Brown v Commonwealth of Australia - [2012] ACAT 83

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

BROWN v COMMONWEALTH OF AUSTRALIA; ATTORNEY GENERAL OF THE ACT (Intervener) (Residential Tenancies) [2012] ACAT 83

RT 851 of 2012
Catchwords:             RESIDENTIAL TENANCIES – whether the Residential Tenancies Act 1997 (ACT) applies in the Jervis Bay Territory – whether there is an inconsistency between the terms determined under the Leases Ordinance 1992 (JBT) in relation to tenancy and the terms applying under the Residential Tenancies Act 1997 (ACT) – effect of amendment of 2009 to the Leases Ordinance 1992 (JBT) – retrospective operation of the amending legislation - whether the Residential Tenancies Act 1997 (ACT) applies to the tenancy agreement executed before amendment to the Leases Ordinance 1992 (JBT) and continuing after the amendment-
List of legislation:     Acts Interpretation Act 1901 (Cth)
Australian Capital Territory (Self-Government) Act 1998 (Cth),
      s 22
Jervis Bay Territory Acceptance Act 1915 (Cth)
Leases Amendment Ordinance 2009 (No. 1) (JBT)
Leases Ordinance 1992 (JBT)
Residential Tenancies Act 1997 (ACT)
Explanatory Statement to Leases Amendment Ordinance 2009   (No. 1) (JBT)

List of cases: Department of Transport and Regional Services v Brown [2003] ACTRTT 55
Fisher v Hebburn Ltd (1960) 105 CLR 188
University of Wollongong v Mohamed Naguib Fawzi Ahmed Metwally & others [1984] HCA 74; (1984) 158 CLR 447

List of Texts/Papers: Pearce, D C and Geddes, R S, Statutory Interpretation in
Australia, 7^th edition, LexisNexis, 2011
Peter Butt, Land Law, 5th edition, Law Book Co

Tribunal: Ms Jann Lennard, Senior Member

Date of Orders: 3 January 2013
Date of Reasons for Decision: 3 January 2013

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 851 of 2012

BETWEEN:

LEON BROWN
Applicant

AND:

COMMONWEALTH OF AUSTRALIA REPRESENTED BY THE DEPARTMENT OF REGIONAL AUSTRALIA LOCAL GOVERNMENT ARTS AND SPORT
Respondent
ATTORNEY GENERAL OF THE AUSTRALIAN CAPITAL TERRITORY
Intervener

TRIBUNAL: Ms Jann Lennard, Senior Member

DATE: 3 January 2013

ORDER

The application is adjourned for further oral submissions in relation to the remaining issues:

a)Did the amendment to the Leases Ordinance confer jurisdiction to deal with residential tenancies disputes in relation to the subject blocks in the Jervis Bay Territory upon the Residential Tenancies Tribunal, and, if so, is that jurisdiction now in the ACT Civil and Administrative Tribunal?

b)Is the Commonwealth subject to the jurisdiction of the ACT Civil and Administrative Tribunal in relation to the residential tenancy on the subject premises in the Jervis Bay Territory?

………………………………..

