1. The preliminary question to be determined was whether, and if so how, the question of the Commissioner's compliance with the HRA could be dealt with in these proceedings.

1. On 5 May 2010 Ms Massey entered into a residential tenancy agreement with the Commissioner in relation to the premises, and she and her son commenced to live in that property.

1. Ms Massey had previously rented a house in Charnwood from the Commissioner, however, after being charged with a murder occurring at the Charnwood shops and released on bail, it was a condition of her bail that she not reside in Charnwood due to the number of potential witnesses in that area. While on bail and awaiting a transfer of housing from the Commissioner, Ms Massey and her son lived with her mother, Ms Fredrickson, and other family members in somewhat cramped and difficult conditions. Ms Massey gave evidence that it took close to a year before the transfer to the premises in Ngunnawal could be arranged.

1. On 3 May 2011 Ms Massey was convicted of murder, and sentenced to 16 years imprisonment with a non parole period of 10 years. She was incarcerated at the Alexander Maconochie Centre (AMC) and her son moved to live with Ms Fredrickson.

1. On 14 December 2011 the Commissioner served Ms Massey with a termination notice, being a Notice to Vacate (NTV) issued under clause 94 of the prescribed terms. That is what is commonly referred to as a '26-week no cause notice'. The NTV required Ms Massey to vacate the premises by 12 June 2012.

1. On 8 June 2012 Ms Massey's solicitor wrote to the Commissioner advising Ms Massey had lodged an appeal from conviction, which had been heard by the Court of Appeal on 7 May 2012, and asking that no action to terminate the tenancy be taken until the outcome of that appeal was known. The Commissioner agreed to take no further steps until 8 September 2012.

1. On 4 September 2012, Ms Massey's solicitor wrote again to the Commissioner, advising the outcome of the appeal was still not known, and seeking that no steps to evict Ms Massey be taken. The Commissioner declined that request.

1. On 26 October 2012, the Commissioner filed the current application, seeking a termination and possession order under section 47 of the RT Act.

1. The matter came before the Tribunal on 14 November 2012. Ms Massey, who did not at that time have legal representation for these proceedings, participated by telephone from the AMC. The Commissioner was legally represented, and opposed 'any indefinite adjournment' of the application. I adjourned the matter to 13 December 2012 to enable Ms Massey to obtain legal representation.

1. On 13 December 2012 Ms Faulder of the Welfare Rights and Legal Centre appeared on behalf of Ms Massey, who again attended by telephone from the AMC. Directions were made for the filing of evidence, and written submissions in relation to the legislation. The hearing was set for 31 January 2013. Ms Faulder indicated that if in the meantime Ms Massey's criminal appeal was unsuccessful, she would be likely to not oppose the Commissioner's application.

1. On 24 January 2013 the Court of Appeal handed down its decision refusing Ms Massey's appeal.

1. When the matter came before me on 31 January 2013 Ms Faulder indicated that Ms Massey's criminal legal team was considering whether an application for special leave to appeal would be lodged with the High Court. If no application was to be lodged, Ms Massey would relinquish her opposition to the Commissioner's application for a termination and possession order. By this time it was clear from the documents filed by the parties that the complex issue of the application of the HRA would need to be determined, if the Commissioner's application was opposed. By agreement of the parties, I adjourned the matter to hearing on 13 March 2013.

1. It transpired that Ms Massey lodged an application with the High Court for leave to appeal the decision of the Court of Appeal. That application is expected to be heard in August 2013.

1. The parties' oral submissions on the appropriate legal framework to be applied by the Tribunal extended over two days. The parties then filed written submissions on that preliminary point. On 12 April I advised the parties of the framework I proposed to adopt, and the hearing, including the taking of oral evidence from Ms Massey, finally concluded on 13 May 2013.
2. For the hearing, I had before me the affidavits of Ms Massey and Ms Frederickson, and two witness statements of Mr Bink, a delegate of the Commissioner. I also had before me a number of documents from Ms Massey's housing file, which were put into evidence by Ms Faulder in the course of submissions on the legal framework.
3. At the conclusion of the hearing, I exercised the discretion under section 47 to grant a termination and possession order and advised the parties I would publish my reasons.

