Victorian Civil and Administrative Tribunal|2010-12-16

The applicant became aware that the respondent's mother had passed away, that the respondent was residing in the property and that she did not intend to return the keys. In response, on 19 May 2010 the applicant served a notice to vacate on the respondent as her mother's next of kin. That notice, served under section 228 of the Residential Tenancies Act 1997 ("RT Act"), had the effect of bringing the respondent's mother's tenancy to an end.

As the respondent continued to stay in the property, on 4 August 2010 the applicant made an application to the Tribunal for a possession order under section 344 of the RT Act. The application was made on the basis that the respondent was not a tenant under a tenancy agreement and she was occupying the Keilor Downs house without the applicant's licence or consent.

The respondent sought review of those orders. The application for a review hearing was granted on 8 September 2010 and the orders made on 13 August 2010 were suspended pending a further hearing by the Tribunal.

The hearing before me was a re-hearing of the applicant's application for a possession order.

The sole matter in issue is whether, in serving the notice to vacate and making the application for possession to the Tribunal, the applicant breached the Charter of Human Rights and Responsibilities Act 2006 ("the Charter"). If so, then in accordance with the decision in Director of Housing v Sudi,[1] those decisions are unlawful.

It is agreed between the parties that, if I find that there was no breach of the Charter, then the order for possession is to be made as the respondent does not challenge either the validity of the notice to vacate which had been served or the applicant's entitlement to an order for possession under the RT Act.

The applicant has lodged an appeal from the decision in Sudi and maintains that it was wrongly decided. However, it agreed that the Tribunal ought to decide this matter as if the decision in Sudi was correct as to jurisdiction and applies here.

When the applicant issued the notice to vacate and made the application for a possession order, it failed to give proper consideration to the respondent's human rights and so acted unlawfully under section 38(1) of the Charter.

When the applicant took steps to issue the notice to vacate and make the application for possession, it acted incompatibly with the respondent's human rights and so acted unlawfully under section 38(1) of the Charter. The respondent says that the actions were incompatible with the respondent's human rights in part because those actions cannot be justified under section 7(2) of the Charter.

The human rights which arise are the right to protection of family and home (section 13(a)) and the rights to protection of family and children (section 17).

The applicant says that there has been no breach of the Charter because:

It could not reasonably have acted differently or made a different decision and so is protected by section 38(2) of the Charter.

If that position is not accepted, that proper consideration was given to the respondent's human rights. Evidence about the decision making process was called to support this contention.

In any event, the right to family and home protected under section 13(a) had not been engaged because the applicant had not acted unlawfully nor arbitrarily.

If there had been any action taken which is incompatible with the respondent's human rights, it was demonstrably justified under section 7(2) of the Charter.

Several matters were not in dispute. Firstly the parties agreed that the applicant is a public authority bound by the Charter and section 38 in particular. Secondly the applicant conceded that from the time the respondent moved into the Keilor Downs house in around March 2010, it was her home within the meaning of that word in section 13(a) of the Charter. I understood that concession to also extend to the respondent's daughter, Tiffany.

None of these issues can be determined without reference to the relevant factual circumstances. Evidence was given by the applicant's officers involved in this matter, Belinda Dorian, a housing officer with the applicant's Sunshine Housing Office, and Tracey Bennett, Team Manager of the Sunshine Housing Office. Ms Dorian had primary carriage of this matter and Ms Bennett supervised Ms Dorian. Their evidence related in part to the decision making process and in part to the applicant's policies which were applied in this case. The respondent also gave evidence. Documents from the applicant's files were also before the Tribunal.

I will describe the respondent's circumstances first and refer to the other evidence where relevant to the issues being discussed.

The relevant evidence about the respondent's background and circumstances was undisputed and is based on the respondent's evidence before the Tribunal, that of the applicant's officers and the documentary materials produced by the parties.

The respondent had lived with her mother in the Keilor Downs house from around the ages of 10 to 14. In the period before March 2010 the respondent visited her mother there and sometimes stayed for short periods. The respondent regarded the Keilor Downs house as the family home.

In 2000 the respondent had been a tenant of the applicant living in a property in Corio. She left that property in the same year owing the amount of $2,636.33 for rent and maintenance charges. Between 2004 and 2006 she rented privately living with her four children. After 2006 the respondent was homeless staying with friends and others, couch surfing.

In October 2008 the respondent applied for an early housing allocation with the respondent. Early housing allocation refers to a category the applicant uses to prioritise the provision of housing to eligible persons. In the respondent's case, her eligibility turned on her meeting the requirement that she was living in insecure housing (which means transitional, emergency or crisis housing or living temporarily with friends or relatives) and she could not access alternative housing. The early housing category is the fourth category of the seven housing categories used by the applicant to determine in what order persons are housed. Category one persons are regarded as the most urgent and category seven includes all people who do not qualify for other categories. Each category ranks persons approved for that category of housing based on the date on which they applied.

In January 2009 the respondent entered into a tenancy with the Salvation Army but she moved out of that property in August that year as it was too far away from friends and family. She again became homeless.

By November 2009 the respondent had been approved for early housing through the applicant and she had nominated the Werribee and Geelong North districts as preferred locations.

In July 2010, after the respondent moved into the Keilor Downs house and had been served with the notice to vacate, the respondent was telephoned by the applicant's Geelong Housing Office with an offer of a four bedroom house in Geelong. The respondent was told that, in order to accept the offer she had to make a payment of $200 towards the debt she had incurred in 2000. The respondent told the Tribunal that she did not have the money at that time. She did not raise the offer with her legal representatives at that time and did not seek assistance to raise the funds. The applicant's Geelong Housing Office unsuccessfully tried to contact the respondent again about the offer. On 29 July 2010 the applicant withdrew the offer of the Geelong house due to the lack of contact. This meant that the respondent was removed from the public housing waiting list.

