Charter s. 39 vs tenants

The interaction between residential tenancy law and human rights law is a major issue, both here and in the UK. VCAT has already used the Charter to suggest a narrower reading of a provision of the Residential Tenancies Act that would allow eviction. But, in the UK, recent cases have suggested that the interpretation mandate and the conduct mandate have limitations (to preserve parliamentary sovereignty) that might make the Charter less effective as a relief against eviction for tenants than some people think. In particular, the interpretation mandate can’t be used to read broad limitations into a statutory eviction right and landlords who happen to be public authorities are probably fairly free to ‘give effect’ to their statutory eviction rights by acting more or less like private landlords. See here and here. A three-week old case  that just turned up on Austlii, confirms some of these limits and introduces a new one that’s unique to Victoria’s Charter, involving the first ever application of Charter s. 39 to refuse a remedy. Unfortunately, VCAT’s reasoning is more debatable. 

Director of Housing v IF [2008] VCAT 2413  involves, not eviction, but rather the Residential Tenancies Act‘s ‘compliance’ scheme, which consists of four stages: a ‘breach of duty‘ notice, a ‘compliance order‘ if the notice is breached,  a ‘notice to vacate‘ if the compliance order is breached, and, ultimately a ‘possession order‘ (i.e. eviction), if the notice isn’t complied with. Whew! In this case, the Director of Housing was attempting to get to the second stage with its tenant, IF. The problem was IF’s alleged conduct towards his neighbours:

The incidents described at the hearing by LS included once when IF threw a log of wood over the fence and hit LS’ wife on the head. LS said that he bought his son a small swimming pool but had to put it away and not allow him to use it. He described an occasion when IF exposed himself to the child. LS called the police, but when they came IF was in his underwear and so drunk that the police said they couldn’t do anything. LS said that every time his wife leaves for her work IF stalks her, walking behind her and calling her “bitch.” Once IF said to LS’ son “your dad is f…ing dead meat – we are going to get him killed.” There have been many threats of death. LS said that IF calls LS a “f…ing Columbian” and yells out that he is going to have LS killed. After the first hearing of this case, on 7 August 2008, LS had to call the police because IF was yelling out that he was going to have LS killed. LS said that IF yells abuse and threats over the fence, and so they have to stay inside and keep the back door locked.. Sometimes IF’s friend SW sits out the front with IF and also yells out abuse at L. LS said that last night – the night before this hearing – a neighbour died and IF, who had been drinking, was yelling out that “the f…ing Columbian killed her.

Broadly, the problem was IF’s alcoholism. LS’s difficulties had been going on for seven years, and (unsurprisingly) LS’s family was on a waiting list for alternative accommodation. A neighbour backed up LS’s account, but IF and IF’s friend blamed LS for the dispute. IF didn’t help his arguments much by threatening LS during the VCAT hearing.

On 24th June this year, the Director of Housing issued IF with a ‘breach of duty’ notice, specifying four incidents of abusive behaviour in the previous month in breach of a statutory duty to not ‘use the rented premises… in any manner that causes a nuisance.’ (The more-apt second part of that duty, which refers to the ‘reasonable peace, comfort and privacy’ of neighbouring premises, wasn’t cited.) The provision governing breach of duty notices states:

208(1) A person to whom a duty is owed under a duty provision or that person’s agent, may give a breach of duty notice to a person in breach of that duty.

(2) A notice under subsection (1) must- (a) specify the breach; and (b) give details of the loss or damage caused by the breach; and (c) require the person, within the required time after receiving the notice- (i) to remedy the breach if possible; or (ii) to compensate the person to whom the duty is owed; and (d) state that the person in breach must not commit a similar breach again; and (e) state that if the notice is not complied with- (i) an application for compensation or a compliance order may be made to the Tribunal…

If someone leaves something smelly in a common area, it makes sense to tell that person to ‘remedy’ that in the ‘required time’ (14 days in most cases) and to not to it again. But it’s not so clear how notices work when the breach of duty consists of a course of conduct that evinces itself occasionally, as happened with IF. What does it mean to ‘remedy’ such a breach within 14 days? And what actions amount to ‘commit[ing] a similar breach again’? These issues were squarely raised by IF, because his neighbours had a quiet month after the notice was given, but another incident (the first of several, apparently) occurred again on 24th July. Did that mean that IF hadn’t ‘complied‘ with the notice, thus allowing VCAT to issue a compliance order?

