On 19 August 2009, police executed a search warrant at the rented premises. TK was arrested. Police seized $470 together with a mobile telephone. In a Record of Interview TK made partial admissions to trafficking in heroin to support his own drug addiction.

On 9 February 2010, TK pleaded guilty to 4 counts of trafficking (only 3 of which are relevant to these proceedings) and 1 charge of possession of the proceeds of crime. TK was convicted on all counts and placed on an 18 month Community Based Order.

On 12 March 2010 the landlord served the tenant with a Notice to Vacate the rented premises pursuant to s 250 of the Residential Tenancies Act 1997 (the "RT Act". On 22 March 2010 an application for possession was made by the landlord alleging (as amended) that on 15 July 2009 and 7 and 11 August 2009 the tenant used or permitted the rented premises to be used for an illegal purpose, in this case the trafficking of heroin.

The application for a possession order was opposed by the tenant on the grounds that:

• (a) the service of the Notice to Vacate and subsequent application to the Tribunal for a possession order, were made in breach of the landlord's obligations under s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 ("the Charter") and so could not provide the basis for an application for possession and

• (b) the landlord could not prove the grounds for service of the notice to vacate.

The landlord submitted during a preliminary hearing held on 22 July 2010 that the tribunal did not have jurisdiction to entertain arguments based on s. 38(1) of the Charter. I found against the landlord and made the following declaration (written reasons for the declaration were provided)

"The tribunal has jurisdiction to determine whether an application made pursuant to provisions 250 and 330(1) of the Residential Tenancies Act 1997 has been made in breach of the applicant's obligations under s. 38(1) of the Charter of Human Rights and Responsibilities Act 2006"

1. In making the declaration I followed the decision of Justice Bell in Director of Housing v Sudi [2010] VCAT 328 where (at [121]) His Honour said:

"If making the application itself is "unlawful" under s.38(1) of the Charter, it is not effective to commence a valid application to the tribunal. In consequence, the tribunal has no jurisdiction to determine the application and make the possession order"

1. Accordingly the first matter for consideration by me in these proceedings was whether service of the notice to vacate and the subsequent application to the tribunal were unlawful by virtue of the operation of the Charter

Was service of the notice to vacate and/or the subsequent application to the Tribunal in breach of the landlord's obligations under s. 38(1) of the Charter?

1. Section 38(1) of the Charter reads as follows**:**

(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

1. It was common ground between the parties that the landlord is a public authority and is accordingly required to comply with s 38(1) of the Charter.

2. The parties further agreed that the relevant human right was the right to a home, as contained in s 13(a) of the Charter which reads as follows:

Not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with

The rented premises are the tenant's home, he having resided in them under a tenancy agreement entered into with the landlord on 9 February 1998.

The tenant submitted that the landlord in exercising its discretion whether or not to issue a notice to vacate was:

• (a) prohibited from acting in a way that was incompatible with human rights and
  • (b) required to give proper consideration to TK's human rights in making the relevant decisions.

The tenant submitted that these are separate and distinct obligations which the tribunal must consider independently in determining whether the landlord fulfilled its obligations under the Charter. It was submitted that compatibility is a broader concept than the requirement to give proper consideration to rights in making relevant decisions and that I would be in error if I were to fail to consider it.

The landlord submitted that no rights were engaged until the landlord made the decision to serve the notice to vacate (and then made the application for possession which enlivened the tribunal's jurisdiction). Accordingly no s. 38(1) obligation arose until the Charter right was engaged. It was submitted that the interpretation argued by the tenant ran contra to the plain wording of the section which uses the word 'or" and that only the second limb of s 38(1) need be addressed, it being the only relevant consideration.

I was referred by the parties to the recent decision of Justice Emerton in Kimberley Castles v Secretary to the Department of Justice [2010] VSC 310. Castles' case provides very useful direction to the tribunal in determining issues under s 38. In that case Her Honour addressed only the second limb of s 38(1). Her Honour did so despite the fact that both limbs were squarely before the Court. I was urged by the landlord to adopt the same approach in this case.

