Santa Teresa goes to NT Supreme Court

MEDIA RELEASE: HOUSING TEST CASE IN NT SUPREME COURT TODAY COULD SET UNPRECEDENTED LEGAL STANDARDS FOR REMOTE COMMUNITIES

11 December 2019 

Aboriginal people living in remote communities living in appalling conditions in the NT are closely observing the developments of the Santa Teresa landmark test case that will be heard in the NT Supreme Court today. The case could set higher standards of housing, with the potential to break the stalemate and force improvement for remote communities across the NT.

Two members of the Santa Teresa community, Enid Young and Robert Conway will argue 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. Previously the NTCAT ruled that the standard is only that housing be safe, establishing an important, but basic level of protection. A ruling in favour of Ms Young and Mr Conway at the Supreme Court would significantly increase the standard of housing required in remote communities . Ms. Young and Mr.  Conway will also argue that their rental agreements are ‘unconscionable’ (unfair) and invalid on that basis because no-one explained what they were signing up to. If successful, the case could open the NT Government up to further financial liability in relation to rents unfairly collected from residents in other remote communities. 

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Santa Teresa residents win!

MEDIA RELEASE: REMOTE ABORIGINAL COMMUNITY WINS SAFE HOUSING IN CLASS ACTION AGAINST NORTHERN TERRITORY GOVERNMENT

27 February 2019

Residents in the Aboriginal community of Santa Teresa will finally be compensated for the NT Government’s failure to maintain housing to a safe and healthy level after the Northern Territory Civil and Administrative Tribunal (NTCAT) found the NT Government is legally obliged to provide habitable housing in remote communities.

The class action lawsuit was brought against the NT Government by 70 households after it failed to action over 600 urgent repairs, with some families waiting over five years. Many houses posed serious health and safety risks to residents, with some building structurally unsound, without running water, sewerage and ventilation despite the desert temperatures in the area regularly hoving above 40 degrees in summer and below zero in winter.

Grata Fund, the public interest litigation fund which financially supported the class action, hails the decision as a victory for the residents of Santa Teresa and all Aboriginal communities that have been systematically ignored by a Government that continues to fail to meet its basic responsibilities as a landlord in the community.

Australian Lawyers for Remote Aboriginal Rights (“ALRAR” have acted for the Santa Teresa residents in the case for over three years free of charge). ALRAR’s lead lawyer, Dan Kelly said, “Aboriginal communities, including the people of Santa Teresa, have fought long and hard to protect their rights while the Government has continued to fail to meet its basic responsibilities as a landlord in the community.   

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Santa Teresa Appeal

MEDIA RELEASE: REMOTE HOUSING LITIGATION IN NT SUPREME COURT ADJOURNED

16 October, 2019

Residents of Santa Teresa are left to wait more months for their housing complaints to be resolved following an adjournment of the Supreme Court hearing this morning. 

Dan Kelly, Solicitor for ALRAR said, “The adjournment today means that the Santa Teresa community will now have waited at least 4 years for a resolution since lodging their complaints, for matters which, by law, are supposed to be dealt with quickly. 

“For over 800 years the law has recognised that justice delayed is justice denied. My clients have been left to learn this the hard way.

Walter Shaw, CEO of Tangentyere Council and a powerful advocate for housing in Central Australia said “Aboriginal communities living remotely have been neglected and abandoned by successive Governments for years.

“The adjournment today should not mean that urgent housing matters are not dealt with. Aboriginal organisations want the NT Government to work with them, and residents of Santa Teresa to devolve control, implement housing for health and mitigate the impacts of climate change. 

Lou Dargan, Head of Strategic Litigation at Grata Fund, the organisation that provided the financial backing for disbursements in the case, said “The adjournment today is disappointing, and practically, will mean that residents of Santa Teresa, and other remote NT communities  will have to live in uncertainty and appalling conditions for longer.” 

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Santa Teresa Appeal

MEDIA RELEASE: LANDMARK REMOTE HOUSING LITIGATION REACHES THE NT SUPREME COURT

15 October 2019

Aboriginal people living in remote communities living in appalling conditions in the NT are closely observing the developments of the Santa Teresa landmark test case that will be heard in the NT Supreme Court tomorrow. The case could set higher standards of housing, with the potential to break the stalemate and force improvement for remote communities across the NT.

Two members of the Santa Teresa community, Enid Young and Robert Conway will argue 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. Previously the NTCAT ruled that the standard is only that housing be safe, establishing an important, but basic level of protection. A ruling in favour of Ms Young and Mr Conway at the Supreme Court would significantly increase the standard of housing required in remote communities . Ms. Young and Mr.  Conway will also argue that their rental agreements are ‘unconscionable’ (unfair) and invalid on that basis because no-one explained what they were signing up to. If successful, the case could open the NT Government up to further financial liability in relation to rents unfairly collected from residents in other remote communities.

