(c) if the lessor is a corporation - injury to a representative of the corporation or a member of a representative's family; or

(d) serious or continuous interference with the quiet enjoyment of nearby premises by an occupier of the premises. (emphasis added)

1. The parties have sought an interlocutory ruling on the construction of section 51 that bears directly on the facts of this case. In particular:
   • (a) whether section 51 provides the Tribunal with any discretion not to evict a tenant found to have committed a 'serious interference' within the meaning of section 51(d); and
   • (b) if so, what is the ambit of the relevant considerations for the purposes of such a discretion.

The tenancy commenced on 13 November 2009 in the name of the Respondent and a female person. The female person vacated the tenancy in February 2011 and had no further part in the events that unfolded.

The Commissioner complains of two acts of violence by the Respondent. The first was alleged to have occurred on 21 April 2011 when the Respondent verbally abused the Commissioner's staff.

The second event occurred on 31 May 2011 when the Respondent threatened a neighbour with a machete and caused some damage to the neighbour's property.

The Respondent was arrested, charged with a range of criminal offences and released on bail.

On 4 July 2011 the Commissioner lodged an application with the Tribunal seeking termination of the Respondent's tenancy. Annexed to the application were:

• (a) a file note of an alleged incident of verbal aggression and threats of violence by the Respondent at the counter of the Commissioner's office in Belconnen on 18 November 2010;
  • (b) a file note of an alleged incident of verbal aggression and threats of violence by the Respondent at the counter of the Commissioner's office at Belconnen on 21 April 2011;
  • (c) a letter from the Commissioner to the Respondent dated 29 August 2009 [sic] referring to the events on 21 April 2011 and warning that any further such episodes would result in police intervention;
  • (d) a Statement of Facts prepared by the police concerning the incident on

The matter was listed for an urgent hearing in the Tribunal on 8 July 2011. On that occasion Mr Adkins appeared for the Commissioner and the Respondent appeared in person. 7. The Commissioner advised that the neighbours involved in the events of

31 May 2011 no longer lived next door to the Respondent. 8. The matter was adjourned pending the outcome of the criminal charges in the Magistrates Court with interim orders that the Respondent not abuse any of the Commissioner's staff or neighbours. 9. On 29 July 2011, the Respondent was convicted of the offence of 'possess offensive weapon with intent' in the ACT Magistrates Court. 10. The matter was next listed before the Tribunal on 18 August 2011. On that occasion Mr Adkins appeared for the Commissioner and the Respondent appeared in person with his former partner, the mother of his children. 11. His former partner tendered a statement in which she wrote: * (a) the Respondent has an issue with anger management and is on a mental health plan; and

• (b) the Respondent needs the house to have access to his children. If homeless, access will be denied.

12. The Respondent tendered a reference from his mother which essentially repeated the above.
13. At this hearing the Tribunal raised with the Commissioner the relevant criteria to be applied under section 51 of the Act and in particular whether:
    • (a) section 51 provided the Tribunal with any discretion; and

• (b) whether the Tribunal was able to have regard to all the circumstances of the case in determining whether the gravity of the Respondent's breach justified termination of the tenancy.

14. In particular, the Tribunal posed the question of whether it was entitled to take into consideration the following non-exhaustive factors:
    • (a) whether there were extenuating circumstances about the breach of section 51 on 31 May relied upon by the Commissioner;

• (b) whether there may have been breaches by other tenants of the Respondent's quiet enjoyment that contributed to the events;

• (c) whether the remaining neighbours have any concerns about the presence of the Respondent in the premises;

• (d) the effect of an eviction on the mental health of the Respondent.

15. Factor (a) above essentially raised the issue of access to the children and the children's access to their father and whether the Respondent's behaviour was of such a character that it was unlikely to reoccur in the future. Factor (b) raised the issue of the alleged provocation by the neighbour. Factor (c) recognised that the neighbour in question had moved. Factor (d) raised the issue of the effect on the Respondent's mental health of losing access to his children and of being rendered homeless.
16. The Commissioner indicated its dissent to the above propositions and the wish to make submissions on the matter.
17. The matter was adjourned to 26 September 2011 for the argument of statutory construction concerning section 51. The Respondent was strongly encouraged to seek the assistance of Welfare Rights and Legal Centre.
18. On 26 September 2011, Mr Hancock of the ACT Government Solicitor's Office appeared for the Commissioner and the Respondent appeared in person. The parties sought an adjournment to consider a voluntary housing exchange by the Respondent to new premises owned by the Commissioner.
19. The matter was relisted at the request of the parties on 8 May 2012.

