Commissioner for Social Housing v Krutsky (Residential Tenancies) - [2023] ACAT 55

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COMMISSIONER FOR SOCIAL HOUSING v KRUTSKY (Residential Tenancies) [2023] ACAT 55

RT 883/2022

Catchwords: RESIDENTIAL TENANCIES – termination of residential tenancy agreement – section 51 of the Residential Tenancies Act 1997 – interference in the quiet enjoyment of nearby premises – very serious, threatening and deliberate act of violence – reckless act of violence – interference is ongoing and would be increased were the termination and possession order not made – section 28 of the Human Rights Act 2004 – unlawful or arbitrary interference with human rights – inappropriate for tribunal to consider whether order unlawful – whether the effect upon the tenant is disproportionate and therefore arbitrary – assessing proportionality of interference with quiet enjoyment against detriment to respondent – termination and possession order not arbitrary – termination and possession order made
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 56
Crimes Act 1900 ss 27, 116
Evidence Act 2011 s 128
Housing Assistance Act 2007 ss 9, 11
Human Rights Act 2004 ss 12, 28
Residential Tenancies Act 1997 ss 2, 47, 48, 49, 51, Dictionary

Cases cited:Canberra Fathers and Children Services Inc & Michael Watson [2010] ACAT 74
Commissioner for Social Housing in the ACT v Canham [2012] ACAT 41
Commissioner for Social Housing v Cook [2020] ACAT 36
Commissioner for Social Housing v Tenant AA20154 & Ors [2022] ACAT 57
Hakimi v Legal Aid Commission [2009] ACTSC 48
R v Fearnside [2009] ACTCA 3
Reid v Howard [1995] HCA 40
Sorby v Commonwealth [1983] HCA 10

Tribunal:Presidential Member H Robinson
Date of Orders:  17 August 2023
Date of Reasons for Decision:      15 September 2023
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          RT 883/2022
BETWEEN:

COMMISSIONER FOR SOCIAL HOUSING
Applicant/Lessor

AND:
REBECCA KATHERINE KRUTSKY

Respondent/Tenant

TRIBUNAL:Presidential Member H Robinson
DATE:17 August 2023

ORDER

The Tribunal orders that:

The oral application for an adjournment of proceedings is dismissed.
The residential tenancy agreement is terminated immediately pursuant to section 51(d) of the Residential Tenancies Act 1997.
The tenant must vacate the premises immediately.
If the tenant fails to vacate the premises as required by paragraph 2 of the Order the lessor may request the Registrar of the ACT Civil and Administrative Tribunal to issue a warrant for eviction.
The operation of paragraphs 2, 3 and 4 of this Order is stayed until 4:00pm on 14 September 2023.

………………Signed……………

Presidential Member H Robinson

REASONS FOR DECISION

This matter concerns an application by the Commissioner for Social Housing (Commissioner) for the termination of a residential tenancy agreement under section 51(d) of the Residential Tenancies Act 1997 (the RT Act) by reason of an act of criminal conduct by the respondent tenant.

Legislation

Section 51 of the Act provides, relevantly, that:
51 Damage, injury or intention to damage or injure
On application by a lessor, the ACAT may make a termination and possession order effective immediately if satisfied that the tenant has intentionally or recklessly caused or allowed, or is likely to cause or allow—
(a)serious damage to the premises or to other property of the lessor; or
(b)if the lessor is an individual—injury to the lessor or a member of the lessor’s family; or
(c)if the lessor is a corporation—injury to a representative of the corporation or a member of a representative’s family; or
(d)serious or continuous interference with the quiet enjoyment of nearby premises by an occupier of the premises.
A ‘termination and possession order’ is an order of the tribunal terminating a residential tenancy agreement and granting vacant possession of the premises to the lessor.[1]

