Fisher v Aboriginal Hostels Ltd & Anor [1998] VSCA 130

Rooming Houses Act 1990, ss.3, 6(1) & (2), 12(2), 14, 17(1), 18(1), 19, 30, 35(2), 36(1) & (2), 38, 41(10).

2. The result of this appeal depends entirely upon the meaning and application of certain expressions in the Rooming Houses Act 1990, which was evidently designed to provide, among other things, a degree of protection to a "resident" of a "rooming house". Section 5(1) of the Act provides that "... a resident has a right to reside in the room which he or she occupies and a right to use facilities". The Act was repealed by s.530 of the Residential Tenancies Act 1997, which came into operation on 1 July this year. It will be convenient, however, to discuss the 1990 Act as though it is still in force. Since we were not referred at all to the 1997 Act I shall mention it no more.

5. The respondent, Aboriginal Hostels Ltd., was incorporated in the Australian Capital Territory in 1973 as a company limited by guarantee. Its principal object, as set out in its memorandum of association, is -

"To provide, acquire, take over, establish, equip, maintain, conduct, control, manage or supervise hotels, hostels, housing and other forms of accommodation (hereinafter referred to as 'hostel') in Australia for the accommodation of Aboriginal and Torres Strait Islander people."

The respondent conducts a hostel known as the W.T. Onus Hostel at 75 Westgarth Street, Northcote. As I shall indicate in a little more detail later on, this is one of many such establishments that the respondent conducts throughout Australia.

10. During October 1995 the appellant, Kirkland Charles Fisher, and Elizabeth Gabrielle Laguerre, both of whom are Aboriginal, began to occupy a room at the W.T. Onus Hostel. According to their registration card they were to stay for approximately ten weeks or until they found a flat. They remained for many months. Following complaints about his behaviour towards staff, the appellant was evicted from the hostel by the respondent on 3 August 1996 and Ms Laguerre left with him. Thereupon the Rooming House Tenants' Association made an application to the Residential Tenancies Tribunal on the appellant's behalf. It was there contended that his eviction had been contrary to the Rooming Houses Act - presumably s.5 in particular - and that he was entitled to an order for reinstatement or compensation for his wrongful removal from the hostel, or both. The statutory provision (if any) which authorised the approach to the Tribunal was not clearly identified to us by counsel. It was and is common ground, however, that the success of the application depended on its being shown that the hostel was a "rooming house", that the appellant was a "resident" and that the respondent was a "rooming house owner" within the meaning of the Rooming Houses Act, and that the Act applied to them all respectively. After hearing some evidence and argument the Tribunal determined on 26 August 1996 that the appellant was a resident in terms of the Rooming Houses Act and (it seems) that the application was one in respect of which the Tribunal had jurisdiction. The application was then adjourned at the request of the respondent, apparently to enable the determination to be tested. The respondent's representative sought from the Tribunal written reasons for the decision but these were refused and have not been provided.

13. By originating motion filed on 24 October 1996 the respondent (as plaintiff) sought relief by way of judicial review against the appellant and the presiding member of the Residential Tenancies Tribunal. A variety of relief was sought but in the event Hedigan, J. ordered, apparently by way of declaration, that the Tribunal did not have jurisdiction to hear the application; and his Honour ordered that its order made on 26 August 1996 be set aside and awarded costs against the appellant. Hence this appeal. Evidence before the learned judge was wholly by affidavit, upon which his Honour decided essentially that the hostel from which the appellant had been evicted was not a "rooming house" as defined by the Rooming Houses Act. I think it necessarily followed that the respondent was not relevantly a "rooming house owner" and thus that the appellant was not a "resident" in whose favour the Act operated.

