The Commissioner for Housing in the ACT v Y [2007] ACTSC 84 (12 October 2007)

Last Updated: 30 September 2008

HUMAN RIGHTS ACT

THE COMMISSIONER FOR HOUSING IN THE ACT v Y
[2007] ACTSC 84 (12 October 2007)

LEASING AND TENANCIES – Public Housing Program – Respondent struck off register but reinstated following review – whether error of law – if hardship is raised in relation to the income test, the hardship test ought to be applied after the question of whether amounts can be excluded from eligible income is determined.
HUMAN RIGHTS – Right to a fair hearing – whether discretionary administrative decisions subject to judicial review.

Housing Assistance Act 1987, cl 12(1), (2), ss 4, 7
Housing Assistance Act 2007 (ACT), subs 12(9)
Public Rental Housing Assistance Program 2006 (No 2), sub cl 9(1)(i), cl 7, 9A, 30
Administrative Appeals Tribunal Act 1989 (ACT), s 46
Human Rights Act 2004 (ACT), ss 11, 30, 21(1)

Matusiak and Commissioner for Housing [2002] ACTAAT 25 (14 June 2002)
Z and Commissioner for Housing [2007] ACTAAT 12 (29 May 2007)

ON APPEAL FROM THE ACT ADMINISTRATIVE APPEALS TRIBUNAL

No. SCA 42 of 2007

Judge: Higgins CJ
Supreme Court of the ACT
Date: 12 October 2007

IN THE SUPREME COURT OF THE )
) No. SCA 42 of 2007
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE ACT ADMINISTRATIVE APPEALS TRIBUNAL

BETWEEN: THE COMMISSIONER FOR HOUSING IN THE ACT

Applicant

AND: Y

Respondent

ORDER

Judge: Higgins CJ
Date: 12 October 2007
Place: Canberra

THE COURT ORDERS THAT:

1. The application for leave to appeal be refused with costs.

1. This is an application by the Commissioner for Housing in the Australian Capital Territory (the Commissioner) for leave to appeal from a decision of the Australian Capital Territory Administrative Appeals Tribunal (the Tribunal). The respondent, for privacy reasons, is referred to as “Y”.
2. On 26 October 2006 a delegate of the Commissioner decided to deny an appeal by Y against a decision to remove her name from the Housing Assistance Register, and to cancel her application for housing assistance. The original decision was supported, on the internal review, in the following terms:

[Y] stated that the Statement of Material Facts was correct. [Y] informed the Committee that she felt she was being punished for working. She stated that she did not believe the gross salary should be taken into account as she was paying before and after school care and also child care. [Y] further stated that if she gave up her job and stayed at home she would be better off financially but this went against her own value system. [Y] added that she does not receive a disability allowance for her son as Centrelink do not consider severe asthma and a sleep disorder a severe disability.
[Y] said that the only way she could afford a car was by salary sacrificing as no financial institution would give her a loan as she was a single parent. She needed the car to drop the children at different places on her way to work and would not be able to do this if she relied on public transport. Looking at other work options such as working full time would not be financially beneficial, (because of the increased cost of child care) [Y] stated, and her income was stable now and would not change. [Y]’s rent with Communities @ Work is $180 per week and she said that if she was to rent on the private market if would be over $300 and her budget would be in deficit. [Y] informed the Committee that all she wanted for her children was stability.
Ms Unger informed the Committee that she had done some research on the private rental market and did not believe it was affordable for [Y]. Ms Unger also stated that she believed that [Y] was already struggling and she was concerned about her mental health, which she had seen deteriorate since she heard of the cancellation of her application for housing assistance.
At the end of the interview [Y] brought up another issue. [Y] said that she was advised to stay at home last Friday to sign for her papers but they were not delivered until Monday when they were put in her letterbox. She was concerned that someone else could have accessed these papers.

