Director of Housing v TK  VCAT 1839 (16 November 2010)
A recent VCAT decision has shown that public housing authorities are developing a more thoughtful and engaged model of decision making that gives proper consideration to the human rights of vulnerable tenants.
The Director of Housing sought to evict a tenant, TK, on the basis of three separate instances of drug trafficking:
- On 15 July 2009, a police operative met and purchased heroin from TK at the stairwell just outside rented premises.
- On 7 August 2009, TK met a covert police operative at the door of his flat and after receiving $180 he handed the operative a silver foil containing heroin.
- On 11 August 2009, TK met the covert police operative on the 5th floor of the apartment building (where the rented premises were located) and purchased heroin.
On 19 August 2009, Victoria Police executed a search warrant at TK’s rented premises and the tenant was arrested, but no scales or drug paraphernalia were found. On 9 February 2010 TK pleaded guilty to trafficking charges and was placed on a community based order for 18 months.
On 12 March 2010, the landlord served TK with a Notice to Vacate pursuant to s 250 of the Residential Tenancies Act 1997 alleging that the tenant used, or permitted the rented premises to be used for an illegal purpose – namely, the trafficking of heroin.
On 22 March 2010 the landlord applied to the Victorian Civil and Administrative Tribunal for possession of premises.
Arguments for the tenant
The application for a possession order was opposed by the tenant on the following grounds:
- the landlord’s service of the Notice to Vacate and subsequent application to VCAT for a possession order breached the landlord’s obligations under s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 and could not provide the basis for an application for possession; and
- the landlord could not prove the grounds for service of the Notice to Vacate.
In considering this application the Deputy President declared in an interlocutory hearing that the decision of Justice Bell in Director of Housing v Sudi  VCAT 328 would apply.
Justification by the landlord
During the hearing, employees of the landlord gave evidence as to its consideration of circumstances relating to the tenant. NL (a team manager for the landlord) explained that she had only prepared a Notice to Vacate after conducting an interview with the tenant and considering his:
- right to home;
- long and successful tenancy;
- mental health issues; and
- language issues.
PA (a housing manager for the landlord responsible for managing the inner-city public housing program for around 12,500 properties) gave evidence that he had considered issues similar to those considered by NL. PA also noted he had considered the duties of the landlord to provide quiet enjoyment and good amenity across the estate and the concerns of various individuals who had raised the detrimental impact of drugs trafficking.
VCAT found that PA had referred to the police summary, community based order and medical reports whilst also taking into account TK’s gambling problem and his admissions to drug trafficking. PA was also aware that if evicted, it may be difficult for TK to comply with the terms of the CBO.
Section 38 of the Charter
Section 38(1) of the Charter is as follows:
Subject to this section, 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.
The tenant submitted that the two limbs present in s38 (1) of the Charter were separate and distinct obligations that VCAT must consider independently. The landlord was therefore:
- prohibited from acting in a way that was incompatible with human rights; and
- required to give proper consideration to TK’s human rights in making the relevant decisions.
As to the specific Charter rights engaged by the actions of the landlord, it was alleged that section 13(a) was engaged, which prohibits unlawful or arbitrary interference with the home.
Despite expressing reservations, the Tribunal elected to consider both limbs of the section for the sake of completeness.
Limb 1: Did the landlord act in a way that was incompatible with a human right?
The Deputy President was satisfied by the evidence that there had been no interference with the s 13(a) right because the interference was not unlawful or arbitrary:
- lawfulness: the Notice to Vacate was a ‘technically lawful application’ that fulfilled the statutory criteria; and
- arbitrariness: the Deputy President adopted the comments of Justice Kaye in WBM v Chief Commissioner of Police  VSC 219 where arbitrary was held to denote an interference with the right which is ‘capricious and not based on any identifiable criterion or criteria.’ In this matter it was held that there was no evidence before VCAT to suggest that the landlord acted capriciously: the landlord’s approach evidenced method and order and adherence to the proper policies and protocols.
The Deputy President was also satisfied that the landlord had not acted incompatibly with TK’s rights because, if there was interference, it was justifiable in terms of s 7(2) of the Charter.
Limb 2: Did the landlord fail to give consideration to a relevant human right?
The Deputy President made comprehensive reference to the decision in Castles v Secretary to Department of Justice  VSC 310 in discussing VCAT’s obligations under s 38, including that while giving proper consideration:
requires a decision-maker to more than merely invoke the Charter like a mantra, it will be sufficient in most circumstances that there is some evidence that shows the decision-maker turned his or her mind to the possible impact of the decision on the person’s human rights and the implications thereof…and that the countervailing interests or obligations were identified.
In applying the decision of Castles to TK, VCAT found that the landlord ‘did more than merely invoke the charter like a mantra’ and had seriously turned its mind to the possible impact of the decision on TK’s human rights and countervailing interests. VCAT noted:
- the landlord sought legal advice as to correct procedures to be followed;
- a request was made for TK to attend an interview;
- the landlord agreed to delay a decision to issue a Notice to Vacate;
- the landlord considered TK’s medical situation; and
- the landlord’s legal and policy area considered submissions from TK’s legal advisers.
The Deputy President was satisfied that the landlord gave proper consideration to TK’s rights and VCAT was therefore able to determine the application for possession order.
Possession Application: Were the premises used illegally?
After finding that the Notice to Vacate was not unlawful on Charter grounds, VCAT then considered whether the tenant had infringed s 250 of the RTA by his use of the premises. Section 250 states:
A landlord may give a tenant notice to vacate rented premises if the tenant has used the rented premises or permitted their use for any purpose that is illegal at common law or under an Act”
The Deputy President noted that the provisions of s 250 apply only to the rented premises and not common areas. VCAT found that the rented premises were the scene of the commission of a crime but had not been used by the tenant for an illegal purpose. The Deputy President stated:
… it is not sufficient that the premises are merely the scene of the commission of the crime. There must be a deliberate use of the premises for the illegal purpose. There must be some real connection between the use of the rented premises and the illegal activity alleged. It is not sufficient that there be a passing connection to the rented premises… This interpretation is consistent with the important right to a home as articulated in s 13(a) of the Charter.
VCAT held that in order to succeed in the application for possession, the landlord must establish that TK used the rented premises for an illegal purpose. It is not sufficient that the premises are merely the scene of the commission of the crime; there must be a deliberate use of the premises for an illegal purpose.
The application for possession was therefore dismissed.
Significance to the Application of the Charter
VCAT relied on the Sudi case to determine that it had jurisdiction, agreeing that VCAT should not and cannot entertain an application founded on illegality. The Court of Appeal has reserved its decision in the appeal brought by the landlord in Sudi, and this decision may significantly impact the ability of affected persons in cases to assert and protect their human rights in cases such as these.
However, of greater significance is the evidence presented before VCAT relating to the landlord’s process in paying proper consideration to the tenant’s human rights. Unlike previous reported VCAT cases, the Director of Housing led evidence of its processes and policies in ensuring that tenants’ rights are considered in decision-making processes. This is significant, as it demonstrates that the Director is now engaging in constructive and thoughtful consideration of human rights in making decisions about vulnerable tenants. This is a welcome departure from the opaque technical compliance evidenced in other cases, and demonstrates that the Charter is having a real impact in government decision making culture.
The decision is at http://www.austlii.edu.au/au/cases/vic/VCAT/2010/1839.html.
Chris Povey is a Senior Lawyer with the PILCH Homeless Persons’ Legal Clinic and Petrea Dickinson was an HPLC intern