16. It is necessary to refer to the relevant definitions that are set out in s.3 of the Rooming Houses Act; and it seems logical to consider them in the following order -

"'rooming house' means any building - (a) in which there is or are any room or rooms available for occupancy upon payment of rent; and (b) in which the total number of people who in any way may use the room or rooms is not less than 4;" "'room' means any room or rooms (whether free-standing or not) in any building, which room or rooms is or are used or intended to be used for the purpose of residence by any occupier or occupiers other than members of the family or employees of the owner having a right to the use thereof, together with a right to use in common with others any facilities in the building, but does not include - ... (d) any part of or any room or rooms in any premises to which the Health Services Act 1988, the Mental Health Act 1986 or the Intellectually Disabled Persons' Services Act 1986 applies or any other premises providing temporary refuge accommodation; or ..." "'facilities' means any kitchen, lounge, bathroom, laundry, garden, toilet, car parking area, storage area or any other room or area designed or set aside for common use by residents;" "'rent' means the fee paid to a rooming house owner by a resident to live in a room and use facilities, electricity, gas and fuel and includes all charges levied by the rooming house owner for services;" "'services' includes the provision to a resident by a rooming house owner of meals, linen and room cleaning services;" "'resident' means a person who takes up occupancy of a room with the consent of a rooming house owner and lives there as his or her only or main residence;"

It will be noted that five of these six are exclusive definitions. There is another non-exclusive definition - that of "rooming house owner" - which was referred to in argument. I refer to it although, on the view I take of the case, it does not loom large. It reads -

"'rooming house owner' includes - (a) where the owner conducts the business of operating the rooming house, his or her agent; and (b) where the rooming house is leased to a person who conducts the business of operating the rooming house, the lessee and his or her agent ...".

Notably, there is in the Act no definition of "owner" to embrace a person who conducts a rooming house but is neither the registered proprietor nor the lessee of it nor an agent of the registered proprietor - being, for example, a licensee or an agent of a licensee. It seems, however, that the case was conducted before Hedigan, J. - and it was ultimately conducted before us - on the footing that, if the W.T. Onus Hostel is properly to be regarded as a rooming house within the meaning of the Rooming Houses Act, the respondent is or was the "rooming house owner" referable to it.

23. The respondent's articles of association commit its business to the management of its directors, who are appointed by the Commonwealth Minister for Aboriginal and Torres Strait Islander Affairs. The respondent and the Commonwealth have agreed by deed that the Commonwealth will make available to the respondent moneys appropriated by the Commonwealth Parliament for the purpose of meeting the respondent's expenditure; that the respondent will regard itself as an instrument of the Minister for the provision of hostel accommodation for Aboriginal and Torres Strait Islander peoples and act in accordance with a corporate plan prepared pursuant to the deed; that the respondent will appoint the Australian Auditor-General as auditor; and that its staff will be appointed or employed under the Public Service Act 1922 of the Commonwealth. In accordance with its corporate plan the respondent provides a low-cost, temporary accommodation service to Aboriginal and Torres Strait Islander people throughout Australia. The accommodation is provided through 163 hostels of which 52 are operated directly by the respondent and 111 are operated by other organisations which it financially supports. The evidence discloses that by this means 1,356 hostel beds are provided each night throughout Australia - 493,584 a year. Each person occupying a bed in a hostel is charged a tariff for board and lodging according to his or her income and is provided with three meals a day, housekeeping, a safe and sound environment and recreational facilities. Hostels are staffed 24 hours a day, and the staff are usually Aboriginal and Torres Strait Islander people. Tariffs set by the respondent are calculated by balancing three factors - the cost of providing accommodation and other services, the ability of residents to pay and the benefits to the advancement of Aboriginal and Torres Strait Islander people flowing from the respondent's activities. In consequence, the respondent's receipts from tariffs paid by residents equal only a proportion of its cost of operating the hostels and providing accommodation and other services. In the 12 months ended 30 June 1995 the respondent received some $3.3 million by way of income from tariff payments and $245,000 by way of incidental income, whereas its expenditure exceeded $17.6 million. It received a subsidy from the Commonwealth Government in excess of $14 million to operate its 52 hostels. Income and expenditure were of a similar order in the 1996 financial year.

