Winther v Housing New Zealand Corporation [2010] NZCA 601; [2011] 1 NZLR 825; (2010) 12 NZCPR 293 (9 December 2010)

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(i) The Tenancy Tribunal does not have jurisdiction to determine whether the respondent’s decision to terminate the appellants’ tenancies was based on unlawful discrimination against the appellants. Any such question must be determined under the Human Rights Act 1993 by the processes established for the purpose thereunder.

(ii) If the decision by the respondent to terminate the tenancies was based on unlawful discrimination, the 90 day termination notices

WINTHER, HUIA TAMAKA AND BILLY TAYLOR V HOUSING CORPORATION OF NEW ZEALAND CA CA303/2010 [9 December 2010]

are legally effective unless and until a finding is made by the Human Rights Review Tribunal that the respondent contravened Part 1A of the Human Rights Act 1993 and thereby committed an unlawful act under s 12(1) of the Residential Tenancies Act 1986.

(iii) If the decision by the respondent to terminate the tenancies is found to have contravened Part 1A of the Human Rights Act 1993 and the respondent thereby committed an unlawful act under s 12(1) of the Residential Tenancies Act 1986, the Tenancy Tribunal has power to refuse to make a possession order based on the 90 day notices. The District Court and the High Court have the same power on appeal.

C The respondent is to pay costs to the appellants for a complex appeal on a Band A basis with usual disbursements. The interveners are to bear their own costs.

	Para No
Introduction	[1]
First issue: Does the Tenancy Tribunal have jurisdiction to determine whether Housing New Zealand’s decision to terminate the tenancies was based on unlawful discrimination against the appellants as tenants?	[11]
First issue – discussion	[25]
Second issue: If the decision to terminate was based on unlawful discrimination, are the 90 day termination notices legally effective?	[52]
Second issue – discussion	[60]
Third issue: If the decision to terminate was based on unlawful discrimination, does the Tenancy Tribunal (or the District Court or High Court on appeal) have power to refuse to make a possession order based on the notice?	[68]
Third issue – discussion	[73]
_Conclusion	[82]

[1] The matters at issue in this appeal relate to the termination by Housing New Zealand (HNZ) of three residential tenancies in the suburb of Pomare, Lower Hutt City. The appellants are the tenants of those properties and remain in possession of them pending the outcome of the appeal.

[2] In proceedings before the Tenancy Tribunal (TT) established under the Residential Tenancies Act 1986 (RTA), the appellants maintained that HNZ had acted unlawfully in terminating the tenancies. The appellants’ case was that their right to freedom from discrimination and their right of association guaranteed by the New Zealand Bill of Rights Act 1990 (NZBORA) had been breached. HNZ denies the allegations of discrimination. Neither the TT nor the courts below have made any finding in that respect and we are not called upon to do so in this appeal. The issues relate purely to questions of law.

[3] The notices terminating the tenancies were issued under s 51(1)(d) of the RTA. Under that provision, a landlord may give notice to a tenant to vacate the premises within 90 days and is not required to give reasons for doing so. Attached to each of the 90 day notices was a copy of an internal HNZ memorandum outlining the background circumstances relating to each tenancy and seeking approval to issue the notices. It was asserted for HNZ that the memoranda were attached to the notices by mistake. The gist of them was that the three appellants were alleged to be the partners of certain gang members two of whom had been charged with the burglary of another HNZ property in the area. The third had been charged with intimidation. It was alleged that each of the appellants had breached s 40(2)(b) and (c) of the RTA by permitting their properties to be used for an unlawful purpose and permitting interference with the reasonable peace, comfort or privacy of the landlord’s other tenants.

[4] The appellants applied to the TT for an order declaring that the 90 day notices were unlawful. They also lodged a complaint of discrimination with the Human Rights Commission (HRC) but, for reasons which are unclear, did not pursue their complaint. We were told the HRC’s file has been closed.

[5] Upon the expiry of the 90 day notices, HNZ applied to the TT for an order for possession of the properties under s 64 of the RTA.

[6] The TT found it had no jurisdiction to inquire into the lawfulness of the termination notices and, on 30 July 2009, made an order granting HNZ possession of the properties.

[7] The appellants appealed to the District Court but their appeal was dismissed by Judge Walker on 29 September 2009.¹A further appeal to the High Court was dismissed by Wild J on 9 October 2009.²The appellants then sought leave to appeal to this Court but their application was declined by Wild J on 4 November 2009.³

[8] This Court subsequently granted the appellants special leave under s 120 of the RTA to appeal Wild J’s substantive decision. Three questions of law were approved. An order made in the High Court staying execution of the possession orders was continued. The Attorney-General and the HRC were later granted leave to intervene on the grounds that the case raised important questions beyond the specific points at issue.

[9] On 10 September 2010, HNZ gave notice that it intended to support the judgment of Wild J on an additional ground not raised in the courts below. The new ground was that, by virtue of Part 1A of the Human Rights Act 1993 (HRA), a breach of s 19 of the NZBORA by HNZ was appropriately determined by the Human Rights Review Tribunal (HRRT) and that the TT had no jurisdiction to determine whether any such breach had occurred.

[10] In light of this new ground, we have modified the questions of law to be determined as follows:

to terminate the tenancies was based on unlawful discrimination against the appellants as tenants?

¹_{Taylor v Housing New Zealand Corp DC Lower Hutt
CIV-2009-32, 29 September 2009.}

³Winther v Housing New Zealand Corp HC Wellington CIV-2009-485-1054, 4 November 2009.

(b) If the decision to terminate was based on unlawful discrimination, are the 90 day termination notices legally effective?