3. Y appealed to the Tribunal. The Tribunal decided to uphold her appeal. That decision was handed down, with written reasons, on 4 May 2007.
4. The matter involved the application, pursuant to the Housing Assistance Act 1987 (now replaced by the Housing Assistance Act 2007 (ACT) (HAA)) of the Public Rental Housing Assistance Program 2006 (No 2) (the Program).
5. The Program sets out the criteria for the allocation of public housing. They include lawful residency in Australia, length of residence in the Australian Capital Territory, age of the applicant, lack of any proprietary interest in real estate, value of assets and income. Income was the issue. Subclause 9(1)(i) of the Program stated as to that criterion:

If the household is made up of more than 2 people, the weekly income of the applicants plus 10% of the combined weekly income of all other independent people in the household is not more than 75% of AAWE [Australian Average Weekly Earnings] plus 10% of AAWE for each person in the household in excess of 2 people.

6. The threshold as calculated by that formula and applied by the Tribunal was $720 per week.
7. “Weekly Income” was defined by cl 7 of the Program:

(1) For this program, the weekly income of an applicant is the greater of -
(a) the person’s gross income each week as at the day the application is made; and

(b) the average gross weekly income of the person in –

(i) the 26-week period immediately before the day when the application is made; or
(ii) another period decided by the commissioner as appropriate in the circumstances of the application.
(2) However, the commissioner may disregard an amount for subclause (1)(a) or (b) if the commissioner considers it appropriate in the circumstances of the application.

8. In addition to the discretion conferred by cl 7(2), cl 9A of the Program provided:

Hardship
If the commissioner is satisfied that an applicant is suffering severe hardship that cannot be alleviated by any other means, the commissioner may disregard any criteria mentioned in clause 9(1) (other than paragraph 9(1)(d) [which related to minimum age]) in deciding whether the applicant is eligible for assistance.

9. The applicant’s case was described by the Tribunal in the following terms:

8. The applicant presented the evidence for her case in statements and documents provided to the respondent and the Tribunal and in oral evidence given at the hearing before the Tribunal. A single mother with two children, a daughter 9 and a son, 4, she first made an application for housing assistance in July 2004. In early August 2004 her application for early allocation of housing assistance was denied but she was placed on the Standard Allocation housing assistance list for a 3 bedroom house.
9. She again applied for early allocation of housing in November 2005, when her landlord sold her rented property and she was unable to find another property to rent. After she had attempted to rent properties and not been chosen, she told the Tribunal that she was informed by real estate agents that renting was at the discretion of landlords who believed that her single family income was not sufficient to meet rental payments. With nowhere else to go, she reluctantly returned with her two children to live in her parents’ 3 bedroom house where both her parents and her older sister with her young son also lived, a total of four adults and three children in a 3 bedroom house.
10. She and her two children then shared a bedroom with her mother who, in addition to suffering from rheumatoid arthritis, was also recovering from a second operation following a recurrence of breast cancer.

11. The living situation was made more difficult because the applicant’s son, in addition to being a severe asthmatic, suffers from a disruptive sleep disorder, medically diagnosed as “confusional arousals”, a type of parasomnia, which causes him to scream and shout in his sleep, throw himself around and become inconsolable about 2 hours after going to bed. During this behaviour which the applicant described as resembling a noisy temper tantrum, her son’s confusion while asleep means that he is not responsive to his family during these episodes which can last for up to 20 minutes. There is nothing that can be done to stop the episode once it begins. To wake him is not a solution because it can increase his confusion.