1. Much of the hearing time in this matter was devoted to submissions of the parties as to how the assertion of a failure by the Commissioner to comply with the HRA was to be incorporated into the legal framework for the hearing of an application under section 47 of the RT Act. To say that the issue is complex is an understatement. The HRA does not go into detail as to how it is to be applied by the Courts and the Tribunal.
2. During the two days of oral submissions, and in the written submissions of the parties, I was taken to a wealth of material covering case law and secondary materials from the United Kingdom and New Zealand, decisions of the Supreme Court of Victoria, the Victorian Civil and Administrative Tribunal, the Supreme Court of the ACT, the ACT Magistrates Court and the ACAT. Of all of these authorities, most were of persuasive and academic interest only, as the human rights legislation differs between jurisdictions.

22. The case law that was most directly on point, being recent decisions of the ACAT[1] had proceeded on what appeared to be an incorrect characterisation of the ACAT in RT Act proceedings. Unfortunately, this meant that the parties' representatives had to take the Tribunal back to first principles on the correct interpretation of the HRA, in order to resolve the preliminary question of whether and if so how issues as to the Commissioner's compliance with the HRA were to be addressed in these proceedings.

1. The first question was - were any rights under the HRA engaged by the Commissioner's decisions and actions, or by the bringing of the proceedings?
2. The respondent asserted that the Commissioner had acted in a way that is incompatible with her and her son's human rights under sections 11 and 12 of the HRA in issuing the NTV dated 14 December 2012, and in instituting these proceedings. Further, the respondent asserted that in making the decisions to undertake these actions, the Commissioner failed to give proper consideration to those rights.

1. Section 11 of the HRA provides for the protection of the family and children:

11 Protection of the family and children

Note Family has a broad meaning (see ICCPR General Comment 19 (39th session, 1990)).

(1) The family is the natural and basic group unit of society and is entitled to be protected by society.

(2) Every child has the right to the protection needed by the child because of being a child, without distinction or discrimination of any kind.

Distinction or discrimination because of race, colour, sex, sexual orientation, language, religion, political or other opinion, national or social origin, property, birth, disability or other status.

1. Section 12 of the HRA provides the right not to have, among other things, one's home interfered with unlawfully or arbitrarily:

(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. The applicant conceded that the rights of the respondent and her son under sections 11 and 12 of the HRA might be engaged by the decisions and actions of the Commissioner, but disputed that the Commissioner had failed to give proper consideration to those rights. The applicant did not concede that any of the actions taken by the Commissioner in seeking the termination and possession order were incompatible with those rights.
2. Although Ms Massey had only resided at the premises for about a year before being incarcerated, I was satisfied that the proposed termination of Ms Massey's residential tenancy agreement would be an interference with her 'home' such that the right provided by section 12 of the HRA was engaged by the decisions and actions of the Commissioner, and ultimately these proceedings.
3. I was, however, not satisfied, taking into account the evidence referred to by the respondent, and the submissions of the parties, that the rights of Ms Massey and her son provided by section 11 of the HRA were effectively engaged in the circumstances of this case.

What does the HRA require, where rights are engaged?

1. Section 40B of the HRA provides that it is unlawful for a public authority to act in a way that is incompatible with a human right under the Act, or in reaching a decision to fail to give consideration to a relevant human right.

40B Public authorities must act consistently with human rights

(a) to act in a way that is incompatible with a human right; or

(b) in making a decision, to fail to give proper consideration to a relevant human right.

_(2) Subsection (1) does not apply if the act is done or decision made under a law in force in the Territory and - _

(a) the law expressly requires the act to be done or decision made in a particular way and that way is inconsistent with a human right; or

(b) the law cannot be interpreted in a way that is consistent with a human right.

