Director of Housing v Sudi
[2011] VSCA 266
•6 September 2011
Summary of Judgment
Director of Housing v Sudi [2011] VSCA 266
6 September 2011
The Court of Appeal today decided that, where the Director of Housing applies to the Victorian Civil and Administrative Tribunal for possession of public housing, the Tribunal has no power to examine whether the Director’s administrative decision to make the application complies with the Charter of Rights and Responsibilities Act 2006 (‘Charter’).
Under the Residential Tenancies Act 1997 (‘RTA’), a landlord who claims to be entitled to possession of premises may seek an order for possession. The Director of Housing, as public landlord, applied to the Tribunal for an order for possession of premises occupied by Mr Sudi and his son.
In the Tribunal, Mr Sudi contended that the Director’s decision to apply for possession was itself unlawful. He argued that, in making the decision, the Director had infringed his human rights. Specifically, Mr Sudi contended that the application infringed his right under s 13(a) of the Charter not to have his ‘privacy, family [or] home’ unlawfully or arbitrarily interfered with.
The critical question was whether the Tribunal had the power to decide the lawfulness of the Director’s decision to make the application, as distinct from determining the merits of the application itself. Bell J, sitting as President of the Tribunal, decided that it did.
The Court of Appeal has unanimously overturned this decision, holding that VCAT has no power to conduct what amounts to judicial review of the lawfulness of a decision by an administrative officer to commence proceedings in the Tribunal.
Ordinarily, such questions can only be determined by the Supreme Court, which is the only Victorian court to have a judicial review jurisdiction. Occasionally, questions of legal validity of administrative action can arise – collaterally – in lower court proceedings.
But the Court of Appeal held that the clear legislative intention of both the VCAT Act and the RTA was that the Tribunal should not have such a power.
The VCAT Act
The existence of such a power would be contrary to the whole nature and purpose of VCAT. The Chief Justice said:
… [T]he VCAT Act sets up VCAT as a forum for speedy and inexpensive resolution of specific kinds of disputes. The RTA confers jurisdiction on VCAT to hear applications under that Act. In doing so, the RTA is implementing its stated purpose of providing ‘for the inexpensive and quick resolution of disputes under [the] Act’. A power to undertake collateral review would be wholly inconsistent with this purpose.
In order to entertain a collateral attack on the validity of an administrative decision while dealing with an application under the RTA, VCAT would have to, in effect, conduct a trial within a trial. VCAT would need to leave the subject of tenancy law and enter the domain of administrative law. It would have to make difficult decisions about whether the challenge falls within the limits (if any) of permissible collateral attack, whether the impugned administrative decision is affected by error and whether the alleged error is jurisdictional. Such a complex, technical and time-consuming inquiry would destroy the advantages of litigating the tenancy dispute in VCAT rather than in a court.[1]
[1]Director of Housing v Sudi [2011] VSCA 266, [34]–[35] (Warren CJ).
The Residential Tenancies Act
Nor was there any room for such collateral review under the statutory scheme for obtaining possession of premises.
Maxwell P said:
In a statutory scheme which applies without differentiation to public and private landlords, it would be quite anomalous if the Tribunal were empowered – in cases where application was made by the Director as public landlord – to enquire into the lawfulness of the Director’s decision to seek possession. There is simply no basis for implying into the jurisdiction-conferring provisions a power in the Tribunal to conduct such a collateral review.
…
Plainly enough, Division 3 of Part 7 of the RTA was intended to establish a scheme under which landlords could seek to evict, by expeditious process consistent with the requirements of natural justice, those in occupation of premises ‘without licence or consent’. More obviously than in most other statutory contexts, the role of the Tribunal under this scheme is as an instrument of legislative policy. That is, once satisfied that the conditions for eviction are met, the Tribunal must evict.
… It would be wholly inconsistent with this legislative purpose to imply … a power of collateral review exercisable by the Tribunal in proceedings initiated by the Director.[2]
[2]Ibid [74]–[75], [79] (Maxwell P).
The Charter
Nor, in the Court’s view, did the Charter confer such a power on the Tribunal.
Under s 39(1) of the Charter, the right to argue that administrative action is unlawful because of non-compliance with the Charter can only be asserted when there would be a right to seek review of that action independently of the Charter. Neither the VCAT Act nor the RTA provides any such remedy independently of the Charter.
Weinberg JA said:
In my opinion, s 39(1) cannot be invoked as the source of VCAT’s power to engage in collateral review on Charter grounds. There are two reasons for this. First, as is plain, the section does not confer upon VCAT any power of judicial review. Secondly, the section does not expand any power of collateral review that VCAT might have under ordinary common law principles.
…
Indeed, it can be argued that the legislative intention disclosed by s 39 is that Charter unlawfulness can be relied upon as a ground in – and only in – a proceeding the object of which is to seek ‘relief or remedy in respect of an act or decision of a public authority on the ground that … [it] was unlawful’. That would, by definition, confine such relief to a direct challenge before VCAT, and would exclude any possibility of collateral review.[3]
[3]Ibid [281]–[282] (Weinberg JA).
Mr Sudi has the right to pursue his complaint of non-compliance with the Charter in the Supreme Court. The point of the Court’s decision was simply that this could not be done in the Tribunal itself.
NOTE: This summary is necessarily incomplete. The only authoritative pronouncement of the Court’s reasons and conclusions is that contained in the published reasons for judgment.
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2010 0051
S APCI 2010 0052
| DIRECTOR OF HOUSING | Applicant |
| v | |
| WARFA SHIRE SUDI | Respondent |
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| JUDGES | WARREN CJ, MAXWELL P and WEINBERG JA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 18 November 2010 |
| DATE OF JUDGMENT | 6 September 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 266 |
| JUDGMENT APPEALED FROM | Director of Housing v Sudi(Residential Tenancies) [2010] VCAT 328 (Bell J) |
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ADMINISTRATIVE LAW – Appeal on question of law – Judicial review – Collateral review – Victorian Civil and Administrative Tribunal – Original jurisdiction of Tribunal – Application by Director of Housing for possession order – Whether Tribunal had power to review lawfulness of Director’s decision to make application – Whether Tribunal had power to determine compliance by Director with Charter of Human Rights and Responsibilities Act 2006 – Statutory interpretation – Whether Parliament intended to confer on Tribunal power of collateral review – Consideration of powers and functions of Tribunal – Consideration of statutory regime for enforcing claims to possession – No power of collateral review – Appeal allowed – Tribunal decision quashed – Victorian Civil and Administrative Tribunal Act 1998 – Residential Tenancies Act 1997 ss 1(d), 446(c), 344, 345 – Charter of Human Rights and Responsibilities Act 2006 ss 38(1), 39(1).
HUMAN RIGHTS – Housing – Public housing – Eviction of tenant – Whether applicant Director acting contrary to tenant’s human rights – Collateral challenge to validity of Director’s application for possession – Statutory interpretation – Whether Parliament intended to confer on Tribunal power of collateral review – Consideration of powers and functions of Tribunal – Consideration of statutory regime for enforcing claims to possession – No power of collateral review – Whether statutory exclusion of collateral review infringed tenant’s rights – Whether infringement demonstrably justified – Whether Court should make declaration of inconsistent interpretation – Declaration refused – Victorian Civil and Administrative Tribunal Act 1998 – Residential Tenancies Act 1997 ss 1(d), 446(c), 344 and 345 – Charter of Human Rights and Responsibilities Act 2006 ss 32(1), 36(2), 38(1), 39(1).
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms D S Mortimer SC with Ms R Orr | Department of Human Services |
| For the Respondent | Mr R M Niall SC with | Tenants’ Union of Victoria |
WARREN CJ:
Introduction
This is an appeal from a decision of Bell J sitting as the President of the Victorian Civil and Administrative Tribunal (‘VCAT’). Bell J dismissed two applications by the Director of Housing (‘Director’) under s 344 of the Residential Tenancies Act 1997 (‘RTA’) for an order for possession of the premises occupied by the respondent, Mr Sudi, and his son.
The relevant final orders made by VCAT were as follows:
1.The tribunal has jurisdiction to determine whether or not an application for a possession order under s 344(1) of the Residential Tenancies Act 1997 which has been made in breach of the applicant’s obligations under s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 is valid.
2.The Director of Housing breached the human rights of Warfa Sudi and Shire Sudi to family and home under s 13(a), and acted unlawfully under s 38(1), of the Charter in seeking to evict them from, and in making an application for a possession order under s 344 of the Residential Tenancies Act in respect of, the premises which are the subject of these applications.
3. The director’s applications were thereby invalid.
4.The tribunal has no jurisdiction to hear and determine the applications.
5. The applications are dismissed.[4]
[4]Director of Housing v Sudi (Residential Tenancies) [2010] VCAT 328 (‘Sudi’).
The facts relevant to the appeal are not in dispute and it is unnecessary to repeat them. Two aspects of the decision below are of fundamental importance to the appeal. First, VCAT’s finding that it had jurisdiction to consider whether or not the acts of the Director in making the possession order application are lawful pursuant to s 38(1)[5] of the Charter of Human Rights and Responsibilities Act 2006 (‘Charter’). Second, VCAT’s declaration that the Director had acted unlawfully under s 38(1) of the Charter in making the application.
[5]That section provides: ‘(1) Subject to this section, 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.’
On 7 June 2010 the Director’s application for leave to appeal VCAT’s decision was referred to the bench hearing the appeal in the event that leave is granted. On 14 October 2010 the Court directed that ground 1 of the Director’s Amended Proposed Notice of Appeal be considered by the Court as a threshold issue. Ground 1 provides:
[VCAT] erred in finding that, in determining the application by the Appellant for a possession order under s 344(1) of the [RTA], it had jurisdiction to consider whether, by making the application for the possession order, the Appellant complied with s 38(1) of the Charter.
For reasons that will follow, leave to appeal on ground 1 should be granted and appeal should be allowed on that ground. It is unnecessary to consider the remaining grounds in the Amended Proposed Notice of Appeal.
The Residential Tenancies Act
The provisions of the RTA relevant to this appeal are ss 446(c), 344 and 345.
Section 446(c) confers jurisdiction on VCAT to determine ‘an application under this Act relating to any matter referred to it under this Act’.
Section 344 deals with applications for possession orders. It provides:
(1)A person who claims to be entitled to the possession of premises may apply to the Tribunal for a possession order if—
(a)the premises have been rented premises under a tenancy agreement at any time within the period of 12 months before the date of the application; and
(b) the applicant alleges that the premises are occupied solely by a person (not being a tenant under a tenancy agreement) who entered into or remained in occupation without the applicant's licence or consent or that of any predecessor in title of the applicant.
Section 345 provides:
The Tribunal must make a possession order for the premises if the Tribunal is satisfied that—
(a) the applicant under section 344 is entitled to possession of the premises; and
(b) there are reasonable grounds for believing that a person is occupying the premises without licence or consent.
Questions to be determined
Section 40 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) confers both ‘original’ jurisdiction and ‘review’ jurisdiction on VCAT. Review jurisdiction is defined as ’jurisdiction conferred on [VCAT] by or under an enabling enactment to review a decision made by a decision-maker’.[6] When exercising review jurisdiction, VCAT performs what is commonly known as ‘merits review’ of an administrative decision. Original jurisdiction, on the other hand, is defined as jurisdiction other than review jurisdiction.[7]
[6]VCAT Act s 42.
[7]VCAT Act s 41.