Although I agree that in Castles' case, Her Honour only found it necessary to address the one relevant limb she did not articulate her reasons for so doing. I therefore propose, for the sake of completeness to address both limbs of s 38(1) in my determination with respect to these proceedings.

In doing so I nevertheless express some reservation about same. It seems to me quite appropriate that a tribunal whose jurisdiction is only enlivened under an enabling enactment, would be limited in its enquiries to an investigation of the decision which so enlivened its jurisdiction, rather than to a broader enquiry. There is some merit in the submissions of the landlord that s. 7(2) of the Charter aimed at assisting in the interpretation of legislative provisions, should not set out the criteria under which a public authority must justify the limitation of a Charter right to the Tribunal. The analysis as set out in Castles' case which does not rely upon a s 7(2) investigation but looks more broadly to the appropriate criteria for public authorities to consider in making their decisions would fulfil this requirement

NL gave evidence. She is a team manager for the landlord supervising 7 staff and is the manager for 198/120 Racecourse Road Flemington.

NL received (in September 2009), a Victoria Police statement/memorandum advising that heroin trafficking was being targeted within the Estate and that a search warrant had been executed on TK's premises, he being the subject of the investigation.

The Tenant Management Manual, chapter 2 - Tenancy Breaches & Dispute Resolution at 2.3.2 required that once a report was made to the landlord about unlawful activities at rented premises, that the housing officer should gather any relevant information and then contact Legal Services Branch for further clarification of the situation. NL gave evidence that she prepared a memorandum, which she forwarded to the Legal Services Branch together with the information she had received. She was advised to contact TK directly and meet with him to discuss the allegations. She was told about TK's rights under the Charter and was aware that she should not proceed with the issue of a notice to vacate under s 250 of the RT Act unless she had spoken with TK to obtain as much information as possible from him about the allegations.

NL received the advice on 8 December 2009. She then (after resolving confusion arising from an error made by Victoria Police) sent a letter to TK inviting him to an office meeting on 22 December 2009. NL said the purpose of the meeting was to address the issues raised by the allegations. TK was offered the assistance of an interpreter which he declined. He acknowledged that he understood that the landlord had received information from the police. TK admitted to trafficking heroin and stated that he had a gambling habit and was a heroin user and that he was selling only to close friends to support his habit.

NL did not ask any further details about the trafficking. She considered that she had enough information. NL discussed the legal implications with TK telling him she would take note of everything he had to say before making any decisions. The interview took 15 minutes.

Kensington Legal Centre subsequently contacted NL on 8 January 2010. The Legal Centre wished to prepare a submission on behalf of TK. NL gave evidence that she agreed to this. At this stage the landlord was still deciding whether or not to commence legal proceedings. At the time of the interview, she did not know the Legal Centre acted for TK.

The subsequent submission made on TK's behalf incorporated his bail documentation and a forensic psychologists report. It outlined that there were no drugs found on the premises, detailed TK's mental health issues, referred to an assessment having being completed by the Department of Human Services about TK's intellectual disability and heroin addiction. The Legal Centre requested that no decision be made pending the outcome of further medical assessments. This was agreed to by the landlord.

On 12 February 2010 the landlord received the further report. The assessment was that TK does not have an intellectual disability. The landlord also received further submissions from TK's legal representatives as to the outcome of TK's Magistrates' Court proceedings.

The matter was referred on 16 February 2010 to the landlord's Policy Unit for consideration of the Charter implications of the material provided.

