Hot on the heels of the major new Charter judgment by the Mental Health Review Board, another briefer Charter judgment has appeared on Austlii, showing that June wasn’t so quiet after all. Director of Housing v TP (Residential Tenancies)  VCAT 1275 was brought down three weeks ago and is the Director of Housing’s second attempt to obtain a ‘possession’ order (i.e. an eviction order) against TP, after the first was overturned by the Supreme Court for reasons that aren’t explained in this judgment. The facts of the case, at least those described in the judgment, are simply outrageous. It’s difficult to believe that the case ever got to VCAT, let alone beyond it. I really hope there’s something we don’t know about going on behind these scenes…
TP has been leasing her premises (managed by Aboriginal Housing) for fifteen years. She currently lives there with her four kids and is on two lengthy waiting lists for alternative housing, both to get extra space and in response to violence from DG, the father of two of her kids and the subject of a couple of two domestic violence orders obtained by TP. In March last year, DG showed up at TP’s premises after he was thrown out by his mother because he had brought pots of cannabis plants into her house. TP initially refused him entry, not least because of the cannabis pots he was carrying, but, ultimately, feeling threatened, she allowed him to stay. She insisted that he keep the pots outside while the kids were about, but he insisted on bringing them in at night. After three days, following an unidentified tip-off, the police arrived and arrested DG for cultivating cannabis. That’s the last she saw of him and his pots of pot, but it wasn’t the end of her trouble. Instead, two months later, she was served with an eviction notice by the DoH. Now, my first thought was that the DoH must have thought that the facts were somewhat different. However, in VCAT, it didn’t contest the facts but nevertheless continued to seek TP’s eviction.
The legal issue is whether the DoH could, in these circumstances, issue an eviction notice pursuant to the Residential Tenancies Act 1997:
250(1) A landlord may give a tenant a notice to vacate rented premises if the tenant has used the rented premises or permitted their use for any purpose that is illegal at common law or under an Act.
This is a tricky question, because s250(1) isn’t triggered by the simple fact that a crime occurred in a rented premises. Instead, the premises must be ‘used’ for that illegal (in this case, criminal) purpose. Illegality in premises can range from a permanent installation of cultivation equipment (clearly a ‘use’ of the premises) through to someone visiting with an E in their pocket (clearly not.) The DoH argued that TP’s premises were ‘used’ to provide shelter and security for DG’s cultivation of pot, but VCAT member Genevieve Nihill disagreed She felt that the mere presence of DG’s pots in TP’s garden and laundry – given the transience of DG’s stay (albeit only because of police interruption) and the primary use of the premises as a residence for TP and her kids – were at the other end of the use ‘continuum’. Indeed, Nihill wryly – if tangentially – observed that DG’s pots were not much more of a use of TP’s premises than the equally criminal violence DG had perpetrated against TP there on other occasions.
While that settled the issue, Nihill – unprompted by the parties – raised the Charter as a fallback argument, in particular Charter s. 13(a) (privacy) and Charter s. 17 (protection of families and kids):
In this case, if section 250 were interpreted in the context of these facts, so that the premises were said to have been used for an illegal purpose, the tenant and her children would have been evicted from their home of fifteen years. They may have faced the prospect of extended homelessness. On the other hand, the only interference to the rights of the landlord appears to have been that for three days last year a person stayed in the rented premises with some cannabis plants. If the fact situation of the case had placed it close to the half way mark along the continuum, an interpretation of the statutory provision in accordance with the Charter may have tipped it to one side.
If Nihill’s right, then more significant connections between illegal acts and the premises wouldn’t be enough to justify eviction. Maybe s. 250 wouldn’t have been satisfied even if the cannabis had stayed for a month, or was TP’s or one of her kids’, or DG did some dealing on the premises. If so, the Charter’s going to make a significant difference to Victorian rental law and practice. So, DoH v TP is an interesting judgment indeed.
But is Nihill right? My problem is that her analysis didn’t look to closely at a key limit on the Charter’s interpretation mandate:
32(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.