(c) If the decision to terminate was based on unlawful discrimination, does the TT or the District Court or High Court on appeal have power to refuse to make a possession order based on the notice?

First issue: Does the TT have jurisdiction to determine whether HNZ’s decision to terminate the tenancies was based on unlawful discrimination against the appellants as tenants?

(a) In terms of s 53(1)(d) and (e) of the HRA, it is unlawful to deny any person the right to occupy any residential accommodation or to terminate any such accommodation ―by reason of any of the prohibited grounds of discrimination‖.

(b) The tenancies of the appellants were terminated on one of the prohibited grounds of discrimination, namely their family status which, in terms of s 21(1)(l) of the HRA means being married to, or being in a relationship in the nature of a marriage with, a particular person.

(c) Under s 19 of the NZBORA, the appellants have the right to freedom from discriminatory acts or omissions on the grounds of discrimination in the HRA.

(d) In terms of s 12(1)(a) of the RTA, discrimination in respect of the termination of a tenancy agreement is an unlawful act if it contravenes the HRA.

(e) By virtue of s 12A of the RTA, the appellants may choose whether to proceed under the RTA or make a complaint under the HRA (but not both).

(f) The TT has jurisdiction under ss 77(2)(m) of the RTA to order HNZ to refrain from doing anything which would contravene any provision of the RTA. It also has jurisdiction under s 77(n) and (o) and s 109 to order HNZ to pay damages (including exemplary damages) to the appellants.

[12] Ms Clark QC on behalf of HNZ submitted that the TT does not have jurisdiction to determine issues of discrimination where discriminatory acts or omissions are alleged against a person or body described in s 3 of the NZBORA. For

convenience, we will refer to an entity so described as a public body. She submitted that, by virtue of Part 1A of the HRA, only the HRRT had such jurisdiction.

[13] The determination of this issue requires an examination of the relationship between ss 12 and 12A of the RTA and Part 1A of the HRA. It must be said immediately that the drafting of Part 1A is not a model of clarity.

(a) Discrimination against any person in respect of the grant, continuance, extension, variation, termination, or renewal of a tenancy agreement in contravention of the Human Rights Act 1993; and

(b) The giving of an instruction or the stating of an intention in contravention of subsection (2) of this section.

(2) A landlord shall not, in respect of the grant, continuance, extension, variation, termination, or renewal of a tenancy agreement,—

(a) Instruct any person to discriminate against any other person in contravention of the Human Rights Act 1993; or

(b) State an intention (whether by advertisement or otherwise) to discriminate against any person in contravention of that Act.

(1) Where the circumstances are such that any person would be entitled to make an application to the Tribunal and also a complaint under the Human Rights Act 1993, that person may take one, but not both, of the following steps:

(a) The person may invoke, in relation to those circumstances, the procedures under this Act:

(b) The person may make, in relation to those circumstances, a complaint under the Human Rights Act 1993.

(2) For the purposes of subsection (1)(b), a person makes a complaint when proceedings in relation to that complaint are commenced by the complainant or the Commission.

[15] The focus of Ms Clark’s argument was on the words ―in contravention of the Human Rights Act 1993‖ in s 12(1)(a). Ms Clark submitted that the issue of whether a public body had contravened the HRA could only be determined by the processes authorised by the HRA including, ultimately, a determination made by the HRRT. Part 1A of the HRA provides:

Part 1A: Discrimination by Government, related persons and bodies, or persons or bodies acting with legal authority

The purpose of this Part is to provide that, in general, an act or omission that is inconsistent with the right to freedom from discrimination affirmed by section 19 of the New Zealand Bill of Rights Act 1990 is in breach of this Part if the act or omission is that of a person or body referred to in section 3 of the New Zealand Bill of Rights Act 1990.

(1) This Part applies only in relation to an act or omission of a person or body referred to in section 3 of the New Zealand Bill of Rights Act

(b) a person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.

(2) Despite subsection (1), this Part does not apply in relation to an act or omission that is unlawful under any of sections 22, 23, 61 to 63, and 66.

(3) If this Part applies in relation to an act or omission, Part 2 does not apply to that act or omission.

(b) the assessment, consideration, mediation, or determination of a complaint under Part 3:

(c) any determination made by the Director under Part 3 concerning the provision of representation in proceedings before the Human Rights Review Tribunal:

(d) any determination made in proceedings before the Human Rights Review Tribunal or in any proceedings in any court on an appeal from a decision of that Tribunal:

(e) any determination made by any court or tribunal in proceedings brought under this Act by the Commission:

(1) An act or omission in relation to which this Part applies (including an enactment) is in breach of this Part if it is inconsistent with section 19 of the New Zealand Bill of Rights Act 1990.

(2) For the purposes of subsection (1), an act or omission is inconsistent with section 19 of the New Zealand Bill of Rights Act 1990 if the act or omission—

(a) limits the right to freedom from discrimination affirmed by that section; and

(b) is not, under section 5 of the New Zealand Bill of Rights Act 1990, a justified limitation on that right.

(3) To avoid doubt, subsections (1) and (2) apply in relation to an act or omission even if it is authorised or required by an enactment.

(a) Part 1A of the HRA applies to HNZ as it is a body referred to in s 3 of the NZBORA.

(b) None of the exceptions referred to in s 20J(2) of the HRA applies so as to exclude the application of Part 1A.

(c) In relation to public bodies, an act or omission that is inconsistent with the right to freedom from discrimination under s 19 of the NZBORA is in breach of s 20L of the HRA if it is inconsistent with the s 19 right in the manner described by s 20L(2) of the HRA.

(d) But, by virtue of s 20K, a breach as defined by s 20L ―applies only for the purposes‖ set out in s 20K.