26. The respondent operates six categories of hostels. These are described as transient hostels, medical transient hostels, homeless hostels, tertiary education and training hostels, secondary education hostels and aged care hostels. According to the evidence of Alan Liddle, the respondent's regional manager for Victoria, accommodation at the hostels is provided to applicants on a "first come first served" basis and on the footing that persons accommodated have a right to occupy a bed but not a right to occupy a room. The respondent measures occupancy and performance of a hostel in terms of meeting needs by reference to the percentage of occupied beds. The W.T. Onus Hostel is classified as a transient hostel, the object of which is to provide for Aboriginal and Torres Strait Islander people requiring short-term accommodation. It is nevertheless the respondent's policy to accommodate in that hostel, if it has empty beds, Aboriginal and Torres Strait Islander persons having other requirements if hostel accommodation suitable to them is not available in the area. Those who are provided with transient accommodation are expected to stay no more than three months but persons in some categories, such as students, may stay for longer periods until, for example, they complete their studies or find alternative accommodation. Provision of accommodation by the respondent is based always on availability of a bed as opposed to availability of a room. The W.T. Onus Hostel has 11 rooms in which 27 beds are arranged for occupancy. A person seeking accommodation is allocated a bed and will not uncommonly be required to share the room containing it with at least one other person, who will occupy another bed in that room. The hostel contains eight rooms with two beds each, two rooms with four beds each and one room with three beds. No room has one bed only. The hostel had an occupancy rate of 68% in the 1996 financial year; and in the 1995 and 1996 financial years its operating costs exceeded $240,000 of which about a quarter was recouped from tariffs and the like, the remainder being recovered by way of government subsidy.

29. The appellant and Ms Laguerre registered as a couple at the W.T. Onus Hostel on 25 September 1995, when he was described in the registration document as unemployed and she as a part-time worker. According to Ms Laguerre's evidence they were given a room when they moved in which contained a double bed and a single bed; they were not told that they could stay no more than three months; they occupied the same room for the entire period that they lived at the hostel and were never asked to share the room with anyone else or asked to move to another room.

32. Hedigan, J. accepted the evidence of Mr Liddle to the effect that there is no right to sole occupancy of a room at the W.T. Onus Hostel. That being so it was held to follow that the hostel was not within the meaning of the Rooming Houses Act a "rooming house" which, as his Honour concluded, is a building in which there are rooms available for sole or exclusive occupancy upon payment of rent. The correctness of that conclusion was the essential question debated on the appeal. Put in another way, the question is whether a building in which rooms are available for occupancy on payment of rent, but not for the exclusive occupancy of any one resident (or couple or group of residents should they choose to live together), may be a rooming house as defined.

35. The primary submissions were, for the appellant that there is neither express indication nor implied warrant for any such limitation on the meaning of "rooming house", and for the respondent that the limitation is necessarily implied.

38. Counsel for the appellant contended, moreover, that a ready answer to the question in his favour is provided by paragraph (b) of the definition of "rooming house" which, as it was said, expressly contemplates that four people might use a single room in a rooming house and use it, what is more, "in any way". This was perhaps the strongest feature in the appellant's argument. At first blush, and when read in isolation from other sections of the Act, paragraph (b) may appear to support the appellant's contention. In a sense, however, the words "who in any way may use the room or rooms" tend to prove too much, for they suggest that in paragraph (b) the use contemplated is not of "any room or rooms ... for the purpose of residence by any occupier or occupiers ... having a right to the use thereof": cf. the definition of "room". Had it been envisaged that four "people" referred to in paragraph (b) were, on account of their joint use of a room, "residents" - i.e. persons having taken up occupancy of a room - it would hardly have been necessary to use the words "in any way": the use of those words rather suggests that the "people" referred to in paragraph (b) are not (or not necessarily) occupiers of the "room or rooms" referred to in that paragraph. A difficult feature of paragraph (b) is the use in it of the words "in which". In paragraph (a) the words "in which" plainly enough refer back to "building"; and in paragraph (b) the words "in which" seem to do the same: it is not easy, tempting though it may be, to treat them as referring back to the "room or rooms" referred to in paragraph (a). Indeed, the room or rooms referred to in paragraph (b) are, on one view, not (or not necessarily) those referred to in paragraph (a); and it seems to me that the repetition in paragraph (b) of the words "in which", and the use of the words "in any way", tend to support that interpretation. Paragraph (b) can be construed, without violence, merely as prescribing that a building is not a "rooming house" unless it is one in which not less than four persons in all may use the room or rooms in the building in any way. This, admittedly, attributes to "room or rooms" in paragraph (b) a meaning which is not confined to that borne by the same words in paragraph (a) - i.e. any room or rooms available for occupancy by a person to live there as a sole or main residence. Neither the terms of paragraph (b) of the definition of "rooming house" nor the definition of "room" would appear, however, to stand in the way of that construction. On the contrary, they seem to require it. In particular, the latter definition would appear to allow the "room or rooms" in paragraph (b) to cover or extend to rooms in a building which a resident has a right to use in common with others, such as a kitchen, lounge or bathroom "or any other room or area designed or set aside for common use by a resident": see the last few lines of the opening paragraph of the definition of "room" and the definition in s.3 of "facilities", in which "room" seems not to be confined to a room of which a resident takes up occupancy.

