Legislation cited: Residential Tenancies Act 1997 ss 47 standard term 94

Residential Tenancies Act 2010 (NSW) ss 87, 154E

Housing Assistance Act 2007

Human Rights Act 2004 ss 12, 28, 40B, 40C

Cases cited: Canberra Fathers and Children Services Inc & Michael Watson [2010] ACAT 74

Commissioner of Housing of the Australian Capital Territory v Nicole Smith [1995] ACTSC 17

Commissioner for Social Housing in the ACT v Massey [2013] ACAT 41

Commissioner for Social Housing in the ACT v A [2015] ACAT 13

Commissioner for Social Housing v Lysle [2016] ACAT 26 Commissioner for Social Housing v Jones [2016] ACAT 75

David Harold Eastman v Commissioner for Housing for the Australian Capital Territory [2006] ACTSC 52

Homeground Services v Mohamed) [2009] VCAT 1131

Ward v Williams [1955] HCA 4

Little v Commissioner for Social Housing [2017] ACAT 11

R v Fearnside [2009] ACTCA 3

Hakimi v Legal Aid Commission (ACT); The Australian Capital Territory (Intervener) [2009] ACTSC 48

1. The parties entered into a residential tenancy agreement for premises in Braddon ACT on 29 February 2016.
2. On 10 August 2018, the tenant was incarcerated in the Alexander Maconochie Centre (AMC). His earliest date for release on parole was 8 February 2020, with a parole application to be assessed on 10 December 2019.
3. On 13 August 2018, the tenant gave notice to the lessor of his incarceration, and a notice of a person nominated as a carer for his premises.
4. On 17 October 2018, some nine weeks later, the lessor posted a notice to vacate to the tenant. That notice was given pursuant to Clause 94 of the residential tenancy agreement (the Agreement) and required the tenant to vacate the premises on or before 1 May 2019.
5. The tenant did not, on or before 1 May 2019 return vacant possession of the premises to the lessor.
6. On 5 August 2019, some 13 weeks after the date vacation was required, the lessor made an application for the termination of the tenancy and possession of the premises.
7. The hearing of the matter was conducted on 11 October 2019.

1. The Agreement provides at clause 94 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 period, provided that the notice period is 26 weeks and that the termination date does not occur during a fixed term tenancy. The residential tenancy agreement does not require that the lessor provide any grounds for the service of such a notice.
2. The Residential Tenancies Act 1997 (the RT Act) provides at section 47(1) that:

47 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. The Tribunal is satisfied on the evidence before it that the lessor has served a valid notice of termination pursuant to clause 94 of the Agreement between the parties.
2. The respondent makes submissions that the application should be dismissed because section 47 is not the appropriate provision of the RT Act under which this application for termination and possession should be made.
3. The respondent submits that section 47 is a provision which enables a lessor to obtain an order for possession where there has been no breach by the tenant, but one of the grounds set out in the RT Act or the residential tenancy agreement must be made out and the termination notice must be based on that ground.
4. Clause 94 provides:

The lessor may serve a notice to vacate during the term of a tenancy requiring the tenant _to vacate the premises at the end of the notice provided that - _

(a) the notice is for 26 weeks; and

(b) the notice does not require the tenant to vacate the premises during a fixed term.

1. The Tribunal's view is that the failure of the tenant to vacate the premises in accordance with the terms of a notice to vacate enlivens section 47. That is, that the grounds upon which the lessor relies are that a notice has been served in accordance with clause 94, and the tenant has failed to vacate the premises. To adopt the interpretation urged by the respondent, would create an absurdity. Where a lessor has a right to terminate a tenancy by serving a 26-week notice, the lessor must have a remedy, that is, a means to enforce the lessor's rights. The lessor will have reasons for serving the notice to vacate but is not required to articulate those reasons. It is not for the Tribunal to assess or evaluate those reasons.
2. The RT Act gives the Tribunal discretion to grant or refuse to grant an order for termination and possession. The Tribunal is not bound to make a termination and possession order. The terms of the Agreement, and the purpose and scope of the Act inform the breadth of that discretion. In David Harold Eastman v Commissioner for Housing for the Australian Capital Territory [2006] ACTSC 52 at [33], the Supreme Court said:

That is not to say that the discretion which the alternative construction allows to the Tribunal is unfettered. As Mason J observed in 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 - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard (see Reg. v. Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45, at pp 49-50, adopting the earlier formulations of Dixon J. in Swan Hill Corporation v. Bradbury [1937] HCA 15; (1937) 56 CLR 746, at pp 757-758, and Water Conservation and Irrigation Commission (N.S.W.) v. Browning [1947] HCA 21; (1947) 74 CLR 492_, at p 505). By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act._

1. It is a basic rule of statutory construction that where a statute does not provide an indication as to what factors should or should not be considered in the exercise of discretion, a court or tribunal must have regard to the terms, language, scope and object of the legislation as a whole in the exercise of that discretion. The court or tribunal should interpret a piece of legislation in order to give effect to the intention or purpose of that legislation, as set out within the legislation. In Commissioner of Housing of the Australian Capital Territory v Nicole Smith [1995] ACTSC 17 the Court stated with reference to the exercise of the discretion:

**26. 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. ...

27. It is relevant also to consider the powers and functions of the lessor, the Commissioner for Housing. That office is created by the Housing Assistance Act 1987. That Act empowers the Commissioner to hold land on lease from the Commonwealth and then to enter into tenancy agreements in relation to such land: see s9(1)(a) and (h). Those are the powers relevant for present purposes.

28. The functions of the Commissioner include the carrying into effect of the Housing Agreement with the Commonwealth (Schedule 1) 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.

29. 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.

30. 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.

31. In general terms, the discretion to be exercised by a Magistrate to whom an application for an ejectment warrant is made is analogous to the discretion exercised historically by courts of equity to grant relief against forfeiture of leases.**

1. The Court does no more than set out some guidelines for the exercise of the discretion: the role of the Commissioner in providing housing to the vulnerable in the public interest, and the duty of the Commissioner to protect the public interest in the housing facilities. There is nothing in the judgement that requires a court or tribunal to deal with public lessors and private lessors differently. The terms of the Agreement and the provisions of the RT Act cannot be applied more stringently to the Commissioner. Smith's case has not conferred upon the Commissioner a separate legal status of lessor of last resort, requiring the Commissioner to be subject to higher or more stringent tests.
2. The Tribunal accepts the submissions of the applicant in relation to the principles to be considered in the exercise of the discretion. A tribunal, applying a general power to evict has a discretion to refuse relief, having regard to all the circumstances and the conduct of the parties. Even where, as in this case the formal requirements have been met, the Tribunal is not required to grant an order terminating the tenancy. Residential tenancies law is intended to balance the rights of the lessors and tenants, and in determining whether to make a termination and possession order, the Tribunal may have regard to issues of substance rather than issues of form. It must be noted that the discretion is not unfettered. The Tribunal must exercise the discretion judicially and upon grounds which do not go beyond the scope and objects of the RT Act.[1]
3. The RT Act and the Agreement at clause 94 clearly contemplate that a lessor may terminate a periodic tenancy by giving 26 weeks' notice and that that termination does not have to be on any specified grounds.

The Residential Tenancies Act and its application to social housing tenancies

1. The RT Act in the ACT applies to all tenancies and does not differentiate between social housing tenancies and private tenancies. Residential tenancy legislation generally has the purpose of balancing the power, rights and obligations of the lessor and tenant.
2. The respondent submits that the Tribunal should have regard to the provisions of the Housing Assistance Act 2007 and the terms of the subordinate instrument Public Rental Housing Assistance Program[2] in the interpretation of the provisions of the RT Act. The Tribunal rejects that submission. The relationship between the parties is one of contract, a residential tenancy agreement, and the Tribunal adjudicates disputes arising from that contractual relationship. There is no basis for having regard to extrinsic legislation or programs. The Tribunal accepts the submission of the applicant that:

while the Commissioner may be required, broadly, to provide social housing that accords with the objects of the HAA and PRHAP, once it enters into a residential tenancy agreement, they play no direct part in the rights under that agreement.

