and the absence of mechanical cooling. This makes the apartments difficult to keep cool in warm weather and to keep warm in cool weather leading to less comfort and higher heating and cooling costs for residents.
c. Sustainability: In addition to the issues with thermal performance, the towers are not designed to make the optimal use of renewable energy generation such as through photovoltaic cells or solar hot water.
d. Structural performance: Contemporary building standards require new buildings to be designed and constructed to withstand a certain level of ground shaking (for example, from earth tremors or earthquakes). Similarly, remediation works must be done on existing buildings that do not meet those standards. Most of the towers do not meet contemporary design and construction standards, because they were built using a large panel construction method of precast walls and floor slabs.
e. Waste and recycling: Waste and recycling facilities in the towers do not meet contemporary standards. For example, the garbage chutes are too narrow for some types of modern waste (such as online shopping packaging and pizza boxes), which results in frequent blockages. Modern recycling is not feasible, meaning the waste ends up in landfill.
f. Fire protection: Whilst certified for occupation, and noting that the fire protection systems have been upgraded in the towers over the years, the towers do not contain the full range of fire protection measures required in modern buildings, such as fire-isolated stairwells and high ceilings to give people better protection from smoke inhalation and more time to evacuate. This means that in the event of a fire the towers are not as safe for residents as buildings constructed to contemporary standards.
g. Physical condition: The physical condition of the towers is deteriorating. As noted above, most of the towers are constructed from concrete panels, some of which have started to degrade due to the passage of time. There are widespread issues with ageing sheet roofing, sewer stacks and reticulated water pipes, causing water and sewage leaks that require relocation of renters whilst repairs and clean ups are completed. This is despite the hard work of dedicated asset teams who are on site at various towers, monitoring performance of the assets, especially mechanical services to ensure necessary spare parts are available. At times, asset teams have to recycle parts, rather than getting new ones, due to the age and design of the systems.
h. Accessibility: The layout of homes and commons areas in the towers does not meet accessibility requirements in line with the Disability Discrimination Act 1992 (Cth). For example, corridors, doorways, lift door openings and bathrooms can be too narrow to be accessible by a person using a powered wheelchair or mobility scooter.
i. Dwelling amenity: Homes in the towers do not meet contemporary standards for dwelling amenity, such as minimum bedroom dimensions, room depth, natural ventilation, and access to private open space (such as balconies). This makes apartments in the towers less comfortable for residents than if they were constructed to contemporary standards. The absence of individual laundry facilities is an ongoing pain point for many renters.

Given the issues identified above, the status quo (that is, continued occupation of the towers with minor maintenance and upgrades on a periodic basis) is not a viable option. The issues with the towers pose risks to the comfort and safety of our renters, which it is incumbent on Homes Victoria to address.
The objective of the Redevelopment Program is to address the issues with the towers, grow social, affordable and general housing and through that, provide people with access to safe and fit-for-purpose homes. The Redevelopment Program thus promotes the interests of future renters on the sites, including those current renters who choose to return. The program will do that by demolishing the existing towers and replacing them with new homes that meet every modern building standard.
Critically, given the housing shortage, the Redevelopment Program will also substantially increase the supply of housing on the sites, thereby helping address the broader problem of housing affordability. Across all sites, the program will deliver around 7,400 additional homes, with an increase in the number of social houses by 10 per cent. The number of people living on the sites is expected to increase from 10,000 to 30,000. In relation to the Relevant Towers, the redevelopment option will deliver around 1,300 additional homes on the sites. Given the scale and nature of the program, its delivery timeline is long. Homes Victoria plans to complete the redevelopment of the Relevant Towers by around 2031 and the redevelopment of all towers by 2051.

In relation to the option of retrofitting the Towers, Mr Newport said:[211]
[211]Second Newport affidavit, [23].

