**(a) statement of facts and contentions dated 13 October 2016;

(b) witness statement - Tracey Lee Little dated 11 October 2016 to which is annexed a medical report from Dr Ann Harrison, Winnunga Nimmityjah, dated 15 March 2016;

(c) medical reports from Dr Ann Harrison, Winnunga Nimmityjah, dated 28 April 2016; from Dr Saidul Islam, Winnunga Nimmityjah, dated 28 April 2016 and from Ms Chanel Webb, Social Health Team Worker and Perry Chapman, Social Health Team Manager, Winnunga Nimmityjah, dated 29 April 2016;

(d) additional submissions on the application of the Human Rights Act 2004 dated 29 November 2016; and

(e) Housing and Community Services Domestic and Family Violence Policy Manual 2015.**

**(a) statement of reasons filed 12 September 2016; and

1. The application was heard on 15 December 2016. Ms Kucherova, solicitor from CCL, appeared for the applicant and Ms Storey, solicitor from ACT Government Solicitor, appeared for the respondent. At the commencement of the hearing the parties reached agreement that the amount of rent arrears for the period between the cancellation of the previous rent rebate, 24 September 2015, and the commencement of the grant of rebate the subject of this hearing, 22 February 2016, and including a manual adjustment, is $10,960.88. If the rent rebate is backdated to 20 September 2015 then the rebated rent payable by the applicant is $4,621.00. The parties agreed[6] that the applicant would be entitled to a rent reduction of $6,328.41 in her rent account. Ms Little gave evidence via video link and was cross examined. After hearing submissions from the parties the Tribunal reserved the decision. This is the Tribunal's decision.
2. This application was listed for hearing immediately after another application also seeking administrative review of a decision of the Commissioner for Social Housing to accept a HATRP recommendation not to backdate the date of effect of a tenant's rent rebate. The tenant in that matter was also represented by CCL and the respondent was represented by Ms Storey. Some of the parties' contentions applied to both matters and to the extent that these contentions have been covered in that decision, Miller v Commissioner for Social Housing[7], the Tribunal refers to them below and adopts those findings.

1. Broadly, the application for and the provision of rent rebates for public housing tenants is regulated by the Housing Assistance Act 2007 (HA Act). The Commissioner for Social Housing is established under section 9 of the HA Act.

1. Part 4 of the HA Act refers to housing assistance programs. Section 18 of the HA Act sets out what is a housing assistance program, and includes (a) the kind of assistance that may be provided under the program and (b) the eligibility criteria for assistance under the program and section 18(c) of the HA Act provides that the program for providing housing assistance includes:

(c) how decisions of the housing commissioner under the program may be reviewed.

1. Pursuant to section 19 of the HA Act the Commissioner is empowered to approve a 'Housing Assistance Program'. Section 19 provides:

(1) The Minister may approve a housing assistance program_._

(2) An approved housing assistance program is a disallowable instrument.

Note 1 Power given under an Act to make a statutory instrument (including a program) includes power to amend or repeal the instrument (see Legislation Act, s 46(1)).

Note 2 A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.

The Commissioner has approved the Housing Assistance Public Rental Housing Assistance Program 2013 (No 1) (the Program) pursuant to this section.

1. The respondent's decision to accept the HATRP's recommendation was made under subclause 31(4)(b) of the Program, which provides:

(4) If the housing commissioner receives a request, the housing commissioner may -

(b) refer it to an advisory committee established by the housing commissioner for recommendation and accept, vary or reject the recommendation.

1. Clause 32 of the Program provides for review by the tribunal. It states:

Application may be made to the ACT Civil and Administrative Tribunal for review of a decision under clause 31(4)(a) or a decision to accept vary or reject a recommendation under clause 31(4)(b).

1. Pursuant to section 21 of the HA Act the Commissioner is empowered to approve guidelines outlining procedures for the management or operation of processes. This section provides:

21. Approved housing assistance programs - operational guidelines

(1) The housing commissioner may issue guidelines (housing operation guidelines) outlining procedures for the management or operation of approved housing assistance programs_._

(a) may deal with matters also dealt with elsewhere under this Act; but

(b) must not be inconsistent with this Act (including approved housing assistance programs_)._

The Commissioner has approved the Housing Assistance Public Rental Housing Assistance Program (Rent Rebate) Operational Guideline (2008) (No. 1) (the Rebate Guideline). The purpose of the Rebate Guideline is expressed to be "to provide guidance on clause 25 - Rent Rebate" in the Program.

(2) ... an approved housing assistance program may provide for a rebate of rent in accordance with the program.

1. Subclause 25(1) of the Program provides that the housing commissioner may provide the tenant of a public housing dwelling a rent rebate provided that the tenant satisfies the eligibility criteria in clause 9(4) and clause 25 of the Program.
2. Subclause 9(4) of the Program provides:

An applicant is eligible for a rent rebate if the applicant satisfies each of the following criteria:

(a) The applicant is receiving rental housing assistance from the housing commissioner under this program; and

(b) The applicant is eligible for a rent rebate in accordance with clause 25.

1. Subclause 25(8) of the Program specifies the date of effect for granting a rent rebate. It states:

(a) The expiry of any previous provision of a rent rebate; or

(b) The date of application for the rent rebate; or

(c) If the tenant was receiving a rent rebate immediately before the application and the housing commissioner determines that the rent rebate has increased - a date, decided by the housing commissioner, not more than 2 weeks before the date of the application; or

(d) From an earlier date in circumstances decided by the housing commissioner.

The applicant was physically or mentally incapacitated and thereby prevented from completing the application form for a rent rebate.

1. Clause 8 of the Rebate Guideline also relates to the date of effect for granting a rent rebate in subclause 25(8) of the Program. It provides:

This includes provision for a date earlier than would normally apply where particular circumstances exist. There would include circumstances that are unusual or out of the ordinary, such as:

• where a tenant was unconscious in hospital and could not contact Housing ACT to make them aware of their situation; or
• where a tenant has been called away unexpectedly because of a death or serious illness of an immediate family member.

1. Subclause 25(9) of the Program refers to the tenant subletting or being absent from the dwelling and provides:

Despite anything else in this clause, unless the housing commissioner decides otherwise, a tenant is not entitled to a rent rebate or the continuing provision of a rent rebate if the tenant -

(a) is subletting the dwelling the subject of the tenancy agreement; or

(b) stops living at, or is absent from, the dwelling without the consent of the housing commissioner; or

(c) is absent from the dwelling for a period longer than 3 months.

1. Section 68 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) applies when the tribunal reviews a decision by an entity. It provides:

(1) This section applies if the tribunal reviews a decision by an entity.

(2) The tribunal may exercise any function given by an Act to the entity for making the decision.

(ii) remit the matter that is the subject of the decision for reconsideration by the decision-maker in accordance with any direction or recommendation of the tribunal.

Human Rights Act 2004 (HR Act)

So far as is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.

40B Public authorities must act consistently with human rights

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

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

(a) not to have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily;

(1) Human rights may be subject only to reasonable limits set by laws that can be demonstrably justified in a free and democratic society.

(2) In deciding whether a limit is reasonable, all relevant factors must be considered, including the following:

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

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

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

1. The applicant variously submits[8]that:

(a) As she stopped living at or was absent from the property without the respondent's consent, the respondent must first exercise the discretion available to it under clause 25(9) of the Program and that the Rebate Guideline is not relevant to the exercise of this discretion as the Rebate Guideline is made in reference to the respondent's discretion under clause 25(8) of the Program. Thus, there is no requirement for her to prove that her circumstances are 'unusual or out of the ordinary'.

(b) The respondent's discretion under clause 25(9) of the Program is to be exercised having regard to all the relevant circumstances of the case including the objects of the HA Act, the Program, the requirements of the HR Act and any relevant policies, which in this case includes the respondent's Domestic and Family Violence Manual 2015 (Domestic Violence Policy).