Background

[1] Residential Tenancies Act 1997 section 2 and Dictionary

The Commissioner for Social Housing is a statutory corporation established under section 9 of the Housing Assistance Act 2007. The Commissioner’s functions include delivering housing assistance by way of public rental housing.[2] The Commissioner’s obligations in relation to its tenants, many of whom are particularly vulnerable, have been the subject of commentary by the Tribunal in other matters.[3]
[2] Housing Assistance Act 2007 section 11(1)(i)
[3] See, for example, Commissioner for Social Housing v Tenant AA20154 & Ors [2022] ACAT 57 at [81]
The tenant is a middle-aged woman. She has been a tenant of the Commissioner for various periods since 1991. She is currently incarcerated in the Alexander Maconochie Centre (AMC).
The parties entered into the current tenancy agreement, in respect of the subject premises (the premises), on 2 January 2017 (agreement).
On 8 September 2022, the tenant was involved in an incident near the premises (the incident), the details of which I will come to shortly.
On 9 September 2022, the respondent contacted the Commissioner from police custody and advised that she was being incarcerated, following being charged with criminal offences arising from the incident. She has remained in custody since that time, first on remand and then under sentence.
On 13 September 2022, the tenant received a complaint from several neighbours in relation to the incident.
Shortly thereafter, the applicant lodged the present application for a termination and possession order under section 51 of the RT Act.
The incident was the subject of charges heard before the ACT Magistrates Court in 2023. She was ultimately convicted of three breaches of the Crimes Act 1900:
(a)two breaches of section 27(3) – Acts of endangering life etc – use against another person an offensive weapon; and
(b)one breach of section 116(3) – Damage property
The tenant was sentenced to 18 months imprisonment for each offence, to be served partially concurrently, with a non-parole period of 11 months. At the time of the hearing, she was eligible for parole in August 2023.

The incident

The Tribunal has had the benefit of reading extracts from the criminal proceedings before the ACT Magistrates Court arising from the incident, including his Honour Magistrate Theakston’s findings of fact and subsequent sentencing remarks. It is apparent from the transcript that the tenant was ably represented by Legal Aid throughout the criminal proceedings. She made some concessions; other matters were left for the presiding Magistrate to determine.
Further, much of the incident was captured by CCTV, which the Tribunal has viewed.
Drawing primarily upon his Honour’s findings, but also having regard to the CCTV footage and the tenant’s comments at the hearing before the Tribunal, I am satisfied that:
(a)On the afternoon of the incident, the tenant had an argument with her son at the premises. During that argument, a neighbour and her two female friends (the friends) were situated on a balcony at a neighbouring premises. The tenant called to the neighbour and her friends and, on her evidence, asked them to call police. The neighbour and friends went inside their house.
(b)Later, the friends were walking across the street when the tenant drove past them. She slowed her car to drive alongside them and spoke to them. They did not engage with her or answer to her satisfaction.
(c)The applicant then suddenly and abruptly turned her car toward where the friends were standing. They were forced to rapidly move out of the way.
(d)Following this, the friends turned and ran back to the neighbour’s house. The female neighbour was waiting for them, standing behind the front door.
(e)The tenant reversed back onto the street, and then, under power, accelerated down the road, turned into the neighbours’ driveway, and drove into the garage door, causing significant damage to the house and garage, and writing off a vehicle parked therein.
(f)Following the incident, the tenant drove to the police station and handed herself in. She was charged. She has remained in custody since.
His Honour found that the tenant drove at the friends intentionally, and had the women not moved as quickly as they did, they would have been struck by the car and been seriously injured. However, his Honour also accepted that the tenant’s actions in driving into the garage and causing damage to the property was reckless, as opposed to deliberate or intentional. I adopt these findings.

