Canberra Fathers and Children Services Inc & Michael Watson - [2010] ACAT 74

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

CANBERRA FATHERS AND CHILDREN SERVICES INC & MICHAEL WATSON (Residential Tenancies) [2010] ACAT 74

RT 10/171
Catchwords: RESIDENTIAL TENANCIES – Crisis accommodation – termination and possession order – public authority and the obligation under the Human Rights Act 2004 –notice to vacate - are any human rights enlivened? - right to protection of the family and children – freedom from unlawful or arbitrary interference with the family or home – termination of occupancy agreement that would render the Applicant and his children homeless – no procedures or criteria addressed in deciding to terminate the occupancy – limits to human rights - “proportionality test” under the human rights law

List of legislation: ACT Civil and Administrative Tribunal Act 2008 (ACT)

Housing Assistance Act 2007
Human Rights Act 2004 ss 11, 12, 28, 40B and 40C
Residential Tenancies Act 1997 –Ss 12, 36, 71E, 76 and 83(i)

List of cases: Director of Housing v Sudi (Residential Tenancies)

[2010] VCAT 328 (31 March 2010)

Hakimi v Legal Aid Commission (ACT); The Australian Capital Territory (Intervener) [2009] ACTSC 48 (12 May 2009)
Homeground Services v Mohamed (Residential Tenancies) [2009] VCAT 1131 (6 July 2009)
Kracke v Mental Health Review Board & Ors (General) [2009] VCAT 646 (23 April 2009)
Metro West v Sudi (Residential Tenancies) [2009] VCAT 2025 (9 October 2009)
R v Fearnside [2009] ACTCA 3 (24 February 2009)
The Commissioner for Housing in the ACT v Y [2007] ACTSC 84 (12 October 2007)
Thomson v ACT Planning and Land Authority (Administrative Review) [2009] ACAT 38 (2 October 2009)

Tribunal: Ms Jann Lennard, Senior Member

Date of Orders: 29 October 2010
Date of Reasons for Decision: 29 October 2010

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 10/171

BETWEEN:

CANBERRA FATHERS AND CHILDREN
SERVICE INC
Applicant

AND:

MICHAEL WATSON
Respondent

TRIBUNAL: Ms J Lennard, Senior Member

DATE: 29 October 2010

ORDER

1. The application is dismissed.

………………………………..

Ms J. Lennard, Senior Member

REASONS FOR DECISION

Background:

Canberra Fathers & Children Services Inc [CANFaCS] is a community organisation which provides crisis accommodation and support for fathers and their children.
In its own material CANFaCS describes itself thus[i]:
Canberra Fathers and Children Service (CANFaCS) Inc. is a values-based community organisation working and advocating for social justice within a narrative and solution-focused framework. To further its values and goals, CANFaCS has as its objective the strengthening of relationships between men, their families and their communities through strategies and activities that address homelessness, domestic violence and the quality of men’s family relationships and parenting skills.
CANFaCS Inc. consists of:
·   A SAAP (Supported Accommodation Assistance Program) funded supported accommodation for crisis and medium-term housing (free standing properties);
·   Outreach support services to fathers; and
·   The Dad’s Place program, temporary accommodation for fathers who need a suitable place to have overnight contact with their children.
As an organisation, CANFaCS is driven by a set of important ethical values and principles in our work with sole father families. These values are:
·   fathers matter;
·   first call for children;
·   safety for all;
·   our client is the relationship between fathers and their children;
·   homelessness is a social justice issue; and
·   community is important.
CANFaCS is a declared crisis accommodation provider under the Residential Tenancies Act 1997.
CANFaCS provided accommodation in premises at 62 Tallara Parkway Narrabundah to Mr Watson and his three sons under an occupancy agreement in June 2007. In June 2007 Mr Watson‘s three sons were aged 13, 15 and 17.
Mr Watson has remained in occupation of the premises and, on 8 October 2009, CANFaCS and Mr Watson signed another periodic occupancy agreement. The original agreement between the parties was not before the Tribunal. A copy of the October 2009 agreement was before the Tribunal. There was no explanation given as to why this second agreement was entered into. There was no evidence that the terms of this occupancy agreement had been read to or explained to
Mr Watson.
A very short time after entering into the second occupancy agreement, on 17 November 2009 CANFaCS wrote to Mr Watson requiring him to vacate the premises on or before 29 December 2009. This letter, which has been put before the Tribunal as a notice to terminate the occupancy agreement, noted (inter alia):
a.the premises are now needed for families experiencing housing difficulties;
b.that the letter and decision to terminate was by way of exercising an option under Part E (2)(a) of the occupancy agreement; and
c.that there was a possibility of extending the notice period should
Mr Watson not be able to find alternate accommodation.
In fact, the notice period was twice extended, and on 11 February 2010 CANFaCS served Mr Watson with a notice to vacate the premises on or before 3pm on 25 February 2010.
Mr Watson did not vacate the premises and CANFaCS made application to the Tribunal for a termination and possession order.
The matter came before the Tribunal on 6 April 2010. Mr Anthony Rochester and Mr Shane Spencer represented CANFaCS. Mr Watson appeared at the hearing but was unrepresented. The Tribunal heard brief evidence from both parties. CANFaCS gave evidence that Mr Watson was no longer ‘ in crisis’ and that they had a very limited stock of houses and needed the premises to assist other families in need. Mr Watson gave evidence that he had been trying to find other accommodation but was not able to afford private rental in the area.
Mr Watson stated that he desired to keep his family together, but it was difficult to find private rental accommodation for a man and his three young adult sons. CANFaCS conceded that if Mr Watson was evicted into homelessness he would be entitled to access their services and ask for crisis accommodation.
ACAT was of the view that given the recent decisions in VCAT[ii] and the decision in Thomson v ACT Planning and Land Authority[iii], it was necessary to adjourn to give the parties an opportunity to seek legal advice and to address the issue of whether the matter gave rise to a need to consider the issues of protection of the family unit and arbitrary or unlawful interference with family or home under section 11 and section 12 of the Human Rights Act 2004. The matter was adjourned, and on 13 April 2010, the Tribunal wrote to the parties inviting written submissions within 14 days.
In order to allow both parties to prepare submissions and receive legal advice on the complex issues now raised, the Tribunal extended the date for submissions to 14 June 2010 and listed the matter for a further hearing on 1 July 2010.
The Applicant made written submissions through their legal representatives Clayton Utz Lawyers. The submissions were received by ACAT on
22 June 2010.
The Respondent made written submissions through his legal representatives Welfare Rights and Legal Centre. These submissions were received by ACAT on 25 June 2010.
On 1 July ACAT heard further submissions and evidence from each party and adjourned for a written decision.

The jurisdiction of the Tribunal

The application for a termination and possession order is made under the Residential Tenancies Act 1997. ACAT has exclusive jurisdiction to hear and decide any matter that may be the subject of an application under the standard tenancy terms, the standard occupancy terms or the Residential Tenancies Act (section 76).
ACAT is a public authority and pursuant to section 40B of the Human Rights Act 2004 must give proper consideration in matters before it to the relevant human rights[iv]. Section 40B of the Human Rights Act which provides:
It is unlawful for a public authority—
(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.
CANFaCS conceded in written submissions and before the Tribunal that it is a public authority for the purposes of section 40(1)(g) of the Human Rights Act in so far as it is exercising the function of providing crisis accommodation in the ACT. In their written submission CANFaCS agrees that as a public body their conduct is subject to section 40B of the Human Rights Act 2004.
At s40C the Human Rights Act provides that if a person claims that a public authority has acted in contravention of section 40B, and, that he or she would be a victim of that contravention, that person may rely on their rights under the Human Rights Act in legal proceedings. The Tribunal finds support for this in the view expressed by CJ Higgins in The Commissioner for Housing in the ACT v Y.[v]
The Report of the ACT Bill of Rights Consultative Committee[vi] states that there are a number of different avenues for a person who seeks to raise human rights concerns. In some cases it will be sufficient for a court or Tribunal’s attention to be drawn to the human rights... and for the legislative or common law provision to be interpreted so it is compatible with human rights if it is possible to do so.[vii] Human rights as set out in the Human Rights Act 2004 can be raised as a shield in proceedings before a court or Tribunal.
Thus it is appropriate for ACAT to give proper consideration to any relevant human rights. This will involve a consideration of the circumstances to determine whether any aspect of the conduct of CANFaCS, especially the giving of the notice to vacate, engages or enlivens any aspect of the human rights of Mr Watson, as set out in the Human Rights Act 2004. If this is so, then the Tribunal will assess whether such conduct has adversely impacted on those rights, that is, whether CANFaCS, as a public authority, has acted in a way that is incompatible with a human right or failed to give proper consideration to a relevant human right in making a decision, and thus unlawfully.

