Vanilla Rentals v Tenant[2023] QCAT 519

REASONS FOR DECISION

Background

1. [1]
   The Respondent, was, at the date of the hearing of this matter, a tenant of residential premises at an address in the Lockyer Valley, Queensland. It is the position of the Applicant (‘Vanilla Rentals’) that her tenancy derived from a 6-month fixed term general tenancy agreement in Form 18a commencing on 18 March 2023 and ending on 19 September 2023.
2. [2]
   Vanilla Rentals, by an application filed on 21 September 2023, sought a termination order and warrant of possession under ss 293 and 350 of the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (‘RTRAA’).
3. [3]
   The application was based on a failure to hand over vacant possession following the issue of a “notice to leave” in Form 12 issued on 19 July 2023. The notice to leave was issued for “end of a fixed term agreement” and specified the date for the Respondent to vacate the premises (‘the handover day’) as 19 September 2023.
4. [4]
   The Respondent did not leave the premises as required by the notice to leave and remained there at the date of the hearing. As I discuss further in these reasons, she wished to remain in the premises for at least 6 months or until December 2024, to allow her time to recover from imminent surgery and to modify a bus she has purchased which she intends to be her home in the future.^[1]
5. [5]
   I made orders on 7 November 2023 terminating the tenancy on 11 January 2024 and issuing a warrant of possession to take effect on 12 January 2024.
6. [6]
   What follows are the reasons for those orders.

The issues to be decided

7. [7]
   I consider the following primary issues:

   1. whether the Tribunal has power to issue a termination order and warrant of possession under the RTRAA; and
   2. whether, and on what terms, the Tribunal should exercise a discretion to issue a termination order and therefore issue a warrant of possession.
8. [8]
   In light of the Respondent’s submissions, I also consider whether I should apply or take account of the Human Rights Act 2019 (Qld) (‘HRA’) in determining these issues.

9. [9]
   I discuss these matters in the following order:

3. (a)
   whether and the extent to which the HRA applies to this case, addressing:

3. (i)
   the possible ways in which the HRA could apply;

3. (ii)
   the Tribunal’s functions for the purpose of applying the HRA; and

3. (iii)
   the human rights to be applied or taken into account in carrying out the Tribunal’s functions;

3. (b)
   whether the Tribunal has the power to issue a termination order and warrant of possession, in particular:

3. (i)
   whether the parties entered into a residential tenancy agreement for a fixed term, and the term of the agreement; and

3. (ii)
   the date on which the Respondent was issued the notice to leave and whether the minimum notice period under the RTRAA was allowed; and

3. (c)
   whether and how the Tribunal’s discretion should be exercised.

Does the HRA apply to this case, and to what extent?

10. [10]
    There are three possible ways in which the HRA may apply to this case:

3. (a)
   first, pursuant to s 48, in the interpretation of the applicable provisions of the RTRAA;

3. (b)
   secondly, if the Tribunal is a “public entity”, pursuant to section 58 of the HRA, which provides that it is unlawful for a public entity to:

3. (i)
   act or make a decision in a way that is not compatible with human rights; or

3. (ii)
   in making a decision, to fail to give proper consideration to a human right relevant to the decision; and

3. (c)
   thirdly, pursuant to section 5(2)(a), which provides that the HRA applies to a tribunal, to the extent it has functions under, relevantly, Part 2 of the HRA.

11. [11]
    In order to determine whether and to what extent the HRA applies, it is necessary to first set out the provisions of the RTRAA that apply to this case.

The applicable RTRAA provisions

12. [12]
    Section 291 of the RTRAA (‘notice to leave for end of fixed term agreement’) allows a lessor to issue a notice to leave, relevantly, as follows:

3. (1)
   The lessor may give a notice to leave the premises to the tenant if the residential tenancy agreement is a fixed term agreement and the notice relates to the end of the agreement.

3. (2)
   However, the lessor must not give a notice to leave under this section because—

3. (a)
   the tenant has applied, or is proposing to apply, to a tribunal for an order under this Act; or

3. (b)
   the tenant—

3. (i)
   has complained to a government entity about an act or omission of the lessor adversely affecting the tenant; or

3. (ii)
   has taken some other action to enforce the tenant’s rights; or

3. (c)
   an order of a tribunal is in force in relation to the lessor and tenant.

3. (3)
   Also, the lessor may not give a notice to leave under this section if the giving of the notice constitutes taking retaliatory action against the tenant.

3. (4)
   A notice to leave under this section is called a notice to leave for end of fixed term agreement. (original emphasis)

13. [13]
    Section 326 sets out the requirements of the notice to leave, including that the handover day must not be earlier than the minimum notice period (s 326(3)).
14. [14]
    Section 293 (‘Application for termination for failure to leave’) allows a lessor to apply to the Tribunal where the tenant fails to leave the premises as required by the notice. It provides:

3. (1)
   The lessor may apply to a tribunal for a termination order because—

3. (a)
   the lessor gave a notice to leave the premises to the tenant; and

3. (b)
   the tenant failed to hand over vacant possession of the premises to the lessor on the handover day.

