IN THE MATTER OF RT 732/2017 (Residential Tenancies)
[2017] ACAT 86
•26 October 2017
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
IN THE MATTER OF RT 732/2017 (Residential Tenancies) [2017] ACAT 86
RT 732/2017
Catchwords: RESIDENTIAL TENANCIES – family violence and protection orders – new tenancy agreement – whether family violence and protection order provisions apply to the Commissioner for Social Housing
Legislation cited: ACT Civil and Administrative Tribunal Act s 7
Housing Assistance Act 2007 ss 8, 9, 10, 11, 22
Legislation Act 2001 ss 139, 141, 142, 146
Residential Tenancies Act 1997 ss 15, 36, 85A, 85B, 127A standard terms 1, 88, 94, 96
Subordinate
Legislation cited: Housing Assistance Public Rental Housing Assistance Program 2013 (No 1) cl 8, 9, 10, 11, 13, 14, 15, 16, 17, 18, 19
Cases cited: Christopher v Wright [1949] VLR 145
Coco v R (1994) 179 CLR 427
List of
Texts/Papers cited: Pearce and Geddes, Statutory Interpretation in Australia (Lexis Nexis, 8th edition)
Tribunal: Senior Member H Robinson
Date of Orders: 22 September 2017
Date of Reasons for Decision: 26 October 2017
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) RT 732/2017
IN THE MATTER OF RT 732/2017
TRIBUNAL: Senior Member H Robinson
DATE:22 September 2017
ORDER
The Tribunal orders that:
1.The Commissioner for Social Housing is directed to enter into a new residential tenancy agreement with the applicant in relation to the premises at [premises address].
2.Pursuant to section 85B(a) the existing residential tenancy agreement at 23 September 2014 will terminate upon the applicant and the first respondent entering into a new agreement in accordance with Order 1.
3.Liberty to relist if the matter is not resolved in 14 days.
……………Signed…………..
Senior Member H Robinson
REASONS FOR DECISION
1.These are the edited and expanded written reasons for a decision delivered orally on Friday 22 September 2017. These reasons address a number of issues that arose under the new Division 6.5A (Protection Orders) of the Residential Tenancies Act 1997 (RT Act). Given the subject matter of the proceedings, the names of the applicant and the second respondent have been anonymised.
Background
2.Division 6.5A commenced operation on 24 August 2017. It allows tenants who are impacted by domestic violence to change their rental arrangements.[1] This application was the first to be brought under the new Division.
[1] See Explanatory Statement to the Residential Tenancies Amendment Bill 2016 page 1; Second Reading Speech, Hansard 2016 week 6, at 1876
3.Specifically, the applicant sought orders under section 85A of the RT Act that:
(a)the tenancy agreement between the Commissioner for Social Housing (Commissioner) and the second respondent be terminated; and
(b)the Commissioner be required to enter into a new tenancy agreement with her.
4.The Commissioner opposed the order, and in doing so raised some concerns about the interaction between Division 6.5A of the RT Act and the Housing Assistance Act 2007 (HA Act), under which the Commissioner operates.
The hearing
5.The application was listed for directions on 4 September 2017, for hearing on 8 and 18 September 2017 and for a decision on interim issues or delivery of decision on 22 September 2017.
6.On the first occasion, 4 September 2017, only the applicant and the second respondent appeared. Both represented themselves. After ascertaining that the Commissioner was the lessor of the premises, I adjourned proceedings to allow the Commissioner to be properly served. I also encouraged the second respondent to seek legal advice.
7.On the second occasion, 8 September 2017, the applicant was represented by Ms Faulder of the Tenants Union, the Commissioner by his authorised representative Mr Safi-Westerndorf, and the second respondent appeared in person. I made directions and adjourned the matter again to allow Mr Safi-Westerndorf to seek further instructions. I also, again, encouraged the second respondent to seek legal advice.
8.At the third occasion, 18 September 2017, Ms Holley of the ACT Government Solicitior appeared for the Commissioner, Ms Faulder for the applicant, and the second respondent was again unrepresented. On this occasion, the Commissioner raised questions about the Tribunal’s jurisdiction to make the orders sought. I reserved my decision, and asked the parties to make further written submissions about the jurisdictional issue, and the means by which it should be determined, by 20 September 2017.
9.Ms Faulder filed further written submissions on 20 September 2017. I received no further submissions from any other party.[2]
[2] Although the Commissioner requested an adjournment of the hearing and additional time to file submissions, which I declined to grant
10.When the matter returned to the Tribunal on 22 September 2017, the Commissioner withdrew one of his objections to the Tribunal’s jurisdiction. I thereafter delivered an ex tempore decision, but advised the parties I would publish more complete reasons in due course. I do that now.
The facts
11.There was little dispute about the facts of this matter. My findings, whether disputed or not, are set out below.
12.The applicant was, for many years, in a relationship with the second respondent. They have a pre-school age child (W).
13.On 28 March 2014 the applicant and the second respondent made a joint application to the Commissioner for the provision of housing assistance under the HA Act. For reasons which I do not need to decide, that application did not proceed.
14.Subsequently, a further application was made by the second respondent alone. This one was successful, and on 23 September 2014 the Commissioner and second respondent entered into a tenancy agreement (the RT Agreement) in respect of a property (the premises). At the time of the RT Agreement, the second respondent and the child, W, were the only residents approved to live at the property. The applicant was not, and has never been, a party to the RT Agreement.
15.Housing assistance was provided to the second respondent on the basis that he had a diagnosed disability that would preclude him from obtaining stable employment. No assessment was made of the applicant’s entitlement to housing assistance. The applicant was not, and is still not, an Australian citizen. At all relevant times, she received financial support from another country. There was, however, no suggestion that she was not lawfully entitled to reside in Australia. Moreover, all parties agreed that this entitlement was likely to be confirmed as permanent following Family Court proceedings.