Jann Lennard
Senior Member

REASONS FOR DECISION

This matter was first heard on 2 August 2012 when the applicant sought an interim order allowing him to return to the rented premises and remain at the premises until the dispute was determined. The application also sought orders pursuant to section 83 (f) (1) of the Residential Tenancies Act 1997 (ACT) (the RT Act) restoring the residential tenancy agreement and granting the tenant possession of the premises. Further the application sought compensation for breaches of clauses of the Standard Residential Tenancy Terms by the lessor.
At the hearing on 2 August 2012, the applicant was represented by Ms Faulder of the Welfare Rights and Legal Centre. There was no appearance by the respondent lessor. The tribunal was informed that the tenant had been evicted from the rented premises at 86 Village Road, Jervis Bay. That eviction had been effected when police and a representative of the lessor attended the premises and changed the locks. During the course of the hearing the tribunal, of its own initiative, contacted real estate agents L J Hooker, Sanctuary Point, New South Wales, who confirmed they were the managing agent of the property and had, acting upon instructions from the lessor, served a 90 day notice to terminate prior to the physical eviction. The agent informed the tribunal that the lessor, the Commonwealth of Australia, had said to her that it was not bound by the RT Act, or by any court or tribunal.
Taking into account the fact that the applicant tenant had been evicted into homelessness, and, the conduct of the lessor in failing to attend the hearing, despite being informed by the applicant of the urgent hearing, ACAT proceeded with the hearing and made the following ex parte interim orders to preserve the status quo while the issues of jurisdiction and available remedies were resolved:
a.   the landlord is to return exclusive possession of the premises to the tenant Leon Brown, by close of business 2 August 2012,
b.   the landlord is restrained from entering the premises, trespassing upon the premises or otherwise interfering with the tenant’s quiet enjoyment of the premises, and
c.   the lessor’s agent LJ Hooker at Sanctuary Point is to return the keys to the premises to the tenant, immediately.
The respondent, the Commonwealth of Australia (represented by the Department of Regional Australia, Local Government, Arts and Sport), made an application to set aside the ex parte orders and to stay the proceedings. The grounds relied upon were as follows:
a.The ACAT does not have jurisdiction to make orders and/or entertain an application for the making of orders against the Commonwealth.
b.The Residential Tenancies Act 1997 (ACT) and the ACT Civil and Administrative Tribunal Act 2008 (ACT) do not bind the Crown in the right of the Commonwealth.
c.The Residential Tenancies Act 1997 (ACT) does not apply to the lease which is the subject of the proceedings.
On 16 August 2012, a directions hearing was held. The Attorney-General for the Australian Capital Territory was granted leave to intervene in the proceedings pursuant to section 27 of the Court Procedures Act 2004 (ACT). Directions were made requiring each party to serve and file witness statements, other documents upon which they sought to rely and written submissions on the relevant law.

Key issues

Following the receipt of submissions the tribunal indicated to the parties that the following were key issues in respect of which evidence and oral submissions were to be heard:
a.does the RT Act apply in the Jervis Bay Territory?
b.if the RT Act is found to apply in Jervis Bay Territory, then:
i.does the RT Act apply to the premises in question, that is, 86 Village Road [Block 141 of DP 9271]?
ii.does ACAT have jurisdiction under the RT Act in relation to premises located in the Jervis Bay Territory?
c.If the preceding questions are answered in the affirmative, and then two further questions arise:
i.Is the Commonwealth bound by the RT Act?
ii.Is the Commonwealth subject to the jurisdiction of the ACT Civil and Administrative Tribunal?

Hearing and representation

At the hearing conducted on 19 October 2012, the tribunal heard submissions in relation to the preliminary issues:

a.does the Residential Tenancies Act 1997 (ACT) apply in the Jervis Bay Territory; and,
b.if so, does that Act apply to the premises in question: 86 Village Road, Jervis Bay
The applicant, Mr Leon Brown, was represented by Dr Steven Stern, instructed by Welfare Rights and Legal Centre.
The respondent, the Commonwealth of Australia, was represented by Mr Nigel Oram.
The intervener, the Attorney-General of the ACT, was represented by the Solicitor-General Mr Peter Garrisson.

Background facts

The Commonwealth is the dominant landlord of the Jervis Bay Territory. There are no private residential leases within the Territory. The only residential leases entered into by the Commonwealth and its tenants are those located in Village Road.
Of the 18 properties located in Village Road and leased by the respondent to residential tenants, 15 are subject to leases commencing prior to 4 November 2009, 2 are residential tenancies commencing after 4 November 2009 and the nature of the remaining lease is not certain.
On 5 January 2001, the respondent landlord and the applicant tenant entered into a lease agreement in relation to premises at 86 Village Road Jervis Bay. The lease was executed on behalf of the respondent by a duly authorised officer of the Commonwealth. The lease is a fixed term tenancy commencing 7 January 2001 and expiring on 3 July 2001. The lease provided within its terms that the tenancy would continue as a periodic tenancy from month to month following the expiry date until such time as either party gave 30 days written notice of termination[1]. The validity of the lease was accepted by all parties. No other lease has been entered into between the parties. At the time of the purported termination of the lease by the respondent, the tenant had been in occupation pursuant to the lease executed on 5 January 2001.
[1] The Tribunal notes that a periodic tenancy is a tenancy that runs on from one period to another period of the same duration and yet another of the same duration and so on until determined. Periodic tenancies may arise by express agreement. A periodic tenancy continues from period to period indefinitely, until determined by notice to quit given by either party to the other. There is not a new tenancy at the beginning of each period, but rather a single continuous tenancy for a period determinable by the appropriate notice. See for further discussion Peter Butt, Land Law, 5th edition, Law Book Co.