During the period 2006 to October 2009 the respondent's four children had lived with their father. Before the Tribunal was a statutory declaration sworn by him in November 2008 stating that the respondent could have residential access to the children if she had suitable housing. That statutory declaration assisted the respondent in being approved by the applicant for early housing. In October 2009 Tiffany's relationship with her father broke down. She could not live with her mother then as her mother was homeless so she stayed with her aunt and uncle. She missed four to five month's school in that time. The other children remained with their father.

The Tribunal was informed that in September 2010 interim orders had been made by the Family Court which allowed the respondent to provide residential care for her children 35% of the time.

The Tribunal was told that, in addition to her history of homelessness, the respondent had experienced substance abuse and domestic violence. She receives income support through Centrelink.

When considering whether a public authority has acted incompatibly with human rights or made a decision without proper consideration of a human right, it is necessary to decide whether the rights protected by the Charter are engaged.[2] Human rights are engaged when a public authority makes a decision affecting a person's human rights or acts towards a person in a way which apparently limits their human rights.[3]

There was no dispute that the respondent's human rights were potentially engaged when the application for possession was made.

The respondent says that her human rights were also engaged when the notice to vacate was served. In their submissions the parties agreed that the decision in Sudi did not expressly extend to a notice to vacate which is issued prior to an application for a possession order being made.[4] Despite that, the respondent argued that I should examine that step under the Charter. I understood that to be because, on its face, the notice to vacate was addressed to the respondent and it required her to vacate the Keilor Downs house.

I have proceeded on the basis that at the time the notice was served, the potential for human rights to be engaged arose because, by serving the notice to vacate, the applicant made it clear that it was not willing to transfer the respondent's mother's tenancy to the respondent and it called on the respondent to leave what she regarded as her home.

I do note though that, taking into account the terms of section 228 and the fact that the respondent's mother was the sole tenant, the purpose of serving the notice was to bring the respondent's mother's tenancy to an end. The service of that notice was not a prerequisite for the making of the application for possession under section 344 in respect of the respondent. Accordingly, within the framework of the RT Act, strictly speaking the notice to vacate was concerned with the respondent's mother's tenancy rather than the respondent's occupation of the Keilor Downs house.

Nevertheless I have considered the issues on the basis that each of the notice to vacate and the application for possession may have engaged the respondent's human rights.

Section 13(a) of the Charter - the right to family and home

(a) not to have his or her privacy, family, home or correspondence

The issue raised by section 13(a) is whether there was an unlawful or arbitrary interference with the respondent's home and family, being her daughter Tiffany and her three other children for whom she intended to provide residential care.

I am satisfied that the applicant acted lawfully under both sections 228 and 344 of the RT Act when the application for possession was made. As to section 344, in Sudi Bell J said:

"I think the provisions clearly and unambiguously show the legislature intended to allow a person who was legally entitled to possession of the premises to make application for and obtain an order for possession against someone in occupation without licence or consent, even if that meant evicting them from their home, as it usually would. Although the word 'entitled' might, in another context, be capable of having a more general meaning, I think here the word relates only to the applicant's possessory entitlement in terms of law of property or other law of that kind."[5]

The applicant drew my attention to cases which have dealt with a property owner's entitlement to take action against a person who is, without any right to be, in actual possession of a property.[6] On its face section 344 of the RT Act provides a mechanism for a landlord in Victoria to exercise that right.

While not disputing the approach taken in Sudi, the respondent argued that the applicant had acted unlawfully because it had not acted in accordance with the objects of the Housing Act 1983 ("Housing Act").

The Housing Acts, amongst other things, establishes the office of the applicant. The objects of that Act include ensuring that every person in Victoria has adequate and appropriate housing at a price within his or her means by encouraging the provision of well maintained public housing of suitable quality and location and distributing Government housing and financial assistance according to need.[7]

The respondent argued that, where she had been approved for early housing and had been offered a property and where the Keilor Downs house was suitable for her needs, the decisions to serve the notice to vacate and to apply for a possession order were not made for proper purposes when regard is had to those objects.

The applicant relied on the policies which it applies to give effect to the objects of the Housing Act. As to the respondent's personal circumstances, the applicant contended that the fact that the respondent had been approved for early housing did not mean that she was entitled to any property in Victoria that corresponded with the type of housing for which she had been approved.

It is apparent from the policies of the applicant that were before the Tribunal, that a system has been designed with the aim of ensuring that every person in Victoria has adequate and appropriate housing at a price within his or her means and that housing is allocated according to need. That system recognises that there are limits on the number and types of houses available and sets criteria for the allocation of the available houses. I have described above the category the respondent was approved for and where it falls within the overall categories used by the applicant.

The policies recognise that housing should be allocated in accordance with the time at which applications for the various categories were made. The policies show that there is a capacity to recognise particular circumstances and changes to them thereby providing flexibility. The combination of the category approval system and the application of a date related waiting list ensures that there is a transparent and fair system of allocation. No doubt improvements could be made to this system but I am satisfied that, in so far as it applied in this case, it establishes a clear set of criteria which were applied by officers of the applicant.

No criticism was made about the policies themselves or the manner in which the respondent's application for early housing had been dealt with by the applicant. The applicant's counsel gave evidence from the bar table, which was not challenged and about which sworn evidence was not sought, that in 2006 the applicant's policies were reviewed in light of the Charter and that changes had been made and continue to be made to ensure that they comply with the Charter.