The retrofitting option would not be feasible, would not have any meaningful lower impact on the renters in the towers than the redevelopment option, and would not achieve the objective of the Redevelopment Program as effectively and to the same extent as the redevelopment option.
a. Condition of the towers: The redevelopment option will deliver new homes that meet every modern building standard. By comparison, the retrofitting option would necessarily leave some issues unremedied or only partially remedied. For example, due to the physical structure of the towers, it is not possible to change ceiling height, room depth, bedroom dimensions, or doorway or corridor width, or to add private open space, to address the issues identified above.
b. Value for money: Given the extent of the remedial work required, the retrofitting option would be likely to cost at least as much as, if not more than, the redevelopment option. By way of example, the works required to address the structural performance issues alone would be likely to cost between $73 million and $103 million per tower. This estimate includes the cost of building fabric and services and structural remediation. It does not include specific seismic strengthening works, Building Code of Australia compliance, escalation costs and tenancy managements as the renters would need to be relocated for the works to occur. The retrofitting option would also cost more into the future, because based on my experience, older homes cost between twice and up to 10 times more than newer homes to maintain.
c. Housing supply: As discussed above, the redevelopment option will increase the overall amount of housing across all sites and in relation to the Relevant Towers and market housing. The retrofitting option would not deliver that increase in housing supply.
d. Impact on renters: The redevelopment of the towers will have a significant impact on renters. Many renters have strong connections to their tower and the surrounding area: they rely on local services; they go to school, study or work locally; their family and friends and other members of their community live in their tower or nearby. For those renters, retaining their links to their communities in the towers and the local area is vital. Because redevelopment will mean the relocation of renters to alternative accommodation, it will necessarily involve some disruption and dislocation to renters. Our renters in the towers include families with children, older people, people living with disability, and specific migrant communities. Members of those cohorts may find relocation more disruptive than other renters (because, for example, they are more reliant on local services or have stronger connections to their community in the tower). However, these needs and connections are front of mind in how Homes Victoria supports renters being relocated.
e. The retrofitting option would not be materially different from the redevelopment option in its impact on renters. Retrofitting would require substantial works on the towers, which could not be done while the renters remain in their homes. Even on the retrofitting option, it would be necessary to relocate the renters to alternative housing for an extensive period, at least for a number of years and potentially as long as or longer than the redevelopment option would take to deliver.

Mr Newport described how he balanced the competing considerations as follows:[212]

In making the Implementation Decision, I was aware of the matters identified at paragraphs 16 to 25 above because of my involvement in the preparation of the Redevelopment Program policy. I believed that the objective of the program was critically important and that taking no action was not an option, in light of the condition of the towers and the problems with the broader housing supply in Victoria. I knew that relocation would have a significant impact on the renters and their human rights, by disrupting their home life, their connections to local supports and services, and their links to their communities in the towers and the surrounding area. I also knew that steps had been taken to minimise that impact as far as possible through the sequencing of the program, and that I and others would continue to take steps to consider and minimise that impact during the implementation process and before any renters were actually required to move out of their towers, as I discuss further below. Given the problems with retrofitting, I considered that there was no way to address the problems with the towers without causing significant disruption to the renters — either option was going to cause a significant disruption. I also considered that the program would ultimately benefit future renters on the sites, including those current renters who choose to return, by delivering more and better homes for them to live in. On that basis, I considered that the program was justified and that the impact on the renters, while significant, was acceptable.

[212]Second Newport affidavit, [34].

It became apparent during Mr Newport’s evidence that the opinions expressed in these paragraphs were underpinned by the work that Homes Victoria had done on the Cabinet submission recommending the Redevelopment Program, including some technical reports relevant to the feasibility of renovating or retrofitting the Towers. Those reports, and other documents prepared for the purposes of the Cabinet submission, were all subject to public interest immunity and were not part of the evidence at trial. However, the evidence revealed their existence and some part of their influence on the Decision.

Mr Newport was, in my assessment, a truthful witness. I have no reason to doubt that the explanation he put forward in his affidavit accurately reflected the factual basis for the Decision and the competing considerations he took into account in reaching it. I consider him to be appropriately experienced and qualified to express opinions about the management of ageing housing stock, including as to the feasibility of retrofitting the Towers.

I turn now to consider the justification given by Mr Newport against the factors set out in s 7(2) of the Charter.

The nature of the right

While all of the human rights protected by the Charter are important, it is implicit in s 7(2)(a) that some rights are more important than others.[213] Some human rights are regarded in international human rights law as absolute. In particular, the ICCPR contains a number of rights that States parties may not limit in any circumstances.[214]
[213]Alistair Pound and Kylie Evans, Annotated Victorian Charter of Rights (Thomson Reuters, 2^nd ed, 2019) 66.
[214]Ibid, 66–7; International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 4(2) (ICCPR). The absolute or non-derogable rights in the ICCPR are the right to life (art 6); the right not to be subjected to torture or to cruel, inhuman, or degrading treatment or punishment, or medical or scientific experimentation without free consent (art 7); protection from slavery and servitude (art 8); the right not to be imprisoned for inability to fulfil a contractual obligation (art 11); protection from retrospective criminal guilt (art 15); the right to recognition as a person before the law (art 16); and the right to freedom of thought, conscience, and religion (art 18, subject to art 18(3)).