Section 344 of the RTA plainly does not confer review jurisdiction on VCAT. It follows that, as the learned judge acknowledged, when determining an application for a possession order under the RTA, VCAT is exercising original jurisdiction.[8]
[8]Sudi [2010] VCAT 328, [119].
The path of reasoning followed by the learned judge was as follows:
116.VCAT is a tribunal not a court and has no inherent jurisdiction. Although it has certain obligations under the Charter as a public authority, and can determine certain issues under the Charter when they legitimately arise in proceedings within its jurisdiction, it has no express jurisdiction with respect to the question of whether a public authority has breached human rights.
…
127.When the tribunal is exercising its jurisdiction, it can determine all issues of jurisdiction, fact and law which legitimately arise for its determination. That is true for the original jurisdiction of the tribunal, as it is for its review jurisdiction, and it is true for the civil and judicial jurisdiction, as it is for the administrative review jurisdiction.
…
130.Although determining whether a public authority has behaved unlawfully by breaching human rights has some analytical similarities with judicial review, this is not what the tribunal would be doing in determining the issue in these proceedings. The tribunal would be determining whether the human rights standards in the Charter applied to the director, whether the standards were breached by his actions or decisions in this case and whether any breach was justified.
…
135.Minister for Immigration and Multicultural Affairs v Bhardwaj decided [sic] an administrative decision ‘involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all.’ That principle does not operate to prevent the tribunal from exercising its review jurisdiction over such a decision. On the other hand, since I am here exercising original jurisdiction, and the making of the application was unlawful on the part of the director, it might be said the application was no application at all, and hence the tribunal has no jurisdiction to determine it. That, in my view, is the correct conclusion, but the real question is whether the tribunal has the jurisdiction to express it.
…
139. … In my view, if the unlawfulness of the application affects its validity and hence the jurisdiction of the tribunal, as I think it does, the tribunal must have jurisdiction to determine it.
Accordingly, two questions arise to determine whether VCAT was empowered to make the orders that it did:
a)Does VCAT, in exercising its original jurisdiction, have the power to carry out judicial review of an administrative decision?
b)If not, can VCAT, in determining an application under the RTA, undertake a collateral review of an administrative decision?
For reasons that will follow, I would answer both questions in the negative.
VCAT does not possess a judicial review jurisdiction
Throughout the course of oral submissions on the appeal, it was put to counsel for Mr Sudi that the orders pronounced by VCAT had, in substance, the same effect as the prerogative relief exercisable by the Supreme Court of Victoria under O 56 of the Supreme Court (General Civil Procedure) Rules 2005. Mr Sudi’s counsel conceded this point and agreed that the substantive consequence of the orders was in the nature of certiorari, as they had the effect of quashing the Director’s application by declaring it invalid as a matter of law
Traditionally in the states and territories, prerogative remedies have been exercised only by the relevant Supreme Court. This is reflected in the constitutional arrangements that apply in Victoria. Section 85 of the Constitution Act 1975 is headed ‘Powers and jurisdiction of the [Supreme] Court’. Subsections (1) and (3) provide:
(1) Subject to this Act the Court shall have jurisdiction in or in relation to Victoria its dependencies and the areas adjacent thereto in all cases whatsoever and shall be the superior Court of Victoria with unlimited jurisdiction.
(3) The Court has and may exercise such jurisdiction (whether original or appellate) and such powers and authorities as it had immediately before the commencement of the Supreme Court Act 1986.
At the time of the commencement of the Supreme Court Act 1986 and, as observed recently by the High Court in Kirkv Industrial Relations Commission of New South Wales,[9] at the time of federation, the Supreme Courts had the same jurisdiction, powers and authority as the Court of Queen’s Bench in England. That is, original or inherent jurisdiction to examine and correct all errors in inferior courts.[10] By the eighteenth century, certiorari had become an important means of controlling courts of record as well as other decision makers.[11] Whilst technically under state constitutional arrangements it might be possible for Parliament to grant jurisdiction to administrative tribunals to exercise prerogative remedies, for the reasons which follow, this has not been done in the present instance, presumably in recognition of this long standing historical function of the Supreme Court of Victoria.
[9](2010) 239 CLR 531 (‘Kirk’), 580 [97] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[10]Ibid 568 [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[11]Ibid.
The High Court has recognised the special supervisory role of state Supreme Courts in Australia’s common law system:
The supervisory jurisdiction of the Supreme Courts was at federation, and remains, the mechanism for the determination and the enforcement of the limits on the exercise of state executive and judicial power by persons and bodies other than the Supreme Court. That supervisory role of the Supreme
Courts exercised through the grant of prohibition, certiorari and mandamus (and habeas corpus) was, and is, a defining characteristic of those courts.[12]
[12]Ibid [98].
In contrast, the role and jurisdiction of VCAT is quite different. As an administrative tribunal, the jurisdiction of VCAT derives entirely from statute. The powers of an administrative tribunal in any particular instance flow from the statute that establishes the tribunal, in this case the VCAT Act, and any subject-specific legislation granting further jurisdiction, in this instance, the RTA. VCAT is intended to be a forum for speedy and inexpensive resolution of specific kinds of disputes in respect of which the legislature saw fit to confer jurisdiction.
Given these fundamental differences, if Parliament had intended to confer on VCAT the power to carry out judicial review of administrative decisions, it would have done so expressly, or at least by clear implication. No such express provision can be found, or clear implication discerned, in the VCAT Act, the RTA, or the Charter.
Accordingly, the learned judge was right to hold that VCAT ‘does not possess a judicial review jurisdiction’ in its original jurisdiction.[13]
[13]Sudi [2010] VCAT 328, [129].
VCAT does not have power to undertake collateral review
The learned judge was of the view that VCAT did not need to possess a judicial review jurisdiction or the power to grant judicial review remedies in order to consider a challenge to the Director’s decision to bring the application for a possession order. In support of that view, his Honour cited the decision of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj[14] where Gaudron and Gummow JJ (McHugh J agreeing) stated:
There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. [15]
[14](2002) 209 CLR 597 (‘Bhardwaj’).
[15]Ibid [51] (footnotes omitted).
The passage suggests that while VCAT does not have the power to quash a purported administrative decision vitiated by jurisdictional error, it can simply treat the decision as having no legal effect. The difficulty is that an invalid decision ‘bears no brand of invalidity upon its forehead’.[16] In the absence of a court order authoritatively declaring a purported administrative decision to be invalid, can VCAT itself inquire into the validity of the decision?
[16]Smith v East Elloe Rural District Council [1956] AC 736, 769 (Lord Radcliffe). Cf Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, [77] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
VCAT’s lack of judicial review jurisdiction is not necessarily fatal to its ability to undertake this inquiry. An inferior court with no judicial review jurisdiction may still be able to entertain a collateral challenge to the validity of an administrative decision. For example, in Ousley v The Queen[17] the High Court considered whether an accused in a criminal trial in the County Court can mount a collateral attack on the validity of a listening device warrant, in order to challenge the admissibility of recordings made through the listening device. Having found that the issuance of the warrant was an administrative act, the High Court held that the County Court trial judge was able to examine the validity of the warrant.[18] The trial judge was able to do so despite the fact that the County Court was an inferior court with no judicial review jurisdiction.[19]
[17](1997) 192 CLR 69 (‘Ousley’).
[18]Ibid 80, 85 (Toohey J), 87 (Gaudron J), 100–105 (McHugh J), 124, 127, 131 (Gummow J). Kirby J left the question open but expressed a tentative view in favour of collateral challenge: 146–148.
[19]County Court Act 1958 s 37(2)(c).
Subsequently, in Attorney-General (Cth) v Breckler, the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ held that:
in the absence of legislative prescription to the contrary, [an administrative decision] would be open to collateral review by a court in the course of
dealing with an issue properly arising as an element in a justiciable controversy of which the court was seized. [20]
[20](1999) 197 CLR 83, [36]. The issue of collateral challenge was also mentioned in South Australia v Totani (2010) 242 CLR 1 (‘Totani’) but the High Court found it unnecessary to rule on the matter.
Ousley and Breckler make it clear that administrative decisions can generally be collaterally challenged in a court. But the scope of permissible collateral challenge remains a matter of some controversy.
Ousley drew a distinction between permissible and impermissible grounds for collaterally challenging the listening device warrants. On one view, Ousley stands for the proposition that collateral review of an administrative decision in an inferior court is confined to review of the validity of the decision on its face. But Ousley can also be read as being consistent with the proposition that an administrative decision can be collaterally challenged in an inferior court on the basis that the decision is vitiated by jurisdictional error, irrespective of whether the jurisdictional error is apparent on the face of the decision.[21]
[21]On this reading, the distinction between permissible and impermissible grounds of collateral challenge drawn in Ousley was based on the distinction between matters that did, and matters that did not, affect the validity of the warrants. So, insufficiency of evidence before the issuing authority was held not to be a permissible basis for collateral challenge of the warrants because it was thought that insufficiency of evidence would not affect validity of the warrants: cf Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 356, 358; Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [130]. Consistently with this view, in Totani Gummow J cited Ousley as authority for the proposition that ‘validity of a warrant depends on the regularity of its issue, not the sufficiency of the material which supported the application for its issue’ (emphasis added): Totani (2010) 242 CLR 1, [126].
The extent, if any, to which an inferior court can undertake collateral review of an administrate decision is ultimately a matter of construction of the statutory provisions conferring jurisdiction and functions on the court, as well as any privative clauses limiting the review of the administrative decision.[22] The general statements about collateral challenge in Ousley and Breckler are best understood as merely expressing the presumptive position on the question in relation to courts.
[22]Cf Bhardwaj (2002) 209 CLR 597 (’ibid [44], [54] (Gaudron and Gummow JJ, McHugh J agreeing), [153] (Hayne J); Breckler (1999) 197 CLR 83, [36] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
VCAT is an administrative tribunal, not a court in the sense in which the word ‘court’ is generally understood in administrative law.[23] (I express no opinion on whether VCAT is a court of a State within the meaning of s 77(iii) of the CommonwealthConstitution). The presumptive position in Ousley and Breckler is expressed as applying to courts. It does not apply to VCAT. It is therefore unnecessary for me to decide what exactly that presumptive position is in relation to courts. In particular, it is unnecessary to express any concluded views as to which reading of Ousley should be preferred.
[23]See Kracke v Mental Health Review Board (General) [2009] VCAT 646, [276] and cases there cited.
Unlike Ousley and Breckler, Bhardwaj is a case that touched on the issue of collateral review by an administrative tribunal rather than a court. In Bhardwaj the majority of the High Court held that the Immigration Review Tribunal was permitted to disregard its own purported decision vitiated by jurisdictional error and to re-make the decision afresh. The Tribunal could do so even in the absence of any order by a court of competent jurisdiction quashing the original purported decision or declaring it to be invalid. In coming to this conclusion, the majority of the High Court must have accepted that the Tribunal could inquire into, and decide for itself, whether its original purported decision was a nullity.[24] That is to say, the majority must have accepted that the Tribunal could, in effect, carry out a collateral review of its own decision.
[24]Cf Bhardwaj (2002) 209 CLR 597, [141]–[142] (Hayne J).