VCAT Member Geneveive Nihill considered whether Charter s. 32 required her to consider whether or not an interpretation of s. 208 as obliging IF to refrain from abusive behaviour beyond the 14 day remedy period was a limit on IF’s rights. Apparently adopting Tate’s three-step approach to the interpretation mandate, she held that s. 208(1)(d) ‘engages’ IF’s right to privacy but also engages the right to privacy of IF’s neighbours (by promoting them.) Nihill skipped onto Charter s. 7(2) and asked Tate’s third ‘justification’ question. Unsurprisingly, justification was straightforward, given that the compliance scheme merely piggy-backs onto existing legal duties of tenants, which in turn piggy-back onto rights of their own. As enforcement schemes go, the RT Act’s compliance scheme is amazingly attenuated, with multiple opportunities for VCAT review, so it easily satisfied Charter s. 7(2)(e)’s ‘minimal intrusion’ test and the broader ‘proportionality’ test.

This is all well and good, but Nihill’s analysis suffered by not expressly considering the middle step of whether or not s. 208(1)(d) limited Charter s. 13(a). That would have involved considering whether or not s. 208(1)(d) was ‘arbitrary’ or ‘unlawful’. Equally, she also skipped s. 7(2)’s ‘subject under law’ requirement. Both of these tests focus on whether or not s. 208(1)(d) imposes a clear obligation on IF. Arguably, given it’s inaptness to breaches that consist of repeated incidents, it doesn’t. Does s. 208(1)(d) apply forever? Will a single moment of abuse breach it? IF, arguably, had no clear guidance on what would be a breach. Nihill was certainly aware of this problem:

I agree that there may be a different interpretation of the operation of section 208 in the light of different facts, and in particular if a person caused a nuisance in a way that was not manifestly similar to the nuisance described in the notice, or if the repeat of the nuisance took place a very long time after the notice of breach was served. In this case, I find that the breach committed on 24 July 2008 was the same as, or strikingly similar to, the previous breaches. I find that the period of time that has passed is not so long as to make it unfair or unlikely that the tenant would be aware that he was breaching the notice.

That’s all very reasonable, of course, but it treats the task of interpretation as one that can vary depending on the facts before the tribunal. As the UK tenancy cases argued, interpretation doesn’t involve declaring a statute applicable or not to a particular factual scenario, but rather developing a broad principle and seeing if the words can be interpreted to fit it. It may well be that the only way to make s. 208(1)(d) Charter-compliant (in the sense of not capturing the scenarios identified by Nihill and, in particular, providing intelligible guidance to people like IF about what they can and cannot do) is to read it in so narrow a manner that it doesn’t capture IF’s conduct in this case. As it happens, I don’t think such a narrow reading of s. 208(1)(d) was necessary in this case. Moreover, if it was, I think there’s a good argument that it would conflict with the purpose of the provision and, arguably, the Charter rights of IF’s neighbours.

