Catchwords: RESIDENTIAL TENANCIES - rented premises not being occupied because the tenant was in custody - notice to terminate

tenancy without cause: pursuant to clause 94 of the standard residential tenancy terms of the Residential Tenancies Act 1997 (RT Act) - applicant's assurance to provide alternative accommodation to tenant when released from custody - breadth of Tribunal's discretion to refuse an application for termination of tenancy pursuant to section 47 of the RT Act -public authority obligations under the Human Rights Act 2004

Legislation: Human Rights Act 2004, ss 12 and 40C,

Residential Tenancies Act 1997, s 47 and Schedule 1

Cases: Commissioner for Housing for the ACT v Eastman

[2007] ACTRTT 14

Commissioner for Housing v Smith [1995] ACTSC 17

David Harold Eastman v Commissioner for Housing in the

Australian Capital Territory [2006] ACTSC 52

Director of Housing v Sudi [2011] VSCA 266

Texts/Papers: Explanatory Statement to the Human Rights Amendment

1. The residential tenancy agreement between the Commissioner for Social Housing in the ACT and Wayne Norton Pearce is terminated and the respondent tenant shall provide vacant possession of the premises to the landlord on or before 8 April 2014.
2. Should the tenants fail to provide vacant possession in accordance with order 1 above, the applicant may apply to the Tribunal for a Warrant for Eviction.

1. On 15 February 2006, the parties entered into a residential tenancy agreement in relation to the applicant lessor's property (the premises).
2. On 15 February 2013, the respondent (Mr Wayne Norton Pearce) was remanded in custody. He was still in custody on 9 January 2014, when this matter was heard.
3. On 8 April 2013, the applicant served a Notice to Vacate the premises on or before 11 October 2013. This notice was served in accordance with clause 94 of the residential tenancy terms[1]. This clause provides that the lessor may serve a notice to vacate during the term of the tenancy requiring the tenant to vacate the premises at the end of the notice, provided that the notice is for 26 weeks. No grounds are required for the giving of such a notice.
4. The respondent has not vacated the premises and on 13 November 2013, the landlord made an application seeking orders pursuant to section 47 of the Residential Tenancies Act 1997 ( RT Act):
   1. No breach of standard residential tenancy terms

_(1) On application by a lessor, the ACAT may make a termination and possession order if satisfied that - _

(a) a ground for termination exists under the standard residential tenancy terms (other than for a breach of the standard residential tenancy terms); and

(b) the lessor has served a termination notice on the tenant based on that ground; and

(c) the tenant has not vacated the premises as required by the termination notice.

1. ACAT is satisfied that the lessor has served a valid termination notice and that the tenant has not vacated the premises.
2. The effect of section 47 was considered by the Supreme Court of the ACT in David Harold Eastman v Commissioner for Housing in the Australian Capital Territory [2006] ACTSC 52. (Eastman 2006) There Ryan J stated:

27. ... in Commissioner for Housing v Smith [1995] ACTSC 17 (14 March 1995) Higgins J identified as follows at [15] to [17] a question of interpretation which was seen to arise under s 4 of the Recovery of Lands Act 1929 (ACT);

15. It was argued by Counsel for the Respondent that, under s.4 of the Act, a Magistrate has a discretion to issue a warrant. Also, that in the exercise of that discretion the Court may take into account factors which may mitigate the tenant's failure to comply with lease covenants. And further, that it was relevant to take into account the consequences, viz. any hardship to the tenant as a result of the issuing of a warrant.

16. Counsel for the Respondent argued that a refusal to issue a warrant would give rise to a statutory tenancy in favour of the Respondent.

17. The reply by Counsel for the Applicant was that, if s.4 confers a discretion, it is limited to the scope, object and purpose of the Act; that the mitigating factors raised by Counsel for the Respondent are not relevant to the exercise of the discretion; and that the refusal to issue a warrant would not give rise to a statutory tenancy, but would render the Respondent a trespasser.

28. Section 4 of the Recovery of Lands Act, which was in terms not dissimilar to s 47 of the Tenancies Act, provided:

If, after a lease has been determined in pursuance of the last preceding section or otherwise, the lessee or any person apparently in occupation or possession of the land fails to deliver up possession thereof to the Territory within the time within which in the notice determining the lease, or, where the lease has been otherwise determined, in a notice in accordance with Form B in the Schedule to this Act, served on the lessee, the lessee is required to deliver up possession of the land, a magistrate sitting as the Magistrates Court, may, on the application of the Minister, or of any person acting in that behalf for the Minister, if in his opinion the lease has been lawfully determined, issue a warrant, in accordance with Form C in the Schedule to this Act, authorising any member of the Police Force, within a period of not more than thirty days after the date of the warrant, to enter on the land by force and with such assistance as is necessary and deliver possession thereof to the Territory.