As I understand the argument, the respondent seeks to rely on the policy principle that those in most need ought to be housed first but she does not accept the application of other aspects of the policy. What the respondent's argument does not take into account is the fact that the policy allows for applicants for public housing to nominate where they wish to live and for the applicant to then offer housing consistent with those selections. The alternative would be for applicants for housing being faced with the prospect of having to accept an offer of housing anywhere in Victoria or losing their opportunity to be housed. Such a system would raise serious questions about human rights.

The effect of the respondent's argument is that, as a result of a person seeking housing self selecting a property with the same features as one he or she has been approved for or offered, the applicant would be compelled to allow that person to stay despite the fact that he or she may be lower on the list for that area as compared with others. The respondent referred to the applicant's obligation to house those determined to be most in need. The evidence before the Tribunal was that, for the Keilor Downs area, the respondent had not been determined to be the most in need - in fact she would have been ranked around number 99 at the relevant time.

The respondent's evidence was that she had selected the Geelong North as a preferred location area as she had been told she would be allocated housing sooner in that area. This shows that the respondent understood that the time taken to be allocated housing depended, at least in part, on the area nominated. The evidence was that the respondent never nominated the Keilor Downs area as one in which she sought public housing.

Taking into account the objects of the Housing Act and the manner in which the applicant manages available housing in various locations in Victoria, I do not consider the applicant's decisions to serve the notice to vacate and to seek a possession order in respect of the Keilor Downs house were made unlawful because the respondent had been approved for a similar form of housing in another area.

The service of the notice to vacate and the making of the application for possession were each lawful.

In WBM v Chief Commissioner of Police[8] Kaye J considered section 13(a) of the Charter. Both parties agreed that the decision in WBM was binding on me as to the meaning of the word "arbitrary".

At paragraph [51], His Honour said that "arbitrary" is a word of common use which "ordinarily denotes a decision or action, which is not based on any relevant identifiable criterion, but which stems from an act of caprice or whim." At paragraph [57] he said, in conclusion:

"For the reasons which I have already set out, in my view the adverb "arbitrarily", in s 13(1) of the Charter, is to be construed in its ordinary English meaning, namely as denoting an interference with the right of privacy which is capricious and not based on any identifiable criterion or criteria."

The respondent placed reliance on Kaye J's reference to a decision of Vickery J in Nolan v MBF Investments Pty Ltd in which Vickery J referred to The Oxford Dictionary and Thesaurus meaning of "arbitrary" as being "based on or derived from uninformed opinion or random choice; capricious; despotic".[9]

The respondent said that the opinion of the applicant was uninformed as the applicant had failed to contact the respondent and make enquiries about her particular circumstances before serving the notice to vacate and making the application for possession. The respondent also said that, at the time the application for possession was made, the applicant had failed to take into account the information about the respondent's circumstances set out in correspondence from her legal representatives dated 8 June 2010. It was said to be arbitrary to decide to remove the respondent from the Keilor Downs house when it had the same features as the Geelong house she had been offered.

The evidence showed that the officers of the applicant involved in this matter, Ms Dorian and Ms Bennett, did have information about the respondent's circumstances sourced from their computer records. That information included the following matters: that she had not been registered with the applicant as a resident of the Keilor Downs house since 1991; that she had children but they were not aware that Tiffany was residing in the house with her mother; and that she had been approved for early housing allocation.

Before deciding to issue the notice to vacate, Ms Dorian considered whether the respondent met the criteria for having her mother's tenancy transferred into her own name. The applicant's policies allowed for such a transfer where a sole tenant has passed away. The circumstances to be taken into account included a requirement that the potential transferee had been registered with the applicant for a period of 12 months. The policy also took into account whether the potential transferee had connections with the area and would otherwise experience hardship. All tenants of applicant properties are required to register all persons residing in the property. That information is required to allow the applicant to know how many people live there and some details about them as these matters affect the rental to be paid. The transfer policy recognises the position of a person who is not a tenant under a lease but who has lived at the property for at least 12 months and who may not otherwise have an entitlement to remain after the sole tenant passes away. Here, because the respondent had not been registered as living at the property, transfer was not regarded by Ms Dorian as an option. Not only was the respondent not registered at the property, she had been living there for around only three weeks when her mother passed away.

At the time the decision was made to make the possession application, Ms Bennett were aware that the Geelong house had been offered to the respondent but were not aware that the offer had been withdrawn. Ms Dorian and Ms Bennett gave evidence that the offer of the Geelong house was not a matter they took into account particularly as their focus was on bringing the tenancy of the respondent's mother to an end in accordance with section 228 of the RT Act and removing the respondent from the Keilor Downs house on the basis she had no licence or consent from the respondent to be there. Their evidence was that they were aware of the hardship which would be experienced by a person in the respondent's position but that had to be balanced against the aim of housing persons according to need as determined by reference to the policies.

The evidence was that the 8 June 2010 letter was not seen by Ms Dorian and Ms Bennett as it was misdirected to another Housing Office. Ms Bennett's evidence was that, even had she and Ms Dorian known about all of the matters which were before the Tribunal, the decision would have been the same as that is what was called for by the applicant's policies and as a result the underlying object of housing persons according to need based on their comparative dates of application.

I accept the applicant's argument that the definition of "arbitrary" adopted by Kaye J is that set out in paragraph [57] of His Honour's decision. Even if it were wider and included the words used by Vickery J, I am not persuaded that the applicant was uninformed in this case merely because it did not hold all possible information about the respondent.

