Lynwood v Coffs Harbour and District Local Aboriginal Land Council

Case •

[2017] NSWSC 424

•

19 April 2017

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Lynwood v Coffs Harbour and District Local Aboriginal Land Council [2017] NSWSC 424
Hearing dates: 12 April 2017
Date of orders: 19 April 2017
Decision date: 19 April 2017
Jurisdiction:Common Law
Before: Adamson J
Decision:

See paragraph [66].

Catchwords:

STATUTORY INTERPRETATION – appeal from NSW Civil and Administrative Tribunal – termination of social housing tenancy agreements – statutory construction of ss 85, 137, 155 and 154E of Residential Tenancies Act 2010 (NSW)

 

WORDS AND PHRASES – whether Tribunal is “considering whether to make a termination order” only when exercising a discretionary power to make a termination order, or also when the Tribunal is obliged to make an order

 

STATUTORY INTERPRETATION – whether inconsistency between s 154E and s 85 – relevant principles – inconsistency found – inconsistency resolved by s 137 in favour of s 154E – Tribunal required to have regard to the matters in s 154E when considering whether to terminate social housing tenancy agreement under s 85

ADMINISTRATIVE LAW – error of law as Tribunal failed to consider mandatory relevant considerations in s 154E – decision set aside and matter remitted to Tribunal to be determined according to law
Legislation Cited:

The Commonwealth Constitution, s 109

Civil and Administrative Tribunal Act 2013 (NSW), s 83
Interpretation Act 1987 (NSW), ss 33, 34(2)(a), 35(2), 35(5)
Residential Tenancies Act 1987 (NSW)
Residential Tenancies Act 2010 (NSW) ss 3, 81, 82, 82(1)(c), 83, 84, 85, 86, 87, 90, 91, 92, 93, 94, 95, 136, 137, 140, 143, 147, 147(1), 147(2),148, 151, s 152 (repealed), 153(1)(a), 153, 153(1)(b), 154, 154A, 154(1), 154B, 154C, 154D, 154E, 154E(1)(d), 154E(1)(e), 154F, 154G, 155
Residential Tenancies Amendment (Social Housing) Act 1998 (NSW)
Residential Tenancies Amendment (Social Housing) Act 2005 (NSW)
Residential Tenancies and Housing Legislation Amendment (Public Housing—Antisocial Behaviour) Act 2015 (NSW)
Supreme Court Act 1970 (NSW), s 69
Cases Cited: Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59
Bell Group NV (in Liq) v Western Australia; WA Glendinning & Associates Pty Ltd v Same; Maranoa Transport Pty Ltd (in liq) v Same (2016) 90 ALJR 655; [2016] HCA 21
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Odzic v Commonwealth of Australia [2017] FCAFC 28
Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Telstra Corporation Ltd v Worthing; Attorney-General for the Commonwealth of Australia v Telstra Corporation Ltd (1999) 197 CLR 61; [1999] HCA 12
The State of Victoria v The Commonwealth (1937) 58 CLR 618
Texts Cited: New South Wales Legislative Assembly Parliamentary Debates (Hansard), 5 August 2015
Category:Principal judgment
Parties: Candy Lynwood (First Plaintiff)
Mary Flanders (Second Plaintiff)
Stella Roberts (Third Plaintiff)
Coffs Harbour and District Local Aboriginal Land Council (Defendant)
Representation:

Counsel:
P Batley (Plaintiffs)
D C Price (Defendant)

  Solicitors:
Tenants’ Union of New South Wales (Plaintiff)
Turks Legal (Defendant)
File Number(s): 2017/00100814
 Decision under appeal 
Court or tribunal:
Civil and Administrative Tribunal of New South Wales Appeal Panel
Jurisdiction:
Consumer and Commercial Division
Citation:
[2017] NSWCATAP 62
Date of Decision:
24 March 2017
Before:
Hennessy LCM, Deputy President; K Rosser, Principal Member
File Number(s):
AP 16/53526; AP 16/53550; AP 16/53538

Judgment

Introduction

  1. By summons filed on 3 April 2017, Candy Lynwood, Mary Flanders and Stella Roberts (the plaintiffs) seek leave to appeal against decisions of the Appeal Panel of the Civil and Administrative Tribunal of New South Wales (the Tribunal) in proceedings in its Consumer and Commercial Division, exercising jurisdiction under the Residential Tenancies Act 2010 (NSW) (the Act). The Appeal Panel dismissed the plaintiffs’ internal appeal from termination orders made by the Tribunal on the application of the Coffs Harbour and District Local Aboriginal Land Council (the defendant), which terminated the tenancies of which the defendant was the landlord. Since the termination orders were made, the plaintiffs have remained in occupation of their premises. At the conclusion of the hearing before me on 12 April 2017, the defendant undertook not to disturb the plaintiffs’ possession of the premises pending my determination of these proceedings.

  2. In summary, Mr Batley, who appeared on behalf of the plaintiffs, submitted that the Appeal Panel ought to have set aside the termination orders made by the Tribunal because the Tribunal had not complied with the requirements of the Act as they applied to social housing tenancy agreements. Mr Price, who appeared on behalf of the defendant, submitted that the termination order was in accordance with the requirements of s 85 of the Act which obliged the Tribunal to make a termination order if a tenant had failed to vacate premises after a 90-day notice had been served. It submitted that the leave to appeal should be refused because the wording of s 85 plainly excluded the plaintiffs’ challenges.

The facts

  1. For the purposes of these proceedings, the parties have agreed that the following facts were accepted by the parties or found by the Tribunal.

  2. The defendant is a "social housing provider" within the definition in s 136 of the Act. Each of the plaintiffs had been a tenant of "social housing premises" at Coffs Harbour pursuant to a "social housing tenancy agreement" as defined by s 136 of the Act. Each "social housing tenancy agreement" with Ms Lynwood and Ms Flanders was originally a "fixed term agreement", as defined in s 3 of the Act. Upon the expiry of the fixed term agreements, Ms Lynwood and Ms Flanders remained in occupation of the premises pursuant to a "periodic agreement" as defined in s 3 of the Act. The "social housing tenancy agreement" to which Ms Roberts was a party was not a "fixed term agreement" and, consequently, was a "periodic agreement" as defined in s 3 of the Act.

  3. None of the plaintiffs had been in continual occupation of the same residential premises for 20 years or more.

  4. On 23 May 2016, the defendant issued a notice to each of the plaintiffs, which was received by each of them, terminating each "periodic agreement" pursuant to s 85 of the Act. The notices, which did not specify any ground for the termination, required each plaintiff to vacate her "social housing premises" on 26 August 2016, being a date more than 90 days after the notice was issued. Pursuant to s 82(1)(c) of the Act, a notice issued pursuant to s 85 does not need to specify a ground for the termination of a "periodic agreement". Each plaintiff remained in occupation of her premises, notwithstanding the service of the notices.

  5. The defendant sought from the Tribunal a termination order pursuant to s 83 of the Act in respect of each periodic agreement and an order for possession for each of the "social housing premises". On 25 November 2016 the Tribunal granted the relief sought by the defendant. The plaintiffs appealed to the Appeal Panel, which dismissed the appeals on 24 March 2017: Lynwood v Coffs Harbour and District Local Aboriginal Land Council [2017] NSWCATAP 62.

  6. As the plaintiffs’ arguments depend on a textual analysis of a number of provisions of the Act, it is necessary to consider the structure and legislative history of the Act, as well as the provisions referred to.

The relevant legislation

The legislative history

  1. The Act, which commenced on 31 January 2011, replaced the Residential Tenancies Act 1987 (NSW) (the 1987 Act). The 1987 Act was relevantly amended by the Residential Tenancies Amendment (Social Housing) Act 1998 (NSW) (the 1998 Amendment Act) and the Residential Tenancies Amendment (Social Housing) Act 2005 (NSW) (the 2005 Amendment Act). The relevance of the legislative history will be considered in more detail below.

The Act: general structure

  1. The Act has twelve parts. Parts 1-6 and 8-12 are of general application to all tenancies, including social housing tenancy agreements. Part 5 deals with termination of residential tenancy agreements and applies to all residential tenancy agreements, including social housing tenancy agreements. Part 7 of the Act applies only to social housing tenancy agreements. It inserts additional terms into social housing tenancy agreements and makes provision for additional rights and obligations of social housing providers and social housing tenants.

  2. These proceedings largely turn on the proper construction of the following four provisions of the Act: ss 85, 137, 154E and 155, which are set out in full below. Section 85 is contained within Part 5 of the Act. Sections 137, 154E and 155 are contained in Part 7 of the Act.

Part 5 of the Act: termination of residential tenancy agreements

  1. Section 81 specifies the circumstances in which a residential tenancy agreement comes to an end. It relevantly provides:

(1) Termination only as set out in Act. A residential tenancy agreement terminates only in the circumstances set out in this Act.

. . .

(3) Termination by order of Tribunal. A residential tenancy agreement terminates if the Tribunal makes an order terminating the agreement under this Act.

. . .

  1. Section 84 of the Act provides for termination of fixed term tenancies, as follows:

“84 End of residential tenancy agreement at end of fixed term tenancy

(1) A landlord may, at any time before the end of the fixed term of a fixed term agreement, give a termination notice for the agreement that is to take effect on or after the end of the fixed term.

(2) The termination notice must specify a termination date that is on or after the end of the fixed term and not earlier than 30 days after the day on which the notice is given.

(3) The Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice.

(4) This section does not apply to a residential tenancy agreement if the tenant has been in continual possession of the same residential premises for a period of 20 years or more and the fixed term of the original fixed term agreement has ended.”

  1. Section 85 of the Act provides for termination of periodic tenancies as follows:

“85   Termination of periodic tenancies

(1) A landlord may, at any time, give a termination notice for a periodic agreement.

(2) The termination notice must specify a termination date that is not earlier than 90 days after the day on which the notice is given.

(3) The Tribunal must, on application by a landlord, make a termination order if it is satisfied that a termination notice was given in accordance with this section and the tenant has not vacated the premises as required by the notice.

(4) This section does not apply to a residential tenancy agreement if the tenant has been in continual possession of the same residential premises for a period of 20 years or more.”

  1. Sections 84 and 85, which, in terms, impose a duty on the Tribunal (“the Tribunal must”), are to be contrasted with several other provisions in Part 5, which confer a discretion on the Tribunal ("the Tribunal may") to terminate a residential tenancy agreement on particular grounds. The latter category includes s 86 (sale of premises); s 87 (breach of agreement); s 90 (serious damage or injury by tenant or other occupant); s 91 (use of premises for illegal purposes); s 92 (threat, abuse, intimidation or harassment); s 93 (hardship to landlord); s 94 (termination of long term tenancies); and s 95 (occupants remaining in residential premises).

Part 7 of the Act: social housing agreements

  1. Part 7 of the Act is entitled: “Social housing tenancy agreements”. Division 1, headed “Preliminary”, contains s 137, which provides:

“In the event of any inconsistency between a provision of this Part and any other provision of this Act or the regulations, this Part prevails to the extent of the inconsistency.”

  1. Division 5 of Part 7 is entitled “Termination of social housing tenancy agreements” and contains ss 143-155. Subdivision 1, entitled “Eligibility ground” contains ss 143-147. Subdivision 2, entitled “Alternative premises ground” contains ss 148-151. Subdivision 3, entitled “Behaviour ground” contains ss 153 and 154. Subdivision 4, entitled “Breach of agreement” contains ss 154A-154F. Subdivision 5, entitled “Miscellaneous”, contains ss 154G and 155.

  2. Part 7 contains additional grounds upon which a social housing provider may apply to the Tribunal for an order terminating a social housing tenancy agreement. These include: s 143 (on the ground that the tenant is not eligible for social housing); s 148 (on the ground that the tenant has been offered alternative social housing premises); s 153(1)(a) (on the ground that the tenant has failed or refused to enter an acceptable behaviour agreement); and s 153(1)(b) (on the ground that a tenant has seriously or persistently breached an acceptable behaviour agreement).

  3. Section 154B requires the Tribunal, when dealing with an application under s 87 for termination of a social housing tenancy agreement on the ground of breach, to consider breaches, or a series of breaches, of prior social housing tenancy agreements and whether a series of breaches by the tenant justifies termination. Section 154C makes provision for the use of "strike notices" to record alleged breaches of social housing tenancy agreements where the social housing provider considers that the breach of itself does not justify terminating the social housing tenancy agreement, with a third strike triggering the right to issue a s 87 notice for a series of breaches (as contemplated by s 154B).

  4. A number of provisions of Part 7 impose, in terms ("the Tribunal must"), an obligation on the Tribunal to make a termination order. These include: s 147 (termination on the eligibility ground); and s 151 (termination on the alternative premises ground).

  5. Section 154E, which, as referred to above, is contained in Subdivision 4, provides:

“154E   Exercise of discretion to make termination order

(1) In considering whether to make a termination order for a social housing tenancy agreement, the Tribunal must have regard to the following:

(a) the effect the tenancy has had on neighbouring residents or other persons,

(b) the likelihood that neighbouring residents or other persons will suffer serious adverse effects in the future if the tenancy is not terminated,

(c) the landlord's responsibility to its other tenants,

(d) the history of the current tenancy and any prior tenancy arising under a social housing tenancy agreement with the same or a different landlord,

(e) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal.

(2) This section does not limit any other matter that may be considered by the Tribunal under this Act.”

  1. The heading of Subdivision 4, “Breach of agreement”, suggests that the operation of s 154E is confined to applications for termination of social housing tenancy agreements on the ground of breach. However, s 154D, which is also in Subdivision 4, contains grounds for termination that do not rely on breach but refer to conduct by tenants or persons occupying premises or jointly occupying premises while not a tenant. This indicates that the heading of the subdivision is not apposite for all of the sections within it. The relevance of the heading will be further addressed in the context of the legislative history.

  2. Some of the provisions of the Act contain both mandatory and discretionary provisions within them. For example, s 147 provides:

“147   Termination by Tribunal on eligibility ground

(1) The Tribunal must, on application by the landlord under a social housing tenancy agreement, terminate the agreement on the eligibility ground if it is satisfied that:

(a) any notice required to be given, or any review required to be carried out, was given or carried out in accordance with this Subdivision before giving the termination notice on the eligibility ground, and

(b) a termination notice has been given in accordance with this Subdivision, and

(c) the landlord has determined, as a result of an assessment under this Subdivision, that the tenant is not eligible to reside in the class of social housing premises to which the agreement applies.

(2) In deciding whether or not to make an order, the Tribunal is not to review the eligibility of the tenant to reside in the class of social housing premises to which the agreement applies.”

[Emphasis added.]

  1. The obligation imposed on the Tribunal by s 147(1) to terminate the agreement must be read subject to its obligation to consider the mandatory relevant considerations set out in s 147(2). Thus, although the words of s 147(1) are expressed in terms of obligation, the Tribunal has a choice whether to make the termination order by reason of the terms of s 147(2). Such a process of construction is an orthodox application of the principles enunciated in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at 381-382 [69]-[71] per McHugh, Gummow, Kirby and Hayne JJ, whereby a Court is obliged to resolve apparent conflict between, and within, provisions and to attempt to give provisions harmonious operation by discerning which provision, or part of a provision, is to have priority.

  2. Section 155 of the Act provides:

“Operation of Division

This Division is in addition to, and does not limit, any other right conferred on a landlord of a social housing tenancy agreement as a landlord under any other provision of this Act.”

The construction of ss 85, 137, 154E and 155

The ambit of the dispute

  1. As referred to above, the principal issue is whether, as the plaintiffs contended, the Tribunal’s duty in s 85 is to be qualified by its obligation to have regard to the mandatory relevant considerations listed in s 154E; or whether, as the defendant contended, s 85 applies in terms and is not qualified in any way by s 154E.

  2. The plaintiffs’ argument rests on the proposition that there is an inconsistency between s 85 and s 154E, which, as required by s 137, is to be resolved in favour of s 154E. They contended that s 155 did not resolve the inconsistency because s 155 is concerned solely with landlord’s rights, rather than duties imposed on the Tribunal, with which ss 85 and 154E are concerned.

  3. The defendant’s argument on inconsistency can be shortly stated. The defendant submitted that there is no inconsistency because s 85 imposes a duty on the Tribunal and the wording of s 154E makes it clear that it is only intended to apply to discretions conferred on the Tribunal.

  4. For the reasons given below, which largely adopt the plaintiffs’ submissions, I consider there to be an inconsistency between ss 154E and 85 which is to be resolved by s 137 in favour of s 154E. The effect of that resolution is dealt with further below.

The meaning of the word “considering” in s 154E

  1. The first question that arises is whether the Tribunal ought be regarded as “considering whether to make a termination order” in circumstances where, as in s 85, it has a duty to make such an order in certain circumstances; or, only, where it has a discretion whether to make such an order.

  2. The plaintiff argued that 154E is engaged whenever the Tribunal is "considering whether to make a termination order" and submitted that such a process is not confined to the exercise of a discretion but occurs when the Tribunal is performing the process of evaluation and decision-making when it is determining an application for termination. They contended that a determination under s 85 is arrived at by considering whether to make an order for termination. Therefore, s 154E applies.

  3. The defendant argued that the word “considering” in s 154E contains the necessary implication that the Tribunal is exercising a discretion. It submitted that there was nothing to “consider” in s 85, since the Tribunal’s duty to make a termination order was mandated once it was satisfied that the notice had been given in accordance with the section. The defendant submitted that no value judgment, or discretion, was involved in s 85 and that, therefore, the Tribunal could not be said to be engaging in any “consideration” whether to make a termination order. It cited authority for the uncontroversial proposition that s 85 does not involve the exercise of discretion: Odzic v Commonwealth of Australia [2017] FCAFC 28 at [97], [104] and [206] per Kenny, Robertson and Griffiths JJ.

  1. I note that the heading of s 154E is “Exercise of discretion to make a termination order”. However, the heading is not part of the Act (s 35(2) of the Interpretation Act 1987 (NSW)). Although it can be used as extrinsic evidence (ss 34(2)(a) and 35(5) of the Interpretation Act), it cannot override the express words of the section itself.

  2. Had Parliament used the words in the heading, “Exercise of a discretion to make a termination order” in the words of s 154E itself, one could be reasonably confident that Parliament intended to draw the distinction upon which the defendant relied. However, in my view, the word “considering” is broader than the term “exercising a discretion” and is apt to include any exercise of judgment, whether or not a discretion is to be exercised and whether or not the judgment requires any evaluation as such.

Whether the Tribunal can be said to be “considering whether to make a termination order” when s 85 is invoked

  1. In order to work out whether it is obliged to make a termination order under s 85, the Tribunal must consider at least the following three matters: whether the termination date specified in the termination notice is not earlier than 90 days after the day on which the notice was given; whether the tenant has not vacated the premises as required by the notice; and whether the tenant has been in continual possession of the same residential premises for a period of 20 years or more.

  2. Although the task required of the Tribunal by s 85 might be regarded as relatively mechanical, the Tribunal is nonetheless required to make a judgment as to its power (and obligation) to make a termination order under the section. The forming of this judgment is a condition precedent to the making of a termination order, which is mandated if the condition is fulfilled, and is, itself, subject to review, whether as a jurisdictional fact or otherwise: Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391-392 per Dixon J.

  3. In a case such as the present which concerns a social housing tenancy agreement, the Tribunal, when deciding whether the three matters referred to above have been established, is “considering whether to make a termination order for a social housing tenancy agreement”. Accordingly, in my view, s 154E applies whenever the Tribunal is called upon to make a determination whether or not to terminate a social housing tenancy agreement, including under s 85. It is not confined to cases where the Tribunal is exercising a discretion to make a termination order.

The application of s 137 in the event of an inconsistency

  1. The further question that arises is whether there is an inconsistency in either of the two ways for which the plaintiffs contended such as would make s 137 applicable.

  2. Sections 85 and 154E are contained within a single piece of legislation. The Act itself contemplates that there may be inconsistency between Part 7 and the rest of the Act and has provided in s 137 that any inconsistency between Part 7 (in which s 154E is to be found) and the rest of the Act (including s 85) is to be resolved by giving precedence to Part 7. Section 137 is, to that extent, to be contrasted with s 109 of the Commonwealth Constitution which applies only to inconsistency in two different laws: a Federal law and a State law. Notwithstanding this difference, the authorities on s 109 in the Federal context are of assistance to determine whether there is an inconsistency between ss 85 and 154E. The authorities on s 109 were recently summarised in Bell Group NV (in Liq) v Western Australia; WA Glendinning & Associates Pty Ltd v Same; Maranoa Transport Pty Ltd (in liq) v Same (2016) 90 ALJR 655; [2016] HCA 21 at [50]-[52] (French CJ, Kiefel, Bell, Keane, Nettle and Gordon JJ).

Whether there is an inconsistency between ss 85 and 154E

  1. The starting point to ascertain whether there is a direct inconsistency is to analyse the two provisions in terms of rights, powers, duties and obligations. Where “one law requires what the other forbids”, there is a direct inconsistency: Telstra Corporation Ltd v Worthing; Attorney-General for the Commonwealth of Australia v Telstra Corporation Ltd (1999) 197 CLR 61; [1999] HCA 12 at [27].

  2. If one analyses s 85 in this way, it can be seen that Parliament is directing the Tribunal that the only matters that are relevant to its making a termination order under this section are: whether a notice has been given; whether the tenant has failed to vacate the premises and whether the tenant has been in continual possession of the same premises for 20 years or more. Section 85 imposes an obligation on the Tribunal to make a termination order if it is satisfied of those three matters.

  3. If one analyses s 154E in this way, it can be seen that Parliament is directing the Tribunal that it is not entitled to make a termination order unless it has first considered each of the matters in s 154E(1)(a)-(e).

  4. On this analysis, there is a direct inconsistency between ss 85 and 154E.

  5. I also consider there to be an inconsistency, in the sense described in The State of Victoria v The Commonwealth (1937) 58 CLR 618, at 630 where Dixon J summarised the effect of s 109 as follows:

“When a State law, if valid, would alter, impair or detract from the operation of a law of the Commonwealth Parliament, then to that extent it is invalid.”

  1. In the present case, it would, in my view, alter, impair and detract from the Tribunal’s obligation to consider the matters in s 154E when considering whether to terminate a social housing agreement, if it was obliged to terminate the social housing agreement in any event under s 85 if the matters referred to in that section had been established (the giving of the notice; the tenant’s failure to vacate and the tenant’s continuous possession being shorter than 20 years).

The effect of s 155

  1. It is also necessary to consider whether s 155 affects this conclusion. Section 155 provides that Division 5 of Part 7 “is in addition to, and does not limit any other right conferred on a landlord of a social housing tenancy agreement as a landlord under any other provision” of the Act. It is difficult to see how s 137 sits with s 155 since s 137 gives precedence to Part 7, whereas s 155 would appear to make Division 5 of Part 7 cumulative on other rights in the Act. In my view s 155 is not intended to override the primacy given by s 137, which is expressed in unqualified terms, to Part 7 over the other parts of the Act.

  2. The first observation that may be made is that s 154E relates to the matters to which the Tribunal must have regard before making a termination order. Section 154E therefore cannot be regarded as a “right conferred on a landlord”. It is also necessary to consider whether s 85 ought be construed as a “right conferred on a landlord”. The plaintiff argued the only right that is conferred on a landlord by s 85 is the right to serve a termination notice requiring vacation of the premises not earlier than 90 days from the date of the notice. Mr Batley contended that the duty imposed on the Tribunal by s 85 did not confer a correlative right on the landlord to obtain a termination order from the Tribunal once the termination notice had been served in accordance with s 85 and the tenant had failed to vacate the premises.

  3. I am not persuaded that s 85 ought be construed as conferring no rights on a landlord. If the Tribunal failed to comply with its obligation to make a termination order under s 85 with respect to a residential tenancy agreement that was not a social housing tenancy agreement, this Court could compel it to make such an order under s 69 of the Supreme Court Act 1970 (NSW). Such an order would be in the nature of mandamus and would require the Tribunal, as a statutory body, to carry out its statutory duty. In my view, the effect of s 154E on s 85 is to add to the matters which the Tribunal is obliged to consider and to import a discretion into s 85 in so far as it applies to social housing tenancy agreements (which is absent when it applies to other residential tenancy agreements). As s 154E does not affect the right of a landlord to give a notice under s 85, s 155 does not operate to undermine the primacy given by s 137 to s 154E over s 85.

The resolution of the inconsistency

  1. The conclusion that ss 85 and 154E are inconsistent requires consideration of how the inconsistency is to be resolved. In my view, a harmonious reading of the provisions, which accords priority to s 154E, produces the result that the Tribunal, when considering whether to terminate a social housing agreement pursuant to s 85, is obliged to consider not only whether the three matters in s 85 have been established, but also each of the matters listed in s 154E. If, after having had regard to those matters, the Tribunal considers that the social housing agreement ought be terminated, then, as long as the matters referred to in s 85 have been established, then it will proceed to terminate it. If, however, the Tribunal, having regard to the matters in s 154E, does not consider that the social housing agreement ought be terminated, it will decline to do so, notwithstanding that the matters referred to in s 85 have been established by the social housing provider.

The legislative history of the Act and the 1987 Act

  1. The conclusions I have reached about the interpretation of ss 85, 154E and 155 have been arrived at on the basis of a reading of the Act as a whole. However, the plaintiffs contended that this construction was supported by the legislative history of the Act and its predecessor, which should also be addressed.

The legislative history of s 154E

  1. Section 154E was inserted as one of a number of changes to Part 7 effected by the Residential Tenancies and Housing Legislation Amendment (Public Housing—Antisocial Behaviour) Act 2015 (NSW) (the 2015 Amendment Act). Section 154E replaced s 152, which was repealed by the 2015 Amendment Act.

  2. Before its repeal, s 152 provided:

“152   Termination by Tribunal of social housing tenancy agreements for breach

(1) In determining whether to terminate a social housing tenancy agreement on the ground of a breach by the tenant, the Tribunal is to have regard to such of the following matters as may be relevant:

(a) any serious adverse effects the tenancy has had on neighbouring residents or other persons,

(b) whether any breach of the agreement was a serious one, and whether, given the behaviour or likely behaviour of the tenant, a failure to terminate the agreement would subject, or continue to subject, neighbouring residents or any persons or property to unreasonable risk,

(c) the landlord's responsibility to its other tenants,

(d) whether the tenant, wilfully or otherwise, is or has been in breach of an order of the Tribunal,

(e) the history of the tenancy concerned, including any prior tenancy of the tenant arising under a social housing tenancy agreement.

(2) This section does not limit any other matters that may be considered by the Tribunal under any other provision of this Act.”

[Emphasis added.]

  1. A change in wording suggests that Parliament intended an actual change, to which effect ought be given: Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 per Gageler J at [42] - [44]. Accordingly, it ought be inferred that the removal of the words "on the grounds of breach by the tenant" was intended to have the effect that the obligation imposed on the Tribunal to consider certain mandatory relevant considerations under s 154E applied generally to applications for termination of a social housing tenancy agreement by a social housing provider and was not confined to such applications on the ground of breach. I note that there are several other applications for termination that could be made by a social housing provider which do not depend on breach. I accept that it is not necessary to give s 154E the broader meaning in order for it to have work to do.

