1. On 7 August 2012 the applicant lessor entered into a Residential Tenancy Agreement with the respondent tenant with respect to premises at Braddon, ACT.
2. The tenant was sentenced to a term of imprisonment and entered custody at the Alexander Maconochie Centre (AMC) on 15 December 2014.
3. On or about 15 January 2015 the lessor received a notice of custodial sentence completed and signed by the tenant on 15 January 2015. This stated that his earliest possible release date was 4 February 2015. The lessor was subsequently notified, sometime in early March 2015 and that the tenant's earliest release date would be 13 October 2016.
4. On 30 March 2015, the lessor served the tenant with a notice to vacate pursuant to clause 94 of the standard residential tenancy terms. The notice required the tenant to vacate the premises on or before 28 September 2015. The statement of service provided to the tribunal in relation to the notice to vacate states that the notice was served by email to the AMC and by posting by prepaid post to the premises in Braddon ACT.
5. On the 8 January 2016, the lessor made an application to the ACT Civil and Administrative Tribunal (the ACAT) for termination of the tenancy and possession of the premises.
6. The matter came before the Tribunal, and was part-heard on 17 March 2016; the tenant raised the following issues:
   • (a) whether the notice to vacate had been properly served; and
   • (b) whether the notice to vacate was defective - it was accepted by both parties that the notice to vacate failed to provide 26 weeks' notice to the tenant as the applicant had failed to allow time for postal delivery.
7. The hearing resumed on 19 May 2016. The Tribunal determined that the notice to vacate had been properly served by way of prepaid post to the tenant's address for service. The Tribunal made an order pursuant to section 83(k) of the Residential Tenancies Act 1997 (the RT Act) correcting the defect in the notice to vacate.
8. Thus the final issue for determination by the Tribunal was whether pursuant to section 47(1) of the RT Act, the Tribunal should make a termination and possession order.

The law relating to termination of tenancy without cause

1. Clause 94 of the standard residential terms 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 and that notice does not require the tenant to vacate the premises during a fixed term.
2. Section 47 of the RT Act provides that ACAT may make a termination and possession order if satisfied that a ground for termination exists under the standard residential tenancy terms and the lessor has served a notice of termination on the tenant based on that ground and the tenant has not vacated the premises as required by that termination notice.
3. The legislature's use of the word 'may' means that ACAT has discretion to exercise in determining whether a termination and possession order should be made pursuant to section 47 of the RT Act. In Eastman v Commissioner for Housing for the ACT [2006] ACTSC 52, Ryan J stated:

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]

1. In Commissioner for Social Housing in the ACT v A [2015] ACAT 13, the Tribunal stated:

It is the established approach of the tribunal to treat the power to make (or not to make) a termination and possession order under section 47 as a discretionary power which is not 'unfettered'. In exercising that discretion the tribunal must have regard to all relevant considerations; these will include the place of section 47 in the RT Act (providing the mechanism for the lessor to seek to terminate the tenancy agreement for no cause), the powers and functions of the lessor, and the individual circumstances of the tenant and the case as a whole.[2]

1. Where the Human Rights Act 2004 has been engaged, human rights issues are relevant matters to be considered by the tribunal in the exercise of the discretion.[3]
2. In Commissioner for Social Housing v Lysle[4] I canvassed the circumstances and manner in which it is appropriate for ACAT to deal with human right issues where there is an application for termination and possession by a public authority lessor. It is not necessary to revisit these issues in their entirety. However, I reproduce my conclusions. In relation to a residential tenancy matter where there is an application for termination and possession, I consider the appropriate case for ACAT to take is as follows:

(a) 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;

(b) in making a decision as to 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; and

(c) 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. If ACAT were to consider any issue arising under the HR Act it would be appropriate to do so when exercising discretion whether or not to make a termination and possession order pursuant to section 49 of the RT Act.

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.

1. In Commissioner for Social Housing v A [2015] ACAT 13 the tribunal took the view that a tenant's right under section 12 of the HR Act not to have his or her home interfered with unlawfully or arbitrarily is engaged, where a public authority lessor issues a 'without cause', notice of termination. The identity of the applicant as a public authority was regarded as a significant circumstance to which the tribunal should have regard in exercising its discretion to make orders under the RT Act. Member Daniel (as she then was) stated:

It seems to me that there is a place, in the exercise of discretion, for the Tribunal to consider whether the outcome contemplated would affect an arbitrary interference with the tenant's home, and whether for this reason the orders should not be made. This allows the tenant to rely upon his or her rights under the HRA in the RT Act proceedings, as provided by section 40C(2)(b) of the HRA.