Note A law in force in the Territory includes a Territory law and a Commonwealth law.

human rights do not include the economic, social and cultural rights in part 3A.

public authority includes an entity for whom a declaration is in force under section 40D.

1. Section 40C(2)(b) of the HRA provides that where such an assertion is made, the person making the assertion may start a proceeding in the Supreme Court or 'rely on the persons rights under this Act in other legal proceedings':

40C Legal proceedings in relation to public authority actions

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

(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. These deceptively straightforward provisions provided fertile ground for submissions by the parties. I do not propose in these reasons to canvas all of the competing views taken in various jurisdictions in relation to slightly differently worded legislation, but instead set out in short form my conclusions on the relevant points:

1. It was not contested that the Commissioner is a public authority as defined by section 40 of the HRA, and so the Commissioner's actions and decisions are captured by the operation of section 40B.
2. In conducting proceedings under the RT Act, the ACAT is not a public authority. It is excluded from the definition of that term by subsection 40(2)(b) because it falls within the definition of the term 'court' in the HRA, and the RT Act proceedings do not involve the ACAT acting in an administrative capacity .[2]

Are proceedings in the ACAT under the RT Act 'legal proceedings' for the purposes of section 40C(2)(b) of the HRA?

1. The applicant submitted that proceedings in the ACAT are not 'legal proceedings' as that term should be interpreted for section 40C(2)(b) of the HRA. The applicant submitted that the term should be interpreted as meaning 'legal proceedings in the Supreme Court'.
2. The respondent submitted that the term should not be so limited, and referred to the explanatory statement to the Human Rights Amendment Bill 2007, which inserted section 40C, in support of the broader interpretation.
3. The applicant referred to other parts of the HRA as supportive of the narrower interpretation. It seems to me however that those provisions are consistent with both the narrow and the broad interpretation.
4. Given that the HRA is beneficial legislation an interpretation consistent with that beneficial purpose should be adopted, where this is possible.
5. I did not adopt the narrow interpretation of the words that was urged by the applicant. A similar argument was recently rejected by Magistrate Mossop in Trevor Russell v Pasquale Pangallo [2012] ACTMC 4, and I would respectfully adopt his Honour's reasoning in this respect. The term 'legal proceedings' appearing in section 40C(2)(b) of the HRA includes proceedings in the ACAT under the RT Act.

How can a tenant 'rely on rights under the HRA' in RT Act proceedings?