1. The Tribunal notes that the RT Act in the ACT does not contain any provisions directing the Tribunal to any different or special matters to be considered when dealing with applications for termination of a 'social housing' tenancy agreement. By contrast, other jurisdictions do specify matters to be considered by the relevant tribunal when determining applications to terminate a social housing tenancy. See for example section 87 and section 154E of the Residential Tenancies Act 2010 (NSW). The legislature in the ACT has not included such provisions in the RT Act.

1. The Tribunal does not have the jurisdiction to conduct any human rights review of the conduct of the applicant. The Human Rights Act 2004 (the HR Act) establishes the duties of public authorities in respect of human rights. The applicant is a public authority. Section 40C of the HR Act permits a person to rely on human rights in legal proceedings. It is well settled that in this tribunal, a tenant may raise human rights issues in an application for termination of their tenancy. The Tribunal has considered the appropriate method for considering issues arising under the HR Act in applications for termination of tenancy on several occasions.[3] It is not necessary for the present Tribunal to explore these issues in depth. However, it will be useful to summarise the approach we intend to take:
   • (a) A tenant is entitled to raise human rights issues in response to an application for termination and possession.
   • (b) Human rights issues are relevant matters to be considered by the Tribunal in the exercise of any discretion.
   • (c) If a respondent raises and relies on section 40C(2)(b) of the HR Act, then the ACAT may consider whether there has been a contravention of section 40B of the HR Act.
   • (d) In deciding whether there is a contravention of section 40B of the HR Act, ACAT must also consider whether the human right is subject to any reasonable limit, pursuant to section 28 of the HR Act.
   • (e) If ACAT arrived at the conclusion that there had been a contravention of section 40B of the HR Act, that contravention must be addressed within the context of ACAT's existing powers and processes. That is, it would be appropriate for ACAT to consider any contravention when exercising discretion whether to make a termination and possession order pursuant to the RT Act.
   • (f) Where a respondent raises and relies on section 40C(2)(b) of the HR Act, then the onus of proof is with that respondent. It is not for the applicant to establish on each occasion that a termination and possession order is sought, that they have acted in compliance with the requirements of the HR Act.
2. The respondent tenant raises the issue of human rights in relation to section 12 of the HR Act which falls under the heading of Privacy and Reputation and provides:

(a) not to have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily; and

(b) not to have his or her reputation unlawfully attacked.

1. This Tribunal adopts the reasoning of Presidential Member Symons in Little v Commissioner for Social Housing [2017] ACAT 11 and agrees that an interference with home should be considered in a simple, straightforward and nontechnical manner. The commencement by the applicant of the legal process to terminate a tenancy on 26 weeks' notice is an attempt to interfere with the tenant's home without his consent.

