Supreme court decisions
This week the Supreme Court of Victoria handed down a landmark decision on housing and human rights in Burgess & Anor v Director of Housing & Anor  VSC 648.
The decision has significant potential to improve the accountability, consistency and fairness of the decision-making of the Director of Housing (DOH) when choosing whether or not to proceed with the eviction of public housing tenants (including by affording tenants natural justice and adhering to the DOH's own policies and guidelines). One aspect of the decision – the finding that the DOH's decision to issue a notice to vacate cannot be set aside after VCAT has made a possession order – further narrows the already small window tenants have to enforce their human rights when facing eviction.
The matter run for Homeless Law by Leigh Howard, Pip Mitchell and Daniel Bolkunowicz of Clayton Utz and Daniel Aghion and Christine Melis of counsel.
Summary – warrant of possession of no legal effect and unlawful
Macaulay J held that in making the decision to apply for a warrant of possession:
- The DOH was obliged by law, including the rules of natural justice (the content of which was held to be informed by the DOH Tenancy Management Manual), to consider the facts surrounding Ms Burgess’s health and the significance of maintaining the rented premises to her health and wellbeing. The DOH’s failure to do this constituted a jurisdictional error.
- The DOH was obliged by law to consider the human rights of Ms Burgess and her son identified in s 17 of the Charter. Failure to take these rights into account made the DOH’s decision unlawful under s 38 of the Charter -.
His Honour made a declaration that the decision to apply for the warrant was and is of no legal force or effect, and was unlawful by reason of s 39(1) of the Charter .
Wingfoot – decision to issue notice to vacate can’t be quashed post-VCAT possession order
Macaulay J held that the decision of the DOH to issue the notices to vacate failed to observe the rules of natural justice and failed to take into account certain matters the DOH was bound to consider, including rights protected under s 17 of the Charter. Accordingly, the decision to issue the notices to vacate was affected by jurisdictional error and was unlawful within the meaning of s 38 of the Charter. However, Macaulay J found that the DOH’s decision to issue the notices to vacate ceased to have ongoing legal effect once VCAT made its possession order so that, on the principles set out inWingfoot Australia Partners v Kocak  HCA 43, this decision was not amenable to the remedy of certiorari.
In practice, this means that social housing tenants facing eviction will need to commence judicial review proceedings in relation to alleged Charter unlawfulness: (a) after the DOH has made the decision to issue the notice to vacate but before VCAT has made a possession order; or (b) after the DOH has made a decision to purchase a warrant. This further limits the accessibility of a meaningful mechanism for ensuring the human rights compliance of social housing providers in eviction proceedings. It is highly undesirable for low income tenants who may have a range of other vulnerabilities to have to make a decision to commence proceedings in the Supreme Court prior to exhausting the no cost, much less onerous avenue available to them in VCAT. Alternatively, to wait until a decision is made to purchase a warrant puts the tenant at risk that the eviction will take place before proceedings can be commenced or the eviction put on hold.
DOH Charter obligations when making decisions about evictions (including the decision to apply for a warrant)
In terms of the obligations on the DOH when making its decisions about when to pursue the eviction of its tenants, this judgment is a powerful one. In relation to the DOH’s decision to issue the notices to vacate and the failure to consider the negative impact of eviction on Ms Burgess and her household, the rights of Ms Burgess and her household to the protection of their family group, and the best interests of any child affected by the decision, as sanctioned by s 17 of the Charter, His Honour commented that these failures would have lead him to quash the decision if not for his finding based on Wingfoot .
In relation to the decision to apply for the warrant, His Honour also found that, prior to making the decision to apply for a warrant, the DOH should take into account relevant information that has come to his attention since making the decision to issue the notice to vacate that was not taken into account in making the decision to issue the notice to vacate or in making the decision to apply for possession: ‘Such relevant information would include information about the personal circumstances of the tenant and his or her household that bore upon any negative consequence to them by reason of the proposed eviction’ -. His Honour relied on the Residential Tenancies Act (including s 351(2) which provides that the DOH may, not must, apply for a warrant of possession) to establish the requirement for procedural fairness and its content in relation to the decision to purchase the warrant. He noted that there will always be a gap between the decision to issue a notice to vacate and the choice to apply for the warrant, ‘so a realistic potential exists for a change in the mix of factors that were first seen to justify the decision to issue a notice to vacate’ and said: ‘the significance of terminating a tenancy, and the realistic potential for a change in the justification for pursuing it, implies that the Director would at least enquire whether he had, and if so have regard to, information about such change’ .
The semi-automated way in which matters often progress from possession order to warrant stage may be more open to challenge on this authority.
Procedural fairness and the DOH Tenancy Management Manual
In considering procedural fairness, His Honour contemplated the effect of the DOH Tenancy Management Manual (Manual). He found that the rule of natural justice applies to decisions to issue a notice to vacate: ‘a decision to issue a notice to vacate sufficiently exposes the tenant to a risk of losing the tenancy to be rightly regarded as one that affects a person’s rights and interests. The starting proposition, therefore, is that the rule of natural justice must be observed in making it’ . He went on to state, citing the Full Federal Court in Minister for Immigration v Gray (1994) 50 FCR 189, 208: ‘the subject matter of a s 250 or s 250A notice suggests, in my view, that Parliament would intend that the Director apply a consistent policy approach from one case to the next in making notice decisions … Since the [Residential Tenancies Act] offers no guidelines, it can be inferred that Parliament contemplated that the Director would make guidelines for making such decisions, as was done. The existence and content of those guidelines would, therefore, constitute a relevant fact that the Director was bound to consider when making a notice decision’ (our emphasis). Further, the fact that the Manual provided a procedure for making decisions and for obtaining a tenant’s response was held to indicate that these parts of the Manual influence the content of the rules of natural justice to be afforded to the tenant before the decision to issue the notice was made . He concluded that the DOH was bound to consider the existence and content of the Manual when making the decision to issue the notice to vacate and failure to do so constituted a jurisdictional error.
In relation to the decision to apply for a warrant of possession, His Honour referred to the provisions in the Manual, which recommend that, after obtaining a possession order and before deciding to apply for a warrant, the DOH should write to the tenant warning that a warrant may be obtained and advising the tenant of his or her right to seek independent legal advice. The Manual also states that the DOH will ‘need to consider whether there are any changed circumstances which may change the original decision by the Director … to issue a Notice to Vacate’ and contains a note: ‘The Department will no longer proceed with an eviction where the tenant’s personal circumstances have changed to the extent that it is considered no longer proportionate or justifiable to seek possession to achieve the policy aim and/or a reasonable alternative option other than eviction now exists to achieve the policy objective. The [Director’s delegate] will specifically need to turn his or her mind to whether or not there are changed circumstances’. His Honour commented that his conclusion regarding the requirement for procedural fairness and its content in relation to the decision to apply for the warrant (discussed above) was strengthened by these provisions in the Manual -.