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Reworked espionage laws criminalise dissent

NEW “ESPIONAGE” LAWS COULD CAPTURE THE CRITICAL WORK NGOS AND ADVOCATES DO IN HOLDING OUT GOVERNMENT TO ACCOUNT

Click here to view the original article published by the Sydney Morning Herald, June 26, 2019

Today, for the first time ever and in a demonstration of unity, ABC, News Corp, and Nine Entertainment executives will speak at the National Press Club about freedom of the press.

This is a hot issue in the wake of the AFP raids on the ABC and the home of journalist Annika Smethurst. But the curtailing of democratic freedoms is bigger than the press. New “espionage” laws could capture the critical work NGOs and advocates do in holding our government to account.

Changes to espionage laws passed in 2018 - and backed by both major parties - criminalise dissent. These laws could be used to target think tanks and other NGOs whose advocacy is unflattering to the government of the day.

protesters at the ABC in Sydney during the AFP raid - Dominic Lorrimer

Protesters at the ABC in Sydney during the AFP raid - Dominic Lorrimer

The laws are dangerous and undemocratic. They make it a crime to publish information that could prejudice Australia’s national security if the publisher is reckless in assessing the potential national security risk. This might not sound shocking but the devil is in the detail. The definition of “national security” goes beyond the usual concepts of defence and counter-terrorism, extending to Australia’s international political or economic relations. That broad definition could capture reporting or advocacy on Australia’s export or import commodities, like iron ore, coal, gold, natural gas and even education.

Making the new laws even wider in application, information does not have to be classified, nor does it have to be leaked from a government source. That is, the laws don’t just target spies and whistleblowers, they criminalise publication of any sensitive information. The penalties are severe - some as high as 25 years or life imprisonment.

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Media release: W + J / Adani hearing today shows how big corporate money can lock out First Nations communities from accessing their rights

Today the Federal Court of Australia will hear the case from Wangan and Jagalingou Traditional Owners who oppose the Adani Carmichael mine development on their lands.

Adrian Burragubba and Wangan and Jagalingou community members represented by the W&J Council have been challenging the Adani mine for four years through the courts and were almost prevented from having their current appeal heard because of the huge financial barriers to people seeking to hold corporations accountable in Australian courts.

“The story of the Wangan and Jagalingou community and Adani is part of a broader story in Australia, where many First Nations communities are prevented from accessing their rights because of  the huge expense involved in bringing important public interest cases to court, and the massive imbalance in financial means between these communities and the corporations they are seeking to hold accountable  under the bright lights of court,” said Isabelle Reinecke, Founder and Executive Director of the Grata Fund.

Upon application for hearing the appeal in  the Full Federal Court, Justice Robertson said he believed Mr Burragubba and his co-plaintiffs do have a case to be heard. Despite this, Adani asked the court for a guillotine order forcing Adrian and his co-plaintiffs to provide $160,000 as surety before the case was heard. Justice Roberts reduced this and ordered the five appellents  pay $50,000 into court within a matter of weeks or drop the appeal. Still too much for the community to cover alone, Grata Fund was able to step in and provide the $50,000 required within hours of the deadline.

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High Court decision could spell trouble for the right to protest

THE HIGH COURT UPHELD LAWS THAT ESTABLISH 150 METRE SAFE ACCESS ZONES AROUND ABORTION PROVIDERS IN VICTORIA AND TASMANIA APRIL 11 2019

Yesterday morning, in a victory for women, the High Court upheld laws that establish 150 metre safe access zones around abortion providers in Victoria and Tasmania. Similar laws exist in NSW. The decision affirms women’s rights to access reproductive healthcare free from unwelcome interventions by anti-abortion activists. Australia’s highest court has recognised that the protection of women’s dignity in accessing health services is a legitimate purpose for the laws to address.

That is something to celebrate. But, notwithstanding the progress towards reproductive justice that the decision represents, aspects of the court’s reasoning are problematic.

In 2016, an anti-abortion activist, Ms Clubb, approached a couple attempting to access an abortion clinic in East Melbourne, spoke to them, and attempted to hand them a pamphlet discouraging abortion - in breach of the Victorian law. When she was charged she argued the law was invalid because it infringed the constitutional implied freedom of political communication. This freedom extends to communications on “governmental and political matters”. If a law restricts communications on such matters, the court will have to consider if the restriction is justified.