Nihill described the purpose of s. 250 as protecting the ‘rights of the landlord’ but what does that mean exactly? Obviously, if the illegal acts damage or devalue the premises, then the landlord’s rights are affected, but other provisions of the Residential Tenancies Act deal with such acts. So, the purpose of s. 250 seems to be about illegality that doesn’t affect the value of the property and instead is all about allowing landlords to disassociate themselves with illegality, perhaps due to moral qualms, perhaps due to issues with insurance. If that’s right, then it’d be wrong to use Charter s. 32 to adopt a definition of ‘use’ that contradicts such purposes. I’m not convinced that Nihill’s ‘half-way along the continuum’ approach – particular its use in cases that are further along than TP’s – does that, though, like I said, I’m not at all clear on exactly what the purpose of s. 250 actually is.
An alternative Charter s. 32 argument is one that focuses, not on the connection between the premises and the crime, but rather on the connection between the tenant and the crime. Section 250, on my reading, requires that the illegal conduct either be done by the tenant herself or be ‘permitted’ by the tenant. In DoH v TP, according to the facts accepted by everyone, it’s obvious that DG, who wasn’t a tenant, is the one who committed the crime; the validity of the s. 250 notice depends entirely on whether TP ‘permitted’ him to do so. . ‘Permit’, like ‘use’, is a tricky word, ranging from outright encouragement to failing to do everything you can to stop something. The DoH argued that TP had failed to call the police (though I, for one, wonder just who the anonymous tip-off came from.) But Nihill found that calling the police would have left TP and her kids exposed to violence. While some landlords may still see such a scenario as threatening their rights, simply because it still allows crimes to occur on their property, it seems clear to me that s. 250’s drafting just doesn’t stretch to cover protecting landlords from acts that were beyond a tenant’s control; otherwise, why would it have used the ‘use’ and ‘permits’ language at all? While probably not necessary, Charter s. 32, combined with Charter s. 17 (and, indeed, Charter s. 21(1)) would surely require that ‘permit’ in s. 250 be interpreted to exclude situations where the tenant or her family had to risk their physical safety to prevent the illegal behaviour in question.
There are two other things worth noting about DoH v TP. First, the key fact that leaps out at me is that the DoH is a public authority. While private landlords are free to use s. 250 however they want, I cannot for the life of me see how the DoH’s conduct here is in line with its obligations under the conduct mandate, in light of Charter s. 17. How can the DoH regard a moral or other objection to cannabis cultivation as justifying the eviction of a woman and her kids who didn’t want the cultivation to occur? Alas, for TP, the notice was issued back in 2007, before the conduct mandate kicked in (on 1/1/8); I can only hope that the DoH has changed its policy now. But it still seems to me that the DoH arguably was obliged to stop the proceeding against TP as soon as the fireworks went off on 1/1/8; what is less clear is what reliefs or remedies were available to TP for DoH’s failure to do so, given the limitations of Charter s. 39 and the lack of any apparent discretion for VCAT in the face of a valid notice under s. 250 (but I’m no expert on tenancy law.)
Second, Nihill herself was aware of the potential problem posed by the Charter’s transitional provision, Charter s. 49(2). Alas, perhaps because she was unassisted by the lawyers before her, she completely buggered that issue up:
This section presents some ambiguity as to whether or not the Charter applies in this case. Section 49 (1) makes it clear that the Charter applies to the Residential Tenancies Act 1997. It is not so clear, from section 49(2), whether or not the Charter applies to these proceedings, which commenced before 1 January 2008; that is whether or not section 49(2) is intended to apply to substantive matters or merely procedural ones.
Aaarrgh. Yep, she got the date wrong in Charter s. 49(2), presumably fooled by the Charter’s bodgy EM. Unlike Bell J in Ragg, there’s no argument on these facts that the relevant proceedings actually commenced before 2007, as DG’s visit occurred in March 2007. The horrors of Charter s. 49(2) had no application in this case. I guess Nihill hasn’t read my blog, or my article in the LIJ (which I guess came out a few days later.) At least, again like Bell, she reached the same result without the Charter.
That being said, even if she’d got the date right, she did correctly recognise that there’s a very tricky question about how Charter s. 32(1) works in the shadow year between 1/1/7 and 1/1/8. Exactly the same issue also arose in the recent MHRB ruling too, so I guess that’ll be a good place to start on my detailed analysis of that case, hopefully soon.