Under cross-examination, NL gave evidence that throughout her involvement in the process she considered the Charter. She took into account what was said by TK at the interview which she considered to be very important. She also considered TK's right to his home. She was mindful that the consequence of legal action would be a potential possession order. NL was aware that TK had resided in the premises since 1998. She was aware that there had been no previous housing issues involving him, that he paid his rent regularly, had mental health issues, that he received government benefits and his first language was Vietnamese. She agreed that she did not discuss options as to how the landlord would be proceeding with him. NL prepared the notice to vacate and arranged for its service on TK on instruction from PA who was the person making the ultimate decision as to whether to issue legal proceedings.

In re-examination NL confirmed that there had been no requests made by TK's lawyers for an additional interview to take place

PA who is the housing manager for the Inner North and West region also gave evidence. He has responsibility for the management of the public housing programme through the inner city areas, consisting of some 12500 properties.

PA was advised in late September 2009 about the information received from police dated 9 September 2009. He directed NL, (through another manager), to contact the Legal Services Branch. He gave evidence that in doing so he wished to ascertain the available options for dealing with the situation. He was told that there appeared to be a case against TK for using the premises for an illegal purpose and that the allegations should therefore be put to TK. PA was aware that TK was sent a letter outlining the allegations. He was aware of the interview and contact with TK's legal representatives as outlined in the evidence of NL.

PA gave evidence that by February 2010 he had received all of the information sent to the Legal Services Branch for advice. No decision had as yet been made to issue a notice to vacate. On 16 February the Legal Services Branch forwarded the information to the Policy Branch. Still no decision was made. Through this time PA remained aware of the case and was giving it his consideration. He gave further evidence that he was giving thought to the Charter and human rights issue of the right to home. He also considered the policy of the department around illegal use of rented premises. The policy was that the landlord cannot condone its properties being used for illegal purposes. PA therefore felt that there was the potential to take action under the RT Act if the evidence supported the allegations.

PA gave evidence that he considered the tenants' right to home and that he balanced this right with his knowledge of TK's gambling and medical problems and weighed this against the housing policy to not condone illegal activity at rented premises. He said that he balanced the potential impact of trafficking within the premises and the estate with the duties of the landlord to provide quiet enjoyment and good amenity across the estate. He gave evidence as to the careful balancing of all of the considerations. PA gave evidence that being in regular contact with residents and resident groups that he also considered the concerns often voiced by residents in the Flemington area about the impact of trafficking in drugs within the landlord's properties

By late February 2010, having received both legal and policy advice and having considered the Legal Centre submissions and the other matters referred to above, PA felt the criteria to issue a notice to vacate had been met

PA did not consider a warning to be an option. He felt that where illegal activity is concerned if it had occurred in the flat that it was his responsibility to balance the issues and the information and make the decision which he did.

He did not see the need to inspect the premises. He did not consider that this would have taken matters any further.

1. NL was criticised for not arranging for a lawyer or interpreter. I accepted that TK had contacted his lawyer prior to the interview and chose to attend the interview without one. I also accept that he did decline the services of an interpreter. This evidence was completely consistent with TK's own evidence on these points.

2. NL was further criticised for the way in which the interview was conducted. I do not however consider that the Charter requires a housing services officer to have the interrogative skills of an experienced police officer or lawyer. NL did not have the interview armoury to ask critical questions distinguishing between trafficking within the rented premises compared with trafficking within the common areas. NL may well have been criticised had she gone any further with her line of questioning for doing so. I accept that TK revealed a sufficient degree of information about the offence to confirm in broad terms what the police had already said to the landlord. This was not a case where the source of the allegations was an unreliable one or where the broad facts alleged were being challenged by the tenant therefore possibly requiring greater scrutiny from the landlord

3. I accept that PA considered the legal and policy aspects of the case; he looked to the police summary and Community Based Order documentation. He read the medical reports, knew that TK's income was government benefits and assumed English may not be TK's first language. PA took into account TK's gambling problem and his admissions to drug trafficking. He was aware that if evicted it may be difficult for TK to comply with the Community Based Order in terms of dealing with gambling. He added this to the balancing mix.