Those absolute rights do not include the right to home protected by s 13(a) of the Charter.[215]
[215]The equivalent right in the ICCPR is in art 17(1).

The importance of the purpose of the limitation

The Decision had two main purposes. One purpose was to address the many issues with the Towers that render them unfit for modern living. A second, equally significant purpose was to increase the supply of housing on the sites where the Towers now stand. Both of these purposes are unquestionably important to the achievement of the objects of the Housing Act and in their own right.

The nature and extent of the limitation

I have described already the nature and extent of the limitation of Group Members’ right to home caused by the Decision.[216] It has diminished their security of tenure in their homes and is dispersing the community around the Towers that is an intrinsic part of their homes.
[216]See [189]–[197] above.

In this case, the nature and extent of the limitation is separate from the reason why the limitation was arbitrary. In considering justification under s 7(2), the focus is necessarily on the impact on Group Members of the Decision to demolish the Towers and redevelop the sites — and not on the lack of notice and consultation about the Decision. While consulting renters about the proposed Redevelopment Program may have softened the blow they experienced on learning of the Decision, I am not convinced that it would have resulted in a different decision. In particular, no amount of input from renters could have substantially increased the amount of housing provided on the sites if the Towers were to remain standing.

While this may be cold comfort at present, Homes Victoria is taking steps to mitigate the impact of the Decision on Mr Berih and other Group Members. Importantly, it recommended that the Redevelopment Program start with the Towers because there is alternative housing nearby at Victoria Street, Flemington and Abbotsford Street, North Melbourne.[217] This will reduce the disruption of relocation for at least some renters, and provides some prospect of maintaining the thick social bonds between residents of the Towers after they have moved elsewhere.
[217] Second Newport affidavit, [24]–[25].

In addition, consultation about the relocation process has elicited a written commitment from Homes Victoria to a right of return. In correspondence to Inner Melbourne Community Legal dated 30 May 2024, Homes Victoria advised that ‘all former residents who have been relocated to alternate housing will have a right of return to the site upon completion, based on their ongoing eligibility and needs’.[218] Homes Victoria drew attention to this commitment in the course of argument, as an example of the detail of the Redevelopment Program about which there is ongoing consultation.[219] Group Members can reasonably expect Homes Victoria to honour this commitment.
[218]Second Bassini affidavit, Exhibit LB-41.
[219]Transcript, 365:17–67:8.

These matters indicate that Homes Victoria is aware of the adverse impact of dislocation on renters, and is taking steps to ameliorate that impact. If these steps are successful, the loss of community and other harmful effects predicted by Professor Porter may not occur, or at least not to the same extent as with the previous public housing renewal programs referred to in her report.

The relationship between the limitation and its purpose

The limitation is rationally connected to the achievement of both of the purposes of the Decision. The implementation of the Decision will, in Mr Newport’s words, deliver more and better homes for both current and future renters to live in.[220]
[220]Second Newport affidavit, [34].

Any less restrictive means reasonably available to achieve the purpose

Mr Berih relied on the expert report of Professor McNiven to demonstrate that there were less restrictive means reasonably available to achieve the purposes of the limitation.

Professor McNiven is an enterprise professor of architectural engineering in the Faculty of Architecture, Building and Planning at the University of Melbourne. Before taking up that position in 2018, he had 20 years of experience as a structural engineer consulting in the architectural buildings sector. His report and supplementary report were received into evidence. In relation to the OFFICE report appended to the supplementary report, I made a direction under s 136 of the Evidence Act limiting its use to non-hearsay, non-opinion purposes. Professor McNiven was not cross-examined.

