Illegal use in public housing

Possession for drug related conduct in public housing

The Director of Housing (DOH) may issue a notice to vacate to a public housing renter if the renter commits certain drug-related offences or prescribed indictable offences* on the rented premises or in a common area: Residential Tenancies Act 1997 (Vic) (RTA) ss 91ZR, 91ZS.

This section gives a broader range of powers to the DOH to evict renters engaging in illegal activity than private landlords, who are confined to the illegal use provisions (see below). The sections allow for the issuing of a notice to vacate where the Director is satisfied that certain drug related conduct occurred on the location of the rented premises or a common area.

It should be noted however that the Director will also frequently use the general illegal use power available to all landlords under s 91ZQ when it has suspicions that the tenant is engaging in drug related conduct in public housing.

For information on notices to vacate in general and options to challenge them see Checking notices to vacate.

What constitutes drug-related offences in public housing?

Under s 91ZR(1) RTA, the DOH may give a renter a notice to vacate if, either on the rented premises or in a common area, the renter has illegally –

• trafficked or attempted to traffick a drug of dependence; or
• supplied a drug of dependence to a person under 18 years of age; or
• possessed a preparatory item with the intention of using the item for the purpose of trafficking in a drug of dependence; or
• possessed, without lawful excuse –
  • a tablet press; or
  • a precursor chemical; or
• intentionally caused another person to traffick in a drug of dependence by threatening to harm that person or another person or by using violence against that person or another person; or
• intentionally permitted another person to use those premises or the common area for –
  • trafficking in a drug of dependence; or
  • cultivating a drug of dependence; or
• cultivated or attempted to cultivate a narcotic plant.

A notice given under s 91ZR(1) must specify a termination date no less than 14 days after the date the notice is given: s 91ZR(2)).

A ‘preparatory item’ is defined in s 91ZR(3) RTA as a substance, material, equipment or document containing instructions relating to the preparation, cultivating or trafficking of a drug of dependence. Definitions of other terms can also be found in the Drugs, Poisons and Controlled Substances Act 1981.

Defending a possession order application

Notices to vacate for drug-related conduct in public housing are not ‘immediate’ notices, and 14 days must pass after the issuing of the notice before the residential rental provider can apply to the Tribunal for a possession order.

The Tribunal can only make a possession order if (s 330(1)):

• a residential rental provider was entitled to give the notice to vacate (and the notice has not been withdrawn); and
• it is reasonable and proportionate (as defined by s 330A) to make the possession order, taking into account the interests of the residential rental provider, the renter, any co-renters and any neighbours who have been affected or may be affected by the acts of the renter.

See Checking Notices to Vacate and the Reasonable and Proportionate Test for more information.

Possession for illegal use of premises

Under section 91ZQ(1) RTA, a residential rental provider may give a renter a notice to vacate if the renter has used the rented premises or permitted their use for any purpose that is illegal at common law or under an Act.

For information on notices to vacate in general and options to challenge them see Checking notices to vacate.

Equivalent ‘illegal use’ notice to vacate provisions apply to rooming houses (s 142ZI), caravan parks (s 206AY), Part 4A sites (s 207C) and specialist disability accommodation (s 498ZX(1)(g)).

What is illegal use of premises?

Section 91ZQ requires the renter to have either “used” or “permitted the use” of the rented premises for an illegal purpose.

In Director of Housing v ZZ [2020] VCAT 317, Member Ussher provided the following summary of the meaning of the word “use” in the equivalent COVID-19 illegal use provision based on prior authority (at [31]):

• the verb “use” should be given its natural and ordinary meaning. The ordinary meaning accorded to this verb by the Oxford English Dictionary is – “utilization or employment for or with some aim or purpose”. The Macquarie Dictionary definitions of “use” include – “to put into service”, “to avail oneself of”, “to exploit to one’s own end” and “to apply to one’s own purposes”;
• the “use” does not have to involve the use of the whole of the residential premises;
• the “use” could be incidental or subsidiary to another use;
• the specified illegal act or activity must be committed or carried out on the premises;
• the premises must not merely be the scene of the illegal activity; as
• the use of the premises must be an essential element of the illegal activity; and
• whether the premises are used for an illegal purpose or not, is a question of fact.