The interpretation mandate is too broad a remedy to fix a provision like s. 208(1)(d) which straddles too many scenarios, sometimes limiting a tenant’s rights, other times providing crucial support for the rights of landlords and neighbours. Instead, a more appropriate remedy is the conduct mandate. The conduct mandate, in public housing cases at least, allows s. 208(1)(d) to be given a broad reading, but potentially ameliorates some of its negative effects by barring public landlords from applying it in individual cases where it would work unreasonably. The good news is that just such an argument was made by IF:

The tenant has made extensive and interesting submissions about the landlord’s obligations under the Charter. Essentially the tenant has submitted that the landlord is a “public authority” under section 4 of the Charter, and is therefore required by section 38 to act compatibly with the Charter. It must do so, submitted the tenant, when exercising its powers under the Housing Act 1983 with respect to the acquisition, disposal, development and management of land. In managing this tenancy, including making the decisions to serve a notice of breach and to apply for a compliance order, the landlord exercised these powers. According to the tenant, it did not do so in a way that was compatible with the Charter. I agree that the Director of Housing is a public authority as defined in section 4 of the Charter. This is clearly the case; the Director of Housing is a public official, and the Office of Housing (a unit of the Department of Human Services) is an entity established by a statutory provision that has functions of a public nature

The finding that the Director and the Office are public authorities is, of course, correct. 

Alas, Nihill held that, even if this argument was correct, she couldn’t do anything about it!:

After careful reflection, I do not consider that I have the jurisdiction to go behind the application made by the landlord, and review whether or not the landlord acted in a Charter compatible way in reaching the decision to make the application. In relation to this proceeding, in this jurisdiction, I can only make decisions about the provisions of the Residential Tenancies Act 1997 and the Victorian Civil and Administrative Tribunal Act 1998. The Residential Tenancies Act 1997 is very detailed. It provides jurisdiction for a wide range of decisions about residential tenancies, boarding house residencies, and caravan park residencies. It makes no distinction between private and public tenancies. It does not provide for the review of decisions made under the Housing Act 1983 by the Director of Housing.  Any challenge to the decisions of the Director of Housing made under the Housing Act would need, I think, to be brought in a different jurisdiction. The conduct of government bodies in the exercise of their decision making power is reviewable under the Administrative Law Act 1978.

If this is true, then it’s quite a problem, as it’ll mean that any public housing case will have to proceed in two courts: VCAT and the Supreme Court (and the latter is scarcely geared towards the quick informal hearings that are generally considered necessary to resolve residential tenancies disputes.) Nihill made it clear by a reference to the dreaded Sabet that her finding is a purported application of the dreaded Charter s. 39(1):

39(1) If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

So, this appears to be the first time the Charter’s remedies section has been used to deny someone a remedy.  Charter s. 39(1), you might recall, is meant to reduce the amount of litigation under the Charter; it’d be doubtful that this purpose would be achieved by forcing most public housing disputes into the Supreme Court. So, fortunately, it’s probably a doubtful ruling.

I’ve covered Charter s. 39(1) in some detail in this blog: its origins, effects, limits and consequences. It’s a nightmare provision, even by the shoddy standards of the Charter. Nihill’s ruling is correct in once sense: if she is to give IF a remedy based on a breach of the conduct mandate by the Director of Housing, then such a remedy must be sourced from something ‘otherwise than’ the Charter. But her approach seems to assume that the remedy must be a public law remedy, such as judicial review. I don’t think there’s any basis to read the term ‘relief or remedy in respect of an act or decision of a public authority’ as limited in that way, nor is there anything in the purpose of Charter s. 39(1), whatever it is, that would demand such a limitation, or exclude remedies that are apply to both public and non-public authorities. (Interestingly, whereas the common law rule excluding illegally obtained evidence is limited to law enforcement authorities, the equivalent rule in s.138 of the UEL is not so limited. Surely, though, that won’t rule out the use of that rule for Charter breaches?)

To the contrary, VCAT’s residential tenancies branch has plenty of remedies available to it for wrong acts by all landlords, including the acts by the Director of Housing in his/her capacity as a landlord. Indeed, a commenter to one of my previous posts pointed out any number of quite interesting and broad remedies. Under the RT Act itself, s. 452 allows for applications in respect of breaches of the tenancy agreement or the RT Act (including by non-parties to the agreement), and s. 472 provides for a variety of remedies, including prohibitions, injunctions, compensation and ancillary orders. Moreover, s507A(2) extends the Fair Trading Act’s remedies provision to breaches of the RT Act, supplying even broader remedies. Now, of course, both of these options are expressed as remedies for breaches of the agreement or the RT Act, rather than the Charter. However, as I argued here, the wording of Charter s. 39(1) seems to allow these remedies for a certain sort of ‘unlawfulness’ to be used for Charter unlawfulness as well. That being said, it’s possible that a court will give Charter s. 39(1) a narrower interpretation than its existing words in this respect.