The tribunal process

The Commissioner lodged the current application for a termination and possession order on 1 November 2022. It was listed for hearing first on 10 November 2022 and then adjourned to 15 November 2022.
On the second hearing date, the tenant sought an adjournment pending the outcome of the criminal proceedings. In hearing from the parties, it became apparent to the Tribunal that the Commissioner would seek to call as witnesses persons could also be witnesses in the criminal proceedings. These witnesses had yet to give statements to the AFP.
The tenant also indicated that she wished to contest the application, and that to do so she would need to give evidence about the incident. This raised the prospect of whether the tenant would be prejudiced in these proceedings were she to decline to give potentially incriminating evidence in this matter while the criminal matter was before the Magistrates Court.
A person has a “basic … common law right”[4] to refuse to answer any question, or to produce any document or thing, if to do so “may tend to bring him into the peril and possibility of being convicted as a criminal”.[5] Accordingly, in many jurisdictions, a Court or other body that requires a witness to give evidence that may incriminate them may also give the witness a certificate that prevents the evidence from being used against the witness in other proceedings, except in limited circumstances.[6] The Tribunal’s view is that it cannot give such a certificate.
[4] Reid v Howard [1995] HCA 40 at [8] (Toohey, Gaudron, McHugh and Gummow JJ)
[5] Sorby v Commonwealth [1983] HCA 10 at [5] (Gibbs CJ), quoting Lamb v Munster (1882) 10 QBD 110, 111
[6] See, for example, Evidence Act 2011 s 128
The Tribunal requested that the Commissioner liaise with the ACT Department of Public Prosecutions (DPP) in relation to whether the residential tenancy proceedings should proceed in the circumstances. The DPP requested that these proceedings be stayed to minimise prejudice to the trial and the tenant. On that basis, the Tribunal adjourned the proceedings, pending the completion of the criminal matters.
I acknowledge that the adjournment unfortunately caused some distress to the neighbours, who had attended the second hearing and were prepared to give evidence.
The matter was eventually listed for hearing on 28 July 2023. On that occasion, the tenant was unwell, and in any case the Commissioner’s solicitor sought to rely on a bundle of documents that had not been served. The matter was adjourned to 17 August 2023 to allow the tenant to recover, and the Commissioner’s evidence bundle to be served.
At the hearing on 17 August 2023, the applicant was represented by Mr Bloomfield of the ACT Government Solicitor and the tenant appeared in person by videolink from the AMC.
At the commencement of the hearing, the tenant sought an adjournment in order to:
(a)await the outcome of a request for information she had made to the AFP under the Freedom of Information Act 2016 (FOI Request);
(b)allow further time for consideration of the tender bundle, which she had received a week earlier; and
(c)facilitate Legal Aid representing her on the next occasion.
I explored with the tenant the purpose of the FOI request and the documents sought through it. She explained that she wanted the documents to confirm that there had been no previous complaints about her behaviour while living at the premises. Mr Bloomfield confirmed that the Commissioner did not intend to rely upon any previous events, and indeed that there had been no previous complaints about the tenant’s behaviour. I advised the parties that I would proceed on that basis, and that I did not consider it appropriate or necessary to adjourn the matter to obtain material about the history of the tenancy that was not relevant to the proceedings.
In relation to the second ground, the tenant explained that the document bundle had only reached her a week earlier. It can be time consuming to deliver material to the AMC, and it was unfortunate that the tenant did not have more time to review it. However, having perused the information, I was satisfied that none of the material in the bundle should have been unfamiliar to her. Additionally, a significant amount of material in the bundle was not relevant. Mr Bloomfield advised that the bundle had been put together earlier in the process, and he did not seek to rely upon much of the background material. Accordingly, I had regard only to the material set out in paragraph below. Again, I did not consider it necessary to adjourn the proceedings on the basis as I was satisfied the tenant could respond to the material that was relied upon by the Commissioner.
The third ground had more force. A person who is incarcerated is seriously disadvantaged in their ability to prepare their case. However, while it would have been beneficial to both the tenant and the Tribunal for the tenant to have been represented by Legal Aid, this was not the only consideration. The tenant had had a significant period in which to arrange for representation prior to this hearing. There was also no evidence before me that confirmed that Legal Aid had approved the tenant’s representation in this matter – for example, no email or Notice of Representation.
I also explored with the tenant how she wished me to consider the Magistrate Court’s decision. She suggested that, given an opportunity, she would seek to put further explanation and context around his Honour’s findings. However, the core facts were not in dispute. The issue for the Tribunal was the exercise of discretion, considering the mostly uncontested facts of what happened. I was satisfied that the tenant could adequately put this case before the Tribunal, and indeed she did so.
The Tribunal is required to be as simple, quick, inexpensive, and informal as is consistent with achieving justice, and with procedural fairness.[7] Weighing all the considerations, and also taking into account the anxiety of the neighbours, I was not satisfied that the matter should be adjourned again.