1. The parties made submissions in relation to the factors to be taken into account by the Tribunal in the exercise of its discretion in section 47(1) of the RT Act. The submissions of the parties are summarised below.
2. The tenant made oral and written submissions and attached the following documents to the written submissions:
   • (a) A letter from David Fraser, Solaris Transition Worker dated 25 May 2016. This letter stated that the tenant had completed a course of study to prepare him for release back into the community by engaging in pro-social lifestyle programs. That part of the transition program was for the tenant to visit his premises from time to time to undertake cleaning and other preparation for his release. The evidence is that the tenant has attended his premises at Braddon for a period of four hours in both May and June 2016. As part of the stepped transition program, it was expected that the tenant would visit the property with his sister on weekend day leaves gradually leading to overnight stays as his release date comes closer. Mr Fraser stated that in his opinion the tenant was likely to be released on 13 October 2016, but that it was essential for him to have premises to return to for parole to be granted.
   • (b) A written statement by the tenant, signed 26 May 2016. The tenant has been approved for detainee leave as part of the transitional release program. [A copy of his 'Transitional Release Sender Detainee Leave Permit' was attached to the statement]. The tenant described his visit to his home on 25 May 2016 and noted that he had attended to cleaning up of the premises checked his garden and said hello to some of his neighbours. The tenant noted that if he should be evicted from his home, he would have no alternate housing option; and that he was not able to afford removal and storage of his furniture and other personal belongings. The tenant stated that he had been an alcohol addict for most of his adult life, but that since being imprisoned he had received the level of support never previously offered, and he believed that a staged release program and the ongoing support of David Fraser in conjunction with a safe and stable place to live, gave him the best chance of remaining sober.
   • (c) A written statement by the tenant signed 12 May 2016. This statement outlines the tenant's participation in the Transitional Release program and the tenant states:

My biggest fear, while in the AMC is to be evicted from my home. This concern has preoccupied me since I entered prison and I have had frequent contact with Housing ACT to do everything possible to prevent eviction.

My home is the most important thing to me. It's important for my recovery and to enable me to get parole but more importantly because it's the first place that I can call my own for very many years. It would be completely devastating to me to lose it now after so much I feel I have achieved while in prison.

(d) An email from the Community Corrections Officer stating that should the tenant have no approved accommodation it will be unlikely that a parole order would be made.

(e) A copy of 'The Parole Process' published by ACT Corrective Services - this confirms that "unsuitable, unconfirmed or no post-release plans/accommodation would be an issue of concern in the determination by the Parole Board of an application for parole."

(f) A copy of 'Seeing it Through' a publication of the Social Policy and Implementation Branch of the Chief Minister and Cabinet Directorate of the ACT, a document providing background information in relation to the Throughcare program used at the AMC to case manage offenders with the aim of reducing the risk of recidivism and to promote the reintegration of offenders into the community. This document notes that stable accommodation is a key aspect required for the successful long-term re-integration of prisoners following release from prison; and further that it is crucial offenders have basic infrastructure in place on release - housing and an income - and they are connected to support and services that will promote re-integration.

(g) A copy of a letter dated 15 September 2015 from a counsellor at ACT Health - Alcohol and Drug Services, stating that the tenant had been receiving counselling from that service since March 2015, and noting that an important component of recovery is enhancing the tenant's independent living skills and self-efficacy, but that this was unlikely to be feasible unless he was able to sustain his home base where he feels safe and secure.

(h) Two letters from the tenant's case manager at the AMC dated January and February 2016. These letters reiterate that the tenant must have suitable and stable accommodation to satisfy the parole board recommendations, and that the premises at Braddon being in a quiet, low density area for over 50s would allow the tenant to continue his recovery without negative influence of antisocial acquaintances. The case manager states that the tenant has used his time at the AMC productively by undertaking relative relevant rehabilitative programs.