1. The term 'unlawfully' is to be considered separately from the term 'arbitrarily'.[4] Although, any interference could they both unlawful and arbitrary.
2. The question of arbitrary interference is not answered by asserting lawfulness based on contract. The Tribunal notes that it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right. Thus, the exercise of a contractual right can, nevertheless, be unlawful.[5] There is no evidence before the Tribunal that the applicant lessor has, in making that decision to serve the termination notice and to commence this application, failed to give proper consideration to a relevant human rights.
3. The Oxford dictionary defines arbitrary as "based on random choice or personal whim, rather than any reason or system. unrestrained and autocratic in the use of authority". There is no evidence before the Tribunal to indicate that the decision to serve the termination notice, or to commence this application, was arbitrary: in the sense that the Commissioner has not failed to apply internal policies or acted inconsistently with due process, or contrary to any legal process.
4. This Tribunal notes, and it is not controversial, that human rights can be limited. In this matter, the right may be limited, by being subject to the rights and obligations of each party created by the residential tenancy agreement, and the statutory scheme of the RT Act, which provides a clear process by which a lessor may serve a 26 weeks'no cause' notice to vacate and apply to the Tribunal for a termination and possession order where the tenant fails to comply with the notice of termination.
5. When considering whether to evict a person on the basis of a notice issued under section 47, the Tribunal is exercising a discretion granted to it by the RT Act. The Tribunal is not conducting a human rights, merits or administrative review of the Commissioner's decision to issue the termination notice. In the exercise of that discretion, the Tribunal is determining what weight should be afforded to the tenant's human right not to have his home interfered with unlawfully or arbitrarily.
6. The Tribunal in determining how to weigh the interests of the Commissioner and the interests of the tenant will have regard to the proportionality of the outcomes for, and effect upon, each party, to determine whether the interference with the home of the tenant is 'arbitrary'. The proportionality considerations are guidelines for examining the limitations upon the human right not to have home arbitrarily interfered with, that is: is the limitation upon interference with home permissible because human rights may be limited, or impermissible because the effect upon the tenant is disproportionate and therefore arbitrary?
7. In Canberra Fathers and Children Services Inc & Michael Watson [2010] ACAT 74, the Tribunal adopted an approach similar to that set out by the ACT Court of Appeal in R v Fearnside[6] and by Refshauge J in Hakimi v Legal Aid Commission[7] that is:
   • (a) to consider whether in the circumstances the conduct of the Commissioner enlivens or engage as a human right;
   • (b) if so, to consider whether the decision to terminate the residential tenancy agreement amounted to an unlawful or arbitrary interference with the home of the tenant, and as part of that consideration to apply the proportionality test in section 28 of the Human Rights Act;
   • (c) if the decision to terminate the residential tenancy agreement was unlawful or arbitrary, the Tribunal should consider whether the rights asserted are subject to any reasonable limitations.
8. Section 28 of the HR Act provides:

**(1) Human rights may be subject only to reasonable limits set by laws that can be demonstrably justified in a free and democratic society.

(2) In deciding whether a limit is reasonable, all relevant factors must be considered, including the following:

(b) the importance of the purpose of the limitation;

(d) the relationship between the limitation and its purpose;

(e) any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.**

1. The tenant submits that the decision of the Commissioner to issue a termination notice is an arbitrary interference with the tenant's home. That arbitrariness is said to arise from the unreasonable and disproportionate impact eviction will have on the tenant.
2. The proportionality test argued for by the respondent tenant requires that the Tribunal assess the impact of the order which is sought upon the tenant; and to assess the impact of the refusal to make the order sought upon the lessor. In considering proportionality it is necessary to balance the interests of the lessor, which include a consideration of the general interest, against the interests of the individual. It is not enough for the tenant to identify situations in which a termination and possession order would have an adverse or detrimental effect upon him. Proportionality can only be determined after an examination by the Tribunal of the particular personal circumstances of the tenant, and of the circumstances of the applicant lessor, including the role of the Commissioner as a provider of public housing.
3. The evidence before the Tribunal is that the Commissioner served a valid notice to vacate on the tenant, in accordance with the process provided for in both the terms of the residential tenancy agreement and the RT Act. The Tribunal is of the view that the Commissioner has not interfered with the respondent tenant's home in a manner that is either unlawful or arbitrary. The Tribunal, therefore, is not required to apply the proportionality test as set out above. That is not to say that in the exercise of its jurisdiction the Tribunal will not be required to consider proportionality in weighing up to the interests of the lessor and the tenant.
4. The Tribunal, therefore, is not required in this case to determine the question of whether the human right is subject to reasonable limitations. The Tribunal, nevertheless, is of the view that in relation to the residential tenancy, in matters where there is an application for termination and possession made in accordance with the terms of the residential tenancy agreement and the provisions of the RT Act; the human rights issues will have little room in which to operate. The parties are in a legally binding contract. The terms of that contract are contained in the RT Act and the performance of those terms and the rights, obligations and remedies are governed by that Act. The parties must know that the contract can be terminated in accordance with the terms of that contract. An order for termination and possession cannot be said to be an unreasonable limit on the tenant's human rights.
5. ACAT has a discretion to exercise at the point of determining whether to make the termination and possession order sought. That discretion is not unfettered and must be exercised with scope and purpose of the RT Act in mind. The Tribunal will consider the relevant circumstances of each party, which could include:
   • (a) the history of the tenancy, including the length of the tenancy;
   • (b) the powers and functions of the lessor as a provider of public or social housing, including:
     • (i) the lessor's interest in ensuring compliance with the terms of the residential tenancy agreement;
     • (ii) the lessor's interest in efficient management of a finite housing stock;
   • (c) the conduct of the parties in the circumstances giving rise to the application for termination and possession;
   • (d) hardship to a tenant which could include:
     • (i) financial hardship;
     • (ii) difficulty in finding other suitable accommodation;
     • (iii) the risk of a prolonged period of homelessness;
     • (iv) physical or mental health factors.