Material before the Tribunal

[7] ACT Civil and Administrative Tribunal Act section 7

As noted above, in discussion with the parties as to the scope of this application, I was able to clarify that the applicant was seeking a termination and possession order under section 51(d) based only on the events of the incident of 8 September 2023. There were no other complaints, and there was no suggestion of a pattern of behaviour by the tenant that would amount to continuous interference (outside of the incident). The sole question was whether the singular incident on 8 September 2022, for which the tenant was charged and convicted, could be considered a “serious or continuous interference with the quiet enjoyment of nearby premises by an occupier of the premises” that was of sufficient seriousness to justify termination of her residential tenancy agreement.[8]
[8] Residential Tenancies Act 1997 section 51(d)
In deciding the matter, I had regard to the following material filed by the applicant:
(a)the extract of proceedings – sentence;
(b)the transcript of proceedings – submissions and verdict;
(c)the victim impact statements from both neighbours; and
(d)the applicant’s written submissions.
The tenant filed only a reference from a neighbour (the reference), an Indigenous elder who spoke highly of her as a friend and neighbour. I offered the tenant an opportunity to respond to the application orally. She provided eloquent submissions as to the adverse effect eviction would have on her personal circumstances. I accept her evidence in this regard.

The applicant’s position

The applicant argued that the offences for which the tenant was convicted were dangerous and terrifying. They involved two actions:
(a)the use of the vehicle to drive toward the friends; and
(b)the subsequent driving of the vehicle into the neighbours’ garage, which amounted to an incursion into their home.
The applicant argued that both incidents were a very serious and continuous interference with the neighbour’s enjoyment of their premises, and that regardless of the tenant’s behaviour in the future, the:
natural and very rational anxiety that those incidents have given rise to – in neighbours and the significant incursion on their enjoyment, for example; through not being able to have their kids in the front yard, apprehension of anything that might happen, volatility, and so on, means that they cannot enjoy their property whatsoever.[9]
[9] Transcript of proceedings 17 August 2023, page 11 lines 30-35
That the actions were “unprovoked and completely unexpected” was an aggravating rather than mitigating consideration:
Taking [the tenant] at her own submission, the fact that she had no prior relationship with the neighbours, in my submission, makes it even more terrifying because there was simply no rational basis that they could have fixed and therefore in their minds, there’s no way of them avoiding the possibility of this happening in the future.[10]
[10] Transcript of proceedings 17 August 2023, page 12 lines 29-33
The Commissioner further submitted that it had obligations to other parties:
Simply the psychological impact is irredeemable, and I note as well, our submission is that the commissioner has significant obligations. This is an area that hasn’t been fully fleshed out but there is, in our submissions, some case law around the importance of the commissioner’s obligations to third parties.[11]
[11] Transcript of proceedings 17 August 2023, page 14 lines 32-36
When asked by the Tribunal whether the Commissioner would consider transferring the tenant to other accommodation, Mr Bloomfield said that he had limited instructions but “she may reapply but not that a transfer would be put through or entertained”.[12]