Mr Hancock appeared for the Commissioner and Mr Emerson-Elliott of the Welfare Rights and Legal Centre, appeared for the Respondent. 20. The Tribunal indicated to the parties that it would not go behind the decision of the Magistrates Court to question the respondent's conviction. Further, the nature of the conviction was in itself, sufficient to establish a serious interference with the neighbour's quiet enjoyment within the meaning of

section 51. The only issue was the existence of a discretion and the ambit of any such discretion. 21. The parties affirmed their wish for an interlocutory decision concerning the construction of section 51 prior to any hearing of the evidence. The parties indicated that the issue of construction was central to the case and a matter of public importance. The Tribunal agrees. 22. A time table was fixed for filing submissions on the statutory construction issue. 23. On 23 May 2012, the Commissioner filed submissions. The salient parts of the submission are set out below. 24. Section 48 of the Act deals with the termination of tenancies in the general case, including for rent default and other non-violent breaches. Section 48(4) explicitly imports a discretion for the Tribunal not to terminate a tenancy unless 'satisfied the breach justifies' the termination. The Commissioner rightly conceded that this introduced an element of 'proportionality' between the gravity of the breach and the impact of a termination on the tenant.

25. The Commissioner rightly conceded by reference to authorities that the exercise of the power under section 48(4) required consideration of 'all the circumstances of the case', although noted that none of these authorities involved a case of serious violence.
26. The Commissioner drew attention to the fact that section 51 has no counterpart to section 48(4). From this premise, the Commissioner's primary contention followed, namely, that the Tribunal has no discretion not to terminate a tenancy once satisfied than a 'serious interference' has occurred. The Commissioner noted the decision of the Tribunal in Commissioner for Social Housing v Faull [2008] ACTRTT 20 to the contrary which is currently reserved on appeal in the Supreme Court.
27. The Commissioner noted that prescribed term 70(c) of the Act provided for termination by the lessor where the tenant 'interferes or permits interference, with the quiet enjoyment of the occupier of nearby premises'. Termination for breach of prescribed term 70 is via section 48 of the Act which is conceded to be discretionary. The Commissioner argued that section 51 is directed to a more serious breach than prescribed term 70 and hence, termination under section 51 is non-discretionary. Prescribed term 70 provides:

(c) cause or permit nuisance; or

(d) interfere, or permit interference, with the quiet enjoyment of the occupiers of nearby premises.

The Commissioner submitted that his status as a social housing provider under the Housing Assistance Act 1987 may be a relevant consideration in the proportionality exercise under section 48, but is not relevant where no discretion exists under section 51.

It was said to be necessary to distinguish between the status of the Commissioner evidenced by the Housing Assistance Act 1987, on the exercise of the relevant discretion under the Residential Tenancies Act and any use of the Housing Assistance Act as a tool to interpret the scope of the discretion under the Residential Tenancies Act. This is a distinction of no obvious meaning to the Tribunal.

The Commissioner submitted that section 51 was directed to the protection of innocent third parties and was not limited to the balance of rights between the parties to the tenancy. This was said to be a further reason militating against any discretion in section 51. The obvious deficiency in this submission is that prescribed term 70(c) is also directed to the protection of innocent third parties and the enforcement of that term under section 48 is discretionary.

The Commissioner's submissions did not, in the alternative, address the range of considerations that may be relevant if section 51 were found to be discretionary.

On 6 June 2012 the Respondent's solicitors filed his Submissions, the salient points of which are set out below.

The word 'may' in the opening sentence of section 51 imports a discretion. The Respondent referred to section 146(1) of the Legislation Act 2001 which is to this effect.

The Respondent relied upon a range of cases from the NSW jurisdiction and one from the Northern Territory in support of the contention that section 51 contains a discretion and to highlight a range of considerations relevant to that discretion.