4. I accept that PA made the decision to issue the notice to vacate based on all of the considerations mentioned by him and that it was only then that he gave the instruction to others to prepare the documentation for the service of a Notice to Vacate.

Did the landlord act in a way that is incompatible with a human right?

1. The first limb of section 38(1) imposes on a landlord who is a public authority an obligation to act in a way which is compatible with the right to a home.

2. The tenant submitted that I should follow the decision of Justice Bell in Director of Housing v Sudi (residential tenancies) [2010] VCAT 328 where His Honour said at [112]:

"seeking to evict Mr Sudi and Shire, and applying for the possession order specifically, severely interferes with their human rights to family and home. If not justified under s 7(2) of the Charter, this would breach both those rights and be unlawful under s.38(1)"

1. It is noteworthy that in Sudi's case the landlord refused to provide any justification, whether pursuant to s. 7(2) or otherwise, for serving the notice to vacate, asserting that the tribunal had no jurisdiction to enquire or enter the human rights arena.

2. That is not the situation in this case where the landlord, despite maintaining the Tribunal's lack of jurisdiction, has produced evidence as to the reasons behind, the justification and rationale for service of the notice to vacate and subsequent application to the tribunal to justify any limitation or interference with the tenant's rights

1. I am satisfied that the landlord has not acted incompatibly with TK's rights because (if there was an interference) it was justifiable in terms of s 7(2) of the Charter

1. The nature of the right is critical in this case. I am satisfied by the evidence that there has been no interference with the s 13(a) right because the interference was neither unlawful or arbitrary

2. The Notice to Vacate was in the relevant prescribed form, (Form 3 of Schedule 1, pursuant to regulation 8 of the Residential Tenancies Regulations 1998**).** It was addressed to the tenant, signed by the landlord's agent, specified a termination date more than the statutory minimum of 14 days required by s. 250(2) of the RT Act and specified with a sufficient degree of precision the facts said to give rise to the giving of the notice to vacate. The application to the tribunal also fulfilled the statutory criteria. It was a technically lawful application.

3. The right not to have privacy arbitrarily interfered with under s 13 of the Charter was considered by Justice Kaye in WBM v Chief Commissioner of Police [2010] VSC 219 at [57]

'In my view the adverb "arbitrarily" in section 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.

1. There is no evidence before me to suggest that the landlord acted capriciously. There was method and order in the approach adopted by the landlord to deal with the situation once reasonable information was obtained from a reliable source that drug trafficking may have been taking place at the rented premises. The landlord had good policies and protocols to be followed and these were strictly adhered to

2. I am satisfied based on the following findings that the landlord in demonstrating compliance with s. 7(2) of the Charter was also able to show that the interference was based on identifiable criteria and was not capricious. It was therefore not arbitrary nor unlawful.

1. The right to a home is an important right which should not be interfered with unlawfully or arbitrarily. This does not however translate into a right to not have any action taken against the tenant which may result in the tenant's eviction from the home. There is no such right generally within the community. A tenant in public housing who has a public authority landlord is not immune from the provisions of the RT Act which were enacted to balance the rights and duties of both landlords and tenants. The right to home is necessarily compromised by the fact that there is residential tenancies legislation in place which impacts on residential tenancies The right to home does not encompass the right to never have the home interfered with. It is a right to not have it unlawfully or arbitrarily interfered with.

2. The landlord's need to ensure that rented premises are not used for an illegal purpose constitutes an important purpose for the limitation on the right to home. The policy articulated by the landlord and the adverse effect that the illegal use of premises has upon residents in high rise estates is highly relevant. Drug trafficking being a particular concern in high density living, is an important purpose for the limitation.