1. The Commissioner made both oral and written submissions; these are summarised below:
   • (a) The tenant was served with valid notice to vacate on 17 October 2018. The tenant was on notice from that date and has had a period of 12 months (to the date of hearing) to vacate the premises in accordance with that notice and to arrange alternate accommodation. There is no evidence the tenant has appropriately engaged with officers of the applicant, other community or social housing providers or real estate agents.
   • (b) The lessor is entitled to enforce its legal rights to regain possession of premises which form part of the public housing stock. The same standard should apply to public and private lessors and tenants.
   • (c) It is relevant to consider the powers and functions of the Commissioner. The Commissioner has interests, and this is the interest of the community. The Commissioner has the function of determining where it should allocate public housing stock, it is for the Commissioner to determine eligibility for public housing and the priorities upon which public housing is to be allocated. The Commissioner has a fixed pool of housing resources, the Commissioner supports tenants in other ways through rental rebates and its support and assistance programs.
   • (d) It is for the Commissioner to determine where it should allocate the available housing stock and the Tribunal has no role to play in such allocation. The Tribunal should not impose on the Commissioner a requirement or burden it could not impose upon a private lessor.
   • (e) That the Tribunal's discretion should be a narrow one. There ought to be a degree of certainty in the application of the discretion in cases of no cause notices: the tenant should understand their rights and not be in a position to ignore the notice, with the intention of risking all on the Tribunal's discretion. The Commissioner must have certainty to develop and implement policy, such as the Incarceration of Tenants Policy.
   • (f) Incarceration of Tenants Policy was relied upon. That policy includes:
     • (i) the need to protect the physical housing stock - dwellings left vacant for more than three months without regular attention are increasingly likely to attract vandalism, inhabitation by squatters, illegal sub- letting and depreciation exacerbated by disuse;
     • (ii) for a single tenant without income, rent will abate to $5.00 per week while in custody;
     • (iii) for a single tenant whose tenancy is terminated due to the length of a sentence, housing would variously work with and support the tenant to be a rehoused in public housing or to secure suitable alternative accommodation.
   • (g) An applicant for housing who is a person being released from custody, in circumstances where a tenancy was terminated will be assessed as a person at risk of homelessness and be assessed in the priority category of applicants.