3. (2)
   An application under this section must be made within 2 weeks after the handover day.

3. (3)
   An application made under this section is called an application made because of a failure to leave. (original emphasis)

15. [15]
    Section 340 (‘Failure to leave for other grounds’) allows the Tribunal to make a termination order on the basis of a failure to leave, as follows:

3. (1)
   This section applies if—

3. (a)
   an application is made to a tribunal for a termination order because of a failure to leave; and

3. (b)
   the notice to leave was given because of any of the following—

3. …

3. (xvi)
   end of fixed term agreement.

3. (2)
   The tribunal may make the order if it is satisfied the lessor has established the ground of the application and notice to leave. (emphasis added)

16. [16]
    Section 350(2) provides, relevantly:

If a tribunal makes a termination order on an application made other than by a tenant, it also must issue a warrant of possession.

17. [17]
    The effect of these provisions is that a tenant may, at the discretion of the Tribunal,^[2] be forcibly removed from the rental premises after the expiry of a fixed term residential tenancy agreement provided that the lessor has given a valid notice to leave, the tenant has failed to leave the premises by the handover day, and the lessor applies to the Tribunal within 2 weeks after the handover day.

Does s 48 of the HRA apply?

18. [18]
    I consider first whether section 48 of the HRA applies.
19. [19]
    In Momcilovic v R,^[3] considering a similar provision to section 48 in the Charter of Human Rights and Responsibilities Act 2006 (Vic), French CJ stated:

[50] Section 32(1) …mandates an attempt to interpret statutory provisions compatibly with human rights. There is, however, nothing in its text or context to suggest that the interpretation which it requires departs from established understandings of that process. The subsection limits the interpretation which it directs to that which is consistent with the purpose of the statutory provision under consideration. It operates upon constructional choices which the language of the statutory provision permits. Constructional choice subsumes the concept of ambiguity but lacks its negative connotation. It reflects the plasticity and shades of meaning and nuance that are the natural attributes of language and the legal indeterminacy that is avoided only with difficulty in statutory drafting.

[51] Section 32(1) …requires statutes to be construed against the background of human rights and freedoms set out in the Charter in the same way as the principle of legality requires the same statutes to be construed against the background of common law rights and freedoms. The human rights and freedoms set out in the Charter in significant measure incorporate or enhance rights and freedoms at common law. Section 32(1) applies to the interpretation of statutes in the same way as the principle of legality but with a wider field of application…

20. [20]
    Momcilovic was applied in interpreting s 48 by Mitchell AJA, in Athwal v State of Queensland.^[4]
21. [21]
    In Slaveski v Smith,^[5] the Victoria Court of Appeal, after considering Momcilovic, held:

[24] Consequently, if the words of a statue are clear, the court must give them that meaning. If the words of a statute are capable of more than one meaning, the court should give them whichever of those meanings best accords with the human right in question.

22. [22]
    In this case, the relevant provisions of the RTRAA which are extracted above are straightforward. No “constructional choice” arises which would attract the operation of section 48.
23. [23]
    Could s 48 apply to regulate the exercise of the Tribunal’s discretion? The decision of Applegarth J in Attorney-General for the State of Queensland v Grant (No 2)^[6] indicates that it does not.
24. [24]
    I conclude that s 48 has no application.

Does section 58 of the HRA apply?

25. [25]
    In order for s 58 to apply, the Tribunal must be acting as a “public entity” as defined in s 9 of the HRA. By s 9(4), a public entity does not include a tribunal “except when acting in an administrative capacity”.
26. [26]
    In Pye v Argyle Community Housing Ltd ACN 002 761 855 (Appeal),^[7] Presidential Member Robinson held, in a termination proceeding under the Australian Capital Territory Residential Tenancies Act 1997 (ACT), that the ACT Civil & Administrative Tribunal (‘ACAT’) was not a “public authority” under the Human Rights Act 2004 (ACT),^[8] because the proceeding did not involve ACAT acting in an administrative capacity.
27. [27]
    I consider the same position applies under the HRA, and that in this proceeding the Tribunal is not acting as a “public entity”. Section 58 therefore does not apply.

Does section 5(2)(a) require the Tribunal to take account of the applicant’s human rights?