41. Such an interpretation of paragraph (b) is of course inconsistent with the appellant's primary submission. It is not altogether easy to be confident of that interpretation, for the Act is not a model of drafting consistency. Nevertheless, consideration of the Act as a whole appears to me to indicate that paragraph (b) of the definition of "rooming house" does not stand in the way of the decision of Hedigan, J. After the conclusion of argument on the appeal we received from counsel for the appellant a memorandum which referred to a number of provisions of the Health Act 1958, as variously amended, and regulations made thereunder which were said to throw light on the meaning of expressions in the Rooming Houses Act. I have considered these earlier provisions and counsels' comments on them, but have not been thereby assisted in the resolution of the appeal.

44. An important clue to the scope of the Rooming Houses Act is derived from an examination of the rights it gives to a resident - one who takes up occupancy of a room as a place to live. The words "occupancy", "occupier" and their cognates are of broad import the scope of whose meaning is variable according to context. An illustration, instructive in the present context, is afforded by R. v. Tao [1977] Q.B. 141. An undergraduate at King's College, Cambridge, lived in a hostel belonging to the college, a room having been allotted to him for the use of which he paid the college. Police investigating a small fire that occurred in the room detected a strong smell of burning cannabis. He was charged with an offence against a statute prohibiting "the occupier" of premises to permit them to be used for the purpose of smoking cannabis. On appeal against his conviction by a jury the defendant, while conceding that he had been in occupation of the room, contended that he was not "the occupier". The submission was that the phrase "the occupier", being undefined in the statute, should receive a narrow meaning because the statute was a penal one. Roskill, L.J., at 143-4, spoke thus for the Court of Appeal -

"The fact that whereas in many statutes one finds the phrase 'the occupier' defined, there is no comparable definition in this Act, suggests to this Court that it was the intention of Parliament ... to leave it to the tribunal of fact to determine whether, on the facts of each particular case a given person was 'the occupier' of the premises in question. ... One asks what is the mischief against which this section is aimed. If one asks that question, it seems to this Court plain that the object is to punish those persons who are able to exclude from their premises potential offenders who wish to smoke cannabis in those premises, but do not do so, by making such persons themselves guilty of an offence if they knowingly permit or suffer any of the forbidden activities ... This suggests that Parliament was intending not that a legalistic meaning should be given to the phrase 'the occupier' but a common-sense interpretation, that is to say 'the occupier' was to be regarded as someone who, on the facts of the particular case, could fairly be said to be 'in occupation' of the premises in question, so as to have the requisite degree of control over those premises to exclude from them those who might otherwise intend to carry on those forbidden activities ..."

The Court disapproved an earlier decision which had held that, in a comparable statute, no-one could be regarded as "the occupier" of premises who was not in legal possession of them. Dismissing the appeal against conviction, the court held in Tao that, since the defendant had an exclusive contractual licence to use the room, that was sufficient to constitute him "the occupier" within the meaning of the statute. Roskill, L.J., at 146, said -

"He does not have to be a tenant or to have an estate in land before he can be 'the occupier' within that section. It is in every case a question of fact and degree, whether someone can fairly be said to be 'the occupier' for the purpose of that section."

I do not suggest that one can derive the meaning of words in one statute from the meaning of the same or cognate words in another: the method of interpretation is, however, instructive, although of course not novel. One may ask what the Rooming Houses Act aims to do by giving rights to a "resident", being a person "who takes up occupancy of a room with the consent of a rooming house owner and lives there as his or her only or main residence".