The lease was entered into pursuant to the provisions of the Leases Ordinance 1992 (JBT). That Ordinance relevantly provided at section 5 that the Minister had power to grant leases in respect of Territory land. Territory land is defined to be Crown land within the Territory of Jervis Bay. The Ordinance provided for a wide power in the Minister to enter into leases and grant leases in the Jervis Bay Territory.

Section 7 of the Leases Ordinance 1992 allowed the Minister to determine the covenants or conditions as to rent or otherwise of any lease entered into pursuant to that Ordinance. The Minister had determined terms and conditions. They were set out in the lease. Those terms and conditions included, inter alia, terms and conditions in relation to the termination of the lease.

Pursuant to the terms and conditions, the respondent issued a notice of termination and caused the tenant to be physically evicted from the premises. It was not disputed that at the time of the eviction the tenant was in arrears of rent.

If the lease is subject to the RT Act then the eviction would be unlawful and a breach of the residential tenancy agreement between the parties. The applicant asserts that all residential leases in the Jervis Bay Territory were made subject to the RT Act by operation of the amendment made to the Leases Ordinance by the Leases Amendment Ordinance 2009 (No. 1) (JBT). That amendment amended section 5 of the Leases Ordinance 1992 so that it now reads: The Minister may, on behalf of the Commonwealth, grant leases of territory land, other than Blocks 124 to 149 in Deposited Plan 9271/1 in the Jervis Bay Territory.

If the lease is not subject to the RT Act then the eviction would be in accordance with the terms of the lease and therefore lawful and operative.

The premises which are located at 86 Village Road, Jervis Bay, are also identified as Block 141 of Deposited Plan 9271/1. The premises therefore fall within the above amendment to the Leases Ordinance 1992.

What was the effect of the 2009 amendment?

The issues to be considered at this point are:
a.Did the RT Act apply to leases entered into prior to the 2009 amendment?
b.Does the RT Act apply to leases entered into after the 2009 amendment, and, does the RT Act apply to leases entered into prior to the 2009 amendment but which continue to have effect from the time of the amendment?
ACAT considers these issues in turn:

a.Did the Residential Tenancies Act 1997 (ACT) (the RT Act) apply to leases entered into prior to the 2009 amendment?
The ACT Legislative Assembly has power to make laws for the peace, order and good government of the Australian Capital Territory[2]. The ACT Legislative Assembly does not have power to make laws specifically for the peace, order and good government of the Jervis Bay Territory. The Jervis Bay Territory Acceptance Act 1915 (Cth) provides at section 4A (1)
Subject to this Act, the laws (including the principles and rules of common law and equity) in force from time to time in the Australian Capital Territory are, so far as they are applicable to the Territory and are not inconsistent with an Ordinance, in force in the Territory as if the Territory formed part of the Australian Capital Territory.
[2] Australian Capital Territory (Self-Government) Act 1998 (Cth) – s 22
The effect of the Jervis Bay Territory Acceptance Act is to apply ACT laws to the Jervis Bay Territory as if the Jervis Bay Territory formed part of the ACT, but only so far as the ACT laws are applicable to the Jervis Bay Territory and not inconsistent with an Ordinance. The Tribunal accepts the submission of the Respondent and the Intervener that a law in force in the Australian Capital Territory may be treated as being inconsistent with an Ordinance if it detracts from the efficacy of the Commonwealth law, or could be said to operate to qualify, impair or detract from the essential legislative scheme which is established under the Ordinance. [3]
[3] University of Wollongong v Mohamed Naguib Fawzi Ahmed Metwally & others
The Leases Ordinance 1992 provides for the granting of leases in the Jervis Bay Territory. At the time the lease the subject of these proceedings was entered into, the Ordinance provided that the Minister had the power to grant leases of territory land. The Ordinance provided at section 7 that leases granted under the Ordinance were subject to any covenants or conditions as to rent or otherwise, determined by the Minister and set out in the lease.
The RT Act is inconsistent with the Ordinance. The RT Act imposes standard terms and conditions into all residential tenancy agreements whereas the Ordinance provides that the Minister may determine the terms and conditions of any residential lease granted under the Ordinance in the Jervis Bay Territory.
As a result of the inconsistency, the RT Act did not apply to leases granted by the Minister pursuant to the provisions of the Leases Ordinance 1992, prior to the 2009 amendment.[4]
a.Does the Residential Tenancies Act 1997(ACT) apply to leases entered into after the 2009 amendment, and, does that Act apply to leases entered into prior to the 2009 amendment but which continue to have effect from the time of the amendment?
[4] ACAT notes that despite the inconsistency the Commonwealth, as landlord made application in the Residential Tenancies Tribunal in relation to those premises, now excised from the Minister’s power: see Department of Transport and Regional Services v Brown [2003] ACTRTT 55 (15 December 2003) where an order was made pursuant to section 49 of the Residential Tenancies Act 1997 in relation to premises at 85 Village Road.
The Respondent and Intervener each submit that the effect of the amending Ordinance was to limit the power to grant leases, and to determine relevant covenants and conditions, in relation to leases granted after the commencement of the amending Ordinance in 2009.

The amended Ordinance commenced on 5 November 2009. It contains no transitional provisions and does not explicitly address the issue of whether existing leases are to continue in accordance with their terms and provisions, or whether those terms and provisions are to be replaced by the standard residential tenancy agreement terms set out in Schedule 1 to the RT Act.
The key submissions made by the Respondent and Intervener are:
1. That the amendments do not have retrospective effect; that is, that the amendments ought not to be regarded as having been always within the Leases Ordinance. The lease that was entered into between the parties in this matter in 2001 cannot be deemed to have been entered into pursuant to the amended Leases Ordinance. The respondent submits that the amendments were never intended to have a retrospective effect: the amendment applies to the grant of leases and as such only affects the power of the Minister to grant leases on and from the date of the amendment.
2. That the words of the amending act should be examined by the Tribunal and the ordinary meaning of the words should be adopted.
The Applicant made the following submissions:
1.The Leases Amendment Ordinance 2009 (No 1) (Jervis Bay Territory) removed the inconsistency that existed between the Ordinance and the Residential Tenancies Act 1997. This removal of the inconsistency allows the Residential Tenancies Act 1997 to fully apply and allowed the ACT Residential Tenancies[5] Tribunal to have comprehensive jurisdiction over residential tenancies in the Jervis Bay Territory.
[5] ACAT notes that the Explanatory Statement to the amendment refers to the Residential Tenancy Act and the Residential Tenancy Tribunal; this is an oversight by the author of the Explanatory Statement and throughout these orders ACAT has corrected the terminology to read Residential Tenancies Act and Residential Tenancies Tribunal.
The common law has always taken the approach that, in the absence of some clear statement to the contrary, an Act will be presumed not to have retrospective operation[6].
An amending enactment … is prima facie to be construed as having a prospective operation only. That is to say it is prima facie to be construed as not attaching new legal consequences to facts, or events which occurred before its commencement.[7]

30.Although some time was spent in submissions in relation to this point, it has not been suggested, nor does the Tribunal find, that the 2009 amendment had the consequence of altering rights and obligations that had accrued to the date of the amendment under leases validly granted by the Minister pursuant to the Leases Ordinance. The question for the tribunal is whether from the day of commencement of the amendment, namely 5 November 2009; the leases should be taken to be Residential Tenancy Agreements containing the terms provided for in Schedule 1 of the RT Act.
[6] Pearce, D C and Geddes, R S, Statutory Interpretation in Australia, 7th
[7] Fisher v Hebburn Ltd (1960) 105 CLR 188 as quoted in Pearce & Geddes, above.