1. Although an order for possession would result in the tenant's eviction if the statutory criteria were found proven, I accept that the landlord had a sound reason for the issue of the notice to vacate which was not capricious. I accept that the landlord carefully balanced the rights of the tenant and the tenant's own circumstances before making any decision to issue the notice to vacate

The relationship between the limitation and its purpose

1. The individual rights of TK have been appropriately taken into account by the landlord. I accept that there has been a proper and appropriate balancing of TK's rights and personal circumstances with the policy of the landlord. Due consideration was given by the landlord to the nature and extent of the limitation after the landlord gave TK an opportunity to respond. The process embarked upon by the landlord was an extensive process of weighing the competing individual and public interests. It will not always be an easy decision to issue legal proceedings for a public authority landlord. I am satisfied that in this case the serious allegations alleged justified the actions of the landlord and that the landlord has demonstrated proportionality in so doing.

Any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve

1. The tenant attempted to persuade me that there were other less restrictive means reasonably open to the landlord. I am not satisfied that there were. I accept that it was not for the landlord to start issuing warnings to the tenant. It was not demonstrated to me that the landlord would have the resources or ability to monitor the tenant or the tenant's activities at the rented premises. The tenant submitted that the landlord should have inspected the premises. I was unable to comprehend how that invasion of the tenant's privacy would have taken the matter any further

Did the landlord fail to give consideration to a relevant human right?

1. In turning to the question of whether the landlord failed to give consideration to a relevant human right in making the decision to issue the notice to vacate I am assisted by the analysis in Castles case where at [185] Her Honour said:

"The requirement in s. 38(1) to give proper consideration to human rights must be read in the context of the Charter as a whole and its purposes. The Charter is intended to apply to the plethora of decisions made by public authorities of all kinds. The consideration of human rights is intended to become part of decision-making processes at all levels of government. It is therefore intended to become a "common or garden" activity for persons working in the public sector, both senior and junior. In these circumstances, proper consideration of human rights should not be a sophisticated legal exercise. Proper consideration need not involve formally identifying the "correct" rights or explaining their content by reference to legal principles or jurisprudence. Rather, proper consideration will involve understanding in general terms which of the rights of the person affected by the decision may be relevant and whether and if so how, those rights will be interfered with by the decision that is made. As part of the exercise of justification, proper consideration will involve balancing competing private and public interests. There is no formula for such an exercise, and it should not be scrutinised over-zealously by the courts"

"While I accept that the requirement in s. 38(1) to give proper consideration to a relevant human right requires a decision-maker to do more than merely invoke the Charter like a mantra, it will be sufficient in most circumstances that 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 thereof for the affected person, and that the countervailing interests or obligations were identified**"**

In this case, the tribunal looks to similar considerations in determining this question as when determining whether the landlord acted in a way compatible with a human right.

I accept that the landlord did more than merely invoke the Charter like a mantra. I am satisfied that the landlord seriously turned its mind to the possible impact of the decision to issue the notice to vacate on TK's human rights and the implications thereof for TK. I am also satisfied that the landlord looked to the countervailing interests , namely the policy of the landlord in relation to the illegal use of premises which included the impact that the illegal use may have on other residents in the immediate vicinity.

I accept that after receiving information from the police the landlord sought legal advice and acted upon the legal advice as to the correct procedures to be followed including consideration of the charter. This included the request for TK to attend an interview to explain the circumstances relating to the allegations. I further accept that the landlord delayed any decision to issue a notice to vacate following a request by TK's legal representative. I accept that the landlord then considered TK's medical situation. I accept that the landlord referred the 2 submissions from TK's legal advisers to the landlord's own legal and policy areas for further consideration. This all occurred before the final decision to issue the notice to vacate was made by PA. I accept PA's evidence that he weighed up all of the information relating to the tenant's personal circumstances and the impact an eviction would have on him including the fact of his medical history and seriously turned his mind to the human rights of TK to a home under the Charter. I accept that he turned his mind to the impact of the legislative provisions of the RT Act and to the policy of the landlord to reduce the adverse impact that the illegal use of rented premises can have on the amenity of other tenants in housing estates.