12. The close proximity of the applicant’s son to other members of the family meant that the others in the house were considerably disrupted because their sleep was disturbed and they were unable to help in any way. This caused additional stress for the applicant’s mother. The applicant provided documentary medical evidence to Housing ACT about the medical condition of mother and son that supported her claims.
13. An additional serious concern for the applicant was her alcoholic father’s swearing at and verbal tormenting of her children. As a child, she had experienced his abusive behaviour until she left home at 18, with no intention of ever returning to her parent’s home, and she became very upset when her father in turn abused her children.
14. In January 2006 she was approved for early allocation housing assistance. The applicant told the Tribunal that, in order to avoid her father, she and her children spent as much time out of the family home as possible and returned only to eat and sleep. However her father’s continual verbal abuse of her children eventually forced her to try to find other accommodation, because, she said, she could no longer handle her father’s abuse of her children. In June 2006 she found temporary supported accommodation with the Communities @ Work Women’s Housing Program (WHP) to tide her over until she was allocated public housing. The 12 month period for WHP accommodation is due to cease in June 2007 and she has no alternative accommodation.
15. The applicant also told the Tribunal that she was forced to change from one WHP property to another because a former partner, the father of her son, harassed and verbally abused her, calling her names, following her home from work, driving past her place of work and waiting for her outside her house, standing outside her house in the middle of the night, interrogating her children about her behaviour, causing property damage, sending excessive numbers of text messages and issuing threats. He turned up at her daughter’s school and her son’s day care in defiance of a court order. He has twice been charged with breaching a domestic violence order, he has broken bail conditions, and he has spent time in custody pending a court appearance. The applicant is hopeful he does not know her present address but continues to fear for the safety of her children and herself.
16. In July 2006, when her housing application was re-assessed she received the news that her application for housing assistance had been cancelled because a recent revision of the Program resulted in a reduced income limit and her gross income was now found to exceed the qualifying income barrier. She sought a review of that decision. When she was questioned about her weekly income she explained to Housing ACT, and eventually to the HRC, her reasons for entering into an arrangement to make car payments through salary sacrificing and also explained that to cancel this contract would leave her with a large payout that she could not afford. The applicant’s appeal against the decision to deny her housing assistance was unsuccessful.
17. The applicant said that while it would have been easier to avoid all her current problems by staying at home and living on welfare benefits, she wanted to work to set a good example to her children. She informed the Tribunal that she has been with her present employer working as an assistant in administration for over 4 years. Before seeking housing assistance in July 2004, she had arranged for the lease of a car, a Toyota Corolla, because this was the only way she could get her son to and from day care, her daughter to and from school and still be at work by 8:30 am. The car she had owned previously had become too costly to keep running and was not safe to use. She had replaced the gearbox, the clutch and the alternator, but it used excessive amounts of oil and brake fluid, and when she was advised to replace the engine, she had been quoted $2500. She could not afford to pay this and despite enquiring at a range of lending institutions, she was unable to obtain a car loan. She wanted to continue to work but she could not do this without a car, and, unable to afford a replacement vehicle, and having been refused a car loan, the only option left to her was to lease a car under a salary package arrangement available to members of the workforce. Because she could not sell her previous car, she gave it away when she received her new car.
18. In response to cross-examination, the applicant explained that when she first entered into the leasing agreement, she was expected to drive 25,000 kilometres per year. The leasing company was not prepared to grant a lease unless payments were less than 50% of her salary. The maximum term for a lease had been set at 5 years and she had chosen this period to keep her payments as low as possible. After a time, she had realised she would not be able to drive 25,000 kilometres per year and when she received a salary increment she varied the lease. For an additional weekly cost she arranged for fuel and maintenance to be included. The applicant said that the lease agreement expires in 2009 and, should she break the lease before that time, she would be liable for the balance of the price of the car valued at the time of entering into the lease. Documentary evidence was provided to the Tribunal that the current pay out figure is $16,300.
19. The applicant was cross-examined about what enquiries she had made about actions she could take to release herself from the contract. She was asked if she had investigated what she would receive if she sold the car. She said that she had enquired about this and had been quoted a figure of $12,000 to $12,500. She was then asked whether she had examined the possibility of selling the car and obtaining a loan to pay out the rest of the balance, perhaps adding a further sum to cover the cost of purchasing a second-hand car. The applicant told the Tribunal that she had not carried out those specific enquiries but that several months ago she had enquired about a personal loan which had been refused. As she had been refused a car loan before she originally leased the car and had been refused a personal loan recently, she assumed she would still be unable to obtain a car loan.
20. During cross-examination about her need for a car, it was suggested to the applicant that she could send her children by bus across a number of suburbs to school and day care. In response, the applicant pointed out that her son was four years old. Asked about sending her daughter to school by bus she replied that there is no bus service from where she lives to her daughter’s school. She did not believe her daughter, just turned nine, was responsible enough to use bus transport to school and be safe. Questioned further about this matter, the applicant said if she worked her children would have to wait at bus stops alone before and after school. She said she would have concerns about the safety of her children travelling by bus on their own.
21. Asked whether she had investigated other work options such as finding another position where she could use the skills she had learned, perhaps one with longer hours where she could earn more, the applicant replied that she had been in her current position as an assistant in the administration area of her place of work for less than a year and was still acquiring certain skills; for example, she had never before used a computer and the computer program used was specific to her current employer. She explained that her work conditions include school hours and school holidays and any extra income from changing to another position with longer hours would be taken up with additional child care payments.
22. The applicant agreed that her income is currently $839.41, the car lease payments are $229.08 per week, and the qualifying income barrier is $720 per week.
    

