(Residential Tenancies)

The case involves the Commissioner for Social Housing in the ACT and a tenant residing in a long-stay caravan park. The Commissioner sought to terminate the tenancy due to significant rent arrears, while the tenant resisted on the grounds of financial hardship and lack of alternative accommodation. The ACT Civil & Administrative Tribunal was tasked with deciding whether to grant the Commissioner's application for termination and possession. The key legal issue was whether the Tribunal had the authority to make conditional orders in relation to an occupancy agreement, akin to the conditional orders permissible under section 49(3) and (4) of the Residential Tenancies Act 1997 (RTA) for tenancies. The Commissioner argued that such conditional orders could not be made for occupancy agreements, relying on the principle of expressio unius est exclusio alterius.

The Tribunal found that the Commissioner's interpretation was flawed. It held that the power under section 83 of the RTA to make various orders in relation to occupancy agreements was broad enough to include the ability to make conditional orders. The Tribunal reasoned that the explicit powers granted for tenancies did not exclude similar powers for occupancy agreements. The Tribunal was influenced by its previous decisions and other jurisdictions' views on terminating social housing agreements, which considered factors such as financial hardship and the availability of low-income housing. The Tribunal concluded that the occupancy agreements in the caravan park, despite not being formally part of the Public Rental Housing Assistance Program, functioned similarly and were targeted at low-income individuals. Therefore, the Tribunal had the authority to make conditional orders to prevent the termination of the tenancy if the tenant complied with certain conditions, such as setting up a direct deduction from Centrelink for rent payments.

Consequently, the Tribunal dismissed the application for termination but imposed conditions that the tenant must set up a direct deduction from Centrelink for rent payments and maintain this arrangement to avoid further proceedings for termination. The tenant was also ordered to pay the weekly rent plus an additional amount towards the arrears. If the tenant failed to set up the direct deduction or cancelled it, the Commissioner could relist for termination.