Section 38(1) required the landlord as a public authority to give proper consideration to TK's human rights in making the decision to serve the notice to vacate. I am satisfied that the landlord gave proper consideration to TK's rights from the detailed manner in which the competing interests of TK and what could be described as public interests were weighed up in the briefings sent along with PA's statement that he considered TK's rights and weighed them against the rights and obligations imposed by the RT Act in making the decision

I am satisfied that the landlord was entitled to serve the tenant with a Notice to vacate and make the application to the tribunal for a possession order. I am accordingly satisfied that the tribunal has the jurisdiction to hear and determine the application for a possession order.

I turn now to the question of whether the TK used the premises in a manner contrary to the provisions of s 250 of the RT Act.

Relevant Legislative provisions of the Residential Tenancies Act 1997

1. Section 250 of the Residential Tenancies Act 1997 ("the RT Act") states that:

A landlord may give a tenant a notice to vacate rented premises if the tenant has used the rented premises or permitted their use for any purpose that is illegal at common law or under an Act

The section mirrors section 59 of the RT Act which forms part of the legislative framework dealing with the general duties of tenants and landlords. Section 59 states that:

A tenant must not use the rented premises or permit their use for any purpose that it illegal at common law or under an Act

Senior Constable P gave evidence that on 11 August 2009, the covert operative met TK on the 5th floor of the apartment building. Money was handed to TK, by the operative. TK then went elsewhere in the building and returned with the heroin. Neither TK nor the operative entered the rented premises at any time. TK's evidence was consistent with this and the summary of charges prepared by the police to which TK pleaded guilty is also consistent.

Senior Constable P gave evidence based on notes from his colleague Detective G, that on 15 July 2009 the covert knocked on TK's door. TK was not home but 1 minute later he came from the stairwell and the illegal transaction took place at the stairwell just outside his flat. This was once again fairly consistent with the evidence of TK who stressed that the covert operative did not at any time enter his apartment. The police Summary also states that the covert met with TK "outside his flat and purchased .5 grams of heroin"

Senior Constable P gave evidence that on 7 August 2009 the covert operative walked towards TK's flat. TK opened the screen door and was handed $180 by the covert. He then handed over a silver foil containing heroin. It is not known whether the covert entered the door of the flat. I accept though the evidence of Senior Constable P that TK did not on this occasion go elsewhere to purchase the drugs. His evidence was specific that the covert handed over $180 which was counted and TK then handed the foil over to the covert in his left hand. This evidence was consistent with the police Summary pleaded guilty to by TK which stated that the covert "attended at 198/120 Racecourse Road, Flemington and purchased .5 grams of heroin from the defendant (TK) for $180." TK's evidence about his activities on 7 August 2009 was evasive and lacking any credibility at all. He would not answer simple questions and finished with the remark that "it's better if they take the house back - I will go to the salvos - it doesn't matter"

The phrase "used the rented premises or permitted their use for any purpose that is illegal" was the subject of extensive submissions by the parties. I will break it down into its component parts:

1. The tenant submitted that in order to get past first base the landlord needed to establish that the rented premises were used for the purpose of the illegal activity.

2. The premises are defined in the tenancy agreement as 198/120 Racecourse Road, Flemington. The tenancy agreement distinguishes between the rented premises and the common areas.

3. It is impossible to read into these provisions the words "or common areas." The terms "rented premises" and "common areas" are separately defined in section 3 of the Act. Some sections of the legislation incorporate both when prohibiting conduct. For example section 60(2)(a) of the Act specifies that:

"A tenant must not use the rented premises or common areas in any manner that causes an interference with the reasonable peace, comfort or privacy of any occupier of neighbouring premises".

1. Had the legislature intended to include the common areas in the section relating to the illegal use of premises, it would have done so.