The first of these cases was NSW Land and Housing Corporation v Bullman [2006] NSWSC 733. This case concerned an application for eviction under former section 68 of the Consumer Trader and Tenancy Tribunal Act 2001 (NSW) (the CTTTA) which read:

Tribunal may terminate residential tenancy agreement where tenant causes serious damage or injury

(1) The Tribunal may on application by a landlord under a residential tenancy agreement, make an order terminating the agreement if it is satisfied that the tenant has intentionally or recklessly caused or permitted or is likely intentionally or recklessly to cause or permit:

(a) serious damage to the residential premises, or

(b) injury to the landlord, the landlord's agent or any person in occupation of or permitted on adjoining or adjacent premises.

(2) If the Tribunal makes an order terminating a residential tenancy agreement under this section, the Tribunal shall also make an order for possession of the residential premises taking effect immediately.

(3) In the case of a tenancy of social housing premises, a reference in subsection 1(a) to the residential premises is taken to include a reference to any property adjoining or adjacent to the premises (including any property available for use by the tenant in common with others).

1. Although former section 68 of the CTTTA is similar to section 51, it is not precisely the same. Section 51(d) is concerned with 'serious ...interference with the quiet enjoyment of nearby premises' whereas section 68 does not address the issue of interference with quiet enjoyment at all. At the time Bullman was decided the issue of breach of quiet enjoyment was addressed in section 23 of the CTTTA which read:

It is a term of every residential tenancy agreement that:

(e) The tenant shall not interfere with or cause or permit any interference with the reasonable peace, comfort or privacy of any neighbours of the tenant.

Thus in NSW, at the time of Bullman, breaches involving 'injuries' to neighbours were dealt with under the former section 68, whereas breaches of quiet enjoyment were dealt with under section 23. By way of contrast, section 51(a) and (b) of the ACT legislation only addresses 'injury' to the lessor, the lessor's family or agent. It does not address injury to a third party neighbour. Section 51(d) does extend to neighbours, but only in relation to breach of quiet enjoyment and not in respect of an 'injury'.

Bullman was a former section 68 case not a section 23 case. The Consumer Trader and Tenancy Tribunal found that no 'injury' had occurred and therefore no breach of section 23 had occurred. The issue of a breach of quiet enjoyment under section 23 was never considered by the Tribunal. The Court found no error in the Tribunal's findings.

The Court noted without comment, the obiter expressed in the Tribunal's reasons that even if a breach of section 68 had been established, the Tribunal would not have evicted because the neighbour in question had since moved and there had been no further incidents of bad behaviour by the tenant.

The present Tribunal presumes that the relevance of Bullman upon which the Respondent relies is: * (a) as with section 51, section 68 of the CTTTA is directed to serious breaches causing injuries; * (b) as with section 51, section 68 opens with the words 'may'; * (c) as with section 51, section 68 does not contain any explicit discretionary provision of the kind found in section 64(2)(c)(ii) of the CTTTA which requires a consideration of 'the circumstances of the case'; * (d) The CTTT's obiter indicated the existence of a discretion and factors that were relevant to the exercise of that discretion.

The second case cited by the Respondent was NSW Land and Housing Corporation v Adams (Tenancy) [2004] NSWCTTT 801. This was also a former section 68 case. It concerned threats of violence by the tenant to departmental officers. The Tribunal found the threats proven, but exercised a discretion not to evict, saying:

No evidence was produced indicating that the tenant has ever been involved in any physical assault.

The Respondent produced letters written by three neighbours in his support. It is unlikely that these letters would have been produced if the neighbours have a genuine fear that Mr. Adams may be violent. Members of his family also acknowledged that whilst Mr. Adams is verbally volatile he has not been involved in any incidents of physical abuse.

I note that the Respondent has a number of difficulties. He and his brother have stated that he is only semi-literate. He cannot read, and from his conduct in the hearing it appears that he has difficulty understanding sentences which contain unusual words or which have a complex structure. It appears that the Respondent quickly becomes frustrated and volatile when he is put under this type of stress. I found that Mr. R Adams played a very useful role in assisting his brother at the hearing. It may be that he could also usefully assist his brother in other regards, such as in attending meetings with the Department.