A less scary argument is to rely on the terms of of the provision that the Director of Housing sought to rely upon:

212(1) In the case of an application under section 209, if the Tribunal is satisfied that the person was entitled to give the notice and that it was not complied with it may make any or all of the following orders- (a) the person in breach must remedy the breach as specified in the order; (b) the person in breach must pay compensation as specified in the order; (c) the person in breach must refrain from committing a similar breach.

Surely, a public authority is not ‘entitled’ to give a notice if such an act is unlawful under the Charter’s conduct mandate? As it happens, Nihill appeared to recognise such an argument:

I have reached the conclusion that I do not have the jurisdiction to, in effect, review an administrative decision made by a government body. It may be that this analysis is wrong, and that if the decision to apply to the Tribunal were not Charter compliant then it would be fundamentally unlawful.

Her fallback was to argue that, in any event, the Director of Housing had not breached the conduct mandate:

In any event, in this case, the agent for the Director of Housing gave considerable evidence at these hearings about the process of the decision it made to serve the notice of breach and to apply for a compliance order. The nuisance behaviour of IF had been occurring for several years. Many other steps had been taken to attempt to resolve the problem caused to IF’s neighbours, who were also the landlord’s tenants. These included, according to the evidence, the offering of support services to IF. LS had also sought a mediated resolution. IF had been transferred previously from another property because of similar behaviour which presented similar problems for neighbours. The landlord described itself as being well aware of its obligation to provide quiet enjoyment to its other tenants, and noted that it had taken this obligation into account. The landlord was well aware of the impact of the situation on LS and his family, and of the right of LS and his family to privacy. The concerns of LS had been repeatedly reported to the landlord, and documented. Of all the legal options that might have been available to the landlord under the Residential Tenancies Act 1997, including possibly an application for possession for danger or an application for possession for successive breaches, the course of action adopted was the least restrictive of IF’s rights. These are the kinds of considerations that would need to be taken into account by a public authority in the making of a Charter compliant decision. Specifically, these are the matters a public authority would need to consider in an assessment of the section 7 factors in relation to the rights engaged in the decision making process.

This is all convincing, though I maintain my view that it’s not appropriate to assess compliance with the conduct mandate according to a Charter s. 7(2) analysis, which is aimed at law-makers, not law-appliers. Rather, the relevant defence (assuming Charter s. 38(3), on private acts, isn’t available) is Charter s. 38(2):

38(2) Subsection (1) does not apply if, as a result of a statutory provision or a provision made by or under an Act of the Commonwealth or otherwise under law, the public authority could not reasonably have acted differently or made a different decision.

The House of Lords recently considered the application of this defence in a tenancy eviction case, and it makes for interesting reading. See this post. As I see things, the Director of Housing would be on solid ground in regards to its act of issuing a compliance notice, not only on the basis that that would be ‘giving effect to’ the RTA’s compliance regime, but also that it would be giving effect to its obligations to IF’s neighbours. (In cases where neighbours weren’t involved, its defence options would be narrower.) But, as Mance argued in Doherty, the Director of Housing is still required to give ‘proper consideration’ to IF’s rights. Nihill’s argument would seem to establish that the Director had done so.

All up, Nihill’s judgment seems to get to the right result for the right general reasons, but her application of the various operative provisions is loose and her reading of Charter s. 39(1) is far too restrictive. These things might well matter a lot in other cases, but fortunately they don’t seem to count much here. As Charter judgments go, it’s much better than many others to date. Alas, I have a feeling that this won’t be the end of the dispute between IF and the Director….

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