(e) Those purposes are confined to processes, proceedings and determinations under the HRA.

(f) It follows that if the appellants complain of discrimination, the only body having jurisdiction to determine the complaint is the HRRT under the HRA.

[17] In response to Ms Clark’s submission, Ms Hall argued that the words ―in contravention of the Human Rights Act 1993‖ in s 12(1)(a) were simply a shorthand way of describing the type of discrimination the RTA contemplated. If Parliament had intended to exclude the jurisdiction of the TT in relation to discrimination by public sector bodies, then it would have done so clearly and explicitly.

[18] Ms Hall relied on a decision of the Victorian Civil and Administrative Tribunal (VCAT) in Director of Housing v Sudi⁴in which it was emphasised that the eviction of people from public housing is a ―severe infringement of their human rights, especially those which protect the family and the home‖. Bell J found that VCAT did have jurisdiction to consider a complaint by a tenant of discrimination under the Charter of Human Rights and Responsibilities Act 2006 (Victoria). We were told this decision is under appeal. Ms Hall also referred to authorities in the United Kingdom which we discuss later.

[19] Ms Hall’s submissions were supported by Mr Butler on behalf of the HRC who submitted that, in context, s 12 of the RTA meant that where an act would amount to a contravention of the HRA then, for the purposes of the RTA, it was an unlawful act. Once it was an unlawful act then the TT was empowered to deal with it under the RTA. So long as the HRRT would regard the acts as being in contravention of the HRA, then they were unlawful acts for RTA purposes. He submitted this was precisely the reason for the choice of procedures clause under s 12A of the RTA.

[20] Mr Butler also placed reliance on the fact that, when Parliament enacted Part

1A of the HRA in 2001, it did not make any consequential amendment to the RTA to confirm that the TT did not have jurisdiction in respect of Part 1A claims. It was significant, he said, that Parliament had amended s 12A(2) in 2001 to reflect amendments made at that time to the HRA but did not exclude Part 1A claims from the choice of procedures under s 12A of the RTA.

_{jurisdiction of the TT would diminish the effectiveness of the
anti-discrimination}

protections of the HRA and the NZBORA. He also drew the Court’s attention to the international instruments which detail the fundamental importance placed on human rights in relation to housing.⁵He submitted that, as a party to these instruments, New Zealand had a duty to respect, promote, protect and fulfil the right to housing and, in particular, a duty to ensure that this right is enjoyed on a non-discriminatory basis. He also emphasised that the efficacy of the TT as a body intended to determine expeditiously with disputes between landlords and tenants would be compromised if tenants complaining of unlawful discrimination in tenancy matters

were obliged to make a complaint under the HRA. He submitted this would be contrary to the general statutory intention evident in s 77 of the RTA that the TT should have jurisdiction to determine all disputes arising between landlords and tenants.

[22] Finally, Mr Butler cited the decision of the Supreme Court of Canada in R v Conway⁶in which the Court was considering the jurisdiction of the Ontario Review Board under s 24 of the Canadian Charter. Mr Butler referred to the observations of Abella J⁷(delivering judgment for the Court) for the proposition that the principles governing remedial jurisdiction under the Charter apply to both courts and administrative tribunals. As it was put:⁸

... In light of this evolution, it seems to me to be no longer helpful to limit the inquiry to whether a court or tribunal is a court of competent jurisdiction only for the purposes of a particular remedy. The question instead should be institutional: does this particular tribunal have the jurisdiction to grant Charter remedies generally? The result of this question will flow from whether the tribunal has the power to decide questions of law. If it does, and if Charter jurisdiction has not been excluded by statute, the tribunal will have the jurisdiction to grant Charter remedies in relation to Charter issues arising in the course of carrying out its statutory mandate ...

[23] For the Attorney-General, Mr Powell accepted that the actions of an entity subject to s 3 of the NZBORA in this context are governed by Part 1A of the HRA

_{rather than Part 2 where the prohibited grounds of discrimination are
expressed. In}

16 December 1966, entered into force 23 March 1976), art 17; and International Covenant on Economic, Social and Cultural Rights (opened for signature 16 December 1966, entered into force 3 January 1976), art 11.

such a case, s 20L provides a different standard. The standard prescribed is not simply discrimination on a prohibited ground (which would apply under Part 2) but discrimination that cannot be demonstrably justified in a free and democratic society.

[24] Mr Powell submitted that this may support an argument that the TT was not intended to have jurisdiction since the more complicated question of whether any such discrimination was demonstrably justified might be more readily determined in the HRT. He submitted this could be an explanation for excluding the TT from making determinations affecting public bodies to which Part 1A applied as distinct from excluding the power of the TT to make remedial orders. The latter argument, he said, was not easily reconcilable with the text of ss 12 and 109 of the TT which confer jurisdiction on the TT to deal with unlawful acts including those which are in contravention of the HRA.

[25] The resolution of the jurisdiction issue is essentially an issue of statutory interpretation and requires consideration of the text and purpose of the legislation. Also relevant is the legislative history including the events which led to the 2001 amendment of the HRA and the introduction of Part 1A.

[26] The statutory predecessor to the HRA was the Human Rights Commission Act 1977. The Commission established under that Act had responsibility to investigate any breach and could bring civil proceedings in the Equal Opportunities Tribunal. The Tribunal had power to make an order restraining the defendant from continuing or repeating a breach of the Act including a prohibited ground of discrimination under the Act or under the Race Relations Act 1971.