Clearly, there are many problems in the street in which the Respondent lives. According to the Respondent there is a permanent police presence in the street, although in his opinion the police do little to resolve the problems occurring there. The Respondent says he is not well. He acknowledges that he has emotional problems and says he is receiving medication from his doctor to help him calm down. He is also frustrated by the lack of attention to repairs which are required in his house. The Respondent says that ideally he would like to relocate and have a fresh start but he does not want to lose his status as a client of the Department of Housing.

In my view the Applicant has not established a real likelihood that the Respondent will cause injury to one of its officers. His behaviour, although unacceptable is not such as to invoke the harsh consequences of an order made under section 68. Having come to that conclusion it is not necessary for me to address the other circumstances of the case. However, given that the tenant has been in occupation of the subject premises for some 13 years, his relationship to the area, and the fact that he currently has 6 of his children resident in the premises it would be very difficult to see that immediate termination of the lease would be desirable in all the circumstances.

1. The third case relied upon by the Respondent was CEO Housing v Janine Coonan [2010] NTMC 30. This case concerned a physical assault by the tenant on her neighbour.

2. Section 97(2) of the Residential Tenancies Act ( NT) gives the Court power to terminate a tenancy and make an order for immediate possession if:

the tenant or a person while on the premises with the consent of the tenant, has, intentionally or recklessly, caused or permitted or is likely to cause or permit:

1. Although slightly differently worded to former section 68 of the CTTTA, it is not materially different. The court found the assaults proven but declined to evict the tenant on the basis that there had been no repeat incidents. This finding necessarily implies the existence of a discretion.

2. From its own researches, the Tribunal notes the further decision of the NSW CTTT in NSW Land and Housing Corporation v Janiuk (2007) NSWCTTT 632 where the Tribunal declined to evict under former section 68 of the CTTTA because of the tenant's mental health issues.

3. The matter was listed for final submissions on 13 June 2012. Mr Hancock appeared for the Commissioner and Mr Emerson-Elliott appeared for the Respondent.
4. Mr Hancock put the Commissioner's case on alternative bases:
   • (a) there was no discretion not to evict in section 51; or,

• (b) if there was such a discretion then the considerations set out at paragraphs 16-17 above were not relevant to the exercise of the discretion, with the possible exception of the consideration in paragraph 16(c).

5. The position for the Respondent was that a discretion existed and that each of the factors set out in paragraphs 16-17 above were relevant.
6. The hearing was directed to submissions on the questions of law only.
7. The Commissioner conceded that in the context of a section 48 application to evict a tenant, the status of the Commissioner as a social housing provider was a relevant consideration. This concession is in line with the decision in Commissioner for Housing of the ACT v Smith [1995] ACTSC 17. The presently constituted Tribunal arrived at the same conclusion for a range of reasons set out in Commissioner for Social Housing v Radovanov [2011] ACAT 12.
8. The Tribunal put to the Commissioner the following framework concerning how the discretion under section 48 is to be exercised (leaving aside section 51 for the moment):

• (a) First, identify the persons affected by the breach under consideration, which will include the Commissioner as lessor and the tenant and may include any family of the tenant, employees or agents of the lessor and neighbours;

• (b) Secondly, identify the effects of the tenant's breach on each affected person and the likely future effects on each of these persons, if the tenant is or is not evicted. This factor includes a consideration of:

• (i) whether the tenant is likely to engage in further bad behaviour; * (ii) whether the adversely affected people are still proximate to the tenancy or have moved on; * (iii) the attitude of the adversely affected people to the tenant's ongoing presence.

• (c) Thirdly, weigh up the gravity of these effects on each of the affected persons to determine whether an eviction is justified or warranted. The status of the Commissioner as a social housing provider is relevant at this point.

