Jurisdiction lies primarily in the VCAT

In Cosic v Director of Housing29 decided pre-Charter, the VCAT considered the meaning of 'hardship' in interpreting RTA s 233(1)(c). It concluded that the Director had experienced more 'hardship' through maintaining the waiting list of persons in need of public housing30 than Cosic, who could easily find and afford private housing. The VCAT's decision implied in obiter that if a tenant could satisfy all 3 pre-conditions,31 it would then apply the proportionality test32 by considering those who waited on the list before making its decision.

33 In Director of Housing v Andrew34 decided post-Charter, the Supreme Court upheld VCAT's decision on the Director's liability for breach of quiet enjoyment35 but found VCAT's decision based not solely because the Director had placed a mentally disabled tenant (DJ) next to her. Although the Director was open to argue in defence that its actions were valid on anti-discriminatory statutory grounds, it had not fully discharged this burden of proof.

36 Consequently, the Court dismissed the appeal because the Director had placed DJ next to a household with a child despite knowing DJ's destructive behaviour. The two cases show the effects of the Charter on the law of residential tenancies. In Cosic, it was implied that even if the 3 pre-conditions were satisfied, applying the common law proportionality test alone would cause a tenant to be evicted. It may be inferred that the VCAT was reluctant to grant the tenant a lease because it still felt the Director's hardship of providing for the people on the list was more important.

37 Such disregard of the tenant's human rights38 might lead to a decision in the tenant's favour had Cosic been litigated post-Charter. In Andrew, the VCAT found the Director able to relocate DJ. Although s 38(1) and s 7(2) were not explicitly referred to in Andrew, it may be inferred that the VCAT considered those sections. This is because in finding for Andrew, the VCAT appeared to have given more weight to Andrew's rights under the Charter to a safe environment for her child39 than the Director's burden of providing tenancy for DJ and the people on the list.

Consequently, the combined effect of s 38(1) and s 7(2) may favour tenants while landlords face the constant danger of having their interests overlooked. Over time, this will weaken the power of the RTA in enforcing the rights and duties of landlords and tenants, giving tenants the carte blanche to act independently of their duties under the RTA and then attempt to rely on the Charter to shirk responsibility, leaving public authorities the unenviable task of weighing between the combined effect of s 38(1) and s 7(2) with s 38(2).

Upon closer analysis however, the effects of the Charter provisions on the RTA does more than merely favouring the tenant's interest over the landlord. Although in both cases the VCAT had to consider the interests of the people on the list and the Director's hardship in accommodating them, the difference in decision turns on the approach towards the Director's hardship. In Andrew, the Charter obligations forced the VCAT to overlook the Director's interests in favour of the tenant while the hardship of the Director could influence the tribunal's decision in Cosic.

Operation of s 38(1) and s 7(2) therefore gives the VCAT power to make decisions that have resource-allocation and budgetary implications40 in the area of public residential tenancies because over time, the Director will have to allocate more resources and budget to accommodate those on the list. While there is no obligation on public authorities to provide tenancy under the Charter,41 if they deny individuals tenancy in contravention of a human right under the Charter,42 they will be acting unlawfully under s 38(1).

43 Since the wide range of human rights protected under the Charter makes it difficult to deny an individual tenancy, the combined effect of s 38(1) and s 7(2) may unwittingly burden public authorities with the responsibility of providing sufficient residential tenancies over time. Arguably, this brings the scope of the RTA closer to that of the Housing Act 1983. 44 Some argue that although the Charter's interpretative obligation and the obligation on public authorities have far-reaching effects on the RTA, the reliefs and remedies offered by the Charter are limited.

As aforementioned, the relief for an inconsistent interpretation is a Declaration that neither affects the validity of the provision45 nor gives rise to any cause of action46 despite allowing for possible amendments to the RTA. Yet regardless of whether the RTA is amended, the mechanisms triggered by a Declaration not only keep its provisions under constant Parliamentary review, it indirectly keeps both Parliament and the RTA abreast the current tenancy situation in Victoria. Ironically, the ambiguous s 39(1) has the greatest effect on the RTA in terms of the remedies it affords.

'(U)nlawfulness' in s 39(1) refers to any 'unlawfulness' arising under s 38(1). 47 While a literal reading of s 39(1) suggests that no remedies will be available for breach of s 38(1) unless there exists a non-Charter action for remedies, Gans argues that s 39(1) confers a freestanding cause of action for one to seek remedies should a public authority's particular conduct breach s 38(1) so long as the remedy is available when that particular conduct is considered unlawful under the non-Charter legislation.

The public authority's conduct need not be unlawful under the non-Charter legislation, nor need there be a non-Charter action before remedies may be sought for breach of s 38(1). 48 This latter interpretation of s 39(1) may be preferred to give effect to the Charter's purpose49 since providing a remedy for breach of a human right in such context would be an indication of Parliament's intention to take human rights seriously, thereby effectively promoting and protecting it.

Conversely, requiring an existing non-Charter breach as a pre-requisite to acquiring remedy for a Charter breach may be the very 'antithesis of taking human rights seriously'50. While the Charter would not provide more remedies than those already offered in the RTA,51 it nevertheless provides more grounds for seeking remedies under the RTA, enabling the parties to receive remedies where none would have existed in pre-Charter times. This essay has shown that the interpretative obligation has impliedly amended the RTA's purpose so as to add uncertainty to its application.

Drawing on case studies, it argues that the combined effect of s 38(1) and s 7(2) may favour tenants at the expense of landlords' interests. This may weaken RTA's power in enforcing tenants' duties thus giving them the liberty to act irresponsibly and then rely on the Charter provisions to shirk responsibility leaving public authorities to weigh between this combined effect and s 38(2). A deeper analysis of the cases reveals that these provisions give public authorities power to make decisions with resource-allocation implications in the area of public residential tenancies.

Over time, this unwittingly transfers responsibility onto public authorities to provide sufficient public residential tenancies, bringing the scope of the RTA closer to the Housing Act. In terms of relief and remedies, while a Declaration does not guarantee an amendment of an inconsistent provision, it indirectly keeps both Parliament and the RTA abreast the current tenancy situation in Victoria. Finally, this essay argues that s 39(1) provides more grounds for parties to seek remedies under the RTA, consequently giving them remedies where none would have existed pre-Charter.