2. Every case will turn on its own facts. I agree with the submission of the tenant that that the evidence did not support that trafficking had taken place at the rented premises on either 15 July 2009 or 11 August 2009. Whilst it is undesirable and deplorable for trafficking in heroin to take place in or around Ministry of Housing Estates, the legislative provisions deal only with the rented premises. The offences took place, within the Estate but not the rented premises

3. However the offending which took place on 7 August 2009 is not so readily disposed of. The evidence on that occasion is that the illegal transaction took place in the doorway of the rented premises. Whether that is sufficient to constitute basis for an eviction under s. 250 requires a further analysis of the law.

Were the rented premises used for an illegal purpose on 7 August 2009?

1. In order to succeed in the application for possession, the landlord must establish that TK used the rented premises for an illegal purpose.

1. The landlord submitted that the relevant test is whether:

(a) the illegal act alleged was committed on the premises;

(b) the premises were used for the purpose of committing the illegal act and

(c) the premises were not merely the scene of the commission of the illegal act

1. I was referred briefly to 3 decisions concerned with applications for possession of rented premises on the basis of the use of the premises.

2. In Majala Pty Ltd Ltd v Ellas [1949] VicLawRp 19; [1949] VLR 104 at 106, Herring CJ stated that the words "arising out of the use of the premises for any illegal purpose" meant that there must be some connection with the use of the premises. At 107 he said:

"There is thus involved in cases coming within the sub-regulation, a use of the premises for an illegal purpose that is deliberate and designed"

1. In Abrahams v Wilson [1971] 2 WLR 923 at 928 Edmund Davies LJ also considered that there needed to be some link between the illegal act and the premises the subject matter of the application. He cautioned that it is important to "look at the circumstances very carefully before an isolated finding on a single occasion is held to constitute proof of such use". His Lordship adopted the test applied by Bankes LJ in S Schneiders and Sons Ltd v Abrahams [1924] 1 KB 301 at 310:

"I think it is necessary to show that the tenant has taken advantage of his tenancy of the premises and of the opportunity they afford for committing the offence'

1. The tenant submitted that s 250 of the RT Act engages s 13(a) of the Charter and must be interpreted in a way that is compatible with the human rights contained in Part 2 of the Charter. I was referred to s 32(1) of the Charter and the Court of Appeal's decision of R v Momcilivic [2010] VSCA 50, at 103 to emphasise that Parliament is presumed not to have intended to infringe fundamental rights "unless such an intention is manifested by unmistakable and unambiguous language"

2. The landlord agreed that the Charter applies to the tribunal to the extent that it has functions under Part 2 and Division 3 of Part 3 of the Charter, which includes the interpretation mandate in s. 32 of the Charter.

So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights

In Momcilivic's case at [75] , the Court of Appeal held that s 32(1) requires that statutory provisions be interpreted consistently with human rights so far as is possible to do so consistently with their purpose. Further at [103] that "compliance with the section 32(1) obligation means exploring all possible interpretations of the provisions in question , and adopting the interpretation which least infringes Charter rights"

The methodology adopted by the Court of Appeal therefore requires that the meaning of the relevant provision is ascertained by applying s 32(1) of the Charter in conjunction with other relevant principles of statutory interpretation.

The tenant submitted that section 250 properly construed is restricted to circumstances where the use of the premises is an essential element of the offence. I was given the examples of an illegal gaming house or brothel. It was submitted that the legislative provisions under examination in the cases cited by the landlord were not the same as section 250 and that I would be in error if I were to adopt the test proposed by the landlord. It was submitted that "illegal act" is not the same as "illegal purpose" and that the use of the word "purpose" was chosen deliberately by the legislature to convey an "object or goal" or "an intended or desired result' (Macquarie Dictionary, 5th edition, 2009) and requires planned, deliberate and intentional use of the rented premises. I was told that the word" purpose" was not superfluous and should be given meaning and effect to. It was emphasised that it was the use of the premises, rather than the conduct of the tenant which was the subject of the legislative provision, with the rented premises being used as a tool or an instrument for the illegal purpose.