9. The effects on the Commissioner include any impediment to the Commissioner's obligation for the safety of other tenants and the Respondent's neighbours.
10. The considerations set out at paragraphs 16-17 above were locatable within the above framework.
11. The Commissioner adopted a neutral position in relation to this proposition.
12. The Tribunal then put the view that if there is a discretion in section 51, then it should be exercised within the same framework. The Commissioner dissented from this proposition on the basis that the existence of any discretion was denied, but if a discretion does exist, the above framework overstates the width of the discretion. The Commissioner did not attempt an enumeration of factors that would be relevant to any discretion under section 51.

1. The first issue is whether there is a discretion in section 51.
2. The Tribunal notes the Commissioner's contention in paragraph 28 above; namely, that section 51 does not contain the same form of explicit discretion not to evict as appears in section 48(4). This is obviously a point of substance but whether it is sufficient to resolve the issue is the question.
3. Section 51 opens with the word 'may' and section 146 the Legislation Act provides:
   • (1) In an Act or statutory instrument, the word "may", or a similar term, used in relation to a function indicates that the function may be exercised or not exercised, at discretion.

4. Section 146 is not said to be subject to any indication to the contrary in the statute in which the word 'may' appears.

5. The ACT, NSW and NT tribunals and courts have consistently approached similar provisions containing no explicit discretion not to evict of the kind found in section 48(4), on the basis that the word 'may' denotes discretion to evict.
6. Paragraphs 60-62 above are the obvious reasons for finding that section 51 contains a discretion. There are however more powerful reasons for arriving at this conclusion.

1. One such further reason was addressed by the presently constituted Tribunal in Radovanov and at [2.136.1] Anforth, Christensen and Taylor Residential Tenancies Law and Practice in NSW 5th ed Fed Press. These reasons are well known to those people involved with the issues and are probably in the category of common general knowledge.

2. In particular, people on social security and low incomes have great difficulty in affording rents on the commercial market and hence the reason for the existence of social housing. If a person is evicted from social housing, there is next to no chance that a private commercial landlord will offer that person a tenancy, even if that person could afford the rent (which is doubtful).
3. Unhousing people produces a range of consequential psychological, social and legal problems for the homeless person, their children, and the wider family and for the ACT government. Generally, homelessness is productive of anti-social outcomes for the community.
4. As a general principle, it is undesirable to unhouse people (whether single people or families) unless it the last resort. Such 'last resorts' do arise. What is a last resort depends on a consideration of all the circumstances of the case including the status of the landlord. It involves the kind of weighing exercise referred to above.
5. The point where the balance tips in favour of evicting the tenant will arise more readily in the case of private tenancies where the landlord has no social obligations of the kind that the Commissioner has.

6. But even in the case of social housing there can come a point where the balance tips in favour of eviction. Some of the more common examples are:
   • (a) where the tenant simply refuses to pay rent notwithstanding having the capacity to do so ('I won't rather than I can't);
   • (b) where the tenant causes serious damage to the property;
   • (c) where there is a serious risk to life or limb of affected persons; and
   • (d) where the person does not need the premises as a residence and is not residing there.

7. If section 51 does not involve a discretion, then there is no scope for consideration of the psychological, social and legal consequences arising from evictions from social housing. If there is no discretion, then a family in social housing may be evicted based on a single incident that involved a serious interference with the quiet enjoyment of a neighbour. That inference would not necessarily involve violence and may involve a one off incident. It may, for example, involve noise or bad behaviour by a teenage child of the tenant. The family would be homeless and the children would probably be taken into care. The unfolding consequences for the family could be out of all proportion to the gravity of the breach.

At the time the Residential Tenancies Act 1997 was enacted, the ACT was a party to the Commonwealth-State-Territory Housing Agreement which provided most of the funds to the ACT for social housing_._ The Agreement was annexed to the Commonwealth Housing Assistance Act 1996 which had as one of its stated aims, to reduce the incidence of homelessness for those who could not complete in the private market and provide secure affordable housing. The history is discussed in Radovanov.

The Agreement has subsequently been replaced by the National Affordable Housing Agreement, but the principles have not changed.

It is difficult to see how a form of mandatory eviction in section 51, is consonant with the terms of the Agreement which the Territory signed when taking the Commonwealth's Funds. Mandatory evictions under section 51 have the potential to cause considerable mischief in the attainment of the goals of the Agreement and now the NAHA. This is a reason to prefer a discretionary construction of section 51 that entails the kind of weighing process set out above.