1. Given my conclusion that section 40C(2)(b) permits the respondent to rely on her rights in the RT Act proceedings, the more difficult question was how was that to be done. There is no utility in embarking upon an exploration of the Commissioner's decisions and actions, with a view to finding some or all to be 'unlawful' under section 40B of the HRA, unless a finding of 'unlawfulness' by the ACAT could be of some legal effect or operation in the RT Act proceedings.
2. The respondent submitted that the Tribunal need not be concerned at 'stitching' the HRA issues into the existing legal framework for RT Act proceedings, because section 40C(2)(b) of the HRA provided a 'front door' by which allegations of breach of the HRA may be considered by the ACAT. Ms Faulder submitted that, after considering the HRA issues and making its findings, the ACAT would however be limited to exercising only those powers available to the ACAT in the jurisdiction in which the matter arose. So, for example, the Tribunal might decline to exercise the discretion to make a termination and possession order, because after examining the HRA issues it made a finding of unlawfulness.
3. The applicant opposed the interpretation of section 40C(2)(b) as providing to the ACAT a general grant of jurisdiction to review HRA issues involving public authorities coming before it.
4. The approach suggested by the respondent would seem to permit the Tribunal, in the course of the hearing, to conduct what amounts to a human rights compliance review of the conduct of the Commissioner leading up to and including the institution of the proceedings.
5. Consistent with the approach taken by the Tribunal in Thornthwaite, I do not consider that it is appropriate to interpret section 40C(2)(b) as itself conferring some sort of HRA review jurisdiction upon the Tribunal. Given the significant practical and legal ramifications of such a grant of power, one could expect specific provision if the legislature intended that outcome. I consider that the appropriate interpretation of the provision is that it allows rights under the HRA to be considered and relied upon where those rights, or a finding of 'unlawfulness' in relation to those rights, can be incorporated into the existing legal framework for the proceedings.
6. The Commissioner further opposed the ACAT undertaking any review of the Commissioner's decisions and actions, on the basis that this would involve the ACAT in an impermissible collateral review as identified by the Victorian Court of Appeal in Director of Housing v Sudi [2011] VSCA 266. The respondent argued that if this inquiry were in the nature of a collateral review, it was a review which was clearly intended by the wording of section 40C(2)(b) of the HRA.
7. It is not the case that all inquiries in the nature of a collateral review are inappropriate. Some are provided for legislatively. Even where there is no specific legislative provision, it may be permissible to engage in consideration of ancillary matters, provided the issue of concern is of direct relevance to the proceedings , it is considered appropriate for that body to engage in that inquiry, and within the jurisdiction of the body undertaking the inquiry. In the latter case, the jurisdiction to make orders as a consequence of that review is consequential upon the finding that the review is appropriate.
8. The question of availability and extent of collateral review in any particular case is not easily resolved. It is first a question of statutory interpretation. In some (rare) cases, the legislation will clearly provide that an issue which appears to be collateral may be reviewed by the Tribunal or Court. While it is clear that section 40C(2)(b) was intended to enable some sphere of operation in RT Act proceedings in the ACAT, I have already noted above that I do not consider that section 40C(2)(b) was intended to provide a general HRA review jurisdiction upon the ACAT.
9. Was it intended by section 40C(2)(b) that inquiries into the HRA, in the nature of collateral review, were to occur in the RT Act proceedings in the ACAT? Where the intended operation of the legislation is not clear, the process of statutory interpretation descends into an analysis of competing arguments of efficiency, complexity, timeliness, and expertise of various forums.

49. The arguments for and against a Tribunal such as ACAT being the appropriate forum for collateral review of HRA issues are amply and eloquently discussed Sudi[3] both at first instance and on appeal, and need not be set out here. With these principles in mind, I considered the ways in which the assertions of unlawfulness in decision-making and actions of the Commissioner might have some scope of operation in proceedings under the RT Act, such that undertaking a collateral review would be appropriate.