16.The applicant and the second respondent lived at a premises for around three years. The Commissioner’s contention during the hearing was that he did not know that the applicant lived at the premises. The applicant’s solicitor submitted that inspections of the premises were conducted regularly by the Commissioner’s representatives, and that it would be been surprising if it were not apparent to whoever conducted that inspection that another adult was living at the premises. I accept that the Commissioner did not have formal notice that the applicant was living on the property, although he perhaps had constructive knowledge. For reasons I will come to, this is not, in any case, a decisive fact.
17.On or around 18 August 2017 the applicant and the second respondent were involved in some kind of altercation, the details of which I am not privy to and do need to know. On 21 August 2017 the applicant and W left the premises and moved into emergency housing. On 23 August 2017 the applicant obtained an interim family violence order from the ACT Magistrates Court. On 15 September 2017, that order was made final for a period of two years. The second respondent consented to the order. The applicant had, by this time, moved back into the premises.
18.The interim and final orders both contain, among other things, a term that provides that:
1. The respondent is prohibited from
(a)being on [the premises – address cited] where the protected person lives
19.The applicant wished to remain living in the premises. Her unchallenged evidence was that she and W would suffer hardship if they had to move out. The child, W, had lived in the premises their entire life. W was enrolled at a local preschool and was to attend a local primary school the next year. The applicant had no family who lived locally with whom she could live or who could provide her with assistance. Her income was very limited, as she was a full time student with no employment. Her alternative accommodation was emergency or transitional accommodation, both of which, she said, would be disruptive to her child and her studies.
20.For his part the second respondent did not resist this application. He had already vacated the premises and was living in temporary accommodation. Although he had little certainty as to his future accommodation arrangements, he stated on several occasions that his primary concern was for W, and that he did not want his child deprived of a place to live. He also expressed concern to maintain as positive a relationship with applicant as possible so that he could see W. Further, he submitted that he had read the provisions of Division 6.5A of the RT Act, and had obtained legal advice, and that it was his understanding that the Tribunal was in any case prevented from taking his interests into account in deciding whether to make the order. I will say more on this below.
21.For his part the Commissioner opposed the application on two main grounds (the third being withdrawn on 22 September 2017):
(a)First, the Commissioner contended that the provisions of Division 6.5A of the RT Act must be read subject to the HA Act, with the consequence that the Tribunal could not make the order sought without the Commissioner’s consent.
(b)Second, the Commissioner argued, even if the Tribunal had the jurisdiction to make the order sought, it should decline to do because such an order would undermine the efficient or fair distribution of public housing assistance within the Territory.
22.The Commissioner was particularly concerned about the consequences of allowing an application in a situation such as this; where the applicant had occupied the premises without the knowledge or consent of the Commissioner, and where the Commissioner has not had an opportunity to even assess her eligibility for housing assistance under the HAA.
The Legislation
23.The Division is relatively short, so it is useful to cite it in full:
Division 6.5A Powers and decisions of ACAT—protection orders
85 Definitions—div 6.5A
(1)In this division:
FV Act means the Family Violence Act 2016.
protected person—
(a) in relation to a protection order under the FV Act—see the FV Act, dictionary; or
(b) in relation to a protection order under the PV Act—see the PV Act, dictionary.
protection order means—
(a) a protection order under the FV Act; or
(b) an interim or final personal protection order under the PV Act.
PV Act means the Personal Violence Act 2016.
respondent—
(a) in relation to a protection order under the FV Act—see the FV Act, dictionary; or
(b) in relation to a protection order under the PV Act—see the PV Act, dictionary.
(2)In this section:
personal protection order means a protection order applied for under the PV Act, section 12.
85A New tenancy agreement—family violence and protection orders
(1) This section applies if—
(a) the Magistrates Court has made a protection order; and
(b) the respondent is a party to a residential tenancy agreement in relation to premises; and
(c) the protected person under the order—
(i)is also a party to the residential tenancy agreement; or
(ii)has been living in the premises as the protected person’s home but is not a party to the agreement; and
(d) either—
(i)the order includes an exclusion condition or a condition prohibiting the respondent from being within a particular distance from the protected person; or
(ii)the respondent has given an undertaking to the court to leave the premises.
(2) The protected person may apply to the ACAT for either of the following orders:
(a) an order terminating the existing residential tenancy agreement;
(b) an order—
(i)terminating the existing residential tenancy agreement; and
(ii)requiring the lessor of the premises to enter into a residential tenancy agreement with the protected person and any other person mentioned in the application.
(3) Each of the following is a party to a proceeding on the application:
(a) the protected person;
(b) the lessor;
(c) the respondent;
(d) any other existing tenants.
(4) In this section:
exclusion condition—
(a) of a protection order under the FV Act—see the FV Act, section 39 (4); or
(b) of a protection order under the PV Act—see the PV Act, section 31 (4).
85B Applications under s 85A—ACAT orders
(1) This section applies if the ACAT receives an application under section 85A from a protected person under a protection order.
(2) The ACAT may make the order applied for if satisfied that—
(a) it is reasonable to make the order, taking into consideration the length of the protection order and the length of time remaining on the term of the existing residential tenancy agreement; and
(b) it is reasonable to make the order, taking into consideration the interests of any other tenants (other than the respondent) under the existing residential tenancy agreement and, in particular, whether the other tenants support the protected person’s application; and
(c) for an order mentioned in section 85A (2) (b)—
(i)the protected person or the protected person’s dependent children would be likely to suffer significant hardship if the protected person were compelled to leave the premises; and
(ii)that hardship would be greater than the hardship the lessor would suffer if the order were made; and
(iii)the protected person and any other person mentioned in the application could reasonably be expected to comply with the terms of a residential tenancy agreement; and
(iv)if another person is mentioned in the application—the lessor has been given an opportunity to consider the person’s suitability as a tenant.
(3) If the ACAT makes an order mentioned in section 85A (2) (b), the new residential tenancy agreement must—
(a) be subject to the same rent and frequency of rent payments as the existing residential tenancy agreement; and
(b) if the existing residential tenancy agreement is a fixed term agreement—run for a term not longer than the remainder of the fixed term; and
(c) otherwise be on the same terms as the existing residential tenancy agreement, subject to any changes the ACAT decides.
(4) If the ACAT makes an order mentioned in section 85A (2) (b), the existing residential tenancy agreement is terminated when the new residential tenancy agreement is signed by the parties to the agreement.
(5) The ACAT may determine the liabilities of the respondent, the protected person or any other tenants under the existing residential tenancy agreement in relation to the bond paid under the agreement.
The legal arguments
The applicant’s position
24.The applicant, through her solicitor, contended that she met the necessary requirements for the termination of the original tenancy and the creation of a new tenancy, as set out in sections 85A and 85B of the RT Act. Further, she contended that as her circumstances were exactly the kind the new Division 6.5A was intended to address, and accordingly, the Tribunal should exercise its jurisdiction and allow the application.
25.Because this was the first application under section 85A, and because it was both contested and comprehensively argued, it is useful to set out the applicant’s arguments in full.
26.The starting point of the applicant’s case was section 85A(2) of the RT Act, which sets out who may make an application. This section enables an eligible ‘protected person’ to seek orders:
(i) terminating the existing residential tenancy agreement; and
(ii) requiring the lessor of the premises to enter into a residential tenancy agreement with the protected person and any other person mentioned in the application.[3]
[3] Section 85A(2)
27.The applicant submitted that she met these criteria because:
(a)she was a ‘protected person’ under the legislation, being a person protected under a protection order made in the Magistrates Court that contains an exclusion condition prohibiting the respondent from being on the premises;
(b)the second respondent was a party to a residential tenancy agreement relating to the premises; and
(c)she had been living in the premises as her home.
28.The factual basis of these submissions were not seriously challenged, although the Commissioner made some submissions about the consequences of the second respondent’s failure to notify the Commissioner that the applicant was living at the premises. I will come to those shortly.
29.The applicant then turned to section 85B of the RT Act. This section sets out when the Tribunal may make the orders sought, with section 85B(2) setting out the relevant criteria. The applicant addressed each of the criteria in turn.
30.First, as to whether it was reasonable to make an order having regard to the length of the protection order and the duration of the lease (section 85B(2)(a)), the applicant submitted that she was protected by a final two-year protection order, and this was a sufficient period to warrant making final orders about the family home.
31.Secondly, as to whether it was reasonable to make the order, taking into consideration the interests of any other tenants (section 85B(2)(b)), the applicant contended section 85B(2)(b) excludes consideration of the second respondent’s interests, that there were no other tenants involved. This was not disputed at the hearing.
32.Third, in terms of the ‘balancing’ of the relative hardship of the lessor and the applicant (under sections 85B(2)(c)(i) and 85B(2)(c)(ii)), the applicant contended that she had given uncontested evidence was that she and her child would suffer hardship if forced to move, and the Commissioner had not suggested that he would suffer hardship at all. She further submitted that not only had the Commissioner failed to produce any evidence of hardship in this case, but it would difficult for the Commissioner to demonstrate hardship of a kind that could be compared with the applicant’s in any case. The applicant submitted that concerns about ‘waiting lists’ or other persons were not the hardship of the Commissioner.
33.Fourth, in relation to whether the applicant could be expected to comply with the terms of the lease, the applicant acknowledged that a new lease must have the same rent and frequency of rent payments as the existing lease, and that this may require, pursuant to section 22(1) of the HA Act, that she pay market rent. It was unlikely that she could meet this burden. However, the applicant submitted that, were she made a party to the RT Agreement, she would be entitled to make an application for housing assistance under the HA Act, and would likely be entitled to a rent rebate consistent with a housing assistance scheme.
34.In response to the Commissioner’s concerns about the Tribunal’s jurisdiction, the applicant submitted that, on their face, sections 85A and 85B of the RT Act applied to the Commissioner. That this was intended was apparent, the applicant submitted, from the Attorney General’s observation in the second reading speech introducing the Residential Tenancies Amendment Bill 2016 (ACT) that:
The [RT Act] regulates the relationship between landlords and tenants in the ACT and does not distinguish between public and private tenancy agreements.
35.The applicant also noted that there are a few places in the RT Act where different approaches have been taken in relation to the Commissioner. Had the legislature intended that Division 6.5A not apply to the Commissioner, or apply in a different manner, it would open to the legislature to pass different legislation making that clear.
The Commissioner’s position
36.The Commissioner’s position is premised on the interaction between the HA Act and the RT Act. The Commissioner’s submissions may be summarised as set out below.
37.The Commissioner is a statutory authority established under section 9(1) of the HA Act.
38.The Commissioner’s functions are set out under section 11 of the HA Act, which provides as follows:
(1) The housing commissioner has the following functions:
(a) administering, on behalf of the Territory, programs and funding arrangements for delivering housing assistance in the ACT by way of—
(i) public rental housing; and
(ii) home ownership; and
(iii) financial assistance to home owners and tenants; and
(iv) community housing; and
(v) affordable housing;
(b) administering, on behalf of the Territory, any services relating to housing assistance that the Minister approves under subsection (2).
39.‘Housing assistance’ is defined in section 7 of the HA Act as follows:
7 What is housing assistance?
In this Act:
housing assistance means services, programs, assets, rebates and amounts, provided under an approved housing assistance program to help entities who are eligible for assistance under the program to meet their emergency, short-term, medium-term and long-term housing needs. Note Approved housing assistance program—see s 19.
40.Under subsection 10(2) of the HA Act, the Commissioner has an express power to enter into arrangements with ‘entities’ to provide housing assistance. An ‘entity’ is defined the Dictionary to the Legislation Act 2001 (Legislation Act) to include ‘a person’. Hence, the Commissioner may enter into a contract with a person to give them housing assistance in the form of a public house to rent.
41.In the context of this matter, the function being performed by the Commissioner is “….delivering housing assistance in the ACT by way of public rental housing” (HA Act, section 11(1)(i)) to persons in the ACT.
42.Section 8 of the HA Act sets out when a person may be eligible for housing assistance:
8 When is someone eligible for housing assistance?
For this Act, an entity is eligible for housing assistance if the entity meets the eligibility criteria under an approved housing assistance program.
43.The relevant ‘housing assistance program’ is the Housing Assistance Public Rental Housing Assistance Program 2013 (No 1) – disallowable instrument DI2013 – 52 (the Program).
44.Clause 8 of the Program provides that a person may apply in writing to the Commissioner for rental housing assistance, facilitation of community rental housing assistance or a rent rebate under the Program. The remainder of the Program then sets out a process under which a person may apply for, and be approved to receive, housing assistance. I deal with some of these provisions in more detail below.
45.Having set out the relevant definitions, the Commissioner submitted as follows:
Two things emerge from the above definitions. First the Commissioner’s functions are to provide housing assistance to those assessed to be eligible under an approved housing assistance program; and secondly, housing assistance encompasses the provision of an asset owned by the Commissioner.
Entering into a residential tenancy agreement is the mechanism by which the Commissioner gives effect to a decision to grant housing assistance by way provision of an asset, being in this case the property.
In this matter an order made under section 85B of the [RT Act] would have the effect of extinguishing [the second respondent’s] grant of housing assistance and would compel the Commissioner to provide a housing assistance asset to [the applicant].
In making such an order in the case of an asset owned by the Commissioner, the Tribunal is necessarily also making a de facto grant of housing assistance.
The power to make decisions as to the provision of housing assistance is reserved exclusively to the Commissioner at first instance pursuant to the HAA. While the tribunal has an administrative role in respect to certain decisions by the Commissioner, the tribunal is not endowed pursuant to the HAA with any power to make a decision at first instance in respect of the provision of housing assistance.
Moreover pursuant to HAA, the Commissioner may provide housing assistance to those entities eligible for assistance under the approved housing assistance program.
The Commissioner was unaware that [the applicant] was residing at the property and has no knowledge or evidence of her current circumstances. [The applicant] has not applied to the Commissioner to be assessed as to her eligibility for housing assistance. The Commissioner has no information currently on which reasonably base any such assessment.
46.From the above can be drawn the two main pillars of the Commissioner’s submissions:
(a)First, that the HA Act prevails over the RT Act, and therefore the Tribunal lacks the power to make an order under the RT Act, where there was any conflict with the HA Act.
(b)Alternatively, if the RT Act does prevail, then the power to make an order under section 85B(2) is discretionary, and that the Tribunal should not make the order in this case because:
…the operation of the HAA, the Commissioner’s functions and purpose under that Act, and the interaction between the HA Act and the RTA is also a relevant consideration in the exercise of the Tribunal’s discretion…
47.Although not expressly argued, it seemed implicit from the concluding paragraph that the Commissioner’s consent would more readily obtained where the Commissioner knew of the applicant’s residence in the property and had an opportunity to assess the applicant for suitability – and neither requirement was met in this case.
Consideration – the RT Act
48.Setting aside the issues arising because of the HA Act, the first question was whether the applicant was entitled to seek an order under Division 6.5A of the RT Act.
49.Were the criteria in section 85A(1) of the RT Act met? I was satisfied that they were, having undisputed evidence that:
(a) the Magistrates Court had made a protection order within the meaning of that term as defined in section 85(1) of the RT Act[4] (the protection order);
(b) the second respondent was a party to a residential tenancy agreement in relation to the premises[5];
(c) the applicant had been living at the premises as her home for at least three years[6], in the sense that the premises was where she slept, cared for her child and generally engaged in the ordinary activities of domestic living; and
(d) the protection order included an exclusion condition, as defined in section 85A(4) of the RT Act.
[4] 85A(1)(a))
[5] 85A(1)(b))
[6] 85A(1)(c)(ii)
50.It is worth touching on here a submission that was made by the Commissioner about the applicant’s right to be in the house. As I understand the argument, it was that, as the Commissioner was unaware that the applicant was living in the premises, and she did not have the Commissioner’s consent to live there, she could not have been living at the premises ‘as her home’. Further, the Commissioner argued, because the applicant was in the premises without the knowledge or consent of the lessor, her occupation of the premises was unable to confer any right that could be converted into a tenancy.[7] The Commissioner cited as authority for this latter proposition the case of Christopher v Wright [1949] VLR 145.
[7] Commissioner’s submissions, page 27
51.Setting aside the issue as to whether the Commissioner’s consent is required before a person may reside in the house[8], I accept that, in some circumstances, the fact a person is residing in a premises without the knowledge of the lessor may be a relevant consideration in any exercise of discretion available under Division 6.5A, particularly when considering what hardship may befall the lessor if an order is made. However, I did not consider it relevant to the question as to whether the applicant, in this case, was living in the premises as her home. The test simply calls for a factual assessment of whether the premises was, in fact, the applicant’s place of residence. It clearly was.
[8] Another person’s residence in the house must be disclosed for the purposes of calculating a rental rebate, but the Commissioner did not cite statutory or contractual provision that deals with who may reside at the house generally under the RT Agreement or the RT Act (noting that subletting is prohibited
52.I also did not consider Christopher v Wright [1949] VLR 145 to be relevant. That case deals with the circumstances in which a tenancy will or will not arise by implication. There is nothing in Division 6.5A that requires or permits the implication of a tenancy – rather, any tenancy that is created under that Division arises expressly by order of the Tribunal made under statute.
53.In cummary I was satisfied that the applicant met the criteria under section 85A(1) of the RT Act. The next question was whether I should exercise my discretion to make an order, having regard to the criteria in section 85B.
54.Section 85B(2) sets out the orders that the Tribunal ‘may make’ when there is a valid application under section 85A. Section 146(1) of the Legislation Act provides relevantly that:
146 Meaning of may and must
(1) In an Act or statutory instrument, the word may, or a similar term, used in relation to a function indicates that the function may be exercised or not exercised, at discretion.
…
(3) This section is a determinative provision so far as it applies to an applicable law or an applicable provision.
55.There is nothing in this RT Act to suggest that the usual meaning of the term ‘may’ as set out in section 146 of the Legislation Act should be displaced. I therefore accepted the submissions of the Commissioner that the exercise of the power is discretionary, although the breath of that discretion is something that is yet to be explored.
56.I then turned to the factors in section 85B(2), which set out at least the minimum considerations that the Tribunal must turn its mind to.
57.Section 85B(2)(a) raises the question as to what is meant by the “…length of time remaining on the existing residential tenancy agreement.” Under the RT Act, most tenancies will not have a specified ‘length of time remaining’. Rather, most tenancies are for an initial ‘fixed period’, as stated in the agreement, and then continue on a ‘periodic basis’[9], until one or both of the parties end the arrangement or enter into a new agreement in accordance with the procedures set out in the RT Act or the Standard Terms.[10]
[9] Standard Terms, clause 1(5)
[10] Set out in Schedule 1 to the RT Act and incorporated into all tenancy agreements by operation of section 8(1)(a) of that Act
58.The practical approach is probably to assume that the ‘length of time remaining’ on a fixed term agreement is the remaining fixed term, while length of time remaining on a periodic agreement is three weeks – that being the notice that a tenant must give before ending the tenancy for any reason.[11] However, this is somewhat arbitrary, as the lessor must usually give substantially more notice before ending a lease[12], including up to 26 weeks for a ‘without cause’ termination of a periodic agreement.[13] A tenancy may, theoretically, continue indefinitely. This is particularly true of a public housing tenancy, which are often in effect for many years.
[11] Standard Terms, clause 88(1)
[12] Standard Terms, clauses 94 and 96 – these ‘without cause’ terminations are not available while the lease is in its fixed period
[13] Standard terms, clause 94(a)
59.Whatever the intention of this provision, I was satisfied that the ‘length of time’ remaining on the RT Agreement between the Commissioner and the second respondent was indefinite, and had the potential to be lengthy. If the tenancy were transferred to the applicant, she could expect a similarly indefinite but likely lengthy tenure. It was against this indefinite but lengthy possibility that the two year period of the protection order had to be weighed. Order parties to enter into such lengthy legal arrangements is not something done lightly. Still, the alternatives were either an undesirable arrangement in which the second respondent remained a tenant, but could not reside in the house, or some other uncertain arrangement. On balance, I was satisfied that this factor was at least neutral, and possibly weighed in favour of the applicant.
60.Turning to section 85B(2)(b), the second respondent is the only tenant on the lease, and the plain language of this provision provides that I cannot consider his interests under this section. The apparent effect of this provision is of some concern to the Tribunal, and I make some further observations below. Still, whatever the relevance of the respondent’s interests, the facts are that he did not oppose the order, and indicated that his interest was in insuring his child continued to reside at the premises. As such, this factor weighs in favour of making the order.
61.Moving onto the other criteria in section 85B(2)(c).
62.Subparagraph (i) required that I be satisfied that the protected person or the protected person’s dependent children would be likely to suffer ‘significant hardship’ if the protected person were compelled to leave the property. The word ‘significant’ requires, according to the Macquarie Dictionary – something of ‘importance or consequence’. I accepted that the safety, security and continuity of living in the family home were of significant importance to W, especially given the turmoil following the breakup of the child’s parents’ relationship. I also had regard to the applicant’s personal circumstances, limited income and lack of family support in Australia in considering the extent of her hardship. I was satisfied that the applicant and W would suffer a significant degree of harm – in the sense of harm that is ‘of consequence’ – if the order were not made. This was not seriously contested by either of the other parties.
63.Subparagraph (ii) required that I be satisfied that the applicant’s hardship would be greater than the hardship the lessor would suffer if the order were made. In a private tenancy, this clause would likely require the Tribunal to make an assessment of any possible financial or other risk that would befall the lessor were an order terminating or transferring the lease be made. Those issues do not arise to quite the same degree here. Public housing tenants are required to pay rent, and maybe evicted if they do not, but the rent is often reduced by way of a rebate, and, under the HA Act, the less able a tenant is to pay the rent, the more likely they are to be entitled to a significant rental rebate. As such, commercial considerations did not have the same weight as they would in a private tenancy, or perhaps even a tenancy with another social housing provider.
64.The Commissioner did not suggest that he would suffer financial hardship were the order made. However, the Commissioner did submit that any order made under Division 6.5A would be administratively inconvenient, and has the potential to undermine its broader systems and obligations. I accepted this, but I was not satisfied that that kind of ‘hardship’ could readily be compared to that likely to be suffered by the applicant and W if an order were not made.
65.The Commissioner also raised the potential prejudice of an order under Division 6.5A to persons on the public housing waiting list who are also suffering hardship. No evidence was offered as to the number of persons on the waiting list generally, or of the hardship of any other individual who may be affected were an order made. I accepted that there may well be people on the waiting list who were facing greater hardship than the applicant. I did not accept that, in making the order, I could treat the hardship to other persons on the waiting list as hardship to the Commissioner – the two things are not convergent.
66.I leave open the possibility that these broader concerns may be relevant to an exercise of discretion more broadly in another case, but such an argument would require more than the generalities submitted in evidence in this case.
67.Moving onto the next consideration, subparagraph (iii) required that I be satisfied that the protected person and any other person mentioned in the application could be expected to comply with the terms of the lease. I had very little information before me upon which I could properly assess this ground, but the Commissioner did not press it as an objection to the making of the order. The lease requires that the applicant pay market rent, and it will be a matter for the Commissioner to determine whether the applicant will be entitled to any other form of housing assistance, such as a rebate.
68.Subparagraph (iv) did not apply as there was no other person mentioned in the application.
69.Having regard to the above, I was satisfied that the applicant met the criteria for the making of an order under Division 6.5A. That left the interaction between the HA Act and the RT Act as the next issue to be determined.
The Housing Assistance Act
70.On the Commissioner’s submissions, the HA Act operated in such a manner that either:
(a)the Tribunal was either unable to make an order under Division 6.5A if that order affected a lease over a public house, unless the Commissioner consented; or
(b)if the Tribunal could make such an order, it should invariably decline to do so.
I did not accept either argument.
71.I will deal first with the Commissioner’s argument that the HA Act, which deals with the allocation of housing assistance and public housing, should prevail over the RT Act. I rejected this argument for several reasons.
72.First, and perhaps most significantly, I was satisfied that the Legislature intended that the protections in Division 6.5A be available to public housing tenants on the same basis that they are to tenants in private rentals. This is, in my view, abundantly clear from both the Attorney-General’s Second Reading Speech in the Assembly, extracted above, and from the Explanatory Statement to the Residential Tenancies Amendment Bill 2016. The latter provides, relevantly, in paragraph 34, as follows:
Following consideration of written submissions and consultation with Housing and Community Services ACT (Community Services Directorate), it was concluded that the Residential Tenancies Act should not be amended to provide for differential treatment of public housing tenants. The policy position is to continue to regulate public tenancies in the same way as private tenancies, giving social housing tenants a mainstream tenancy experience. Separate regulation of social housing tenants was considered to be discriminatory…
73.Secondly, I accepted the applicant’s submission that, had the Legislature intended that a different approach be taken to public or social housing tenants, provision would have made in the RT Act accordingly. Several other provisions of the RT Act have special provisions (albeit narrow ones) relating to the Commissioner or social housing providers:
(a)Subsections 15(5) and (6) – which allow the Commissioner to make the repayment of outstanding rent from a previous tenancy a condition of a new tenancy in certain circumstances.
(b)Section 36(1)(k) – which is a special termination provision for crisis housing.
(c)Section 127A – which deals with the transfer of public housing under will.
(d)Clause 36(1) of the Standard Terms, which deals with increases in rent where the Commissioner is the lessor.
74.Thirdly, even in the absence of evidence of the Legislature’s intentions, I would likely have reached that same conclusion that Division 6.5A prevails through a fairly straightforward exercise in statutory interpretation. The doctrine of implied repeal provides that a statute that is later in time displaces operation of an earlier statute to the extent of inconsistency.[14] Although there may be some complexity arising from the fact the HA Act has a particular subject matter, the amendments to the RT Act, being later in time to the HA Act, would usually be taken to prevail over the HA Act, were the provisions found to be otherwise inconsistent. Had the Legislature not intended this, it was open to it to include provisions making that clear.
[14] See: Goodwin v Phillips (1908) 7 CLR 1, 7 per Griffith CJ
75.The above considerations led to the conclusion that Division 6.5A prevails over the HA Act. Consequently, I was satisfied that the Tribunal has the power, under Division 6.5A, to order the Commissioner to enter into the lease with an applicant who meets the relevant criteria under section 6.5A, notwithstanding the provisions of the HA Act. The Commissioner’s authority to enter into that new agreement is the Tribunal order.
76.Having satisfied myself that the RT Act prevails over the HA Act, the question became whether I should, nonetheless, decline to exercise my discretion because of the inconsistencies between the legislation, and the consequences for the Commissioner’s operations were I to make an order under Division 6.5A.
77.I acknowledged and accepted the Commissioner’s concerns about potential consequences of an order under Division 6.5A. By making an order, the Tribunal is, in effect, affecting the allocation of public housing assistance. Additionally, such an order may both enable and compel the Commissioner to enter into residential tenancy agreements that are outside the scope of a housing assistance program, and potentially outside the scope of the Commissioner’s functions.
78.In exercising its functions under the RT Act, the Tribunal must be cautious of intervening in the public policy, particularly when doing so affects resource allocation, which is the Commissioner’s function. The Tribunal must also, in exercising its jurisdiction under the RT Act, not traverse into the area of merits review, which are matters dealt with under different legislative principles in the Tribunal’s administrative review jurisdiction.
79.However, while I accepted the Commissioner’s concerns were not misplaced, I was not persuaded that they were decisive, or even particularly persuasive, when considering whether to exercise my discretion under Division 6.5A in this case.
80.First, for the reasons set out above, I was satisfied that the Legislature intended that applicants who are residing in public tenancies be given all the rights in relation to those tenancies established by the RT Act. If I treated the occupant of a public housing property differently to a private tenant, I would be acting contrary to the clearly expressed intention of the legislature.
81.Secondly, while I accepted that ordering the Commissioner to enter into a new lease is a somewhat novel power, I did not accept that the order would be impossible to give effect to, even having regard to the HA Act and the Program.
82.A review of the Program indicates that the Commissioner has the discretion, under clause 10 of the Program, to waive most eligibility requirements for housing assistance in clause 9 of the Program in a case of hardship. The eligibility criteria for the provision of “rental housing assistance”, set out in clause 18, may also be waived in “in extreme circumstances” under clause 19.
83.Clause 13 of the Program requires the Commissioner to determine “needs categories and the criteria for allocating needs categories to eligible applicants.” The Commissioner must allocate a needs category to the application of an eligible candidate. An applicant’s needs category will determine their priority on the waiting list for housing. Clauses 14 and 15 then deal with the reassessment of an applicant’s needs category. Eligible applicants are placed on a register in accordance with clause 16, and their name may be removed in some of the circumstances in clause 17. However:
(a)clause 19(1) then provides that the Commissioner may, in his “absolute discretion…in extreme circumstances … provide assistance earlier” than would otherwise have been provided if assessed under the needs category and waiting list; and
(b)clause 19(2) provides that:
despite anything else in the Program, in the event of a tenancy breakdown, the housing commissioner, in his or her absolute discretion, may provide the dwelling relating to the tenancy or some other available dwelling to the remaining one or more occupants (approved by the commissioner) of the dwelling.
For the purpose of clause 19(2), a ‘tenancy breakdown’ includes where a tenant is legally unable to occupy the dwelling.[15]
[15] Clause 19(3)
84.In other words, notwithstanding the various eligibility requirements in the Program, the Commissioner has an ‘absolute discretion’ to provide housing assistance in extreme circumstances or where there is a tenancy breakdown. A domestic violence situation may well fall within these circumstances. A lawful order of the Tribunal may well too (were an alternative form of authority needed to give effect to such an order, although it is not).
85.That said, there could be little doubt that, by operation of an order under Division 6.5A, the applicant gains a relative benefit, being that she is afforded public housing without the need for:
(a)consideration of her eligibility generally and specifically in relation to rental assistance;
(b)an assessment of her ‘needs category’ under clause 13 of the Program, which determines her relative priority for housing; and
(c)waiting on the ‘waiting list’ effectively established by Clause 18(3).
86.I accepted that these facts may result in inequities in the provision of housing assistance assets in some circumstances, but those perceived inequities must be viewed in the context of the purpose of Division 6.5A as a whole.
87.Division 6.5A of the RT Act is intended to enable persons facing family violence to more easily leave the relationship. One of the key impediments to a victim of domestic violence leaving is concern about housing – particularly where that person has children, pets, a limited income, or some other reason why finding alternative accommodation, other than the family home, is challenging. Division 6.5A provides a way to ameliorate these concerns, by making it easier for victims (or alleged victims) of domestic violence to continue their existing living arrangements, thereby providing a measure or security and stability to their family. It recognises that the protected person is, in fact, already resident in the property, that the other party is not a resident (and cannot be a resident while the order is in effect) and simply provides a mechanism for that arrangement to continue.
88.Perhaps in a given case an order may affect another person on the ‘waiting list’, but there was no such evidence in this case. At its highest, the flow-on effect for the waiting list is that the second respondent may need to be re-housed. However, given the clear intention of the Legislature that this scheme apply to public housing tenants, and the circumstances of the applicant, that consideration was not sufficiently persuasive to cause me to not exercise my discretion in this case.
The second respondent
89.The second respondent’s position in these proceedings was, first, that he did not oppose the application and, second, that section 85(2)(b) of the RT Act prohibits the Tribunal from considering his interests anyway. It is to this latter assertion that I now turn.
90.The language of section 85B(2)(b) is quite extraordinary. Read plainly, it expressly prohibits the Tribunal from having regard to the interests of the second respondent when considering whether it is “reasonable to make the order”, having regard to the interests of “other tenants”. The respondent will invariably be ‘another tenant’. No other provision in Division 6.5A requires consideration of the interests of the second respondent, or other tenants. As such, this section arguably abrogates the rights of a respondent to these kinds of proceedings to a fair hearing and natural justice before the Tribunal.
91.At the time of delivering my oral decision, I was satisfied that this reading was correct. However, in preparing these reasons, I have come to the view that there is an alternative reading of this provision. That is, it is possible to read the provision as effectively saying:
… it is reasonable to make the order, taking into consideration the interests of any other tenants (in addition to the respondent) under the existing residential tenancy agreement and, in particular, whether the other tenants support the protected person’s application; (words in bold added by Tribunal)
92.This reading assumes that, notwithstanding that there is no other provision in section 85B that requires the Tribunal to consider a respondent’s interests, the general principles of natural justice, the Tribunal’s statutory obligation to afford parties procedural fairness[16], and the discretionary nature of an order made under Division 6.5A, mean that those interests must of course be considered – and the purpose of section 85B(2)(b) is to make the clear that the interests of any other tenant must be considered as well.
[16] ACT Civil and Administrative Tribunal Act section7(b)
93.Granted, the substitution of the word ‘other than’ with ‘in addition to’ is a rather dramatic exercise in interpretation. The words have effectively opposite meanings. There is much authority on the implication or substitution of words for statutory interpretation, and this decision is not the forum to consider those. However the Legislation Act makes clear both that a meaning that would best achieve the purpose of the Act is to be preferred over any other interpretation[17], and that in working out the meaning of an Act, which includes displacing the apparent meaning of the Act[18], material not forming part of the Act can be considered.[19]
[17] Section 139(1) of the Legislation Act
[18] Section 138(b) of the Legislation Act
[19] Section 141(1) of the Legislation Act
94.So what was the intention of the Legislature? The evidence is conflicting.
95.On the one hand, the Explanatory Statement suggests that it was the intention of the drafters that all ‘parties’ (a term defined to include the respondent) be given an opportunity to respond before any order is made:
New section 85B sets out the matters that must be considered by the ACAT in deciding whether to grant an order under section 85A. This provision makes it clear that the ACAT must consider the interests of all of the relevant parties in deciding an application.
and
The new section 85A(3)(c) requires that the respondent is made a party to the application and thereby has an opportunity to oppose it and flag any undue hardship they may suffer if the residential tenancy agreement is terminated by the ACAT.
96.Similar sentiments were expressed, albeit somewhat more ambiguously, in the Attorney-General’s Second Reading speech:
For the ACAT to grant either the order terminating the existing agreement or the order requiring the lessor to enter into a new agreement, it must be satisfied that the order is reasonable in light of the length of the protection order, the remaining term of the lease and the interests of other tenants and take into account hardship the lessor would suffer as a result of the order and the protected person's ability to comply with the terms of the lease.[20]
[20] at 1876
97.There was no elaboration in the second reading speech of who the ‘other tenants’ might include, but the term would generally, of course, include the respondent, who must be a tenant in order for an application to be made under Division 6.5A.
98.Notably, however, in latter discussion[21], the Attorney General made the following further comments:
I turn to the issue of the acquisition of property matter that Ms Lawder raised in her comments in relation to the bill. I would simply draw her attention to the response the government has provided through me to the scrutiny of bills committee on this matter. That response makes it clear that, in seeking an ACAT decision to deal with, effectively, a right to exclusive possession of a rental premises, the ACAT is merely dealing with the follow-on consequences of a domestic violence order that has already been made by the Magistrates Court. The Magistrates Court has said that one party cannot reside with or be in the presence of another party, including within the domestic dwelling, and the ACAT is simply dealing with the follow-on consequences of that decision which has been made, effectively, already by a court. It is worth, I think, drawing that to the attention of Ms Lawder.
[21] See Legislation Act section 142 and item 6, table 142
99.Similar comments are made in the Explanatory Memorandum at page 5.
100.Viewed through the prism of these latter comments of the Attorney-General, it may have been the view of the Legislature that the respondent’s right to a hearing about the circumstances of the protection order is protected through the right to be heard in the Magistrates Court in relation to the protection order – with an order under Division 6.5A as the possible consequence of a protection order being granted. Perhaps the Legislature intended that Tribunal “merely deal with the follow on consequences” of an order prohibiting one party from living in a specified premises, such that the Tribunal’s role is simply to determine whether the lessor and any other affected parties have any objections to the lease being amended to reflect that reality? In such circumstances, the wording in section 85B(2)(b) may have been intended to prevent a potential re-hearing of the facts that sit behind the protection order in the Tribunal.
101.The practical difficulty with this approach is that an interim protection order may be obtained by an applicant on an ex parte basis – that is, the Magistrates Court may make such an order without hearing from the respondent. It is conceivable that Division 6.5A would enable the Tribunal to evict a person into homelessness in circumstances where they not had a hearing in the Magistrates Court in relation to the protection order, and where their interests are unable to be considered during the hearing in the Tribunal in relation to the eviction. Whether this would actually happen in practice is another question. The Tribunal must, after all, consider the length of the protection order in considering whether to make an order under Division 6.5A, so the fact an order is merely interim may be taken into account by the Tribunal before any order is made. But the possibility is certainly there, and the mere possibility that a person could be evicted into homelessness, without a hearing, is one reason to prefer the alternative, albeit more tortuous, interpretation of section 85B(2)(b).
102.Which leads me to another well-known and accepted common law presumption – the principle of legality. This principle holds that the Legislature must use clear statutory language if it intends to restrict fundamental rights or depart from general principles of law.[22] Arguably, section 85B(2)(b) is not so ‘unmistakable or unambiguous’[23], no least of all because the prohibition on considering the respondent’s interests is included in parentheses, which are generally used to give greater detail or information, rather than simply make propositions.
[22] See discussion in Pearce and Geddes, 8th edition, 5.3
[23] Coco v R (1994) 179 CLR 427,437-8
103.Fortunately, I did not need to make a final decision on this point, as the respondent ultimately did not oppose the making of the order sought. Still, these issues will likely need to be considered in another proceedings, if not clarified by Legislative amendment in the meantime.
………………………………..
Senior Member H Robinson
HEARING DETAILS
FILE NUMBER:
RT 732/2017
PARTIES, APPLICANT:
Applicant
PARTIES, 1st RESPONDENT:
Commissioner for Social Housing
PARTIES, 2nd Respondent
2nd Respondent
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, 1st RESPONDENT
N/A
COUNSEL APPEARING, 2nd RESPONDNT
N/A
SOLICITORS FOR APPLICANT
Tenants Union ACT
SOLICITORS FOR 1st RESPONDENT
ACT Government Solicitor
SOLICITORS FOR 2nd RESPONDENT
N/A
TRIBUNAL MEMBERS:
Senior Member H Robinson
DATES OF HEARING:
8 & 18 September 2017
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