Residential Tenancies issues

The Applicant seeks an order for termination of the tenancy and possession of the premises pursuant to section 83 (1) of the Residential Tenancies Act 1997. The notices to the tenant consist of :
a.A letter dated 17 November 2009 – this stated that CANFaCS was exercising its option under Part E (2)(a) of the occupancy agreement to end the agreement; and that the property was required for families experiencing housing difficulties.
b.A letter dated 31 December 2009 extending the time to end the tenancy to 12 January 2010;
c.A letter dated 13 January granting a further extension until 21 January 2010;
d.A letter dated 28 January 2010 headed Final Notice to Vacate; and
e.A Notice to Vacate dated 11 February 2010 requiring vacation on or before 25 February 2010.
Part E (2)(a)of the Occupancy Agreement is under the general heading Termination of this Agreement and the sub heading Termination by Service Provider. It provides: CANFaCS agrees to give 14 days’ written notice for the termination of occupancy other than by breach or unless otherwise agreed by the parties.
This clause and the notices given to the tenant are in accord with the general occupancy principles set out in section 71E of the Residential Tenancies Act 1997: that an occupant is entitled to know why and how the occupancy may be terminated and that an occupant must not be evicted without reasonable notice.
The Tribunal notes that the notice period of the first letter to Mr Watson was in fact 6 weeks.
ACAT finds that the first letter mentioned above and dated 17 November 2009 is, in terms of the agreement between the parties, a valid notice to vacate. If there were no issues arising under the Human Rights Act 2004, ACAT would be inclined to make the termination and possession order sought by the Applicant.

The Human Rights issues

This matter came before ACAT at the first hearing under the Residential Tenancies Act. ACAT declined to deal with the matter solely under the provisions of that Act because the evidence given by CANFaCS was that Mr Watson was no longer in a situation of personal or family crisis and that they required the premises to provided emergency or crisis accommodation for other men and families in urgent need.
Mr Watson gave evidence that he had made his best endeavours to find alternate accommodation but his family situation and his level of income had meant that he was not able to do so. Mr Watson asserted that he believed that he would be able to remain in the CANFaCS premises until he was allocated housing by the Commissioner for Social Housing in the ACT. Further he stated that if he was evicted from the premises he and his family would again be homeless. Mr Watson was employed full time and his sons were receiving Centrelink benefits. Mr Watson had, with the assistance of CANFaCS, applied for ACT Housing and had in mid 2007 been assessed as eligible for early allocation on the basis of his and his family’s high needs. Mr Watson had an outstanding debt to ACT Housing arising from a previous joint tenancy with his wife; this debt was required to be paid before he could take up a new tenancy. Again with the assistance of CANFaCS he made arrangements for the repayment of the debt. However, by the time he had repaid the existing debt it was late 2008 and he was no longer eligible for early allocation because the combined household income was above the threshold and now Mr Watson finds he is on the standard waiting list and he may wait a year or more for allocation of premises for himself and his sons. Mr Watson gave evidence that he had approached WRLC and been told they were unable to offer him any assistance.
The human rights issues before the Tribunal relate to the rights set out in sections 11 and 12 of the Human Rights Act 2004:
Section 11 “Protection of the family and children
(1) The family is the natural and basic group unit of society and is entitled to be protected by society.
(2) Every child has the right to the protection needed by the child because of being a child, without distinction or discrimination of any kind.”
Section 12 “Privacy and reputation
Everyone has the right—
(a) not to have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily; and
(b) not to have his or her reputation unlawfully attacked.”
The Tribunal adopts an approach similar to that set out by the ACT Court of Appeal in R v Fearnside[viii] and by Refshauge J in Hakimi v Legal Aid Commission[ix]:
a.It is necessary to consider whether in the circumstances the conduct of CANFaCS enlivens or engages a human right.
b.If so, it is necessary to consider whether the decision to terminate the occupancy agreement amounted to an unlawful or arbitrary interference with the family or home of the respondent, and as part of that consideration to apply the proportionality test under s28.
c.If the decision to terminate the occupancy was arbitrary or unlawful, the Tribunal would examine the relevant common law and relevant provisions of the Residential Tenancy Act in light of the obligation imposed by section 30 of the Human Rights Act to interpret the legislation in a way that is compatible with human rights. This step will involve a consideration of the issue of whether the rights asserted are subject to any reasonable limitations, by examining the factors enumerated in s28 of the Human Rights Act 2004.
Both parties agreed that if the decision to terminate Mr Watson’s occupancy agreement was arbitrary or unlawful the Tribunal had no jurisdiction to consider the application and must dismiss it.

