Judge startled by Victoria’s ‘no documents’ claim in housing towers case

A Supreme Court judge has described as “startling” the Victorian government’s claims that there are no documents recording the specific decision to demolish and redevelop Melbourne’s public housing towers.

On Tuesday, the Supreme Court heard a bid by residents of public housing towers in North Melbourne and Flemington to force Homes Victoria to produce documents, and its reasons for demolishing three towers, via the discovery process, which the government’s lawyers resisted.

Barry Berih, a public tenant at the North Melbourne public housing estate, is the lead plaintiff in a class action against the state government.Credit: Wayne Taylor

Before he stepped down as premier last year, Daniel Andrews announced a 30-year plan to “retire” all 44 public housing high-rises across Melbourne weeks as part of a major housing strategy.

In resisting the summons to produce documents showing how Homes Victoria decided to demolish the towers after cabinet sign-off, counsel for the government Liam Brown, SC, said there were no documents.

“In relation to the actual decision [to implement cabinet’s plan to demolish the towers], the evidence couldn’t be clearer – a decision was made and there are no documents,” Brown said.

Justice Melinda Richards responded: “I have to say I was startled to read that.”

“That Homes Victoria should make a multimillion-dollar decision to demolish and replace three public housing towers that house hundreds of people with no documentary basis at all.

“That is a very surprising position for your client to take.”

Brown replied that it was not unusual.

“That’s Westminster democracy,” he said. “There was a long period over which cabinet considered a policy proposal and made a decision [to demolish and redevelop the towers], and then there was another part of government [Homes Victoria] exercising a broad power under a statute that was required to be exercised in order to implement that decision.”

The class action – launched in January by lead plaintiff and North Melbourne resident Barry Berih and Inner Melbourne Community Legal– is technically complex and argues the government failed to properly consider the human rights of residents when it decided to redevelop the towers.

Lawyers for the tenants had previously argued that Andrews’ announcement of the redevelopment in his government’s Housing Statement (a policy document signed off by cabinet) was invalid, because only Homes Victoria (formerly the Director of Housing) had the power under the Housing Act to redevelop the land and move tenants.

But in May, Richards dismissed that case, stating Homes Victoria – not cabinet – should be at the centre of any legal challenge. She gave the tenants an opportunity to reframe their argument, which they have now done, and the matter will proceed to trial in late October.

Senior counsel for the tenants, Kateena O’Gorman, told the court on Tuesday it was time for “Homes Victoria to discard the veil of secrecy that it has cast over its decision to implement cabinet’s decision to demolish the homes of more than 1200 people.”

The view from one of North Melbourne’s public housing towers.Credit: Scott McNaughton

Richards on Tuesday ordered Homes Victoria to hand over a more narrow selection of documents than was initially asked for by the public housing tenants.

But despite the upcoming trial, the government has already signed a $100 million contract with John Holland for the demolition of the first three towers in Carlton, Flemington and North Melbourne.

The plan has been criticised by the Opposition, the Greens and even those within Labor’s own ranks for a lack of transparency and because current communities would be upended for only a 10 per cent increase in social housing at the prime sites. The remainder would be private market apartments, with an unspecified number of so-called affordable housing tenants.

Since February, The Age has been seeking access to documents under freedom of information laws related to the announcement of plan, including departmental and ministerial briefings, engineering assessments and cost-benefit analyses for each site.

After multiple deadline extensions and a subsequent complaint by The Age to the Office of the Victorian Information Commissioner, the Department of Housing earlier this month informed this masthead that while 941 pages of documents – including three briefings to the Minister for Housing and multiple consultant reports – were found as part of the request, it would only grant access to 57 pages of one report that was already in the public domain.

The Andrews and Allan governments have been heavily criticised for a lack of transparency over the basis of other major infrastructure projects, including the Suburban Rail Loop.

The state government declined to comment on the ongoing legal case, but a spokeswoman confirmed demolition in North Melbourne and Flemington is expected to commence once all residents have been relocated in the second half of 2025 and that renters relocating would have the right to return eventually, “where there are new homes that match their ongoing eligibility and needs”.

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