I accept the evidence of Ms Dorian and Ms Bennett about the information they held about the respondent and how they came to the decisions to serve the notice to vacate and to make the application for possession. I am satisfied that the decisions made and actions taken were not capricious or made at whim and arose from an identifiable criteria as contained in the policies. For the reasons given earlier and taking into account the applicant's policies as to allocation by locality, I do not regard the decision to seek to remove the respondent from the Keilor Downs house as arbitrary on the basis that she had been offered the same type of house in Geelong.

Accordingly, I do not consider it could be said that the decision to make the application for a possession order was arbitrary.

As I am satisfied that the service of the notice to vacate and the making of the possession application were neither unlawful nor arbitrary, section 13(a) of the Charter is not engaged.

Section 17(1) of the Charter - the right to protection of the family unit

"Families are the fundamental group unit of society and are entitled to be protected by society and the State."

The respondent says that she will be unable to live with her children if she is required to leave the Keilor Downs property as she will be made homeless. If that occurs then her younger three children will continue to live full time with their father and Tiffany will have to return to live with her uncle and aunt. It is on this basis that the respondent says that her family unit will be interfered with contrary to the Charter.

The respondent says that the entitlement to protection under section 17(1) builds upon the right under section 13(a) for a person not to have his or her family unlawfully or arbitrarily interfered with.

The written submission of the applicant stated that it did not accept that the decision to apply for possession limited the respondent's rights under section 17(1). However, no submissions were made in support of this proposition were made.

Neither party referred me to any authority as to the meaning and scope of section 17(1).

The Victorian cases where section 17(1) has been considered deal with quite different factual circumstances and, importantly, do not concern housing.[10] I have considered the Explanatory Memorandum to the Charter of Human Rights and Responsibilities Bill 2006, the Second Reading Speech for the Charter, the International Covenant on Civil and Political Rights 1966 ("the Covenant" being the document on which the Charter was based) and the comments made by the Human Rights Committee about the equivalent provision from the Covenant (article 23).[11] No mention of an obligation to provide housing is made when section 17(1) or its equivalent are discussed.

I understand the effect of the respondent's argument to be that, in order to meet its obligation to protect the respondent's family unit under section 17(1) of the Charter, the applicant ought to allow her to remain in the Keilor Downs house. Extrapolating this to other families in Victoria, it would mean that any family who moved into a property owned by the applicant without licence or consent would be entitled to remain whether or not they are on a waiting list or had been approved for public housing, provided that they would otherwise be homeless and as a consequence be unable to live together.

While mindful that in Re an application under the Major Crime (Investigative Powers) Act 2004 (referred to as DAS v Victorian Human Rights & Equal Opportunity Commission) Chief Justice Warren said that human rights should be construed in the broadest possible way,[12] I see nothing in the material I have reviewed which supports the respondent's position. There is nothing which indicates that the intention of either section 17(1) of the Charter or article 23(1) of the Covenant is to compel a state to make good its promise to provide protection by supplying housing to all families, including by allowing a person with no licence or consent to be in occupation of state owned property to remain.

The Human Rights Committee's notes discuss the need for states to undertake measures to protect families and report on those. I understand that to mean that the provision is directed at the laws and other steps a signatory state ought to take rather than creating separate rights for individuals such as those created in other parts of the Covenant.

Taking into account these matters and the absence of any indication by the Victorian Parliament that section 17(1) is intended to operate in this way, I do not regard section 17(1) as being engaged in this case.

Section 17(2) of the Charter - children's right to protection

Section 17(2) of the Charter says:

" Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child."

The definition of discrimination in section 3 of the Charter is that, in relation to a person it means "discrimination (within the meaning of the Equal Opportunity Act 1995) on the basis of an attribute set out in section 6 of that Act". No argument was put that the applicant had discriminated against Tiffany or the respondent's other children on the basis of one of the attributes identified in the Equal Opportunity Act 1995. In my view none are applicable.

The respondent argues that section 17(2) would be infringed in respect of Tiffany if she cannot remain in the property as she would be unable to live with her mother. Submissions were made about the effect that would have on Tiffany including on her capacity to continue to attend her current school, risks to her emotional and social wellbeing and the risk that she would face ongoing homelessness. Reference was also made to the respondent's other children being unable to live with her. These matters raise serious concerns for the welfare of all of the children. The issue is, though, whether the right in section 17(2) is engaged here.

The parties made no submissions on the meaning or scope of section 17(2). I again looked to see what guidance there might be in the Explanatory Memorandum, the Second Reading Speech for the Charter, the Covenant or the comments made by the Human Rights Committee about the equivalent provision from the Covenant.[13] None of these mentioned an obligation to provide housing.

Like article 23 of the Covenant, article 24 (which is in part the equivalent of section 17(2)), appears to be concerned with the measures to be undertaken by states to provide the described protection for children. The Human Rights Committee's comments make it clear that special laws will sometimes be required in order to properly protect children, in part to ensure that children enjoy the other rights protected by the Covenant. However, no obligation is imposed on the state to provide housing in order to see children protected.

In my view that the right protected under section 17(2) is not engaged in the circumstances of this case.

As all Charter grounds were argued, should I be found wrong in relation to my view that none of the human rights in sections 13(a), 17(1) or 17(2) are engaged, I have expressed below my views as to the other matters raised under section 38 of the Charter.

"(1) Subject to this section, 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.

(2) Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision."

The questions raised in this case are as follows:

Does section 38(2) of the Charter apply so that section 38(1) does not arise?

If section 38(2) of the Charter does not apply, did the applicant give proper consideration to the respondent's human rights when it decided to issue the notice to vacate and then make the application for possession?

If section 38(2) of the Charter does not apply, did the applicant act in a way that is incompatible with the respondent's human rights when it decided to issue the notice to vacate and then make the application for possession?