Are any Human Rights enlivened?

Disadvantaged people in need of social housing and at the risk of homelessness are among the most vulnerable in our society. Their circumstances mean that their human rights are imperilled[x]. Where a public authority is making decisions about the housing of such people, the Human Rights Act requires the public authority to act in a manner that is compatible with human rights and to give proper consideration to human rights matters in making decisions. CANFaCS conceded that it is a public authority for the purposes of the Human Rights
Act 2004.
A decision by a landlord, who is a provider of crisis accommodation, to evict a tenant who has committed no breach, and where that eviction would result in homelessness for that tenant and his family, potentially impacts on the rights protected under section 11 and section 12 of the Human Rights Act 2004. In written submissions to ACAT both parties agreed that the issue for the Tribunal was whether the eviction of Mr Watson and his sons from the premises was an unlawful or arbitrary interference with those rights.
Mr Watson gave evidence that he and his sons would be homeless if they were evicted from their home. He is unable to afford private rental accommodation and he gave evidence that he had made some attempts to find such accommodation but had not been successful. Further Mr Watson stated that CANFaCS workers had advised him and his sons that the 2 older sons should make individual application to ACT Housing as this would result in faster allocation of ACT Housing to Mr Watson and his youngest son. The evidence of CANFaCS confirmed this. Although different ‘solutions’ were offered by CANFaCS’ witnesses, such as moving in with Mr Watson’s married daughter and children, or living in a flat with Mr Watson’s brother, it was conceded that eviction was likely to result in Mr Watson and his sons being without a home.
The family is the basic unit of society and has a broad definition. It was agreed that Mr Watson and his three sons constitute a family.
A home is the place where a person and/or his family live. In Director of Housing v Sudi[xi] Bell J stated the concept of home in human rights is autonomous and not based upon notions of legal or equitable title or rights. Where a person is living in social housing the rented premises are their home for the purposes of section 12 of the Human Rights Act 2004. The rented house at 62 Tallara Parkway, Narrabundah, is the home of Mr Watson and his sons.
The Tribunal finds that the human rights to protection of the family and protection from arbitrary or unlawful interference with family or home are engaged.

Was the decision to terminate the occupancy agreement unlawful or arbitrary?

Above, the Tribunal has stated that if the only matter to be considered were the written terms of the occupancy agreement then it would be inclined to make the order sought. This by itself does not make the decision lawful, although it may be in compliance with the terms of the agreement as understood by CANFaCS. There appears to be no mention within the terms of the occupancy agreement or the associated rules that CANFaCS could/would require an occupant to vacate the premises, even if that vacation was to homelessness, if the allocation of public housing took a longer than anticipated time or in order to meet the needs of other families in crisis. Mr Watson gave evidence, and it is accepted by the Tribunal that he believed he would be able to stay in his house until he moved to ACT public housing, and that CANFaCS would be facilitating this and assisting him in regards to such a move.
The Tribunal adopts the view that the question of arbitrary interference is not answered by asserting lawfulness based on contract. The Tribunal notes that it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right. Thus, the exercise of a contractual right can be unlawful.
The issue of arbitrariness is directed to substance and not form. The protection is from any interference that is random and arbitrary. Interference will not be arbitrary if it is governed by clear pre-existing rules and by procedures that are predictable and foreseeable by those to whom they are applied[xii].