Making pre-litigation decisions without proper regard to the relevant rights

1. In relation to the making of decisions pre-litigation, I could see no way in which a finding by the ACAT of HRA 'unlawfulness' of a decision taken by the Commissioner pre-litigation would, of itself, have a direct impact in RT Act proceedings before the ACAT. Such a finding could only have an effect on the proceedings if a subsequent finding of a lack of validity were made, and then only if it was determined that, in the broader context of all the pre-litigation decisions and actions of the Commissioner, either the entire proceedings were flawed or it was inappropriate to exercise discretion in favour of the Commissioner.
2. I am not aware of any legislative provision or principle of law which provides that an 'unlawful' decision by the Commissioner is necessarily of no legal effect. While the word 'unlawful' is in ordinary parlance (as defined by the Macquarie Dictionary) "not lawful, contrary to law; illegal; not sanctioned by law', there is nonetheless an accepted principle that administrative decisions and actions are of legal effect until set aside or declared to be of no legal effect by a court of competent jurisdiction. The ACAT does not ordinarily have the jurisdiction, in an RT Act matter, to declare a decision of a public authority to be of no legal effect. For the ACAT to purport to exercise such a jurisdiction in an RT Act matter would be to go beyond the concept of relying on HRA rights in legal proceedings as permitted by section 40C(2)(b), and assume a jurisdiction which normally vests in the Supreme Court.
3. Even if it were accepted that a decision is by virtue of being unlawful of no legal effect, or that the ACAT could in the context of collateral review make a declaration of invalidity, such a finding in relation to one decision would not necessarily invalidate all subsequent actions. It may be that an unlawful decision is rectified by a subsequent decision made with proper regard to the relevant rights. There is no binding authority to the effect that the proceedings subsequently brought before the ACAT would be, in some tenuous way, fruit of a poisoned tree because of an unlawful decision pre-litigation. The process of determining whether or not a failure in decision-making pre-litigation was, in the context of the entire matter, such as to invalidate future legal action would involve extensive evidence taking and the consideration of complex questions of fact and law, and would necessarily inflate hearing time in the ACAT. This resource-intensive process would lead to a finding which was limited to the proceedings, and subject to being set aside on appeal within the Tribunal or on appeal to the Supreme Court.
4. It is not generally the practice of the ACAT to engage in a review, within RT Act proceedings, of the validity of pre-litigation decisions made by an applicant. So, for example, if an allegation is made that the decision by a corporation to institute legal proceedings was not properly taken, such as to be unlawful or invalid, the ACAT would not in the RT Act proceedings embark on a review and determination of that point. It has no jurisdiction to do so, and to embark on a collateral review of that point would be contrary to ACAT's legislated imperative of efficiency. Consistent with the need to ensure lawful decision-making, and afford natural justice, the ACAT would refer the party raising that issue to the appropriate forum for a determination of validity. In an appropriate case, the ACAT might stay the RT Act proceedings until a determination of that issue had been obtained.
5. It seems to me that the legislature could not intend, by the wording of section 40C(2)(b) of the HRA, to impliedly vest the ACAT with the power to declare decisions undertaken contrary to section 40B of the HRA to be of no legal effect. Without such a declaratory power, there would be no utility to the ACAT embarking on a review of the lawfulness of pre-litigation decisions by a public authority coming before it. The power to make such a declaration for the confined purposes of the RT Act proceedings would be available, if collateral review of the issue were considered to be appropriate. I do not consider that such a collateral review is appropriate. The sheer scale of such an inquiry, the complexity of the issues raised, the requirements of the ACAT Act and the current practice of the ACAT all militate against adopting that course.

1. It is a prerequisite of termination proceedings under the RT Act that a notice to vacate has been served prior to the institution of the proceedings. As canvassed in Sudi's case both at first instance and on appeal, an argument can be made that a notice to vacate that has been issued in breach of the obligation imposed by section 40B of the HRA is no notice to vacate at all. Any application relying on such a notice to vacate would be unsuccessful.
2. It is not unusual for the ACAT in termination proceedings to consider the notice to vacate and whether it has been issued in compliance with requirements of the RT Act. Should the ACAT add to the range of its enquiries in this regard the question of the human rights compatibility of issuing of a notice to vacate by a public authority? It is not the practice of the ACAT to inquire into whether a notice to vacate is issued in accordance with other legislative requirements which may apply to an applicant.
3. Having considered all of the authorities to which the parties referred, I have come to the conclusion that it is not appropriate for the ACAT in an RT matter to engage in a consideration of whether the issuing of a notice to vacate by a public authority is an unlawful act under section 40B of the HRA. First, because I am not satisfied that a finding of 'unlawfulness' necessarily means that a decision is of no legal effect. The ACAT would need to declare the notice to vacate to have no legal effect, for the finding to have some direct operation. As I have noted above, I do not consider that the wording of section 40C(2)(b) has given the ACAT a declaratory jurisdiction. For the same reasons as set out at paragraphs 51 - 54, I do not consider that the ACAT should depart from its usual practice and engage in a collateral review of the issue so as to impliedly vest itself with such a jurisdiction for the purposes of the RT Act proceedings.
4. The respondent submitted that for the ACAT to decline to engage in collateral review of the lawfulness of the issuing of the notice to vacate, it would be 'closing its eyes to unlawfulness'. That is not correct. There is no unlawfulness until a competent body has determined that to be so. By refusing to engage in collateral review of this issue in the RT Act proceedings, the ACAT is not engaging in wilful blindness. Rather, it is appropriate for the ACAT, when such an issue is raised, to refer the parties to the appropriate forum in which these concerns may be properly ventilated and addressed by a legally binding outcome. This is already the approach when issues of such a nature are raised in RT Act proceedings. I see no persuasive reason, and no legislative requirement, that the ACAT should adopt a different approach in relation to a request for collateral review in relation to the lawfulness of the notice to vacate.
5. In the current matter, when advising the parties that I did not propose to engage in a wholesale collateral review of the decisions and actions of the Commissioner, I asked Ms Massey's representative if she would like an adjournment so as to make application to the Supreme Court. She declined to seek an adjournment for that purpose.

