21 October 2009

Gangs, houses and rights

The High Court recently dismissed appeals by tenants of Housing NZ arising out of the termination (by notice) of their tenancies, in essence, because their partners were anti-social Mongrel Mob members.

> Winther & Ors v House New Zealand Corporation (09.10.2009, High Court, Wellington, Wild J, CIV-2009-485-1954)

The appellants tried to argue before the Tenancy Tribunal that the termination of their tenancies amounted to unlawful discrimination under the Bill of Rights and breached their right to free association. They said the notices to terminate should be quashed. They wanted to stay put.

But the High Court, in agreement with the Tenancy Tribunal and District Court below, ruled the Tribunal could not consider such a claim. In simple terms, they all said Housing NZ was to be treated no differently from a private landlord. Private landlords could terminate on 90 days notice without given reasons - the state agency was no different, even if it was subject to the Bill of Rights. Any complaints about unlawful discrimination were to be pursued through standard processes under the Residential Tenancies Act, which might led to (only) an award of damages. Justice Wild effectively said to consider the lawfulness of the (alleged discriminatory) reasons for the termination would be to engage in an irrelevant enquiry not mandated by the Act. He relied on pointers in the Act that suggested the ability to raise such concerns, and the ability of the Tribunal to consider them, was relatively circumscribed. Those other processes should be pursued. Or the actions of Housing NZ should be judicially reviewed.

I'm not convinced.

First, it is axiomatic that Housing NZ is in a different to a private landlord. It is a manifestation of the state and therefore is subject to additional obligations founded in public law and the Bill of Rights. This applies even when engaged in the assertion of private property rights. This was made clear in the Police v Beggs [1999] 3 NZLR 615, where a full bench of the High Court (including Wild J) ruled the Speaker's ability to issue trespass notices in relation to Parliament was circumscribed by their obligations under the Bill of Rights. That basic proposition was recently endorsed by the Court of Appeal in Bright v Police [2009] 3 NZLR 132 (leave to Supreme Court refused), where the ejection took place at a local authority meeting.

Secondly, in reality, the appellants were mounting a public law collateral challenge to the termination notice. For better or worse, our courts have generally been receptive to such challenges. The Rule of Law requires public bodies to act lawfully and the courts have been reticent to see people's ability to point to unlawfulness clouded by technical arguments about the proper place or process to raise these concerns. See Knight, "Ameliorating the Collateral Damage Caused by Collateral Attack in Administrative Law (2006) 4 NZJPIL"

Thirdly, against this backdrop, I think a more aggressive interpretation of whether the Residential Tenancies Act allowed the ventilation of breaches of this important public law obligation is required. Section 6 of the Bill of Rights demands this. I've not convinced that the Residential Tenancies Act processes and jurisdictions necessarily exclude the consideration of such a claim. Sure, there are indications in the Act that such claims are not the norm - but that's because the bulk of landlords will be private. Those provisions are, I think, capable of being read subject to a public law gloss in the case of state landlords, without violating the injunction in section 4 of the Bill of Rights. That's orthodox Bill of Rights interpretative methodology. But, regrettably, we don't see explicit reference to that methodology.

Anyways, a fascinating case that crosses the public--private divide. And worthy of further consideration by the Court of Appeal, even though I fear the appellants may have run out of steam by now...

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"


This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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