(c) Clause 25(8) of the Program operates such that the effective date of the grant of rebate must be the earliest of the dates set out in clause 25(8)(a) or (b) or (c), or an even earlier date if the respondent exercises his discretion under clause 25(8)(d). In this matter, clause 25(8)(a) operates to require the respondent to backdate the date of effect of the rent rebate to 20 September 2015 and the respondent is not required to exercise his discretion under clause 25(8)(d).[9]

(d) If the Rebate Guideline is found to apply its terms are not such that the applicant is required to demonstrate that her circumstances are 'unusual or out of the ordinary' in order for the respondent to backdate the rent rebate pursuant to clause 25(8)(d) having regard to the objects of the HA Act, the terms of the Domestic Violence Policy and the respondent's obligation under the HR Act.

Rebate Guideline - Unusual or out of the ordinary circumstances

(e) In the alternative the applicant's circumstances, nonetheless, meet the definition of 'unusual or out of the ordinary' such that they warrant the respondent backdating the rent rebate to the date the previous rent rebate was cancelled, 20 September 2015.

(f) in relation to [c] and [d] above:

• (i) if the terms of the Rebate Guideline do apply, they are inconsistent with both the Program and the HA Act and should be read down;
• (ii) for almost all public housing tenants, their housing will only be affordable when they are in receipt of a rental rebate and, in order to interpret clause 25(8) consistently with the objects of the authorising law, it must be read so that a person who is eligible for a rent rebate receives it over the maximum possible timeframe. In accordance with the objects of the HA Act the respondent's role is to:
  1. to maximise the opportunities for everyone in the ACT to have access to housing that is affordable, secure and appropriate to their needs;
  2. to facilitate the provision of housing assistance for those most in need;
  3. ...[11]

services, programs, assets, rebates and amounts, provided under an approved housing assistance program to help entities who are eligible for assistance under the program to meet their emergency, short-term, medium-term and long-term housing needs.[12]

(iii) this interpretation is the only interpretation consistent with the respondent's strategic direction and, more importantly, statutory role.

Human Rights Act

1. The Tribunal is required to interpret the Program consistently with section 30 of the HR Act and an interpretation of clause 25(8) which does not maximise the period over which the respondent must provide a rent rebate would be an arbitrary interference with a person's home under section 12(a) of the HR Act.[13]

(a) the question for the Tribunal is whether the respondent, in accepting the recommendation of HATRP, made the correct or preferable decision; the Tribunal has no jurisdiction to determine whether the respondent's original decision was lawful pursuant to section 40B of the HR Act.

(b) the respondent's decision to revoke the rent rebate, while in itself a reviewable decision for which the applicant did not seek review, is not under review, and thus consideration of clause 25(9) of the Program and the exercise of the Commissioner's discretion under that provision is not relevant to the current proceedings.

(c) the applicant's submissions invite the Tribunal:

• (i) to go beyond the 'reviewable decision' and to examine the circumstances of the original decision, including decisions anterior to the decision under review, and to examine whether the Rebate Guideline is consistent with the HA Act and the Program.; and
• (ii) to have regard to the Domestic Violence Policy but to ignore the Rebate Guideline.

(d) The Tribunal has no jurisdiction to determine whether the Rebate Guideline is inconsistent with the HA Act and the Program. Notwithstanding, it is not inconsistent with the HA Act and the Program. As a legislative instrument the Tribunal must have regard for the Guideline in making its decision, while a policy is not binding on the Tribunal.[15]

(e) A policy must be consistent with the statute, and therefore the respondent's general discretion as conferred by the HA Act and the Program cannot be confined by the policy.[16] The Domestic Violence Policy is not a statutory instrument and should not be interpreted to fetter discretion given to the respondent under the HA Act and Program.

1. In relation to the Human Rights considerations the respondent submits:[17]
   • (a) There is no dispute that the respondent is a 'public authority' within the meaning of section 40(1) of the HR Act and that the respondent is subject to the duty to give proper consideration to relevant human rights when making its decisions pursuant to section 30 of the HR Act.
   • (b) The duty to give 'proper consideration' to human rights requires a public authority, and the Tribunal acting in an administrative review capacity by 'standing in the shoes of the respondent', to demonstrate an understanding, in general terms, of the rights that might be engaged by an exercise of its powers, duties or functions and of the factors that would otherwise be considered in determining whether a limitation (in section 28 of the HR Act) on those rights is proportionate.[18]
   • (c) Examination of compliance with the duty to give proper consideration should not, however, involve over-zealous scrutiny of the decision-making process.[19] Similarly in judicial review, a decision maker's reasons "ought not to be construed minutely and finely with an eye keenly attuned to the perception of error."[20]
   • (d) Section 12 of the HR Act will not prima facie be engaged by a decision by the respondent to accept a recommendation of HATRP not to backdate a rent rebate. A decision whether to accept, vary or reject a recommendation by HATRP does not, on its face, amount to an interference with the applicant's home.
   • (e) Whether section 12 is engaged by a decision in relation to rental rebate will depend on the effect of that decision on the tenant's particular circumstances and must be determined having regard to the facts of each case.
   • (f) It may be possible that because of the applicant's particular situation, she may not be able to pay the rent arrears or the fortnightly rent, however those circumstances are unlikely to have been materially affected by the decision under review.
   • (g) If the Tribunal finds that section 12 of the HR Act is engaged by the applicant's particular circumstances, the respondent's decision to accept the HATRP recommendation is not an arbitrary or unlawful interference with that right. Proper consideration of the right in section 12 of the HR Act by the Tribunal, having regard to the reasonable limits test in section 28 of the HR Act does not prevent the Tribunal from confirming the respondent's decision on review.
2. In relation to the applicant's submissions in relation to an arbitrary interference with a person's home (see [37] above) the respondent submits:[21]
   • (a) 'Arbitrary' for the purposes of section 12(a) is not to be given its ordinary or natural meaning. The concept of 'arbitrariness' applies to decisions that are inconsistent with other protected rights and are unreasonable in the circumstances.[22]
   • (b) The respondent's decision to accept the HATRP recommendation was not arbitrary within the meaning of section 12(a) of the HR Act because:
     • (i) it was governed by clear, pre-existing rules and procedures that are predictable and foreseeable by those to whom they are applied;[23]
     • (ii) the HA Act, the Program and the Rebate Guideline clearly reveal consistent and objective procedures and guidelines upon which the decision to accept HATRP's recommendation could be based;[24]
     • (iii) these procedures and guideline were complied with;[25]
     • (iv) the reviewable decision was made according to law and by a process of reasoning;[26]
     • (v) it was predictable and foreseeable;[27]
     • (vi) the respondent considered the evidence the applicant provided including evidence relating to domestic violence and took her particular circumstances into account;[28] and
     • (vii) the applicant's right to seek review of the decision by the tribunal amounts to an adequate safeguard and review mechanism.[29]

**(c) In relation to the applicant's submission that without a rebate a tenant is charged "rent at an arbitrary rate that is far beyond what they can afford" the respondent submits that the rent charged in that circumstance is market rent which is required to be charged under section 22 of the HA Act and which is prescribed by a formula in section 22(3) of the HA Act and is a term of the standard ACT residential tenancy agreement and included in the agreement which the applicant signed.

(d) In relation to whether the respondent's reviewable decision was 'unlawful' as submitted by the applicant, the respondent submits that:

(i) it was lawful as it was made pursuant to and in accordance with a valid statutory scheme and according to contract;[30]

(ii) the tribunal does not have jurisdiction to declare that a Territory Act is incompatible with section 30 of the HR Act; this declaratory power is vested in the Supreme Court.[31]

(iii) the tribunal is not empowered in its administrative review jurisdiction to find that a decision of the respondent is 'unlawful' as to do so would be to assume a jurisdiction normally vested in the Supreme Court. The respondent referred the Tribunal to and relied on the earlier tribunal decision of Commissioner for Social Housing v "A".[32]

(e) In considering section 28 of the HR Act the respondent submits, if the Tribunal finds that the applicant's right under section 12(a) of the HR Act is engaged in this matter, that right is not absolute; it is subject to reasonable limitations set by Territory laws that can be demonstrably justified in a free and democratic society.[33] In support of this submission the respondent asserts:

(i) pursuant to section 139(1) of the Legislation Act 2001 (Legislation Act) legislation is to be construed to best achieve the purpose of the legislation in preference to an interpretation which frustrates it;[34]

(ii) the objects of the HA Act and the Program clearly contemplate that there must be some limits to the provision of housing assistance, which includes rent rebates;[35]

(iii) whether a limit is reasonable for the purpose of section 28 of the HR Act depends upon whether it is proportionate to achieve a legitimate aim;[36]

(iv) the nature and extent of the limitation would be slight, given the tenuous link between the decision made under clause 31(4)(b) of the Program and the applicant's right under section 12(A) of the HR Act and the extensive internal and external review options the applicant has under section 28(2)(c) of the HR Act;[37] and

(v) any limit on the applicant's right under section 12(a) of the HR Act by the housing assistance scheme and, in particular, clause 31(4)(b) of the Program, is reasonably proportionate to the pressing social need of providing housing assistance to those most in need while recognising the respondent's limited resources.[38]

1. The issue to be determined by the Tribunal is whether the respondent's decision to accept the recommendation of HATRP not to backdate the rent rebate to the expiry of her previous rent rebate is the correct or preferable decision.

