Does the Creation of a Tenancy or the Making of a Possession Order Engage Human Rights?

Heywood v Director of Housing [2010] R2009/36396 (4 January 2010) In this case, the Victorian Civil and Administrative Tribunal considered the application of provisions of the Residential Tenancies Act 1997 (Vic) which provide for the creation of a tenancy and provisions which permit a landlord to apply for possession order where premises have been occupied without consent.  The VCAT Member held that the relevant provisions do not engage the Charter of Human Rights and Responsibilities Act 2006 (Vic) as these provisions ‘enhance’ rights rather than limit them.


The applicant, SH, was residing in Director of Housing premises in Fitzroy although he was not the tenant of the premises.  The official tenant of the premises was SH’s grandmother, IH.  Following the death of IH in July 2009, the applicant advised the Director that he was residing in the premises and refused to return the keys.

SH subsequently applied to VCAT for an order requiring the Tribunal to enter a tenancy agreement with him.  In response, the Director issued a cross application seeking to evict the applicant on the basis that the premises were occupied without consent (s 344 of the Act).


The Residential Tenancies Act provides that a person who has been residing in premises as his or her principal residence (but who is not a tenant) may apply for an order requiring the landlord to enter into a tenancy agreement.  Section 233 of the Act provides that VCAT may require a landlord to enter a tenancy agreement with an applicant where:

  1. the applicant could reasonably be expected to comply with the duties of a tenant;
  2. the applicant would be likely to suffer severe hardship if compelled to leave the premises; and
  3. the hardship suffered by the applicant would be greater than any hardship suffered by the landlord, if an order were made.

The VCAT Member considered a number of claims made by SH in support of his application andheld he would not be likely to suffer severe hardship if compelled to leave the premises.  Among other things, the Member found that the applicant could not demonstrate a strong connection to the premises nor could he show that the relationship with his family would suffer if he were evicted.  As the provisions of s 233 are cumulative, VCAT was not required to consider the issue of hardship incurred by the Director nor was it required to consider the residual discretion that exists once all the provisions have been satisfied.

The applicant made arguments based on s 13(a) (right not to have the home unlawfully or arbitrarily interfered with) and s 17 (protection of families and children) of the Charter in support of his application.  In response to these arguments, the VCAT Member held that s 233 of the Act neither engaged nor limited human rights.  In the Member’s view, ‘s 233 confers a right on SH where there would otherwise be no existing right.  It does not limit his right not to have his home or family unlawfully or arbitrarily interfered with, but enhances this right.’ [emphasis added].  In respect of the cross application of the Director, VCAT adopted similar reasoning and held that a person occupying premises without consent has their rights enhanced by being permitted to show cause as to why they should not be evicted pursuant to an order of possession.

Although VCAT found that human rights were neither engaged nor limited by the relevant sections of the Act, the Tribunal nonetheless referred to s 7(2) of the Charter and found that the relevant sections were ‘justified.’  Furthermore, in considering limitations issues the Member adopted the wording of s 13 of the Charter in holding that, even if provisions of the Act did limit humans rights, the limitation was neither ‘unlawful’ nor ‘arbitrary.’

The application of SH was dismissed and the Director was granted a possession order.


With respect, this decision represents an overly narrow approach to the construction and engagement of rights.  There is a significant body of international caselaw affirming that, at a minimum, an eviction will prima facie engage the right to freedom from unlawful or arbitrary interference with the home, including from the UN Human Rights Committee (see, eg, Vojnovic v Croatia, UN Doc CCPR/C/95/D/1510/2006), the European Court of Human Rights (see, eg, McCann v United Kingdom [2008] ECHR 19009/04) and the House of Lords (see, eg, Doherty & Ors v Birmingham City Council [2008] UKHL 57).

Further, the Member’s approach to limitation is inconsistent with the approach of Bell J in the seminal case of Kracke v MHRB [2009] VCAT 664, in which his Honour stated [109-110]:

Where rights are expressed in terms that contain a specific limitation, the nature and content of the rights in their plain state are not seen to be reduced by the specific limitation.  Rather, the specific limitation is seen as an indication of what might be considered in determining whether any limitations are reasonable and justified under the general limitations provision in s 7(2).

Thus, when identifying the scope of the right at the engagement stage, this is done broadly and purposively, even where the right contains a specific limitation.  Such a limitation becomes subsumed in the overall justification which is undertaken in the next stage.

Chris Povey is a senior lawyer and policy officer with the PILCH Homeless Persons’ Legal Clinic and Phil Lynch is Director of the Human Rights Law Resource Centre