10. The Tribunal noted that the discretion conferred by cl 9A of the Program was not limited to financial hardship. The Tribunal accepted Y’s contention that, in consequence of the commissioner’s decision not to allocate housing to her:

[35] ... [she] suffers the uncertainty and insecurity of knowing that in two months she and her two young children will be homeless when her term in a WHP property comes to an end. I accept the applicant’s evidence that she will not be able to rent in the private market. There is no reason to believe that the availability of rental housing properties has improved since she last unsuccessfully tried to find a property to rent.

11. The other option, returning to the family home, was not an acceptable option because of domestic abuse. It would, in any event, have been overcrowded. As noted above, Y’s son has a disruptive sleep disorder which limits options for other shared accommodation.
12. The Tribunal accepted that it was impracticable for Y to work longer hours as any additional income would be consumed by extra child-minding fees.
13. In summary, the Tribunal found:

[42] On the basis of the evidence, I find the above options suggested by the respondent’s representative to be unachievable, undesirable or not viable. Unable to break the car leasing contract without suffering a financial penalty of $16,300 which she does not have the means to pay and cannot cover with a loan, the applicant is effectively locked into the car leasing agreement and thus meets Ms Besemeres’ criterion for “severe hardship”.
And concluded:
[43] ... The totality of the applicant’s situation leads me to conclude that she is suffering severe hardship that cannot be alleviated by any means other than by assistance under the Program and that therefore the discretion available in clause 9A of the Program should be exercised.

14. The Tribunal therefore decided that the applicant be allocated three bedroom housing in her area of choice on a priority needs basis.
15. On 1 June 2007, the Commissioner sought leave to appeal against this decision. That leave is required by virtue of s 46 of the Administrative Appeals Tribunal Act 1989 (ACT) (AAT Act):

(1) A party to a proceeding before the tribunal may appeal to the Supreme Court on a question of law from a decision of the tribunal in the proceeding.
(2) The appeal may be brought only with the Supreme Court’s leave.

16. The Commissioner contends that the decision of the Tribunal was affected by several errors of law.
17. First, that the decision not to exercise the discretion under cl 9A of the Program was not reviewable by the Commissioner and hence not reviewable by the Tribunal by reason of cl 30 of the Program.
18. Second, it was contended, the Tribunal had impermissibly placed the onus of proof upon the Commissioner to establish factual matters relevant to the exercise of discretion under cl 9A of the Program.
19. Third, it was contended that the power of the Tribunal did not extend to directing a particular category of accommodation.

Reviewability of exercise of cl 9A discretion

20. The Program was prepared pursuant to s 12(1) of the Housing Assistance Act 1987 (ACT) (HA Act). That Act is soon to be superseded by the Housing Assistance Act 2007. Subsection 12(9) of the HA Act provides:

The following instruments are disallowable instruments:
(a) a program, if the program has been approved by the Minister;
(b) an amendment or revocation of the program, if the amendment or revocation has been approved by the Minister;

(c) a determination by the commissioner of fees payable under a program.

21. By virtue of ss 4 and 7 of the HA Act, the Commissioner is a public servant and a corporation sole.
22. The Program makes express provision for some decisions of the Commissioner to be “reviewable decisions”. That is to say, decisions the Commissioner may review whether personally or after recommendation from the Housing Review Committee (see cl 26 of the Program).
23. Clause 27 of the Program defines what are “reviewable decisions”. In cl 27(1)(a) there is included for that purpose:

... a decision about an application for assistance, not including a decision under clause 9A ...

24. Clause 9A provides:

If the commissioner is satisfied that an applicant is suffering severe hardship that cannot be alleviated by any other means, the commissioner may disregard any criteria mentioned in cl 9(1) (other than paragraph 9(1)(d)) in deciding whether the applicant is eligible for assistance.