51. We were referred on behalf of the respondent to a number of provisions of the Rooming Houses Act that are not easily reconciled, if reconcilable at all, with the notion that a "resident" has no right to exclusive occupancy of a room in a "rooming house". Foremost is s.6. By s.s.(1) "a person" is forbidden to -

"(a) require or force or attempt to require or force a resident to vacate a room; or (b) take or attempt to take possession of the room in which a resident resides ...".

By s.s.(2) "a person" is forbidden, except in accordance with the Act, to -

"... (a) interfere with the peace and comfort of a resident; or (b) withdraw services or facilities reasonably required to enable the resident to reside in a room; or (c) prevent a resident from using facilities; or (d) do any other act or thing designed or intended - for the purpose of causing the resident to abandon the room ...".

The nature of these prohibitions, including their width, suggests an intention to confer on a resident a right akin to that of quiet enjoyment that is inconsistent with a shared occupancy. They are prohibitions directed, plainly enough, not only to a rooming house owner and agents and the like but to other residents. I do not understand how s.6 could sensibly operate in favour of one who is an occupant, but a reluctant co-occupant. A similar comment may be made about s.19(1), which prescribes the duties of a rooming house owner, including requirements that the owner must -

"... (e) not unreasonably restrict or interfere with a resident's privacy, peace and quiet or proper use and enjoyment of the room and residents' facilities in the rooming house; and ... (h) take all reasonable steps to ensure security for the property of a resident in his or her room; and ...".

Paragraph (e) appears inevitably to assume a distinction between, on the one hand, a single resident's use and enjoyment of a room and, on the other, shared use and enjoyment by residents of facilities. Apart from that, it is difficult to reconcile the imposition on a rooming house owner of the requirements of s.19(1)(e) and (h) with an assumption that a resident might be required to share occupancy of a room.

60. Counsel for the respondent referred to a number of provisions of the Act which contemplate that a resident, being in "possession" of a room, may in certain circumstances be required to "give up possession of the room" and "vacate the room": ss.30, 35(2)(c), 36(1) and (2) and 38. These expressions, if accurately used, might very well be thought to foster or reinforce the notion that a "resident" was assumed by those responsible for the terms of the Act to be, prima facie, one having exclusive occupation of a room. Counsel for the respondent not unnaturally relied on reasoning of that kind. Faced with the submission, counsel for the appellant - who, be it remembered, relied on the Act for his whole case - invited us to treat the Act as exhibiting such extreme want of precision that no logically valid conclusions should be drawn from the words it employs. The invitation, if I may say so, is reminiscent of the submission of which Maule, J. in his judgment in Whitaker v. Wisbey [1852] EngR 206; (1852) 12 C.B. 44, (138 E.R. 817) observed, at 58, (822): "The last point is perfectly new, and it is so startling that I do not apprehend it will ever become old."

Verbal fastidiousness may have given way, in many areas of the law and life, to uncontrolled logorrhoea; but for better or worse words remain essential vehicles for the communication of ideas by an Act of Parliament. As things are, we must still struggle with the words used in order to glean what was meant to be communicated. It is no doubt another thing to decide what the words used were meant to convey; and ultimately it is the province of the courts to make that very decision. Perhaps the words "possession of the room" and "vacate the room", in the context of the sections I have mentioned, are used in an informal, popular or nebulous sense, or even carelessly. Some ambivalence, admittedly, is shown in the use of the verb "vacate" twice in s.30, apparently once meaning no more than "leave" or "quit" and once meaning (perhaps) "leave vacant". Given, however, the other indications that the occupation of a room contemplated by the Act is exclusive occupation, I feel bound to treat ss.30, 35, 36 and 38 as tending to assist the respondent rather than the appellant.

64. The same may be said of several other provisions to which we were referred on behalf of the respondent, some of which I shall mention. Section 12(2) requires that a proposed increase in rent should be declared excessive if the proposed rent is more than that which, by reference to a series of criteria, should reasonably be paid by a resident. Among the criteria are -

"(a) The rent payable for a similar room in the rooming house; (b) The rent payable for a similar room in a similar rooming house in a similar location ... ... (f) The improvements made to the room which should not result in an increase in the rent because the improvements were made by the resident."

