Canberra Fathers and Children Services Inc v Michael Watson  ACAT 74 (29 October 2010)
The ACT Civil and Administrative Tribunal has found that an eviction from social housing that would result in homelessness is a breach of the right to be free from unlawful or arbitrary interference with the home.
Canberra Fathers & Children Services Inc (‘CANFaCS’) provides crisis accommodation and support for fathers and their children. CANFaCS provided crisis accommodation to Mr Watson and his three sons (then aged 13, 15 and 17) under an occupancy agreement in June 2007.
Since being provided with this accommodation, Mr Watson had attempted to find alternate accommodation, but he was unable to obtain private rental accommodation due to his family situation and income level. If he was evicted from the premises he and his family would again be homeless. Mr Watson was employed full time and his sons were receiving Centrelink benefits. Mr Watson had, with the assistance of CANFaCS, applied for public housing and had been assessed as eligible in mid 2007, but by late 2008 he was no longer eligible for early allocation of housing because the household income was above the threshold. As a result, Mr Watson was on the standard waiting list, and would not receive an offer of housing for a year or more. Largely because of this, Mr Watson remained in occupation of the premises and, in November 2009 CANFaCS wrote to Mr Watson requiring him to vacate the premises. This letter noted that:
- the premises are now needed for families experiencing housing difficulties;
- the decision to terminate was by way of exercising an option under the occupancy agreement; and
- there was a possibility of extending the notice period should Mr Watson not be able to find alternate accommodation.
CANFaCS applied to the ACT Civil and Administrative Tribunal for a termination and possession order.
On the threshold question of jurisdiction, ACAT is a public authority and is required to give proper consideration to any relevant human rights (see s 40 of the Human Rights Act 2004 (ACT)). In this context, that obligation required ACAT to consider the circumstances to determine whether any aspect of the conduct of CANFaCS, especially the giving of the notice to vacate, engages or enlivens any aspect of the human rights of Mr Watson, as set out in the Human Rights Act 2004. If this is so, then the Tribunal will assess whether such conduct has adversely impacted on those rights, that is, whether CANFaCS, as a public authority, has acted in a way that is incompatible with a human right or failed to give proper consideration to a relevant human right in making a decision, and thus unlawfully.
ACAT found that the issuing of the notice was lawful under the relevant terms of the Residential Tenancies Act 1997 (ACT), so the question before it, was whether the issuing of the notice engaged and ‘adversely impacted’ Mr Watson’s human rights, including the right to the protection of the family and children (HRA s 11) and the right not to have one’s privacy, family, home or correspondence interfered with unlawfully or arbitrarily (HRA s 12).
In finding that these rights had been engaged, ACAT placed considerable weight on the evidence that Mr Watson and his family would likely become homeless, and considered that:
Disadvantaged people in need of social housing and at the risk of homelessness are among the most vulnerable in our society. Their circumstances mean that their human rights are imperilled. Where a public authority is making decisions about the housing of such people, the Human Rights Act requires the public authority to act in a manner that is compatible with human rights and to give proper consideration to human rights matters in making decisions.
ACAT then considered whether CANFaCS’s interference with the Watson family’s right to home had been ‘unlawful or arbitrary’. In respect to the question of ‘unlawfulness’, ACAT noted that:
the question … is not answered by asserting lawfulness based on contract. The Tribunal notes that it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right. Thus, the exercise of a contractual right can be unlawful.
ACAT primarily considered whether CANFaCS’s actions were ‘arbitrary’, following the Victorian decision of Director of Housing v Sudi  VCAT 328 and noting that:
The issue of arbitrariness is directed to substance and not form. The protection is from any interference that is random and arbitrary. Interference will not be arbitrary if it is governed by clear pre-existing rules and by procedures that are predictable and foreseeable by those to whom they are applied.
In finding that CANFaCS had acted arbitrarily, ACAT placed considerable weight on CANFACS’s ‘Procedure and Procedures Manual Evictions’, which set out the circumstances in which tenants would be evicted, noting that ‘It is recognised that families stay at CANFaCS because they have no other options. Evictions are therefore used as a last resort’. The circumstances in the current case were not contemplated by the policy document, and so ACAT held that the decision to terminate Mr Watson’s occupancy of the premises was not based on clear pre-existing rules nor was the procedure in reaching that decision transparent, predictable and foreseeable. It was therefore arbitrary.
ACAT then turned to whether the protection from arbitrary interference with home or family was, or could be, subject to limitations. ACAT noted that the RTA contains provisions that allow the provider of crisis accommodation who wishes to limit the right to protection from interference with a home, to inform the tenant of the limitation; and to allow exercise of the right to terminate only if certain criteria are followed: ‘Such a scheme by setting out clear rules and procedures avoid arbitrary action’. Thus, limitations are allowable, but ACAT also noted that they may be desirable from a policy perspective, ‘to allow an eviction from crisis accommodation where there is a potential conflict of the rights and needs of persons in need of support from crisis accommodation providers’. As ACAT noted, ‘Certainly a family cannot remain in crisis accommodation indefinitely and a crisis accommodation provider should have the ability to terminate an agreement in appropriate circumstances’.
However, CANFaCS chose note to enter into a residential tenancy agreement and outline the limitation, so none of the terms or information supplied to Mr Watson referred to such matters and no such limitation existed.
ACAT concluded that CANAFCS serving a notice to vacate on Mr Watson constituted an interference with the family unit and arbitrary interference with a home which was not subject to appropriate limitations, and was therefore unlawful. As a result of this unlawful act, ACAT had no jurisdiction to consider the application for a termination and possession order.
Relevance to the Victorian Charter
On the threshold question of jurisdiction, the ACT legislation makes clear that the ACAT is a public authority in all circumstances, whereas the Victorian equivalent is not a public authority when acting in a judicial capacity. This question of jurisdiction remains live, and the Victorian Court of Appeal’s forthcoming judgment in the Sudi appeal will grant greater clarity on the jurisdiction point. Certainly, it is desirable that public authorities’ actions are reviewable where, as in this case, they fail to act in accordance with their policies, let alone their obligations under human rights statutes.
The clear views of ACAT on the definition of ‘arbitrary’, assisted by reference to internationalmaterials, further supports an increasing number of Victorian cases that support the use of international jurisprudence in interpreting human rights laws.
As in the Sudi decision, this case has clearly found that conduct that is made unlawful by the conduct provisions of comparable human rights legislation renders the action of public authorities null. However, the case also illustrates that public authorities discharge their responsibilities in implementing and following processes and procedures that consider human rights, notwithstanding that individuals’ rights may be limited or even breached. This does not require rigid application of policy documents but requires genuine consideration of individual’s circumstances. ACAT suggests a proper approach to balancing the competing rights and policy considerations, and many public authorities could take heed.
The decision is at www.austlii.edu.au/au/cases/act/ACAT/2010/74.html.
James Farrell is Manager/Principal Lawyer of the PILCH Homeless Persons’ Legal Clinic