The applicant says that its actions and decisions fall within section 38(2) because, having regard to the functions, powers and duties conferred on the applicant by the Housing Act, it could not reasonably have acted differently. The applicant says that, if the Housing Act objects are properly construed, then it is clear that the applicant could not reasonably have decided not to seek possession against a person who was occupying public housing. That is because to do so would be contrary to the law and the policies and procedures put in place by the applicant to achieve the objects contained in section 6 of the Housing Act.

I am not persuaded that the consequence of the objects of providing adequate and appropriate housing to all Victorians and distributing housing according to need is that it is mandatory for the applicant to seek a possession order in all cases where it may have entitlements to do so under section 344 of the RT Act.

The applicant did not direct me to any case law or other provisions of the Housing Act to support the proposition. It did not argue that the provisions of the Housing Act cannot be read compatibly with human rights such that they amount to an override power of the type discussed in XYZ v Victoria Police.[14] In my view the argument as to the application of section 38(2) is not made out.

Section 38(1) of the Charter - was proper consideration given?

In Castles v Secretary to the Department of Justice[15] Emerton J considered the meaning and effect of section 38(1) in the context of a claim that the respondent had acted in breach of Ms Castles' right in not allowing her to access IVF treatment while in prison. Emerton J decided that a public authority would meet its obligation under section 38(1) if there is some evidence that shows the decision-maker seriously turned his or her mind to the possible impact of the decision on a person's human rights and the implications of the decision for the affected person, and that the countervailing interests or obligations were identified. While it would not be enough for a decision-maker to merely invoke the Charter, a sophisticated legal exercise is not required given that the consideration of human rights is intended to be part of the day to day work of employees of public authorities.[16]

My task is not to undertake a merits review but to determine whether the applicant complied with its obligations under section 38(1) of the Charter.[17]

The applicant contended that the evidence showed that the officers acting for the applicant had given proper consideration to the decisions made in the way described in Castles.

The respondent was critical of the applicant's decision making process in two broad respects:

The applicant had failed to consider the contents of the 8 June 2010 letter which set out the respondent's circumstances and it had failed to communicate with the respondent's legal representatives before acting, including by providing them with relevant information from its files. Further, the applicant had failed to make direct enquiries of the respondent about her circumstances.

The applicant's policies do not refer to Charter rights and so it cannot be assumed that Ms Dorian and Ms Bennett had regard to the Charter when making the decisions.

I have discussed above some of the evidence regarding the decision making process. Ms Dorian's further evidence was that she was aware that a possession order would cause the respondent hardship. She was not aware that Tiffany was living in the house also but her evidence indicated that she was aware that the respondent had children and I understood she knew that the hardship suffered by the respondent could extend to her children also. While Ms Dorian was aware of some of the respondent's circumstances, including the fact that she had been approved for early housing, she relied on the applicant's policies to guide the decision making. Ms Dorian's evidence was that she was aware of the Charter and that she understood that the policies were informed by the Charter. In her mind the main principal underpinning the polices was to ensure that those in most need are housed first.

It was apparent from Ms Bennett's evidence that she has a clear appreciation of the consequences of a possession order for a person in the respondent's position. Given her experience it appeared that in her decision making it went without saying that hardship would be caused. Balanced against that was the need to house persons in most need first and her understanding that the applicant's policies were directed to that end.

Ms Bennett spoke briefly with the respondent at the Keilor Downs house when she conducted a visit after receiving a report that the house had been left unlocked. Ms Bennett was told by the respondent that she intended to make an application for the creation of tenancy. That intention was confirmed by correspondence from the respondent's legal representatives which Ms Bennett had seen.

Both Ms Dorian and Ms Bennett were aware that the respondent had been approved for early housing. They understood what the category was for and so it may be implied that they recognised that she was regarded as vulnerable. At the time the application for possession was made Ms Bennett was aware of the offer of the Geelong house but not that it had been withdrawn. They said that the offer of the Geelong house did not change their approach. I understood their approach to be based on the fact that the respondent had no entitlement, by way of residency or through being eligible for a transfer, to the Keilor Downs house. This meant that she had to be removed because there were others ahead of her in the list. The evidence did not suggest that they decided to proceed with the possession application because they thought the respondent would be moving to another applicant owned house anyway. They said, and I accept, that was a separate matter from whether she was entitled to remain in the Keilor Downs house.

I am satisfied that Ms Dorian and Ms Bennett's evidence shows that they had an understanding that the respondent's rights to home and potentially family would be affected by the decision to issue the notice to vacate and to seek possession. I am satisfied that they balanced the respondent's private interest in remaining in the house against the public interest in housing those most in need first in accordance with the ranking system established under the applicant's policies.

Having regard to these matters, I am satisfied that the applicant did give proper consideration to the respondent's human rights and those of her children when it decided to issue the notice to vacate and then make the application for possession.

Section 38(1) of the Charter - was there action incompatible with human rights?

In Sudi Bell J found that the applicant acted unlawfully under section 38(1) because, when it sought to evict the tenant in that case and applied for a possession order, the tenant's human rights were interfered with and that interference was not justified under section 7(2) of the Charter.[18] In that case the applicant called no evidence to show that any interference was justified. Evidence was called by the applicant in this case.

Section 7(2) of the Charter says:

" (2) A human right may be subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including-

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

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

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

In DAS Chief Justice Warren said that the test of proportionality applied in international jurisprudence broadly accorded with section 7(2). That test requires that:

The measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. They must be rationally connected to the objective.

The means, even if rationally connected to the objective, should impair as little as possible the right or freedom in question.

