The Tenant v Commissioner for Social Housing

[2016] ACAT 49

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

THE TENANT v COMMISSIONER FOR SOCIAL HOUSING (Appeal) [2016] ACAT 49

AA 21/2016

Catchwords:              APPEAL – residential tenancies dispute – decision of original tribunal to make a termination and possession order

Legislation cited:      ACT Civil and Administrative Tribunal Act 2008 ss 6, 7, 39, 82

Criminal Code 2002 s 712A
Human Rights Act 2004
Residential Tenancies Act 1997 ss 48, 83 standard clause 6, 70,73

Subordinate
Legislation:               Residential Tenancies Regulation 1998 ss 4A

Cases cited:               Acuthan v Coates (1986) 6 NSWLR 472

Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621
Chakravarty & Commissioner for ACT Revenue [2013] ACAT 11
Commissioner for Social Housing (ACT) v A [2015] ACAT 13
House v King (1936) 55 CLR 499
Law Society of the ACT & Treasury Directorate and NRMA Insurance [2013] ACAT 36
Legal Practitioner v Council of the Law Society (ACT) [2015] ACTSC 316
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Appeal Tribunal:                  Appeal President L. Crebbin

Date of Orders and Oral Reasons:   12 April 2016              

Date of Publication of Reasons:      24 May 2016

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

AA 21/2016

BETWEEN:

The Tenant

Appellant

AND:

Commissioner for Social Housing

Respondent

APPEAL TRIBUNAL:  Appeal President L Crebbin

DATE:  12 April 2016

ORDER

1.The orders made by the original tribunal on 11 March 2016 are confirmed.

2.The operation of this order is stayed until 11.00am on Tuesday 26 April 2016.

The Tribunal notes that order 2 is made to give the appellant an opportunity to consider an appeal of this decision.

.....................Signed.................

Appeal President L Crebbin

REASONS FOR DECISION

1.On 11 March 2016 a senior member of the ACT Civil and Administrative Tribunal (ACAT) made orders under section 48 of the Residential Tenancies Act 1997 (the RT Act) terminating a residential tenancies agreement between the appellant tenant (the tenant) and the Commissioner for Social Housing (the Commissioner). These orders are referred to in this decision as ‘the original orders’ and the decision of the senior member as ‘the original decision’.

2.The original orders provide that the agreement terminates at 5pm on 11 March 2016 and that the tenant is to vacate the rental premises on or before that time. The orders have effect as a warrant for eviction, but their operation is suspended for three weeks until 5.00 pm on Friday 1 April 2016.

3.Applications to appeal the original decision and to stay the operation of the original orders until the appeal was determined were filed on 23 March 2016. An amended application for appeal was filed on Friday, 1 April 2016.

4.On Monday, 4 April 2016 the operation of the original orders was stayed by consent until further order. Directions were made for each party to file and serve an outline of their submissions in relation to the appeal and the appeal was heard on Friday, 8 April 2016. My decision and oral reasons were pronounced in the tribunal on Tuesday, 12 April 2016. This is an edited version of my oral reasons for decision, kept in the present tense.

5.After considering the original decision and the parties’ written and oral submissions in relation to it, I have decided that the appeal must be dismissed and the order of the original tribunal confirmed. The stay of the operation of the original orders is lifted. This means that the Registrar will send the original orders to the police. Because the original orders take effect as a warrant for eviction, the orders authorise any police officer to take appropriate action to evict the tenant and everyone else on the premises on the giving of not less than two days’ notice. In accordance with section 4A of the Residential Tenancies Regulation 1998 appropriate action involves removing a person from the premises between the hours of 8am and 6pm from Monday to Thursday, (other than on a public holiday).

Identification of Participants in this Matter

6.I have decided, without hearing from the parties, not to use the names of the tenant, family members of the tenant or the neighbours who gave evidence before the original tribunal and to exclude other personal information that is not necessary for the decision. This is not, strictly speaking, a decision that involves the making of an order under section 39(2) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act). Such an order may make it difficult for the Commissioner’s staff, other government and community entities and clinicians that are involved with the family to fulfil their roles.

7.The reason for this approach is that the case involves a number of children and young people – both children of the tenant and of neighbouring families. It is an offence to publish information that identifies someone as a person who is or was a child or young person the subject of a childrens proceeding.[1] The phrase ‘childrens proceeding’ is broadly defined to include proceedings before the Childrens Court and also some reports about things that may lead to such proceedings. There is information before the tribunal the publication of which may constitute an offence. Even if it would not, there is personal information about the health and the welfare of children and other information that might lead to the stigmatization of children if made public as a result of the release of this decision. The names of the children and young people are not a relevant consideration in so far as the tribunal’s decision is concerned, but their circumstances are, and so their names and those of the adults involved in the proceedings as well as information about where they live are omitted from these reasons to provide a degree of protection. This approach is consistent with a number of international instruments and national and territory laws that deal with the privacy of children within the legal system.

[1] Section 712A, Criminal Code 2002

Principles that apply to appeals in ACAT

8.The amended application for appeal identified five grounds of appeal, each said to involve errors of law. The grounds are considered in detail below. The grounds are such that it was clear that the appeal had to be dealt with as a review of the original decision as provided for by section 82(b) of the ACAT Act.

9.The principles governing appeals in ACAT have been considered in a number of matters. While there has been some difference of approach,[2] the weight of authority favours the approach described by his Honour Justice Burns in the matter of Legal Practitioner v Council of the Law Society of the ACT [2015] ACTSC 316. When the appeal tribunal is conducting a review of an original decision, the principles it applies to the exercise of the appellate power are those used by appellate courts.

[2] See the discussion of this by Burns J, Legal Practitioner v Council of the Law Society of the ACT [2015] ACTSC 316 at [64] to [84]

10.The appeal tribunal may only set aside the decision where there is a question, interpreted to mean an error, of fact or law.

11.Burns J said, “The appellate court is obliged to conduct a real review of the trial and the first instance reasons, and, within the constraints of the appeal process, to give the judgment that should have been given at first instance.”[3] In the context of ACAT, this means that the appeal tribunal reviews the original hearing and the original decision considering in particular the grounds of appeal identified by the appellant. In some cases fresh material may be considered.

[3]Legal Practitioner v Council of the Law Society at [82]

12.If an original decision was made following the exercise of discretion, the appeal tribunal should not set it aside unless satisfied that the decision was clearly wrong. The analogy between the approach taken by courts engaged in judicial review of an administrative action and an appellate body’s review of an earlier decision was noted by the plurality in the High Court’s decision of Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [75] - [76] referring to the decision of House v King [1936] HCA 40:

House v King holds that it is not enough that an appellate court would have taken a different course. What must be evident is that some error has been made in exercising the discretion, such as when a judge acts on a wrong principle or takes irrelevant matters into consideration. The analogy with the approach taken in an administrative law context is apparent.

As to the inferences that may be drawn by an appellate court, it was said in House v King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts[the result] is unreasonable or plainly unjust.

13.In the appeal decision of Chakravarty & Commissioner for ACT Revenue [2013] ACAT 11 Presidential Member Symons said:

41. To be successful on appeal, the appellant must show, firstly, there was a mistake or incorrectness in the Original Tribunal decision. It would be necessary for her to establish that the Original Tribunal acted on an incorrect principle, gave weight to extraneous or irrelevant matters; or gave no weight or insufficient weight to relevant considerations. Secondly, the appellant would need to satisfy the Appeal Tribunal that the decision of the Original Tribunal, in all the circumstances, was one which no reasonable Tribunal could ever have come to.

42. ... it is well recognised that an appellate tribunal should not disturb a discretionary decision as there is a presumption that the discretion was exercised correctly and should therefore be affirmed unless clearly wrong. It is not sufficient to set aside a discretionary decision simply because another view could have been taken or a different decision reached. (footnotes omitted)

14.In another matter[4], President Spender noted that the latter comment relied on the principle described by Kitto J in the High Court’s decision in Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621 as follows:

the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance: House v. The King (footnotes omitted)

[4]Law Society of the ACT & Treasury Directorate and NRMA Insurance [2013] ACAT 36

15.Burns J noted that “constraints of the appeal process” include that the appeal tribunal on a rehearing may not see or hear witnesses.[5] Often, the appeal tribunal relies on a written transcript to find out the evidence given and submissions made at the original hearing. Meaning can be difficult to glean from transcript in the absence of the aural and visual cues of the spoken word and body language.

[5] Legal Practitioner v Council of the Law Society op. cit. 84

16.Further constraints are found in the nature of the work of the tribunal and the procedures that must be adopted to respond to the needs of the people and matters before it. There is no obligation to provide oral reasons for decision although desirable to do so, and it is unrealistic to expect a tribunal member to give a detailed exposition of the relevant principles of law or a detailed analysis of the evidence and submissions when pronouncing an order at the end of a hearing. Likely it is for this reason that appellate courts have accepted that the words of a decision maker who gives an ex tempore decision at the conclusion of a matter, should not be analysed in detail looking for some infelicity of expression to find a mistake, or error of law.[6] The appeal tribunal should be concerned with the substance of what has been said by the original decision-maker and not fall:

...into the error of examining this unedited and unpunctuated record of ex tempore remarks...,as if the transcript were a document to be construed strictly. It is the substance of what the magistrate said and did that the court is concerned with. Any other approach would impose an intolerable burden on magistrates.[7]

While this caution refers to magistrates, it applies equally in my view, to the ex tempore remarks of tribunal members.

[6] See Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272-273 and 292 and the cautions against construing reasons “with an eye keenly attuned to the perception of error” and “going through the words of the decision-maker with a fine appellate tooth comb, against the prospect that a verbal slip will be found warranting...interference...”

[7] Acuthan v Coates (1986) 6 NSWLR 472 at 479 per Kirby P

Background

17.The tenant and the Commissioner entered into a residential tenancy agreement for a property on 21 July 2015. The agreement provided for eight other people to live in the house – the tenant’s partner and seven children. At the time of the original hearing the oldest child was 16 and the youngest, three years old.

18.On 31 August 2015 the Commissioner served the tenant with a Notice to Remedy which said in summary that the Commissioner had received serious complaints regarding disruptive behaviour “emanating from your property”. The behaviour was said to breach clause 70(b) and (c) and clause 73 (a) and (b) of the standard residential tenancy terms. The clauses are set out below. The notice identified six actions that:

must cease immediately upon service of this notice, including but not limited to:

·   Cease throwing any missiles from the property;

·   Cease approaching neighbouring properties;

·   Cease turning off power to neighbouring properties;

·   Cease knocking on doors or windows of any neighbouring properties;

·   Cease making any offensive gestures to individuals; and

·   Ensure that there is no screaming, yelling or unnecessarily approaching neighbours or their properties.

19.The notice said that failure to remedy the breaches may result in the Commissioner commencing legal action.

20.During September and October 2015 the Commissioner received further complaints about behaviour of the tenant’s children and the Commissioner then commenced proceedings in the tribunal.

The application before the original tribunal

21.The Commissioner filed an application for resolution of a residential tenancies dispute on 12 November 2015. The initial application asked the tribunal to make orders under section 83(a) of the RT Act restraining the tenant from breaching the terms of the residential tenancy agreement and under section 83(b) of the RT Act requiring the tenant to not cause, or permit, a breach of the peace, comfort or privacy of neighbours.

22.On 3 December 2015 the tribunal held a hearing and then a preliminary conference. At the hearing an order was made permitting the Commissioner to access the rental premises for inspection. At the conference an order was made listing the substantive application for hearing on 9 February 2016. Directions were given requiring each party to file and serve material. The conference order and directions were overlooked by the tribunal registry and not sent to the parties for some weeks.

23.On 5 January 2016 the Commissioner served a termination notice, headed ‘Notice to Vacate’ on the tenant.[8] The Notice to Vacate referred in detail to the earlier Notice to Remedy and the breaches alleged in that notice, asserted a failure to remedy the breaches and more than three breaches of the agreement, and required the tenant to vacate the property by 25 January 2016, some 20 days after the date of the notice. The Notice to Vacate said that the Commissioner would apply to the tribunal for a termination and possession order if the tenant had not vacated the property by 25 January 2016. The tenant did not vacate the property.

[8] Clause 6 of the standard residential tenancy terms makes it clear that these are interchangeable terms for these purposes by providing that a reference in the tenancy agreement to a notice to vacate is taken to be a reference to a termination notice under the RT Act

24.On 3 February 2016 the Commissioner filed an amended application with the tribunal and there was a directions hearing. The amended application detailed numerous further complaints about behaviour and asked for orders to be made under section 48 of the RT Act terminating the residential tenancy agreement and returning vacant possession of the house to the Commissioner. In the alternative, the amended application asked for orders to be made under section 83(a) and 83(b) similar to the orders sought initially. The amended application was accompanied by a large number of documents including witness statements and compact discs with video footage.

25.Because the amended application sought quite different orders and the documents filed with it contained material the respondent had not seen before, the substantive hearing could not proceed on 9 February 2016. Fresh directions were made for each party to file any material relied on in relation to the amended application. Another hearing date was set for 11 March 2016.

26.On 15 February 2016 the Commissioner filed an application asking the tribunal to urgently make orders restraining the tenant and “his occupants” from doing a range of behaviours. The application said that the Commissioner had been informed of on-going intimidating actions by occupants of the tenant’s premises in relation to two witnesses. An urgent hearing was listed for 18 February 2016 but the hearing did not proceed because the tribunal was asked to make orders by consent. The member allocated to the tribunal for the hearing of the interim application was the senior member allocated to the tribunal for the substantive application. The orders made provided:

1.    The respondent tenant and all occupants of the respondent tenant's premises are restrained, while proceedings in matter RT 1060/2015 are on foot from:

(a) engaging in conduct or actions which cause, or permit, nuisance and;
(b) engaging in conduct or actions which interfere, or permit, interference, with the quiet enjoyment of occupiers at nearby premises; and specifically they are restrained from;
(c) throwing items at neighbours or nearby premises;
(d) trespassing on neighbouring premises; and

(e)  making excessive noise.

The Tribunal notes: that these consent orders are made pursuant to section 83 (a) of the Residential Tenancies ACT 1997.

27.The substantive application remained listed for hearing on 11 March 2016.

28.On the afternoon of Wednesday 9 March 2016 the tenant’s advocate sent an email to the tribunal and to the Commissioner’s representative attaching a letter from a Child Protection Service Officer of the same date and saying that the respondent would seek to rely on the document at the hearing.

29.The email asked for an urgent hearing to be held “limited to the issue of the respondent’s request that Friday’s hearing be adjourned.” The adjournment was sought to give time for the Commissioner to consider options for “eviction” in light of the information in the attached letter. The request was forwarded by registry staff to the tribunal senior member who refused the request for an urgent hearing and adjournment. She instructed the registry to reply as follows:

Your application for an adjournment of the hearing has been considered by the Senior Member allocated to hear the matter. The Senior Member has declined to grant the adjournment. Notwithstanding the issues you have raised in your application, the Senior Member's position is that this is a serious matter, it has already been adjourned previously, and it should not be further delayed. The material filed in support of your application may be taken into account by the Senior Member in considering whether it is appropriate to make the Orders sought by the applicant.

30.The hearing proceeded as listed on 11 March 2016.

The Law Relevant to the Hearing

31.The dispute before the tribunal was a residential tenancies dispute pursuant to the Residential Tenancies Act 1997. The amended application was made pursuant to section 48 of the RT Act. That section gives the ACAT a discretion to make a termination and possession order

(1) On application by a lessor, if -

(a) satisfied that-

(i)   the tenant has breached the standard residential terms (other than by failing to pay rent that has become payable); and

(ii) the lessor has served a termination notice on the tenant based on the breach; and

(iii)   the tenant did not vacate the premises in accordance with the notice; and

(iv)   the breach of the standard residential tenancy terms was not in accordance with a term of the residential tenancy agreement endorsed by the ACAT; and

(v) the breach justifies the termination of the tenancy; or

(b) the ACAT –

(i)   has made an order under section 83 (b); and
(ii) is satisfied that the tenant has breached that order; and

(iii)   is satisfied that the breach justifies the termination of the tenancy.

32.The tribunal must refuse to make an order if not satisfied of the matters set out in section 48(1)(a) or (b). Section 48(2)(a) provides a discretion to refuse to make a termination and possession order, even if the tribunal is satisfied of those matters. The discretion can be exercised if the tenant has remedied the breach, or has undertaken to do so within a reasonable specified period and is reasonably likely to do so.

33.Section 48(2)(b) allows the tribunal to suspend a termination and possession order made for no more than three weeks if satisfied that if the order were not suspended the tenant would suffer significant hardship that would be greater than the hardship that the lessor would suffer if the order was suspended. In this case, the original tribunal exercised the power to suspend in favour of the tenant for the maximum period.

34.It was clear that the tenant had not vacated the premises and that this was not a matter in which additional terms had been endorsed by the ACAT. Nor had orders been made in the matter under section 83(b) of the RT Act. The orders made on 18 February 2016 were orders restraining behaviour that might breach the residential tenancy agreement and were expressed specifically to be orders under section 83(a) of the RT Act.

35.The relevant issues to be considered under section 48(1) were whether the original tribunal was satisfied that:

(a)    the tenant had breached the standard residential terms; and

(b)the lessor had served a termination notice based on the breach; and if so;

(c)the breach justified the termination of the tenancy.

36.The termination notice (or notice to vacate) addressed to the tenant and dated 5 January 2016 said that the tenant had breached standard clause 70.[9] That clause provides that a tenant must not:

(a)   use the premises, or permit them to be used, for an illegal purpose  to the detriment of the lessor’s interest in the premises; or

(b)   cause or permit nuisance; or

(c) interfere, or permit interference, with the quiet enjoyment of the occupiers of nearby premises.

[9] Notice to Vacate dated 5 January 2016, Exhibit 5

37.The notice stated that the tenant was responsible for the actions of residents/occupants and guests, as set out in standard clause 73 which provides:

The tenant is personally responsible for the actions or omissions of visitors, guests or other people on the premises if:

(a) the action or omission would if performed by the tenant have constituted a breach of this tenancy agreement; and

(b) the person is on the premises with the permission of the tenant.

The Hearing

38.It should be noted that the tenant did not participate in, or attend at, the hearing. In an email to the tribunal and to the respondent’s representative sent on 28 January 2016 the tenant’s advocate wrote that there was an issue concerning the mental capacity of the tenant and that the tenant had appointed his partner to “conduct his affairs” under an enduring power of attorney. The issue with mental capacity was not presumably such that the tenant could not understand the nature and effect of the enduring power of attorney. His partner attended, instructed the advocate, and gave evidence.

39.Given that the application related to the tenant’s obligations to the Commissioner as lessor and his alleged breach of obligations, his failure to participate in the proceedings was unusual. The Commissioner did not press for the tenant to attend the hearing and give evidence by, for example, issuing a subpoena to compel his attendance. In the event, a reading of the transcript and documents before the original tribunal does not suggest that the tenant’s absence from the proceedings prejudiced the Commissioner. The senior member noted that the absence of the tenant made it difficult to gauge the tenant’s understanding of the notice to remedy and notice to vacate. In making her decision however she did not place any weight or attribute any significance to the absence of the tenant. The Commissioner did not make submissions about whether the tenant’s absence was a relevant consideration for the tribunal’s findings or for the exercise of the discretion available to it.

40.The hearing commenced shortly after 10am and continued for the whole day with the last witness, the tenant’s partner, completing her evidence at about 4.30pm and the tribunal’s sitting finishing at 5.35pm.

41.Two matters were raised as ‘preliminary issues’ before evidence was called.

42.First, the tenant’s advocate submitted that the termination notice dated 5 January 2015 did not satisfy the requirements of section 48(1)(a)(ii) and was not a valid termination notice because the allegations set out in the notice were too broadly expressed and not specific enough to be proved one way or the other.[10] There was discussion about whether it was the notice to remedy or notice to vacate that needed to be specific. Questions were asked of the tenant’s partner including the following:[11]

...at the bottom of the first page of the notice to vacate there’s that list of six things. Can I just ask [partner], what did you think that list meant?

It means that we had to stop the children from doing certain things that they were doing here like knocking on doors and turning off the power and that happened in the beginning of the tenancy before the children were medicated. Missiles weren’t being thrown at them. [Child] was throwing them at his brother.

When you look at that list, you knew what you had to talk to your children about?

Yes, and we also called all our supports in to let them give them a firm talk to, a stern talk to as well just so they knew that, you know, mum and dad weren’t just, you know, trying to trying not to be doing this or doing that.

[10] Transcript of Proceedings 11 March 2016 page 5, lines 3-5

[11] Transcript of Proceedings 11 March 2016 page 15, lines 9-25

43.The Tribunal member ultimately decided to proceed with the hearing but to leave room for the tenant’s advocate to make further submissions after she had heard the evidence. She said “on the face of it I’m satisfied that the notices that have been served are sufficient to ground this application. It doesn’t mean anything more at this point.”

44.Because of the way that the hearing concluded no further submissions were put about this.

45.The second preliminary issue was about information and documents about an earlier tenancy and alleged breaches of the earlier tenancy. The amended application included a chronological recitation of events commencing with the details of an earlier tenancy agreement and dispute between the parties. Documents attached to the amended application also concerned the earlier tenancy. The tenant’s advocate submitted that the material should be disregarded and “not be admitted in the matter” because the documents were not relevant and were prejudicial.

46.The Commissioner’s representative submitted that the documents were relevant to a consideration of whether any breach that was established justified termination and suggested that the senior member delay considering this issue until “later in the day”. The member agreed to the suggestion but said:

I also accept that evidence that’s not to do with this breach isn’t relevant at this stage. There’s either a breach here or there isn’t a breach here…I do not want to see or have these things referred to until we get through that original hurdle…[12]

and

I need to decide on the evidence in relation to this tenancy whether there’s a breach…if I do decide that, then we’ve got the question of whether it justifies termination. I would still prefer to focus on this tenancy. If we get to the point that you think you need that to push me one way or the other, then we’ll have another talk about it.[13]

[12] Transcript of Proceedings 11 March 2016 page 22, lines 17-22

[13] Transcript of Proceedings 11 March 2016 page 22, lines 26-29

47.Neither the advocate nor the representative returned to the question of the material relating to the earlier tenancy. There was no other talk or submission about whether the tribunal should look at the material. It was not put before the tribunal to be marked as an exhibit. The only subsequent reference to the earlier tenancy came from the tenant’s partner when she referred briefly to things that had occurred in relation to the earlier tenancy in a way that was intended to favour the tenant’s position.

48.The Commissioner called five neighbours to give evidence. The tenant’s partner gave evidence, as did his mother. As I noted, the tenant himself did not attend the hearing. In addition to the evidence of witnesses, the tribunal had records of police attendances at the premises produced under subpoena.

The Evidence before the Original Tribunal

49.The tenant’s partner gave information about the members of the household.

50.The tribunal was then shown video footage from CCTV cameras installed by various neighbours. While there was some discussion about the footage, no specific description of the events depicted was read onto the transcript. I therefore viewed the footage after the appeal hearing. I observed that the footage is consistent with the oral evidence about the events given by the various witnesses.

Witness 1 – Neighbour MH

51.The documents before the original tribunal included a statutory declaration made by Witness 1 on 3 February 2016 and a document with information about events said to have occurred after 3 February 2016. They were marked as exhibits. She gave oral evidence consistent with the statements. In brief summary she gave evidence that she lived in a street near to the street in which the tenant lived. She noticed a group of children generally hanging around the neighbourhood from about the middle of 2015, yelling at people driving past, including her, fighting each other and hitting each other and things like lampposts with sticks. She described an incident in November 2015 (after the service of the Notice to Remedy in August 2015, but before the service of the Notice to Vacate) when the group was outside her home, being violent to each other, shouting obscenities and walking across the driveway to her home in such a way that her daughter had difficulty driving out the driveway.

52.She gave evidence of there being an increase in incidents just before Christmas of the group hanging around the footpath in front of her home, shouting abuse and continually walking across the driveway so as to block family members and visitors using the driveway. Her statutory declaration deposed to an incident in which her daughter and a friend were blocked from entering the driveway because one of the group was “standing in the middle of the driveway and swinging a scooter around above his head.”

53.The statutory declaration and statement referred to several other incidents occurring during January and February 2016, after the service of the Notice to Vacate, all of which can be described as involving verbal abuse, trespass, and further incidents of blocking the driveway which the witness referred to as “running the gauntlet”. On 31 January 2016 a “large lump of wood” was thrown onto the roof of the house. Members of the group were observed by her immediately after, walking away and yelling abuse.

54.She said that her daughter had started staying elsewhere overnight because of worry about the group hanging around when she is trying to leave for work and was arranging for her father and friends to pick her up to take her to work. Her evidence was that this had impacted on the family and had caused “an enormous amount of stress, distress and anxiety”. She did not feel safe in her own home and was distressed that her daughter felt that she has to stay away from home.

55.In cross-examination she said that she had not spoken to other neighbours about this before she attended the tribunal for the interim hearing scheduled for 18 February. She denied that she was paranoid about the group.

56.When asked how she knew that the people she described as being in this group were the tenant’s children, and how she knew that they lived at the subject premises, she said that a police officer had accompanied two of the children and the tenant’s partner to her home one day so that one of the children could apologise for pulling a plant from her garden. The police officer told her their address.

57.She said that she did not believe that there would be any benefit in a conference or conciliation process with the tenant or his family.

Witness 2 - Neighbour WH

58.WH is the adult son of Witness 1. He gave evidence about the installation of security cameras at the home. In summary his evidence was that initially he was not impacted by the group but that there had been an escalation of incidents just before Christmas which meant that when he was at home he had to stop what he was doing to keep an eye out “to make sure they are not up to anything.” His evidence was that he knew where the children lived because another neighbour told him. Like his mother, he thought there would be no benefit in a community meeting because the behaviour has been impacting negatively on people for months on end and there had been no attempt to rectify the behaviour.

59.During questioning by the senior member he said that he had felt threatened by the behaviour. He referred to incidents of trespass, constant abuse, things thrown at cars and on to the roof. He said that he believed the conduct was specifically directed at his family and thought that was occurring since his father had spoken to members of the group about shouting and using coarse language outside their house.

Witness 3 - Neighbour LH

60.This next door neighbour made a statement on 2 February 2016 that detailed a significant number of incidents from 15 August 2015 to 25 January 2016 involving harassment, abuse and property damage. The statement was tendered. Some of the incidents about which she gave evidence are described below.

61.In her oral evidence she said:

since August last year there's been a series of events that have, I guess, escalated, starting out with my windows, my power being turned off, there being knocks on my doors and windows in the late evening at night, of things or objects thrown at my house, of verbal abuse, of over Christmas my car being damaged by a series of rocks being thrown, scratches of which I had to get it fixed, of I can't go out into my yard without being abused, without being called I'm the fucking lesbian slut next door. I've been to the shops and I've been abused by the kids, the two older boys [ ], in just going to the shops.

62.She described the first serious incident as having the power to her house turned off. Her statement shows this incident as having occurred on 31 August. She saw the oldest boy and a girl running down the street immediately after. The girl told her that the oldest boy had done it.

63.Incidents described in her written statement include gravel being thrown onto a car in her driveway and a broken shot glass, which the tenant’s partner identified as “one of their glasses”, being wedged under a car tyre. A tradesman visiting her home had rocks thrown at his van by two of the tenant’s children.

64.She gave oral evidence of an escalation of incidents during November and December including stones thrown at her front windows, being abused, hearing the tenant yell out that he was going to kill the “fucking slut” next door and one of the children saying to his mother in a really loud voice that he was going to go over the fence, sneak into her house and stab her while she was sleeping. She said that she knew which child it was because she knows his voice.

65.She described an incident captured on some of the video footage viewed by the tribunal in which small objects that she said were stones were thrown over the fence dividing her property from the tenant’s, hitting her and her car. This was clearly visible on the video footage.

66.Her written statement detailed two occasions in December 2015 in which the tenant screamed out repeatedly that he was going to kill her and many incidents of gravel, stones and rocks being thrown at vehicles in her driveway, at her fence and at her house.

67.She stated that on 13 January 2016 one of the children rode a bike continuously past her house as she watered her garden, calling out “slut” every time he passed her.

68.On questioning by the tenant’s advocate, she said that she did not believe she would participate in a conference or meeting to try to address the conflict in the neighbourhood because:

I have tried initially to engage and I found often that I would be punished afterwards and I don't feel safe enough, I don't trust them to respect me.

When you say "them", could you identify - do you mean the children, the older boys?---No, I mean [the tenant’s partner], I mean [the tenant], and I mean there certainly [name of child] and certainly [another child].

Witness 4 – Neighbour M

69.This witness lives close to the tenant. She provided two written statements and gave oral evidence. She said that her first negative interaction with the tenant’s family occurred on 17 December 2015 when she went to see another elderly neighbour. She said that people standing at the front door of the tenant’s premises yelled out to her, calling her a “fucking slut” and threatening to bash her.

70.She gave evidence of an escalation of incidents in January involving fruit and rubbish being thrown onto the front garden, being called a “fucking slut” when going out to the mail box, and fruit and vegetables being thrown at the house.

71.The witness said that she feels very intimated and uncomfortable in her own home. She told the tribunal that her father had had recent surgery and her daughter had had a baby. She did not want to bring her father to the home to recuperate or have her daughter visit with the baby. She described an incident in November when three of the tenant’s children yelled abuse at guests as they left a baby shower she held for her daughter.

Witness 5 – Neighbour T

72.This witness is M’s partner. The evidence of this witness indicated a very acrimonious relationship with the tenant and his family. He had broken his leg in an accident. As a result he was unable to work and was at home during the day. He said that he felt threatened in his own home and gave evidence of things being thrown at his house, of threats being made to break his other leg, of the tenant’s partner abusing him and threatening to arrange to have a relative “get” him, of one of the children abusing him regularly, of having a rock about the size of a cricket ball thrown at him and of members of the tenant’s family sneaking around outside his house.

Witness 6 – Tenant’s Mother C

73.The tenant’s mother gave oral evidence for the tenant. Her written statement was tendered. She said that she visited the tenant’s premises regularly and that every time she did, she heard the neighbour T yelling out and abusing the children and the tenant’s partner. She gave evidence of the history of the family including the children being placed in her care on an occasion that the tenant was in gaol some time ago and then being removed from her care for a period of about six weeks before being returned. She described the children as having “been through hell and back”, having been “abused by the system” and having been mentally affected by their experiences.

74.She said that the children were very close. Some of them had told her that they didn’t want to be at the house on weekends because T and M are always abusing their parents. As a result some of the children stayed with her on weekends.

75.She told the tribunal that one of the children has mental health problems and that another has autism and has a lot of seizures. She gave detailed evidence about the children’s experiences in care.

76.She was asked about the allegations that the children were throwing stones, but said she believed that the children would only do that if someone revved them up. She did not believe that they would just go around throwing stones because they had never done that at her place. She was also sceptical about the evidence that the children had been verbally abusive and threatening to other people. She said that the children had never done that to her or to her neighbours. She believed that the neighbours had spoken together and got their stories together because the neighbours don’t like kids in the street and don’t like the size of the family, not because of the conduct of the children. It was clear that C thought that if any of the reports about abuse and threats and throwing of stones were true, it was occurring because the children were hearing abuse from neighbours.

77.She gave detailed evidence about the children’s schooling and expressed a view that if the family were evicted one of the children would harm themselves and another would probably do the same.

Witness 7 – The Tenant’s Partner

78.The tenant’s partner provided a written statement that was tendered and gave oral evidence. When asked to describe what was “going on” in the street she talked about T antagonising her children, drinking all day and picking on the children; she talked about another person who was a relative of another neighbour and an acquaintance of T, threatening them. She described a recent incident involving T and a visitor to his home and what was described as a petrol bomb. The evidence confirmed that there was significant acrimony between the tenant’s family and T.

79.The partner described serious health conditions of the tenant and several of the children and spoke of the serious negative experiences of the children when they were in care. The children have been back living with the tenant and his partner for three and a half years. They are under the care of specialist intensive counselling services. She described herself as the “one who runs the family” and who “keeps everything together”.

80.She was asked by the tenant’s advocate about LH’s evidence that the tenant threatened to kill LH. She denied that the tenant would have yelled out anything of that sort, especially in front of the children. She said that there was an occasion when the tenant saw LH looking over the fence into one of the children’s bedrooms and said to LH “get the fuck down off my fence, bitch”. She said that LH constantly stands on her bins and looks into a bedroom. Unfortunately, LH had not been asked any questions about this by the tenant’s advocate and so the tribunal was unable to assess which of the contradictory version of events should be preferred.

81.When asked by the advocate again about the tension in the street she described T as responsible because he yelled and screamed abuse at the children. She described the children and T as “going tit for tat with each other”.

82.When cross-examined, she did not accept that the children had thrown rocks at neighbours. She agreed that they had thrown two items which weren’t rocks but were potatoes. She accepted that excessive foul language had been used but denied that the tenant had used foul language except on the one occasion when LH was caught looking over the fence. She denied that she uses foul language around the children. She denied the evidence given by the Commissioner’s witnesses saying that they were all in with each other and that she had evidence of them all standing in the street on her iPad. That evidence was not submitted to the tribunal.

83.She acknowledged that the agreement made on 18 February 2016 and made as a consent order by the tribunal had been broken by T antagonising the children. She spoke of T deliberately shining lights into the the children’s bedroom windows resulting in the children having to sleep in other rooms.

84.She described her strategy for managing the children as giving them more medication and keeping them inside the house.

85.She said she had no knowledge of the things that MH or her son gave evidence about. In relation to the evidence of LH she agreed that the children had turned off LH’s power in July because they thought that it was funny but they had apologised for it.

86.The senior member asked the witness about LH’s detailed written statement. Her response significantly downplayed and contradicted LH’s evidence. The response and the subsequent exchanges with the senior member assist to demonstrate the member’s subsequent reasoning and is set out in full.

(The statement) lists time after time after time of rocks being thrown, abuse, offensive as well as foul language being directed at her, and of threats and of constant talking about her and she can hear noise coming from inside your house. What do you say to that? ---Of course she can. She sits at the side of the gate listening.

Well, if there wasn't anything being said it wouldn't matter, would it? ---Where she hears - it's just the children talking, like they can be just arguing with each other. It's not even directed at her. You try and stop seven kids from arguing when you've got all the testosterone and puberty and what not. They fight over some of the most stupidest things sometimes but what they fight about in their home should stay in their own home. The neighbours shouldn't be taking any notice of what the children are doing in their own backyard with a seven foot fence, a Colorbond fence. She stands up and looks over. She jumps up on the roof and looks over. She was watching them in the swimming pool. All these incidents were reported.

Even if I put aside the evidence of T and M, because I can see that there's been a bit of tit for tat there, I've got three other neighbours. I've got numerous police reports. They come day after day after day. How do you say I should deal with that evidence?---Deal with it the way you see it because like I said, every time the children have done something they have been disciplined for it. What do they want me to do when they're looking over their fences? They're standing there intimidating the children.

Why would people do that? ---Well, she has been looking over the fences a lot, including of a night time. She mentioned how she said it was [child] who had the iPad watching her. No, it wasn't. That was me capturing her standing up on her bins shining torches into my back yard which set my dogs off so I grabbed the iPad and I filmed her.

Have I got that information here? Where is this information? ---It's on the iPad still.

But it's not filed as evidence? ---No.

Why not? ---Well, why file that? It's just going to show me filming her standing there looking over our back yard.

Because she's given me sworn evidence of one thing and you say to me, "I've got something that could contradict that"?---Because I'm not the type of person to grab all these tiny little things and make a big deal out of it. If the children are doing something, I nip it in the bud. I punish them for it. I don't, you know, sit there and stew on it for weeks like they do.

Okay, so you seem to be saying, in reading between the lines, that the neighbours have all got together? ---Yes.

And they've decided that they want you out and they want you out because you're government Housing tenants? ---Yes. The neighbour right on the other side of us, he was the original neighbour who sent in asking how to get us evicted. Okay. Now, since we have spoken to the man next door a couple of months ago he has noticed a change in the children since they've been on the medication. They're not going into his yard. They're not abusing him and he certainly isn't here today. (emphasis added)

Is he here? Why isn't he here today if he could give that evidence? ---Well, obviously he didn't feel that it was important enough to come in and give evidence against them.

But did you ask him to come? ---We were told not to approach any of the neighbours so why am I going to go and approach any of the neighbours when we've been told by Housing not to?

Well, you have legal advice. Have you given advice to your legal representatives that this evidence would have been available? ---I probably don't think so. Well, I don't just sit there all day thinking about what I'm going to do at the tribunal. I have a hundred and one things to do as being the person that runs the big family. I'm up at 5 o'clock. I get the children's breakfast and lunches ready and I get them up at 6.30. I get them dressed and showered. I then medicate the ones that need to be medicated. I get them onto a bus and then I come home after dropping them off at school. I don't let them catch the bus on their own. I catch the bus with them and I come home. We do the house chores. I hang out the children's washing and then I start with the appointments that we have during the day, whether they be phone appointments or at home appointments.

Now, I need to put this to you because I have some evidence but I don't actually have any positive diagnosis of what the children's problems are. I'll take what you've said on notice. If I was, for argument's sake, to say that I would dismiss this application and I'm not going to evict your family, but if this conduct continued then I would confidently predict we'll be back in eight, 10, 12 weeks or months? ---Well, regardless or not, if we do get evicted or not, my family do not wish to stay there. Either way - - -

So, in order for me to make that order I'd have to look at why the breach doesn't justify eviction because I'm satisfied there's a breach.

Now, then I've got two lots of interests to weigh up. Evicting people, removing people from their home is the most serious order this tribunal can make in terms of residential tenancy. It's probably pretty well up there as the most serious order we make all together because we can’t send people to prison and I think taking someone away from their home is probably the next worse thing that you can do. So none of us take this lightly and it’s always then going to be a weighing up of interest. I have heard from your neighbours. I have heard that they can’t use their houses the way they used to use them. I’ve heard that they’re afraid. I’ve heard that some of them don’t sleep. I’ve heard that some of them have moved out. I’ve seen evidence on here that some of your neighbours who have tenants are losing those tenants. So there’s quite a considerable adverse impact on the neighbours as a result of this breach.

So what I want you to tell me is what should I take into account then, from your point of view to say even though there is a breach I shouldn’t evict this family?---Well, basically based on their mental health issues as well. I know that there’s a clause there saying that no one should be evicted over their mental health issues - and half of their problems, over half of their problems are to do with mental health.

And if I accept that, what can be done to address those issues so that their conduct doesn’t continue to have this adverse effect on the neighbours?---There’s been a long process and without having transport at our fingertips until next month - the 20th of next month - all the children will be going to more intense activities. They will not be home as much and we will be looking to go elsewhere because I do not wish to raise the children there with what they’ve already - you know - seen. They’re not going to be - what do you call it? Just like the neighbours said they’re not going to be comfortable with the children there. The children aren’t going to be comfortable with the cameras on their windows. (emphasis added)

Okay?---If they were doing things to their home I understand them getting security cameras but facing them into their bedrooms at all times is a bit wrong and that makes them feel uncomfortable and then when he comes out saying stuff to them they do narc up which means then I’ve got to go into a different mode altogether. Not them other mode. I’ve got to go into the doctor kind of mode and physically force them to take their medication, whether it be an hour early or two hours early. But every time I get them to take their medication early I report it to the services so they know that I’ve given them either the medication early or an extra dose because otherwise I cannot keep them unheightened unless I do do that once they’ve been stirred.

So is there anything that you can say to me and that could satisfy me that this breach can be remedied and you can fix the problem? ---Well, like I said before the main two problems are young [ ], the 16 year old and [T]. They’ve just got this tit-for-tat thing. It doesn’t matter if they’re not doing anything to each other. They’ll find something to pick at each other nearly every single day. So that’s why I’ve been getting [] to leave the house to go to swimming or to go to grandma’s because he is the hardest child to calm down.

87.Neither the tenant’s advocate nor the Commissioner’s representative had further questions for the tenant’s partner. The evidence concluded at about 4.30pm.

The Original Tribunal’s Decision

88.The senior member immediately stated that she was satisfied that the tenants had breached the terms of the residential tenancies agreement by failing to comply with the obligation “not to use their home in a way that interferes with the quiet enjoyment, peace, comfort and security of the neighbours” and that she was satisfied that there were “many, many examples”. She identified the “next step” as requiring consideration of whether the breach justified a termination order and foreshadowed that if so, the termination order needed to be made sooner rather than later.[14] Reference was made to the time and the senior member indicated that she was not prepared to continue after 6.00pm. A reading of the transcript makes it clear that those present wanted to continue to complete the hearing and have the member make a decision that day.

[14] Transcript of Proceedings 11 March 2016 page 128, lines 1 - 25

89.The senior member noted that in making her finding she had put aside the “tit for tat information”. I interpret the member's comments and the sentences that follow to mean that she had discounted the evidence of T and that she could not decide whether aggression from T came about because of the conduct of the tenant's children, or whether the conduct of the children came about because of the conduct of T.

90.She said that if T’s evidence was the only evidence before her, she might have reached a different conclusion. She noted the evidence of the three other witnesses on behalf of the respondent. Inferentially, she preferred the evidence of LH to that of the tenant’s partner and accepted that the tenant’s children were responsible for the incidents about which MH and WH gave evidence. On my review of that evidence, these findings were clearly open to her and were reasonable. I am satisfied that in reaching the conclusion that the Commissioner had established, on the balance of probabilities, breaches of the tenant's obligations under the RT Act, the senior member undertook a reasoned and logical analysis of the evidence before her.

91.Having indicated her findings in relation to breach, she heard submissions from the Commissioner's representative about the third issue; that is, whether the breach justified the termination order sought. The Commissioner's representative submitted that the tribunal could not have any confidence that the breach would or could be remedied.

92.He submitted that the tribunal should take account of the fact that the evidence of the tenant's partner portrayed an ongoing theme, namely that what had occurred was the fault of other people. He noted there was evidence about supports that had been put in place for the tenant and the family and noted the evidence of the tenant's partner to the effect that the supports had failed.

93.He submitted that the lack of evidence about strategies employed by the tenant and his partner to reduce the behaviour that was an ongoing breach, other than medication and keeping the children inside, was such that the senior member could not be satisfied that the breach would be remedied.

94.The tenant's advocate sought clarification that the senior member had found breaches of the tenancy agreement and, in doing, so that the arguments he had put about the validity of the notice to remedy and the termination notice had been overcome in the tribunal's mind. The senior member indicated that she was satisfied of those things.

95.The tenant's advocate then made detailed submissions supporting an argument that termination of this tenancy was not justified because of the significant adverse effect that termination would have on this family.

96.The submissions were detailed and eloquent. He submitted that the tribunal should give consideration to alternatives that would need time to be canvassed and engaged in a discussion with the senior member about the application and relevance of the Human Rights Act to the matter before the tribunal.

97.There was some disagreement between the senior member and the advocate about the nature and basis of the submission. Having heard the submissions of both the Commissioner's representative and the tenant's advocate, the senior member recognised that there were a number of things that she had to take into account - most importantly the number of vulnerable children. She noted that the matter before her had commenced as an application for an order under section 83(a) of the RT Act and had been amended to an application for termination as time had gone by. She said, “I think mostly because there was no observed correction of the behaviour that has been complained about.” She recognised that the Commissioner had taken a lot of steps to try to support the tenant.

98.She noted that she did not have the power to order that the tenants and the neighbours participate in a conference, as had been suggested to her by the tenant's advocate in submissions. She offered the parties an opportunity for a short break to discuss whether there might be some other alternatives before she proceeded further.

99.When the hearing resumed she was requested by the tenant's advocate to postpone an eviction of the family for a period of six months. She responded, correctly in my view, that she didn't have the power to do that. She said:

I'm satisfied that there's a breach. Taking into account the severe adverse impact that I have heard about on the neighbours, I believe that the breach justifies termination.

100.She acknowledged submissions made in relation to the need for proportionality and indicated that in recognition of that, she would suspend the operation of the order for the maximum period available under section 48; namely, three weeks.

101.A representative of the Commissioner attempted to persuade the senior member to suspend the operation of the termination order for two rather than three weeks. She considered the submission and rejected it. An order terminating the tenancy agreement which was to take effect as a warrant was made but suspended for three weeks.

Grounds for Appeal

102.The first ground for appeal was that the whole of the decision was affected by error and was inappropriate, unreasonable and involved a disproportionate exercise of discretion.

103.This was in essence the same as the fourth ground and is considered further below.

104.The second ground was that the tribunal made an error of law in admitting into evidence at the commencement of the hearing irrelevant and prejudicial material relating to a previous tenancy. I've reviewed the whole of the transcript again. I've considered the list of documents that were marked by the tribunal during the course of the hearing and the comments made during the course of the hearing. I am satisfied that this ground cannot be made out. As set out at [47]-[48] above it is clear that the member did not consider the evidence in relation to the earlier tenancy.

105.Neither the advocate nor the representative returned to the question of the material relating to the earlier tenancy. There was no other talk or submission about whether the tribunal should look at that material. In her concluding remarks the senior member very briefly confirmed that she was satisfied of the breaches, excluding the earlier material. That material was not put before the tribunal to be marked as an exhibit. It was not “admitted into evidence”.

106.The tenant's advocate submitted that the member should have formally made an order indicating that the material was to be excluded. I do not accept that that was necessary or appropriate. The history of previous tenancies may have been relevant to a consideration of whether termination was justified. The senior member indicated that she was open to hearing further submission about that. In the event, further submissions were not made. She did not review or place any weight on the earlier material. I do not accept that a failure to make a specific order excluding the material was an error of law.

107.The third ground for appeal was that the tribunal made an error in law in accepting that the notice to vacate served on 5 January 2016 was valid, because it did not identify any specific breach of the notice to remedy or of the terms of the tenancy agreement. The termination notice relied on by the Commissioner does lack specificity. There is a covering letter of two pages which provides detail about the breaches alleged and which appears on its face to be the termination notice, but attached to it is another document, a single page headed ‘Notice to Vacate’ that has little information.