1. When determining an application for administrative review the Tribunal is standing in the shoes of the respondent decision maker.[39] The review is conducted as a merits review.
2. The Tribunal adopts the following passages from Miller:

57. Kirby J and Hayne and Heydon JJ, in the High Court decision of Shi v Migration Agents Registration Authority[40] adopted the statements by Bowen CJ and Deane J in Drake v Minister for Immigration and Ethnic Affairs (Drake)[41] in relation to the question for the determination of the Tribunal:

The question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether the decision was the correct or preferable one on the material before the Tribunal.

58. Kiefel J in the High Court decision of Shi v Migration Agents Registration Authority[42] (Shi's Case) said:

[58] The object of the review undertaken by the Tribunal has been said to be to determine what is the "correct or preferable decision". Preferable is apt to refer to a decision which involves discretionary considerations. A "correct" decision, in the context of review, might be taken to be one rightly made, in the proper sense.[43] (footnotes omitted)

1. The Tribunal is authorised and required to review the actual decision, not the reasons for it.[44]
2. The Tribunal concurs with the respondent's submission[45] that in its determination it should have regard to the legislative scheme, the HA Act, the Program and the Guideline as well as the particular circumstances of the applicant's case as found in the material before the Tribunal on 14 December 2016. As Smithers J said in Minister for Immigration and Ethnic Affair v Pochi[46] (Pochi):

Further in its proceedings [the Tribunal] is obliged to act judicially, that is to say with judicial fairness and detachment. It is subject to the same general restraints to which the administrative officer whose decision is under review was subject, namely that the relevant power must not be exercised for a purpose other than that for which it exists . . . that regard must be had as to the relevant considerations, and that matters absolutely apart from the matters which by law ought to be taken into consideration must be ignored", per Bowen C.J. and Deane J. in Drake v. Minister for Immigration and Ethnic Affairs (1979) 24 ALR, at p 589 . Thus natural justice must be afforded to the applicant.

1. The Tribunal is also obliged to interpret the relevant legislative provisions, as far as is possible, consistently with the HR Act and in the context of its administrative review jurisdiction and in making this decision the Tribunal is obliged to give proper consideration to the applicant's human rights, specifically in this matter not to have her home arbitrarily interfered with.
2. The Tribunal turns to the issues for determination.

Whether the respondent must first exercise the discretion available in clause 25(9) of the Program

1. The original decision to revoke the rent rebate because the applicant had stopped living at or was absent from the dwelling on the property without the respondent's consent was made pursuant to clause 25(9) of the Program. It was notified to the applicant in writing. The letter, dated 24 September 2015, to the applicant advising of this decision, clearly stated:

If you disagree with this decision, you can ask for a review within 28 days of the date of this letter. Full details about the review process are provided in the enclosed fact sheet.

1. The applicant did not seek review of the original decision within the 28 days or at all.
2. It was not until the tribunal issued a termination and possession order which had effect as a warrant of eviction against the applicant on 18 February 2016 that the applicant engaged with CCL and they made an application to the respondent for a rental rebate and requested that the rebate be backdated. The respondent granted the applicant a rent rebate effective from the date of the application, 22 February 2016 and declined to backdate the date of effect.
3. The subsequent requests for review related to the respondent's decision not to backdate the rent rebate. No review of the original decision was sought by CCL.
4. For the reasons set out by an earlier tribunal in Commissioner for Social Housing in the ACT v Massey[47], notwithstanding that that case concerned proceedings under the Residential Tenancies Act 1997, the Tribunal is not empowered to review every pre-litigation step and determination made by the respondent prior to making the reviewable decision.
5. In these circumstances the Tribunal finds that the original decision is not under review. Therefore, the Tribunal finds that consideration of clause 25(9) of the Program and the exercise of the respondent's discretion under that provision is not relevant to the current proceedings. For these reasons, it is not necessary for the Tribunal to consider and determine the applicant's argument that the Rebate Guideline is not relevant to the exercise of the respondent's discretion pursuant to clause 25(9) of the Program.
6. The applicant's first contention fails.

Whether clause 25(8) of the Program operates such that the effective date of the grant of rent rebate must be the earliest relevant date taking precedence

1. This argument was also raised and considered in Miller. The Tribunal adopts the following passage from that decision:

63. Subclause 25(8) of the Program provides for four separate dates of effect of a rent rebate. The applicant contends that the respondent has been operating under a misapprehension as to the effect of subclause 25(8) and this clause sets out a 'schema' to determine the date from which the rent rebate takes effect with the earliest date in subclause 25(8)(a), or (b) or (c) taking precedence unless a date earlier than any in subclause 25(8)(a), or (b) or (c) is sought in which event it is necessary for the respondent to exercise his or her discretion under clause 25(8)(d). The applicant contends that this interpretation is most consistent with section 139 of the Legislation Act 2001 and the objects of the HA Act.

1. Section 139 of the Legislation Act provides:
   • (1) In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.

1. The first two of the main objects in subsection 6(1) of the HA Act are:
   • (a) to maximise the opportunities for everyone in the ACT to have access to housing that is affordable, secure and appropriate to their needs; and
   • (b) to facilitate the provision of housing assistance for those most in need; and
   • (c) ...
2. The respondent contends that subclause 25(8) of the Program should be read in its plain and ordinary meaning, that the clause is absent in hierarchy and that the date of effect is one of a number of dates, as provided for in (a) or in (b) or in (c) or in (d) of subclause 25(8).
3. Having considered the objects in section 6 of the HA Act the Tribunal is not satisfied that the objects support the applicant's contention that subclause 25(8) has a hierarchy. While one of the main objects of the HA Act requires the maximisation of opportunities for everyone in the ACT to have access to housing that is affordable, subsection 6(2) of the HA Act requires that the person administering the Act consider the resources available to him or her. It states:

(2) A person administering this Act must have regard to the objects of the Act to the maximum extent practicable considering the resources available to the person.

1. The Tribunal has noted the statement by Cole JA in the decision of the NSW Court of Appeal in Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd[48]:

Further, whilst regard may be had to an objects clause to resolve uncertainty or ambiguity, the objects clause does not control clear statutory language, [42] or command a particular outcome of exercise of discretionary power.

1. The language in subclause 25(8) of the Program is clear. The Tribunal concurs with the respondent that in this case the objects do not command a particular outcome of exercise of discretionary power.
2. If the Tribunal is wrong and there is a hierarchy in clause 25(8) the applicant's claim is that she would be eligible for the earliest of the alternate dates in clause 25(8), namely (a) as she had had a previous rent rebate which had come to an end.
3. To support this claim the applicant submitted that clause 25(8)(a) of the Program specified "the expiry of any previous provision of rent rebate" as the effective date to which a rent rebate could be backdated and that the term 'expiry' was broad enough to include situations like 'revocation' or 'cancellation' without the need to show unusual or out of the ordinary circumstances.
4. Based on this, the applicant submitted that this was the effective date for the new grant of rent rebate in this matter as she had previously had a rent rebate which had expired on 20 September 2015.
5. The letter informing the applicant about her rebate ending clearly stated that her earlier rent rebate had been cancelled. It did not expire. The Tribunal considered this issue in Miller where the applicant's rent rebate had been variously 'cancelled' and 'revoked' and said:

61. The Tribunal does not agree with the interpretation of 'expiry' in subclause 25(8)(a) sought by the applicant, namely that a 'revocation' of a previous rent rebate is equivalent to an 'expiry' of the rent rebate. Subclauses 25(6) and (7) of the Program provide for a rent rebate period of six months or such other period decided by the respondent and for the respondent to extend, from time to time, by up to six months the period of rent rebate. Such decisions are subject to the respondent's discretion in subclause 26(5) of the Program to suspend, amend or revoke the rent rebate. 'Revoke' is defined in the Oxford English Dictionary as 'rescind', withdraw', 'cancel'. 'Expire' is defined in the same Dictionary as 'the end of the period for which something is valid'. If the respondent was required to do as the applicant contends, to backdate the rent rebate to the date of revocation [or cancellation] of the previous rent rebate, this would unreasonably fetter the respondent's discretion to revoke a rent rebate when not satisfied that the applicant is eligible and then to grant a new rent rebate at a future point in time when satisfied that the applicant satisfies the eligibility criteria.