There must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom and the objective which has been identified as of sufficient importance.[19]

The applicant says that it did not act incompatibly with the respondent's human rights. If it is found to have done so, it says that any limitation on those rights imposed by the issuing of the notice to vacate and the making of the application for possession is justified under section 7(2). In support of that position it says:

As noted by Bell J in Sudi,[20] in comparable jurisdictions human rights legislation has not been interpreted in a way which imposes unreasonable constraints on the providers of social housing when making decisions about how to manage their scarce resources.

As to the usefulness of international decisions on the question of justification, it was noted that a number of the decisions were concerned with traditional public law grounds rather than grounds based on the Human Rights Act 1998 UK ('UK HR Act") making particular reference to the decision in Doherty v Birmingham City Council.[21] Further, Doherty and related decisions suggest a relatively lenient test for justifiability in the public housing context requiring only that the applicant show that the decision to seek possession was rationally connected to the objects of administering public housing.

The Housing Act objects referred to earlier are a "powerful indicator" of the role the Parliament intended the applicant to play. In undertaking that role, it is important that the applicant be able to limit the rights of persons who, like the respondent, move into public housing without the applicant's licence or consent. In being able to apply for the removal of such persons, the applicant can act for the benefit of the person next in line for that public housing.

As to any less restrictive means reasonably available to achieve the purpose, the applicant argued that the only other option available was to not have the right to seek possession. While the respondent argued that the alternative was to grant a tenancy, the applicant said that was not what section 7(2)(e) of the Charter was directed to: it was not concerned with making a different decision but rather with whether the legislative provision allowed for or could be framed in such a way that it did not impose the identified limit on human rights.

The standard for establishing justification is high, the evidence must be cogent and persuasive and the limitation must be reasonable in the sense of being a proportionate and non-excessive response to the issue in question.

Reference was made to Bell J's comments in Sudi about the relevance of English and European Court of Human Right's decision in looking at justification on the basis that section 13(a) and section 7 together are substantially similar to article 8 of the UK HR Act and article 8 of the European Convention on Human Rights ("the Convention").

On the broad question of whether the limitation said to be imposed on the respondent's human rights is demonstrably justified in a free and democratic society, it was argued by reference to comments made by the European Human Rights Committee, that an interference will be considered necessary in a democratic society for a legitimate aim if it answers a pressing social need and is proportionate to the legitimate aim pursued. While public authorities are able to make the initial assessment as to the necessity for an interference with a human right, a margin of appreciation is allowed. However, decisions in Buckley v United Kingdom[22] and Connors v United Kingdom[23] indicate that the margin will be narrower where the right at stake is crucial to the individual's effective enjoyment of intimate or key rights.

It follows then, that a public authority can only determine whether the interference is justified after taking into account the affected individual's rights and interests. It was argued that the applicant failed to do so because it failed to take into account the respondent's circumstances, including her human rights. The basis for that position was discussed earlier. In addition, as a result of not providing to the respondent's legal representatives information from its files, the respondent argued that the decision making process undertaken was not fair because the only procedural safeguard available to the respondent, being recourse to the Tribunal, had been compromised.

On the last point raised by the respondent, I note that no request was made on her behalf for an adjournment to allow time for the documents before the Tribunal to be reviewed, nor was any request for further material made.

Both parties referred me to Bell J's comments in Sudi about the potential relevance of UK and European Court of Human Right's decisions on the broad question of justification. I was not taken to the cases in detail, rather general principles were raised.

The cases all concerned the broad equivalent of section 13(a) contained in the UK HR Act, the Covenant or the Convention. Each of those equivalent provisions (which are all expressed in the same terms) provide that the rights to respect for private and family life, home and correspondence are subject to the proviso that there will be no interference with those rights by a public authority if the interference is in accordance with the law and is necessary in a democratic society having regard to specified matters.[24] This proviso is similar in terms to the introductory words of section 7(2) of the Charter.

The cases offer broad guidance as to matters to be considered when deciding whether an action of a public authority which would otherwise be an interference with human rights is justified. However, as the factual circumstances in those cases are so different to those before me[25] and as the statutory regimes are also very different,[26] they offer limited direct assistance on the particular issues raised by this case.

Following is a summary of the matters coming from those cases which I have regarded as relevant to the consideration of whether the applicant's actions here were justified:

Serving a notice to vacate and making an application for possession interferes with Charter rights under sections 13(a) and 17, if those rights are engaged.[27]

An interference with a human right may be necessary in a democratic society if it answers a pressing social need and is proportionate to the legitimate aim pursued.[28]

It is not for the Tribunal to undertake a merits review of the particular decision. However, the interests of the community represented by the public housing allocation system which applies in Victoria are to be balanced against the respondent's right to respect of home and family. The importance of those rights for the respondent must be taken into account in determining the scope of the margin of appreciation allowed to the applicant to determine how to manage its responsibilities in respect of housing.[29]

While the margin of appreciation allowed to state authorities such as the applicant is narrower where intimate or key rights are at stake, in housing the decision of the relevant domestic authority as to what is necessary in a democratic society is accepted unless the judgment is "manifestly without reasonable foundation" when compared to the legitimate aim pursued.[30]

Although the particular vulnerabilities of the respondent may be taken into account, the international jurisprudence on the equivalents of section 13(a) does not recognise a right to be provided with a home. Whether a state provides funds to enable everyone to have a home is a matter for political not judicial decision.[31] Respect for private and family life does not require the state to provide every one of its citizens with a house.[32] The right to protection of family and home does not necessarily go so far as to allow individuals' preferences as to their place of residence to override the general interest.[33]

I will now turn to each of the matters raised in section 7(2) of the Charter.