No submissions were made in relation to any retrospective application of the provisions of the RT Act to events which occurred or rights and obligations which arose prior to the amendment. All rights accruing prior to the amendment would be dealt with according to the terms of the lease as entered into in 2001. This case does not however deal with already accrued breaches, rights or obligations but with the issue of termination in 2012.
Pearce and Geddes note the circumstance that commonly arises where a fresh obligation is placed on, or a right given to, an existing class of persons. Such a provision does not operate retrospectively merely because it changes existing or current rights and duties of a presently identifiable group[8]. The amending legislation may be seen as changing the existing rights and duties of both the Commonwealth as a landlord and the tenants in Village Road, Jervis Bay from the date of commencement. It cannot be said that the amendment operates in a retrospective manner.
[8] Pearce & Geddes, above at [10.5].
There are two general approaches to the interpretation of legislation: the literal approach and the purposive approach. The literal approach is to gather the intention of the legislature from the words used: that intention is to be found by reading any provision in the context of the statute as a whole. The purposive approach complements the literal approach and is applied to determine the purpose of the statute, or a particular provision within a statute, by reference to the ‘mischief’ with which the legislation was intended to deal. While the literal meaning of the words may be gathered solely by reading the words of the statute; the purpose or ‘mischief’ may legitimately be identified by reference to extrinsic materials.