25. Clause 9(1)(d) of the Program is not applicable to Y.
26. The Commissioner, notwithstanding cl 27(1)(a) of the Program, in fact reviewed and confirmed the original decision not to exercise the discretion conferred by cl 9A in favour of the applicant.
27. The decision to review and confirm the original decision thus attracted neither cl 28(4) or 28(7) (further review).
28. It is only a decision under cl 28(7) of the Program that is expressly stated to be reviewable by the AAT.
29. Subsection 12(2) of the HA Act permits the Commissioner to provide in a Program for review of stated decisions by way of reconsideration and by way of review thereof by the AAT.
30. Section 24 of the AAT Act confers power upon the AAT to review certain administrative decisions. It provides:

24. Tribunal may review certain decisions
(1) An enactment may provide that applications may be made to the tribunal -
(a) for review of decisions made in the exercise of powers conferred by that enactment; or
(b) for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
(2) If an enactment makes provision in acordance with subsection (1), that enactment -
(a) shall specify the person to whose decisions the provision applies;
(b) may be expressed to apply to all decisions of a person, or to specified decisions of that person; and
(c) may specify conditions subject to which applications may be made.
(3) If an enactment makes provision in accordance with this section for making applications to the tribunal for the review of decisions by a person made in the exercise of a power given to the person, the provision also applies to decisions made in the exercise of the power by anyone else who is lawfully authorised to exercise the power.
(4) The tribunal has power to review any decision in relation to which application is made to it under any enactment.
(5) In a proceeding in relation to a decision of the Minister or Executive under the Land (Planning and Environment) Act 1991, the tribunal may review any decision of a concurring authority within the meaning of that Act.
(6) For an enactment that makes provision in accordance with this section for the making of applications to the tribunal for review of decisions, a failure by a person to do an act or thing within the period prescribed by that enactment, or by another enactment having effect under that enactment, as the period within which that person is required or permitted to do that act or thing shall be taken to be the making of a decision by that person at the end of that period not to do that act or thing.
(7) If an enactment provides for applications to the tribunal, that enactment may also include provisions adding to, excluding or modifying the operation of any of the provisions of sections 19, 19A, 20, 21, 25, 27, 28, 31, 32, 34, 39A (1) and 44 (1) and (3) in relation to such applications, and those provisions have effect subject to any provisions so included.
(8) The operation of a provision of section 20 shall not be taken to be excluded or modified by an enactment unless the enactment makes express provision for the exclusion or modification of the operation of that provision.

31. Neither the HA Act nor the Program provided for a review of a cl 9A decision. However, there was reference in the decision under review to cl 7 of the Program. It was submitted cl 7 could be applied. That provides:

(1) For this program, the weekly income of an applicant is the greater of—
(a) the person’s gross income each week as at the day the application is made; and
(b) the average gross weekly income of the person in—
(i) the 26-week period immediately before the day when the application is made; or
(ii) another period decided by the commissioner as appropriate in the circumstances of the application.
(2) However, the commissioner may disregard an amount for subclause (1) (a) or (b) if the commissioner considers it is appropriate in the circumstances of the application.