But Bhardwaj is not an authority for the broad proposition that administrative tribunals can, in general, conduct inquiries into the validity of purported decisions of any administrative body if the decision happens to be material to the dispute before the tribunal. Rather, the extent of an administrative tribunal’s ability, if any, to conduct such inquires remains a question of construction of the relevant statutory provisions. The question is whether the provisions evince an intention that the tribunal should attach ‘some relevant legal consequence’ to a purported decision of the kind in question, even if the decision is vitiated by jurisdictional error.[25]
[25]Ibid [153] (Hayne J).
Accordingly, to determine whether VCAT can carry out collateral review, it is necessary to interpret the relevant provisions of the RTA, the VCAT Act and the Charter.
(a)The Residential Tenancies Act and the VCAT Act exclude collateral review
Neither the VCAT Act nor the RTA expressly deals with the issue of collateral review. Accordingly, the question whether the VCAT can undertake collateral review when hearing an application under the RTA falls to be determined by drawing implications from the language and objects of the two Acts.
As I have said, the VCAT Act sets up VCAT as a forum for speedy and inexpensive resolution of specific kinds of disputes. The RTA confers jurisdiction on VCAT to hear applications under that Act. In doing so, the RTA is implementing its stated purpose of providing ‘for the inexpensive and quick resolution of disputes under [the] Act’.[26] A power to undertake collateral review would be wholly inconsistent with this purpose.
[26]See RTA s 1(d).
In order to entertain a collateral attack on the validity of an administrative decision while dealing with an application under the RTA, VCAT would have to, in effect, conduct a trial within a trial. VCAT would need to leave the subject of tenancy law and enter the domain of administrative law. It would have to make difficult decisions about whether the challenge falls within the limits (if any) of permissible collateral attack, whether the impugned administrative decision is affected by error and whether the alleged error is jurisdictional.[27] Such a complex, technical and time-consuming inquiry would destroy the advantages of litigating the tenancy dispute in VCAT rather than in a court.
[27]The difficulty of determining whether an error is jurisdictional has recently been acknowledged by the High Court: Totani (2010) 242 CLR 1, [128] (Gummow J); Kirk (2010) 239 CLR 531, [71] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The possibility of this detour into administrative law would be all the more anomalous given that VCAT does not possess general civil jurisdiction[28] but only has original jurisdiction in respect of specific kinds of disputes and claims. Moreover, parties to a VCAT proceeding cannot, as of right, be legally represented[29] and cannot, as of right, appeal VCAT’s decision.[30]
[28]Cf County Court Act 1958 s 37; Magistrates’ Court Act 1989 s 100.
[29]VCAT Act s 62.
[30]VCAT Act s 148(1).
Mr Sudi submits that a construction of the VCAT Act and the RTA that excludes collateral review would lead to fragmentation of proceedings. If VCAT has no collateral review power, a person wishing to challenge an administrative decision that is material to a proceeding before VCAT would need to commence a separate proceeding in the Supreme Court to challenge that decision. The inconvenience and expense of this fragmentation of proceedings, Mr Sudi submits, favours a construction of the VCAT Act and the RTA that grants VCAT a collateral review power.[31]
[31]Respondent’s Outline of Submissions (12 August 2010), [23].
Mr Sudi also submits that if a party to a VCAT proceeding were to pursue a Supreme Court challenge to the administrative decision, the party would need to obtain an adjournment of the VCAT proceeding. To do so, the party would need to satisfy VCAT of the strength of its case before the Supreme Court. Hence, construing the VCAT Act and the RTA to exclude the power of collateral review would not fully shield VCAT from having to consider the matters going to the validity of the administrative decision.[32]
[32]Ibid [24].
In my view, these matters are a necessary consequence of setting up a specialist forum of limited jurisdiction. If the jurisdiction of a court or tribunal is limited, a dispute between the parties to a proceeding in that court or tribunal may raise issues that fall outside of its limited jurisdiction. This may lead to fragmentation of proceedings. In some circumstances, it may also require the court or tribunal to make an assessment of the strength of a party’s case in another forum. These difficulties are the flipside of the policy benefits derived from limiting VCAT’s jurisdiction — the quick, efficient, inexpensive and informal resolution of issues arising under the RTA that do fall within VCAT’s jurisdiction.
Mr Sudi also places some reliance on the decision of Smith J in Director of Housing v Pavletic.[33] Pavletic was an appeal to the Supreme Court against VCAT’s decision to dismiss the Director’s application for a possession order under s 322(1) of the RTA. The Director had given the tenant a notice to vacate under s 244(1) of the RTA, which provides that a ‘landlord may give a tenant a notice to vacate rented premises if the tenant or the tenant's visitor by act or omission endangers the safety of occupiers of neighbouring premises’. In rejecting the Director’s interpretation of s 244, Smith J noted:
It is true that, at any hearing, there might be an issue raised as to whether the landlord was entitled to give the notice; for an argument might be raised that it was not a bona fide exercise of power. But unless the tenant could identify some other reason, it would be very difficult to establish a lack of entitlement on that interpretation.[34]
[33][2002] VSC 438 (‘Pavletic’).
[34]Ibid [18] (emphasis added).
The issue of collateral review did not arise in Pavletic. Further, the italicised passage, on which Mr Sudi relies, was merely expressing a tentative view. For the reasons given, I respectfully decline to follow it.
Mr Sudi also relies on the decision of the House of Lords in Wandsworth London Borough Council v Winder[35] and the decision of the UK Supreme Court in Manchester City Council v Pinnock.[36] These cases upheld the availability of collateral challenge in proceedings for possession in the County Court. As I have indicated, the scope of collateral review in inferior courts raises different issues that do not need to be considered in this appeal. Accordingly, these cases do not assist Mr Sudi.
[35][1985] AC 461.
[36][2011] 1 All ER 285.
For the reasons I have given, I am satisfied that the RTA and the VCAT Act evince an intention to deny VCAT power to collaterally review the validity of a purported administrative decision that happens to be material to the tenancy dispute before VCAT. Or, to put it differently, the two Acts evince an intention that, in dealing with applications under the RTA, VCAT should treat relevant purported administrative decisions as being valid unless and until set aside by a court of competent jurisdiction.
Different considerations may apply in respect of a relevant administrative decision that is invalid on its face. However, this issue does not need to be considered in this case.
The interpretive requirement of s 32 of the Charter does not alter my conclusions about the construction of the VCAT Act and the RTA. Even if an interpretation of the VCAT Act and the RTA that permitted collateral challenge on Charter grounds would be more ‘compatible with human rights’, that interpretation would be inconsistent with the purposes of the Acts.
(b) The Charter does not confer a collateral review power on VCAT
Sections 38(1) of the Charter provides:
Subject to this section, 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.
Section 39(1) then provides:
If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.
For reasons already outlined, VCAT did not, apart from the Charter, have power to review the validity of the Director’s decisions on the ground of unlawfulness. Accordingly, s 39(1) does not operate to confer jurisdiction on VCAT to grant relief on ‘a ground of unlawfulness arising because of this Charter’.
Further, it is unnecessary for me to express any opinion on his Honour’s implicit conclusion that a public authority’s failure to comply with s 38 of the Charter when making decision constitutes a jurisdictional error that vitiates the decision.[37]
[37]Sudi [2010] VCAT 328, [139], [146]. Cf Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.
The notice of contention
Mr Sudi submits that, in the event that the Director succeeds on ground 1, VCAT’s decision should be affirmed on two alternative grounds raised in Mr Sudi’s Amended Proposed Notice of Contention. Mr Sudi submits that in considering, under s 345(a) of the RTA, whether the Director is ‘entitled to possession of the premises’, VCAT can consider whether the steps taken by the Director to obtain possession of the premises were unlawful under s 38 of the Charter.[38] Similarly, Mr Sudi submits that in determining, under s 345(b) of the RTA, whether ‘there are reasonable grounds for believing that a person is occupying the premises without licence or consent’, VCAT can consider whether the Director’s purported revocation of licence or withdrawal of consent is unlawful and invalid under s 38 of the Charter.[39]
[38]Respondent’s Outline of Submissions (12 August 2010), [8]–[13].
[39]Ibid [14].
Bell J rejected the first of these arguments, holding that the words ‘entitled to possession’ in s 345(a) refer to entitlement as a matter of private law only:
103.... I think the words ‘entitled to possession’ in s 345(a) refer to the entitlement of the applicant to possession of the premises under a law governing that subject. An entitlement to possession would usually arise under the law of property as an incident of the applicant’s ownership of the premises, but clearly other legally recognised possessory interests, such as an entitlement under a head lease or legislation, would also suffice. Nothing in Division 3, and ss 345 and 349 in particular, suggests the tribunal can, in determining a valid application for possession under s 344, consider matters beyond the possessory entitlement of the applicant in terms of the law of property or other law of that kind. ‘Entitled to possession’ does not involve human rights considerations.
104.I think the provisions clearly and unambiguously show the legislature intended to allow a person who was legally entitled to possession of the premises to make application for and obtain an order for possession against someone in occupation without licence or consent, even if that meant evicting them from their home, as it usually would. Although the word ‘entitled’ might, in another context, be capable of having a more general meaning, I think here the word relates only to the applicant’s possessory entitlement in terms of law of property or other law of that kind.
His Honour did not consider whether s 345(b) was satisfied.[40]
[40]Sudi [2010] VCAT 328, [148].
I reject both grounds in the Amended Proposed Notice of Contention. In determining an application for a possession order VCAT was required to assume the validity of administrative decisions made by the Director.[41] Once the decisions are assumed to be valid, the Director’s entitlement to possession could no longer depend on whether the Director had complied with the Charter in making the decisions. It is therefore unnecessary to decide whether, as Bell J held, the words ‘entitled to possession’ in s 345(a) refer to entitlement solely as a matter of private law.
[41]But see [44] of my reasons.
Similarly, once any decision to withdraw a licence or revoke a consent is assumed to be valid, the question whether the decision was made in breach of the Charter becomes irrelevant.
A declaration of inconsistent interpretation should not be made
Section 13(a) of the Charter provides that a person has the right ‘not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with’. Mr Sudi submits if the RTA is construed so as to deny VCAT the power, in determining an application for a possession order, to consider whether the public authority landlord had complied with its Charter obligations, that
construction would amount to a limitation of the right provided by s 13(a). Mr Sudi submits that if the Court adopts that construction, it should make a declaration under s 36 of the Charter that the RTA cannot be interpreted consistently with s 13(a) of the Charter.[42]
[42]Respondent’s Outline of Submissions (12 August 2010), [33].
I would decline to make the declaration. Assuming for the sake of argument that my construction of the RTA and the VCAT Act limits the right under s 13(a) of the Charter, the limitation is, in my view, ‘demonstrably justified in a free and democratic society based on human dignity, equality and freedom’.[43] The limitation is said to arise because, on my construction of the RTA and the VCAT Act, a person wishing to resist eviction on Charter grounds cannot do so in VCAT but must bring the challenge in a different and less accessible forum — the Supreme Court. That requirement, is in my view, justified by the policy benefits of maintaining VCAT’s role as a forum for quick, efficient and inexpensive resolution of issues arising under the RTA that properly fall within VCAT’s jurisdiction.
[43]Charter, s 7(2).
Conclusion
Leave to appeal on ground 1 should be granted and the appeal should be allowed on that ground. The judgment and orders of VCAT should be set aside and the matter remitted to VCAT for determination according to law.
MAXWELL P:
Summary
This appeal raises an important question about the powers of the Victorian Civil and Administrative Tribunal (‘Tribunal’) when exercising original jurisdiction. The question arises in this way.