[27] The HRA was enacted in 1993 to consolidate and amend the Race Relations Act and the Human Rights Commission Act. As originally enacted, Part 2 applied to both public and private sector discrimination. But there were significant limits in the application of the Act to public sector discrimination. Section 151 provided:

(1) Except as expressly provided in this Act, nothing in this Act shall limit or affect the provisions of any other Act or regulation which is in force in New Zealand.

(2) Except as expressly provided in this Act, nothing in this Act relating to grounds of prohibited discrimination other than those described in paragraphs (a) to (g) of section 21(1) of this Act shall affect anything done by or on behalf of the Government of New Zealand.

[28] The limitations in s 151 had a sunset date of 31 December 1999.⁹After that date, all the prohibited grounds of discrimination would apply to the acts or omissions of public sector agencies. As noted by Professor Philip A Joseph,¹⁰an audit of the public sector undertaken in 2000 to assess compliance with non- discrimination provisions produced unsatisfactory results. A Ministry of Justice review team reporting in August 2000 recommended that the appropriate non- discrimination standard for the public sector should be that provided for in the NZBORA. It was considered that reliance on the prohibited grounds of discrimination then existing under the HRA did not permit consideration of counter- balancing policy issues which might be relevant to public administration. Section 5 of the NZBORA would enable consideration of whether apparently discriminatory

[29] It was against this background that the Human Rights Amendment Act 2001 was introduced. A review of Parliamentary materials does not reveal anything bearing directly on the issue of jurisdiction with which we are concerned. But the general policy of the amendments was stated in the explanatory note to the Human Rights Amendment Bill:

The Government is committed to the development of a robust human rights culture in New Zealand. Two important features of a robust human rights culture are –

human rights institutions that are able to effectively perform the dual functions of promoting and protecting human rights:

an anti-discrimination standard for Government that is backed up by an accessible complaints process and effective remedies.

The Government has given careful consideration to how best to achieve these aims, and in particular has taken cognisance of the recommendations of, and the public submissions received on, the independent report on the Re- evaluation of Human Rights Protections in New Zealand, which was

The Bill makes amendments relating to the anti-discrimination standard for Government activities and the associated publicly funded complaints process. Specifically, the Bill addresses the expiry of section 151 of the Human Rights Act 1993 by providing that complaints may be made under the Human Rights Act 1993 in respect of all Government activities, with the anti-discrimination standard of the New Zealand Bill of Rights Act 1990 being the standard for all Government activities (except employment and the related areas of racial disharmony, and racial and sexual harassment). To give effect to this, the Bill incorporates the anti-discrimination standard of the New Zealand Bill of Rights Act 1990 into the Human Rights Act 1993.

[30] The key elements to emerge from this explanation are the intention to apply the anti-discrimination standard of the NZBORA to most Government activities and to provide for an accessible complaints process and effective remedies under the HRA.

[31] As identified in ss 20I and 20J, Part 1A applies only to persons or bodies referred to in s 3 of the NZBORA. There is no dispute that, as a body performing public functions, HNZ is a body referred to in s 3 of the NZBORA.¹¹Section 20I states that the purpose of Part 1A is to provide that ―in general‖ an act or omission that is inconsistent with the right to freedom from discrimination under s 19 of the NZBORA is a breach of Part 1A.

[32] The use of the expression ―in general‖ is explained by s 20J(2) which excludes from the application of Part 1A any act or omission that is unlawful under ss 22, 23, 61 to 63 and 66 of the HRA. Those provisions relate to discrimination in employment, racial disharmony and harassment, sexual harassment, and victimisation. Presumably, Parliament considered these areas did not require consideration of policy balancing issues under the NZBORA standard. None of the exceptions applies in the present case. Section 20J(3) states explicitly that where Part 1A applies, Part 2 does not.

[33] Section 20L is the substantive provision implementing the purpose of the Act as described in s 20I. It provides that an act or omission in relation to which Part 1A

_{applies is ―in breach of this Part‖ if it is inconsistent
with s 19 of the NZBORA.}

Section 20L(2) then describes the circumstances in which any such act or omission is inconsistent with s 19. The act or omission will be inconsistent with that section if it limits the right to freedom from discrimination affirmed by that section and is not a justified limitation on that right under s 5 of the NZBORA. The scope of s 20L extends to any enactment which is inconsistent with s 19 of the NZBORA.¹²

[34] An act or omission may amount to a breach of Part 1A even if it is authorised or required by an enactment.¹³This may be contrasted with the position where discrimination arises under Part 2 of the HRA. An act or omission is not unlawful under Part 2 if it is authorised or required by an enactment or otherwise by law.¹⁴

[35] We accept the submission made on behalf of HNZ that s 20K of the HRA limits the application of s 20L to the purposes set out in s 20K. Effectively, s 20K means that s 20L applies only to the defined functions, processes and determinations identified in s 20K. The strictly limited application of s 20L is emphasised by the opening words of s 20K:

[36] Section 20K is expressed in unusual terms. It would have been preferable for a clear statement to have been made that any allegation of a breach of s 20L by a public sector agency was to be determined under the HRA. However, we are satisfied that s 20K effectively achieves that result since it limits the application of s 20L to processes, proceedings and determinations under the HRA.

[37] Section 19 of the NZBORA is unique amongst the guaranteed rights, in that the right to be free from discrimination is expressed by reference to a standard expressed in other legislation. It is confined to discrimination on the grounds identified in the HRA. Thus there is no breach of s 19 unless there is a breach of the HRA. In the case of public bodies, where Part 1A applies, a breach on the grounds

_{of discrimination only arises under s 20L(1) if established by
the standard in}

s 20L(2) and only by the processes set out in s 20K. The standard presented by s 20L(2) is more broadly expressed than the specifically stated prohibited grounds of discrimination under Part 2. The scope of the inquiry is also potentially broader than under Part 2 since there will be no inconsistency with s 19 if any limit on the right to be free from discrimination is justified under s 5 of the NZBORA.