28. [28]
    Finally, I consider whether section 5(2)(a) of the HRA applies. It provides:

3. (2)
   This Act applies to –

3. (a)
   a court or tribunal, to the extent the court or tribunal has functions under part 2…”

29. [29]
    Part 2 of the HRA provides that all individuals in Queensland have human rights (s 11(1)), that human rights may be limited (s 13), and sets out the various human rights which are enjoyed by all individuals in Queensland (Divisions 2 and 3).
30. [30]
    In Grant, Applegarth J considered whether section 5(2)(a) had the effect of engaging Part 2 of the HRA as part of the exercise of a statutory discretion under section 13(5) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), and concluded that it did.^[9]
31. [31]
    His Honour held that the “intermediate interpretation” of section 5(2)(a) of the HRA should be adopted,^[10] that is, the “functions” referred to in section 5(2)(a) are the functions of applying or enforcing those human rights that relate to court proceedings.^[11]
32. [32]
    The relevance of a human right to a particular court or tribunal proceeding requires proper examination of the right concerned and whether it relates to an issue in the proceeding.^[12] The functional approach focuses on the functions the tribunal is performing and identifies rights that relate to that function.^[13] This may require consideration of rights that relate to the substance of the function a tribunal is exercising, not simply the tribunal’s process.^[14] The application of a particular right depends on the scope of the right concerned and the facts and circumstances of the individual proceeding.^[15]
33. [33]
    Where the function is the exercise of a specific discretionary power, the relevant right is one matter to be taken into account in the exercise of a discretion; other matters may warrant consideration having regard to the terms and purpose of the power that creates the discretion.^[16] Importantly, a court (and in this case a tribunal) is not required to make a decision so as to give effect to the right to the exclusion of other considerations where that is inconsistent with the nature, scope and purpose of the power.^[17] Countervailing rights and considerations may be matters that justify a limitation on the relevant Part 2 right in accordance with section 13 of the HRA or they may be considerations that are not justified by s 13 but still are relevant to the Tribunal’s function in exercising the particular discretion.^[18]
34. [34]
    I adopt his Honour’s approach in Grant, and now identify the Tribunal’s functions and the human rights that relate to those functions.

What are the Tribunal’s “functions”?

35. [35]
    The material “functions” of the Tribunal in this case are:

    1. to conduct a hearing;
    2. to determine whether the threshold requirements for the making of a termination order and the issue of a warrant of possession are satisfied; and
    3. to exercise a discretion whether and when to terminate the tenancy by making a termination order and issuing a warrant of possession.

What are the relevant human rights?

36. [36]
    I turn next to the human rights that relate to these proceedings.
37. [37]
    The Respondent identified a long list of rights pertaining to both the hearing process and the substance of the dispute.^[19]
38. [38]
    In carrying out the functions identified above, I have sought to give effect to the Respondent’s human rights to recognition and equality before the law (s 15), to a fair hearing (s 31), and within the time constraints which are applied to the hearing of minor civil disputes,^[20] freedom of expression (s 21). 
39. [39]
    Other human rights may be relevant to the exercise of the Tribunal’s discretion under s 340(2) of the RTRAA.
40. [40]
    Of the list given by the Respondent in her submissions, I consider the following rights may apply:

    1. the right not to be treated or punished in a cruel, inhuman or degrading way (s 17(b));
    2. the freedom to choose where to live (s 19);
    3. the right to own property and not be arbitrarily deprived of it (s 24); and
    4. the right not to have a person’s home unlawfully or arbitrarily interfered with (s 25(a)).
41. [41]
    As to the remaining rights listed by the Respondent:

    1. the Respondent lives alone in the premises, and the right to protection of families and children in s 26 is not engaged; and
    2. although the Respondent was at the date of the hearing very unwell and awaiting surgery (which I discuss below), the exercise of the Tribunal’s discretion to terminate the tenancy will not affect her right to access health services without discrimination and therefore s 37 is not engaged.
42. [42]
    I turn to examine the rights which may apply to the exercise of discretion.

The right not to be treated or punished in a cruel, inhuman or degrading way

43. [43]
    First, I consider section 17(b). In Owen-Darcy v Chief Executive, Queensland Corrective Services,^[21] Martin J considered s 17(b) and the decision of Garde J in Certain Children v Minister for Families and Children^[22] in relation to the meaning of “degrading treatment”,^[23] stating:

3. [177]
   In Certain Children (No 1), Garde J collected some of the authorities on what constitutes cruel, inhuman or degrading treatment:

3. “[162]
   … Treatment may be considered degrading if it humiliates or debases a person, causes fear, anguish or a sense of inferiority, or is capable of possibly breaking moral or physical resistance or driving a person to act against their will or conscience. Degrading treatment involves more than the usual element of humiliation which follows from the very fact of being convicted and punished by a court. Similarly, inhuman treatment must reach a minimum level of severity manifesting in bodily injury or intense physical or mental suffering. The assessment of the minimum threshold is relative and depends on all the circumstances of the case, including the duration of the treatment, its physical or mental effect, and the sex, age and state of health of the alleged victim. (footnotes omitted, emphasis added)

44. [44]
    Martin J later held:

3. [186]
   In Certain Children (No 2),^[24] 101 Dixon J engaged in a detailed examination of the many authorities on this area. I respectfully adopt what I regard as a correct summation of the general factors which should be taken into account when considering s 17(b). They are:

3. (a)
   the scope of the right contained in s 17(b) is conditioned by a minimum standard or threshold of severity or intensity that can manifest in bodily injury or physical or mental suffering,

3. (b)
   the combination of the adjectives – cruel, inhuman or degrading – define the prohibited treatment or punishment,

3. (c)
   the assessment of the minimum threshold is relative, and it depends on all the circumstances of the case, including the duration of the treatment, its physical or mental effects, and the sex, age and state of health of the alleged victim,

3. (d)
   most cases of breach will involve on the part of the decision-maker deliberate imposition of severe suffering or intentional conduct to harm, humiliate or debase a victim, and

3. (e)
   the purpose of the decision-maker’s conduct will, at the very least, be a factor to be taken into account, though the absence of such a purpose does not conclusively rule out a violation of the right.