A number of other judicial comments have been made in relation to similar illegal use provisions.

For example, in R v Rintel[1991] WASC 108 at page 8, Pidgeon J noted the following:

In Director of Housing v TP [2008] VCAT 1275 decision, the Member stated:

In Director of Housing v TK [2010] VCAT 1839, Deputy President H Lambrick held at [92]:

Examples:

• In McAuliffe v CTTT [2004] NSWSC 924, the resident’s establishment of a hydroponics system to cultivate cannabis at the property was found to constitute a “use” of the property
• In Director of Housing v TP [2008] VCAT 1275, the Tribunal found that the renter’s ex-partner temporarily storing cannabis plants at the rented premises did not constituted illegal use.
• In Director of Housing v TK [2010] VCAT 1839, selling heroin from rented premises was found not to constitute illegal use.

What does “permitted” mean in the context of illegal use applications

Sometimes Homeless Law clients will not be accused of being the primary person involved in the use of the property for an illegal purpose, and it may be  visitors, family or friends who have used the premises in that way.

This can commonly occur for Homeless Law clients who have a disability, impairment or addiction which means they are prone to manipulation or exploitation by third parties or to renters who are in violent or coercive relationships.

For this reason it is also important to be familiar with the meaning of the word “permit” and “permitted” in the context of illegal use applications.

In Director of Housing v Perawiti [2011] VCAT 2242, citing The Corporation of the City of Adelaide v The Australasian Performing Right Association Ltd (1928) 40 CLR 481; R v Von Snarski [2001] QCA 71, the Tribunal set down the following principles regarding where a renter will be found to “permit” illegal use:

• • the renter must know or have reason to suspect that an illegal act will take place or is likely to take place, and
  • the renter must have the power to prevent it; and
  • the renter fails to prevent the illegal act from taking place.

Defending a possession order application

Notices to vacate for illegal use are not ‘immediate’ notices, and 14 days must pass after the issuing of the notice before the residential rental provider can apply to the Tribunal for a possession order.

As above, the Tribunal can only make a possession order if (s 330(1)):

• a residential rental provider was entitled to give the notice to vacate (and the notice has not been withdrawn); and
• it is reasonable and proportionate (as defined by s 330A) to make the possession order, taking into account the interests of the residential rental provider, the renter, any co-renters and any neighbours who have been affected or may be affected by the acts of the renter.

See Checking Notices to Vacate and the Reasonable and Proportionate Test for more information.

What evidence?

As discussed above, the notice to vacate must provide sufficient detail of the reason for the issuing of the notice.

It would also be expected that prior to the possession order hearing, a renter would be provided with details of any evidence to be relied upon by the residential rental provider in support of its application for possession. You may wish to consider requesting an adjournment if the other party is not forthcoming with the evidence they intend to rely on during the hearing, or applying for a directions hearing under s 80 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act). Section 80 empowers the Tribunal to give directions requiring a party to produce a document or provide information.

Section 104 of the VCAT Act give powers to subpoena parties to provide evidence under oath.

Additionally, the rule in Briginshaw v Briginshaw (1938) 60 CLR 336 may apply in cases of serious damage. In Briginshaw, the High Court stated that while there are only two standards of proof, criminal and civil, where a party is attempting to prove criminal allegations (or non-criminal allegations with serious implications) in a civil proceeding, the probity of evidence required to discharge the balance of probabilities will fluctuate depending on the seriousness of the allegations.

Read more about evidence and the standard of proof for serious allegations at VCAT.

Is there a discretion to postpone a warrant for possession?

For both illegal use and drug-related conduct in public housing notices to vacate, the Tribunal has the power to postpone the issuing of a warrant for possession after a possession order is made if satisfied that the renter would suffer hardship if the issue of the warrant were not postponed, and that hardship would exceed the residential rental provider’s: s 352.