[38] We are unable to accept the submission that, by virtue of ss 12 and 12A of the RTA, the TT continues to have jurisdiction to determine whether a public sector agency has, in relation to a tenancy, contravened the HRA. When the RTA was first enacted in 1986, s 12 prohibited discrimination in tenancy matters only on limited

grounds.¹⁵At that time, the provisions of the Race Relations Act 1971 and the

Human Rights Commission Act 1977 relating to unlawful discrimination also applied and were unaffected by s 12.

[39] In 1996, following the passage of the HRA in 1993, s 12 was repealed and substituted by a provision in substantially similar form to the current s 12. Section

12A was also introduced at that time. When introducing the Bill to amend the RTA, the then Minister of Housing, Hon Murray McCully, said:¹⁶

The discrimination provisions in section 12 of the Act have been aligned with the Human Rights Act. Complainants will have the option of having their case dealt with either by the Human Rights Commission or by the tenancy tribunal – a provision on choice of procedures that is similar to that in the Employment Contracts Act.

[40] So, in 1996, the intention clearly was to provide a choice of procedures for complaints of discrimination in tenancy matters. When the HRA was amended in

2001 to introduce Part 1A, there were no consequential amendments to s 12 and only a very minor amendment to s 12A(2). This change related purely to what constituted the making of a complaint under the HRA.¹⁷Despite the absence of any significant consequential change to ss 12 or 12A of the RTA, we do not accept that the TT still retains jurisdiction to determine whether there has been an act or omission by a

¹⁶(29 March 1995) 547 NZPD 6514. The reference to the Employment Contracts Act must refer to

[41] When Parliament enacted Part 1A of the HRA in 2001, it provided by s 20K that an allegation of alleged discrimination by a public sector agency was to be determined under the HRA. Apart from the specific exclusions in s 20J(2) (which do not apply here), Parliament did not allow for any exceptions to that statutory policy whether in tenancy cases or otherwise. The new Part 1A of the HRA and ss 12 and

12A of the RTA are not reconcilable on their face, so far as prescribing the procedure for determining discrimination by public bodies. If Part 1A of the HRA provides the only pathway, there could not be a choice of pathways as envisaged by s 12A of the RTA.

[42] Of course, the courts will strive to reconcile seemingly inconsistent provisions. One way of reconciling the two statutes here would be to find that discrimination by public bodies in tenancy matters is a specific exception to the more general provisions relating to public sector discrimination in the HRA. On that basis, the issue could be dealt with either under the RTA or the HRA. However, we consider this interpretation is precluded by the explicit language of s 20K and the

fact that the 2001 amendment of the HRA is the later enactment of the two.¹⁸This

outcome is also consistent with the clear statutory intention to distinguish between public and private sector discrimination generally and to apply a different standard to each. As a matter of construction, we consider Part 1A of the HRA must prevail over ss12 and 12A of the RTA in relation to the determination of discrimination by public bodies. The TT no longer has jurisdiction to determine such issues.

[43] The suggestion that the TT could proceed under s 12 of the RTA by endeavouring to discern what conclusion the HRRT would have made under Part 1A of the HRA is not tenable.

[44] We are satisfied that, on the jurisdiction point, the Sudi decision is distinguishable. VCAT administers over 150 Acts including the Victorian anti- discrimination legislation.¹⁹VCAT is chaired by a Supreme Court Judge and its

_{jurisdiction in the field of administrative tribunals is specialised in
nature. Unlike}

¹⁸J F Burrows and R I Carter Statute Law in New Zealand (4^thed, LexisNexis, Wellington, 2009) at 453. Francis Bennion Bennion on Statutory Interpretation (5^thed, LexisNexis, London, 2008) at 304.

New Zealand, the anti-discrimination legislation does not provide a specific procedure for obtaining redress for breaches of human rights.

[45] We also consider Conway to be distinguishable. The Supreme Court accepted in that case that the jurisdiction to determine Charter issues could be excluded by statute. That is the conclusion we have reached here in relation to the TT where an allegation of public body discrimination is to be determined.

[46] Ms Hall referred us to authorities in the United Kingdom which have grappled with the issue of whether the County Court is entitled to refuse a possession order on the grounds of discrimination under s 22 of the Disability Discrimination Act 1995 (UK)²⁰or breach of art 8 of the European Convention on Human Rights and the Human Rights Act 1998 (UK).²¹There are obiter statements in London Borough of Lewisham v Malcolm²²that the courts cannot be required to give legal effect to an act proscribed as unlawful. And in Kay v London Borough of Lambeth, the majority of their Lordships held that there were two gateways to enable an

alleged breach of art 8 to be raised in the County Court to resist a claim for possession.²³However, care must be taken with these authorities where the legislative background is quite different from our own.

[47] The conclusion that the TT does not have jurisdiction to determine whether there has been discrimination in tenancy matters by a public body does not mean that ss 12 and 12A of the RTA no longer have any effect. We accept Mr Powell’s suggestion on behalf of the Attorney-General that once a contravention by a public body has been established, there is no impediment to the TT proceeding to exercise any remedies available under the RTA on the basis of an unlawful act having been established under s 12 of the RTA. For that purpose, and in order to deal with allegations of discrimination in tenancy matters by private individuals, ss 12 and

[48] We conclude that the remedy for a tenant alleging acts of discrimination by HNZ in relation to a residential tenancy is to make a complaint and follow the processes under the HRA. The TT does not have jurisdiction to make a determination of discrimination in relation to a public body such as HNZ. Our decision in this respect is limited to the jurisdiction to determine whether there has been a contravention under the HRA.