32. A decision under cl 7(2) of the Program is a reviewable decision for the purposes of s 24 AAT Act. The applicant’s case before the Tribunal primarily rested on cl 9A but also relied on cl 7(2). The discretion conferred by cl 9A relates to any of the eligibility criteria not met by an applicant, including, but not limited to, the level of weekly income.
33. However, if the “weekly income” had been found by the Commissioner to be a figure which after the application of cl 7(2) fell below the eligibility limit, then cl 9(g), (h) or (i) would have been satisfied without the need to apply cl 9A.
34. The Tribunal approached the issue in reverse to this process of reasoning. It determined that cl 9A should be applied so that cl 7(2) did not need to be considered.
35. Counsel for the Commissioner did not refer the Tribunal to cl 30 of the Program. She did, however, submit that cl 7(2) of the Program should not “overrule” cl 9 in relation to the criterion as to income.
36. Matusiak and Commissioner for Housing [2002] ACTAAT 25 (14 June 2002) was referred to as authority for that submission. That decision is not, of course, binding on me.
37. The facts in Matusiak (supra) were that the applicant slightly exceeded the income limit for eligibility. It was a previous Program, not the current one, that applied. There was a discretion (cl 14 of that previous Program) to disregard stated criteria and make an order on the basis that severe hardship to the applicant could not be alleviated by any other means. The Tribunal considered that to be the appropriate and applicable test to apply rather than disregarding part of the income. It had been suggested that higher than usual medical expenses could be considered so as to disregard that part of the applicant’s income so as to bring the applicant’s household income under the income limit. However, the Program, as by then approved, permitted the Commissioner to disregard for the purposes of the income test only “income of a kind which the Commissioner has determined should be disregarded for the purposes of this Program”.
38. That was a discretion with respect to classes of income, not, as in cl 7(2) of the current Program, a discretion based on a judgment as to whether the circumstances make it “appropriate” to disregard an amount which otherwise would be counted as income.
39. Under the previous Program applicable in Matusiak (supra) any decision of the Commissioner “disallowing an objection” or refusing an application to consider an objection out of time was declared to be capable of review by the Tribunal. The current program creates a specific discretion to disregard amounts of income in a particular case. That expressly overrules the Tribunal’s view in Matusiak (supra) that:

[46] Income tests of this kind cannot, in the Tribunal’s view, be adjusted on a case by case basis. Such an approach would place unreasonable burdens on the Commissioner and delegates of the Commissioner. There could be a wide variety of financial circumstances that might be advanced to argue for special treatment and, in the Tribunal’s view, to admit any one of them for consideration would make it impossible to apply the eligibility test fairly.
[47] The better approach is to consider the application of clause 14 of the Program, which allows the Commissioner to disregard any of the criteria specified in subslcause 5(3) other than paragraph 5(3)(c) [which requires applicants to be 16 years of age or older] for the purpose of determining that an applicant is eligible for assistance or continued assistance under this program if the applicant is suffering severe hardship which cannot be alleviated by any other means.

40. The current Program retains but recasts these discretions. In any event, the scope of the clause 9A test applies more broadly than merely to income. Clause 7(2) does adopt a case by case approach as did the previous Program’s cl 14.
41. I have no doubt that Matusiak (supra) would have been more objectively and easily determined in favour of the applicant in that case by simply disregarding part of the applicant’s income rather than addressing the more difficult question of hardship not able to be alleviated by any other means. Nevertheless, that was the approach taken.
42. It is, of course, open to the Commissioner to consider hardship, as well as any other relevant circumstance, in determining whether to disregard any part of income otherwise relevant.
43. In the present case, I am in agreement with the Commissioner’s submission that the cl 9A decision was not reviewable by the Tribunal but I am also of the opinion that the Commissioner could have determined to disregard the car lease payments under cl 7(2) of the Program with the result that the income test would have been met.
44. I am further of the view that, on the facts found by the Tribunal, such a finding would have been appropriate, if not inevitable, and would certainly have been the preferable decision.
45. Mr Sharwood, for the Commissioner, also referred to Z and Commissioner for Housing [2007] ACTAAT 12 (29 May 2007) in support of a contention that the discretion under cl 7(2) of the Program was not available where cl 9A would be an applicable source for the exercise of discretion by the Commissioner as to the income barrier.
46. In Z (supra), the Commissioner declined to find that the discretion to waive the income barrier should be exercised. The applicant had sought a four bedroom house rather than the three bedroom house she had been allocated. That, in reality, sought to activate cl 10 of the Program (needs categories). Her application disclosed that she now exceeded the newly lowered income barrier. Her eligibility for assistance was therefore cancelled. A review by the Housing Review Committee recommended the requested transfer under cl 24(1) of the Program be granted and that the cancellation be reversed, recommending that the Commissioner disregard the excess income by virtue of cl 7(2) of the Program.
47. The Tribunal in that case noted, correctly as I have found, that it could not review a decision of the Commissioner made pursuant to cl 9A. The Tribunal further noted the impact of ss 11 and 30 of the Human Rights Act 2004 (ACT) (the HR Act), recognizing the entitlement of the family unit to protection as well as the rights of children to protection.
48. Those rights require that the rights of a family, and of children in particular, to secure and appropriate housing be recognised and that Territory laws be so interpreted so as to preserve and advance those rights where possible.
49. In that case the Tribunal interpreted cl 7(2) of the Program by reference to the statement in the Explanatory Memorandum:

The previous arrangements required the Commissioner to treat a person’s income as the greater of current gross weekly income and average gross weekly income over the previous 26 weeks. That approach provided no flexibility to a range of applicants who are not in regular employment with a consistent pattern of salary or wage payments, or people whose circumstances, for some other reason, do not fit the normal pattern.

50. However, the wording of cl 7(2) of the Program is clear. It is not in terms confined to the two examples referred to in the Explanatory Memorandum. It is clear that treating two cases alike based merely upon a comparison of the figures generated by the criteria referred to in cl 9(g), (h) or (i) would create injustice. Certainly, a general relaxation or exclusion might be decided upon under cl 6(2) of the Program but that would leave unaddressed the question of substantive justice in the individual case which can be catered for only under cl 7(2) or cl 9A. Clause 9A is a general power, the exercise of which is not reviewable, to dispense with the application of the criteria for eligibility. Clause 7(2) is confined to one only of those criteria and is antecedent to the application or not of cl 9A.
51. Section 21(1) of the HR Act confers the right upon all persons to have their rights and obligations decided by a competent, independent and impartial court or tribunal. That, of course, is not conclusive but it indicates to me that if an applicant for assistance needs to have a discretionary decision applied to them to recognise the comparative justice of their claim to secure appropriate shelter so as to avoid otherwise severe and unavoidable hardship then a process that attracts a review would be preferable to that of an unexaminable discretion by a single public official.
52. The decision in Z seems to me contrary to the preferred interpretation of the Program and should not be followed. The purpose of the eligibility criteria is not arbitrarily to restrict the scarce resource of public housing to those who are less in need but fall within the stated criteria. Rather it strikes, or seeks to strike, a just balance between those in greater need falling outside eligibility criteria compared with those who might fall within it. It is preferable that the exercise of such a discretion be reviewable. That can only be done if a degree of discretion is open to be exercised. That is the result the HR Act requires and it should be preferred.

The onus of proof

53. It is a reasonable submission to put that if a party claims to fall within an exception to a general rule, that party bears the onus of establishing that proposition.
54. Insofar as Y bore the onus to show severe hardship under cl 9A of the Program she did so. Whether or not cl 7(2) of the Program laid down such a high barrier as that, it was no greater and she certainly exceeded it. There is no indication that the Tribunal, as a finder of fact, failed to place the onus of proof of that hardship on the applicant.

The eligibility finding

55. This relates to the decision specifying Y’s needs for housing and their priority. That could only be done if Y was an eligible applicant. The Commissioner found she was not and, hence, the discretion to decide that question did not fall to be exercised.
56. However, the Tribunal did find, albeit in reliance on cl 9A rather than cl 7(2), that Y was an eligible applicant. She was clearly in urgent need. It was, therefore, open to the Tribunal, standing in the shoes of the Commissioner, to decide to exercise the consequential discretion under cl 10 of the Program.

The Consequence

57. The Tribunal did make an error of law. However, that error was not such as to have prevented it make the orders it made had it proceeded on a correct view of the law and applied cl 7(2) of the Program. That error, in any event, was facilitated by the failure of the Commissioner to point to cl 27(1)(a) of the Program in the proceedings before the Tribunal, thus leading the Tribunal to assume that the Commissioner’s decision was reviewable by virtue of cl 30.
58. In my view, as a matter of discretion, the application for leave to appeal should be refused with costs notwithstanding that grounds have been made out for the relief sought.

I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 12 October 2007

Counsel for the applicant: Mr W Sharwood
Solicitor for the plaintiff: ACT Government Solicitor’s Office
Counsel for the defendant: Mr DJC Mossop
Solicitor for the defendant: Welfare Rights & Legal Centre Limited
Date of hearing: 6 July 2007
Date of judgment: 12 October 2007