The applicant, the Director of Housing (‘Director’), applied to the Tribunal
under s 344(1) of the Residential Tenancies Act 1997 (Vic) (‘RTA’) for an order for possession of premises occupied by the respondent, Mr Sudi, and his son. Bell J (as President of the Tribunal) held that in such a proceeding the Tribunal had power to review the lawfulness of the Director’s decision to make the application to the Tribunal (‘application decision’). His Honour concluded that the application decision was unlawful under s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’) and that the purported application was therefore a nullity.
As Weinberg JA has pointed out,[44] this amounted to a collateral review of the application decision. The substantive proceeding before the Tribunal was an application by the Director for possession of the premises. The legal validity of the Director’s decision to make the application was not an issue in the proceeding. The question of validity only arose incidentally – collaterally – as part of Mr Sudi’s defence to the Director’s application for possession.[45]
[44]Reasons of Weinberg JA, [153], [219].
[45]Cf Ousley v The Queen (1997) 192 CLR 69, 98–99 (McHugh J); Frugtniet v A-G (NSW) (1997) 41 NSWLR 588, 602b.
The issue raised by the appeal is whether the Tribunal had the power (in a proceeding such as this) to conduct such a collateral review. Argument on the appeal identified two questions which must be addressed, both concerning legislative intention. The first is whether, given the character of the Tribunal and the terms of its statutory charter under the Victorian Civil and Administrative Tribunal Act1998 (Vic) (‘VCAT Act’), Parliament can be taken to have intended to confer such a power. The second is whether the legislation which conferred the relevant original jurisdiction on the Tribunal – in this case, the RTA – evinced any such intention.
As to the first of these, the reasons of the Chief Justice identify the distinguishing features of the Tribunal’s functions, powers and procedures.[46] Taken together, these features make it improbable in the extreme, in my view, that Parliament intended the Tribunal to have power to examine the legal validity of a decision by a government agency to institute a proceeding in the Tribunal’s original jurisdiction.
[46]Reasons of the Chief Justice, [19], [34]–[36].
As to the second, I have concluded that there is no basis for implying into the relevant provisions of the RTA a power in the Tribunal to conduct such a collateral review, whether on the ground of Charter unlawfulness or otherwise. The appeal must be allowed. My reasons are as follows.
Background
The Director was seeking to evict Mr Sudi from public housing. It was this which prompted Bell J to investigate the Charter question, as the introductory section of his Honour’s reasons makes clear:
Evicting 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’ under the [Charter]. The onus is on the person seeking to uphold the infringement to establish this justification.
A young man, Warfa Sudi, and his three year old son Shire, live as a family in a home in premises belonging to the Director of Housing. The director is trying to evict them and has declined to offer any submissions or evidence by way of justification.
In this application for an order for possession, which is a test case on the point, the director contends the human rights issues are not justiciable in the tribunal. While it may be unlawful for the director to seek the eviction of Mr Sudi and his son, the tribunal does not have jurisdiction over those issues and must make the order sought. All that Mr Sudi can do is take his case under the Charter to the Supreme Court of Victoria.
Mr Sudi contends that, when determining the director’s application, the tribunal must consider the human rights issues. It should not entertain an application for a possession order when the director is in breach of his obligations under the Charter and his actions in seeking the order are actually unlawful.
The tribunal only has limited statutory jurisdiction. It is not a court and has no inherent jurisdiction. Previously, where (among other things) the director was legally entitled to possession, the [RTA] required the tribunal to make the order, even if it would make people like Mr Sudi and his young son homeless.
I have to decide whether the enactment of the Charter changes the position. Can the tribunal do complete justice by deciding all the issues in dispute at the one time, including the human rights issues? Alternatively, must it ignore the human rights issues, even if the director’s actions are unlawful under the
Charter, and then evict this little family from their home, leaving them to find the wherewithal to take their case to Victoria’s highest court?[47]
[47]Director of Housing v Sudi(Residential Tenancies) [2010] VCAT 328, [1]–[6] (‘Sudi’).
His Honour’s ultimate conclusions are reflected in the orders which he made, as follows:
1.The Tribunal has jurisdiction to determine whether or not an application for a possession order under s 344(1) of the [RTA] which has been made in breach of the applicant’s obligations under s 38(1) of the [Charter] is valid.
2.The Director of Housing breached the human rights of Warfa Sudi and Shire Sudi to family and home under s 13(a), and acted unlawfully under s 38(1), of the Charter in seeking to evict them from, and in making an application for a possession order under s 344 of the [RTA] in respect of, the premises which are the subject of these applications.
3. The Director’s applications were thereby invalid.
4.The Tribunal has no jurisdiction to hear and determine the applications.
5. The applications are dismissed.
Collateral review – a matter of statutory interpretation
Whether the Tribunal’s jurisdiction to hear the Director’s application extended to a consideration of the legal validity of the Director’s decision to make the application is a question of construction of the terms of the RTA. For, in determining whether collateral review is available, the starting point is the legislation under which the governmental action is sought to be challenged.[48]
[48]Frugtniet v A-G (NSW) (1997) 41 NSWLR 588, 602–3; Enid Campbell, ‘Collateral Challenge of the Validity of Governmental Action’ (1998) 24 Monash University Law Review 272, 276; Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (4th ed, 2009) [10.110].
In R v Wicks,[49] for example, the House of Lords concluded that a person prosecuted for failing to comply with an enforcement notice issued under town planning legislation could not, in the criminal proceedings, mount a collateral challenge to the validity of the enforcement notice. This conclusion was founded on the provisions of the statutory scheme under which the prosecution was brought. Lord Hoffman said:
The question must depend entirely upon the construction of the statute under which the prosecution is brought. The statute may require the prosecution to prove that the act in question is not open to challenge on any ground available in public law, or it may be a defence to show that it is. In such a case, the justices will have to rule upon the validity of the act. On the other hand, the statute may upon its true construction merely require an act which appears formally valid and has not been quashed by judicial review. In such a case, nothing but the formal validity of the act will be relevant to an issue before the justices.[50]
[49][1998] AC 92 (‘Wicks’).
[50]Ibid 117b (Lord Browne-Wilkinson, Lord Jauncey and Lord Hope agreed).
The same point is illustrated by the decision of the New South Wales Court of Appeal in Meagher v Bott.[51] The case concerned an application to the Licensing Court under the Liquor Act 1982 (NSW) for a conditional licence for premises the subject of proposed building works. The relevant provisions required the applicant to lodge with the application each consent given by the municipal authority for the proposed building works. The Court of Appeal held that, on the proper construction of the provisions conferring jurisdiction on the Licensing Court, that Court had no power to determine at the hearing of the licence application whether a particular consent given by the local authority was valid. Cole JA said:
Jurisdiction is conferred on the Licensing Court if s 40 is complied with and it speaks only of the requirements of documents ‘lodged’ with the application. Accordingly the Licensing Court must satisfy itself that the requirements of s 40 are satisfied at the date of application. In so doing it is not the function of the Licensing Court to itself determine, contrary to the views of the responsible authority … whether at that date the consents are valid.[52]
[51]Unreported, New South Wales Court of Appeal, Clarke, Handley and Cole JJA, 15 November 1996 (‘Meagher’).
[52]Ibid. Clarke JA agreed. See also Hill v King (1993) 31 NSWLR 654, 661.
The examples can be multiplied.[53] As will appear, the decision of the United Kingdom Supreme Court in Manchester City Council v Pinnock,[54] on which the respondent relied, also turned on the construction of the statute which authorised the County Court to deal with the proceeding in question. That was a case, like the present, where the challenge to the validity of the administrative action was founded on an alleged breach of human rights.
[53]See R v Al Klippert Ltd (1998) 158 DLR (4th) 219 and R v Consolidated Maybrun Mines Ltd (1998) 158 DLR (4th) 193, both discussed in Mark Aronson, ‘Criteria for Restricting Collateral Challenge’ (1998) 9 Public Law Review 237, 245–6.
[54][2011] 1 All ER 285 (‘Pinnock’).
The Tribunal’s jurisdiction under the RTA
Under s 446(c) of the RTA, there is a general conferral of jurisdiction on the Tribunal to determine ‘an application under this Act relating to any matter referred to it under this Act’. Under s 344(1), the Tribunal has specific (original) jurisdiction[55] to entertain an application for a possession order.
[55]VCAT Act s 41.
The relevant provisions are as follows:
344 (1)A person who claims to be entitled to the possession of premises may apply to the Tribunal for a possession order if—
(a)the premises have been rented premises under a tenancy agreement at any time within the period of 12 months before the date of the application; and
(b) the applicant alleges that the premises are occupied solely by a person (not being a tenant under a tenancy agreement) who entered into or remained in occupation without the applicant's licence or consent or that of any predecessor in title of the applicant.
345The Tribunal must make a possession order for the premises if the Tribunal is satisfied that—
(a) the applicant under section 344 is entitled to possession of the premises; and
(b) there are reasonable grounds for believing that a person is occupying the premises without licence or consent.
As is apparent from these provisions, the Director had no ex officio right under the RTA to seek an order for possession of the premises. She did so as a person claiming ‘to be entitled to possession of premises’. The relevant premises belong to the State of Victoria and are vested in the Director, who leases them under statutory authority. Under s 14(1)(g) of the Housing Act 1983 (Vic), the Director may:
subject to the [RTA], lease any land vested in the Director to any person of not less than 15 years of age … for such period and on such terms and conditions as the Director thinks fit;
…
The Director is thus authorised to enter into leases of public housing. Having entered into a particular lease, the Director’s rights and obligations are governed by the RTA as if she were any other landlord.
In short, the Director was not here acting in exercise of a power conferred upon her in her statutory capacity as such. Rather, she had standing to apply for a possession order under s 344(1) because she was ‘a person who claims to be entitled’ to possession. Her eligibility to apply for such an order was no different from that of any other person claiming a similar entitlement. The statutory scheme thus operates in exactly the same way for the Director, as a public landlord, as it does for private landlords.
Unlike the position in Wicks[56] and in Meagher,[57] proceedings under s 344(1) are not conditioned on the existence of a valid administrative act by a public official. They are conditioned on the existence of a right to possession of land. It is immaterial whether the relevant premises are in public or private ownership.
[56][1998] AC 92.
[57](Unreported, New South Wales Court of Appeal, Clarke, Handley and Cole JJA, 15 November 1996.)
This circumstance points very strongly to the exclusion of collateral review. In a statutory scheme which applies without differentiation to public and private landlords, it would be quite anomalous if the Tribunal were empowered – in cases where application was made by the Director as public landlord – to enquire into the lawfulness of the Director’s decision to seek possession. There is simply no basis for implying into the jurisdiction-conferring provisions a power in the Tribunal to conduct such a collateral review.
This conclusion is reinforced by the structure of the provisions themselves. Division 3 of Part 7 of the RTA is self-contained.[58] Its language is almost wholly imperative, meaning that the Tribunal has statutory obligations to perform rather than discretions to exercise. Thus, under s 345 the Tribunal must make a possession order if satisfied that:
[58]RTA s 350.
(a) the applicant is entitled to possession; and
(b) there are reasonable grounds for believing that a person is occupying a premises ‘without licence or consent’.
Further, under s 346 a possession order must:
(a) direct the principal registrar to issue without delay a warrant of possession; or
(b)provide for the service of a notice without delay on all persons occupying the premises requiring them to appear and show cause why a warrant of possession should not be issued.