108.It seems to me that in the absence of an approved or prescribed form the whole of the document is properly identified as the termination notice or the notice to vacate and not just the single last page. I don't know why the Commissioner adopts this practice, or why what appears to be the covering letter is the document in which details about breaches alleged are set out.

109.I am not satisfied that the whole document that in my view constituted the termination notice, was so lacking in specificity that it should be regarded as invalid. The RT Act does not specifically provide for the content of these notices. But common sense says that the content of the notice must identify the basis on which the notice is served with sufficient particularity for the receiver of the notice to understand it. In this case, as a matter of fact, the oral evidence given by the tenant's partner, was that she saw and understood what breaches were said to have occurred, what specific actions (if not the precise dates of those actions) were said to constitute breaches and the reason for the requirement that the premises be vacated on or before 25 January 2016.

110.There is no doubt that the Commissioner could have done a much better job in detailing the content of that termination notice, but nevertheless the content in my view is sufficiently particular to enable the tenant and the tenant's partner to understand what the problem was said to be, what the failure was said to be in terms of remedying the earlier problem and what needed to be done as a result. This ground for appeal is not made out.

111.The fourth ground for appeal was that the tribunal made an unreasonable decision when it refused the respondent’s submission that even if a breach was established, it did not justify a termination of the tenancy. The Tribunal did not, it was submitted, give appropriate weight to correspondence from ACT Care and Protection Services regarding the concerns that would be raised if the family were to be evicted. Nor did it consider the criteria established by ACT and NSW case law regarding considerations that should be addressed by the Tribunal when considering eviction. I regard this as effectively the same as the first ground for appeal.

112.Here the focus is on the discretionary aspects of the senior member's decision. There was a very detailed hearing before the original tribunal. I reviewed the many documents filed, witness statements, oral evidence from witnesses and the video footage. I identified no material that was irrelevant, nor could I see anything that was left out, other than perhaps evidence from the tenant himself.

113.The tenant's advocate submitted that the tribunal failed to consider alternatives reasonably available. But a reading of the transcript shows quite the opposite: the senior member turned her mind to and made reference to the alternatives available. She considered alternatives of conferencing, alternatives of delay, alternatives relating to the making of orders under sections 83(a) and (b) of the RT Act, but in each case rejected those alternatives and provided intelligible, rational reasons for doing so. She noted that she could not require the neighbours to attend a conference or meeting and each consistently indicated that they would not. She considered but rejected a proposal that she delay finalising her decision for six months because she did not have the power to do so. Section 48 contains an express power to suspend the operation of an order for three weeks. There is no express power to suspend for a longer period and, having found breaches established, it was not appropriate for the member to delay finalising her decision for six months given the objects and principles set out in sections 6 and 7 respectively of the ACT Civil and Administrative Tribunal Act 2008. Nor would it have been appropriate to do so in light of the senior member’s acceptance of the evidence of three of the neighbours about the impact that on-going breaches was having on their lives.

114.It was submitted that the tribunal did not give appropriate weight to a letter from ACT Care and Protection Services. On considering the transcript, I cannot agree that the tribunal did not give weight, or appropriate weight to that letter. The member acknowledged the significant difficulties that the children and family have faced, she repeatedly acknowledged the vulnerability of the children, and she acknowledged the work being undertaken in relation to the children. I am satisfied that she placed significant weight on all these things. This is particularly evident in the excerpt set out at [86] above. She found nevertheless that the significant adverse impact of on-going breaches on neighbours, excluding T, outweighed those factors. In light of the whole of the evidence available to her, I am not satisfied that that was unreasonable, or irrational or arbitrary.

115.The senior member took into account the severe impact on the tenant's children by suspending the operation of her orders so that there could be some time for them to look for alternative accommodation. She was concerned about the possibility of aggression and reaction to the order that she had made and ordered that the Commissioner could have the matter re-listed if there were problems. This was a reasoned and reasonable decision that was not plainly unjust or a decision that no reasonable tribunal could have made on the evidence that was before her. This ground for appeal is not made out.

116.The final ground for appeal was that the tribunal made an error of law when it failed to address and then refused the respondent’s submission that it should consider whether the orders sought for a termination of the tenancy “impermissibly contravened the tenant’s rights” under the Human Rights Act 2004. I have earlier referred to the passage of transcript in which the tenant's advocate and the senior member discussed the application of the Human Rights Act. My reading of this passage suggests that they were at cross-purposes, with the senior member seeming to interpret this as a submission that the tribunal should dismiss the application because the Commissioner’s actions in bringing it and not agreeing to an adjournment so that a conference could be held, was arbitrary. While it was urged on the member that she needed to consider and apply human rights, what rights she was to consider and how she was to take them into account was not discussed. The submissions and discussion with the senior member were somewhat obscure.

117.However, I am satisfied that the senior member did in practice consider the engagement of the human rights of the tenant and his family. My reading of the senior member's reasons indicates that she identified and acknowledged that she had to consider proportionality. The concept of proportionality is central to consideration of the application of the Human Rights Act. She says that the question of proportionality - and this is at page 138 of the transcript - is taken into account by her looking at the question of whether the breach justifies the termination.

118.The tenant's advocate referred her to a passage from a tribunal decision in the matter of Commissioner for Social Housing v A[15]. The senior member said she did not agree with what was said in that case, but then went on to say:

Human rights need to be considered. I think they need to be considered in most cases where there is an eviction in these sorts of circumstances.

[15] [2015] ACAT 13

She referred to a right to shelter. She noted that obligations under the Human Rights Act are not obligations imposed on the tribunal in the exercise of judicial function. In relation to that analysis, the senior member was clearly correct.

119.There is, as described by President Daniel in the decision of Commissioner for Social Housing v A, a process by which the tribunal when considering making an order under the Human Rights Act needs to consider whether any human rights are engaged and if so take them into account. In this case I am satisfied, on considering the senior member's reasoning and words, that this is what she did – weighing up the rights and interests of the tenant and the tenant's family on the one hand and the interests of the neighbours on the other. This ground is also not made out.

120.The orders made by the original tribunal are confirmed.

...........................................
President G C McCarthy
For and on behalf of
Appeal President L Crebbin

HEARING DETAILS

FILE NUMBER:	AA 21/2016
PARTIES, APPELLANT:	The Tenant
PARTIES, RESPONDENT:	Commissioner for Social Housing
COUNSEL APPEARING, APPELLANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPELLANT	Mr Emerson-Elliot, Canberra Community Law
ADVOCATES FOR RESPONDENT	Mr Adkins & Mr Westerndorf
APPEAL TRIBUNAL MEMBERS:	Appeal President L K Crebbin
DATES OF HEARING:	12 April 2016