Commissioner for Social Housing in the ACT & Massey (Residential Tenancies)  ACAT 41 (4 June 2013)
The ACT Civil and Administrative Tribunal (ACAT) has held that, when determining an application for termination of a public housing tenancy, ACAT’s jurisdiction to consider the human rights compliance of the public landlord is limited to ACAT’s exercise of discretion under the Residential Tenancies Act 1997 (ACT) (RT Act).
With reference to the decision of the Victorian Supreme Court of Appeal in Director of Housing v Sudi  VSCA 266 (Sudi), ACAT found that its consideration of whether the Commissioner for Social Housing in the ACT (Commissioner) had given proper consideration to human rights and acted compatibly with human rights under the Human Rights Act 2005 (ACT) (HRA) in bringing the eviction proceedings would amount to “collateral review” of the Commissioner’s decisions. With the efficiency of the Tribunal in mind, Member Daniel found that ACAT does not have jurisdiction to undertake such a review. Any challenge to the decisions of the Commissioner under the HRA must be made to the Supreme Court.
Ms Massey and her son had lived in the public housing property under a tenancy agreement with the Commissioner since May 2010. She had previously lived in another public housing property, but had to leave after being charged with a murder in the local area. While on bail, Ms Massey and her son lived with Ms Massey’s mother in “cramped and difficult conditions” for about one year before being transferred to their current property.
Ms Massey was convicted of the murder in May 2011 and sentenced to 16 years’ imprisonment with a non-parole period of 10 years. As a result, she was incarcerated and her son moved in with his grandmother.
In December 2011, the Commissioner served Ms Massey with a “26 week no cause notice” i.e. a termination notice, which required Ms Massey to vacate the property by 12 June 2012. On 26 October 2012, the Commissioner applied to ACAT seeking a termination and possession order (under section 47 of the RT Act).
Ms Massey applied for leave to appeal the murder conviction to the High Court and this application is due to be heard in August 2013. If leave is granted, Ms Massey intended to apply for bail and hoped to reside in the property with her son during this time.
ACAT held that it was not appropriate to adjourn the proceedings pending the outcome of the application to the High Court and proceeded to hear and determine the eviction application.
ACAT granted a termination and possession order.
The Commissioner accepted that the following rights were engaged by its decision to apply for Ms Massey and her son to be evicted:
- The protection of families and children (under section 11 of the HRA); and
- The right not to have their privacy, family, home or correspondence interfered with unlawfully or arbitrarily (under section 12 of the HRA).
The Commissioner disputed that they had failed to give proper consideration to these rights or that the application for a termination and possession order was incompatible with these rights.
ACAT accepted that the right to privacy and home was engaged, but was not satisfied that Ms Massey and her son’s rights under section 11 were engaged (although the reasons for this were not identified).
Human rights obligations of public housing authorities
Section 40B of the HRA provides that it is unlawful for a public authority to act in a way that is incompatible with a human right under the HRA or, in making a decision, to fail to give proper consideration to a relevant human right.
Section 40C(2) of the HRA provides that, if a person claims that a public authority has acted in contravention of section 40B (i.e. has acted incompatibly with human rights or failed to give proper consideration to human rights) the person may:
- start a proceeding in the Supreme Court against the public authority; or
- rely on the person’s rights under [the HRA] in other legal proceedings (emphasis added).
It was accepted that the Commissioner is a public authority and therefore has obligations under section 40B of the HRA. ACAT also accepted that eviction proceedings in ACAT under the RT Act were ‘legal proceedings’ for the purposes of section 40C(2)(b) of the HRA and that the tenant can therefore (to some extent) rely on her rights in RT Act proceedings.
Human rights considerations in eviction proceedings
ACAT considered whether the Commissioner’s compliance with the HRA should be addressed in eviction proceedings and, if so, how.
The Welfare Rights and Legal Centre argued on behalf of Ms Massey that if, after considering the human rights compliance of the Commissioner, ACAT found unlawfulness under section 40B of the HRA, ACAT might decline to exercise its discretion to make a termination and possession order. Further, this review of the Commissioner’s decisions and actions was intended by the wording of section 40C(2)(b) of the HRA.
ACAT, however, found that the consideration of the human rights compliance of the Commissioner leading up to the commencement of eviction proceedings would amount to “collateral review” and section 40C(2)(b) does not confer “some sort of HRA review jurisdiction upon the Tribunal”.