The action of filing the application - an abuse of process?

1. I also considered the question of whether the issue of the asserted unlawfulness of the filing of the application by the Commissioner should be considered by the ACAT. The same reasoning as set out at paragraphs 57 and 58 would apply in relation to an examination of the issue of whether an 'unlawful' application was not a valid application.
2. The respondent pointed out that the ACAT has powers under section 32 and section 56 of the ACAT Act which might include the power to summarily dismiss an application which was unlawful.
3. In relation to section 32, the applicant properly noted that it is confined to frivolous and vexatious applications. The question of 'unlawfulness' under the HRA does not readily fit into the wording of section 32 of the ACAT Act.
4. I have given some consideration as to whether HRA unlawfulness in the filing of an application might constitute an abuse of process. The applicant submitted that even if it did, the ACAT does not possess the power to dismiss an application as an abuse of process, and in this respect referred to the decision in Re Vincent and Military Rehabilitation and Compensation Commission [2010] AATA 180, a decision of the Commonwealth AAT in which it was held that 'the power to dismiss an application as an abuse of process is not necessary for the exercise of those powers expressly given and so cannot be implied'.
5. I do not consider that the reasoning in that case, in relation to the Administrative Appeals Tribunal Act 1975 (Cth) and the review jurisdiction of that Tribunal, is persuasive in relation to the interpretation of the ACAT Act. Given the diverse jurisdictions exercised by the ACAT as a 'Super-Tribunal' under the broad auspices of the ACAT Act, a general power to dismiss proceedings as an abuse of process must be held by the ACAT. This power must be exercisable, at least in relation to matters in the 'original' jurisdictions, whether it is considered to be encompassed in the broad powers provided by section 56 of the ACAT Act, or whether it is implied. The existence of section 32 of the ACAT Act does not mean that such a power does not exist; it simply provides an outline of a procedure that may be followed in one particular set of circumstances.
6. I considered, then, whether the asserted HRA 'unlawfulness' in the institution of these legal proceedings might amount to an abuse of process. The categories of abuse of process are not fixed, and the concept of abuse of process has recently involved reliance on rights under the HRA, most obviously in the criminal jurisdiction in relation to the right to fair trial. This is consistent with the established category of abuse of process constituted by delay in bringing legal proceedings.
7. In this matter, and in relation to the rights engaged, I could identify no relevant category of abuse of process, and there was no basis on which I could be satisfied that a new category of abuse of process - call it HRA unlawfulness - had evolved. Consequently, I did not consider that it was appropriate for the ACAT to engage in a review of the decision to institute legal proceedings as a potential abuse of process.
8. This is a conclusion specific to this matter. As I have noted, the categories of abuse of process are not fixed, the rights under the HRA are varied, and the range of circumstances which give rise to RT Act applications seem to be limitless. It is not inconceivable that individual circumstances may arise in which the institution or continuation of proceedings in the ACAT under the RT Act by a public authority involves unlawfulness which amounts to an abuse of process. It will be for the Tribunal hearing such a matter in the future to be satisfied that any alleged unlawfulness in the bringing of the application is such as to amount to an abuse of process, thereby bringing the inquiry into that question within the jurisdiction of the ACAT. In this matter, I was not persuaded that that test was met.