In Homeground Services v Mohamed [xiii]VCAT noted in reference to the equivalent provision in the Charter of Human Rights and Responsibilities
Act 2006 (Vic), that the term ‘arbitrarily’ is to be understood as being distinct from ‘unlawfully’, (although an interference could, of course, be both unlawful and arbitrary). ‘Arbitrary’ is defined in volume 1 of the New Shorter Oxford English Dictionary, relevantly, as
1.      Dependant upon will or pleasure;...
2.     Based upon mere opinion or preference as opposed to the real nature of things, capricious, unpredictable, inconsistent...
It is defined in the Shorter Oxford English Dictionary, relevantly, as
1.      Dependent upon will or pleasure;...
2.      discretionary, not fixed;
3.     based on mere opinion or preference, hence, capricious.’
Mr Shane Spencer, Service Manager CANFaCS, gave evidence that
Mr Watson’s case was reviewed in October 2009 when it was decided that the property was required for other families. He also conceded that should the termination and possession order be made and Mr Watson’s eviction result in homelessness, he would be eligible for assistance from CANFaCS.
The evidence from both parties indicated that CANFaCS had rendered a great deal of assistance to Mr Watson in dealing with ACT Housing. It was believed by both parties that Mr Watson was on the priority list for allocation of premises and that he would be entitled to early allocation as High Needs.
The evidence before the Tribunal was that CANFaCS instigated the review of Mr Watson’s occupancy as a direct result of discovering that he had been removed from the priority list and placed on the standard list for allocation of ACT Housing. It was possible that that this will involve a 3 to 5 year wait for housing allocation.
A written chronology of events supplied by CANFaCS showed that on
16 October 2009 it was confirmed that Mr Watson was no longer eligible for High Needs or Priority housing. From 28 October to 4 November 2009, meetings were held with Mr Watson to explore ‘alternate accommodation options including application to Community Housing Canberra, research on private rental and Narrabundah long-stay caravan park’. CANFaCS provided some support to Mr Watson in assisting with applications and finding possible private rental premises.
CANFaCS witnesses and documentary evidence, as well as the oral evidence given by Mr Watson revealed that the relationship between the parties deteriorated after the service of the termination notice on 19 November 2009. CANFaCS viewed Mr Watson as uncooperative and Mr Watson was of the view that CANFaCS had ‘turned on him’.
Mr Watson appeared to the Tribunal to be a person in need of assistance and guidance. Mr Watson was described as functionally illiterate. He was confused by the turn of events and gave evidence that he believed that once he was living in CANFaCS premises he and his sons would be able to stay until they were allocated ACT Housing. Further he believed that CANFaCS would continue to offer him help and give him assistance in negotiating with ACT Housing and that they would, in effect, arrange all matters to do with the eventual allocation of, and move to, ACT Housing rental accommodation for himself and his sons.
Mr Spencer gave evidence that:
a.While CANFaCS assisted with ACT Housing application, and will assist with completion of forms and attend meetings, they do not represent their clients and are not agents or advocates for them;
b.The aim of CANFaCS in assisting their occupants in crisis accommodation is to obtain long term housing for them, and that this is usually in ACT Housing priority accommodation;
c.The average period of occupancy of CANFaCS crisis accommodation prior to finding suitable long term accommodation was 3 to 6 months but 12 months was not unusual;
d.Usually CANFaCS’ clients reasoned their crisis and found other accommodation; and
e.There had only ever been one other Notice to Vacate issued in similar circumstances.
Mr Spencer gave evidence that the decision to review Mr Watson’s case was triggered by the discovery that he was now on the standard ACT Housing allocation list. The review had been conducted at a team meeting and the decision then communicated to Mr Watson. Mr Watson was not given any explanation or right of reply.
CANFaCS supplied the Tribunal with a copy of internal document headed “Procedure and Procedures Manual Evictions”. This document appears to deal with urgent or immediate eviction based upon a breach by the occupant. It states
It is recognised that families stay at CANFaCS because they have no other options. Evictions are therefore used as a last resort.
Evictions will be required when fathers are asked to leave CANFaCS and refuse to do so willingly. This may occur;
·       At the end of the initial stay period of two-weeks
·       At the end of the three month period or the end of any extension period as agreed following Length of Stay Procedures
·       After three warnings as per Warning Procedure
·       When a father fails to comply with his Individual Agreement as per Warning Procedure.
While no further explanation of the procedures or process was provided, it would seem that no aspect of the eviction document could be applied to Mr Watson’s circumstances.
The meaning to be given to ‘arbitrary’ was canvassed in the written submissions of both parties. The applicant addresses this issue indirectly as follows:
[38] The Plain English Guide[xiv], relevantly, states:
Section 12 of the HRA gives effect to article 17 of the ICCPR and protects individuals from unlawful and arbitrary interference with privacy, family, home or correspondence. An interference that is lawful may still be arbitrary if it is unreasonable or unjustified in all the circumstances of the case. The right to privacy applies in the workplace as well as at home and is relevant to a broad range of situations. The conduct of house searches, body searches, the collection of personal information, the use of surveillance, interception of telecommunications, wire-tapping and recording of conversations are all examples of situations that engage the right to privacy. The right to privacy might also be infringed by the publication of personal information in the mass media. Freedom of expression and the right to privacy often need to be balanced against each other.
[41] The Applicant notes that the right not to have family and home interfered with does not extend to the right to be provided with a home, but not to have one’s family or home interfered with unlawfully or arbitrarily. In these circumstances the Applicant contends that though, on a plain English interpretation, an application under s83(i) of the RT Act would interfere with the Respondent’s family home, such an action would not be unlawful or arbitrary.
The Applicant notes the comments of Justice Bell in Director of Housing v Sudi[xv]: ‘[e]victing people living in public housing is a severe infringement of their human rights, especially those which protect the family and the home. Unless interference is demonstrably justified, it breaches human rights and is ‘unlawful’ ... The onus is on the person seeking to uphold the infringement to establish this justification’. His Honour in Kracke v Mental Health Board & Ors (General)[xvi] commented ‘[t]he exercise of power by public officials, as it affects members of the public, must be governed by clear and publicly accessible rules of law. The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred. This is what, in this context, is meant by arbitrariness, which is the antithesis of legality’.
Essentially the argument for CANFaCS is that the notice to vacate was allowed by the words of the occupancy agreement, and that CANFaCS allowed Mr Watson the relevant notice period and the opportunity to vacate the premises in a ‘timely and considerate manner’. Thus it is a lawful action by CANFaCS. Further that the opportunity for Mr Watson to resist the application before the Tribunal amounts to ‘adequate safeguard and review mechanisms’.
The Respondent in written submissions submits that on the evidence above ‘the Applicant’s interference with the respondent’s human rights would be ‘arbitrary’ because they would be based on the applicant’s past behaviour, convenience, and competing priorities rather than on any objective criteria’.
Certainly, the eviction procedure manual discussed at 48 above does not reveal any consistent or objective guidelines upon which any decision to terminate an occupancy agreement could be based. None of the documents before the Tribunal reveal clear pre-existing rules or procedures that are ‘predictable and foreseeable by those to whom they are applied’. There is no evidence that any rules or procedures or criteria were addressed by CANFaCS in coming to the decision to terminate the agreement.
ACAT finds that the making of the decision to terminate the occupancy agreement was triggered by the information that Mr Watson was no longer eligible for priority allocation of ACT public housing and that it was more likely than not based upon Mr Watson’s changed circumstances. Indeed, on
8 October 2009 CANFaCS had entered into a new agreement with Mr Watson, and the needs of other clients of CANFaCS did not prevent this. Mr Watson’s circumstances have changed only in one aspect – the longer than anticipated wait for public housing. Yet, only a few weeks later, it was decided at a group meeting to terminate his occupancy, despite the likelihood that he and his sons would become homeless, and without reference to any published, consistent or existing rules. This con..stitutes arbitrary interference with his home.