Professor McNiven was asked to respond to the assertion in the Housing Statement that the Towers were reaching the end of their useful lives, and to explain the options open to Homes Victoria to prolong the useful lives of the Towers. His opinion was:[221]

The assertion that the towers are ‘reaching the end of their useful lives’ can only be made after a feasibility assessment process examining the remedial options available has been carried out. This process should include as a minimum the assessment of the existing condition, assessment of the remedial options available to remedy any deficiencies found, and assessment of the feasibility of these options (with regard to cost, carbon, buildability and other factors), refer paragraph 9 below for further detail. My understanding is that this process has not been carried out in full. On the basis of this understanding I disagree with the assertion.
Elaboration on ‘useful life’: Different elements of buildings are designed with different nominal design life expectations. Structure for example is nominally designed for a fifty year design life, internal fitout, building services and other non-structural elements are generally designed for lesser design life expectations (10 to 25 years). The instance of any particular element reaching its originally envisaged design life does not mean that element is no longer of use. An element’s useful service life and consequentially building’s overall useful service life, may be extended through maintenance, repair, or retrofit.
There will be many options available to Homes Victoria to extend the useful life of the towers through maintenance, repair or retrofit. Not all of these will be feasible to implement however. The decision to retain and retrofit a building (or portions thereof), or to demolish and rebuild it should be made on the basis of the feasibility assessment mentioned above, and elaborated on below in paragraph 9.
It is very common in cities for buildings that have exceeded their originally envisaged design lives to be restored to useful serviceable conditions.

[221] Exhibit P1 – Expert report of Professor Brendan McNiven dated 28 August 2024, [2]–[5].

In Professor McNiven’s opinion, the options for rectification of the asserted failings in the Towers would be as many and varied as the failings found. The feasibility of any technical solution would have to be assessed, following a three step process:[222]
[222] Exhibit P1, [9]–[10].

The following key steps should be included in any feasibility assessment as a minimum:
a) An existing condition assessment including site testing and a desktop analysis ascertaining serviceability against current design standards, guidelines, and codes of practice. The more extensive the level of assessment carried out, the higher the level of confidence that will result in the decision making between whether to retain and retrofit or to demolish and rebuild.
b) A design exercise to develop remedial or retrofit solutions to rectify the failings found in the existing condition assessment above (through design workshopping).
c) Assessment of the feasibility and practicality of the implementation of the remedial solutions identified above. Factors to consider should include amongst others financial cost, environmental cost, buildability, health and safety, wider costs and benefits (social, ecological etc).

The above process should be carried out by a multi-disciplinary team (with experience in retrofit), examining as many aspects of the building as practical.

Professor McNiven was aware that various consultants had been contacted by Homes Victoria to provide advice on the assessment of the Towers, but was not aware of the nature of the advice sought, nor whether it was in fact commissioned. He was also unaware of any feasibility studies released by Homes Victoria or another government department on the possibilities of retrofitting the Towers.[223]
[223]Exhibit P1, [42].

Professor McNiven gave a number of examples of buildings that had been successfully retrofitted, with significant cost savings and environmental benefits.[224] He also referred to some non-government studies that had been carried out on the possibility of retrofitting Melbourne’s public housing towers. Many of these had been prepared for presentation during the ‘Public Housing Towers Re-Imagined’ event hosted by the Architects Institute of Australia during Melbourne Design Week in May 2024.[225]
[224]Exhibit P1, [28]–[34].
[225]Exhibit P1, [43]–[45].

In his supplementary report, Professor McNiven provided comment on paragraphs 17 to 23 of Mr Newport’s affidavit. He said that it did not constitute a feasibility analysis for potential retrofit of the Towers. It did no more than identify the issues to be addressed, which is only the first step in a feasibility assessment. It did not explore the rectification options available to address the failings, so that their feasibility and practicality could then be assessed.[226] Professor McNiven said further that a feasibility assessment required some level of understanding of the technical issues involved, and the technical solutions available to address them.[227] He appended a report prepared by OFFICE as an example of a proper feasibility study for a retain, repair, reinvest strategy for the Flemington estate.[228]
[226]Exhibit P2 – Supplementary report of Professor Brendan McNiven dated 11 October 2024, [2]–[3], [5].
[227]Exhibit P2, [7]–[9].
[228]Exhibit P2, Appendix B.

The essence of Professor McNiven’s opinion evidence was that:

(a) It may be possible to extend the life of the Towers through maintenance, repair, and retrofitting. There will be many options available to do this, although not all options will be feasible.