[49] We are conscious of the distinction we have drawn between the determination of alleged discriminatory acts in the private and public sectors. But we accept Ms Clark’s submission that there are sound policy reasons for the legislative choice in favour of the processes under the HRA for determining discrimination in the case of public bodies. As Ms Clark submitted:

The Human Rights Act has extensive provision to ensure proper representation of all relevant interests before it. Proceedings can be taken to the Human Rights Review Tribunal by either the complainant or the Human Rights Commission on his or her behalf. All parties have a right to legal representation before the Tribunal. Additionally, a Director of Human Rights Proceedings is established under the Act to provide free legal representation to the complainant or the Commission in deserving cases. When not bringing a complaint itself, the Human Rights Commission has a right to appear and be heard in any proceedings before the Tribunal as does the Attorney-General in proceedings against public bodies. This means that in any case raising issues under NZ Bill of Rights Act there is the opportunity for the Attorney-General to contribute to the principled development of an important and challenging jurisprudence and to represent a whole of government approach.

[50] Ms Clark also pointed to the ability of the HRRT to grant interim relief.²⁴

That would enable the HRRT to restrain a landlord such as HNZ from evicting a tenant if such an order were necessary in the interests of justice to preserve the position of the parties pending a final determination. The HRRT also has jurisdiction to grant a broad range of relief including declarations, restraining orders, damages and other relief.²⁵On this basis, we agree with Ms Clark’s submission that an effective remedy can be provided under the HRA. The existence of an effective

remedy means that the right guaranteed by s 19 of the NZBORA is not impaired. It

_{follows that the interpretative preference in s 6 of the NZBORA is not
engaged.}

[51] As Mr Powell for the Attorney-General acknowledged, the HRRT may be better placed by reason of its experience and resources to determine the often difficult issues which arise in determining whether there has been a breach of the NZBORA and the issue of any justified limitation under s 5 of that Act.

Second issue – If the decision to terminate was based on unlawful discrimination, are the 90 day termination notices legally effective?

[52] On this issue, the TT found the 90 day notices to be legally effective. This finding was upheld both in the District Court and in the High Court.

[53] The essential reasoning for this conclusion was that a 90 day notice issued under s 51(1)(d) of the RTA does not require any reasons to be given. The notice need only comply with s 51(3):

[54] The TT and the courts below concluded that, so long as those formal requirements were established and the notice had been properly served, the notice was legally effective. Wild J also rejected an argument on behalf of the appellants that s 51 must be read as subject to ss 77 and 78 of the RTA which confer the jurisdiction relied upon by the appellants to make the orders they sought. He noted that the jurisdiction conferred on the TT by s 77(1) to determine all disputes arising between landlords and tenants in relation to any tenancy was constrained by the words ―in accordance with this Act‖. This meant that the exercise of jurisdiction under s 77 was subject, amongst other provisions, to s 51. Wild J considered that the TT could not exercise its jurisdiction under s 77 so as to negate the effect of s 51.

[55] Similarly, Wild J observed that the orders the TT is empowered to make under s 78 must be made ―in the exercise of its jurisdiction‖. Since there was no jurisdiction to inquire into the lawfulness of the 90 day notice, the powers of the court under s 78 were not available.

[56] Wild J concluded that s 64 did not confer any discretion on the TT to refuse to make a possession order. Provided the notice under s 51(1)(d) complied with the formalities identified in s 51(3), the TT was obliged to make an order for possession.²⁶

[57] Ms Hall, supported by Mr Butler for the HRC, relied again on the Sudi decision already mentioned to support the proposition that the 90 day notices could not be legally effective if the decision to terminate was based on unlawful discrimination. In Sudi, the Director of Housing was seeking an order under s 344(1) of the Residential Tenancies Act 1997 (Victoria) in relation to a tenancy occupied by Mr Sudi and his family. In opposition to the application it was argued that the application for the possession order had been made in breach of the Director’s obligations under s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Victoria). It was alleged the Director had not acted compatibly with s 13 of the Charter under which a person has the right not to have his or her home unlawfully or arbitrarily interfered with. Section 13 is based on Article 17 of the International Covenant on Civil and Political Rights which is expressed in almost identical terms. Article 8 of the European Convention on Human Rights is also expressed in similar terms.

[58] Bell J, as President of VCAT, noted that s 344 of the Residential Tenancies Act allowed a person who ―claims to be entitled to the possession of the premises‖ to apply for a possession order in specified circumstances. Section 345(1) required the Tribunal to make a possession order when specified conditions were met. Amongst other things, the Tribunal had to determine whether the applicant was ―entitled to

possession‖ of the premises. Bell J held²⁷that the words ―entitled to possession‖

_{referred to the entitlement of the applicant to possession of the
premises under a law}

governing that subject. He noted that entitlement to possession would normally arise under the law of property as an incident of the applicant’s ownership of the premises. He considered that, in context, the applicant’s possessory entitlement was sufficient to establish his entitlement to possession and that this was unaffected by Charter considerations.

[59] However, Bell J considered that the Tribunal was nevertheless obliged to consider and determine whether there had been a breach of the Charter by the Director (a public authority under the Charter). He held²⁸that if the making of the application for possession was unlawful for breach of the Charter, then it was not effective to commence a valid application in the Tribunal. Bell J went on to find that the making of the application was unlawful under the Charter. In consequence, the

Tribunal had no jurisdiction to determine the application and make the possession order.