29. After acknowledging the proposition noted ... above that in certain statutory contexts "may" has been interpreted to mean "must" or "shall", Higgins J referred to several of the applicable authorities, and observed, at p 5, that, in Re Hassell (1984) 55 ALR 219, Toohey J had been -

... particularly impressed in relation to relevant provisions of the Repatriation Act 1920 (Cth) that the word "shall" was used, in contrast to "may" in different contexts, thus supporting the view that "may" was intended to confer a discretion.

30. Similar guidance is afforded in the present case by various provisions of the Tenancy Act, [sic] referable to powers of the Tribunal including ss 7(a), 39, 40, 41, 42, 50(2) and 53(3) where "shall" is used with the obvious intent of imposing a duty on the Tribunal. Those provisions may be contrasted with others in the same Part of the Tenancies Act,[sic] including s 47 itself, where "may" is used with the equally apparent intention of importing a discretion; see eg ss 43, 45, 46, 48, 49 and 50(1).

31. Higgins J in Commissioner for Housing v Smith considered at p 7 that the issue which he had to resolve was put beyond doubt by s 26(3) of the Interpretation Act 1967 (ACT) ("the Interpretation Act"). That sub-section stipulates that;

Where an Act provides, by using the word "may", that a person, court or body may do a particular act or thing, the act or thing may be done at the discretion of the person, court or body.

32. After reviewing the legislative history and comparative and preparatory material bearing on s 26(3) of the Interpretation Act, his Honour continued, at p 8;

The present form of the provision seems to me to support the view that whether or not s4 of the [Recovery of Lands] Act was enacted before or after 11 May 1989, it is to be interpreted as conferring a discretion upon a Magistrate empowered pursuant to its terms to issue an ejectment warrant to grant or refuse a warrant at his or her discretion.

33. In the light of the authorities canvassed above and having regard to the range and variety of grounds for termination afforded by the prescribed terms in Schedule 1 to the Tenancies Act [sic] as founding a termination and possession order under s 47(1), I am unable to conclude with confidence, without the benefit of full argument on the point, that the Tribunal is bound to make such an order upon being satisfied of each of the matters enumerated in s 47(1)(a), (b) and (c). That is not to say that the discretion which the alternative construction allows to the Tribunal is unfettered.

1. ACAT received evidence that the applicant intended to work with the respondent tenant to find alternative accommodation for him, that it was expected that he would be released from custody on or about 14 March 2014 and that his current accommodation was a bed-sit at the Red Hill flats, a location characterised by an excess of anti-social behaviour from tenants.
2. ACAT received evidence from the respondent tenant and his representative confirming an expected release date of 14 March 2014. ACAT was informed that Mr Pearce "had done all the right things" while in custody, that he had undertaken courses in behaviour management and that his parole application might be jeopardised if he had no permanent residence.
3. ACAT, mindful of the comments of the Supreme Court in Eastman 2006, adjourned the matter and directed the parties to make written submissions in relation to the discretion available to the Tribunal in relation to section 47(1) of the RT Act.
4. In submissions filed 23 January 2014, the applicant accepted that section 47 confers a discretion on the Tribunal in relation to the making of termination orders, but submitted that the discretion is limited by the matter, scope and purpose of the RT Act and that the discretion to refuse to make a termination order is a narrow one. The applicant submitted "that the Tribunal could refuse to exercise that discretion only where there is clear evidence of a factor that might compromise the requirements under section 47 of the RT Act, or any factors that would compromise natural justice being afforded to the tenant". This discretion has not been broadly determined or tested. The applicant urged the Tribunal to consider the following factors:
   • (a) that the applicant had satisfied the provisions of section 47 of the RT Act;
   • (b) the property is currently unoccupied, and will remain so until at least 14 March 2014;
   • (c) the applicant has a strong need to re-lease the property due to heavy demand for public housing and the high number of vulnerable housing applicants within the ACT.
5. The applicant further submits, and the Tribunal accepts, that the Commissioner's decision to seek termination of the tenancy "pursuant to