1. 'Cancel' is defined in the Australian Concise Oxford Dictionary[49] as 'withdraw or revoke (a previous arrangement)', 'discontinue (an arrangement in progress)'.
2. In the present matter, the Tribunal finds that the rent rebate was 'cancelled' from 20 September 2015 and that it did not 'expire'. It did not come to the end of the period for which it was valid. It was cancelled by the respondent. The Tribunal does not find that the term 'expire' is broad enough to include the term 'cancel'.
3. For the above reasons, the Tribunal finds that subclause 25(8)(a) of the Program does not apply in the applicant's situation. There is no basis to the claim that it operates to require or compel the respondent to backdate the applicant's rent rebate to the date it was cancelled, 20 September 2015.
4. The Tribunal is satisfied and finds that the applicant's rent rebate application dated 22 February 2016 was properly treated as a new application for a rent rebate which required the respondent to consider it in accordance with clauses 9(4) and 25 of the Program. Clause 25(b) allows for a rent rebate to commence on the date of the application, 22 February 2016. The only other relevant date for consideration is as provided for in clause 25(8)(d) - from an earlier date in circumstances decided by the respondent.
5. The respondent submits, when clause 25(8)(d) is read this way, the Rebate Guideline is relevant for the respondent's exercise of discretion and should be taken into consideration by the Tribunal on review.[50]
6. The applicant submits that the Rebate Guideline does not require her to demonstrate that she has unusual or out of the ordinary circumstances and that the respondent has the power to exercise its discretion under clause 25(8)(d) even where such circumstances do not exist.

If the Rebate Guideline applies whether it does not require the applicant to demonstrate unusual or out of the ordinary circumstances for the respondent to backdate the rent rebate

1. Subclause 25(8) specifies the date of effect for granting a rent rebate. This includes provision for a date earlier than would normally apply where particular circumstances exist. These would include circumstances that are unusual or out of the ordinary, such as:
   • Where a tenant was unconscious in hospital and could not contact Housing ACT to make them aware of their situation; or
   • Where a tenant has been called away unexpectedly because of a death or serious illness of an immediate family member.
2. The applicant submits that the Rebate Guideline is inconsistent with the HA Act and the Program because in determining the date of effect of a rent rebate it purports to require that the applicant demonstrate to the respondent 'unusual or out of the ordinary circumstances' whereas the first two objects of the HA Act are to maximise opportunities for everyone in the ACT to have access to housing that is affordable, secure and appropriate to their needs, and to facilitate the provision of housing assistance for those most in need.
3. The applicant also submits that section 21(2)(b) of the HA Act provides that housing operational guidelines must not be inconsistent with the HA Act (including in this case, the Program) and therefore the Rebate Guideline should be read down to eliminate that inconsistency. The applicant referred the Tribunal to section 43 of the Legislation Act which states:

43. Statutory instruments to be interpreted not to exceed powers under authorising law

(1) A statutory instrument is to be interpreted as operating to the full extent of, but not to exceed, the power given by the Act or statutory instrument under which it is made (the authorising law).

_(2) Without limiting subsection (1), if a provision of a statutory instrument would, apart from this section, be interpreted as exceeding power - _

(a) the provision is valid to the extent to which it does not exceed power; and

(b) the remainder of the instrument is not affected.

1. The applicant submits[51] that the effect of the Rebate Guideline is only to provide further examples of what might constitute 'circumstances decided by the housing commissioner' under clause 25(8)(d) and that it does not limit the respondent's powers to only cases of demonstrated unusual or out of the ordinary circumstances.
2. In support of this argument the applicant says that as the clear object of the HA Act is affordable housing, the respondent should consider that a decision to refuse to grant a rebate over a period where a person is otherwise eligible for a rebate, will prima facie be against the objects of the HA Act and even where there are no unusual or out of the ordinary circumstances, such a decision must be justified as serving some other legitimate object of the respondent in the execution of its statutory functions.
3. In support of the applicant's argument that the particular wording of the Rebate Guideline does not require that the applicant demonstrate 'unusual or out of the ordinary circumstances' the applicant referred the Tribunal to the precise wording (Tribunal's highlighting):

.... particular circumstances exist [and] would include circumstances that are unusual or out of the ordinary....

And submitted that the use of 'include' should be interpreted as identifying some examples of the particular circumstances and the examples referred to are indicative and not exhaustive. Clause 8 does not state that the particular circumstances 'require' or 'must be' circumstances that are unusual or out of the ordinary.

1. The applicant claims that the discretion in clause 25(8)(d) is a broad discretion which the respondent has conflated with the test in the Rebate Guideline of the applicant having to satisfy the respondent of her 'unusual or out of the ordinary circumstances' and that the Rebate Guideline is not co-extensive with the discretion in clause 25(8)(d). In the decision under review, the applicant submits that the respondent applied the Rebate Guideline inflexibly and in a manner that narrowed the respondent's discretion when considering clause 25(8)(d) and urges the Tribunal to not apply such an inflexible and narrow interpretation of the Rebate Guideline.
2. The applicant's submission of the 'inconsistency' of the Rebate Guideline with the HA Act and the Program was considered in Miller. The Tribunal adopts what the tribunal said in Miller (omitting footnotes):
   1. The decision under review is the respondent's decision to accept the recommendation of HATRP. The respondent submits and the Tribunal concurs that the applicant's submissions invite the Tribunal to go beyond that decision and to examine the circumstances of the original decision as to whether the Guideline is consistent with the HA Act and the Program. In an earlier tribunal decision of Zhang & Anor v Commissioner for Social Housing in the ACT (Administrative Review) where the tribunal considered the 'Director Housing ACT - Instruction' relating to 'Management of Sponsored Migration Applications for Housing Assistance'. That tribunal said at [137]-

The Tribunal accepts that the validity of the Instruction is not a matter for consideration by the Tribunal. However, in the Tribunal's opinion, although the Instruction did reflect a change in the respondent's policy, it did not involve any change to the proper interpretation of the HA Act or HA Program.

1. The role of the Tribunal is not to decide how the respondent's discretion to enact the Guideline and prescribe its terms should be exercised. The validity of the Guideline is not a matter for consideration by the Tribunal.

85. The respondent is permitted to issue guidelines pursuant to section 21 of the HA Act for the management of approved housing assistance programs. The Housing Assistance Public Rental Housing Assistance Program (Rent Rebate) Operation Guideline 2008 (No 1) is a notifiable instrument. The Guideline, which has been issued, states that its Purpose is "To provide guidance on clause 25 - Rent rebate." The Tribunal is satisfied and finds that this Guideline was put into effect to outline the management of clause 25 in the Program and, specifically, clause (8) of the Guideline was put in to effect in order to determine the 'Date of effect' or appropriate date to which a rental rebate may begin.

