Lynwood v Coffs Harbour and District Local Aboriginal Land Council

Consideration

We begin with the relevant legislative history of s 154E of the Act because of the tenants' submissions that the Amending Act means that since 18 December 2015 the Tribunal must take into account the factors in s 154E before terminating social housing tenancy agreements on the service of a 90 day notice. The history of the legislative scheme may help us decide what parliament intended when it enacted s 154E: Palgo Holdings Pty Ltd v Gowans [2005] HCA 28; (2005) 221 CLR 249 at [12] - [21], [29]-[30].
Part 5 of the Act provides for the termination of residential tenancy agreements. That Part contains s 85(3) which requires the Tribunal to terminate a periodic tenancy agreement if it is satisfied of the matters in that provision. Section 85(3) applies to all periodic tenancy agreements including social housing tenancy agreements. Part 7, Division 5 contains additional provisions applicable to the termination of social housing tenancy agreements. It was that Division that was amended by the Amending Act. The long title of the Amending Act is to "amend the Residential Tenancies Act 2010 and the Housing Act 2001 to facilitate the termination of public housing tenancies for antisocial behaviour and for other purposes".
The Amending Act amended the heading to Division 5 of Part 7 of the Act. The heading was "Termination of social housing tenancy agreements - additional grounds". The words "additional grounds" were removed because "the Division as amended will relate to grounds for termination under Part 5 of the principal Act as well as additional grounds": Explanatory Note to the Residential Tenancies and Housing Legislation Amendment (Public Housing Antisocial Behaviour) Bill 2015 (the Bill). Not only does Division 5 of Part 7 provide additional grounds for terminating social housing tenancy agreements, it qualifies and modifies existing grounds for termination under Part 5.
Before the Amending Act took effect, Division 5 of Part 7 comprised ss 143 - 155. The Amending Act restructured the Division into Subdivisions dealing with various subjects. Subdivisions 1, 2 and 3 now deal with the existing grounds for termination on eligibility grounds, alternative premises grounds and behaviour grounds. Two new Subdivisions were added - Subdivision 4 headed "breach of agreement" and Subdivision 5 headed "Miscellaneous". Subdivision 4 contains s 154A - s 154F. Some of those provisions expressly apply to the termination of residential tenancy agreements under particular provisions in Part 5. For example, s 154B lists extra factors to which the Tribunal must have regard when determining whether to terminate an agreement under s 87 for any breach of the agreement. Section 154D lists extra matters about which the Tribunal must be satisfied when determining whether to terminate an agreement under s 90 (serious damage or injury by tenant or other occupant) and s 91 (use of premises for illegal purposes).
Section 154E contains no reference to any provision in Part 5. It is a modified version of the old s 152 which provided that: 152 Termination by Tribunal of social housing tenancy agreements for breach (1) In determining whether to terminate a social housing tenancy agreement on the ground of a breach by the tenant, the Tribunal is to have regard to such of the following matters as may be relevant: (a) any serious adverse effects the tenancy has had on neighbouring residents or other persons, (b) whether any breach of the agreement was a serious one, and whether, given the behaviour or likely behaviour of the tenant, a failure to terminate the agreement would subject, or continue to subject, neighbouring residents or any persons or property to unreasonable risk, (c) the landlord's responsibility to its other tenants, (d) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal, (e) the history of the tenancy concerned, including any prior tenancy of the tenant arising under a social housing tenancy agreement. (2) This section does not limit any other matters that may be considered by the Tribunal under any other provision of this Act.
Schedule 1 to the Explanatory Note to Bill describes the effect of s 154E: Proposed section 154E lists the factors that must be taken into account by the Tribunal in determining whether to make a termination order for a social housing tenancy agreement. These include the factors currently set out in section 152 of the Principal Act and, in addition, the history of the current tenancy and any prior tenancy arising under a social housing tenancy agreement with the same or a different landlord.
The tenants highlighted the differences between the old s 152 and the new s 154E. The words "on the ground of a breach by the tenant" in s 152 were not included in s 154E. In their submission, those words were deleted because s 154E not only applies to termination for breaches by the tenant but also, for example, to termination under s 85(3) for failure to vacate the premises following a 90 day notice being issued.
In construing s 154E, we may have regard to the fact that the words "on the ground of a breach by the tenant" were not included: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 366-368. But the omission of those words cannot result in an interpretation of s 154E which is not apparent on its face, especially if there is a rational explanation for the change: DC Pearce and RS Geddes, Statutory Interpretation in Australia, (8th ed 2014, Lexis Nexis Butterworths); Walsh v Permanent Trustee Australia Ltd (1996) 21 ACSR 213 at 215.