section 47 of the RT Act is not a reviewable decision, that is, is not one that requires a reason". 6. The applicant, relying upon Director of Housing v Sudi [2011] VSCA 266, seemed to say that ACAT had no power to enquire as to whether the Commissioner's decision to apply for termination of the tenancy fell within or complied with the Human Rights Act 2004 (Human Rights Act). 7. Mr Norton, Manager, Throughcare Unit, ACT Corrective Services, provided written submissions. The submissions provided background information in relation to Mr Pearce. The Tribunal summarises those submissions as follows: * (a) Mr Pearce is eligible for parole to the community on March 14, 2014; * (b) Mr Pearce is a client of Throughcare (This program is responsible for the integration of all sentenced prisoners into the ACT Community with the aim of reducing the likelihood of re-incarceration and coordinating targeted support for prisoners returning to the community); * (c) ACT Housing is a 'partner in this initiative' which is committed to avoiding released from custody into homelessness; * (d) Mr Pearce has engaged well in a variety of programs whilst in custody and these programs aimed to support Mr Pearce to address issues in his behaviour that had contributed to his being placed into custody; and * (e) an application for parole is unlikely to be successful if Mr Pearce does not have stable and appropriate accommodation. Evicting Mr Pearce at this time will impact on his ability to find appropriate stable accommodation. 8. The applicant has filed further submissions that : * (a) Housing ACT is of the belief that for purposes of reintegration into the ACT Community it is best that Mr Pearce not return to his current Red Hill property; * (b) Housing ACT has identified and secured an alternate 2-bedroom property for Mr Pearce following his release from custody; and * (c) Housing ACT believes that Mr Pearce's tenancy will be better sustained by his reintegration taking place at the newly available property. 9. The submissions assure the Tribunal that an alternative property will be available to Mr Pearce following his release. 10. In light of the applicant providing to Mr Pearce a suitable alternate 2 bedroom property, the Tribunal deals with the following issues briefly:

The breadth of the Tribunal's discretion to refuse an application for termination pursuant to section 47 of the RT Act

1. The Tribunal accepts that the discretion to refuse an application for termination is not unfettered. In Eastman 2006 Ryan J (at paragraph 33) referred to Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24 at 39:

What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors ... are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act.

1. In Commissioner for Housing for the ACT v Eastman [2007] ACTRTT 14 (Eastman 2007), the Residential Tenancies Tribunal considered that the scope of the discretion extended to considering whether the landlord had engaged in unconscionable conduct, the length of time that the subject premises had remained vacant, the demand for public housing and the function of the applicant as the landlord of last resort.
2. Higgins J stated in Commissioner for Housing v Smith [1995] ACTSC 17, at paragraphs 26 -30:

A discretion to refrain from making an order for the issue of an ejectment warrant must, of course, be exercised judicially. The range of relevant considerations will be circumscribed by a consideration of the object and purposes underlying the Act in question and any related legislation. ...

It is relevant also to consider the powers and functions of the lessor, the Commissioner for Housing. ...

The functions of the Commissioner include the carrying into effect of the Housing Agreement with the Commonwealth ... and the delivery of housing assistance to the public, particularly those at financial or other disadvantage. The Commissioner is, in effect, the landlord of last resort for the disadvantaged and provides housing assistance in the public interest, not for private profit.

That is not to say, of course, that the Commissioner does not have a legitimate interest in ensuring compliance with the terms of a tenancy agreement. The Commissioner has a duty to protect the public from physical or financial abuse of housing facilities offered and to ensure that tenants do not create a nuisance to neighbours or otherwise expose the Commissioner to legal liability

It follows that hardship to a tenant and leniency in respect of arrangements to remedy past breaches will obviously loom larger as relevant matters than would be the case in respect of a commercial letting.

1. The Tribunal in this case takes into account the length of time the premises have been vacant, the demand for public housing, that the applicant is the landlord of last resort for persons in the respondent's circumstances, the possible effect that a termination notice would have on the application for parole by a prisoner who has taken steps to modify his behaviour, that Mr Pearce will be supported by the Throughcare program and that being released into homelessness is likely to have a deleterious effect on the success of his reintegration into the community. If these were the only factors to be considered, the Tribunal would exercise its discretion to refuse the application for termination. However, when the Tribunal takes into account the assurance by the appellant that the respondent will be rehoused in a 2-bedroom property upon his release, the Tribunal considers that the balance of the factors determines that the discretion should be exercised to grant the application for termination.

The extent to which the Tribunal can consider whether a public authority has contravened its obligations under the Human Rights Act and what remedy may be available to affected litigants

1. The Tribunal does not accept the submissions of the applicant in relation to the application of the Human Rights Act.
2. Section 40C of the Human Rights Act provides:

40C Legal proceedings in relation to public authority actions

(a) claims that a public authority has acted in contravention of section 40B; and

(b) alleges that the person is or would be a victim of the contravention.

(a) start a proceeding in the Supreme Court against the public authority; or

(b) rely on the person's rights under this Act in other legal proceedings.

1. The Explanatory Statement to the Human Rights Amendment Bill 2007 explicitly noted that section 40C(2)(b) would allow a victim of any unlawful act by a public authority to rely on human rights as part of any other legal proceeding in a court or tribunal.
2. The Tribunal is of the opinion that the respondent could have sought relief from termination by making an argument relying upon section 12 of the Human Rights Act (not to have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily). No such argument was raised; nor has the Tribunal made any determination or formed any opinion that the conduct of the applicant was unlawful.

[1] Schedule 1, Residential Tenancies Act 1997