On the facts of this case, so far as they are presently disclosed, that weighing process would involve a consideration of: * (a) the interests of the tenant's children in having a home in which they can have access to their father; * (b) that the immediate risk of violence dissipated when the neighbours moved; * (c) the risk of a future repeat of the violent behaviour by the tenant must take account of the alleged provocation by the neighbour who moved; * (d) there is no evidence that other neighbours have any concerns about the Respondent's behaviour; * (e) the Respondent is a man with psychological and behaviour problems. He is presently subject to a mental health plan. It would be relevant for the Tribunal to know what impact an eviction may have on his mental health; * (f) the Commissioner's obligation to other tenants and neighbour of the Respondent.

There will need to be evidence concerning each of these factors. But for present purposes the parties have abstained from leading further evidence pending this interlocutory decision on the statutory construction issue.

1. Another reason for construing section 51 in a discretionary manner arises from:
   • (a) section 12 of the Human Rights Act 2004 which provides that a person has a right not to have his family home interfered with unlawfully or arbitrarily; and
   • (b) section 30 of the Human Rights Act 2004 which requires legislation to be interpreted consistent with human rights.

2. The application of these provisions to the Residential Tenancies Act 1997, and in particular to social housing, was considered at length by the Tribunal in Canberra Fathers and Children Services v Watson [2010] ACAT 74. In that matter the Tribunal examined at length the issues concerning the vulnerability of tenants in social housing, the concept of an 'arbitrary' interference with their housing and why the issue of evictions from social housing raises a human right. Without repeating the contents of the decision, the presently constituted Tribunal respectfully adopts what was said.
3. The Tribunal also notes parenthetically, the helpful article by Otto: Homelessness and Human Rights; Engaging human rights; Discourses in the Australian context [2002] ALTLawJ I 97.
4. In the present case, the position adopted by the Commissioner to the effect that section 51 contains no discretion, gives rise to the kind of outcome set out at paragraph 70 above which was also adverted to in Watson. Construing

section 51 in this manner renders it unresponsive to the circumstances of the case and, in that sense, gives rise to arbitrary and unfair outcomes. 5. Section 30 of the Human Rights Act 2004 militates against such a construction. The process of weighing the consequences to all affected parties referred to above is more consonant with section 28 of the Human Rights Act 2004 which permits reasonable limits on human rights. 6. The application of sections 30 and 28 Human Rights Act 2004 were considered at length by Watchirs and McKinnon; Five Years Experience of the Human Rights Act 2004 (ACT): Insights for human rights protection in Australia ([2010] UNSWLawJl 8; 2010) 33 UNSWLJ 136. 7. In that article the learned authors argued that the decision of the ACT Court of Appeal in R v Fearnside [2009] ACTCA 3; (2009) 3 ACTLR 25 requires a three stage approach:

First consider whether the legislation enlivens a human right. Second, if, but only if, the answer to the first question is yes, it is necessary to consider whether the legislation contains a limitation which is reasonable within section 28. Thirdly, if, but only if, the answer to the first question is yes and the answer to the second question is no, it is necessary consider and apply the interpretative principle in section 30.

1. Once section 30 is enlivened then the Tribunal is entitled to 'adopt an interpretation of a legislative provision compatible with human rights which did not necessarily best achieve the purpose of that provision or promote that purpose, provided the interpretation was consistent with that purpose'. (Fearnside at 46)

2. In the present instance there are at least two interpretations of section 51 open; the discretionary and the non-discretionary constructions. Both are consistent with the purpose of the statute, namely to facilitate evictions in the stated circumstances. The discretionary construction is far more consistent with section 12 of the Human Rights Act 2004 than is the non-discretionary construction.

1. A finding of a serious interference with the quiet enjoyment of a neighbour is a necessary, but not sufficient, condition to terminate a tenancy under section 51. Section 51 involves a discretion as to whether to terminate a tenancy based on a weighing of all the circumstances of the case including the effects on all affected parties of evicting or not evicting.
2. In the present case, on the evidence as it currently stands, the factors set out at paragraphs 16-17 and 72 are relevant considerations.

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )