Commissioner for Social Housing in the ACT v “A”

The case before the ACT Civil and Administrative Tribunal involved the Commissioner for Social Housing in the ACT, who sought a termination and possession order against the tenant, referred to as "A". The Commissioner sought to terminate the residential tenancy agreement based on the tenant's incarceration and subsequent failure to vacate the premises as required by a notice to vacate. The tenant opposed the application, citing her anticipated parole and need for stable housing upon release. The Tribunal was tasked with determining whether to exercise its discretion under section 47 of the Residential Tenancies Act 1997 (RT Act) to make a termination and possession order, considering the Human Rights Act 2004 (HRA) implications and the individual circumstances of the tenant.

The primary legal issues before the Tribunal were whether the power to make a termination and possession order under section 47 of the RT Act was discretionary, and if so, how that discretion should be exercised in light of the tenant's rights under the HRA. The applicant argued that the power was narrow and should be exercised mandatorily if certain conditions were met. The tenant contended that the power was clearly discretionary, and in the context of her specific circumstances, the Tribunal should decline to exercise that power.

The Tribunal found that the power under section 47 was indeed discretionary, rejecting the applicant's argument that the order must be made in every case where the statutory preconditions were satisfied. The Tribunal noted that the wording of the section, and the surrounding context of the RT Act, indicated a discretionary power. The Tribunal also held that the tenant's rights under the HRA were relevant in the exercise of this discretion. Although the Tribunal was not tasked with reviewing the applicant's compliance with the HRA in issuing the notice, it could consider whether making the order would constitute an arbitrary interference with the tenant's home.

In exercising its discretion, the Tribunal balanced the importance of the tenant's need for stable housing upon her release from custody with the applicant's need to manage public housing resources effectively. Given the imminent prospect of the tenant's parole and her ability to resume occupation of the premises, the Tribunal decided to terminate the tenancy only if the parole application was unsuccessful. When the matter was heard on 17 December 2014, the Tribunal was informed that the parole application had been refused, leading the Tribunal to make an unconditional termination and possession order, which it suspended to allow the parties time to seek legal advice.

The final orders made by the Tribunal were that the residential tenancy agreement would be terminated at 5:00pm on Wednesday, 17 December 2014, and the tenant was required to vacate the premises on or before that time. The operation of these orders was suspended until 5:00pm on Wednesday, 7 January 2015, to allow the parties to seek further legal advice. If the tenant failed to vacate the premises as required, the lessor could request the Registrar to issue a warrant for eviction.