45. [45]
    Of these factors, it is (a) and (b) which are relevant to assessing the scope of the right in section 17(b), so as to determine whether it is engaged in a particular case.
46. [46]
    No doubt forcible eviction could lead to mental suffering, but the further question is whether the treatment reaches the necessary threshold of severity or intensity. Although the words “cruel, inhuman or degrading” must be considered in combination, when one considers Garde J’s analysis of the term “degrading”, I consider that the fact that a tenant will be forcibly evicted from their home is not sufficient to amount to treatment to which s 17(b) applies.
47. [47]
    In that regard I respectfully disagree with the conclusion of Adjudicator Alan Walsh in The State of Queensland through the Department of Housing and Public Works v Tenant.^[25]

The freedom to choose where to live

48. [48]
    The Respondent wished to stay in the property for at least 6 months. The Tribunal’s decision to end the tenancy earlier impacts upon her freedom to choose where to live. This right is relevant to the exercise of the Tribunal’s discretion.

The right to own property and not to be arbitrarily deprived of it

49. [49]
    Section 24 provides:

1. All persons have the right to own property alone or in association with others.
2. A person must not be arbitrarily deprived of the person’s property. (emphasis added)

50. [50]
    The section invites two questions:

    1. as a tenant under an expired fixed term lease, does the Respondent own property? and
    2. would an order of the Tribunal “arbitrarily” deprive her of that property?
51. [51]
    In considering those questions, I adopt the approach of Martin J in Owen-Darcy:^[26]

3. [118]
   The HRA falls into that broad category of legislation described as beneficial or remedial. As such, the provisions bestowing, protecting, or enforcing rights should be construed as widely as their terms permit.

3. [119]
   The appropriate principle to be applied has been considered many times by the High Court. In AB v Western Australia, a unanimous court said:

3. “[24]
   …Moreover, the principle that particular statutory provisions must be read in light of their purpose was said in Waters v Public Transport Corporation to be of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation “the courts have a special responsibility to take account of and give effect to the statutory purpose”. It is generally accepted that there is a rule of construction that beneficial and remedial legislation is to be given a “fair, large and liberal” interpretation.” (citations omitted, emphasis added)

3. [120]
   That the equivalent legislation in Victoria should be interpreted broadly has been restated on a number of occasions, for example, Re Application under the Major Crimes (Investigative Powers) Act 2004, 53 WBM v Chief Commissioner of Police, 54 and Bare v Independent Broad-Based Anti-Corruption Commission. The same approach should be adopted with respect to the HRA.

Does the Respondent own property?

52. [52]
    Although the fixed term agreement has expired, a residential tenancy agreement may only end in one of the ways provided for in s 277 of the RTRAA. Given that a notice to leave has been issued, until the Respondent leaves the premises^[27] or the Tribunal makes a termination order^[28] the residential tenancy agreement continues.
53. [53]
    “Property” is defined in the Acts Interpretation Act 1954 (Qld)^[29] to mean:

“any legal or equitable estate or interest (whether present or future, vested or contingent, or tangible or intangible) in real or personal property of any description (including money), and includes things in action.

54. [54]
    “Interest” is defined in that Act as follows:^[30]

“interest, in relation to land or other property, means—

1. a legal or equitable estate in the land or other property; or

2. a right, power or privilege over, or in relation to, the land or other property.”

55. [55]
    The residential tenancy agreement in question provides a legally enforceable right to exclusive possession of land,^[31] albeit subject to the terms of the agreement and the provisions of the RTRAA. I consider the residential tenancy agreement to amount to a legal interest in real property, and therefore “property” for the purpose of section 24, and, adopting a “fair, large and liberal” interpretation, I consider that until the tenancy is terminated, the Respondent “owns” property.

Would an order of the Tribunal “arbitrarily” deprive the Respondent of her property?

56. [56]
    A termination order would deprive the Respondent of her right to property. The question is whether that would be “arbitrary”.
57. [57]
    In Grant, Applegarth J defined “arbitrary” in the context of s 29(2) of the HRA to mean “capricious, unpredictable, unjust or unreasonable in the sense of not being proportionate to the legitimate aim sought”.^[32]
58. [58]
    As outlined above, the RTRAA prescribes a procedure which a lessor must follow to apply for a termination order based on the end of a fixed term agreement. Further, the RTRAA confers a discretion on the Tribunal to issue a termination order. The discretion must be exercised reasonably, which is ascertained by reference to the scope and purpose of the statute.^[33] The Tribunal must, in exercising jurisdiction under s 11 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), to determine a “minor civil dispute”, make orders that it considers are fair and equitable to the parties.^[34] The issue of a warrant of possession is mandatory following a termination order under s 350(2) of the RTRAA.
59. [59]
    The process of termination is therefore not arbitrary. Could the exercise of discretion to issue a termination order be considered arbitrary? In this case, there is no particular circumstance that could render the exercise of discretion arbitrary in the sense just outlined, as there was in Grant.^[35]
60. [60]
    I conclude that the right in s 24 does not apply to this case, because the issue of a termination of a tenancy and the issue of a warrant of possession is not arbitrary.              