Paragraphs (a) and (b), tend to suggest, by selecting the criterion of "a similar room", that two rooms "similar" to each other will attract comparable rent, thus perhaps assuming also that both would be similarly occupied, and that there would not be multiple occupancies of a room. In paragraph (f) "resident" might, of course, be read as "residents" were occasion to arise; but if improvements were made by one resident of a room and not another resident of the same room, there might be some awkwardness in applying the criterion - perhaps another indication of an assumption that there would not be multiple occupancies.

"A rooming house owner can [sic] charge a resident for electricity and gas consumed in the room occupied by the resident a charge for which is not otherwise included in the rent if - (a) the rooming house owner is responsible for the payment of the electricity and gas; and (b) the room is metered by recording apparatus approved by the relevant supplying authority."

This again tends to assume that one occupant only will consume gas and electricity in a separately-metered room, or at least that, if there be more than one occupant, they will be metered as a unit.

74. Section 18(1) sets out duties of residents. These include requirements that a resident must -

"(a) keep the room clean and in a condition which will not create a fire or health hazard; and (b) use the room for residential purposes only; and (c) not use the room for any illegal activity; and ... (j) give the rooming house owner the key to the door to his or her room to allow access under s.43 [in case of emergency and the like] ...".

Paragraph (a) especially suggests an assumption that a resident will be responsible for the condition of the room and will be in a position to honour the responsibility - a position not easily compatible with an occupancy shared in invitum. Paragraphs (b), (c) and (j) give rise to a comparable comment. Section 14, contemplating that an intending resident may be required to pay a bond, designed to protect the condition and state of repair of the room, offers another suggestion that the Act contemplates only single occupancy of the room.

"A rooming house owner must not allow any person to reside in a room vacated by a resident following action of the kind referred to in s.6(3) [scil. reasonable action taken by the owner or a police officer to prevent or following a serious act of violence by a resident which injures or creates a danger to any person in the rooming house] until after the time limited for making an application [by the resident] under sub-section (7) has expired ... ".

Plainly enough, this provision assumes that a room vacated by a resident in the circumstances set out was not the subject of several occupancies giving rise to various residents' rights.

84. It is not possible to say that ss.6 and following, to which I have referred, all point necessarily to an inference that a "resident" is an occupant of a room having a right of exclusive occupancy. Upon the whole, however, I feel compelled to the conclusion that Hedigan, J. reached. It is true that there are provisions in the Act that are consistent (or not inconsistent) with multiple occupancy of rooms. The several provisions (many of obvious importance) which would prove very inconvenient, and perhaps well-nigh impossible, to apply or administer in the case of multiple occupancy suggest strongly to me, however, that the Act was not intended to apply to accommodation which does not carry an entitlement to exclusive occupancy of a room.

87. Hedigan, J. recognised that the contemplation by the Act of exclusive occupancy may be subject to an exception when joint occupiers consent to their joint occupancy of a room being, for example, a married couple or a family. Counsel for the appellant objected that to recognise such an exception to the rule is to show it to be an illusory rule. I do not accept the objection. If the Act does not apply to a building because the rooms are not made available for exclusive occupancy, there is no reason to treat it as applying to the building merely because two or more persons desire or agree to share a room by way of living in it.

96. On 24th October 1989 the Minister for Housing and Construction moved in the Legislative Council that the Rooming Houses Bill be read a second time. The Minister explained that rooming houses accommodated large numbers of single people on a long-term basis due to a lack of affordable alternatives but that they were also a cheaper way to house a number of households under the one roof. In my opinion that observation, with which the second reading speech began, throws light on the meaning of "rooming house" in s.3 of the Rooming Houses Act 1990. I respectfully differ from the way in which the learned presiding judge reads that definition, although I agree with his Honour that it is not determinative of the appeal. To my mind the definite article shows that "the room or rooms" referred to in paragraph (b) of the definition are the room or rooms referred to in paragraph (a). The expression is equivalent to "that room or those rooms". The contrary is not implied by the reference in the definition of "room" to a right to use facilities in common, although it is true that the word "room" is not used in the defined sense in the definition of "facilities". In my view, therefore, the definition of "rooming house" does extend to a building in which there is only one room available for occupancy upon payment of rent, provided that the total number of people who "in any way may use" the room is not less than four. I am not sure what parliamentary counsel intended by the words "in any way", but I think that the use which is contemplated is the use of the room by living in it. As the Minister said at the end of the second reading speech, there must be "at least four residents". But the possibility that four people may live in one room is not inconsistent with their having exclusive occupancy. A household may require a room for its own use. The definition accommodates both the classes of resident to which the Minister referred.