[60] At common law, a periodic tenancy could be terminated by notice without providing any reason for doing so. As Mr Powell’s helpful survey of the legislative history shows, Parliament has imposed a number of controls on the termination of tenancies and has imposed limited statutory prohibitions on discrimination in tenancy matters.

The landlord could recover possession by giving the required notice to quit and obtain a possession order if necessary.

A notice to quit could be invalid if it was a retaliatory action against the tenant.

[62] Under the RTA, a residential tenancy remains a periodic tenancy. Section 51 describes the circumstances in which a residential tenancy may be terminated by

notice. A period of 42 days notice is required where the landlord requires the premises for occupation either for himself or herself or for a family member or employee. Forty-two days notice is also required where the landlord has agreed to sell the premises and vacant possession is required. In any other case, there must be

[63] As already noted, the notice must comply with certain formal requirements.³⁰

No special form of words is required; the notice may be given on any day; and the period of notice may be expressed to expire on any day regardless of the date on which the tenancy commenced or of any date on which any rent is to be paid.³¹

[64] A notice given under s 51 need not give reasons. In this respect, a 90 day notice may be contrasted with the process required where a landlord wishes to terminate a tenancy for a breach of the provisions of the tenancy agreement or of the Act. In terms of s 56, the landlord may apply to the TT for an order terminating the tenancy for breach but, where the breach is capable of remedy, a notice specifying the nature of the breach must be given and time allowed for the breach to be remedied.

[65] Section 54 of the RTA is the only specific provision empowering the TT to declare that a notice under s 51 is of no effect. The section applies to ―retaliatory notices‖ where the TT is satisfied that the landlord was motivated wholly or in part by steps taken or proposed to be taken by the tenant against the landlord arising from the tenancy. The tenant may apply for an order under the section within 14 working days after receipt of a termination notice.

[66] It is common ground that s 54 does not apply in this case. All the formal requirements under s 51 were met, and the notices were properly served. We accept Ms Clark’s submission that the 90 day notices in proper form are valid unless and until they are set aside. That submission was based on the following passage from

_{the judgment of Elias J (as she then was) in Murray v Whakatane
District Council:}³²

It is settled law that every unlawful administrative act, except perhaps in extreme cases of clear usurpation of power, is operative until set aside by a Court. Even where a decision is challenged by a plaintiff entitled to do so in appropriate legal proceedings, the Court is not compelled to set aside the decision: Smith v East Elloe Rural District Council [1956] UKHL 2; [1956] AC 736 at p 769 per Lord Radcliffe; A J Burr Ltd v Blenheim Borough [1980] 2 NZLR 1 at p 4 per Cooke J. The validity of a decision is therefore a concept which is

``relative, depending upon the court's willingness to grant relief in any particular situation'': Wade and Forsythe, Administrative Law (7th ed, 1994) at p 341; Martin v Ryan [1990] NZHC 151; [1990] 2 NZLR 209. The Court's wide discretion is emphasised by ss 4 and 5 of the Judicature Amendment Act 1972. It does not follow from the fact of illegality in the decision making that the decision will be set aside or, if it is, that it will be set aside ab initio. Matters relevant to the determination of the Court as to the form of relief will include the gravity of the error and its effects upon the applicant, the inevitability of the same outcome or the futility of granting relief, and questions of delay and prejudice to third parties.

[67] For the reasons discussed and those we develop in the next section of this judgment, we conclude on the second issue that the 90 day termination notices remain valid and effective unless and until a finding is made by the HRRT that HNZ contravened the HRA and thereby committed an unlawful act under s 12(1) of the RTA.

Third issue - If the decision to terminate was based on unlawful discrimination, does the TT (or the District Court or High Court on appeal) have power to refuse to make a possession order based on the notice?

[68] The TT and the courts below concluded that the TT had no discretion to refuse an order granting possession of the premises to HNZ. It was considered that this followed from the mandatory language of s 64 which relevantly provides:

(1) Subject to subsection (2) of this section, on the application of any person entitled to possession of the premises following the termination of a tenancy, the Tribunal shall make an order granting possession of the premises to that person.

(2) No possession order may be made more than 90 days after the date of the termination of the tenancy.

[69] Ms Clark accepted on behalf of HNZ that although termination of a periodic tenancy by a 90 day notice under s 51(1)(d) of the RTA does not require reasons or cause, nevertheless HNZ’s reasons for terminating a tenancy must be lawful and

consistent with rights protected by the NZBORA. But she submitted that even if HNZ had committed an unlawful act under s 12 of the RTA, the TT was nevertheless obliged to make an order granting possession under s 64, leaving the tenant to pursue remedies for damages or compensation.

[70] Ms Hall, supported by Mr Butler, submitted that the TT had jurisdiction to decide whether HNZ was entitled to possession under s 77(2)(g). So far as it is relevant, s 77 provided at material times:

(1) Subject to subsection (5) of this section, the Tribunal shall have jurisdiction to determine in accordance with this Act all disputes arising between landlords and tenants in relation to any tenancy to which this Act applies or to which this Act did apply at any material time.

(g) To determine whether any person is or is not entitled to possession of any premises by virtue of any provision of any tenancy agreement to which this Act applies, or by virtue of any breach by any other person of any provision of any such tenancy agreement, or on the expiry of any such tenancy agreement, and to make an order for the recovery of the premises by any person who is entitled to possession.

[71] Section 77(2)(g) may not precisely cover the circumstances of this case since it does not refer to breaches of the RTA. But we note that the specific powers in subs (2) do not limit the generality of the broad jurisdiction accorded to the TT by subs (1) to determine all disputes arising between landlords and tenants.