The tenant’s position

[12] Transcript of proceedings 17 August 2023, page 15 lines 29-30

The tenant’s position was that the incident was “an isolated incident”, and one that will not be repeated.[13]
[13] Transcript of proceedings 17 August 2023, page 2 lines 40-41
She maintained that she wanted to return to live in the premises, and did not see why she could not do so:
I’ve been trying to do restitution - I’ve never had any interaction with these people before. I don’t understand really why there would be so much aggressive problem with us being neighbours. We’ve never spoken before. We don’t - have never had any interaction. So they don’t know me personally and I don’t know them personally.[14]
[14] Transcript of proceedings 17 August 2023, page 3 lines 29-34
She stated that she was willing and open to engaging in a restorative justice process with her neighbours. She believes that, if given an opportunity to talk with her neighbours, she could explain herself, and they would come to understand that she is not a threat to them:
I am genuinely very sorry about what’s happened, and I’d like to be able to, you know, have some restitution in this situation, you know, that’s why I’ve offered to pay for their roller door and any damages and that sort of thing.[15]
[15] Transcript of proceedings 17 August 2023, page 6 lines 23-26
She expressed concern that her neighbours had googled her, and formed a view based on press reports that was not the reality.
She noted that the neighbours had only lived in the street for nine months, while she had resided at the premises for years.
When questioned by the Tribunal as to whether she accepted that her neighbours would be scared or worried by her continued presence in the street, the tenant was ambivalent, but maintained that even if they were, there was no basis to it, particularly as she has no relationship with them:
I don’t know what else I could possibly do to alleviate these people’s concern. Because we don’t know each other. If there had been any other interaction, if there had been any negative interaction even, or – and even if there had been positive interaction prior to this incident, I could understand them having a basis for their feelings, but I just think that there is no basis for this as we don’t know each other.[16]
[16] Transcript of proceedings 17 August 2023, page 6 lines 28-33

She stressed that she had been a good tenant before the incident, that no complaints had been made, and that she had never been evicted for a behavioural issue. She was up to date with her rent.
She had previously lost housing due to incarceration and spoke of the difficulty in getting housing again upon release.
The tenant was of the belief that she would be eligible for parole shortly, and being homeless may affect her chances of release.
The tenant also submitted that the eviction affected more than just herself. She has two adult children who live with her. Neither are in employment, but the younger has just completed school and is contemplating study. Both children, she submitted, would be evicted into homelessness if she is, with consequences for their stability and futures. She spoke eloquently of her desire to be a good parent for her children and provide them with a home.
Finally, she said that she has already been ‘punished’. During her incarceration, her elderly dog had passed away, her mother had moved into a nursing home as the tenant could no longer help her, and now her children were facing homelessness. She had also potentially lost her business, which she had worked hard to establish. She felt that the loss of her house would be a further, unwarranted punishment.

How does section 51 work?