1. The Tribunal concurs with the respondent's submission that the Rebate Guideline merely serves to elucidate the policy objectives with which the respondent acts in exercising his discretion under clause 25(8)(d) in accordance with the HA Act objects and the Program and that it does not operate to fetter the respondent's discretion. Rather, it provides guidance as to when the discretion should normally be exercised.
2. There is no entitlement to the grant of housing assistance in the form of a rent rebate under the statutory scheme. It is the responsibility of the applicant for housing assistance to both apply for housing assistance and to provide information to satisfy the respondent of their eligibility for such assistance under the Program. Under the statutory scheme the respondent is not obliged to remind a tenant to re-apply for a rent rebate when the rent rebate period is coming to an end.
3. While the applicant urged the Tribunal in [76] above to find that not to grant a rebate over a period when an applicant is otherwise eligible goes against the objects of the HA Act the Tribunal notes that the respondent is required, in exercising his discretion in clause 25(8)(d), to have regard to all of the objects in the HA Act to the maximum extent practicable while having regard to the limited resources available to him. The respondent said that as at 11 November 2016, 1912 people were registered to be awaiting public housing.[52] Clearly there is a very high level of demand for social housing. It is unrealistic that all circumstances would amount to circumstances that warrant backdating a rent rebate. There is nothing in the statutory scheme which would force the respondent to backdate a rent rebate in all circumstances.
4. The Tribunal is satisfied and finds that it is necessary to have some limits on which circumstances would be of such weight that the respondent would be satisfied that a backdating of the rent rebate was warranted. The Program recognises this by empowering the respondent to determine, in his ultimate discretion, the circumstances in which a rent rebate can be backdated. This ensures that regard is had to all of the objects of the HA Act and that the respondent is complying with the mandatory obligation in subsection 6(2) of the HA Act. Clause 8 of the Rebate Guideline guides the respondent in the exercise of his discretion in clause 25(8)(d) of the Program.
5. For these reasons the Tribunal finds that the Rebate Guideline is not inconsistent with the HA Act or the Program. It is a legislative instrument and its purpose is, as stated in the Rebate Guideline, to provide guidance on clause 25 of the Program. Clause 8 of the Rebate Guideline provides the respondent with guidance for using his discretion to determine whether a date earlier than would normally apply is the effective date of the rebate grant. In exercising this discretion the respondent must consider whether particular circumstances, such as circumstances which are unusual or out of the ordinary, exist.
6. The Tribunal finds that the Rebate Guideline applies in this matter and its terms are such that the applicant is required to demonstrate that her particular circumstances are 'unusual or out of the ordinary'.

Are the applicant's circumstances unusual or out of the ordinary?

1. The applicant contends[53] that:
   • (a) the sudden and unexpected death of her son A meets example (b) in clause 8 of the Rebate Guideline; and
   • (b) consideration of the Domestic Violence Policy and of the material provided by the applicant requires that the applicant's experience related to her solicitors and set out in CCL's letter seeking the second level review and the report from her psychiatrist, Dr Ann Harrison, should be accepted as sufficient evidence of the domestic violence she suffered; and
   • (c) her particular circumstances, as set out in her witness statement, and her personal situation over the relevant period meet the definition of 'unusual or out of the ordinary' and warrant the backdating of the rental rebate application to the cancellation of the previous rebate on 20 September 2015.

1. In considering (a) in the previous paragraph the Tribunal noted that the applicant's solicitor described her as "a highly vulnerable indigenous woman with a history of homelessness, mental health issues and long term domestic violence."[54]
2. She had four children. Her youngest child died in 2013. Fourteen months later, on 31 March 2015, her eldest child passed away suddenly and unexpectedly. The applicant stated in her witness statement:

10....it was a huge shock to me and continues to cause me intense grief. During the immediate period following [A's] death, I was grief stricken and preoccupied with arranging his funeral.

11.My mental health further deteriorated after [A's] death. My struggles with anxiety, depression and prescription drug dependence intensified. I often found myself with suicidal thoughts and I attempted suicide via drug overdose on several occasions.

1. The applicant's psychiatrist, Dr Ann Harrison, corroborated the applicant's various serious medical conditions in her letter dated 15 March 2016 and the applicant's evidence of her struggles.
2. In her evidence the applicant described her mental health after her son's sudden and unexpected death as:

Like I was just grieving of loss. I just - It's something I've never felt in my -never, ever felt before. I felt like I didn't have anybody to support me.[55]

1. The applicant said she was going back and forth to Dubbo, where she was born and where her family is, because her son had died unexpectedly and she was grieving his death with her camp family in Dubbo. The applicant submitted that clause 8(b) of the Rebate Guideline recognises where there is an unexpected death, people can react in ways that might not allow them to put in rebate forms or engage with bureaucratic processes or notify the respondent through proper channels about their circumstances.
2. The Tribunal is satisfied and finds that the applicant's son's sudden death is a relevant fact and proper weight should be given to this fact when exercising the discretion in clause 25(8)(d) of the Program and clause 8 of the Rebate Guideline.

1. Paragraph (b) in [86] above, asks the Tribunal to consider the Domestic Violence Policy.
2. The respondent submits that a policy must be consistent with the statute and that the respondent's general discretion conferred by the HA Act and the Program cannot be confined by the policy. The respondent referred the Tribunal to the decision of the Federal Court of Australia decision of Elias v Commissioner of Taxation[56] where Hely J said:

The Commissioner is entitled to adopt a policy to provide guidance as to the exercise of the discretion, provided the policy is consistent with the statute by which the discretion is conferred. Thus if the statute gives a discretion in general terms, the discretion cannot be truncated or confined by an inflexible policy that it shall only be exercised in a limited range of circumstances. A general policy as to how a discretion will "normally" be exercised does not infringe these principles, so long as the applicant is able to put forward reasons why the policy should be changed, or should not be applied in the circumstances of the particular case. See Re Drake v Minister for Immigration & Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634 at 640-641; Chumbairux v Minister for Immigration & Ethnic Affairs (1986) 74 ALR 480 at 492-493.

1. Section 2 of the Commissioner's Domestic Violence Policy Manual 2015 sets out the domestic and family violence service delivery framework. [57] It states that the framework is more than a policy statement and that it is a practical document that translates policy into practice. The Principles are:

Housing and Community Services, in its decision-making, policy implementation and daily practices related to domestic and family violence, is guided by four fundamental principles:

• The immediate and long-term safety of women and children is paramount
• The best interests of the child must be maintained
• A woman's personal account of domestic and family violence, including her understanding of its impact and associated safety risks, will be accepted
• The responsibility for violence always rests with the person using the violence

... "These principles will be considered in all decision-making, including any determination and application of discretion by the Commissioner for Social Housing and in the development and application of policies and procedures related to domestic and family violence within the Directorate.

1. The Tribunal is required to take everything properly relevant to this matter into account and be satisfied on the facts before it in making its decision. This includes the Domestic Violence Policy. While the Tribunal is not bound in a strict legal sense by the matters laid down in the policy the Tribunal will consider the policy as a guide in making its discretionary decision.
2. Paragraph 86(c) above requires the Tribunal to consider whether the applicant's particular circumstances, as set out in her witness statement, and her personal situation over the relevant period meet the definition of 'unusual or out of the ordinary' and warrant the backdating of the rental rebate application to the cancellation of the previous rebate on 20 September 2015.
3. The respondent did not make any submissions in relation to the applicant's circumstances in 2015 or as to whether they were unusual or out of the ordinary.
4. In her witness statement the applicant described a long history of domestic violence from her ex-partner during the eight years they were together before she entered into the lease for the property at Belconnen in January 2015. She also said that she often experienced long periods of homelessness during her relationship with her ex-partner.
5. The applicant's second child, B, who was listed as a resident on the tenancy agreement, was supposed to be her carer. She said that B came and went from the property. He was supposed to be paying the rent into her debit account for housing but did not do so. He had struggled with substance abuse after his younger sister died in 2013 which intensified after his brother's death 14 months later in March 2015. B was using ice. He was violent towards her and attacked her. With her past history of being a victim of domestic violence over a lengthy period of time the applicant said when she became a victim of B's domestic violence she was unable to stay at the property without a severe escalation of her anxiety. While experiencing B's domestic violence she was also struggling to deal with her profound grief over her elder son's sudden death.
6. She told the Tribunal she left the property in August 2015 as she had "to be with family", "to go away", "couldn't be in the house", she had "got the house in the first place because of domestic violence" in the previous relationship, "my kids - they were grieving", "my son [B] he was not himself", "there was a lot of conflict", "I had to go. I said I just needed to go", "Days, weeks and months, no - to me it would've went very quickly."[58]
7. The applicant was drinking heavily and abusing prescription drugs during this time. She said she returned to the property sometime after the end of August 2015 and found B there as well as his girlfriend "on and off". This caused a lot of conflict and B responded with violence and intimidation to her. She did not involve the police or take legal action as she feared for the repercussions for herself and B. She said she did not want B locked up as they had recently lost his big brother.
8. She told the Tribunal that she found the conflict too difficult to deal with, so soon after her older son's death. She said "I just couldn't be there. I could not be there." ... "It was just too much, where I felt suicidal. I tried to do it [suicide] four times." ... "I rang up and asked for help, including mental health and the Calvary Hospital and things like that. I couldn't get any help anywhere. No-one would listen to me." [59] She said that she was forced to be absent from the property because of the domestic violence.
9. Her father passed away in October 2015 which was another cause of grief which put additional strain on her financial and mental well-being.
10. During the period she was absent from the property the applicant said she was homeless; she hitch hiked and caught buses to and from Dubbo and couched surfed in Canberra and Dubbo. She continued to struggle with her mental health and drug and alcohol abuse. She said not only was 2015 'shocking' but that 2016 continued to be shocking for her.
11. The applicant said that she has a very poor recollection of dates after her son's death. In her witness statement she said that she had a car accident in 2011; suffered severe head injuries; her memory has been affected and she often struggles to recall dates, appointments and events. The medical report from Dr Ann Harrison attached to the applicant's witness statement corroborates that the motor vehicle accident occurred on 18 September 2011 and states that the applicant was "admitted TCH - multiple injuries". The applicant's struggle to recall dates and events was apparent when she gave evidence to the Tribunal. She said that to the best of her memory she returned to the property in early January 2016. She believed B was then in gaol.
12. Notwithstanding that 11 months had passed since the applicant returned to the property it was apparent to the Tribunal at the hearing that she had not dealt with her shock and anxiety over B's violence to her and her property and that she was still trying to come to terms with her elder son's sudden death.
13. While she is incarcerated at present she said in her witness statement:

6. I understand I face an extended period of incarceration if evicted from my Housing ACT property, on the basis that I will not have suitable accommodation to which I can be paroled. However, I sincerely wish to re-enter the community after my difficult year of losing my [son] and my father, the resulting struggles with my mental health, and my experiences with family violence.

25.I am fully committed to maintaining my tenancy so I may return home after my legal issues have been resolved. Without my home I may be refused parole. After enduring violence from my former partner as well as from my son, I am desperate to keep my home so that I can continue to rebuild my life upon my release.

where a person has fled their property fearing harm, that those circumstances should be considered 'unusual or out of the ordinary' as a matter of course. That is particularly so in the context of family violence and having regard to the Commissioner's own policy on the issue.[60]

1. The Domestic Violence Policy Manual 2015 states in relation to 'supporting documentation' that it recognises that some women, including aboriginal women, may face additional barriers to obtaining supporting documentation and that Housing and Community Services' (HACS) response to domestic and family violence is underpinned:

by an acceptance of a woman's disclosed experience of domestic and family violence, including her understanding of its impact and associated safety risks.[61]

Supporting documentation in relation to domestic and family violence does not need to contain explicit details. It might broadly outline the situation and the impact of the domestic and family violence to support claims made by the applicant or tenant.

1. The Manual also states at page 13 under 'Accepted Supporting Documentation' that HACS will accept two of the following as adequate supporting documentation which include a letter from a solicitor and a psychiatrist. CCL's letter to the respondent dated 12 May 2015 detailed the domestic and family violence relied upon and also enclosed a letter from the applicant's psychiatrist, Dr Ann Harrison, which outlined her complex medical history and medications and the domestic violence the applicant has experienced.
2. Given that these two letters appear to meet HACS' accepted supporting documentation position it was not clear to the Tribunal why, on 17 June 2016, the respondent requested in a letter to CCL, without explanation, that the applicant provide the following additional information:
   • evidence that Ms Little's son was paroled to a specific property;
   • information as to when Ms Little's son went back to jail; and
   • any additional supporting documents Ms Little may have such as police or hospital reports.[62]
3. CCL formed the view that this request for that information was not relevant and, moreover, was in breach of the Domestic Violence Policy in that it asked the applicant to engage with her son, the perpetrator of the violence in 2015, and request personal information from him that she wouldn't ordinarily have access to. For the reasons set out above, the Tribunal agrees with CCL's view of this request.
4. The Tribunal has considered this matter anew. Having considered all the facts and circumstances set out in the material before it the Tribunal is not satisfied that, at the date of the hearing, the decision under review is the correct or preferable decision.
5. The Tribunal stated in Miller at [149]:

Subclause 25(8)(d) of the Program gives the respondent the discretion to provide that a rent rebate takes effect from an earlier date. Clause 8 of the Guideline assists in interpreting subclause 25(8) by stating that 'particular circumstances' 'include circumstances that are unusual or out of the ordinary' and then gives examples such as 'where a tenant was unconscious and in hospital and could not contact Housing ACT to make them aware of their situation or where a tenant has been called away unexpectedly because of a death or serious illness of an immediate family member'. While the examples have been described as 'extremely serious examples and the seriousness of those examples indicates the high threshold an applicant's circumstances must attain for the commissioner to be satisfied that the failure to apply for the rent rebate earlier is adequately justified'[63], the Tribunal finds that the examples are not exhaustive.

1. Notwithstanding the Tribunal's finding that the examples in clause 8 of the Rebate Guideline are not exhaustive the Tribunal is satisfied that proper weight should be given to the applicant's son, A's sudden death when exercising the discretion in clause 25(8)(d) of the Program and clause 8 of the Guideline. The Tribunal is satisfied that the applicant's son's unexpected and sudden death in March 2015 meets example (b) in clause 8 of the Rebate Guideline and should be found, if not on its own, to be circumstances which are unusual or out of the ordinary then to be a very relevant factor in considering whether the applicant's particular circumstances are unusual or out of the ordinary.
2. The Tribunal has considered all of the evidence, the HA Act, the Program and the Rebate Guideline. The Tribunal has also considered the principles in the Domestic Violence Policy as it is considering the application of discretion in clause 25(8)(d) of the Program.
3. The applicant's evidence of the domestic violence she suffered from B in 2015 against a background of domestic violence she had suffered over eight years in her previous relationship, which evidence was not challenged and which the Tribunal had no hesitation in accepting and the impact on her of her son A's death all contribute to the Tribunal finding that the applicant's circumstances do meet the test of unusual or out of the ordinary circumstances. The applicant's oral evidence was corroborated by the reports from the applicant's psychiatrist, her general practitioner and her social worker at Winnunga Nimmityjah as well as her witness statement and in CCL's letters to the respondent dated 22 February 2016, 21 March 2016 and 12 May 2016.
4. In coming to this decision the Tribunal also took into consideration the applicant's personal situation during the period when she was unable to return to live in the property because of B's violence to her, when she was, essentially, couch surfing and homeless. The Tribunal finds that she was as her solicitor said - "a highly vulnerable indigenous woman with a history of homelessness, mental health issues and long term domestic violence."
5. The Tribunal has also considered the fact that if the applicant's rent rebate is backdated to 20 September 2015 then her rent arrears will be reduced from approximately $10,900 to approximately $4,600 and this also contributes to the Tribunal's finding that her circumstances do meet the test of unusual or out of ordinary.
6. The respondent submitted that the earliest that the applicant's rebate should be backdated to is early January 2016 when the applicant recommenced residing in the dwelling at the property and became eligible to reapply for a rent rebate. For the reasons set out above, the Tribunal is satisfied that as the applicant's particular circumstances between 20 September 2015 and early January 2016 meet the test of unusual or out of the ordinary and therefore determines that the rent rebate is to be backdated to 20 September 2015.
7. For these reasons it is not necessary for the Tribunal to consider the contentions in relation to the HR Act, however as the parties made detailed written and oral submissions in relation to human rights the Tribunal has also considered it.