If a person on whom such a notice is served fails to appear, then under s 348(1) the Tribunal must direct the principal registrar to issue without delay a warrant of possession. Alternatively, if such person appears to answer the notice, the Tribunal, after giving the parties an opportunity to be heard, must determine the matter and, if satisfied that the applicant is entitled to the premises, must direct the principal registrar to issue a warrant of possession.
These provisions can be seen to effectuate one of the stated purposes of the RTA, which is ‘to provide for the inexpensive and quick resolution of disputes under this Act.’[59] To that end, the scope of the Tribunal’s enquiry, and the powers conferred on it, are heavily circumscribed. The only conferral of discretion is by s 349(c), which provides that if the Tribunal is not satisfied that the applicant is entitled to the premises it ‘may cancel the possession order’.
[59]RTA s 1(d).
Plainly enough, Division 3 of Part 7 of the RTA was intended to establish a scheme under which landlords could seek to evict, by expeditious process consistent with the requirements of natural justice, those in occupation of premises ‘without licence or consent’. More obviously than in most other statutory contexts, the role of the Tribunal under this scheme is as an instrument of legislative policy.[60] That is, once satisfied that the conditions for eviction are met, the Tribunal must evict.
[60]Contrast, for example, the functions of the Tribunal under Division 1 of Part 4 of the Health Professions Registration Act 2005 (Vic).
As I have said, it would be wholly inconsistent with this legislative purpose to imply into Division 3 of Part 7 a power of collateral review exercisable by the Tribunal in proceedings initiated by the Director.[61] Were such a power to exist, it could not be confined to questions of unlawfulness arising under the Charter. (I defer, for the moment, the question whether the Charter itself confers on the Tribunal a power of collateral review confined to questions of unlawfulness arising under the Charter.[62]) On ordinary principles, the power of collateral review would encompass the full range of conventional judicial review grounds. Thus, whenever the Director made an application for possession under s 344(1), it would be open to the respondent to raise, and it would be incumbent on the Tribunal to decide, any ground said to impugn the lawfulness of the Director’s decision to apply to the Tribunal. It might, for example, be contended that the Director had failed to take into account a relevant consideration, or had taken into account an irrelevant consideration. No such intention could conceivably be imputed to the Parliament.
[61]For a similar conclusion in a different statutory context, see Frugtniet v A-G (NSW) (1997) 41 NSWLR 588, 603d.
[62]See [95]–[98] below.
Nor would such a power of collateral review be confined to applications for possession orders under s 344(1). If it were open to the Tribunal to review the lawfulness of an application by the Director under s 344(1), it would logically follow that (subject to statutory contra-indication) the Tribunal could review the lawfulness of any decision by the Director to institute a proceeding of any kind in the Tribunal.
The point may be illustrated by reference to one of the authorities relied on by the respondent. In Director of Housing v Pavletic,[63] the Court was reviewing[64] a decision made by the Tribunal in an application by the Director (as landlord) for a possession order under s 322(1) of the RTA. In seeking that order, the Director had relied upon a notice to vacate served on the tenant pursuant to s 244(1) of the RTA, which permits a landlord to give a tenant notice to vacate rented premises ‘if the tenant or the tenant’s visitor by act or omission endangers the safety of occupiers or neighbouring premises.’ If the approach taken by the Tribunal in the present case were correct, it would have been open to the tenant in that proceeding to challenge, first, the lawfulness of the decision of the Director as landlord to give the notice under s 244(1) and, secondly, the lawfulness of the decision by the Director to make the application under s 322(1) for a possession order.[65]
[63][2002] VSC 438 (‘Pavletic’).
[64]Under s 148(1) of the VCAT Act.
[65]See also the discussion by Weinberg JA at [291]–[300], regarding Director of Housing v IF (Residential Tenancies) [2008] VCAT 2413.
Contrary to the respondent’s submission,[66] the decision of Smith J in Pavletic does not support the proposition that ‘a notice to vacate issued under [s 244(1) of] the RTA might be challenged at the hearing of a possession application on the basis that it was not a bona fide exercise of the power’. His Honour was concerned with a quite different question, regarding the scope of the phrase ‘endangers the safety of occupiers’ in s 244(1). The question was whether or not the danger had to be continuing at the time the notice to vacate was given. Smith J concluded that it did. In his Honour’s view, any other interpretation:
[66]Respondent’s Outline of Submissions, [20].
would lead to harsh, unfair and absurd results. First, it would not matter how long ago the alleged act or omission endangering the safety of occupiers of neighbouring premises occurred. The landlord could always issue a notice to vacate if all that was required was that the tenant or the tenant's visitor had by act or omission in the past endangered the safety of such people. It is true that, at any hearing, there might be an issue raised as to whether the landlord was entitled to give the notice; for an argument might be raised that it was not a bona fide exercise of power. But unless the tenant could identify some other
reason, it would be very difficult to establish a lack of entitlement on that interpretation.[67]
As counsel for the Director pointed out, the highlighted passage (on which the respondent relied) was no more than a passing remark, of a very tentative kind, on an issue which did not arise in the proceeding.
[67]Pavletic [2002] VSC 438, [18] (emphasis added).
The respondent also relied on the decision of the House of Lords in Wandsworth London Borough Council v Winder.[68] That was, however, a very different case from the present. The proceeding in which the collateral challenge was there made – and upheld – was not a statutory application in an administrative tribunal on strictly limited issues. Rather, it was an action for possession in the County Court, in which the local council as landlord sued the tenant for possession of premises on the ground that rent due under the lease had not been paid. The unpaid rent represented rent increases which the council had purported to make under statutory power to do so.
[68][1985] 1 AC 461 (‘Winder’).
The House of Lords considered that the tenant’s challenge to the validity of the rent increases was the ‘whole basis of [his] defence and … the central issue which [had] to be decided’.[69] It was this circumstance, together with the fact that the tenant was complaining of ‘the infringement of a contractual right in private law’,[70] which led the House to conclude that the case fell outside the stringent limitations on collateral challenge imposed by the earlier decision in O’Reilly v Mackman.[71] In rejecting the council’s contention that it was an abuse of process for the tenant to raise the question of invalidity as a defence to the action, Lord Fraser said:
It would in my opinion be a very strange use of language to describe the respondent’s behaviour in relation to this litigation as an abuse or misuse by him of the process of the court. He did not select the procedure to be adopted. He is merely seeking to defend proceedings brought against him by [the Council]. In so doing, he is seeking only to exercise the ordinary right of any individual to defend an action against him on the ground that he is not liable for the whole sum claimed by the plaintiff. Moreover he puts forward his defence as a matter of right …[72]
[69]Ibid 508b.
[70]Ibid 507c.
[71][1983] 2 AC 237.
[72]Ibid 509e.
What I have said so far depends only on the provisions of the RTA. For the reasons I have given, those provisions lead inevitably to the conclusion that the Tribunal has no power in a proceeding under s 344(1) of the RTA to consider whether the Director acted lawfully in deciding to apply for a possession order.
The Tribunal drew support for its approach from the decision of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj[73] and from the line of authority exemplified by the decision of the Full Federal Court in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd.[74] In my respectful view, neither authority has any bearing on the question at issue.
[73](2002) 209 CLR 597 (‘Bhardwaj’).
[74](1979) 24 ALR 307 (‘Lawlor’); see the authorities cited in Garde-Wilson v Legal Services Board (2007) 27 VAR 125, 139 n 57 and 58.
Bhardwaj relevantly holds that, if a tribunal has made a decision which involves jurisdictional error, the position at law is that the tribunal has made no decision at all and its duty to make a decision remains unperformed.[75] It was not a case about collateral review at all. What was said in Bhardwaj about the ability of a tribunal to disregard its own invalid decision[76] sheds no light on the question whether in the present case the Tribunal had power to review the lawfulness of a decision made by another administrative agency.
[75]Bhardwaj (2002) 209 CLR 597, 616 [53].
[76]See Duarte v Australian Maritime Safety Authority (2010) 188 FCR 429, 437 [37].
The Lawlor line of reasoning holds that, where an administrative review tribunal is exercising a merits review function, it has jurisdiction to review a decision which is, or may be, legally invalid.[77] As counsel for the Director pointed out,[78] those cases have nothing to say on the present issue, which is whether an administrative tribunal in the exercise of its original jurisdiction can determine – by way of collateral review – that an application by a public official is legally invalid.
[77]See also VCAT Act s 4(2)(b).
[78]Applicant’s Outline of Submissions (26 July 2010), [19].
The only remaining question is whether the provisions of the Charter –enacted after the RTA – evince a legislative intention to confer on the Tribunal, in proceedings under the RTA brought by the Director, a power of collateral review which the RTA itself does not confer. Before dealing with that question, it is necessary to say something about the respondent’s notice of contention.
The notice of contention
By his notice of contention, the respondent maintained that the Tribunal should also have considered whether the steps taken by the Director to obtain possession of the premises were unlawful under s 38 of the Charter. This question was said[79] to arise because the Tribunal needed to be satisfied that the Director was entitled to possession[80] and that there were reasonable grounds for believing that Mr Sudi and his son were occupying the premises without licence or consent.[81]
[79]Respondent’s Outline of Submissions (12 August 2010), [9]–[14].
[80]RTA s 345(a).
[81]RTA s 345(b).
His Honour rejected this contention. Having noted that the purpose of the provisions was ‘to enable people who are “entitled to possession” of premises to recover that possession by a simple and convenient process’,[82] his Honour said:
Nothing in Division 3, and ss 345 and 349 in particular, suggests the tribunal can, in determining a valid application for possession under s 344, consider matters beyond the possessory entitlement of the applicant in terms of the law of property or other law of that kind. ‘Entitled to possession’ does not involve human rights considerations.
I think the provisions clearly and unambiguously show the legislature intended to allow a person who was legally entitled to possession of the premises to make application for and obtain an order for possession against someone in occupation without licence or consent, even if that meant evicting them from their home, as it usually would. Although the word ‘entitled’ might, in another context, be capable of having a more general meaning, I think here the word relates only to the applicant’s possessory entitlement in terms of law of property or other law of that kind.[83]
[82]Sudi [2010] VCAT 328, [96].
[83]Sudi [2010] VCAT 328, [103]–[104].
With respect, there seems to me to be some real force in the argument that, if the Tribunal had power to examine the lawfulness of the Director’s decision to apply to the Tribunal, then it must also have had the power to examine the lawfulness of the administrative steps on which the Director’s entitlement to possession was founded. That would include – as the notice of contention says – ‘any purported revocation by the Director of any licence or consent to occupy the premises’. Since, however, I have concluded that the Tribunal had no power of collateral review at all, the premise of the argument falls away and the notice of contention must be dismissed.
Unlawfulness under the Charter
Under s 38(1) of the Charter, it is unlawful for a public authority to act ‘in a way that is incompatible with a human right’. As noted earlier, the conclusion of the Tribunal in the present case was that the Director (who is undoubtedly a public authority for this purpose) had ‘acted unlawfully’ under s 38(1) in seeking to evict Mr Sudi and his son, and in applying for the possession order.
Section 39(1) of the Charter is in these terms:
If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.
Plainly enough, s 39(1) has an operation which is both conditional and supplementary.[84] The condition to be satisfied is that a person be able to seek, independently of the Charter, ‘any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful.’ If – but only if – that condition is satisfied, then s 39(1) enables that person to seek ‘that relief or remedy’ on a supplementary ground of unlawfulness, that is, unlawfulness arising because of the Charter.