The exercise of discretion under section 47 whether or not to make an order

1. Having considered and ruled out the above mechanisms by which the asserted unlawfulness under section 40B might be of relevance in this matter, so as to bring the enquiry into that question within the jurisdiction of the ACAT either directly or by permissible collateral review, one is left only with the exercise of discretion to make the order sought. Both the applicant and respondent submitted that it was open to the ACAT to 'have regard' to the tenant's rights under the HRA, in exercising the discretion whether or not to make an order sought by a public authority lessor. The parties differed somewhat in the approach to be taken by the ACAT when having regard to those rights.

69. The respondent submitted that an approach similar to that recently taken in the UK in Pinnock[4] would be appropriate, whereby there would be some degree of deference or assumption of regularity/compliance by the Commissioner with the HRA. Once persuasive evidence of a failure by the Commissioner to comply with section 40B of the HRA was brought, the onus would shift to the Commissioner to satisfy the ACAT as to the lawfulness of the impugned actions and proceedings.

1. The applicant conceded that, if the ACAT were to consider a HRA issue, it would be most appropriate to do so when exercising the discretion whether or not to make an order. However, the applicant submitted that in so doing, the ACAT should be considering the facts and circumstances of the application before it and not reviewing the conduct and decisions of the Commissioner pre-litigation. The applicant submitted that a focus on the substance of the matter was consistent with the approach taken in Pinnock.
2. In any matter involving the exercise of discretion it is appropriate to have regard to all relevant circumstances, and it is well-accepted that the identity, role and responsibilities of the Commissioner as a public housing provider, and now as a public authority, must be taken into account[5].
3. Section 40C(2)(b) provides that rights under the HRA may be relied upon in these proceedings, and given that the HRA is beneficial legislation an interpretation consistent with that beneficial purpose should be adopted, where this is possible. It seems to me that were the tenant able to point to a substantive way in which the termination and possession order sought in these proceedings would be contrary to those rights, that may be taken into account in exercising the discretion whether or not to make the order.
4. Accordingly, I advised the parties that while I did not, in this matter, propose to engage in a review of the Commissioner's decisions and actions, I wished to hear evidence and submissions of the parties on the question of whether the order sought in the proceedings would in substance be contrary to the tenant's rights under the HRA, and if so, why the discretion to make the termination and possession order should not be exercised.