1. The respondent tenant gave evidence and made both oral and written submissions. These are summarised below:
   • (a) Mr Cook is a 54-year-old Aboriginal man. In his written statement dated 17 September 2019, he gave the opinion that he expected to be paroled on 8 February 2020. He gave evidence that he was a trusted detainee, that he lived in a cottage environment within the AMC and was involved in setting up and running art classes in AMC.
   • (b) Mr Cook has been an ACT housing tenant for a period in excess of 10 years.
   • (c) Mr. Cook gave evidence that his current home was close to his doctor, shops and chemist as well as the bus network.
   • (d) The tenant had maintained rental payments during his incarceration.
   • (e) Mr Cook has complex physical health needs and wishes to retain his current ground floor apartment. A letter of support from a medical practitioner was before the Tribunal. The tenant is a participant in a methadone program. It is anticipated that the tenant will be in receipt of a disability pension on release and therefore unable to compete in the private rental market.
   • (f) The tenant's prospects of parole would be greatly decreased if he were to be homeless. The tenant provided evidence that the Sentence Administration Board will be unlikely to grant the release of an offender where they will be homeless.
   • (g) Even if the tenant were allocated to the priority housing list, he resents waiting. There is also evidence before the Tribunal to indicate that the average waiting time in August 2019 was 151 days. This would indicate that, if the termination and possession order is granted, the tenant will be homeless upon release.
2. There is no evidence before the Tribunal that the tenant had taken any steps to obtain accommodation upon release, whether by parole or otherwise; or, that he had attempted to engage with ACT Housing to make arrangements for post- release accommodation.
3. The Tribunal accepts that the Commissioner has primary responsibility for allocating housing stock; and, that the Incarceration of Prisoner Policy is an appropriate policy for the management and allocation all such housing stock in circumstances where a tenant will be absent from the premises for an extended period of time due to incarceration. However, the Tribunal notes that the applicant failed to act in a timely manner to obtain possession of these premises. There was a delay in some nine weeks between the time the Commissioner was informed of the tenant's incarceration and the serving the notice to vacate. There was a further delay of 13 weeks from the vacation date specified in the notice to vacate to the date of application being made to ACAT. No explanation was given for this delay; nor was any explanation given as to how this delay could sit comfortably with the notion that the Commissioner had developed and implemented this policy to ensure the efficient administration of the housing stock.
4. As a result, in part, of that delay, the tenant was approaching the date on which he could make an application for parole. The evidence before the Tribunal shows that it was more likely than not that the tenant, in the ordinary course of events, would be granted parole.

1. The Incarceration of Prisoners Policy and the application of that policy to this tenant is appropriate. The Commissioner is entitled to make and apply policy to manage the housing stock under her control. This should be accorded considerable weight in the exercise of the Tribunal's discretion.
2. The desire of a tenant to maintain current accommodation, is to be afforded little weight. In this matter it is noted that the tenant did not take the opportunity to engage with ACT Housing to arrange for suitable accommodation upon release.
3. The impact of a termination and possession order on the tenant is considered: the tenant's financial situation is such that he would be unlikely to be able to obtain private rental; and he would not be immediately rehoused in public housing upon release and faces a waiting period up to 151 days. Thus, should a termination and possession order be made, the tenant would be released into homelessness. The fact of homelessness following a termination and possession order must be weighed according to the circumstances of the case: by itself homelessness is not to be afforded great weight. However, the particular personal circumstances of the tenant may require greater weight being accorded to the fact of homelessness.
4. In this matter, the fact of homelessness, resulting from a termination and possession order, before a parole assessment is given great weight. The evidence before the Tribunal shows that the fact of homelessness upon release makes it more likely than not that parole would be refused. Homelessness would be a factor for every person released from incarceration and should not always be given great weight. However, the proximity of the parole assessment date and the likely parole date are factors, which add weight to this.
5. Overall the hardship to the tenant, including the effect of homelessness on his parole, health and finances outweigh the burden placed on the Commissioner of not being able to reallocate these premises, especially given the policy of assisting and rehousing released prisoners, given that the tenant would be released in June 2020, even if refused parole. Accordingly, the Tribunal declines to exercise its discretion to order the eviction of the tenant.

[1] Ward v Williams [1955] HCA 4 at [12]

[2] Housing Assistance Public Rental Housing Assistance Program (Exempt Income and Assets) Determination 2020 (No 1)

[3] See for instance: Commissioner for Social Housing in the ACT v Massey [2013] ACAT 41; Commissioner for Social Housing in the ACT v A [2015] ACAT 13; Commissioner for Social Housing v Lysle [2016] ACAT 26; Commissioner for Social Housing v Jones 2016] ACAT 75

[4] Homeground Services v Mohamed [2009] VCAT 1131 at [15] -[18]

[5] Canberra Fathers and Children Services Inc & Michael Watson [2010] ACAT 74 at [37]

[6] R v Fearnside [2009] ACTCA 3

[7] Hakimi v Legal Aid Commission (ACT); The Australian Capital Territory (Intervener) [2009] ACTSC 48