[84]See PJB v Melbourne Health [2011] VSC 327, [296]–[297].
The condition for the operation of s 39(1) is clearly satisfied in the case of an application for judicial review. Whether at common law (in accordance with the procedures under O 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic)) or under the Administrative Law Act1978 (Vic), a person may seek ‘relief or remedy’ in respect of decisions of public officials on grounds of unlawfulness. It is less clear, however, whether the condition would be satisfied in a proceeding where collateral review was available. Let it be assumed that a defendant to a criminal proceeding was able to make a collateral challenge, in that proceeding, to the legal validity of an administrative act on which the prosecution case depended. Could it be said that the defendant in that case was able to ‘seek a relief or remedy’ on the ground of unlawfulness?
It is not necessary to decide that question. For, even on the assumption that the availability of a collateral challenge does satisfy the condition in s 39(1), so as to enable Charter unlawfulness to be invoked as a supplementary ground of challenge, s 39(1) has no application in the present case. That is because, for the reasons already given, the legislative scheme here under consideration does not allow collateral challenge. That is, a respondent to an application by the Director for possession under s 344(1) is not able, independently of the Charter, to seek a ‘relief or remedy’ by way of collateral challenge. Since it is not open to the Tribunal to review the lawfulness of the Director’s application decision on any of the conventional grounds, it follows that there is nothing on to which s 39(1) can engraft a supplementary ground of unlawfulness.
The decision in Pinnock
It is now possible to deal, finally, with the very recent decision of the UK Supreme Court in Pinnock,[85] on which the respondent placed much reliance. In that case, the local council, as landlord of the relevant premises, had brought possession proceedings in the County Court. Under the relevant legislative provisions, it was a pre-condition to the commencement of such proceedings that the local authority landlord have served on the tenant a notice of the proposed application, advising the tenant of the right to request a review of the landlord’s decision.
[85][2011] 1 All ER 285.
The provision conferring jurisdiction on the Court was s 143D(2) of the Housing Act 1996 (UK), which was in these terms:
The Court must make an order for possession unless it thinks the procedure under [the notice provisions] has not been followed.
The Supreme Court held that this provision did not confine the County Court to ‘checking whether the procedure has been followed’. The Court said:
In our view, if the procedure laid down in [the notice provisions] has not been lawfully complied with, either because the express requirements of that section have not been observed or because the rules of natural justice have been infringed, the tenant should be able to raise that as a defence to a possession claim under s 143D(2). After all, the tenant’s argument in such circumstances would be within the scope of the ambit of s 143D(2), namely that ‘the procedure … has not been [lawfully] followed’, since lawfulness must be an inherent requirement of procedure. It must equally be open to the court to consider whether the procedure has been lawfully followed, having regard to the defendant’s article 8 Convention rights and s 6 of the Human Rights Act 1998 (UK).
This approach is borne out by s 7(1) of the Human Rights Act 1998 (UK) which, so far as relevant, provides:
‘A person who claims that a public authority has acted … in a way which is made unlawful by s 6(1) may … (b) rely on the Convention right or rights concerned in any legal proceedings …’[86]
[86]Ibid 306 [77]–[78] (emphasis added).
The Supreme Court rejected the council’s argument that the question of compliance with the tenant’s Convention rights could only be dealt with on a proceeding by way of judicial review:
In effect, s 7(1)(b) [of the Human Rights Act 1998 (UK)] confers the necessary jurisdiction on County Court judges when it is necessary for them to deal with a defence which relies on an alleged breach of the defendant’s article 8 Convention rights.[87]
Moreover, the Court said,[88] the ability of a tenant to challenge the lawfulness of a council’s decision to institute possession proceedings was established by the decision in Winder,[89] discussed earlier in these reasons.
[87]Ibid [80].
[88]Ibid [81].
[89][1985] 1 AC 461.
As these extracts make clear, the Supreme Court’s conclusion that collateral review on human rights grounds was available turned on questions of statutory interpretation. The decision was based both on the terms of the statutory scheme under the Housing Act 1996 (UK) and – crucially – on the language of the Human Rights Act 1998 (UK). It is sufficient for present purposes to say that a decision under one set of provisions creates no precedent when the like question arises under a different set of provisions.
The statutory differences are in fact quite dramatic. First, there is no equivalent requirement under Division 3 of Part 7 of the RTA for the Tribunal to satisfy itself that ‘the procedure has been followed’. Even if there were, it is debatable whether s 32(1) of the Charter would have required the Court to read in the word ‘lawfully’ as the House of Lords did in Pinnock, given how clearly Parliament has expressed the contrary intention in the RTA provisions.[90] Secondly, the broad scope of s 7(1)(b) of the Human Rights Act 1998 (UK), permitting ‘Convention unlawfulness’ to be relied on ‘in any legal proceeding’, is in striking contrast to the limited scope of s 39(1) of the Charter, discussed earlier. Accordingly, the decision in Pinnock does not affect the conclusion I have reached.
[90]Cf R vMomcilovic (2010) 25 VR 436, 457–458 [74]–[77].
Declaration of inconsistent interpretation
The respondent submitted that, if it were held that the RTA did not permit collateral review of the Director’s application decision on Charter grounds, this would mean that the relevant provisions could not be interpreted consistently with
his rights under s 13(a) of the Charter. The Court should make a declaration to that effect under s 36(2) of the Charter.
There is no occasion for such a declaration, in my view. The right on which the respondent relies is the right
(a) not to have his privacy, family [or] home … unlawfully or arbitrarily interfered with;
…
If (as the respondent contends) the Director’s conduct in seeking possession of the premises is an unjustified interference with that right, then the respondent has his remedies under ss 38 and 39 of the Charter. The unavailability of collateral review in the Tribunal under the RTA is a procedural or adjectival matter – about the proper forum in which to litigate questions of unlawfulness under the Charter – and does not affect the substantive right.
WEINBERG JA:
The respondent to this appeal, Mr Warfa Sudi, occupies premises owned by the Director of Housing (‘Director’). He resides in those premises with his young son, Shire.
By application to the Victorian Civil and Administrative Tribunal (‘VCAT’), the Director sought, under s 344 of the Residential Tenancies Act 1997 (‘RTA’), to have Mr Sudi and his son evicted.
In response, Mr Sudi relied upon an alleged breach by the Director of s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (‘Charter’). He specifically invoked the rights set out in ss 13(a) (privacy, family and home), 17 (protection of families and children), and 19 (cultural rights).
Justice Bell, sitting as President of VCAT under the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’), dismissed the Director’s application. The Director appeals against that decision.
Factual background
Mr Sudi was born in Somalia in 1982. He came to this country in 1995 as a refugee, with his mother and several siblings. They lived initially in Sydney, but moved to Melbourne in early 1998.
Mr Sudi’s mother entered into a tenancy agreement with the Director in February 1998. The family occupied the premises from that time onwards, until about August or September 2005. At that point, Mr Sudi married and moved out. His son, Shire, was born in November 2006. Mr Sudi’s marriage broke down in November or December 2006.
In May 2007, Mr Sudi’s mother became unwell. He then returned to the premises for a short period in order to look after her. She subsequently died. In about June 2008, he moved back into the premises on a permanent basis. The Director was not made aware of that fact until December 2008.
Toohey J rejected the challenge to the warrants insofar as it was based upon an alleged insufficiency of material to support them. However, that was not the full extent of the appellant’s challenge. He claimed that, on its face, each warrant evidenced a lack of satisfaction by the judges who had issued them of the requisite matters, and that there was therefore an irregularity in their issue. Toohey J held that it was not open to the trial judge to adjudicate upon the sufficiency of the warrant, or whether the issuing authority was in fact satisfied as to any statutory requirements.
Gaudron J (with whom Gummow J relevantly agreed) also considered that any inquiry into the validity of a warrant conducted by way of collateral review had to be of a limited nature. It could not intrude upon extraneous matters, such as the sufficiency of the material supporting the application for its issue. In essence, therefore, collateral review was confined to a consideration of the validity of the warrant on its face.
McHugh J took a different approach. Unlike Toohey, Gaudron, and Gummow JJ, his Honour could see no logical basis for confining collateral review to what might be termed ‘facial invalidity’ (defects appearing on the face of, for example, a warrant).[184] Despite rejecting the constraints upon collateral review favoured by the majority, his Honour accepted that, ordinarily, collateral challenge would not be available simply on the basis that there was insufficient evidence to justify granting the particular warrant. His Honour accepted that this point had been definitively resolved by the High Court in its earlier decision in Murphy v The Queen.[185]
[184]Ousley (1997) 192 CLR 69, 102. Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (4th ed, 2009) argue that the majority restriction of collateral challenge to such ‘facial invalidity’ is questionable. The learned authors contend that such defects are not necessarily easier to prove than other defects, nor easier to explain to an inferior court judge. Moreover, forcing accused persons to challenge their warrants in separate proceedings leads to greater cost, fragmentation and delay. They cite Frugtniet v A-G (NSW) (1997) 41 NSWLR 588, and Federal Airports Corporation v Aerolineas Argentinas (1997) 76 FCR 582 as examples of the advantages of allowing widespread grounds to be raised on collateral review.
[185](1989) 167 CLR 94.
McHugh J considered that allowing trial judges to determine collateral challenges after juries had been empanelled would be disruptive, and would interfere with the orderly course of the trial. In that sense, a degree of fragmentation might be preferable. This could be accommodated by having such challenges speedily determined in pre-trial hearings. Overall, however, at least in criminal matters, his Honour considered that the better approach would be to have such challenges heard and determined by way of judicial review.
Kirby J dissented. He was strongly in favour of trial judges dealing with all challenges to the validity of warrants upon whatever grounds those challenges might be based. That would avoid the fragmentation of criminal trials that would necessarily ensue if challenges to the validity of such warrants had to be brought by way of judicial review.
Ousley[186] seems to me to place significant constraints upon collateral review, whether because such review is confined to a narrowly specified class of defects or whether, as McHugh J thought, it is generally to be deprecated. Ousley, so far as I can tell, remains good law.[187]
[186](1997) 192 CLR 69.
[187]There is nothing in A-G (Cth) v Breckler (1999) 197 CLR 83, or Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, both cases adverting to collateral review, which casts doubt upon the status of Ousley as representing the law in this country.
There is nothing in any of the statutes relevant to this case, whether the VCAT Act, the RTA, or the Charter, that deals specifically with the subject of collateral review. That is hardly surprising. Statutes rarely contain provisions which address that issue.[188] Legislation may, however, establish a particular and comprehensive regime for the determination of specific issues. Where that course is followed, an implication arises that collateral review is not available.
[188]See Mark Aronson, ‘Criteria for Restricting Collateral Challenge’ (1998) 9 Public Law Review 237, 237. The learned author refers to Australia’s income tax regime, with its statutory appeals mechanisms leaving next to no room for taxpayer challenges to the validity of tax office assessments. See, eg, Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168.
It may be that the reasons why at least some challenges to the validity of government action should be raised only by way of judicial review are, as Lord
Nicholls suggested in R v Wicks,[189] and as McHugh J implied in Ousley,[190] largely ones of practical convenience.
[189][1998] AC 92.
[190](1997) 192 CLR 69.