Is the protection from arbitrary interference with home or family subject to limitations?

Section 28 of the Human Rights Act 2004 provides:
(1) Human rights may be subject only to reasonable limits set by Territory 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:
(a) the nature of the right affected;
(b) the importance of the purpose of the limitation;
(c) the nature and extent 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.
Section 30 of the Act provides: So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
The Explanatory Statement[xvii] to the Human Rights Act states that whether a limitation is reasonable in respect of a person(s) in a special legal position will fall for determination in each individual case. Clause 28 requires that the limit must be authorised by a Territory statute or statutory instrument. The limitation must also be reasonable and one that can be demonstrably justified in a free and democratic society. Whether a limit is reasonable depends upon whether it is proportionate to achieve a legitimate aim. Proportionality requires that the limitation be:
·necessary and rationally connected to the objective;
·the least restrictive in order to accomplish the object; and
·not have a disproportionately severe effect on the person to whom it applies.

59. In relation to section 30 the Explanatory Statement states:

the purpose of clause 30 (1) is to recognise, to the maximum extent possible, the human rights set out in Part 3 in all other Territory statutes and statutory instruments. This rule requires that when working out the meaning of a Territory statute or statutory instrument an interpretation that is consistent with human rights must be applied in preference to any other interpretation.

Clause 30(1) is subject to the purposive rule of construction set out in subclause 139 (1) of the Legislation Act 2001. Subclause 139(1) requires that Territory laws must be interpreted in a way that best achieves the purpose of the Act. Consequently, the interpretation most beneficial to human rights will best achieve the purpose of the Bill.