99. Immediately thereafter he said that boarders and lodgers had until then remained the one segment of the tenancy market untouched by legislative action and that the Bill was intended to remedy that situation. (There is also a reference to "the only segment of the tenancy market as yet untouched by legislation", sc. legislation similar to the Residential Tenancies Act 1980, at the end of the speech.) Examples were given of the reasons people live in rooming houses. They often included "a desire or need for only one room for exclusive occupancy" and "the option of independent living combined with the opportunity for company in common areas such as kitchens, dining rooms and lounges". The Minister informed the House that the exact number of rooming houses then operating in Victoria was difficult to determine but that in 1983 the total number was 917, comprising 730 apartment houses and 187 boarding houses. He said that the latter differed from apartment houses in that meals were provided. It is apparent that the Minister was referring to registered apartment houses and registered boarding houses, for there would be no other source for such precise figures and he concluded by saying that, allowing for non-registered premises, there might be up to 15,000 people "housed in rooming house facilities". In 1983 apartment houses and boarding houses were registered under the Health Act 1958, s.220 of which contained a definition of "apartment" similar to the definition of "room" in s.3 of the Rooming Houses Act. The most important difference was that, whereas the latter speaks of an occupier or occupiers "having a right to the use thereof", the definition of apartment spoke of an occupier or occupiers "having a right to the exclusive use thereof". The Health Act also contained a definition of "boarding-house", in which there was no concept of exclusive use of part of the premises. It included a tent in which more than five persons were lodged or boarded. See also the definition of "common lodging-house". Apart perhaps from the examples given of the reasons people live in rooming houses, this part of the second reading speech does, therefore, support the appellant's submissions: the Rooming Houses Bill was intended to deal with the one remaining segment of the tenancy market; the rooming houses referred to apparently included the kinds of accommodation that had been registered under the Health Act not only as apartment houses but also as boarding houses; and the reference to a right to the exclusive use of a room or rooms to be used for the purpose of residence was omitted from the critical definition.

102. The conclusion I have reached in paragraph 23 above is that the definition of "rooming house" is neutral as between the appellant's and the respondent's contentions. (When I refer to "the respondent", I refer to the first respondent, Aboriginal Hostels Ltd. The second respondent was the presiding member of the Residential Tenancies Tribunal, who submits to such order as the Court may make.) That conclusion removes the strongest textual indication in the statute in favour of the appellant. If the matter rested there I should have understood a "rooming house" as a building in which each resident, or group of residents, enjoys an exclusive right to occupy his or her or their room. The legislative history referred in para. 24 above shows, however, that the mischief to which the Rooming Houses Bill was directed may have been wider, namely the need to regulate relations between proprietors and residents not only of the kinds of accommodation that in 1983 had been registered as apartments but also of those that had been registered as boarding houses. The provisions of the Health Act to which I have referred were repealed on 15th May 1990 and replaced by regulations that applied, among other things, to "residential accommodation". "Residential accommodation" was defined to mean, subject to certain exceptions, "any house, building or other structure used as a place of abode, where a person or persons can live on payment of consideration to the proprietor". As with the former definitions of "boarding-house" and "common lodging-house", there was no concept of exclusive use of part of the premises, and it was thought necessary expressly to exclude student dormitories and holiday camps.