The words of the amending provision do no more than, by inserting the phrase “land, other than blocks 124 to 149 in Deposited Plan 9274/1 in the Jervis Bay Territory”, remove from the Minister the power to grant leases over those specific blocks of land. The Commonwealth continues to operate in the Jervis Bay Territory as a residential landlord in relation to those specific blocks 124 to 149 in Deposited Plan 9274/1. By this enactment the Commonwealth removes the inconsistency, discussed above, between the RT Act and the Leases Ordinance 1992 (Cth). Thus the laws of the Australian Capital Territory which govern residential tenancies now operate in the Jervis Bay Territory, by virtue of section 4A of the Jervis Bay Territory Acceptance Act 1915 (Cth).
The Respondent and Intervener each submitted that the result of this amendment was that all leases validly granted by the Minister prior to 5 November 2009 would continue in force, and therefore, that the terms and covenants of the original lease would continue in force, until the lease was brought to an end. From 5 November 2009, any new residential tenancy in relation to those specific blocks would be regulated by the RT Act and the terms of those residential tenancy agreements would be as provided for in Schedule 1 to the Act. As a result, both the Commonwealth as the landlord and tenants of the Commonwealth in Village Road Jervis Bay would, depending upon the date of entering into the residential tenancy, be subject to differing regimes of rights, obligations and remedies. As the applicant pointed out in written submissions; if the arguments of the Respondent and the Intervener are accepted, the amendment would [never] become generally applicable in the Jervis Bay Territory until, at best, years afterwards, because if the respondent is the dominant landlord, it might take decades for periodic leases that originated before the amendment commenced to entirely end.
The approach urged by the Respondent and Intervener overlooks the mode in which RT Act now operates. The Act applies to all leases entered into in the Australian Capital Territory, regardless of the date of the commencement or renewal. While the RT Act sets out in Schedule 1 the Standard Residential Terms, the RT Act contemplates that agreements may have additional terms. Section 8 provides:
(1) A residential tenancy agreement—
(a) must contain, and is taken to contain, terms to the effect of
                the standard residential tenancy terms mentioned in
                schedule 1; and
(b) if the lessor and tenant agree—may contain a fair clause for
                posted people; and
(c) may contain any other term—
(i) that is consistent with the standard residential tenancy
     terms; or
(ii) that is inconsistent with a standard residential tenancy term
     if the term has been endorsed by the ACAT under
     section 10.
Section 9 renders void any unendorsed term that is inconsistent with a standard residential tenancy term. Section 10 provides that the tribunal may endorse any inconsistent term, but not a term that is inconsistent with the Act.
Thus the regulatory scheme established by the RT Act allows for the application of the RT Act from the time that the amending legislation came into effect. With regards to a lease already in existence between the Commonwealth and one of its tenants: any term not inconsistent with the standard terms or the Act would be enforceable between the parties; any term inconsistent with the standard terms may need to be endorsed before it could be enforced; however, any term inconsistent with the Act would not be able to be endorsed or enforced.
It is not possible by merely reading the words of the amended legislation to determine whether the legislature intended that two distinct regimes of rights, obligations and remedies available to the parties to residential agreements should operate, or, by removing the inconsistency, to provide one discrete system of rights and obligations and remedies to the parties to residential agreements in the Jervis Bay Territory. The amending legislation is silent on this issue.
The Acts Interpretation Act 1901 (Cth) provides rules as to the approach to be taken to the interpretation of legislation, and, the use of extrinsic materials in determining the meaning of a legislature’s words. Section 15AA provides: In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.
Section 15AB provides:
(1) Subject to subsection (3), in the interpretation of a provision of an Act, if any material not forming part of the Act 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 and the purpose or object underlying the Act; or
(b) to determine the meaning of the provision when:
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.
(2) Without limiting the generality of subsection (1), the material that may be considered in accordance with that subsection in the interpretation of a provision of an Act includes:
(a) all matters not forming part of the Act that are set out in the document containing the text of the Act as printed by the Government Printer;
(b) …
(c) …
(d) …
(e) any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted;
(3) In determining whether consideration should be given to any material in accordance with subsection (1), or in considering the weight to be given to any such material, regard shall be had, in addition to any other relevant matters, to:
(a) the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; and
(b) the need to avoid prolonging legal or other proceedings without compensating advantage.
The approach urged by the Commonwealth would require any reader of the amended Leases Ordinance to imply words into section 5 of the Leases Ordinance 1992 to preserve the operation of the leases in existence at the time of the amendment. Those words would need to convey the implication that the amending legislation would apply from time to time to the land in the territory, as existing leases were terminated or renewed and as new leases were entered into. The Tribunal may refer to extrinsic material to determine whether the legislature expressed an intention that such words, and meaning, should be implied.
The situation that results from adopting the interpretation as submitted by the Respondent is that tenants of neighbouring premises, with a common landlord, will be subject to different regimes of rights, obligations and remedies. This is an absurd or unreasonable result of the amendment: that tenants of the same landlord in neighbouring properties should be subject to differing contracts, and especially different remedies for breach of the contract. The Tribunal refers to the Explanatory Statement to the Leases Amendment Ordnance 2009 (No 1) to identify the intention of the legislature, the purpose of the amendment and to resolve the ambiguity.
The Explanatory Statement reads thus:
The Lease Amendment Ordinance amends the Leases Ordinance 1992 (JBT) to allow residential tenants and landlords in residential tenancy leases in the Jervis Bay Territory to have access to the Australian Capital Territory Residential Tenancies Tribunal. … Previous[ly] there was an inconsistency between the Residential Tenancies Act 1997 (ACT) (JBT) and the Ordinance that set the terms of a residential tenancy agreement in the JBT. The Residential Tenancies Act 1997 (ACT) (JBT) set standard terms into every ACT residential tenancy agreement. This was overridden by provisions within the Ordinance which allowed the Minister to determine conditions for leases (which include residential tenancy agreements) in the Jervis Bay Territory. … The Leases Amendment Ordinance amends the Leases Ordinance 1992 (JBT) to excise residential leases within the Jervis Bay Territory. The amendment removes the inconsistency that exists between the Ordinance and the Residential Tenancies Act 1997 (ACT) (JBT). This allows the Residential Tenancies Act 1997 (ACT) (JBT) to fully apply and allows the ACT Residential Tenancies Tribunal to have comprehensive jurisdiction over residential tenancies in the Jervis Bay Territory.
The attachment to the Explanatory Statement concludes:
[the amendment] has the effect of excluding specific land with residential tenancies leases from the Leases Ordinance 1992 (JBT) and allowing the Residential Tenancies Act 1997 (ACT) (JBT) to fully apply to the excluded land. This enables the standard ACT residential tenancy agreement to be applied and allows the ACT Residential Tenancies Tribunal comprehensive jurisdiction to rule on tenancy disputes in the Jervis Bay Territory.
From the Explanatory Statement it can be seen that the Commonwealth intended to remove the inconsistency between the Ordinance and the RT Act in order to provide for: standard residential tenancy terms in residential tenancy agreements in the Jervis Bay Territory; the full application of the RT Act, including the remedies available upon application to the Tribunal; and, that the Residential Tenancies Tribunal should have comprehensive jurisdiction over residential tenancies in the Jervis Bay Territory [emphasis added].
The provision of a single discrete regime for the regulation of residential tenancy agreements within the Jervis Bay Territory is the reason for the amendment. The full application of the RT Act and comprehensive jurisdiction in the Residential Tenancies Tribunal can only be achieved if the amendment creates a situation where neighbouring tenants of a common landlord are subject to one discrete regime for the regulation of their residential agreements, their rights, their obligations and remedies available to either party. Any other interpretation would not sit with the words used by the Commonwealth in the Explanatory Statement.
The Explanatory Statement notes that the Leases Amendment Ordinance commenced on the day after it was registered on the Federal Register of Legislative Instruments that is, 5 November 2009. This is a stand-alone instruction: should the Commonwealth have intended the regime as submitted by the Respondent, then an explanation of the staggered introduction of the regulatory regime provided by the RT Act and Tribunal would be necessary. The words of the amending legislation and the Explanatory Statement make it clear that the Commonwealth could not have intended that the availability of the rights, remedies and obligations imposed by the RT Act and Tribunal would depend upon the termination of an existing tenancy and the creation of a new tenancy. Otherwise the full effect of the amendment may not be realised for many years, possibly as the applicant submits, decades.
The ACT Civil and Administrative Tribunal concludes as follows:

a.the Commonwealth intended by the 2009 amendment to remove the inconsistency between the Ordinance and the Residential Tenancies Act 1997 (ACT);
b.the Commonwealth intended that following the amendment, the Residential Tenancies Act 1997 (ACT) should fully apply. The explanatory statement uses the phrase “fully apply”: that is, that the Act should apply to all residential tenancy agreements between the Commonwealth and its tenants occupying premises at Blocks 124 to 149 in Deposited Plan 9271 /1; and
c.that the RT Act should apply to those residential tenancies agreements from the date of commencement of the amendment.

The lease entered into between the Applicant Tenant and the Respondent Landlord is subject to and governed by the Residential Tenancies Act 1997.

………………………………..

Ms J. Lennard, Senior Member

PUBLICATION DETAILS

TO BE PUBLISHED

PART A FILE NO: RT 12/851

APPLICANT: Leon Brown

RESPONDENT: Commonwealth of Australia represented by the Department of Regional Australia Local Government Arts and Sports.

INTERVENER: Attorney General of the ACT

COUNSEL APPEARING: APPLICANT: Dr Steven Stern

RESPONDENT: Mr Nigel Oram
INTERVENER: Mr P. Garrisson, Solicitor-General

SOLICITORS: APPLICANT: Welfare Rights & Legal Centre

RESPONDENT: Australian Government Solicitor
INTERVENER: ACT Government Solicitor

TRIBUNAL MEMBER : Ms J. Lennard, Senior Member

DATE OF HEARING: 19 October 2012 PLACE: CANBERRA

DATE OF DECISION: 3 January 2013 PLACE: CANBERRA

[1984] HCA 74; (1984) 158 CLR 447 (22 November 1984) per Mason J at Para 16.

edition, LexisNexis, 2011. See chapter 10.