The right not to have a person’s home unlawfully or arbitrarily interfered with

61. [61]
    Under s 25(a) of the HRA a person has the right not to have the person’s home unlawfully or arbitrarily interfered with. In this case, as I consider below, the interference with the Respondent’s home via a termination order and warrant of possession is lawful. And for the same reasons given in relation to the examination of the application of section 24, the interference is not arbitrary.
62. [62]
    Accordingly, the right in section 25(a) does not apply to this case.

Conclusion – section 19 applies to the exercise of the Tribunal’s discretion

63. [63]
    It follows that, other than the human rights connected with the Tribunal’s process, it is only the right to choose where to live that is relevant to the function of the Tribunal in exercising a discretion whether to terminate the Respondent’s tenancy and on what terms.

Whether the Tribunal has the power to issue a termination order and warrant of possession

64. [64]
    I turn now to consider the factual matters which must be established to enliven the discretion to terminate a tenancy under s 340(2) of the RTRAA.

Whether the parties entered into a fixed term residential tenancy agreement and for what term

65. [65]
    Vanilla Rentals filed a copy of a general tenancy agreement in Form 18a purporting to be signed by the Respondent which specified it to be a fixed term agreement starting on 18 March 2023 and ending on 19 September 2023.
66. [66]
    The Respondent’s position was that she had been promised in 2018^[36] that she could stay in the property for 6 years, ending in 2024.
67. [67]
    She said this was confirmed in an email from the agent at the time.^[37] The email was not produced at the hearing.
68. [68]
    There was no dispute about this from Vanilla Rentals, but its current representatives were unlikely to have personal knowledge of the matter.
69. [69]
    I find it implausible that the owner agreed to a 6-year tenancy, particularly in circumstances where the owner had offered a six-month residential tenancy agreement in or about February 2023.^[38] The Form 18a purports to be signed by the Respondent and despite it being included in the initiating application she did not in oral or written submissions suggest that she did not sign it. In the absence of the email referred to, I find that the residential tenancy agreement was for a fixed term and ended on 19 September 2023.

The notice to leave

70. [70]
    A copy of the notice to leave dated 19 July 2023 was filed with the initiating application. It specified a handover day of 19 September 2023. The Respondent suggested in the hearing that it was not given to her until 19 September,^[39] but also stated that it was given to her on the day of a prior hearing in the Tribunal.^[40] The Registry records establish that the date of the last hearing was 19 July 2023. Further, a copy of a covering email dated 19 July 2023 was filed indicating that the notice was sent and the email opened on that date.
71. [71]
    In those circumstances I find that the notice to leave was served on 19 July 2023.
72. [72]
    I also find that the notice to leave allowed the two-month “minimum notice period” under s 326(3) of the RTRAA and Schedule 1 Part 1 Division 1 of the RTRAA.

Filing of the application under s 293 RTRAA

73. [73]
    In addition, I find from the Registry’s records that the initiating application was filed on 21 September 2023, within the two-week period prescribed by s 293 of the RTRAA.

Conclusion – power to issue a termination order

74. [74]
    I conclude from the foregoing analysis that the factual matters which must be established for the Tribunal to have power to issue a termination order have been established and that the Tribunal’s discretion under s 340(2) is enlivened.

Whether and how the Tribunal should exercise the discretion to terminate the tenancy

Matters governing the exercise of discretion

75. [75]
    I next consider whether and how the discretion under s 340(2) of the RTRAA should be exercised. The expression “The tribunal may make the order” suggests that the discretion is unconfined. That is not the case.
76. [76]
    First, the discretion must be exercised reasonably, which is ascertained by reference to the scope and purpose of the statute.^[41] One of the objects of the RTRAA is to regulate the ending of residential tenancy agreements.^[42] Further, the scope and purpose of the relevant provisions seem obvious, which is that they provide a means by which a lessor may enforce a fixed term agreement in circumstances where the issue of the notice to leave is not retaliatory in nature.^[43] However, the fact there is a discretion at all, as to both whether and when the termination should take effect,  suggests that the legislature did not intend that termination should be as of right, and that the circumstances of both lessor and tenant should be considered.
77. [77]
    Secondly, as the dispute is a “minor civil dispute” as defined in Schedule 3 to the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), the Tribunal must, in exercising jurisdiction under s 11 of the QCAT Act, make orders that it considers fair and equitable to the parties to the proceeding in order to resolve the dispute.^[44]
78. [78]
    Thirdly, as I have discussed above, pursuant to s 5(2)(a) and s 19 of the HRA, I must have regard to the Respondent’s human right to choose where to live.