I was referred to the decision of Director of Housing v Pavletic [2002] VSC 438. Smith J noted several matters relevant to the interpretation of the provision including (at 18) "the serious consequences that could flow from eviction for the tenant" and the need to avoid a "harsh or unfair result", the absence of discretion in the legislation to ameliorate harshness to the tenant and s. 35 of the Interpretation of Legislation Act 1984 and the need to advance the object and purposes of the provision. It was submitted by the tenant that I should adopt a similar approach in my interpretation of s 250. I was referred to the fact that a breach of s 59 of the Act does not entitle the landlord to issue a breach of duty notice, such that there is no ability of the tenant to rectify the breach or be issued with a warning. I was further referred to the fact that there is no power under s 331 or s 332 of the Act to dismiss or adjourn the application.

It was submitted that the purpose of s 250 is to protect the landlord from liability which they may incur in respect of the tenant using the rented premises for an illegal purpose. In adopting this approach, it was emphasised that the proceedings are civil proceedings and not designed in any way to punish the tenant which is the role of the Criminal Courts. Section 250 properly interpreted, it was submitted , is restricted to circumstances where the use of the premises is an essential element of the offence, including for example using premises as an illegal gaming house as only in such circumstances would the landlord be exposed to potential liability for offences committed by the tenant on the premises.

There has not as yet been any definitive judicial statement defining the circumstances in which a landlord may give a notice to vacate under the section.

I am persuaded that it is not sufficient that the premises are merely the scene of the commission of the crime. There must be a deliberate use of the premises for the illegal purpose. There must be some real connection between the use of the rented premises and the illegal activity alleged. It is not sufficient that there be a passing connection to the rented premises. The purpose of the legislation is not to re-punish tenants for crimes they commit, but to prevent rented premises from being used for a purpose that is illegal. This interpretation is an interpretation which is consistent with the important right to a home as articulated in s 13(a) of the Charter.

I am not persuaded however that the sole purpose of s 250 is to protect the landlord from potential liability arising from the tenant's use of the premises. It would be an extremely narrow interpretation of the provision in circumstances wherein the criminal liability on which the subject-matter of the provision is based, frequently only rests with the perpetrator of the offence. The number of instances where an unknowing landlord could also be held liable would be very limited indeed. It is not unreasonable to look to the basic definitions in the legislative framework. In residential tenancies a landlord lets premises for the use of residing in the premises as a residence, not for using for a purpose that is illegal. I have not been persuaded that s 250 is restricted to circumstances where the use of the premises is an essential element of the offence.

The distinction between the submissions of the landlord and tenant are largely of academic interest in this case. On whichever analysis I adopt I would not be persuaded that the landlord has proven the grounds under s 250 of the RT Act. I am not satisfied that the rented premises have been used by the tenant for a purpose that is illegal. I am satisfied on the evidence before me that at best the rented premises were on this occasion the scene of the commission of the crime, for which the tenant has been sentenced.

Police executed a search warrant on 19 November 2009. No additional evidence obtained connected the illegal activity to the use of the rented premises. No scales or drug paraphernalia were found on the premises. No additional foils of heroin were seized. The only items seized were $470 and a mobile telephone.

Once again I make it clear that if the legislative provisions included the common areas, my findings would have been quite different. It was clear from the evidence that the tenant was indeed using the Ministry of Housing Estate to traffick in heroin.

I am not satisfied that the rented premises were used by TK for an illegal purpose

The landlord submitted that the Tribunal's role in relation to s 32(1) of the Charter is limited to interpretation. The further steps involving a consideration as to whether so interpreted, the relevant provision breaches a human right protected by the Charter and if so the application of s 7(2) of the Charter to determine whether the limit imposed on the right is justified are for the Supreme Court alone to determine under s 36. I light of my above findings I do not need to address this issue.

Having made these findings it is not necessary for me to consider the submissions of the parties with respect to the interpretation of s. 330 of the RT Act. I have not been satisfied that the statutory criteria for the making of the possession order has been met.