1. The respondent is a public authority within the meaning of section 40(1) of the HR Act.
2. The applicant relied on the respondent's obligation under section 30 of the HR Act to interpret the Program, and in particular clause 25(8), in a way that is compatible with her human rights and contends interpreting clause 25(8) in a way which did not maximise the period over which the respondent must provide a rent rebate is an arbitrary interference with her home under section 12(a) of the HR Act.
3. The Tribunal, standing in the shoes of the respondent, is bound to exercise this function in accordance with the duty on a public authority in section 40(1)(b) of the HR Act, namely to give proper consideration to and to act compatibly with human rights in making the decision. The Tribunal is also required pursuant to section 30 of the HR Act to interpret Territory laws as is consistent with their purposes in a way that is compatible with human rights.
4. In the Victorian Supreme Court decision of Castles v Secretary, Department of Justice[64] (Castle) Emerton J said:

... 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 should 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 involved 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.

186. While I accept that the requirements 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.

1. The Tribunal has considered the reviewable decision. Notwithstanding that CCL specifically addressed the HR Act in their letter dated 12 May 2016 requesting the second level review there is no evidence, either formally by reference to the HR Act or by implication, in the reviewable decision or the documents provided that the respondent gave any consideration to the applicant's relevant human rights or the effect that this decision could have to her security of her home.
2. Nor could the Tribunal find, in the documents provided, any material which showed that the respondent understood, in general terms, which of the rights of the applicant 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. It appears to the Tribunal that consideration of the applicant's human rights was not a part of the respondent's decision making process notwithstanding, as Emerton J said in Castle, that such consideration is intended to become "a common garden activity for persons working in the public sector, both senior and junior."
3. In this regard, the Tribunal notes the following statement by Refshauge J in Hakimi:

95. Thus if the respondent had failed to advert to the human rights ... this may have justified curial intervention.

1. In this matter the applicant relies on her human right in section 12(a) of the HR Act. The respondent submits that section 12 of the HR Act will not, prima facie, be engaged by the decision of the respondent to accept a recommendation of HATRP not to backdate a rent rebate and, on its face, such a decision does not amount to an interference with the applicant's home.
2. Whether section 12 of the HR Act is engaged by a decision in relation to rental rebate will depend on the effect of that decision on the applicant's particular circumstances.
3. Throughout the relevant period the applicant's income was the Disability Support Pension (DSP). As the result of her rental rebate being cancelled the applicant was charged market rent for the relevant period. It should have been apparent to the respondent that the applicant had no capacity to pay market rent from her DSP. By the time the applicant had re-applied for the rent rebate and the backdating of its date of effect she had accrued significant rental arrears. At the hearing those arrears, based on market rent, were agreed to be in excess of $10,600. The respondent had obtained a termination and possession order which had effect as a warrant for eviction from the tribunal on 18 February 2016 based on the arrears. While the warrant was suspended for three weeks, until 10 March 2016, the applicant was facing eviction from her home as a result of the rent arrears. The current ledger provided by the respondent showed that the rent arrears, based on being charged market rent, on 18 February 2016 were $10,198.00. At the hearing the parties agreed that if the rent rebate was backdated to 20 September 2015, as sought by the applicant, the arrears would be reduced by approximately $6,300 to approximately $4,600. This information should have been considered as it may have materially affected the decision under review.
4. The respondent contends that the proper forum in which to raise the applicant's human rights is in the residential tenancy proceedings "as not every time a commissioner refuses to backdate rent rebates will termination proceedings commence, and not every time they are commenced will be they be decided in the commissioner's favour."[65] The Tribunal does not concur with this contention. The Tribunal is satisfied and finds that the respondent, and the Tribunal standing in the respondent's shoes in administrative review, is required to give proper consideration to the applicant's human rights as part of the decision making process and not to act in a way that is incompatible with those human rights.
5. Having considered the applicant's particular circumstances the Tribunal is satisfied that section 12(a) of the HR Act is engaged.
6. In determining whether the respondent's decision was an arbitrary or unlawful interference with the applicant's right under section 12(a) of the HR Act the Tribunal sets out and adopts the following passages from its decision in Miller:
   1. For what constitutes an 'interference' with the right to the home the applicant referred the Tribunal to the VCAT decision of Director of Housing v Sudi[66](Sudi) which concerned proceedings under the Victorian Residential Tenancies Act 1997 and the Charter of Human Rights and Responsibilities Act 2006 and where Bell J (footnotes omitted) said:

...what amounts to an 'interference'...is approached in a 'simple and untechnical' manner. This is Manfred Nowak ...every invasion of that sphere paraphrased by the term "home" that occurs without the consent of the individual affected ... represents interference. Evicting or seeking to evict someone living in social housing is interfering with their human rights relating to their home. Any attempt to do so, directly or indirectly or by process of law, constitutes such interference...

1. For determining whether such an interference is 'arbitrary' in human rights terms the applicant referred the Tribunal to the decision of the Victorian Supreme Court in Patrick's Case [67] and to two tribunal decisions, Commissioner of Social Housing v "A" (CSH & A)[68] and Commissioner for Social Housing and Jones (CSH & Jones).[69] In Patrick's Case Bell J said:

85. I therefore conclude that the human right...not to have your privacy, family, home or correspondence 'arbitrarily' interfered with extends to interferences which, in the particular circumstances applying to the individual, are capricious, unpredictable or unjust and also to interferences which, in those circumstances, are unreasonable in the sense of not being proportionate to a legitimate aim sought. Interference can be arbitrary although it is lawful.

1. In CSH & A Member Daniel (as she then was) said, in proceedings under the Residential Tenancies Act 1997 (ACT),

...when a public authority brings an application under the RT Act, it is open to the tenant to argue that the making of the order would be disproportionate or unreasonable such as to amount to an arbitrary interference with their home, and that, given the nature of the particular provision of the RT Act relied upon and the individual circumstances of the case, the discretionary power to make the order should not be exercised. Where a substantive argument is raised, it is for the applicant lessor to satisfy the tribunal that, after a consideration of all the circumstances of the case (including whether or not the orders sought by the lessor impermissibly contravene the tenant's rights under the HR Act), the orders should be made.

1. Senior Member Lennard referred, with approval, to the above passage in CSH & Jones, another proceeding under the Residential Tenancies Act 1997.
2. The Tribunal is satisfied following Sudi and considering "interference with the home in a simple and untechnical manner", that the decision under review was an interference with the applicant's human right to 'home'. The consequence of the decision is an attempt by a process of law to interfere with the applicant's right to her home without her consent.

Was the respondent's decision arbitrary or unlawful

1. In determining whether the interference is arbitrary or unlawful in human rights terms the Tribunal does not accept the applicant's submission that the applicant was charged rent at an arbitrary rate when she was charged market rent. While market rent was far above what the applicant could afford when her income was DSP, section 22 of the HA Act requires that market rent be charged. The market rent is prescribed by a formula in section 22(3) of the HA Act and is a term of the standard residential tenancy agreement. It was included in the agreement which the applicant signed which specified rent of $780 per fortnight.
2. In determining whether the reviewable decision was unlawful the Tribunal does not have jurisdiction to declare that a Territory Act is incompatible with section 30 of the HR Act, in its administrative review jurisdiction. The declaratory power in section 32 of the HR Act vests in the Supreme Court. However, as Bell J stated in Patrick's case a decision can be arbitrary although it is lawful.
3. The Tribunal has considered the evidence to determine whether the reviewable decision amounts to an interference which would be disproportionate or unreasonable such that the exercise of the discretionary power by the respondent amounts to an arbitrary interference with the applicant's home. In doing so the Tribunal is obliged to give proper consideration to the applicant's human rights.
4. The respondent variously submitted[70] that the reviewable decision was governed by clear, pre-existing rules and procedures that are predictable and foreseeable by those to whom they are applied; it was based on and complied with consistent, objective procedures and guidelines in the HA Act, Program and Rebate Guidelines and it was made according to law and by a process of reasoning.
5. While the Tribunal accepts these submissions, it is not satisfied that the reviewable decision properly took into consideration the unchallenged and corroborated evidence about the domestic violence, which was the catalyst for the applicant leaving the property and a very relevant component of the applicant's particular circumstances. As already stated above, the Tribunal was satisfied from the evidence that no consideration had been given to the applicant's human rights in the reviewable decision in relation to the applicant's home.
6. The applicant's right under section 12 of the HR Act is not absolute; it is subject to reasonable limitations pursuant to section 28 of the HR Act which are reasonably demonstrably justified in a free and democratic society_._
7. As in Miller[71], the respondent relied on the wording in subsection 6(2) of the HA Act "considering the resources available to the person" as indicating that the legislature recognises that must be a limit to the housing assistance the respondent can provide and the use of the word 'eligible' in the Program's objects - "providing assistance to eligible people in the Territory who are most in need" - as indicating that the legislature intended that rent rebates are only provided to people who satisfy certain criteria in the housing assistance scheme.
8. It is necessary for the Tribunal to determine whether such limits are reasonable. The Tribunal adopts the following passages from Miller:

113. In determining this question the Tribunal has considered the ACT Supreme Court decision of Hakimi[72] in which Refshauge J set out and adopted the Attorney-General's submissions in that matter in relation to the correct approach to issues raised by Part 5A of the HR Act, 'Obligations of Public Authorities', where a limitation is imposed by the decision on any of the rights protected under Part 3 of the HR Act. Included in the questions the Attorney- General said should be asked were the following questions:

3. Is the limitation reasonable, insofar as it can be demonstrably justified in a free and democratic society having regard, inter alia, to the factors set out in s 28(2) of the Human Rights Act? To put it another way, is the limitation proportionate?