1. The tenant made submissions that following the decision of Commissioner of Housing of the Australian Capital Territory v Nicole Smith [1995] ACTSC 17, the exercise of the discretion in section 47(1) would include considerations, such as the power and functions of the lessor as "landlord of last resort"; the individual circumstances of the tenant, including any particular hardship caused by the serving of a termination and possession order and any alternative options for suitable accommodation. The tenant further submitted that there is now an additional legislated relevant consideration, namely the application of the HR Act in those cases where the lessor is a public authority.
2. The tenant submits that he is a man who has had a troubled past, including having had an alcohol addiction almost his entire adult life and having suffered through long stretches of homelessness. The tenant's criminal offences are linked to his past abuse of alcohol. The tenant points to the information outlined in paragraph 13 above to show that the tenant has shown a great deal of commitment to rehabilitation and reform while incarcerated. The tenant has been part of an intensive programme of support designed to enable him to re-integrate into the community. He has participated in a number of programmes and received counselling to that end. It is further submitted that the ability to participate in the transitional or stepped release program and ongoing support as well as being able to show that he has appropriate and stable accommodation are essential factors which may contribute to the success of his application for parole. The tenant's submissions conclude that the evidence is clear: for a successful transition back into the community, the tenant's current home is crucial.
3. The tenant submits that the Tribunal should take into account the fact that the lessor may not be able to make use of the Braddon property and reallocate it in the time available before the respondent is released back into the community.
4. The tenant claims the termination of his tenancy would be incompatible with his rights under section 12(a) of the HR Act, that is, the right not to have his privacy, family, home or correspondence interfered with unlawfully or arbitrarily.
5. The tenant submits that all applications to terminate a tenancy by a public authority used utilising the 26 weeks without cause ground asset out in clause 94 of the standard residential terms are inherently arbitrary. The tenant further submits that if a respondent tenant raises the HR Act in 'without cause' termination proceedings then the tribunal member is forced to ask the applicant public authority to show why their action is not in fact arbitrary - in other words, the onus shifts to the public authority to demonstrate why its actions are not in fact arbitrary interference with the home.
6. I reject the submissions of the tenant that every 'without cause' termination process is inherently arbitrary. To shift the onus of proof in this way to the applicant to establish that they have not acted in an arbitrary fashion is to cross the line and to require ACAT to conduct a collateral review of an administrative decision. I reiterate, 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. Any alleged HR Act contravention must be addressed within the context of ACAT's existing powers and processes.
7. The lessor's submissions are summarised as follows:
   • (a) The Tribunal can be satisfied that each of the elements of section 47 of the RT Act have been satisfied, namely: a ground for termination exists, a 26 week notice of termination pursuant to clause 94 has been served and the tenant has failed to vacate the premises in accordance with that notice to vacate.
   • (b) The tenant's potential release on parole is not a relevant consideration for the purpose of exercising the not unfettered discretion in section 47 of the RT Act. That the contentions of the various authors of letters of support, and the information in documents provided by the respondent do not allow the tribunal to draw the conclusion that the tenant would be refused parole should he be evicted from these premises. Nor are there are any grounds to believe that the tenant's transition back to the community would be successful only if he was living at the Braddon property. Further, the grant of parole is a matter for the Sentence Administration Board and should not be regarded as a foregone conclusion.
   • (c) That there are a number of criteria for making parole orders as set out in section 120 of the Crimes (Sentence Administration) Act 2005, and the tenant has provided no information or evidence as to how those other criteria are likely to affect the success or otherwise of the tenant's application for parole.
   • (d) The Tribunal should not take into account the matter of whether or not the lessor will be able to make use of the Braddon property and reallocate it to another tenant prior to the expected release date of the tenant.
   • (e) In relation to the human rights issues the lessor made submissions, in my view correctly, that human rights issues should be considered as a relevant consideration in the exercise by the tribunal of its discretion under section 47 of the RT Act. Specifically in relation to section 12 of the HR Act, the lessor submits that the service of a 'without cause,' notice to vacate and following the procedures laid down in the RT Act is neither unlawful or arbitrary interference with a home. The lessor submits that their application to ACAT, pursuant to section 47 of the RT Act, has not been made unlawfully for the purposes of section 12 of the HR Act. Further the lessor submits that, in the context of human rights, where action is taken in pursuit of a legitimate objective and is rationally connected to and a proportionate way of achieving that objective, the action cannot be arbitrary.
8. In Commissioner for Social Housing v A the tribunal stated that a public authority lessor, is not necessarily required to satisfy the tribunal that it had a good reason for issuing a no cause notice and seeking a termination and possession order under section 47 of the RT Act. Member Daniel stated:

I do not consider that the effect of section 40C(2)(b) is to place an onus on a public authority lessor to demonstrate reasonableness and proportionality in the orders it seeks under the RT Act. Nor does section 40C(2)(b) by a back door require the tribunal, when for the purposes of the HRA acting as a 'court' conducting 'legal proceedings', to treat itself as a 'public authority' bound to only make orders that comply with the HRA. Rather, when a public authority lessor brings an application under the RT Act, it is open to the tenant to argue that the making of the order would be disproportionate or unreasonable such as to amount to an arbitrary interference with their home, and that, given the nature of the particular provision of the RT Act relied upon and the individual circumstances of the case, the discretionary power to make the order should not be exercised. Where a substantive argument is raised, it is for the applicant lessor to satisfy the tribunal that, after a consideration of all of the circumstances of the case (including whether or not the orders sought by the lessor impermissibly contravene the tenant's rights under the HRA), the orders sought should be made.[5]