  2. The 2015 Amendment Act was, relevantly, the latest development in the legislative history of making special provision for social housing tenants within general residential tenancy law. As referred to above, the predecessor to the Act was the 1987 Act, which, as originally enacted, did not make special provision for social housing tenants. Social housing was introduced into the 1987 Act by the 1998 Amendment Act. Further significant regulation of social housing was brought about by the 2005 Amendment Act.

  3. The Act retained the concepts and principles of the 1987 Act with some modifications. For present purposes, the most significant modification was the removal of discretion in the case of "no grounds" terminations of expiring fixed term agreements and of periodic agreements (ss 84 and 85 of the Act).

  4. The history of the social housing provisions shows a legislative concern to regulate behaviour of particular social housing tenants for the benefit of social housing tenants generally and the general community, as well as a concern for the security of tenure of social housing tenants. Part 7 addresses issues that are peculiar to social housing tenancy agreements and, in the case of behaviour of tenants that affects other tenants, strikes a balance between security of tenure and the protection of other tenants and the community at large. Examples of legislative mechanisms of this kind include acceptable behaviour agreements (in Division 2 of Part 7) and encouraging improved behaviour by having a three strike policy (as introduced by the 2015 Amendment Act).

  5. Part 7 also makes provision for addressing rental arrears and other debts by facilitating the use of repayment agreements (s 140), which balances the right of the landlord to have debts paid with the interest of the tenant in maintaining a social housing tenancy agreement.

  6. The extrinsic material for the 2015 Amendment Act, which inserted Subdivision 4 (ss 154A-154F) into Division 5 of Part 7, Division 5 of the Act, supports the conclusion that one of the purposes of the 2015 Amendment Act was to maintain the security of tenure of social housing tenants. In the Second Reading Speech, the Minister noted, "[e]victing tenants is a last resort" (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 5 August 2015, at 14).

  7. The Act applies different standards to the regulation and balancing of interests and rights of landlords and tenants in the context of social housing agreements, which operate in parallel to other residential tenancy agreements which are more closely aligned to the market economy. Thus, although the provisions of the rest of the Act apply to social housing agreements, they apply only to the extent of any inconsistency with Part 7 (s 137).

  8. I am bound by s 33 of the Interpretation Act to give preference to a construction of the Act which would promote the purpose or object of the Act over one that would not. It is not possible to identify a single purpose of the Act since it strikes a balance between the rights and obligations of landlords (including social housing providers) and tenants (including social housing tenants). However, the purpose of s 154E would appear to be to require the Tribunal to consider matters which include those pertaining to the individual tenant’s circumstances and conduct (in particular, s 154E(1)(d) and (e)), before terminating a social housing tenancy agreement, including a periodic tenancy.

Conclusion

  1. The Tribunal (both at first instance and in the Appeal Panel) considered itself both entitled, and obliged, to disregard the matters set out in s 154E, when making termination orders against the plaintiffs. For the reasons set out above, s 154E qualifies s 85 with respect to social housing tenancy agreements. The Tribunal is bound to have regard to the matters listed in s 154E when it is considering making a termination order under s 85. A failure to have regard to mandatory relevant considerations is an error of law: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40.

  2. In these circumstances, the Tribunal’s orders, including orders to terminate the residential tenancies agreements between the respective plaintiffs and the defendant, ought be set aside since the Tribunal’s decisions were not made in accordance with the Act.

Orders

  1. For the foregoing reasons, I make the following orders:

  1. Grant leave to the plaintiffs to appeal pursuant to s 83 of the Civil and Administrative Tribunal Act 2013 (NSW).

  2. Allow the appeal.

  3. Set aside the decisions of the Civil and Administrative Tribunal terminating the residential tenancy agreements between the respective plaintiffs and the defendant.

  4. Remit the matters to the Civil and Administrative Tribunal to be heard and determined according to law.

  5. Order the defendant to pay the plaintiffs’ costs of the proceedings.

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Decision last updated: 19 April 2017

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