Section 51 is set out at paragraph 2 above. The applicant relies upon paragraph (d). This requires the applicant to establish that the tenant has intentionally or recklessly caused, or is likely to cause, a serious or continuous interference with the quiet enjoyment of nearby premises by an occupier of the premises. The applicant need not establish both a serious and continuous interference – either is sufficient[17].
[17] This raises the question as to what kinds of non-serious but continuous interference might justify termination under section 51(d), but for reasons set out below, this is not something I need to consider in this matter.
The operation of section 51 of the RT Act was considered at some length by Senior Member Anforth in Commissioner for Social Housing in the ACT v Canham:
A finding of a serious interference with the quiet enjoyment of a neighbour is a necessary, but not sufficient, condition to terminate a tenancy under section 51. Section 51 involves a discretion as to whether to terminate a tenancy based on a weighing of all the circumstances of the case including the effects on all affected parties of evicting or not evicting.[18]
[18] [2012] ACAT 41 at [85]
I agree with and adopt the Senior Member’s observations that the provision gives the Tribunal a discretion whether to make a termination and possession order, where the preliminary facts are established.
In Canham, the tribunal also identified a non-exhaustive list of considerations including:
(a)     whether there were extenuating circumstances about the breach of section 51 … relied upon by the Commissioner;
(b)     whether there may have been breaches by other tenants of the Respondent’s quiet enjoyment that contributed to the events;
(c)     whether the remaining neighbours have any concerns about the presence of the Respondent in the premises;
(d)     the effect of an eviction on the mental health of the Respondent.[19]
The Senior Member also acknowledged the serious welfare connotations of “unhousing” a public housing tenant:
Unhousing people produces a range of consequential psychological, social and legal problems for the homeless person, their children, and the wider family and for the ACT government. Generally, homelessness is productive of anti-social outcomes for the community.
As a general principle, it is undesirable to unhouse people (whether single people or families) unless it the last resort. Such ‘last resorts’ do arise. What is a last resort depends on a consideration of all the circumstances of the case including the status of the landlord. It involves the kind of weighing exercise referred to above.[20]
[19] [2012] ACAT 41 at [16]
[20] [2012] ACAT 41 at [66]-[67]
Those factors provide a useful framework in this case.
The tenant also raised, albeit in vaguer terms, the impact upon her and her family, and her human rights.
Section 40C(2)(a) of the Human Rights Act 2004 provides that a person may rely on their human rights, as set out that act, in a legal proceeding.
In terms of the application of her human rights in this Tribunal, in Canberra Fathers and Children Services Inc & Michael Watson, the tribunal adopted an approach drawn from that set out by the ACT Court of Appeal in R v Fearnside[21] and by Refshauge J in Hakimi v Legal Aid Commission[22] that is:
(a) To consider whether in the circumstances the conduct of the Commissioner enlivens or engage as a human right.
(b) If so, to consider whether the decision to terminate the residential tenancy agreement amounted to an unlawful or arbitrary interference with the home of the tenant, and as part of that consideration to apply the proportionality test in section 28 of the Human Rights Act.
(c) If the decision to terminate the residential tenancy agreement was unlawful or arbitrary, the Tribunal should consider whether the rights asserted are subject to any reasonable limitations.[23]
[21] [2009] ACTCA 3 at [93]-[94]
[22] [2009] ACTSC 48 at [51]-[53]
[23] Canberra Fathers and Children Services Inc & Michael Watson [2010] ACAT 74 at [28]; This approach was also adopted by the Tribunal in Commissioner for Social Housing v Cook; an approach affirmed on appeal in Pye v Argyle Housing Ltd (Appeal) [2021] ACAT 84 at 121 noting at footnote [55] that Watson and another decision “proceeded on the basis that the ACAT was a public authority, and comments in those decisions should be approached with that reservation in mind. The situation is different where the tribunal is acting in is administrative review jurisdictions and ‘standing in the shoes’ of the original decision maker.”
It is well recognised that an eviction by a public authority may engage section 12 of the HR Act, which provides:
Everyone has the right—
(a)not to have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily; and
(c)not to have his or her reputation unlawfully attacked.
In Commissioner for Social Housing v Cook, the Tribunal observed, in relation to an order under a different section of the Act (section 47) that:
The term ‘unlawfully’ is to be considered separately from the term ‘arbitrarily’. Although, any interference could [be] both unlawful and arbitrary.
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, nevertheless, be unlawful …
The Oxford dictionary defines arbitrary as “based on random choice or personal whim, rather than any reason or system. unrestrained and autocratic in the use of authority” …
This Tribunal notes, and it is not controversial, that human rights can be limited. In this matter, the right may be limited, by being subject to the rights and obligations of each party created by the residential tenancy agreement, and the statutory scheme of the RT Act, which provides a clear process by which a lessor may serve a 26 weeks’ no cause’ [sic] notice to vacate and apply to the Tribunal for a termination and possession order where the tenant fails to comply with the notice of termination.
When considering whether to evict a person on the basis of a notice issued under section 47, the Tribunal is exercising a discretion granted to it by the RT Act. The Tribunal is not conducting a human rights, merits or administrative review of the Commissioner’s decision to issue the termination notice. In the exercise of that discretion, the Tribunal is determining what weight should be afforded to the tenant’s human right not to have his home interfered with unlawfully or arbitrarily.
The Tribunal in determining how to weigh the interests of the Commissioner and the interests of the tenant will have regard to the proportionality of the outcomes for, and effect upon, each party, to determine whether the interference with the home of the tenant is ‘arbitrary’. The proportionality considerations are guidelines for examining the limitations upon the human right not to have home arbitrarily interfered with, that is: is the limitation upon interference with home permissible because human rights may be limited, or impermissible because the effect upon the tenant is disproportionate and therefore arbitrary?[24]
[24] [2020] ACAT 36 at [26]-[31]
Although the subject sections are different, the human rights considerations are comparable, and I have taken a similar approach in this case.