105. I bear in mind the possible mischief to which I have referred when I turn to examine the statutory provisions, but there are two other considerations to be taken into account. The first is that, even where there is no doubt at all about the mischief to which a statute is directed, parliamentary counsel may have been insufficiently instructed or may have chosen the wrong language and the insufficiency or error may be such that the mischief has simply not been remedied. The second reading speeches are not a substitute for legislation: see R. v. Best (unreported, Court of Appeal, 23rd July 1998) in my judgment at p.9. The second consideration is that Parliament must evince an intention to alter the common law or, to put the matter another way, to regulate a particular field of activity. I knowledge that this is remedial legislation to which a liberal construction is appropriate, but it is Parliament that has to make the law. It is beyond the province of the courts, and they are not equipped, to decide whether legislation of this kind should extend to accommodation such as that provided by the W.T. Onus Hostel and even to dormitories if they satisfy the definitions of "room" and "rooming house" in other respects.

108. The strongest indications in favour of the appellant's construction are the following:

(a) The definition of "rent" in s.3 is disparate from the idea of rent at common law and implies no concept of exclusive use or occupancy. It is a fee paid by a resident to live in a room and use facilities, electricity, gas and fuel. The words "live" and "reside" are used elsewhere in the Act and are reminiscent of the definition of "residential accommodation" to which I have referred earlier. A dozen students may live or reside in a dormitory.

(b) The definition of "room", pointedly it might be thought, omits the word "exclusive" that appeared in the almost identical definition of "apartment" in the Health Act. Similarly s.5(1) provides that a resident has a right to reside in the room which he or she occupies, not an exclusive right to reside in the room. The references in the Act to "quiet enjoyment", unless s.19(e) be regarded as an exception, are to quiet enjoyment not of the room but of the rooming house: see ss.19(1)(i), 26(c) and 35(4).

114. The principal indications to the contrary are as follows:

(a) The definition of "resident" requires not only that a person live in a room as his or her only or main residence but also that he or she take up occupancy of the room. There are numerous other references to occupancy, which are more consistent with a person or group such as a household filling a room than sharing it with others. One of those references that should be emphasized is in s.14(1), which provides that a bond may be required to be paid by a resident before he or she takes up occupancy. The rest of the section is concerned with the condition of the room and the application, with modifications, of provisions of the Residential Tenancies Act dealing with security deposits.

(b) The word "vacate" is used loosely. There are references to vacating the room, but there are also at least eight references, in ss.6(3), 30, 35(6), 37(a) and (b), 38(2)(c) and 41(7) and (9), to vacating the rooming house and one, in s.37(d), to the resident himself or herself being "forcibly vacated" from both. Cf. s.38(4). It is, nevertheless, apparent that a resident's vacating his or her room is regarded as the correlative of the owner's taking "possession" of it, and a room may be "abandoned". See, for example, ss. 5(2), 6(1) and (2), 21(1) and 22(1)(a) and Part 4.

(c) Section 12 requires the Residential Tenancies Tribunal to have particular regard to the rent payable for a similar room in the same rooming house and the rent payable for a similar room in a similar rooming house in a similar location. If the appellant's construction were correct, one would expect a comparison of similar rights to live in a similar room. Section 17 contemplates that a person or group will have exclusive occupancy of a room. Section 18(j) requires a resident to give the rooming house owner the key to the door to his or her room to allow access under s.43. Section 41(10) stipulates a period during which, in certain circumstances, a rooming house owner must not allow any person to reside in a room vacated by a resident, not just to take up the former resident's right to live in the room.

120. It is possible that the Government intended this legislation to extend to all, and not only some, of the former "boarding-houses" but, if so, that was not sufficiently appreciated by parliamentary counsel or his or her instructions were inadequate. Once the definition of "rooming house" is seen to be neutral, the textual arguments weigh in favour of the respondent. The definitions in s.3 may be accommodated to either view but the same cannot be said, or can be said only with considerable difficulty, in relation to the provisions mentioned in para. 28 above. Sometimes a section is drafted with the typical case in mind and the fact that it will not work in an exceptional case is insufficient warrant for altering the meaning of the statute as a whole, but there are too many indications that exclusive occupancy of a room by a person or group was intended for all the provisions to which I have referred to be explained in that way. Parliament has not evinced an intention to cover the case of a person who is simply permitted to live in a room whose owner retains the right to allow other persons to live in it as well.

123. For these reasons I, too, would dismiss the appeal.

129. In my view, the appeal should be dismissed for the reasons given by Tadgell, J.A.