As Bell J noted in the present case, there are circumstances where it would be preferable to have the court (or perhaps tribunal) that is hearing the matter determine all issues, including any matters raised by way of defence, rather than requiring a party to initiate separate proceedings for judicial review. That approach would avoid fragmentation, with all its attendant difficulties.
On the other hand, as I have already noted, unrestricted collateral review has its disadvantages. For example, questions of ultra vires can arise in the course of proceedings before any inferior court or tribunal. Some such bodies may be ill-equipped to deal with such matters.
The problems associated with collateral review are perhaps more acute in relation to proceedings before tribunals than they are in relation to courts. For example, in deciding an appeal against a decision to revoke a person’s licence, a tribunal may have to consider whether the relevant statute confers upon the decision-maker a power to do that which was done in the particular case. The question could arise whether the regulation under which the revocation took place was itself valid. To what extent, if at all, should a tribunal, that perhaps only ever engages in merits review, determine questions of this type?
There are cases where the Commonwealth Administrative Appeals Tribunal (‘AAT’) has reviewed decisions that, had they been challenged before a court, would probably have resulted in the those decisions being declared nullities.[191]
[191]Re Upton and Department of Transport (1977) 15 ALR 675; and Re Sibrava and Acting Commissioner for Superannuation (1978) 1 ALD 233.
The leading decision on this point is probably that of the AAT in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW).[192] There, the Collector of Customs had, without authority, purported to revoke the applicant’s warehouse licence. It was submitted on behalf of the Collector that if in fact the decision had been taken without authority, it should be treated as a nullity. It would follow that there was no ‘decision’ capable of being reviewed by the AAT.
[192](1978) 1 ALD 167.
Brennan J, sitting as President of the AAT, rejected that contention. He said:
Where a decision is made beyond power, the legal effect which the decision-maker seeks to achieve is denied; but that says nothing as to whether the decision may be reviewed, quashed, or otherwise affected by order of a court or of an appeal tribunal.[193]
[193]Ibid 180.
The Full Federal Court affirmed that decision on appeal, albeit with some modification.[194]
[194]Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1 (‘Lawlor’).
The decision in Lawlor has been followed many times. The Full Federal Court has on at least two occasions said that the AAT has jurisdiction to hear an appeal against a decision even where the decision-maker had no power to make that decision.[195]
[195]Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225; and Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213.
Some commentators have argued that the approach taken in Lawlor is correct, and reflects sound policy.[196] They point out that any ruling by the AAT on a legal question is not binding. Moreover, any party dissatisfied with such a ruling can appeal against it to the Federal Court.
[196]Dennis Charles Pearce, Administrative Appeals Tribunal (2003) 17 [2.11].
A second reason why Lawlor is said to be correct is that the contrary conclusion would mean that the AAT had fewer powers than did the original decision-maker. Such a decision-maker must be satisfied that he or she has power to embark upon a consideration of the particular issue, before dealing with the merits.
The AAT, which supposedly stands in the shoes of the original decision-maker, should therefore approach the matter on exactly the same basis.
A third argument in support of Lawlor is that, from a practical viewpoint, the AAT would cease to function effectively if it could not rule on legal questions arising during the course of an appeal. If every time such an issue arose the proceeding had to be adjourned to allow the matter to be tested in a court, hearings would become hopelessly drawn out.
The Lawlor principle has been applied by the AAT on many occasions. For example, the AAT has, in the course of merits review, set aside decisions on the basis of denial of natural justice, want of jurisdiction, and taking into account irrelevant considerations. Indeed, it has even held that it has power to review decisions on grounds of unlawfulness.[197] The Lawlor principle has also been applied in relation to a number of other tribunals.[198]
[197]Re Gibbs and Minister for Immigration and Ethnic Affairs (1986) 10 ALN N1.
[198]See, eg, Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495, 514 (Gyles J).
Whatever support there may be for the Lawlor approach, it is doubtful that it has any real application to a body such as VCAT. Unlike the AAT, VCAT is not confined to merits review. Its powers are much broader than that. In the present case, VCAT was not engaged in any form of review, merits or otherwise. It did not stand in the shoes of any decision-maker. It was not engaged in any executive or administrative task.
Rather, VCAT was, in Mr Sudi’s matter, exercising original jurisdiction. It was engaged in a judicial, or quasi-judicial, task. It was not acting as a review body.
Although VCAT may well have some powers to engage in some form of collateral review, these are confined by Ousley,[199] as are the powers of the courts, to challenges brought on the basis of something akin to ‘facial’ or ‘patent’ invalidity. There is nothing to suggest that VCAT has greater powers of collateral review than those that courts can exercise.
[199](1997) 192 CLR 69.
There is nothing in the Charter to suggest that the law relating to collateral review, as stated in Ousley, has been superseded by the Charter.
To hold otherwise would be to elevate VCAT above the courts. It would be to allow wide-ranging attacks to be made upon the conduct of public authorities in proceedings which have nothing directly to do with Charter compliance. It would allow VCAT to be diverted from its central task, by conducting a broad and general inquiry into the motives with which particular actions were taken by the public officials whose actions are impugned.
It is one thing for VCAT to be required to resolve, in the course of a proceeding brought before it, whether as an element of that proceeding a public authority has contravened the Charter. That falls squarely within VCAT’s jurisdiction. It is quite another for VCAT to embark upon a collateral review of the conduct of a public authority in a case in which the question of unlawful conduct is not directly in issue. That, in my opinion, runs contrary to Ousley.
Does s 39 ‘overrule’ Ousley?
As previously indicated, Bell J did not find it necessary, in the present case, to determine whether s 39 of the Charter conferred upon VCAT the power to engage in collateral review on Charter grounds. His Honour was able to source that power as a matter of implication, most likely from the VCAT Act, or perhaps that Act and the RTA.
I have already said that, in my opinion, Ousley[200] stands in the way of that conclusion. For completeness, I should say something briefly about whether s 39 of the Charter can be regarded as having legislatively overturned the constraints upon collateral review imposed by Ousley. That question arises despite the fact that Bell J did not find it necessary to answer it.
[200]Ibid.
Section 39 has, as I have already indicated, been the subject of a great deal of criticism. Professor George Williams, the Chair of the Consultation Committee that recommended the enactment of the Charter (‘Consultation Committee’), singled it out as the one exception to what he described as the Charter’s otherwise ‘clear language’.[201]
[201]Jeremy Gans, ‘The Charter’s Irremediable Remedies Provision’ (2009) 33 Melbourne University Law Review 105, 106.
No other bill of rights or charter enacted anywhere else in the common law world contains a provision even remotely like s 39. Given that the Charter is otherwise closely modelled upon such overseas instruments,[202] the fact that the section is to be found in the Charter is truly remarkable.
[202]For example, the rights identified in the Charter are adapted from the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). The ‘reasonable limits’ test set out in s 7(2) largely replicates a similar test contained in the Constitution of the Republic of South Africa Act 1996 (South Africa), ch 2.
Associate Professor Jeremy Gans has traced the origins of s 39(1).[203] He notes that it seems to have derived from a concern that the Charter might lead to a major growth in litigation, and thereby significantly add to the workload of the courts. He further notes that the Consultation Committee was urged by the government to focus upon measures that would encourage ‘dialogue’ on human rights and to avoid, if possible, creating new opportunities for disputation and litigation.
[203]Jeremy Gans, ‘The Charter’s Irremediable Remedies Provision’ (2009) 33 Melbourne University Law Review 105.
The government’s approach, at the drafting stage, led to criticism by those who were concerned that the Charter would achieve little if it failed to provide remedies for breach. The Consultation Committee responded to these criticisms by recommending a ‘halfway house’, whereby remedies already available under Victorian law would also be available in response to any Charter breaches.
It was decided that the way to achieve that object would be by imposing within the Charter an obligation upon public authorities to observe Charter rights.[204] The next question to be determined was what, if anything, could be done if a public authority failed to comply with that obligation. It is one thing to characterise such non-compliance as ‘unlawful’. It is quite another to determine what sanctions, or remedies, might be available in such circumstances.
[204]This was achieved by s 38 of the Charter.
The Consultation Committee recommended that, in any case in which a public authority acted in breach of human rights,
the courts should have a limited form of review of the decision-making of government, like that already found under Victorian law.[205]
[205]Human Rights Consultation Committee, Parliament of Victoria, Rights, Responsibilities and Respect: The Report of the Human Rights Consultation Committee (2005) (‘Consultation Committee Report’) 114.
The intention was that non-Charter law would supply the remedies for any Charter breaches. More specifically, the Consultation Committee included in its report a recommendation that:
A person who claims that a public authority has acted unlawfully by acting in a way that is incompatible with the Charter should be able to:
·apply to a court for judicial review of the decision of the public authority to act in the way that it did; and
·apply to a court for a declaration that the act of the public authority was unlawful,
where the existing requirements for those proceedings are satisfied.[206]
[206]Ibid 125, Recommendation 30.
What is noteworthy about this recommendation is its conservative scope. Under the recommendation, the only remedy that would be available in respect of an unlawful act by a public authority would be some form of judicial review, or something closely analogous. Given that no court, other than the Supreme Court, can exercise supervisory jurisdiction, the reference to a ‘court’ in the recommendation would probably have been construed as being applicable to the Supreme Court alone. It would certainly not have included VCAT.
The draft Bill that was appended to the Consultation Committee’s Report did not follow the terms of the recommendation set out above. Rather, clause 40 was in the following terms:
40. Legal proceedings
(1)If an act or decision of a public authority is made unlawful by this Charter, a person aggrieved by that act or decision may seek any relief or remedy, including—
(a) judicial review under the Administrative Law Act 1978 or under Order 56 of Chapter I of the Rules of the Supreme Court; and
(b)a declaration of unlawfulness and associated relief including an injunction, a stay of proceedings or exclusion of evidence—
where that relief or remedy would have been available had the act or decision been unlawful apart from this Charter.
…
Clause 40(1) was worded in such a way as to suggest that the primary form of relief available in relation to a Charter breach would be some form of judicial review, almost certainly by the Supreme Court.
Ultimately, s 39 was enacted in its present form. It is fair to say that, as enacted, the section bears little resemblance to either recommendation 30 of the Consultation Committee’s Report, or clause 40 of the draft Bill appended to that report.
Justice Bell thought it arguable that s 39 conferred power upon VCAT to dismiss an application on Charter grounds. Ultimately, however, as I have noted, he did not consider it necessary to determine that matter.
His Honour recognised, and accepted, that VCAT has no power to engage in judicial review.[207] He said that although determining whether a public authority had behaved unlawfully by breaching human rights had some ‘analytical similarities’ with such review, that was not what VCAT would be doing in dismissing the Director’s application in this case. Rather, it would be doing no more than what the law required, which was determining whether there had been a breach of the Charter and, if so, what consequences should flow from that breach.
[207]That was so in respect of both its original jurisdiction and its review jurisdiction.
It was in that context that Bell J noted that s 39(1) was not confined in its operation to the courts, or even to any one court. It referred instead, in the heading to the section, to ‘[l]egal proceedings’ generally. That expression was capable of applying to VCAT. His Honour referred, in that regard, to his own earlier decision in Kracke,[208] where he had granted declaratory relief in relation to what he had found to be a Charter breach. As I have mentioned previously, however, Bell J concluded that, in the present case, the existing jurisdiction of VCAT allowed him to determine the Charter breach issue without any recourse to s 39(1).
[208][2009] VCAT 646.