Determination

The tenant engaged in a threatening, and deliberate act of violence – that of driving her vehicle towards two friends of the neighbour – that was witnessed by one neighbour. She engaged in a second reckless act of violence – that of driving her vehicle into a residential garage - that was witnessed directly by one neighbour and indirectly by the other, who viewed the damaged garage upon his return home. I am satisfied that by both acts the tenant recklessly caused serious interference with her neighbours’ quiet enjoyment of their home.
The applicant contends that interference is ongoing. The neighbours had lived in the house for only eight months when the incident happened. The female neighbour now suffers anxiety and no longer feels safe. She is reluctant to allow her children to play outside. She further says that her fear would be heightened were the tenant to return to the neighbourhood. Although I have not heard direct evidence from either of the neighbours, and rely only upon their victim impact statements only, their contentions are not unreasonable, and indeed are entirely to be expected given the circumstances of the incident. I accept that memories of the incident continue to interfere with the neighbour’s continual enjoyment of their house. I accept that, were the tenant to return to the premises the subject of these proceedings, her return would be likely to cause a serious and continuous interference with the neighbour’s quiet enjoyment of their premises. It is difficult to conceive of any measures that would alleviate that fear at this time.
Being satisfied that the requirements of section 51(d) are made out, I must still consider whether, as a matter of discretion, I should order the tenant’s eviction.
The tenant has lived in public housing for most her adult life. Those periods in which she has not had access to public housing have, on her evidence, been characterised by homelessness and separation from her children.
The tenant’s business has suffered during her imprisonment. She is likely to be financially vulnerable for some time upon release. Without an income, she will likely struggle to find private rental. The wait for public housing is lengthy. If I evict her, a period of housing uncertainty or even homelessness may follow.
To evict a middle-aged woman with presently limited means of support into homelessness is no small thing of itself. However, by reason of being incarcerated, the tenant also has additional vulnerabilities. Homelessness is a significant risk factor for recidivism, with associated consequences for her rehabilitation.[25] Eviction may also reduce her prospects of parole. These factors weigh in favour of the Tribunal declining to exercise its jurisdiction to make a termination and possession order.
[25] See, for example, Justice and Community Safety Directorate, RR25b25: Reducing Recidivism in the ACT by 25% by 2025 (Plan, 2020), pages 8, 11-12, 20-21, 26-27
Having listened to the tenant’s submission, I accept the tenant is sorry for what happened and the circumstances that have resulted, but I am not satisfied that she has truly appreciated how affected her neighbours were by the incident.
Of particular concern to me was the way the tenant’s ambivalence about the effect of the incident on her neighbours. She accepts the incident itself would have scared them, but spoke of how she did not know the victims or her neighbours and bore them no ill will. She considered this a mitigating factor, and one likely to suggest that another incident would be unlikely. For the neighbours, however, the absence of connection between themselves or their friends and the tenant is an exacerbating factor. They were confused as to why they were targeted and concerned that it could happen again. Again, their fears are not unreasonable. Consequently, while I accept that the tenant did not intend to cause such long‑term fears, they are a foreseeable consequence of her actions.
It is possible that a restorative process, as suggested and requested by the tenant, may restore relationships with the community. I am not able to assess this. However, there is nothing before me to suggest that the neighbours are prepared to engage in such a process, and I have no power to compel them do so. I would likely not be inclined to make such an order even if I did.
As to the human rights considerations, the Tribunal must determine what weight should be afforded to the tenant’s human right not to have her home interfered with unlawfully or arbitrarily.
There is nothing before the Tribunal that the applicant lessor has, in commencing this application, failed to consider a relevant human right, or otherwise acted in a manner that is unlawful. Section 51 is clearly intended to provide a lawful right to evict a tenant where the tenant’s conduct has seriously interfered with that a of a neighbour.
There is no evidence before the Tribunal to indicate that the decision to serve the termination notice, or to commence this application, was arbitrary in the sense that the Commissioner has not failed to apply internal policies or acted inconsistently with due process, or contrary to any legal process.
The question is therefore whether the “effect upon the tenant is disproportionate and therefore arbitrary”.[26]
[26] Commissioner for Social Housing v Cook [2020] ACAT 36 at [31]
In undertaking an assessment of proportionality, I have had regard to the serious nature of the incident, the fear it instilled in the neighbours, the damage caused to their home, and their ongoing anxiety. I accept they no longer feel safe in their home. The risk of ongoing interference of this kind is precisely the kind of circumstance that the power to evict in section 51(d) is intended to address. I have also noted the effect on the Commissioner as lessor, including its obligation to manage its assets appropriately, and its concerns about its obligation to manage any risk to neighbours or the public.
On the other hand, I have considered the detriment to the tenant – particularly the possible consequences of homelessness, and any effect on her chances of remand. I placed some weight on her right to family, and her desire to be a parent to her children, but note these factors do not weigh as heavily as they would if the children were minors or otherwise particularly vulnerable. These considerations were also relevant to the exercise of discretion. They are not insubstantial. However, even when considered cumulatively, they do not make the eviction disproportionate when considered against the clear purpose of section 51(d).

