Director of Housing v Turcan  VCAT Ref No R201011922 (Unpublished, 4 May 2010)
The Victorian Civil and Administrative Tribunal has considered the meaning of ‘arbitrary’ and ‘unlawful’ in the context of s 13(a) of the Charter of Human Rights and Responsibilities Act 2006, as well as the relevance of a public authority’s policy to an assessment of proportionality under s 7(2). Additionally, the Tribunal has held that in determining an application for possession in its Residential Tenancies List, the decision of Bell J in Director of Housing v Sudi  VCAT 328 should be followed to the extent that it is relevant.
In this proceeding the Director of Housing made an application to the Tribunal for possession on the basis that the tenant had been trafficking drugs from the premises. The Director relied on s 250 of the Residential Tenancies Act 1997 (Vic) which enables a landlord to apply for possession of premises where a tenant has used rented premises for an illegal purpose.
This decision raised issues recently considered by Bell J in Sudi where it was held the Tribunal had jurisdiction to consider whether a public authority landlord had acted consistently with the Charter in making a possession application. The Director sought to distinguish Sudi on the basis that the Tribunal was not bound by the doctrine of precedent and also argued that s 39 of the Charter prevented such an approach.
In relation to the substantive matter, the Director led evidence in relation to its policy which prescribed steps to be taken before any decision to evict a tenant for illegal use under s 250 of the Act. The policy notes a tenant should be provided with an opportunity to respond to allegations of illegal use and states:
- ‘The Director acts in accordance with the provisions of the Residential Tenancies Act and its obligations as a public landlord including obligations under the Victorian Charter...’
- ‘The human rights of the tenant, neighbouring residents and other potentially affected by the illegal use of the premises are also considered.’
- ‘If after consideration of all the information, the Director decides to issue a Notice to Vacate under section 250, that action will be compatible both with the human rights of the tenant and neighbouring residents.’
The tenant contended that the Director had unlawfully limited his right to a home under s 13(a) of the Charter and that Sudi should be followed, not only because it is a decision made by a Justice of the Supreme Court, but because to do so would be in the interests of ensuring that the Tribunal’s decision-making is consistent.
In relation to the jurisdictional question, the Tribunal held that Sudi should be followed to the extent that it is relevant, and that it is relevant to the extent that it enables consideration to be given to Charter compliance as a preliminary matter in applications made by a public authority.
In Sudi, however, the Director declined to lead evidence as to the steps that were taken prior to the decision to limit the respondent’s rights being made. This meant the Tribunal in that matter did not need to consider whether the limitation was ‘arbitrary’ or ‘unlawful’ so as to satisfy the internal qualifications of s 13(a). The Director in Turcan did choose to lead such evidence, and it consequently fell to the Tribunal to address the internal qualification before it could consider the relevance of the Director’s internal policy to an assessment of proportionality under s 7(2).
The Tribunal held ‘a decision is necessarily arbitrary unless there is a review mechanism.’ In this respect, the decision to evict the tenant was not ‘arbitrary’ because the process leading up to service of the notice included a letter detailing the allegations and inviting the tenant to respond.
Considering the factors listed in s 7(2), the Tribunal remarked: ‘the nature of Mr Turcan’s rights are of the highest importance and the Director must take them into account.’ Accordingly, the Tribunal considered the onus to be on the Director in establishing that the limitation of a right is demonstrably justified and, consistent with Sudi, held the standard of proof requires ‘a degree of probability that is commensurate with the occasion’.
In considering the evidence, the Tribunal accepted testimony of the housing officer in relation to actions taken by the Director prior to the application for possession. Further as the policy had been referred to and s 250 of the Act had been consulted, the Tribunal drew an inference that the policy had been followed.
As to the relationship between the limitation and its purpose, the Tribunal considered the Director’s obligations under the Housing Act 1983 to provide safe, secure housing and remarked that these obligations ‘far outweigh the consideration of Mr Turcan’s personal rights’.
Maya Narayan, Intern, and Chris Povey, Senior Lawyer, with the Homeless Persons’ Legal Clinic