In my opinion, s 39(1) cannot be invoked as the source of VCAT’s power to engage in collateral review on Charter grounds. There are two reasons for this. First, as is plain, the section does not confer upon VCAT any power of judicial review. Secondly, the section does not expand any power of collateral review that VCAT might have under ordinary common law principles. Any such power is, of course, limited by Ousley[209] unless Parliament declares, expressly or impliedly, to the contrary. Section 39(1) does not have that effect.
[209](1997) 192 CLR 69.
Indeed, it can be argued that the legislative intention disclosed by s 39 is that Charter unlawfulness can be relied upon as a ground in – and only in – a proceeding the object of which is to seek ‘relief or remedy in respect of an act or decision of a public authority on the ground that … [it] was unlawful’.[210] That would, by definition, confine such relief to a direct challenge before VCAT, and would exclude any possibility of collateral review.
[210]Charter s 39(1).
Conclusion
The question to be determined in this appeal is purely one of statutory interpretation. The issue is not whether VCAT should, as a matter of policy, have the power to engage in collateral review in relation to Charter issues. Rather, the issue is whether VCAT has that power as a matter of law.
VCAT’s jurisdiction is extremely broad. Nonetheless, its powers are confined to those conferred upon it by statute, either expressly or by implication. There is nothing in the VCAT Act, or the RTA, or the Charter itself, that suggests that VCAT has the power to engage in broad-ranging collateral review on Charter grounds.
Tribunals of course deal routinely with questions of law. However, they do not do so in exactly the same way as courts. For example, it is well established that a tribunal cannot rule upon a question of constitutional validity of the legislation under which the relevant decision was made.[211] There is also authority to the effect that, notwithstanding the decision in Lawlor, a tribunal cannot generally rule upon the validity of delegated legislation on the basis of it being ultra vires.[212] Such relief should ordinarily be sought in the appropriate manner, through the courts.
[211]See, generally, ABY, ABZ v Patient Review Panel (Health and Privacy) [2011] VCAT 905. See also Re Adams and Tax Agents’ Board (1976) 1 ALD 251; Re McKie and Minister for Immigration, Local Government and Ethnic Affairs (1988) 8 AAR 90, 96; Re Sarina and Secretary, Department of Social Security (1988) 14 ALD 437; Re Sawmillers Exports Pty Ltd andMinister for Resources (1996) 41 ALD 657. Cf Lawlor (1979) 2 ALD 1, 7 (Bowen CJ), treating the matter as one where the tribunal would be likely, as a matter of discretion, to allow the constitutional challenge to be heard in a court rather than attempting to deal with that challenge itself.
[212]Re Costello and Secretary, Department of Transport (1979) 2 ALD 934. There it was said that the AAT, as an administrative body, could not give a binding or authoritative decision on the question of whether delegated legislation was made ultra vires and was therefore invalid. However, it may form an opinion on the matter and, in doing so, ‘mould its conduct by treating delegated legislation invalid’, although it would need the most compelling grounds to justify it in so doing. Rather, almost invariably, it would refer the question of validity to the Federal Court for determination.
The doctrine of collateral review is, as Ousley[213] makes clear, highly contentious. It represents a departure from the ordinary procedure by which the legality of executive action is tested. There are, undoubtedly, some practical benefits in having all issues that arise in the course of any legal proceeding determined at the one time, and by the same body. In criminal cases, for example, collateral review assists in avoiding fragmentation. Such review has, for that reason, and perhaps on pragmatic grounds, been more readily accepted in relation to criminal matters.
[213](1997) 192 CLR 69.
As I have endeavoured to make clear, however, there is another side to collateral review. If it becomes too wide-ranging, it has the potential to at least impede, if not derail, proceedings that were never intended to be conducted in that way.
The grounds upon which an administrative decision can be attacked are many and varied. For example, the doctrine of improper purpose allows for an investigation to be conducted into the motives of the relevant decision-maker whose conduct is under challenge. The resolution of such a ground can be extraordinarily difficult, and is likely to be time consuming. Any decision-maker whose bona fides are challenged in that way may be required, in a practical sense, to provide a detailed account of precisely how his or her decision was arrived at.
Faced with such an account, a determined litigant, particularly one who is not constrained by the risk of an adverse costs order being made, is likely to engage in a protracted quest for the production of all documents said to be relevant to the making of the decision. This, in turn, can lead to lengthy disputes about a whole range of extraneous matters, including the production of documents. None of this is very edifying. Nor, regrettably, is this scenario far-fetched.
The Director is a public official whose statutory role is to protect and preserve property that belongs to all Victorians. She should not, in that sense, be compared to a commercial or private landlord. She does not stand to gain any personal benefit by applying to have a tenant such as Mr Sudi evicted in circumstances where she is satisfied that it is in the public interest for such an application to be brought.
Landlord and tenant disputes make up a large proportion of VCAT’s vast workload.[214] Where the Director is involved, there is significant potential for the Charter to be used to thwart the processes laid down for eviction by the RTA.
[214]Justice Stuart Morris, former President of VCAT, noted in ‘The Civil and Human Rights Jurisdiction of VCAT’ (Speech delivered at Leo Cussen Institute, 23 November 2005), that in the preceding financial year VCAT had determined 88,558 cases, with more than 275,000 parties to those applications. In the present case, the Director submitted that the vast majority of applications to VCAT are made within the Residential Tenancies List.
It may be useful to consider some examples of how such abuse might occur. In Director of Housing v IF (Residential Tenancies)[215] (which was decided before Sudi)[216], the Director served a notice of breach under s 208 of the RTA. The notice stated that IF was in breach of his duty under s 60(1) which provides that a tenant must not use, or permit the use of, rented premises in any manner that causes a nuisance. The notice complained that the tenant had verbally abused the occupier of neighbouring premises, shouting loudly and using obscene language. It required the tenant to remedy the breach by ceasing to engage in that conduct.
[215][2008] VCAT 2413 (‘IF’).
[216][2010] VCAT 328.
Subsequently, the Director applied to VCAT for what was described as a ‘compliance order’.[217] The Director contended that, despite the earlier notice, the tenant had continued to behave in an inappropriate manner.
[217]See s 209 of the RTA.
A matter that should have been dealt with quickly, efficiently and sensibly ultimately became the vehicle for a clash of high principle. The tenant invoked s 38 of the Charter, alleging that the Director had, by serving the notice, failed to have regard to his human rights. As a result, not only did VCAT have to determine whether the Director’s factual allegations had been proved, but also whether, when issuing the notice, she had failed to give proper consideration to the tenant’s ‘right to privacy’ as protected by s 13 of the Charter.
Had the member of VCAT accepted the tenant’s submission that collateral review was available on this Charter basis, she would have had to engage in a detailed consideration of voluminous human rights jurisprudence. She would then, in accordance with s 7(2), have had to balance any relevant human rights against the limitations that could be ‘demonstrably justified in a free and democratic society based on human dignity, equality and freedom …’.[218]
[218]Charter s 7(2).
Fortunately, the matter did not proceed down that path. The member decided that VCAT did not have jurisdiction to go behind the Director’s application. She regarded her powers as being strictly limited and confined to those conferred by the VCAT Act and the RTA. She concluded that neither of those Acts provided for the review of decisions made by the Director under the Housing Act 1983. In her view, any challenge to the Director’s decision to issue the notice, based upon Charter grounds, would have to be brought in the Supreme Court under the Administrative Law Act 1978.[219]
[219]Applications for review under that Act are heard only in the Supreme Court. In Sabet v Medical Practitioners Board of Victoria [2008] 20 VR 414, Hollingworth J specifically noted that Dr Sabet had available to him proceedings under the Administrative Law Act 1978 for an alleged breach of the Charter.
Associate Professor Gans has been critical of the decision in IF.[220] In a passage that foreshadowed the argument that ultimately succeeded before Bell J in the present case, the learned author described IF as carrying the
dramatic implication that tenants who want to resist an eviction notice on the basis that the public authority landlord acted in a manner incompatible with human rights – a not un-common scenario – will have to commence proceedings of their own in the Supreme Court, rather than resolving the matter in the Residential Tenancies List of VCAT. [221]
[220]Jeremy Gans, ‘The Charter’s Irremediable Remedies Provision’ (2009) 33 Melbourne University Law Review 105.
[221]Ibid 122.
If, as Associate Professor Gans suggests, it is ‘a not un-common scenario’ that tenants who wish to resist eviction on the basis that the public authority which began eviction proceedings acted in a manner incompatible with human rights, that is perhaps an argument against collateral review, rather than one in favour.
There is, of course, a serious point to Associate Professor Gans’ criticism of IF, and one that should not be ignored. The problem of how to protect the legitimate interests of the homeless, or those who might potentially be so, is not to be taken lightly.
Nonetheless, it must not be forgotten that the central issue raised by this appeal is not one of social policy, but rather one of statutory construction.
The decision in Director of Housing v TK (Residential Tenancies)[222] (delivered after Sudi)[223] is also worth noting. The case involved an application by the Director made pursuant to ss 250 and 330(1) of the RTA. Under s 250, a landlord may give a tenant notice to vacate a rented premises if the tenant has used those premises, or permitted their use, for any purpose that is illegal at common law or under any Act.
[222][2010] VCAT 1839 (‘TK’).
[223][2010] VCAT 328.
In TK the Director argued (perhaps somewhat optimistically having regard to Sudi) that VCAT did not have jurisdiction to dismiss an application for a possession order on the basis that the Director had contravened s 38 of the Charter. It seems that the Director submitted that the Deputy President who heard TK should decline to follow Sudi. Not surprisingly, the Director’s submission in that regard was rejected. Nonetheless, the Deputy President seemed sympathetic towards the policy of the landlord in issuing a notice to vacate, and, impliedly, of the far-reaching ramifications of Sudi for the future conduct of residential tenancy disputes in VCAT.
In my view, if tenants are prevented from relying in VCAT upon Charter breaches in answer to proceedings brought by the Director for possession, and must instead seek judicial review to set aside the Director’s actions, then that is hardly likely to be catastrophic. The legal profession in this State has shown a ready willingness to provide assistance, often through legal aid or pro bono, in proceedings that give rise to legitimate Charter issues.
Moreover, the threat of costs being awarded against a tenant who fails in proceedings for judicial review may be more apparent than real. Particularly, in ‘test’ cases, such as the present, there is no reason to assume that the court will necessarily make costs orders against the unsuccessful applicant.
In my opinion, and for the reasons set out above, the decision of Bell J was incorrect, and should be set aside.
This does not mean that the Charter is of little practical importance in the protection of human rights. Charter responsibilities are imposed directly upon public authorities, and they are obliged to discharge them. Moreover, courts and tribunals must comply with the interpretive requirement in s 32.
However, so far as remedies are concerned, the Charter seems to me to focus upon judicial review and its public law analogues, rather than upon expanding those forms of relief. That is a consequence of the ‘dialogue’ model chosen by the legislature as the basis for the Charter’s operation.
The respondent submitted that if this Court were to conclude that VCAT did not have power, in determining an application for a possession order, to consider whether the Director had complied with her Charter obligations, that construction would amount to a limitation upon the right provided by s 13(a). The respondent further submitted that, in that event, this Court should make a declaration under s 36 of the Charter that the RTA cannot be interpreted consistently with s 13(a). For the reasons given by the Chief Justice at [55] and [56] of her judgment, I would decline to make any such declaration.
I would allow the appeal. I would set aside the decision of Bell J and remit the matter to VCAT to be determined according to law.
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