Evictions and Human Rights in VCAT

Director of Housing v KJ (Residential Tenancies) [2010] VCAT 2026 (16 December 2010) A recent VCAT decision found that the Director of Housing (‘Director’) acted in accordance with its duties as a public authority pursuant to s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) in serving the respondent with a Notice to Vacate (‘NTV’) and in making an application for possession.  Member Dea assessed the scope of the rights to privacy and to the protection of families and children and she concluded that neither of these rights had been engaged.  She held that even if such rights had been engaged, the Director had given proper consideration to, and had acted compatibly with, them in seeking to evict the respondent.  The application for possession was upheld.

Facts

On 19 May 2010, the Director served a NTV on the respondent pursuant to s 228 of the Residential Tenancies Act 1997 (Vic) (‘RT Act’). The respondent was residing in her late mother’s rented premises without the Director’s licence or consent.  The purpose of the NTV and the subsequent application for possession was to terminate the deceased’s tenancy agreement, thereby evicting the respondent.  An order for possession was granted by the VCAT on 13 August 2010 and the respondent was successful in seeking a review of that decision.

Respondent’s Legal Contentions

The respondent opposed the application for possession on the following grounds:

• when the Director issued the NTV and made the application for possession, it failed to give proper consideration to and to act compatibly with the respondent’s human rights and so acted unlawfully pursuant to s 38(1) of the Charter; and
• such unlawful conduct could not provide the basis for an application for possession.

Director of Housing’s Legal Contentions

The Director sought to uphold its application for possession, maintaining that:

• it could not reasonably have acted differently or made a different decision under s 38(2) of the Charter;
• it had given proper consideration to and had acted compatibly with the respondent’s human rights;
• it had not acted ‘unlawfully’ or ‘arbitrarily’ and therefore the right to privacy under s 13(a) of the Charter was not engaged; and
• any interference with the respondent’s human rights was demonstrably justified pursuant to s 7(2) of the Charter.

Evidence before the VCAT

The respondent lived with her late mother in the rented premises from around the ages of 10-14 years, had stayed for short periods since that time and had regarded the house as the family home.  She had a history of homelessness, substance abuse and domestic violence and there was evidence that, circumstances permitting, she would be entitled to provide some residential care for her four children.

Decision

Member Dea proceeded on the basis that the decision in Director of Housing v Sudi [2010] VCAT 328 (currently reserved before the Court of Appeal) applied so as to give the VCAT jurisdiction in this matter.

Were Human Rights Engaged?

Right to Privacy – s 13(a) of the Charter

Taking into account the objects of the Housing Act 1983 (Vic) (‘Housing Act’) and the way in which the Director manages housing on a needs basis, Member Dea found that it had not ‘unlawfully’ interfered with the respondent’s family or home in serving the NTV or in applying for possession.  Member Dea held that it was irrelevant that the respondent had previously been approved for similar housing in a different location.

Adopting the narrow meaning of ‘arbitrary’ as defined by Kaye J in WBM v Chief Commissioner of Police [2010] VSC 219, Member Dea further held that the Director had not ‘arbitrarily’ interfered with the respondent’s family or home.  The Director had duly assessed the information and the policies before it and had not acted capriciously.

Notably, the Director did concede that it was unaware that the respondent’s daughter was also living at the rented premises, that the respondent’s alternative housing offer had been withdrawn and that there had been a letter sent by the respondent’s legal advisers urging against eviction.

Protection of Families and Children – s 17 of the Charter

In relation to both ss 17(1) and (2) of the Charter, Member Dea found that neither the right to protection of families or children were engaged in this case as neither right included an obligation on the state to provide public housing.

Did the Director of Housing fulfil its Public Authority Duties?

Member Dea was satisfied that the Director had given proper consideration to and had acted compatibly with the respondent’s human rights and those of her children.  She concluded that the limitations placed on those rights were, pursuant to s 7(2) of the Charter, demonstrably justified in light of the Director’s needs based housing policies.

Moreover, Member Dea did not consider that granting a ‘transfer’ or a ‘creation’ of a tenancy to the respondent constituted ‘less restrictive means’ of achieving the purpose of eviction.

Member Dea rejected the Director’s argument that it could not reasonably have acted differently or made a different decision having regard to the functions, powers and duties conferred on it under the Housing Act. She consequently found that the Director could not rely on s 38(2) of the Charter to escape its public authority duties.

Relevance to the Victorian Charter

While the narrow approach taken to the engagement of human rights in this case is regrettable, Member Dea’s detailed proportionality analysis in this case gives proper effect to one of the Charter’s key strengths – the requirement that competing rights and interests be balanced in the administration of justice.  Importantly, Member Dea reiterates Emerton J’s decision in Castles v Secretary to Department of Justice [2010] VSC 310, requiring a decision-maker to ‘do more than merely invoke the Charter like a mantra’.

To this end, it is encouraging to see recognition being given to the need for public authorities to move beyond mere technical compliance to meaningful consideration of human rights.  Equally important however will be the need to ensure that the evidence provided by public authorities is adequate to demonstrate genuine compliance with the Charter.  Emphasis must remain on the facts of each individual case and the specific application of the relevant policies.

The decision is at www.austlii.edu.au/au/cases/vic/VCAT/2010/2026.html.

Anna Forsyth is a barrister at the Victorian Bar