As discussed above, it is my view that neither sections 13(a) nor 17 are engaged. Assuming that is incorrect, I have proceeded on the basis that the rights to home and family as referred to in those sections may be regarded as paramount in a free and democratic society. The role of the family is central to the way in which our society operates and it is presumed that, whenever possible, a family, however comprised, should live together. In order to achieve that end, a secure home is best. It is apparent from the personal circumstances of the respondent that for her a secure home in which she can offer care for her children is important for her own well being and that of her children.

I have referred to sections 228 and 344 of the RT Act. Section 228 provides a mechanism to bring a tenancy to an end when a sole tenant has passed away, in this case, through the service of a notice to vacate addressed to the deceased tenant's next of kin and the expiration of 28 days. Section 344 entitles a landlord to apply for an order of possession where a property is occupied by a person who is not a tenant and who does not have the landlord's licence or consent to occupy.

Earlier I referred to the common law protections offered to landlords to obtain possession of their properties where they are occupied by persons without a right to do so. The law has long protected owners of property from such persons interfering with their right to possession and control of their own properties.

Sections 228 and 344 apply to both public and private landlords. Neither provision is specially linked to the Housing Act and the position of persons in occupation of public housing. Equally the power of the landlord to act under those sections is not limited by the fact that the property in issue is owned or managed by the applicant. If the position of the applicant as a provider of public housing is taken into account, the importance of the limitation on human rights which arises from sections 228 and 344 has a social dimension: those sections provide tools which may be used to allow the applicant to fulfil its obligation to provide housing and distribute it according to need.

I agree with the applicant's contention that, in order to undertake the significant public interest role of providing public housing and distributing it according to need, the applicant must have the power to use the law to seek to remove persons who are not entitled to occupy public housing. The way in which this and other entitlements are used are guided by the applicant's policies rather than being dependent on individual decision maker's opinions.

International jurisprudence makes it clear that, even in jurisdictions where there is a statutory obligation on a state to provide housing for certain persons (for example the UK) the equivalents of section 13(a) read with section 7(2) of the Charter, do not of themselves create a right to state provided housing. Where there are limited resources allocated to the provision of housing for persons such as the respondent, it is for the state, here through the applicant, to determine how those resources are managed.

Section 228 brings the tenancy between the landlord and a deceased tenant to an end. The notice to vacate may also be taken as a directive to a person such as the respondent to leave the property. The nature of section 344 is to provide a mechanism for the eviction of an occupier where no licence or consent is proven. A demand for a person to leave a property or an eviction has significant consequences which are not necessarily lessened merely because the person does not have a legal basis for being in occupation. Section 344 only applies where it can be shown that the person is in occupation without licence or consent. If an application is made under that section, the person in occupation without licence or consent is necessarily in a precarious position to start with. It is likely that removal will mean the person is homeless and so all aspects of their life will be affected.

The relationship between the limitation and its purpose

I am satisfied that sections 228 and 344 are effective means to achieve the purpose of empowering landlord's to control who is in occupation of their properties.

I am also satisfied that, when taken with the applicant's role and policies, sections 228 and 344 have been used in this case in a manner which gives effect to the applicant's responsibility to manage the housing stock and determine who should be granted a tenancy for each house in accordance with its allocations policy. Without such a power, the applicant, like all property owners, would be at risk of having to allow unauthorised occupants to remain. This would be contrary to the public interest in the orderly and fair allocation of public housing resources to those most in need.

The respondent argued that the relative importance of the right to freedom from interference in the home weighs against the justifiability of its violation. I agree that the right to home and family is very important. However, in my view neither section 13(a) nor 17 of the Charter require the applicant to provide the respondent and her children with a home or allow her to select which home she would prefer. Further, the section 13(a) right to home and family is not unlimited: on its own terms it allows interference with home and family, such as through an eviction, if it is not unlawful or arbitrary. I have already expressed views about those matters.

I am satisfied that the limitation is not manifestly without foundation, it is rationally connected to the objective of, here, allowing the applicant to determine how to manage its housing stock and that the applicant has used the provisions of the RT Act in manner which is directed towards fulfilling its responsibilities to the broader community.

It is arguable that an alternative to serving a notice to vacate under section 228 is to grant a transfer of tenancy to the respondent. That is an option under the applicant's policies. The applicant's position was that, as the respondent had not resided in and been registered with the applicant for a period of 12 months, a transfer could not be granted. While in isolation the granting of a tenancy to the respondent seems to be a reasonable alternative, when the broader system of housing allocation is taken into account, the granting of a tenancy would mean that the respondent was effectively elevated in the waiting list.

Leaving the question of transfer to one side, it is correct that the granting of a tenancy is not an alternative means which would achieve the purpose of section 344. That is because section 344 is only concerned with removing an occupier.

Looking at the RT Act more broadly, it is apparent that the legislature has made provision for an alternative to the removal of an occupier such as the respondent. That alternative is enlivened when an occupier makes an application for the creation of a tenancy under section 232.

Under section 232 of the RT Act a person who has been residing in rented premises as his or her principal place of residence and who is not a party to a tenancy agreement applying to those premises, may apply to the Tribunal for an order requiring the landlord of the premises to enter into a tenancy agreement with the person. The capacity to make such an application arises where an application for a possession order for the premises has been made under Part 7 (which includes section 344) or the tenant has died and there is no surviving tenant. These circumstances clearly apply to the respondent. The Tribunal may make an order that the landlord enter into a tenancy agreement with the person under section 233. The prerequisites for such an order are that the person could reasonably be expected to comply with the duties of a tenant under a tenancy agreement to which the RT Act applies, the person would be likely to suffer severe hardship if he or she were compelled to leave the premises and the hardship suffered by the person would be greater than any hardship that the landlord would suffer if the order were made.