79. [79]
    I consider that the following matters may be taken into account in exercising the discretion:^[45]

3. (a)
   primarily, given the importance which the relevant provisions of the RTRAA attach to it, the parties’ agreement that the tenancy is for a fixed term;

3. (b)
   the reason the lessor has chosen not to continue the tenancy, and the urgency of the need for vacant possession;

3. (c)
   whether the lessor is likely to suffer detriment if the tenancy is not terminated or termination is deferred, for example:

3. (i)
   whether there are existing rental arrears;

3. (ii)
   whether the tenant is complying with his or her obligations under the RTRAA in relation to the condition of the premises;^[46] and

3. (iii)
   whether the tenant is allowing entry to the premises which is authorised under the RTRAA;

3. (d)
   whether any likely detriment to the lessor may be ameliorated by means other than immediate termination;

3. (e)
   the length of time the tenant has been aware that the tenant will need to vacate the premises at the end of the fixed term agreement;

3. (f)
   how long the tenant has lived in the property;

3. (g)
   whether and how long the tenant wishes to stay in the property, and for what reason;

3. (h)
   the detriment to the tenant if the agreement is terminated or termination is not deferred for a significant period;

3. (i)
   whether the tenant has taken reasonable steps to search for or arrange alternative accommodation; and

3. (j)
   the nature and extent of the tenant’s human right to choose where to live.

80. [80]
    There may be other relevant factors in a particular case. The Respondent has referred to a statement of Magistrate Braes in Cuda v Moriconi^[47] that the effect of terminating a tenancy is a serious matter and one which cannot be taken lightly or in circumstances where strict compliance with the law has not been followed.^[48] I respectfully agree.

Considering the factors relevant to the exercise of the discretion

81. [81]
    I turn to considering the discretionary matters which are relevant to this case.

The parties’ agreement on a fixed term

82. [82]
    The parties agreed on a tenancy lasting only 6 months. That agreement is enforceable under the RTRAA and this fact favours an immediate termination order.

The motivation for the notice to leave, urgency and potential detriment to the lessor

83. [83]
    Ms Brice, for Vanilla Rentals, explained the motivation for the notice to leave:

The landlord requires vacant possession of the property. There has [sic] been some issues throughout the tenancy in regards to maintenance and the tenant not allowing access. The landlord would like to do that maintenance and would like vacant possession of the property to be able to do work to the property.^[49]

…

The property does need – so there’s – there’s pest control, there’s – there is apparently some electrical items as well. It’s been an ongoing – like, we took over this management. It’s been ongoing with the tenant.

84. [84]
    Ms Brice’s evidence was that the Respondent denied entry to tradesmen. The Respondent said in her submissions that this was not true “at all”^[50] but conceded at the hearing:

I wouldn’t let them – a contractor go ahead and do stuff that doesn’t need to be done and that’s what they were trying to do, not do what was in the notice to remedy breaches, was an electrician to fix all the electrical wiring and to fix and replace the aircon, no. It was only him to come out and do the rat thing…^[51]

85. [85]
    Given the inconsistency in the Respondent’s statements, I prefer the evidence of Ms Brice and find on balance that there have been occasions in which the Respondent has denied entry to contractors. Ms Brice stated that entry notices had been given.^[52]
86. [86]
    However, in determining how this should bear upon termination, neither party gave me the impression that the need for maintenance was so urgent that termination should not be deferred if the other circumstances warranted a deferral. No detail was provided by Vanilla Rentals as to what work was required. The RTRAA allows for an application to be made to the Tribunal where legitimate entry is refused.^[53] There was no evidence that this was done. The Respondent gave evidence of rodents in the premises^[54] which obviously requires attention. “Electrical issues” may well be urgent. The Respondent says that she was “electrocuted” and “zapped” and “shocked” via light switches and power outlets,^[55] and although she referred to them,^[56] did not file any notices to remedy breach in this respect. No evidence was before me that she had pursued a remedy in the Tribunal. The Respondent mentioned that the lessor’s concerns related to smoke alarms. That would certainly be pressing. However, this was not something raised by Vanilla Rentals.
87. [87]
    The fact that entry has been refused to contractors following legitimate entry notices favours the grant of a termination order in the short term. There is not only a risk that important maintenance work is not done, but also that the lessor may in the future incur additional costs of wasted attendances by contractors, and increased administration costs.^[57] However, the lack of urgency demonstrated by inaction from both parties in pursuing a remedy in the Tribunal suggests that the lessor would not be overly prejudiced by a deferral of an order if that was otherwise justified. Prejudice caused by a refusal of entry may be able to be ameliorated by an application to the Tribunal under s 201 of the RTRAA to change the rules of entry. A repair order may be sought from the Tribunal on an urgent basis where emergency repairs are required.^[58]
88. [88]
    There is no complaint from Vanilla Rentals about payment of rent or the condition of the premises.

