This is what happened. A couple moved into a Caravan Park with their dog. They had obtained permission to keep Jacko. The dog passed away and the couple replaced him with Ruffy but did not request permission before doing so. The Caravan Park denied later applications for approval. The tribunal decided in favour of the Caravan Park. The couple was ordered to remove Ruffy from the premises.
The tribunal decided that the resident’s medical need for a companion dog was not relevant. It said, "...the fitness or otherwise of the respondent as a pet owner or her medical need for a companion dog are not sufficient reasons for an order in her favour". This seems like a pretty big call to me. I think it would have been entirely appropriate to explain this aspect of the decision. In a more general sense, is it acceptable to deny tenants with disabilities the opportunity to keep pets?
Let’s contrast such superficial treatment with that of guide dogs relied upon by individuals with impaired vision. In New South Wales, people with visual disabilities have access to significant legal protection when accessing public places and modes of transportation. In Australia, it is generally accepted that blind people need to rely on guide dogs and it is not appropriate to discriminate against them on this basis.
So let’s look at housing law. I don’t know what happened in this case, but say we have a tenant who suffers from depression and anxiety. As part of his or her treatment, the tenant decides to adopt a pet. In recent years, we have become more aware of the needs of people living with mental illness. I don’t think we should treat physical disabilities any different to psychiatric ones. Such differential treatment should not happen. I would argue that the effective denial of pets further marginalises people with mental disabilities. Here is picture I snapped of a special-needs man with his beloved pet, Dolly.
Turning to the decision of the NSW Supreme Court. NSW Legal Aid Commission argued that the pet rules were inconsistent with the tenant’s right to quiet enjoyment under section 20 of the Residential Parks Act 1998 (NSW). The Caravan Park argued it could make pet rules under section 62 under which residents had to seek permission prior to pets entering the park.
Justice Malpass said, "It was first said that the rules were inconsistent to the right to quiet enjoyment provided by s 20 of the Act. The argument put in support of this proposition was done so briefly in the broadest of terms. This was a characteristic of the submissions made concerning validity. I am not satisfied that the rules concerning pets are inconsistent with the provisions of s 20 of the Act (in particular I am not satisfied that they interfere, or cause or commit any interference, with the reasonable peace, comfort or privacy of the resident in using the site)".
NSW Legal Aid Commission argued that the caravan park should exercise the power to make pet rules in a reasonable way, and that the caravan park’s policy of phasing out pets was unreasonable. Justice Malpass stated, "Secondly, it is said that a duty should be implied, from both the objects of the Act and the general law, to exercise the power to make rules only in a reasonable manner. There was issue between the parties as to whether or not such a duty should be implied. In the present case, it is unnecessary to address that question. I am not satisfied that the exercise of the power was unreasonable". His Honour decided he did not have to establish whether a duty of reasonableness existed, but then concluded it was exercised in a reasonable way. This is odd. Where’s the reasoning?
Additional considerations not clearly enumerated are at play here. Perhaps the courts are reluctant to expand the rights of tenants over owners of property. I guess then we have to start looking at the value placed by western culture on property. In my view, the system is set up by owners of property to protect rights attached to property. But is this the only thing the law should protect? What about notions relating to self, family and culture? Classical liberal theory focusing on a person's right to life, liberty and property should be understood in light of the human rights age. These rights should be re-interpreted in light of the value placed on all human aspirations, and not just those of the moneyed and propertied class.
I don't think Justice Malpass interpreted section 20 according to its ordinary meaning. Nor do I think His Honour gave sufficient weight to the stated objective of providing protection for residents. To my mind, the concept of quiet enjoyment quite clearly encompasses the right of a tenant to keep pets. Section 20 is expressed in the broadest of terms. His Honour addressed the issue in the most cursory of ways. The opportunity to expound on the meaning of quiet enjoyment was missed. Tenancy laws impact on the lives of ordinary people. What is the point of quiet enjoyment in residential tenancy law if its clear meaning is not given effect?
NSW Legal Aid Commission argued that the caravan park should exercise the power to make pet rules in a reasonable way, and that the caravan park’s policy of phasing out pets was unreasonable. Justice Malpass stated, "Secondly, it is said that a duty should be implied, from both the objects of the Act and the general law, to exercise the power to make rules only in a reasonable manner. There was issue between the parties as to whether or not such a duty should be implied. In the present case, it is unnecessary to address that question. I am not satisfied that the exercise of the power was unreasonable". His Honour decided he did not have to establish whether a duty of reasonableness existed, but then concluded it was exercised in a reasonable way. This is odd. Where’s the reasoning?
Additional considerations not clearly enumerated are at play here. Perhaps the courts are reluctant to expand the rights of tenants over owners of property. I guess then we have to start looking at the value placed by western culture on property. In my view, the system is set up by owners of property to protect rights attached to property. But is this the only thing the law should protect? What about notions relating to self, family and culture? Classical liberal theory focusing on a person's right to life, liberty and property should be understood in light of the human rights age. These rights should be re-interpreted in light of the value placed on all human aspirations, and not just those of the moneyed and propertied class.
One of the first things I learned about the law, was that it was a reflection of culture and society. Is our lacklustre legal treatment of pets linked to some kind of nonchalant indifference? I don’t think so. You just have to look at all the amusing pet-related memes on Facebook! So if our legal disregard of pets is not a reflection of our culture, then the link has probably been interrupted by the considerable power exercised by owners of property. And if the law isn't a reflection of culture, then I think it loses its legitimacy in the eyes of the people.
Should we continually expand the rights of property owners to the detriment of tenants who have provided valuable consideration for quiet enjoyment of property? In my view, the concept of quiet enjoyment should be given meaning because western notions of pet ownership are indelibly linked to property ownership. This is something a judge could take judicial notice of. Think about it. The Aussie conception is that of a home, backyard, and a dog tied up in the back. But in other parts of the world, this is not so. I am a strong independent lady. I have backpacked around India and parts of Asia by myself. I realised that in other cultures, pets are everyone’s responsibility. You have street dogs that everyone looks after. Pets are not linked to a person’s relation to property. They are companions and should be treated accordingly.