On its face, s 154E applies to any termination order for a social housing tenancy agreement, not just to termination for a breach of the agreement by the tenant. Nothing in any of the extrinsic material to which we were referred explains the omission of the words "on the ground of a breach by the tenant" in s 152 from s 154E. However, for the reasons we give below, the Tribunal must not have regard to the matters listed in s 154E when determining whether to terminate a social housing tenancy agreement under s 85(3).
Section 154E must be read in the context of the whole Act. As the High Court said in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309 at 315: … to read the section in isolation from the enactment of which it forms a part is to offend against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context.
Subdivision 4 of Division 5 of Part 7 of the Act, which includes s 154E, is headed "breach of agreement". Because that is a heading to a Subdivision, it is taken to be part of the Act: Interpretation Act, s 35(1). The heading supports the conclusion that s 154E applies only to termination orders for breaching the tenancy agreement. A 90 day termination notice does not seek to terminate the tenancy agreement on the ground of breach.
While the heading to s 154E ("exercise of discretion to make termination order") is not to be read as part of the Act, it is extrinsic material which can be taken into account in the circumstances set out in s 34(1) of the Interpretation Act 1987 (NSW): (1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material: (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or (b) to determine the meaning of the provision: (i) if the provision is ambiguous or obscure, or (ii) if the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made) leads to a result that is manifestly absurd or is unreasonable.
The heading to s 154E is capable of assisting to ascertain the meaning of s 154E because, in accordance with s 34 (1)(b)(i) of the Interpretation Act, it is ambiguous. While it lists factors to which the Tribunal must have regard when making a termination order, it does not expressly limit the provision to circumstances where the Tribunal is exercising discretionary power. However, we are satisfied that it can be implied that the provision is limited to circumstances where the Tribunal is exercising discretionary power. We rely on the heading to s 154E to support that conclusion as well as the inclusion of the words "when considering whether to make a termination order". When the Tribunal is determining whether to make an order under s 85(3) it must be satisfied of certain factual matters. It is not considering or taking into account any other matters.
When construing a legislative provision, the Tribunal is to have regard to the purposes or objects of the legislation. Section 33 of the Interpretation Act 1987 provides that: 33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.
The long title of the Act is "An Act with respect to the rights and obligations of landlords and tenants, rents, rental bonds and other matters relating to residential tenancy agreements; and for other purposes". As we have said, the purpose of the Amending Act, as disclosed by the long title, was to "facilitate the termination of public housing tenancies for antisocial behaviour and for other purposes".
According to the tenants, a secondary purpose of the legislation is to regulate the relationship between landlord and tenant. The tenants highlighted security of tenure as an issue for social housing tenants as well as protecting the community including other social housing tenants, from the effects of anti-social behaviour perpetrated by social housing tenants. These may be competing objectives.
The Court of Appeal addressed a similar issue in Victims Compensation Fund Corporation v Brown (2002) 54 NSWLR 668. At [9] Spigelman CJ referred to the following passage from a decision of the Supreme Court of the United States - Rodriguez v United States [1987] USSC 36; 480 US 522 (1987) at 525-526: "... No legislation pursues its purposes at all costs. Deciding what competing values will or will not be sacrificed to the achievement of a particular objective is the very essence of legislative choice - and it frustrates rather than effectuates legislative intent simplistically to assume that whatever furthers the statute's primary objective must be the law."
The purpose of the Amending Act, so far as it is articulated in the long title, is to make it easier for landlords to terminate social housing tenants for anti-social behaviour. The Amending Act strikes a balance between the rights of landlords who are social housing providers and their tenants. The purpose of the legislation is to give effect to the balance parliament has struck. It follows that submissions as to the purpose of the legislation do not support the appellant's construction of s 154E of the Act.
As s 154E is limited to circumstances where the Tribunal is exercising a discretionary power. As the Tribunal is not exercising a discretionary power or engaging in any evaluative process under s 85(3), no occasion arises for the exercise of a discretion and s 154E does not apply. If follows that there is no inconsistency between s 85(3) and s 154E: s 137of the Act.
The order for possession made by the Tribunal below was initially suspended by the Appeal Panel on 8 December 2016. That order was varied by consent of the parties on 21 December 2016, with the effect that the order for possession is suspended until determination of the appeal or further order of the Appeal Panel, whichever is earlier. However, we consider it appropriate to make a further order suspending the order for possession for a period of 14 days, in order to give the tenants sufficient time to find alternative accommodation and vacate the premises.

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