(b) The decision to retain and retrofit a building (or portions thereof), or to demolish and rebuild it, should be made on the basis of a multidisciplinary feasibility assessment that examines the existing condition of the building, identifies design solutions to rectify the failings found, and assesses the feasibility and practicability of those solutions.

(c) He was not aware of any feasibility studies released by Homes Victoria or another Victorian Government department on the possibilities of retrofitting the Towers. He did not consider Mr Newport’s evidence to be a satisfactory feasibility study.

In response, Mr Newport said that Professor McNiven’s first report did not contain any properly informed proposal that would achieve the objectives of the Housing Statement. In particular, the report did not refer to any examples of buildings with the same characteristics as the Towers being retrofitted to address the issues identified by Mr Newport.[229] Mr Newport explained why he considered that retrofitting the Towers would not be feasible, would not have any meaningful lower impact on the renters in the Towers than redevelopment, and would not achieve the objective of the Redevelopment Program as effectively and to the same extent as redeveloping the Towers.[230]
[229]Second Newport affidavit, [22]. See [233] above for Mr Newport’s evidence about the issues with the existing condition of the Towers.
[230]Second Newport affidavit, [23], set out at [234] above.

As mentioned, it emerged during Mr Newport’s evidence that Homes Victoria had obtained technical reports that informed the Cabinet submission recommending the Redevelopment Program. He specifically referred to a report prepared by Cushman & Wakefield concerned with technical aspects of a cross-section of the 44 public housing towers, the measures required to retrofit, repair, and maintain them, and the options available.[231] He also referred to a report by Beca concerning the structure of the buildings and non-compliance with seismic standards that were introduced in 1994.[232] Mr Berih called for production of these documents, but they were ruled to be immune from production.[233]
[231]Transcript, 18:2–17, 19:2–16 (Newport XXN).
[232]Transcript, 18:18–29, 22:2–7 (Newport XXN).
[233]Berih No 3 [2025] VSC 30, [92]–[93], see also [29] for a full list of the documents that were ruled to be immune from production.

In light of Mr Newport’s evidence, I am satisfied that Homes Victoria did obtain a feasibility assessment as to whether it would be possible to retrofit the 44 public housing towers. Of course, the assessment is not in evidence, and I am unable to make any finding as to whether it covered the matters that Professor McNiven considered essential. However, Mr Newport was in my view an honest witness, and I have no reason to believe that he misrepresented the advice he had received about the feasibility of retrofitting. I accept Mr Newport’s evidence that retrofitting the Towers would not be feasible, for the reasons given in his evidence set out at [234] above.

Even if there was a feasible option to retrofit the Towers to extend their useful lives, the evidence is clear that this would still require relocation of the residents of the Towers for an extended period. As Mr Newport explained, retrofitting would require substantial works on the Towers, which could not be done while people continued to live in their homes. The impact of retrofitting on Group Members would be similar: they would have to leave their existing homes to enable work to be undertaken, and be scattered to available alternative housing for an extended period. It is not possible to predict the long-term impact of this option on the community, beyond saying that it is unlikely that it would ever be the same.

In addition, retrofitting the Towers would not in any way achieve the second purpose of the Redevelopment Program — to increase the supply of housing on the sites. Mr Newport’s unchallenged evidence is that, across all sites, the Redevelopment Program will deliver around 7,400 more homes, including a 10% increase in social housing. The number of people living on the sites is expected to triple, from 10,000 to 30,000. Specifically in relation to the Towers, the Redevelopment Program will provide 1,300 additional homes on those sites.

As a result, I am not satisfied that there is a less restrictive means reasonably available to achieve the purposes of the Redevelopment Program.

Is the limitation reasonable and justified?

Having regard to all of these matters, I am satisfied that the limitation of Group Members’ right to home under s 13(a) is reasonable and has been demonstrably justified. Homes Victoria must do something to address the ongoing deterioration of the Towers. The Redevelopment Program is rationally directed to achieving that purpose. While the implementation of the Decision will diminish Group Members’ security of tenure and disperse their community, the alternative option of retrofitting the Towers would have a similar effect. The implementation of the Redevelopment Program will substantially increase the amount of housing on the sites, to the benefit of a much wider group than the current renters in the Towers.

Should any remedy be granted?

None of Mr Berih’s grounds has been established, and so no remedy can be granted.

Disposition

The proceeding must be dismissed.

I will hear the parties on the question of costs.

[2025] VSC 169

4 April 2025