Director of Housing v Sudi  VSCA 266 (6 September 2011)
The Victorian Court of Appeal has decided that VCAT, in an application for a possession order under the Residential Tenancies Act 1997, did not have power to consider whether, by making the application for the possession order, the Director of Housing had complied with s 38(1) of the Charter. Section 38(1) states it is unlawful for a public authority to act in a way that is incompatible with, or fail to give proper consideration to, a relevant human right.
Mr Sudi was born in Somalia in 1982 and came to Australia in 1995 as a refugee, with his mother and several siblings. Mr Sudi's mother applied for public housing and subsequently entered into a tenancy agreement with the Director of Housing in February 1998. Mr Sudi lived with his mother in that house until about 2005 when he married.
In May 2007, Mr Sudi's mother became unwell so he returned to the premises for a short time to look after her. She subsequently died and in about June 2008 Mr Sudi and his son moved back into the premises on a permanent basis. The Director of Housing made an application to the Victorian Civil and Administrative Tribunal under s 344(1) of the Residential Tenancies Act 1997 for a possession order.
Mr Sudi argued the Director’s application was unlawful on the grounds that the decision to apply to VCAT to have him evicted amounted to a serious interference with his (and his son's) rights to privacy, family and the home protected under s 13(a) of the Charter of Human Rights and Responsibilities Act 2006. Mr Sudi further argued that, by consequence of this unlawfulness, the Director was not entitled to seek to evict him.
It was common ground that the Director of Housing is a public authority under s 4 of the Charter and, as such, is required by s 38(1) to act compatibly with human rights and give proper consideration to human rights in making decisions. However, the Director submitted that VCAT had no jurisdiction to consider the lawfulness of his decision under the Charter as it was a matter reserved for the Supreme Court.
Justice Bell, sitting as the President of VCAT, dismissed the Director's application and, in doing so, held:
- VCAT had jurisdiction to consider the Charter issues in the case;
- the decision and conduct of the Director in seeking to evict Mr Sudi and his son without providing any justification under s 7(2) of the Charter was an unjustifiable breach of the right to family and the home under s 13(a) and thus unlawful pursuant to s 38(1); and
- accordingly, the application by the Director for a possession order was invalid.
This decision was appealed by the Director and a threshold question arose: does VCAT have power (in a proceeding such as this) to review the lawfulness of the Director's decision to make the application for the possession order?
In three separate judgments, Warren CJ, Maxwell P and Weinberg JA of the Court of Appeal held VCAT did not have the power to review the lawfulness of the Director's decision to make an application for the possession order. It concluded that a proper construction of the RTA and the VCAT Act meant that not only did VCAT not possess the requisite judicial review jurisdiction to undertake such a review, it also did not have the power to undertake collateral review of the Director's administrative decision. Further, it held that in the event the construction of the RTA and the VCAT Act limited any rights protected by the Charter, no declaration of inconsistency was warranted. Therefore, once the Director's decision to make an application for the possession order was assumed to be valid, the Director's entitlement to possession could no longer depend on whether the Director had complied with the Charter in making the decision.
The reasons for its decision are as follows.
VCAT does not possess a judicial review jurisdiction
As the orders of Bell J had the effect of quashing the Director's application by declaring it invalid as a matter of law, the substantive consequence of the orders made by Bell J was in the nature of certiorari (in other words, judicial review of an administrative decision). Traditionally, prerogative remedies such as this have been exercised only by the Supreme Court.
The proceedings were brought to VCAT under its original jurisdiction which is derived entirely from statute. Technically under the State's constitutional regime it might be possible for Parliament to grant jurisdiction to administrative tribunals to exercise prerogative remedies. However, in this instance, there was no express provision or clear implication conferring on VCAT the power to carry out judicial review of administrative decisions. Accordingly, VCAT's original jurisdiction did not encompass a judicial review jurisdiction.
VCAT does not have the power to undertake collateral review
VCAT's lack of judicial review jurisdiction was not necessarily fatal to its ability to undertake an inquiry into the validity of the Director's decision to make an application for a possession order. In this case, the legal validity of the Director's decision was not an issue. The question of validity only arose incidentally – that is, "collaterally" – as part of Mr Sudi's defence to the Director's application for possession.
There are cases in which an inferior court with no judicial review jurisdiction may entertain a collateral challenge – or in other words, jurisdictional challenge – to the validity of an administrative decision. However, the scope of permissible collateral challenges remains a matter of some controversy.
In this case, the Court held that collateral challenges would be "wholly inconsistent" with the purpose of the RTA and the VCAT Act even if the RTA and the VCAT Act were interpreted in a manner that was compatible with human rights (as required by s 32 of Charter). Were such a power to exist, the power of collateral review would have to encompass the full range of conventional judicial review grounds and it would be open to a respondent to raise a number of grounds said to impugn the lawfulness of the Director's decision to apply to VCAT. According to the Court, this would be complex, technical and time-consuming and inconsistent with the RTA and the VCAT Act's function in providing inexpensive and quick resolution of disputes.
Further, the Court held that s 39(1) cannot be read to mean the Charter expressly or impliedly confers a collateral review power on VCAT. The Court held that, under s 39(1) of the Charter, the right to argue that administrative action is unlawful because of non-compliance with the Charter can only be asserted when there would be a right to seek review of that action independently of the Charter. Neither the VCAT Act nor the RTA provides any such remedy independently of the Charter. According to Weinberg JA, the "legislative intent disclosed by s 39 is that Charter unlawfulness can be relied upon as a ground in – and only in – a proceeding the object of which is to seek 'relief or remedy in respect of an act or decision of a public authority on the ground that … [it] was unlawful' ". As a result, any argument an act or decision was unlawful can only be heard as a direct challenge before VCAT.
Declaration of inconsistency
Warren CJ and Weinberg JA held that in the event the construction of the RTA and the VCAT Act limited the right under s 13(a) of the Charter, no declaration of inconsistency was warranted as it was demonstrably justified by the policy benefits of maintaining VCAT's role as a forum for quick, efficient and inexpensive resolution of issues arising under the RTA that properly fall within VCAT's jurisdiction.
Maxwell P looked at this slightly differently and stated that in the event the Director's conduct in seeking possession of the premises is an unjustified interference with that right, no declaration of inconsistency was warranted as the unavailability of collateral review did not affect the substantive right. Instead, it was simply a procedural matter about the proper forum in which to litigate questions of unlawfulness under the Charter.
Application to the Victorian Charter
Whilst acknowledging that tribunals deal routinely with questions of law, the Court of Appeal basically stated VCAT can not deal with Charter issues in the same expert way as the Supreme Court and distinguished authorities to the contrary in other jurisdictions on the basis that there is no requirement in the Charter for a tribunal to satisfy itself that the procedure has been followed.
This decision has disappointing implications, particularly when the Court of Appeal has highlighted the importance of providing inexpensive and quick resolution of disputes and recognised the Supreme Court is effectively inaccessible to many of the individuals the Charter seeks to protect.
Weinberg JA did not consider the resulting situation would be "catastrophic" as "the legal profession has shown a ready willingness to provide assistance, often through legal or pro bono in proceedings which give rise to legitimate Charter issues". That may be the case. However, legal aid and pro bono assistance is not limitless and, when human rights belong to all people without discrimination, access to justice considerations should be at the fore.
The decision is at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSCA/2011/266.html.
Susanna Kirpichnikov is a lawyer with Lander & Rogers and a former secondee with the Human Rights Law Centre
A media release on the decision by the PILCH Homeless Persons' Legal Clinic is available here.