The period of notice

89. [89]
    The Respondent had been aware since 19 July 2023 (since the issue of the notice to leave) that she was required to vacate the property, a period of three months to the date of the hearing.  I disregard the fact that there had been a prior application to the Tribunal for termination which was dismissed on 19 July 2023, on the basis that the tenancy agreement had been renewed. However, the fact that the tenancy agreement was for the limited duration of 6 months should have sheeted home to the Respondent that her position was precarious. This factor weighs in favour of an immediate termination order.

The length of occupancy and wish to move on

90. [90]
    The Respondent has lived in the premises since 8 December 2017. She has submitted that it is the first time she has actually unpacked her things and the “longest home I’ve lived in”.^[59] Something must have been going right for some time in order for the tenancy to have continued this long. While this factor favours some limited period of grace in making a termination order, I am mindful that an adjournment of the hearing was previously granted due to the Respondent’s medical condition and her wish to seek advice. No further time should be allowed for this reason.
91. [91]
    It is obvious that the relationship between the Respondent and Vanilla Rentals has deteriorated badly. The Respondent does not want to stay in the property in the long term. She has accused Vanilla Rentals of lying, stalking her, harassing her, discriminating against her, threatening her life,^[60] and “stealing her rent money, not paying her bond and telling her never to contact them again”.^[61]
92. [92]
    Vanilla Rental’s representatives did not respond to the Respondent’s allegations against them. It may be that they did not think the allegations sufficiently plausible to respond to. In any event, the conduct the Respondent complains of, other than perhaps lying,^[62] must be the subject of other proceedings. She does not appear to have pursued these matters in the Tribunal to the date of the hearing. In the absence of evidence beyond mere assertion, I do not accept that the representatives of Vanilla Rentals have lied to the Tribunal.
93. [93]
    However, these matters demonstrate, at the least, a fundamental mistrust of Vanilla Rentals on the part of the Respondent, which is prejudicial to the effective management of the tenancy in terms of the performance of necessary maintenance work. This favours the grant of a termination order in the short term.

The potential detriment to the Respondent and efforts to find alternative accommodation

94. [94]
    The potential detriment to the Respondent if a termination order is made and not deferred is very severe. It could be disastrous. The Respondent has given unchallenged evidence of multiple health conditions and symptoms,^[63] including the need for imminent surgery to her abdomen. Her doctor has described the surgical procedures as “potentially lifesaving” and has expressed concern about her mental health and says that she may suffer a mental breakdown.^[64] The Respondent states that she has bipolar disorder and borderline personality disorder, although these conditions were not substantiated by the medical evidence. The Respondent says she is bedridden until the afternoon^[65] and attended the hearing by telephone. No fixed time could be given for the surgery.
95. [95]
    These matters are beyond the Respondent’s control and favour the deferral of the termination order for a period which would allow for some recovery from surgery. No evidence was filed as to what period that would take.
96. [96]
    Despite the notice to leave, it appears the Respondent had not made any attempts to find a new property, given no requests for rental references have been made to Vanilla Rentals;^[66] instead, the Respondent has pinned all her hopes on the purchase of a bus which she is in the process of modifying to use as a home.^[67] The Respondent filed pictures of the progressive modification of the bus. I take it from the photographs and submissions that there is significant work required to complete the modification. It may well take 6 months. No evidence was filed which would give me an accurate estimate as to how long the modifications would take. The Respondent said at the hearing that she bought a bus in April (of 2023) and took a “few months” to transfer it to her name and “get contracted”. She said she is a quarter of the way though the work.^[68]
97. [97]
    However, the Respondent has known that the tenancy would be of short duration in February when the tenancy agreement was signed. She has had many months to arrange for the purchase and modification of the bus and has not been diligent in doing so.
98. [98]
    The Respondent is 49 years old and receives a disability pension.^[69] She says in her submissions she has nowhere to go.^[70]
99. [99]
    Neither party gave evidence as to the state of the rental market in the Lockyer Valley and the availability of properties within the Respondent’s means. I am prepared to accept based on my experience in tenancy matters in the Ipswich Registry that finding new premises will be difficult in the current market. Although the Respondent says she will be homeless, she indicates that she has some savings left which could be put towards another tenancy,^[71] although at the expense of her plan to modify the bus. I am unable to draw the conclusion that the Respondent will be homeless if she is allowed some time before termination takes effect.

The Respondent’s human right to choose where to live

100. [100]
     The Respondent enjoys a human right to choose where to live, that right must be construed liberally. It is trite to say that the Respondent is taken, by her execution of the Form 18a, to have chosen to live at the premises, but for no more than 6 months.
101. [101]
     A decision to terminate the tenancy impedes the Respondent’s freedom to choose where to live. However, I conclude that this is permissible:

     1. first, because section 5(2)(a) of the HRA, as it is has been interpreted in Grant,  requires that human rights be taken account of, but not necessarily to the exclusion of other relevant and countervailing matters.^[72] Such matters have been addressed above, and the countervailing matters favour the termination of the tenancy; and
     2. because s 13 of the HRA allows for human rights to be limited.
102. [102]
     As to the application of s 13 of the HRA, that section provides:

3. (1)
   A human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.

