The Law Handbook 2024

Chapter 6.1: Tenancy 539 possession order in favour of the rental provider), the court could no longer intervene against the decision to issue the Notice to Vacate as being lawful or not. However, in relation to the second decision, it was still open to the court until the time the warrant of possession was executed to intervene and ultimately set aside the entitlement to possession or remit the matter for rehearing. Decisions should demonstrate that the decision- maker took into account the relevant Human Rights Charter rights for the parties affected by the eviction. If a party is concerned about the lawfulness of the decision for the reasons set out in the Burgess case, they should seek legal advice immediately and ensure that all internal appeal avenues have been explored. In another relevant decision – Keasey v Director of Housing [2022] VSCA 7 (2 February 2022) – the court indicated that the director’s decision to seek a possession order was not reviewable under the Administrative Law Act 1978 (Vic). However, such a decision may still be subject to judicial review by the Supreme Court prior to the possession order being granted. Reasonable and proportionate test and proper consideration The ‘reasonable and proportionate’ test may allow renters more opportunity to examine and challenge the administrative decisions of public authority rental providers (i.e. the Director of Housing or, potentially, community housing providers). While it is clear that VCAT cannot usurp or directly interfere with the administrative decision of the rental provider to seek a possession order, the reasonable and proportionate test has many similar considerations to those required by the Human Rights Charter. This may allow a renter – if permitted and considered relevant by VCAT – to examine and cross-examine the director’s decision to evict; specifically, to examine whether ‘proper consideration’ (s 38 Human Rights Charter) has been given to the decision to seek the possession order (see Loielo v Giles [2020] VSC 722 (2 November 2020), [222–257]). The information obtained in this regard is on the record and may be beneficial for renters considering judicial review. Regarding the Burgess case, it should be noted that the granting of the possession order means the decision to seek the possession order is no longer reviewable. However, the submissions and responses on record are likely to be of benefit to the question of the director taking action towards eviction. It is not clear what VCAT will permit in this regard in terms of questioning, but it nonetheless provides a renter a better opportunity to advance alternatives (s 330A(h) RT Act). It also provides a better opportunity to determine what human rights have or have not been considered in the decision to pursue the possession order, who is responsible for the decision, and why reasonable alternatives are being refused. Note that VCAT has taken a reasonably conservative approach to what ‘other course of action are reasonably available to the Tribunal’ instead of making a possession order (see LKZ v BSL (Residential Tenancies) [2020] VCAT 909 (24 August 2020)). This is particularly relevant where a renter may undertake to engage or contact therapeutic services voluntarily. While such undertakings cannot be ordered and are outside the jurisdiction of the RT Act, this is a relevant ‘course of action’ and informs what order VCAT may make (i.e. adjourning the possession order on other terms (see s 332A RT Act where available). (See also ss 130–131 VCAT Act.) To date, the reasonable and proportionate test has been treated as a relatively prescriptive consideration with regard to the list of factors in section 330A of the RT Act and the impact (s 330(f)) of the possession order on the renter (see Towell v HXO (Residential Tenancies) [2021] VCAT 450 (9 July 2021); cf. MNU v EIJ (Residential Tenancies) [2020] VCAT 1285 (17 November 2020)). What VCAT allows or considers to be relevant (s 330A(j) RT Act) in cross-examination and the relationship to the administrative decision(s) of a public authority rental provider will be seen in future cases, including whether any interlocutory judicial reviews would be possible once it becomes apparent that a rental provider has not discharged their obligations under the Human Rights Charter. Contacts Australian Information Commissioner Tel: 1300 363 992 Web: www.oaic.gov.au Monday to Thursday: 10am to 4pm Renters who think their personal information is being misused should contact the Commissioner.