Where there is a choice between two interpretations and both interpretations best achieve the purpose of the statute or statutory instrument, the interpretation that is consistent with human rights must prevail.
Clause 30 (2) clarifies that if an interpretation that is consistent with human rights would have the affect of defeating the obvious purpose of the statute or statutory instrument the interpretation that is consistent with human rights will not prevail.
The effect of clause 30 is that the courts, Tribunals, decision makers and others authorised to act by a Territory statute or statutory instrument must take account of human rights when interpreting the law. A statutory discretion must be exercised consistently with human rights unless legislation intends to authorise administrative action regardless of the human right.

The Plain English Guide[xviii] states some rights are absolute but generally speaking human rights law recognises that one person’s rights cannot be enjoyed at the expense of another’s, and that where rights and interests clash there needs to be a rational and consistent way of working out limitations. Human rights law provides the protection of specific rights and the legal framework for working out where the ‘balance’, in terms of limitations, lies. It is not simply a question of balancing one person’s rights against another’s. Human rights law has developed the ‘proportionality test’, which is a framework that is used to work out what are legally acceptable limitations on human rights. Section 28 brings the ‘proportionality test’ into Territory law.
Each party addressed the factors set out in section 28 and the Tribunal summarises their submissions below.
The Applicant’s submissions:
a.The rights affected and to be balanced are the right of Mr Watson to maintain his family in his current home, and the rights and ability of CANFaCS to control its own properties in a manner which best meets it purpose and the needs of its clients.
b.The right to be protected from arbitrary interference with home should not be interpreted as a general right to shelter or housing.
c.CANFaCS is a crisis accommodation provider and is not funded to provide public housing on a long term basis. The normal period of residence is 3 – 6 months, and not usually greater than 12 months. Mr Watson has been residing in the premises since June 2007. The applicant contends that it is reasonable and proportionate to limit his rights under the Human Rights Act in favour of other families who also require assistance.
d.Other avenues for obtaining housing are available to Mr Watson but he has been ‘largely inactive in pursuing those options’.
e.CANFaCS is a SAAP housing provider and the purpose of SAAP funded crisis accommodation is not to provide an alternative to public housing but to assist those in crisis and extreme need of housing. It is reasonable to place limits on Mr Watson’s occupancy in order to fulfil that wider purpose.
The respondent’s submissions: ‘the reason for the Applicant’s existence, and the purpose behind the Applicant’s practices and procedures, is to avoid or prevent homelessness. It is... absurd to claim that this objective, and the need for the Applicant to have appropriate procedures, justifies making a housed family homeless for no other purpose than to house another person’.
The Tribunal notes also:
a.The Residential Tenancies Act provides for the termination of tenancies and occupancy agreements in circumstances both where there is a breach of the agreement or for no cause:
b.The Residential Tenancies Act contains a limitation on the right of crisis accommodation clients to stay in the premises when the premises are required for others.
Section 12(3)(d) of the Residential Tenancies Act provides for the obligation of a crisis accommodation provider to give a statement to the tenant.
Section 12 – “Lessor's obligations
(3) The lessor must provide the tenant with the following information:
...
(d)if the premises are crisis accommodation provided by a declared crisis accommodation provider—a statement explaining that the lessor can terminate the agreement on 4 weeks notice if the lessor needs the premises to use as crisis accommodation for someone other than the tenant;”
Section 36(k) of the Residential Tenancies Act provides for the circumstances in which a crisis accommodation provider may terminate a tenancy.
Section 36 – “Termination
Despite anything to the contrary in any territory law, a residential tenancy agreement must not terminate or be terminated other than in the following circumstances:
...
(k) for crisis accommodation—if the lessor—
(i)    gives the tenant 4 weeks notice to terminate the agreement; and
(ii)    has given the tenant information about alternative accommodation; and
(iii)    needs the premises to use as crisis accommodation for someone other than the tenant.”

67. These provisions are interpreted to impose an obligation on any crisis accommodation, who wishes to limit the right to protection from interference with a home, to inform the tenant of the limitation; and to allow exercise of the right to terminate only if the criteria above are followed. Such a scheme by setting out clear rules and procedures avoid arbitrary action.

68. The agreement between the parties is an occupancy agreement and not a residential tenancy agreement, none of the terms or information supplied to Mr Watson refers to such matters and no such limitation exists.