Exercise of discretion under section 47 in this case

1. Section 47 of the RT Act provides that the Tribunal may make a termination and possession order where a ground for termination under the prescribed terms exists, the lessor has served a notice to vacate relying upon that ground, and the tenant remains in possession of the property.
2. It was not contested that these three conditions were made out in this case.
3. Ms Massey gave evidence of her hope that the High Court will, after hearing her application in August 2013, grant her leave to appeal. At that point, she would hope to apply for bail. She hoped that her bail application would be successful. If granted bail, she would wish to return to the house in Ngunnawal with her son, as she is for personal reasons unable to reside with her mother again. This plan was corroborated by the evidence of Ms Fredrickson.
4. Ms Massey also gave evidence of having previously lived in a refuge with her son and her daughter, and her concerns that she would not be able to reside with her son in a refuge again, because he is now a teenager and would be excluded from many women's refuges.
5. Mr Bink's affidavits set out the chronology of events leading to the proceedings. Mr Bink also attested that there were more than 3200 applicants for public housing currently on the waiting list, and 291 applicants on the priority housing list. Mr Bink stated that the average waiting time for a person in the priority category awaiting a 3-bedroom house in the Belconnen area was 128 days.
6. Ms Faulder pointed to key documents obtained from Ms Massey's housing file, which lacked any reference to the sections 11 and 12 of the HRA, or the rights contained therein. She submitted that these documents were evidence of a failure by the Commissioner to consider those rights which would constitute 'unlawfulness' under section 40B of the HRA.
7. Of course, the documents do not prove a failure to consider the relevant rights, any more than ticking a box on a form would prove that those rights had been properly considered. While an inference could be drawn from the documents, it would be necessary to hear from the authors of the documents or the decision-makers themselves as to what factors they had regard to in making the impugned decisions, including the policy framework in existence at the time, for a firm conclusion on 'unlawfulness' to be reached. Even if it were the case that a decision of the Commissioner pre-litigation had been made without due regard to relevant rights, it is by no means clear that a proper consideration of those rights at the relevant time could or would have resulted in a different decision or these proceedings not being brought. As set out above I did not consider it was appropriate for the Tribunal to engage in the comprehensive review of this issue that would be necessary in order to find that 'unlawfulness' in the Commissioner's decision-making should amount to a bar to the relief sought.
8. There had been no finding by the Supreme Court in relation to the Commissioner's decisions which the Tribunal could take into account in deciding whether or not to exercise the discretion to make the order sought.
9. The respondent submitted that the lengthy delay by the Commissioner in bringing proceedings for possession of rental property, in a similar case of incarceration[6], supported the conclusion that the decisions and action taken in this matter were an arbitrary interference with Ms Massey's rights. I do not think that such a conclusion can be drawn from reference to a single tenancy, involving what were notoriously protracted and complicated proceedings.
10. In this case, the facts speak for themselves. The history of the proceedings demonstrates that although Ms Massey was incarcerated in May 2011, she was not given notice to vacate the premises for 6 months. She was then given a 26 week notice to vacate. When she asked for an extension of time of three months to await the outcome of her criminal appeal, it was granted. When the matter came before the Tribunal, the hearing was adjourned until after the outcome of the appeal was known.
11. The Commissioner had taken all steps required by law to recover possession of the property. There had been no declaration by the Supreme Court that any of those steps were unlawful, invalid or of no legal effect.
12. Against this background, I was not satisfied from the evidence and submissions put by the respondent that the making of the order for termination and possession would in any way amount to an unlawful or arbitrary interference with the rights of Ms Massey or her son.
13. Accordingly, I advised the Commissioner that I did not require further evidence or submissions on the HRA aspect of the matter.
14. Turning to the other matters relevant to the exercise of discretion, I considered the difficult circumstances Ms Massey and her son would be placed in if it transpires that she is granted bail. These difficulties may not arise in the near future - it is entirely possible that Ms Massey will be incarcerated until the end of the non-parole period of her sentence. If the difficulties do arise, Ms Massey, if placed on the priority housing list, can be expected to face an approximately 128 day wait before housing is available to her in the area of her choice.
15. It is relevant also to consider the position of the Commissioner with over 3000 applicants awaiting public housing, almost 300 of these being on the priority housing list. It is not unreasonable to conclude that at least some of those applicants for priority housing are currently experiencing difficulties of a similar level of seriousness to those that Ms Massey and her son may potentially encounter.
16. The premises have for all intents and purposes been vacant for two years - held against the possibility that Ms Massey may be released on bail.
17. After considering all of these factors, I was satisfied first, that it was not appropriate to continue to adjourn these proceedings until after the outcome of the application to the High Court was known[7], and secondly, that in all of the circumstances I should exercise the discretion to make a termination and possession order in these proceedings.

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

[1] Canberra Fathers and Childrens Services Inc & Michael Watson (Residential Tenancies) [2010] ACAT 74;

Thornthwaite and Commissioner for Social Housing in the ACT (Residential Tenancies) [2012] ACAT 11

[2] The decisions of the ACAT in Thornthwaite and Canberra Fathers and Children Services Inc proceeded on the basis that the ACAT was a public authority, and comments in those decisions should be approached with that reservation in mind.

[3] Director of Housing v Sudi [2011] VSCA 266; Director of Housing (Vic) v Sudi

[2010] VCAT 328

[4] Manchester City Council v Pinnock (Secretary of State for Communities and Local

Government and another intervening) [2010] UKSC 45

[5] Commissioner of Housing of the ACT v Smith [1995] ACTSC 17; Commissioner for Social Housing v Eastman;

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

[7] A course which neither party had urged upon the Tribunal, but which I nonetheless considered.