Decision

Having regard to the purpose for which section 51(d) exists – to terminate a tenancy where there is “serious or continuous interference with the quiet enjoyment of nearby premises by an occupier of the premises” - I am satisfied that the eviction in this case is not unlawful, arbitrary, or otherwise disproportionate. I am satisfied that I should exercise my discretion in favour of the applicant and grant the termination and possession order.
I note, for completeness, that contemplated declining to make a termination and possession order to encourage the applicant to find the tenant alternative accommodation upon her release. I note that no argument to this effect was properly put to me, and I did not have the benefit of submissions on the point. However, on the material before me, I am not satisfied that such an order would be an appropriate use of the Tribunal’s powers under the RT Act. The agreement between the applicant and the tenant is a contractual agreement in relation to the Premises, only. The agreement is governed by a statutory framework common to all tenancies. I cannot read into the contract, or the RT Act, an obligation upon the applicant, as a lessor, to provide the tenant with a home – its obligations are limited only to the premises. In any case, given the serious nature of the tenant’s actions, and the uncertainty as to the duration of her incarceration, I am not prepared to interfere with the applicant’s management of its housing resources in this manner.

Staying the order

The provisions in section 51 of the RT Act contemplate “immediate” termination. There is no power to suspend the orders, a per as a termination or possession order made under sections 47-49 of the RT Act, which expressly allow for suspension of a termination and possession order made under one of those sections for a period of three weeks in some circumstances.
However, section 56(d) of the ACT Civil and Administrative Tribunal Act (ACAT Act) provides that the tribunal may:
(d) take any other action in relation to an application—
(i)that the tribunal considers appropriate; and
(ii)that is consistent with this Act or an authorising law.
It is well established that section 56(d) of the ACAT Act enables the tribunal to, amongst other things, stay its orders.
It is possible that the express inclusion of a three-week suspension period in sections 47-49 of the RT Act preclude the more general power to stay an order found in the ACAT Act. However, there is no power expressly or impliedly limit the Tribunal’s general power to stay its orders when making a termination and possession order under section 51 of the RT Act. No party suggested otherwise at the hearing.
Accordingly, and having regard to the tenant’s difficult circumstances, I considered it appropriate to stay the termination and possession order for four weeks to allow her to:
(a)arrange for the removal of her property; and
(b)seek legal advice about her options, including appeal.

………………………………..

Presidential Member H Robinson

Date(s) of hearing:	17 August 2023
Applicant:	Mr Bloomfield, ACT Government Solicitor
Respondent:	In person