The State of Queensland through the Department of Housing and Public Works v Tenant [2020] QCAT 144

Date: 15 May 2020
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Adjudicator Walsh
Human Rights Act 2019 (Qld) Sections: ss 3, 11, 12, 13, 15, 17, 19, 21, s 24, s 25, s 26, 31, 37, 48, 58, 59
Rights Considered: Freedom of movement: Freedom to choose where to live; Right to protection from torture and cruel, inhuman or degrading treatment; Right to freedom of expression; Right to privacy and reputation
Other Legislation: Charter of Human Rights and Responsibilities Act 2006 (Vic), s 7; Domestic and Family Violence Protection Act 2012 (Qld), s 159; Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 3, 4, 12, 13, 66; Residential Tenancies and Rooming Accommodation Act 2008 (Qld), ss 4, 5, 10, 26, 52, 54, 183, 184, 297A, 335, 345A, 349, 350, 527D, 527 E; Residential Tenancies and Rooming Accommodation (COVID-19) Emergency Response) Regulation, ss 6, 8

Keywords: Tenancy; Public entity; Social housing; Objectionable behaviour; Arbitrary or unlawful

The Department of Housing and Public Works sought to terminate the self-represented respondent’s State Tenancy Agreement on the basis of the ‘objectionable behaviour’ of the Respondent. The Tribunal considered that termination of the tenancy would limit the Respondent’s freedom to choose where to live; right to protection from cruel, inhuman or degrading treatment; right to freedom of expression; and right to privacy and reputation found in the Human Rights Act 2019 (Qld). It was held that the limitations on the respondent’s human rights were not arbitrary, unlawful or disproportionate, and a warrant of possession was issued.

The Applicant sought to terminate the Respondent’s State Tenancy Agreement on the basis of the respondent’s ‘objectionable behaviour.’ This circumstance fell within an exception of the moratorium on residential tenancy evictions prescribed by s 8 of the Residential Tenancies and Rooming Accommodation (COVID-19 Emergency Response) Regulation 2020 (Qld). The Applicant had received ‘over seventy complaints from twenty neighbours and approximately one hundred and forty-eight videos of objectionable behaviour of the Respondent’ which included reports of aggressive and abusive behaviour, loud and disruptive behaviour and destruction of property: at [27], [37]. The respondent suffered from serious mental illness: at [97]. She was self-represented, having received some advice and assistance from Tenants Queensland Inc (QSTARS).

The Tribunal found that it ‘would err in law if it failed to consider what human rights of litigant/s and any other human beings are relevant and engaged, and whether they are lawfully limited and qualified or rendered subordinate to the rights of others by a decision of the Tribunal’: at [152]. The Applicant is also a public entity within the meaning of section 9 of the Human Rights Act 2019 (Qld) and is required to make decisions in a way that is compatible with human rights: at [158].

Firstly, the Tribunal considered the freedom to choose where to live contained in section 19 of the Human Rights Act 2019 (Qld). The Tribunal determined that this right was reasonably limited by the State’s resources in the supply and demand of public housing. Here, the Respondent’s freedom to choose where to live was held to be reasonably limited, on the basis that her objectionable behaviour warranted termination of her lease.

Second, the Tribunal considered the right not to be treated in a cruel, inhuman or degrading way, contained in section 17 of the Human Rights Act 2019 (Qld). The Tribunal held this right was ‘sufficiently broad so as to include forcible eviction as an example of what might subjectively be considered cruel, inhuman or degrading treatment’: at [166]. However, the Tribunal determined that the right was ‘reasonably limited in circumstances where [the forcible eviction] is necessary because a tenant has failed to leave in defiance of a Tribunal order ending a residential tenancy’: at [167]

Third, the Tribunal considered that the freedom of expression contained in section 21 of the Human Rights Act 2019 (Qld) is limited by the ‘reasonably and lawfully limited’ by the requirement ‘that the expression by words and/or conduct is not objectionable’ and ‘does not seriously impact’ the rights of others: at [171].

Lastly, the Tribunal considered the right of a person to not have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with, pursuant to section 25 of the Human Rights Act 2019 (Qld). The Tribunal determined that the right not to have one’s privacy, family, home or reputation interfered with ‘is reasonably and lawfully limited where [the tenant’s] behaviour warrants the interference and the response is not arbitrary’: at [172]. Similarly, the Tribunal held that the right to protection of the family unit ‘is reasonably and lawfully limited where the behaviour of a tenant is so objectionable as to warrant the termination of a tenancy… notwithstanding its effect on the family’: at [173].

The Tribunal also considered the rights of the respondent’s 20 year old son. The Tribunal noted that if the tenancy was terminated, the respondent’s son would also lose his housing, and there was a chance that the respondent and her son would be ‘split up’: at [191]. Yet, the Tribunal found that the impact on his human rights was ‘neither arbitrary, nor disproportionate, nor unlawful’ but rather was ‘the inevitable consequence of the Respondent’s objectionable behaviour which rebounds on both mother and son’: at [192]. In coming to this conclusion, the Tribunal cited the analysis of section 7 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (identically worded to section 13 of the Human Rights Act 2019 (Qld)) by Member Kirmos in Director of Housing v Ronan (Residential Tenancies) [2013] VCAT 2050 who said at [30]:

‘While the family and in particular children are protected by the Charter, it does not mean that families or children can never be removed from public housing by legal means, where valid reasons to do so arise. It would otherwise bring about the absurd situation where public tenants, depending on their circumstances, might never be required to vacate, no matter what has arisen.’

Here, the Tribunal considered that ‘it would be an absurd outcome in the present case if, by asserting her human rights without regard for her human obligations, the Respondent could never be required to vacate the property under any circumstances’: at [195]. Therefore, the Tribunal ordered that the Respondent’s tenancy be terminated with effect from 24 May 2020.

Visit the reported judgement: The State of Queensland through the Department of Housing and Public Works v Tenant [2020] QCAT 144