Today the full bench of the NT Supreme Court sitting as the Court of Appeal will hear the NT Government’s arguments against its responsibility to provide ‘humane’ rental homes to its remote First Nations tenants in Ltyentye Apurte (Santa Teresa).
The case is of such importance that it has drawn the attention of the Australian Human Rights Commission who has intervened in the case as amicus curiae and will present on the obligation to provide housing in line with international human rights standards.
“Reaching appeal at the Court of Appeal is a huge step for the community in Santa Teresa who have been advocating for 5 years for humane rental homes and justice,“ said Dan Kelly, Solicitor for at Australian Lawyers for Remote Aboriginal Rights.
“It’s staggering that the NT Government has the gall to stand up in court and argue against the rights of their very own constituents to humane rental homes,” said Isabelle Reinecke, Founder and Executive Director at Grata Fund.
“There is much at stake for remote housing in the Territory and we know that remote communities from the Top End and Centre are watching the developments of this case very keenly,” said Dan Kelly.
“Housing has been in a state of crisis across successive governments and with Premier Gunner and his Government for the past 5 years. Premier Gunner has another term ahead of him and he must work with community-controlled organisations to improve the rental homes of his remote constituents and show that health, climate preparedness, community control and cultural appropriateness matter to his Government,” said Isabelle Reineceke.
“Last year after the election Premier Gunner said remote housing is “one of the Government’s most important commitments”, it’s time for all remote communities to see that commitment,” she said.
This is the latest step in a 5-year saga that has seen renters in Santa Teresa tirelessly advocate for their right to safe and humane rental homes through the legal system.
The case will be heard by the full bench of the Supreme Court sitting as the court of appeal at the NT Supreme Court in Darwin on 23 February 2021 in Court 1 at 10am. Listings available here.
Available for interview
Dan Kelly, Solicitor for Australian Lawyers for Remote Aboriginal Rights
Isabelle Reinecke, Found and executive Director, Grata Fund
Media contact: Belinda Lowe 0428 805 696
Appeal to Supreme Court
Two members of the Santa Teresa community, Enid Young and the late Mr Conway appealed their win at NTCAT arguing that the legal requirement to provide housing that is habitable extends to a requirement that housing is good enough to live in, reasonably comfortable and humane, not just ‘safe and habitable’ as stated by NTCAT. Ms. Young and Mr. Conway also argued that their rental agreements are ‘unconscionable’ (unfair) and invalid on that basis because no-one explained what they were signing up to.
Justice Blokland upheld three grounds of appeal in Young & Conway v Chief Executive Officer, Housing  NTSC 59, two of which will be remitted (sent back) to the Tribunal for decision.
In particular, Justice Blokland found that:
- The Tribunal had failed to engage with the Santa Teresa community’s arguments that NT Housing had engaged in unconscionable conduct when entering into tenancy agreements with Ms Young and Mr Conway, residents of Santa Teresa. The Supreme Court found that NTCAT had failed to determine this significant issue, and that it is in the interests of justice that this issue be tried.
- The Tribunal’s definition of ‘habitable’ housing, which was confined to ‘safety’ should be set aside as it was too narrow. ‘Habitable’ housing under the Residential Tenancies Act should cover not only the health and safety of tenants, but requires an overall assessment of the humaneness, suitability and reasonable comfort of the premises, even if only basic amenities are provided, judged against contemporary standards. The assessment of whether premises were habitable should take into account any proven inadequacies cumulatively.
- The fact that Ms Young was given a house with no back door meant it was not secure for the following 68 months that no door was provided. The Tribunal had dismissed this claim, at the urging of the CEO of Housing. Justice Blokland found that a door is central to making a house secure and increased the compensation owed by the landlord to Ms Young for this by 102 times the amount awarded by the Tribunal.
The full decision can be viewed here.
Appeal to Court of Appeal
On 6 October 2020, both Ms Young and the CEO, Housing lodged notices of appeal. The matter will be heard at the Court of Appeal.
Ms Young will argue grounds of appeal going towards the principles for calculation of compensation for breaching the Residential Tenancies Act, and that the compensation ordered for failure to provide reasonably secure premises was inadequate.
The NT Government will argue grounds of appeal, including that the Supreme Court judge erred in holding that the obligation to provide ‘habitable’ housing under the Residential Tenancies Act requires an overall assessment of humaneness, suitability and reasonable comfort of the premises judged against contemporary standards.