4. Even if the limitation is proportionate, where the matter involves making a decision, did the decision-maker give proper consideration to the protected right?

1. In considering proportionality it is necessary to balance the general interest against the interest of the individual. The interference cannot have a disproportionately severe effect on the person to whom it applies.
2. The respondent says any limitation is reasonable and proportionate because the statutory scheme provides a clearly defined process as to the way in which rent rebates are to be applied for, considered and granted; it takes into account the needs of other public housing tenants and the commissioner's limited resources and the commissioner's decision was consistent with his statutory obligations which included administering the Public Housing program in a way that accords with the objects of the HA Act. This is a legitimate end which justifies the limitation on the applicant's rights.[73]
3. The Tribunal is satisfied and finds that:
   • (a) the statutory scheme provides a clearly defined process as to the way in which rent rebates are to be applied for, considered and granted; and
   • (b) the scheme takes into account the needs of other public housing tenants and the Commissioner's limited resources.
4. In considering whether the respondent's decision was consistent with his statutory obligations to administer the public housing program in a way which accords with the objects of the HA Act and whether this demonstrated a legitimate end which justified the limitation on the applicant's rights, the Tribunal is troubled by the fact that even if it were to find that the limitation was proportionate, given that the matter involved the respondent making a 'decision', the Tribunal cannot be satisfied, from all of the material before it, that the respondent gave proper consideration to the applicant's protected right in the HR Act. There is simply no evidence that would enable the Tribunal to find that the respondent considered the possible impact of the decision on the applicant's human right under section 12 of the HR Act.
5. In considering the applicant's human rights in this review, the Tribunal cannot be satisfied, from the material before it, that the nature and extent of the limitation would be slight. The respondent was aware at the time of the HATRP recommendation to the respondent not to backdate the date of effect of the rent rebate that on 24 February 2016 and at the time that the respondent accepted the HATRP recommendation that the tribunal had terminated the applicant's tenancy and that the termination and possession order had effect as a warrant of eviction. While the warrant had been suspended the reality was that the applicant was facing eviction based on the arrears arising from the respondent's decision not to backdate the date of effect of the rent rebate.
6. The Tribunal is not satisfied from the evidence that the respondent demonstrated an understanding, even in general terms, of the human rights of this applicant which were engaged by the exercise of its powers. Nor did the respondent demonstrate an understanding of the factors that would otherwise be considered in determining whether a limitation on those rights was proportionate.
7. Having considered all of the evidence the Tribunal finds that the respondent's decision to accept HATRP's recommendation not to backdate her rent rebate was an unreasonable and arbitrary interference with her right to home in section 12(a) of the HR Act. It has a disproportionately severe impact on the applicant as she will be facing homelessness, even when balanced against the respondent's legitimate aim and matters of housing stock. The interference was not in accordance with the provisions, aims and objectives of the HR Act. It was not the correct or preferable decision.
8. The correct and preferable decision is that pursuant to clause 25(8)(d) of the Program the date of effect of the applicant's rent rebate is from 20 September 2015, when her previous rent rebate was cancelled.

[7] Miller v Commissioner for Social Housing [2017] ACAT 10

[8] Applicant's statement of facts and contentions at [3], [4], [5], [6] and [45],[47], [50]

[9] Applicant's statement of facts and contentions at [39]

[10] Applicant's statement of facts and contentions at [26], [40], [41], [42]

[13] Applicant's statement of facts and contentions at [43]

[14] Respondent's submissions dated 9 December 2016 at [15], [10], [11], [12], [13], [17]

[15] Director of Housing v Sudi [2011] VSCA 266 Per Warren J at [34]

[16] Elias v Commissioner of Taxation [2002] FCA 845; (2002) 123 FCR 499, per Hely J at [34]

[17] Respondent's submissions at page 12 [5], [9], page 14 [15], [17], [23]

[18] Castles v Secretary, Department of Justice [2010] VSC 310 per Emerton J at [185]

[20] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30] citing Collector of Customs v Pozzolanic [1993] FCA 456; (1993) 43 FCR 280

[21] Respondent's submissions page 15 [1], page 16 [2]

[22] PJB v Melbourne Health & Anor (Patrick's case) [2011] VSC 327, per Bell J at [77] to [80]

[23] Respondent's submissions page 16 at [4.1]

[26] Respondent's submissions page 16 at [4.2],

[28] Respondent's submissions page 16 at [4.3]

[29] Respondent's submissions page 16 [4.4]

[30] Respondent's submissions page 18 [8.7],[9],

[31] Section 32 of the HR Act, respondent's submissions at page 22 at [29]

[32] [2015] ACT 13 at [51], respondent's submissions page 18 at [10]

[33] Respondent's submissions page 19 at [12]

[34] Respondent's submissions page 19 at [13]

[35] Respondent's submissions page 19 at [14]

[36] Hakimi v Legal Aid Commission (ACT); The Australian Capital Territory (Intervener) [2009] ACTSC 48 at [51], Respondent's submissions at page 20 at [22]

[37] Thomson v Commissioner for Social Housing in the ACT [2009] ACAT 38, per Presidential Member Spender at [101], respondent's submissions at page 21 at [23]

[38] Respondent's submissions at page 22 at [27], Silver v UK (1983) 72 ILR 334, at [369]

[39] Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85 at [10]

[40] [2008] HCA 31 at [35], [98]

[41] [1979] FCA 39 577 at 589

[42] [2008] HCA 31 at [140],

[43] Drake v Minister for Immigration and Ethnic Affairs [1979] FCA 39 at 601

[44] Drake's Case at 599, per Smithers J

[45] Transcript of Proceedings in Miller page 27 lines 21-23

[46] Minister for Immigration and Ethnic Affair v Pochi [1980] FCA 85 at [12]

[47] [2013] ACAT 46 at [50]- [54] &[58] per Member Daniel as she then was

[48] [1996] NSWSC 348; (1996) 91 LGERA 31

[50] Respondent's submissions at page 10 at [5]

[51] Applicant's statement of facts and contentions at [55ii]

[52] Respondent's submissions page 11at [9]

[53] Applicant's statement of facts and contentions at [29], [31]

[54] Applicant's statement of facts and contentions at [28]

[55] Transcript of Proceedings page 28, lines 23-24

[56] [2002] FCA 845 at [34]

[58] Transcript of Proceedings page 28, lines 33 - 44.

[60] Applicant's statement of facts and contentions at [31]

[61] Page 12 of the Domestic Violence Policy Manual 2015

[63] Ms Storey for the respondent at Transcript of Proceedings page 62, lines 41 - 44

[64] [2010] VSC 310 at [185] [186]

[65] Transcript of Proceedings page 23 lines 27-29

[66] [2010] VCAT 328 at [34]

[67] [2011] VSC 327, [85]

[68] [2015] ACAT 13 at [38], [42]-[43]

[69] [2016] ACAT 75 at [25]

[70] Respondents submissions page 16, [4.1] - [4.4]

[72] [2009] ACTSC 48 at [51]

[73] Transcript of Proceedings page 38, lines 15-22