[72] Ms Hall also submitted that the TT had jurisdiction under s 77(2)(m) to order HNZ to refrain from doing anything that would constitute a contravention of the tenancy agreement or any provision of the RTA and, under s 77(2)(n) and (o) and s 109, to give a remedy by way of damages (including exemplary damages) for any breach of the tenancy agreement or any provision of the Act.

[73] Where it has been established that a public body such as HNZ has committed an unlawful act under s 12 in deciding to issue a 90 day notice to a tenant, we do not accept the submission that the TT is obliged to make a possession order under s 64 of the RTA leaving the tenant to pursue any remedies to which he or she may be entitled by way of damages or compensation.

[74] We reach that conclusion for several reasons. First, in terms of s 64, the TT is obliged to determine whether the landlord is ―entitled to possession of the premises‖. We do not consider that issue is to be determined solely on the basis of whether, as an incident of ownership, the landlord is entitled to possession. If a landlord has terminated a tenancy by unlawfully discriminating against the tenant, we cannot accept that Parliament could have intended that the landlord would be entitled to possession, notwithstanding that unlawful conduct. That is particularly so where s 12 of the RTA specifically declares discrimination in contravention of the HRA to be an unlawful act for the purposes of the RTA. No court or tribunal should lend its support to an unlawful act unless Parliament has required it to do so by unequivocal language. There is nothing in the RTA which compels that conclusion.

[75] Given the importance accorded by international instruments to the right to be free from arbitrary or unlawful interference with one’s home and the protections incorporated in our domestic legislation, the courts will not readily ascribe an intention to Parliament that a landlord may evict a tenant in a case where the decision by the landlord to issue a notice to quit is based on unlawful discrimination.

[76] It does not follow from the fact that no reasons are required for a 90 day notice under s 51(1)(d) that the TT must ignore an unlawful act by the landlord in issuing the notice. The issue of entitlement to possession under s 64 must be established before a possession order may be made. Where it is established that the landlord’s decision is based on an unlawful act, the TT is not obliged to make a possession order and, indeed, should not ordinarily make such an order in the face of opposition from the tenant.

[77] The TT could reach that conclusion either on the basis that the landlord is not entitled to possession under s 64 or on the basis that the underlying decision to apply for the possession order is itself unlawful with the consequence that the 90 day notice was also unlawful.

[78] Secondly, we are satisfied that, once an unlawful act on the part of the landlord under s 12 is established, the TT has jurisdiction under s 77(2)(m) to order the landlord to refrain from any act which would be in contravention of any provision of the Act. Under that provision, the TT is empowered to make an order that the landlord must refrain from taking any step to evict the tenant under the

[79] We accept that, in the first instance, a landlord seeking a possession order based on a 90 day notice need only establish that the formalities have been complied with and that the notice is properly served. It is for the tenant to raise any discrimination issue and to pursue the necessary remedies. If the tenant seeks to resist the making of a possession order on the grounds of discrimination by a public body, the successful pursuit of a complaint to the HRC is an important step.

[80] We have not overlooked s 64(2) of the RTA which provides that no possession order may be made more than three months after the date of termination of the tenancy. We also note that s 64(4) provides that a possession order is not capable of being filed in the District Court for enforcement purposes under s 106 of the RTA more than three months after the order is made. However, the HRRT has power to make interim orders designed to preserve the position of the parties until a final determination is made and the TT has jurisdiction for that purpose as well under s 79 of the RTA. If necessary, an interim order could also be made by the High Court in judicial review proceedings. In these circumstances, an order could be made restraining the landlord from proceeding until a determination is made under the HRA on a complaint of discriminatory conduct. No doubt an interim order would only be made if the tenant were able to establish a serious issue to be tried and that the balance of convenience favoured the making of the order.

[81] We conclude that the TT does have power to refuse to make a possession order based on a 90 day notice if the decision to terminate was made in contravention of the HRA. The District Court has the same powers as the TT on appeal and could likewise refuse to make a possession order in these circumstances.³³Any appeals to the High Court are limited to questions of law but

(a) The Tenancy Tribunal does not have jurisdiction to determine whether the respondent’s decision to terminate the appellants’ tenancies was based on unlawful discrimination against the appellants. Any such question must be determined under the Human Rights Act 1993 by the processes established for the purpose thereunder.

(b) If the decision by the respondent to terminate the tenancies was based on unlawful discrimination, the 90 day termination notices are legally effective unless and until a finding is made by the Human Rights Review Tribunal that the respondent contravened Part 1A of the Human Rights Act 1993 and thereby committed an unlawful act under s 12(1) of the Residential Tenancies Act 1986.

(c) If the decision by the respondent to terminate the tenancies is found to have contravened Part 1A of the Human Rights Act 1993 and the respondent thereby committed an unlawful act under s 12(1) of the Residential Tenancies Act 1986, the Tenancy Tribunal has power to refuse to make a possession order based on the 90 day notices. The District Court and the High Court have the same power on appeal.

[83] The effect of our decision is that the Tenancy Tribunal was correct to make the orders for possession since, in the absence of any finding of discrimination by the

processes under the Human Rights Act, the 90 day notices were valid and effective. There was no basis upon which the Tenancy Tribunal could properly refuse to make the orders. The appeal must be dismissed accordingly.

[84] In the High Court, Wild J ordered costs against the respondent on the basis that this was a test case which had significance to the respondent well beyond the appellants’ situation. We agree and will adopt the same approach. The respondent is to pay costs to the appellants for a complex appeal on a Band A basis with usual disbursements. The interveners are to bear their own costs.

Court of Appeal of New Zealand

Winther v Housing New Zealand Corporation [2010] NZCA 601; [2011] 1 NZLR 825; (2010) 12 NZCPR 293 (9 December 2010)