The effect of these provisions is to allow an eviction from crisis accommodation where there is a potential conflict of the rights and needs of persons in need of support from crisis accommodation providers. Such evictions may represent a reasonable limit on the right to be protected from interference with home, but only where the crisis accommodation provider has, at the time of formation of the agreement, properly informed their tenant/client of this possibility; and where the crisis accommodation provider has specifically relied on this as a ground for issuing the notice to vacate. Where the requirements of section 12 and section 36 of the Residential Tenancies Act are complied with the eviction is not arbitrary.
Certainly a family cannot remain in crisis accommodation indefinitely and a crisis accommodation provider should have the ability to terminate an agreement in appropriate circumstances. Mr Watson expected that his occupation of the premises was temporary in the sense of transitional: either he would be allocated public housing or he would be in a position to move to private rental accommodation. CANFaCS had the power to impose a specific and contractual limit upon the occupancy by following the scheme laid out in the Residential Tenancies Act, but did not do so.
In Commissioner for Housing v Y[xix] the Supreme Court referred to the entitlement of the family unit to protection and stated that ‘ those rights require that the rights of a family... to secure and appropriate housing be recognised and that territory laws be so interpreted so as to preserve and advance those rights where possible’.
Protecting the human rights of those members of society who are in vulnerable positions or at risk of harm is an important value. The Watsons are a family at risk of homelessness from eviction from crisis accommodation in circumstances where they cannot afford private rental, have a considerable waiting period for alternate affordable public housing and face breaking up the family unit in order to obtain adequate but separate housing.

Summary

CANFaCS is a public authority for the purposes of the Human Rights Act;
a.The decision to terminate Mr Watson’s occupancy of the premises was not based on clear pre-existing rules nor was the procedure in reaching that decision transparent, predictable and foreseeable;
b.CANFaCS in its decision making failed to give proper consideration to a relevant human right;
c.There is no basis for finding a reasonable limitation on this right in relation to the occupancy agreement ;
d.In interpreting the relevant Territory law the Tribunal has taken account of human rights.
e.The serving of a notice to vacate constituted an interference with the family unit and arbitrary interference with a home, and is therefore unlawful.
The Tribunal has no jurisdiction to consider the application for a termination and possession order.

………………………………..

Ms J. Lennard
Senior Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A FILE NO:

APPLICANT: CANBERRA FATHERS & CHILDREN SERVICES INC
RESPONDENT: MICHAEL WATSON

COUNSEL APPEARING: APPLICANT:

RESPONDENT:

SOLICITORS: APPLICANT: CLAYTON UTZ

RESPONDENT: WELFARE RIGHTS & LEGAL CENTRE

OTHER: APPLICANT:

RESPONDENT:
TRIBUNAL MEMBER/S:

DATE/S OF HEARING: 1 JULY 2010 PLACE: CANBERRA

DATE/S OF DECISION: 29 October 2010 PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

COMMENTS:

[i] Director of Housing v Sudi (Residential Tenancies) [2010] VCAT 328 (31 March 2010) and Metro West v Sudi (Residential Tenancies) [2009] VCAT 2025 (9 October 2009).

[iii] Thomson v ACT Planning and Land Authority ( Administrative Review) [2009] ACAT 38 (2 October 2009)

[iv] See also Thomson v ACT Planning and Land Authority (Administrative Review) [2009] ACAT 38 (2 October 2009)

[v] The Commissioner for Housing in the ACT v Y
[2007] ACTSC 84 (12 October 2007)

[vi] Towards an ACT Human Rights Act, Report of the ACT Bill of Rights Consultative Committee, May 2003 at 4.72 – 4.78.

[vii] Ibid at 4.72.

[viii]R v Fearnside [2009] ACTCA 3 (24 February 2009)

[ix] Hakimi v Legal Aid Commission (ACT); The Australian Capital Territory (Intervener) [2009] ACTSC 48 (12 May 2009)

[x] Metro West v Sudi (Residential Tenancies)
[2009] VCAT 2025 (9 October 2009) at 1.

[xi] Director of Housing v Sudi (Residential Tenancies) [2010] VCAT 328 ( 31 March 2010)

[xii] Director of Housing and Sudi Op cit at para 74.

[xiii] Homeground Services v Mohamed (Residential Tenancies) [2009] VCAT 1131 (6 July 2009) at para 15 -18

[xiv] Human Rights Act 2004: A Plain English Guide, published by ACT Department of Justice and Community Safety: Op cit, endnote 6 at para 1.

[xvi] Kracke v Mental Health Review Board & Ors(General)[2009] VCAT 646 (23 April 2009) at 168

[xvii] Op cit p9-10

[xix] Op cit at 47 & 48