Right to Privacy and Unlawfulness of Eviction into Homelessness
Homeground Services v Mohamed (Residential Tenancies) [2009] VCAT 1131 (6 July 2009)The Victorian Civil and Administrative Tribunal (‘VCAT’) has held that a non-profit welfare agency acted unlawfully pursuant to s 38(1) of the Victorian Charter in seeking to evict a young tenant from transitional housing in accordance with a ‘youth tenancy policy’ in circumstances in which it was likely that the tenant would thereby become homeless.
Facts
The landlord, Homeground Services, is a non-profit welfare agency that has contracted with the Director of Housing to provide transitional housing to indigent tenants.
The tenant, Abdi Mohamed, is 21 years old and commenced his tenancy with Homeground on 23 November 2007. He is supported in his tenancy by Southern Direction Youth Services (‘SDYS’), which has a protocol with Homeground pursuant to which SDYS nominates and supports prospective tenants and Homeground provides transitional housing for the tenants so nominated.
Homeground has a policy with respect to ‘youth tenancy’ (tenants under 24 years of age), which relevantly provides that:
- The tenant must have an ‘exit strategy’ (that is, a long term housing plan) in place within 14 months of the commencement of the tenancy.
- If the tenant is approved for public housing by the Director of Housing within 14 months, the tenant may continue in transitional housing until the public housing becomes available.
- If the tenant’s ‘housing exit’ is into private housing, the tenant may stay in the transitional housing for a maximum of 18 months from the commencement of the tenancy. A 120 day notice to vacate pursuant to s 263 of the Residential Tenancies Act 1997 (Vic) (‘RTA’) is given to the tenant at the 14 month mark, effectively giving the tenant another four months’ occupation of the rented premises. Thereafter, an application for possession is made to VCAT.
In the present case, SDYS did not apply on the tenant’s behalf for public housing and the tenant is unable, on his Newstart allowance, to afford private housing.
In accordance with its policy, Homeground gave the tenant a 120 day notice to vacate, pursuant to s 263 of the Act, on 5 February 2009 for vacation by 10 June 2009 and subsequently applied to VCAT for a possession order on 17 June 2009.
The evidence in the case established that:
- The tenant is conscientious in his payments of rent, and maintained the premises appropriately.
- The tenant had complied with all reasonable policies and requests from Homeground and SDYS.
- The likely effect of obtaining a possession order would be to make the tenant homeless (through, on the evidence, no wrong-doing or fault on his part), and to give a home to a person who is currently homeless.
There was no evidence that, prior to issuing a notice to vacate, Homeground considered the reasonableness of that decision, or the reasonableness of the implementation of its ‘youth tenancy’ policy in the circumstances of this case.
Decision
VCAT held that the Director of Housing is a public authority pursuant to s 4(1)(b) and/or s 4(1)(c) of the Victorian Charter and, further, that Homeground is also a public authority, being ‘an entity whose functions are or include functions of public nature, when it is exercising those functions on behalf of the State or a public authority [the Director of Housing] (whether under contract or otherwise)’.
As a public authority, it is unlawful, pursuant to s 38(1) of the Charter, for Homeground ‘to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.’
VCAT held that the termination of a tenancy prima facie engages s 13(a) of the Charter, which provides that ‘a person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with’. The Member noted that, in this section, the term ‘arbitrarily’ is to be understood as being distinct from ‘unlawfully’, and refers to something being ‘dependent upon will or pleasure’, ‘based upon mere opinion or preference as opposed to the real nature of things’ or ‘discretionary, not fixed’. The Member further held that, on the evidence, ‘the implementation of the landlord’s “youth tenancy” policy in the circumstances of this case was arbitrary, for the purposes of s 13(a) of the Charter’.
While not explicitly considering s 7(2) of the Charter, which permits reasonable limitations on human rights, the Member did consider the argument that the policy is not arbitrary in that it ‘reflects a need to achieve broader aims, that is, to maintain the landlord’s ability to provide transitional housing for indigent people who require it’. Rejecting this argument, the Member found that there was no evidence that transitional housing arrangements would be undermined in the absence of a strict policy such as that applied by Homeground, noting that ‘a tenant who otherwise abides by the landlord’s housing policies, and who maintains their tenancy in accordance with the provisions of the Residential Tenancies Act may, if they have been approved within the relevant time by the Director of Housing for public housing, continue in transitional housing until the public housing becomes available, regardless of how long that takes (and that in such cases, it may take years for the public housing to become available)’.
Having regard to the above, VCAT held that:
- As a public authority, Homeground must comply with s 38(1) of the Charter.
- By giving a notice to vacate pursuant to s 263 of the RTA, in the circumstances of this case, Homeground acted in a way that was incompatible with the right to privacy in s 13(a) of the Charter and, furthermore, or in the alternative, failed to give proper consideration to a relevant human right, both contrary to s 38(1) of the Charter and therefore unlawful.
- Accordingly, in the terms of s 330(1) of the RTA, Homeground was not ‘entitled to give the notice’ given under s 263.
By consequence, the application for an order for possession was refused.
The decision is available at http://www.austlii.edu.au/au/cases/vic/VCAT/2009/1131.html.
Phil Lynch is Director of the Human Rights Law Resource Centre