The Residential Tenancies Amendment Act 2018 (Vic) (RTAA) introduced a reasonable and proportionate test into the Residential Tenancies Act 1997 (Vic) (RTA). This page details:
The Tribunal will have regard to whether an order is “reasonable or proportionate” in determining whether to:
Under s 330(3)(f) RTA, the Tribunal can only make a possession order in relation to a residential rental, rooming house, caravan or Part 4A site agreement if the Tribunal is satisfied that it is reasonable and proportionate to do so having regard to the interests of:
To determine whether it is reasonable and proportionate to make a possession order, the Tribunal must consider the criteria under section 330A RTA. These are:
The Tribunal has held that criteria (a) to (g) are irrelevant where the ground for seeking the order is not based on any action or conduct of the tenant. On this, see Rizio v XEP  VCAT 882 at  which concerned an application for the landlords to move into the property.
Due to the COVID-19 pandemic, the commencement of the RTAA was delayed and the government passed the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic) and the Residential Tenancies (COVID-19 Emergency Measures) Regulations 2020 (Vic), which amended the RTA for a temporary period. The temporary amendments introduced a new procedure for evictions and replicated the reasonable and proportionate test in the RTAA.
The definition of reasonable and proportionate under the COVID-19 tenancy regime (s 538 RTA) is the same as the definition in s 330A.
The following outlines the case law with respect to the equivalent COVID-19 reasonable and proportionate test. Note that some of the cases were decided in the context of significant COVID-19 related restrictions, and this may have influenced the Tribunal’s decision-making.
The decision as to whether the reasonable and proportionate test is satisfied has been framed by reference to whether on balance the impact of making the order on the renters is “harsher” or “more severe” than the impact on the residential rental provider of not making the order, or whether the hardship to the renter outweighs the hardship to the residential renter provider. See Mikho v Burgess  VCAT 691 at ; Rizio v XEP  VCAT 882 at ; Struth v Thwaites  VCAT 788 at .
It has been held that when taking into account the interests of the relevant parties it is necessary to consider their case at its highest at the time of the hearing: LKZ v BSL  VCAT 909  and .
Factual considerations which have influenced the Tribunal’s decision on the reasonable and proportionate test have included:
The case law on s 538 provides guidance as to how the Tribunal will interpret the reasonable and proportionate test in s 330A. It demonstrates how the outcome will likely turn on the facts and circumstances of the case, which also illustrates the types of arguments that can be made.
In addressing the Tribunal on whether eviction is reasonable and proportionate, it may be relevant to raise the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter).
Pursuant to s 32 of the Charter, so far as it is possible to do so consistently with their purpose, statutory provisions must be interpreted in a way that is compatible with human rights. It may be arguable that specific human rights lend weight to an argument that eviction would not be reasonable and proportionate.
Charter rights that may be relevant include:
In making submissions in relation to the application of s 32 of the Charter to the reasonable and proportionate test, you should be aware of the decision of Momcilovic v The Queen  HCA 34 (8 September 2011) noting that s 32 does not permit a court to strain the language of a provision.
The way in which the reasonable and proportion test will be interpreted will likely only be fully known as the body of case law on each of the criteria in the reasonable and proportionate test continues to develop, and/or the Supreme Court articulates a test for how the Tribunal should weigh up each of those factors and the interests of each of the parties under s 330(1)(f) of the RTA.
This page contains legal information only. View our disclaimer.
Homeless Law in Practice provides resources and tools for Victorian lawyers and advocates. If you’re looking for help, visit Justice Connect.