Property Law Essay

One of Parliament's reasons for enacting the Charter of Human Rights and Responsibilities (thereafter 'Charter') was to better protect an individual's human rights. 1 Its phrased implementation meant that while the rest of the Charter came into force on 1 January 2007, the obligations on public authorities and remedies afforded enters into force on 1 January 2008. 2 The law of residential tenancies is wholly governed by the Residential Tenancies Act 1997 (thereafter 'RTA').

Its jurisdiction lies primarily in the VCAT. 3 Given its functions,4 the VCAT is arguably a 'public authority'5 under the Charter. 6 Since the Charter governs interactions between Government and individuals and not between individuals or organisations,7 this essay deals only with landlords exercising public functions8 like the Director of Housing in its provision of public residential leases.

Given the sheer number of RTA provisions, this essay does not dwell into specific RTA provisions to avoid an arbitrary analysis, but identifies three main areas which the Charter may affect the RTA's general operation9 – an obligation to interpret RTA provisions compatibly with human rights,10 obligations on public authorities to act compatibly with or decide with consideration given to a human right11 subject to the test of limitation on a human right12 (thereafter 'proportionality test') and remedies afforded.

13 In so doing, it not only analyses immediate practical consequences and policy implications for the law of residential tenancies but goes further by suggesting that ironically because of the Charter, these immediate effects may either dissipate or lead to practical problems over time. South suggests that the Charter14 does not allow for the purpose of any legislation to be altered.

15 He argues that since the statutory interpretation is a manifestation of its purpose, because the Charter expressly provides for a 'declaration of inconsistent interpretation'16 (thereafter 'Declaration') with human rights, it accounted for those purposes which are inconsistent with human rights and hence cannot have 'impliedly amended all earlier Victorian laws to include the purpose of protecting human rights'.

17 This means that all pre-Charter legislation will have to be amended, since all provisions are designed to give effect to the higher purpose of legislation – to address some social mischief. 18 As an interpretation of a provision is derived from and gives effect to this higher legislative purpose which is the intention of Parliament, it will be impossible to interpret a provision consistently with human rights within the parameters of this purpose unless the latter is first coloured with human rights overtones.

Even if Parliament may issue an override declaration19 or is under no obligation to remove the inconsistency despite a Declaration,20 it makes sense that Parliament intended the Charter to impliedly alter the purpose in all legislation so as to maintain Parliamentary credibility – that Parliament will provide adequate protection for human rights in all legislations through the Charter. 21 It is precisely because of this implicit alteration that the Charter provides the Declaration to highlight the recent misalignment of the interpretation with the Charter-amended purpose, and the means22 for addressing the inconsistency.

The Charter thus qualifies the higher purpose of the RTA – to balance the wider interests of the landlord against that of the tenant23 – by stipulating that this balance is struck only when it accords with human rights. For pre-Charter commencement statutes like the RTA, a settled meaning of a statutory provision if later found to be inconsistent has to be re-interpreted even if it means overruling existing interpretations. 24 This might add uncertainty as to the application of the RTA such that those with genuine grievances may be discouraged from seeking redress for fear of unexpected results.

Given that represented landlords already constitute the majority of successful applicants claiming against poor, unrepresented tenants25 often because the latter are ignorant of their rights,26 such uncertainty will only cause more tenants to suffer in silence. But as the ultimate purpose of the Charter is to imbue human rights into every aspect of the community so as to build a healthier society, it is up to courts and tribunals to take the lead in achieving this goal.

The common good that a Charter-consistent interpretation will bring thus outweighs the practical consequences of the uncertainty. A fortiori there will be fewer genuine grievances concerning application of the Charter once respect for human rights is successfully inculcated in society. However, this new purpose will not only have practical implications when considered together with the Charter's obligations on public authorities27 subject to the proportionality test,28 paradoxically, it may prevent a true balance of interest between landlord and tenant.