1. The requirements of subsection 47(1) of the RT Act have been satisfied and the Tribunal has the discretionary power to make the termination and possession order sought.
2. In exercising that discretion I have taken into account the powers and functions of the lessor, the individual circumstances of the tenant and the human rights issues raised. In weighing the role of the Commissioner for Social Housing as a lessor of last resort, the need to manage scarce public housing resources in the ACT and the demand for those scarce public housing resources against the interests of a tenant who is incarcerated, in maintaining premises which may for an extended period of time be unoccupied and which would otherwise be available to house others, I formed the view that it would be appropriate to terminate the tenancy, except for the imminent prospect of the tenant being released on parole and able to resume his occupation of the premises.
3. In deciding how to exercise my discretion, I considered the particular circumstances of the tenant's case. I am satisfied that maintaining his current home, which provides a safe environment close to people he is familiar and friendly with, and, away from inappropriate persons and anti-social behaviour will be a factor that will be considered by the Sentence Administration Board in determining his application for parole. Any alternative housing may not meet the tenant's needs for safe and secure premises.
4. I am satisfied that the tenant has been able to participate in the transitional release program because he has the Braddon premises available to him.; Further, I am satisfied that he has visited the Braddon premises in a stepped procedure as part of that transitional release program.
5. The lessor's role and responsibility in managing public housing resources in the ACT are also taken into account. I am satisfied that the lessor, served a notice of termination in a timely fashion. But I note that more than four months elapsed between the date of vacation set out in the termination notice and the application by the lessor to ACAT for termination and possession.
6. I am also concerned that because of the time taken for the matter to come on for hearing and as a result of the necessity to deal with the question of service of the notice of termination, I am now considering an application for termination and possession only a matter of some 12 weeks prior to the tenant's earliest release date.
7. Although I am not satisfied that difficulties experienced by a tenant in arranging and paying for the removal of personal belongings is a factor that should be given any real weight in the exercise of that discretion, it is in my view appropriate for the Tribunal to take into account the length of time that may elapse between the making of a termination and possession order and the lessor securing possession of the premises.
8. It is a legitimate approach for the lessor to seek termination and possession to further the objective of the most effective use of public housing stock which is otherwise sitting unoccupied. However, in this case I am satisfied that it is disproportionate and unreasonable to interfere with the tenant's home at this late stage in his period of incarceration. Thus I have concluded that the termination and possession order sought is, in all the circumstances an arbitrary interference with the tenant's home. In arriving at the conclusion I have taken into account the following factors:
   • (a) that the lessor is unlikely to secure possession of the premises for a period of up to six weeks;
   • (b) that the premises are particularly suited to the tenant in that he currently occupies a unit in a complex designed for persons over the age of 55 years. In his oral evidence the tenant stated that he regarded the premises as home and that he was part of the community, wherein he supported and assisted his neighbours and they supported and assisted him and contributed to his feelings of self-worth;
   • (c) that while it is not possible to predict the outcome of an application for parole, the evidence before me establishes that it is more likely than not a successful transition back into the community will be greatly assisted, should the tenant maintain possession of his current home;
   • (d) that the tenant is currently visiting his home and preparing it for eventual reoccupation as part of the transitional release program conducted by the AMC. I have evidence of at least two visits for a period of four hours each in which the tenant has undertaken some cleaning, checking of his garden and re-engaged with his neighbours. The tenant in his statement indicates that he expected, in the near future, to participate in day release and overnight stays in the company of his sponsor. This is likely to continue to be the case should the SAB refuse his application for parole; and
   • (e) that the tenant's earliest release date is 13 October 2016. I am satisfied that if the result sought by the lessor was effective use of public housing stock which was otherwise be sitting vacant, it seemed to me disproportionate and unreasonable to interfere with the tenant's home at this late stage for the sake of the premises being available for occupation by others on the housing list for a short period of time.

[1] Eastman v Commissioner for Housing for the ACT [2006] ACTSC 52 at [33]

[2] Commissioner for Social Housing in the ACT v A [2015] ACAT 13 at [30]

[3] 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

[4] Commissioner for Social Housing v Lysle [2016] ACAT 26

[5] Commissioner for Social Housing v A [2015] ACAT 13 at [42]- [43]