ACAT went on to find that even if there was a finding that a decision of the Commissioner (for example, to issue a Notice to Vacate or apply for a possession order) was “unlawful” because of non-compliance with the HRA, this does not mean the decision is of no legal effect; administrative decisions and actions are of legal effect until set aside or declared to be of no legal effect by a court of competent jurisdiction. According to ACAT, section 40C(2)(b) is not intended to impliedly vest ACAT with power to declare decisions undertaken contrary to section 40B of the HRA to be of no legal effect. Without such a declaratory power “there would be no utility to the ACAT embarking on a review of the lawfulness of pre-litigation decisions by a public authority coming before it”.
ACAT reiterated that, if a tenant wants the lawfulness of a decision of the Commissioner to be considered under the HRA, the eviction proceedings may be stayed while these questions are determined by the Supreme Court. This does not amount to ACAT “closing its eyes to unlawfulness” because “there is no unlawfulness until a competent body has determined that to be so”.
Discretion when making possession orders
Section 47 of the RT Act provides that, on application by a lessor, ACAT may make a termination and possession order if satisfied that (1) a ground for termination exists; (2) a Notice to Vacate based on that ground has been served on the tenant; and (3) the tenant has not vacated the premises by the required date. ACAT held that evidence showing that making a possession order would be contrary to the tenant’s rights under the HRA could be taken into account in exercising discretion as to whether or not to make the order. ACAT distinguished this from engaging in a review of the Commissioner’s decisions and actions.
Member Daniel noted that even if a decision of the Commissioner pre-litigation had been made without due regard to relevant rights, “it is by no means clear that a proper consideration of those rights at the relevant time could or would have resulted in a different decision or these proceedings not being brought”. ACAT noted that as there was no finding by the Supreme Court in relation to the validity of the Commissioner’s decisions relating to Ms Massey, there was nothing that ACAT could take into account in deciding whether or not to exercise the discretion to make the possession order.
Member Daniel considered the difficult circumstances of Ms Massey and her son, including the risk of homelessness and separation if Ms Massey was released on bail. She weighed this against the Commissioner’s evidence that there are over 3200 applicants for public housing on the waiting list in the ACT, with 291 on the priority waiting list and noted that the property had effectively been empty for two years.
Member Daniel was not satisfied on the evidence that the making of the order for termination and possession would amount to an unlawful or arbitrary interference with the rights of Ms Massey or her son.
The HRA is a very similar instrument to the Victorian Charter and the laws regulating residential tenancies in the ACT and Victoria are also analogous in many ways. A key difference is that the RT Act gives ACAT discretion when deciding whether or not to make a possession order, whereas that the Residential Tenancies Act 1997 (Vic) (RTA) requires that VCAT must make an order if certain requirements regarding notice are met.
It has been suggested that section 39 of the Victorian Charter should be amended in line with section 40C(2)(b) of the HRA to clarify that legal proceedings can be commenced on the basis of Charter non-compliance (currently the Charter does not create an independent cause of action).
However, the decision in Sudi highlighted that even if such an amendment was made, unless VCAT is conferred with jurisdiction to consider the Charter compliance of a public housing authority by the Victorian Civil and Administrative Tribunal Act 1998 (Vic) or the RTA, such consideration is likely to constitute impermissible collateral review. The decision in Massey follows this reasoning, such that it is unlikely that an amendment to section 39 of the Charter alone would be sufficient to address the jurisdictional limitations of VCAT when deciding applications for possession made by public landlords.
The importance of VCAT’s jurisdiction to consider human rights compliance when determining applications for possession orders is significant. While tenants ostensibly have the option of seeking review of a public landlord’s decision in the Supreme Court, in reality, the complexity of this process, the potential adverse cost consequences and the limited capacity of legal services to assist with such actions, make it highly unlikely that this option will be pursued. Tellingly, since Sudi almost two years ago not a single Charter-tenancy case has proceeded to determination by the Supreme Court of Victoria. This is remarkable given that vulnerable and disadvantaged tenants are being evicted on a daily basis. In our experience, human rights issues often arise but capacity, client circumstances or landlord unwillingness to proceed to a final court hearing often mean that these matters don’t make it to court.
VCAT is an accessible, affordable forum that makes decisions about whether or not disadvantaged tenants will be evicted from public housing. While the “legislated imperative of efficiency” is undeniably important, the risk of arbitrary evictions from public housing is significantly greater if VCAT is not empowered to contemplate the human rights obligations of public housing providers in eviction proceedings.
The decision is available at: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/act/ACAT/2013/41.html?stem=0&synonyms=0&query="Human%20Rights%20Act
Lucy Adams is a Senior Lawyer with the PILCH Homeless Persons’ Legal Clinic.