An application under section 232 would usually be listed for hearing at the same time as the section 344 application providing an opportunity for the Tribunal to consider the wide range of matters referred to above.

No application for the creation of a tenancy was made by the respondent, despite her legal advisers saying it would be done. As a consequence, the alternative offered by sections 232 and 233 is not available to the Tribunal in this case.

Having determined that a tenancy transfer was not appropriate in this case, the applicant was entitled to make the application for a possession order under section 344 despite the fact that it was aware that the respondent's human rights might be interfered with. That is because it had determined that the policies regarding allocation of housing ought to be applied to the Keilor Downs house. Where that application was made for the purposes which have been described and falls squarely within the responsibilities of the applicant, in my view the applicant had no less restrictive means available to it.

I am satisfied that the applicant's actions in serving the notice to vacate and making the possession application were reasonable and justified in this case.

I have reached that view taking into account the purpose of sections 228 and 344, the powers and role of the applicant and how those sections are used by the applicant under its policies. I am satisfied that section 344 has been designed to achieve the objective of ensuring landlords can remove occupiers who are in their properties without the landlord's licence or consent. Neither section 344 nor the manner in which it was used by the applicant was arbitrary, unfair or based on irrational considerations. There is no question that the respondent's human rights, if engaged, are interfered with by the applicant's actions. However, when one looks to the words of the Charter (particularly the use of unlawful and arbitrarily in section 13(a)) and the role and purpose of public housing, I am satisfied that the required proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified is established.

I have decided that none of sections 13(a) nor 17(1) or (2) are engaged in this case. If I should be found wrong about that, I have found that the applicant met the obligation to give proper consideration to the respondent's human rights in deciding to use provisions of the RT Act to remove her from the Keilor Downs house she had moved into without licence or consent. I have found that, should human rights be engaged, the applicant did not act incompatibly with the respondent's human rights as the limitation imposed by sections 228 and 344 of the RT Act are justified under section 7(2) of the Charter.

Accordingly, I find no breach of section 38(1) by the applicant.

The respondent agrees that, if there is no loss of jurisdiction arising from a breach of the Charter, the possession application was properly made and the making of the possession order was lawful. I affirm the possession order made on 13 August 2010 and the order directing the principal registrar to issue without delay a warrant of possession to be executed within 30 days.

Evidence was given that the applicant would assist the respondent with referrals and advice so she can find someone to move to when the warrant

[2] Castles v Secretary to the Department of Justice [2010] VSC 310 at paragraph [45]

[3] Kracke v Mental Health Review Board [2009] VCAT 646 at paragraph [67]

[4] Sudi at paragraphs [120] and [137]

[6] Band of Hope and Albion Consols v St George 91870) [1870] VicWABWRp 161; 1 VR (E) 183 at 190; Gravener v Singleton Equity Housing Ltd (unreported VSC, Beach J, 26 April 2994)

[9] [2009] VSC 244 at paragraph [169]

[10] Castles; Dawson v Transport Accident Commission [2010] VCAT 644

[12] [2009] VSC 381 at paragraph [80]

[14] [2010] VCAT 255 per Bell J, President

[17] Castles at paragraph [149] footnotes Lord Bingham in R (SB) v Denbigh High School [2006] UKHL 15; [2007] 1 AC 100; Sudi at paragraph [39] referring to Buckley v United Kingdom (1989) 11 EHRR 535 at paragraph [84]

[19] At paragraphs [147] - [148] referring to the decision of Dickson CJ of the Supreme Court of Canada in R v Oakes [1986] 1 SCR 103

[22] (1996) ECHR 33 at paragraph [74]

1 Everyone has the right to respect for his private and family life, his home and his correspondence. 2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

[25] For example Buckley concerned the refusal to grant planning permission in relation to land owned by the gypsy applicant on which she had lived for around 8 years and which was found to be her home; Chapman v United Kingdom [2001] ECHR 43 concerned a family of gypsies who had occupied land they owned for around 16 years and who had been refused planning permission; Connors concerned a family of gypsies who had occupied the same plot of land for around 19 years; Doherty v Birmingham City Council [2008] UKHL 57; [2009] 1 AC 367 concerned the removal of gypsies who had been resident at a site for 17 years

[26] Many of the UK related decisions arise in circumstances where the local authority had a statutory obligation to provide housing or other assistance. For example Kay v Lambeth Borough Council [2006] UKHL 10; [2006] 2 AC 465 House of Lords and [2010] ECHR 1322; R v London Borough of Enfield Ex Parte Bernard. [2002] EWHC 2282 (Admin); J v London Borough of Enfield [2002] EWHC 432 (Admin) See also the decision in Blecic v Croatia (2004) ECHR 397 at paragraph [61]

[27] See Sudi at paragraph [34]; McCann v United Kingdom [2008] ECHR 385 at paragraph [47]

[29] Buckley at paragraph [74] - [76]

[30] Connors at paragraph [82]; see also Chapman at paragraph [90] - [92] and Blecic at paragraph [61]

[31] Chapman at paragraph [96] - [99]

[32] R v London Borough of Enfield Ex Parte Bernard [2002] EWHC 2282 (Admin) at paragraph [32]

Human Rights and Responsibilities Act 2006

Crime (Investigative Powers) Act 2004

Opportunity Act 1995

Director of Housing v KJ (Residential Tenancies) [2010] VCAT 2026 (16 December 2010)

Director of Housing v KJ

At a glance

Court

Decision date

Source

Judgment (188 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (1)

Director of Housing v KJ (Residential Tenancies) [2010] VCAT 2026 (16 December 2010)