Can my landlord evict me in South Australia for using prescribed cannabis at home?

What the law actually says

Section 71 writes three obligations into every South Australian residential tenancy agreement as statutory terms: the tenant must not use the premises, or permit them to be used, for an illegal purpose; must not cause or permit a nuisance; and must not cause or permit an interference with the reasonable peace, comfort or privacy of another person who resides in the immediate vicinity.

The word doing the work is illegal. Possession and use of a medicine dispensed on a valid Australian prescription is lawful, so it is not use of the premises for an illegal purpose, and s 71(a) is not engaged by the medicine. What can still be engaged is s 71(b) or (c) — smoke or vapour drifting into a neighbouring flat is capable of being a nuisance or an interference regardless of what is in it.

Section 80 is the ordinary route. If a tenant breaches the agreement, the lessor may give written notice in the form required by regulation, specifying the breach and allowing at least seven days to remedy it. If it is not remedied the tenancy ends by force of the notice, and possession must be given up on a day at least seven days after the remedy period closes.

Section 90 is the other route, and it is not the lessor's alone. SACAT may terminate a tenancy on application by an interested person — which includes a person adversely affected by the tenant's conduct, so a neighbour — on the same three grounds as s 71. Two protections sit in s 90(2a): the Tribunal must not make an order unless the landlord has been given a reasonable opportunity to be heard, and if the landlord objects, the Tribunal must not make an order unless satisfied that exceptional circumstances justify it anyway.

Section 80A is South Australia's drug-contamination termination power, and it is worth reading precisely because it looks alarming and is narrower than it looks. It requires two things together: the lessor is aware the tenant engaged in, or allowed, drug related conduct — conduct of a kind prescribed by the regulations in relation to a controlled drug — and testing conducted under s 67B indicates the premises are actually contaminated as a result. Taking a dispensed medicine is neither.

What happens if it goes wrong

Under s 80: a notice specifying the breach, at least seven days to remedy it, and at least seven more days before possession must be given up. Remedying the breach within the period stops the notice.

Under s 90: if SACAT terminates, it must specify the day the order operates from, not more than 28 days after the order is made, and it may order that the tenant not be permitted to occupy the premises for a specified period or until further order — any agreement made in contravention of that order is void.

The s 67B testing route cuts both ways. If a lessor gives notice that the premises will be tested for contamination and then does not test within one month, the lessor commits an offence with a maximum penalty of $25,000 and an expiation fee of $1,200. And if testing does show contamination, remediation is the lessor's statutory obligation, not the tenant's.