3. (2)
   In deciding whether a limit on a human right is reasonable and justifiable as mentioned in subsection (1), the following factors may be relevant—

3. (a)
   the nature of the human right;

3. (b)
   the nature of the purpose of the limitation, including whether it is consistent with a free and democratic society based on human dignity, equality and freedom;

3. (c)
   the relationship between the limitation and its purpose, including whether the limitation helps to achieve the purpose;

3. (d)
   whether there are any less restrictive and reasonably available ways to achieve the purpose;

3. (e)
   the importance of the purpose of the limitation;

3. (f)
   the importance of preserving the human right, taking into account the nature and extent of the limitation on the human right;

3. (g)
   the balance between the matters mentioned in paragraphs (e) and (f).

103. [103]
     I take the reference in s 13(1) to a human right being subject “under law” to reasonable limitation to include circumstances where the right is limited by the exercise of a statutory discretion.
104. [104]
     I turn to consider some of the relevant factors for s 13(2).
105. [105]
     As to the nature of the human right (s 13(2)(a)), I consider it proper to have regard to the Explanatory Notes to the Human Rights Bill 2018 (Qld) either as part of the inquiry permitted under s 13(1)(a) or as a matter of interpretation under s 14B(1) of the Acts Interpretation Act 1954 (Qld). It gives this explanation:

Clause 19 provides for the right to freedom of movement, specifically that every person lawfully within Queensland has the right to move freely within Queensland, enter or leave Queensland, and choose where they live. This clause is modelled on article 12 of the ICCPR.^[73] It reflects the negative obligation on the State under article 12 of the ICCPR to not act in a way that would unduly restrict the freedom of movement, but is not intended to impose positive obligations on the State to take positive actions to promote free movement (e.g. the provision of free public transport services). (emphasis added)

106. [106]
     In Attorney-General for the State of Queensland v Sri^[74] Applegarth J said of human rights including s 19, albeit in the context of considering freedom of movement as it applied to a planned protest:

Any of those rights, including the right to movement, are subject to reasonable regulation whether it be in the interests of controlling speed on roads, safety to other road users or other individuals’ rights. (emphasis added)

107. [107]
     I conclude that the nature of the right is not an unqualified one, and it must be balanced against the rights of others, in this case the rights of the lessor as the owner of the property, and does not require positive action by the State. The freedom to choose where to live is therefore legitimately constrained by the actions of those who lawfully decline to make their premises available.
108. [108]
     As to the nature of the purpose of the limitation (s 13(2)(b)), the purpose of the limitation in this case is to give effect to the object of the RTRAA in regulating the ending of residential tenancy agreements and to the agreement between the parties reflected in the residential tenancy agreement that the Respondent would occupy the tenancy until 19 September 2023. While the concept may be open to criticism, I give effect to the freedom of contract.
109. [109]
     As to the relationship between the limitation and its purpose (s 13(2)(c)), the limitation achieves the purpose of giving effect to the statute and to freedom of contract, and in respect of s 13(2)(e), the purpose of the limitation seems to me to be important to the efficacy of the legislation and to the operation of the private rental market.
110. [110]
     As to whether there are any less restrictive and reasonably available ways to achieve the purpose (s 13(2)(d)), I consider none are available – the period allowed for vacant possession is the maximum which can be justified in the circumstances.
111. [111]
     As to the importance of preserving the right (s 13(2)(f)), I consider that, in the context of the parties reaching an agreement on a fixed term lease, as regulated by the RTRAA, the importance of preserving the right diminishes.

Conclusion – the exercise of discretion

112. [112]
     In light of the matters discussed above, it is fair and equitable that the tenancy terminates on 11 January 2024, and that a warrant of possession should be issued, to take effect on 12 January 2024. That takes into account the matters discussed above. In particular, that period should allow for the Respondent to undergo and recover from her surgery, allow a limited period for relocation given the difficulties which will inevitably be faced by her and minimise the potential detriment to the lessor (and the Respondent) from deferred maintenance and the deterioration of the relationship between the Respondent and Vanilla Rentals.

Material forwarded after the hearing

113. [113]
     After the hearing, the Respondent sent emails to the Registry seeking to put forward further information in relation to the proceeding, which were forwarded to me. I have disregarded those emails as it would be procedurally unfair to Vanilla Rentals to take them into account. As Alan Wilson J stated in Creek v Raine & Horne Real Estate Mossman:^[75]

The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, ‘… the public as a whole, not merely the parties to the proceedings’. Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties. (footnotes omitted)

114. [114]
     All relevant material should have been filed prior to the hearing.

De-identification

115. [115]
     On 16 January 2024, I ordered that a non-publication order be made to the extent that, except to the parties and for Registry purposes, the material on the Tribunal file and reasons for decision may be published only in a format which de-identifies the Respondent and the rental premises.