While the majority of the court ultimately decided that the laws in Victoria and Tasmania are justified, the court did not decide whether Ms Clubb’s communication was, in fact, political. Three of the seven judges accepted that the conduct was not political. They accepted that Ms Clubb’s conduct was directed solely at dissuading the woman from having an abortion, and was not addressed to law or policy makers, and did not seek to influence a vote. The communication was about moral and ethical choices by an individual, not political choices by the public.

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Law Society Journal Features Grata Fund Founder

Six Minutes with Isabelle Reinecke, Law Society Journal, February 2019


Media Release: W&J appeal will hold Adani accountable to Australian law, 25 Jan 2019

The UN has requested that construction of the Adani Carmichael mine be suspended until Adani obtains the consent of the Traditional Owners, the Wangan and Jagalingou (W&J) People,​ w​hich is currently the subject of an appeal in the Federal Court.

Grata Fund, the public interest litigation fund securing the costs on behalf of the​ W&J People, maintains that the appeal will resolve an important question of Australian native title law, despite Federal Resources Minister Matt Canavan’s comments that the UN should “respect the Australian legal system”.

“In a democracy, it is the job of courts to hold everyone - including governments and major corporations - accountable to the law,” says Isabelle Reinecke, founder of Grata Fund.

“No government or mining company is above the law, and we have strict laws governing corporate access to Aboriginal land. The fact is that the law requires that members of the Native Title group, the W​angan and Jagalingou people must give their free, prior and informed consent.

“Minister Canavan’s comments, far from upholding Australian law, show a lack of respect for Australia’s legal system. The UN’s request is for the Australian Government to suspend the Carmichael Coal Mine until free, prior and informed consent of the Wangan and Jagalingou people is obtained.

“Grata Fund is proud to be supporting the ​Wangan and Jagalingou people in their efforts to protect their land and culture.

“The courts should not be accessible only to the rich, Grata’s purpose is to empower this type of citizen action to hold governments and corporations accountable to the law.”

CONTACT: Hannah Craft, 0423 377 965


Traditional owners appeal Adani Mine

Adani coal mine should be suspended, UN says, until all traditional owners support the project

 

The United Nations has asked the Australian Government to consider suspending the Adani project in central Queensland until it gains the support of a group of traditional owners who are fighting the miner in court.

A UN committee raised concerns that the Queensland coal project may violate Indigenous rights under an international convention against racial discrimination if it goes ahead, giving Australia until April to formally respond.

Meanwhile, a public interest legal fund backed by former corruption fighter Tony Fitzgerald has stepped in with financial backing for a federal court challenge to Adani by its opponents within the Wangan and Jagalingou (W&J) people.

The Grata Fund, which boasts the former federal court judge as a patron, agreed to pay a court-ordered $50,000 bond so W&J representatives can appeal a court ruling upholding a contentious land access deal secured by the miner.

The UN Committee on the Elimination of Racial Discrimination last month wrote to Australia's UN ambassador to raise concerns that consultation on Adani's Indigenous Land Use Agreement (ILUA) "might not have been conducted in good faith".

These allegations "notably" included that members of the W&J native title claim group were excluded, and the committee was concerned the project "does not enjoy free, prior and informed consent of all (W&J) representatives".

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Santa Teresa residents sue the NT Government

Santa Teresa residents are suing the NT Government over 'decrepit' housing, but it's countersuing, ABC 7.30, Nov 2018

Jasmine Cavanagh has lived in one house for most of her life — a two-bedroom concrete bunker in Santa Teresa, a remote community in the heart of Australia.

At times, it has been a struggle to raise her children in this home. Electrical points were faulty, the roof leaked, and there were major plumbing problems.

During bitterly cold desert winters, she and her partner could not sleep through the night. They were forced to wake up every few hours to clean the sewage and water leaking through their home.

The pair would take turns mopping to stop sewage reaching their bedrooms.

Ms Cavanagh's frustration led her to take an extraordinary step. She is suing the Northern Territory Government over a series of repairs she alleges went ignored for too long.

And she is not alone. Dozens of households in Santa Teresa, 80 kilometres south-east of Alice Springs, have joined this class action against the NT Government and the case is set to go before a tribunal next week.

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Commonwealth Bank settles discrimination claim

Commonwealth Bank settles discrimination claim by blind Australians over touchpad devices, ABC 7.30, Jan 2019

Commonwealth Bank has settled a discrimination case in the Federal Court launched by two blind Australians over the bank's customer touchpad terminals.

Nadia Mattiazzo and former disability discrimination commissioner Graeme Innes began the landmark discrimination case against the bank in 2018 over the devices, which are found in thousands of Australian businesses.

Ms Mattiazzo said "there's a community expectation that things should be accessible, and it's a bit of a shock when community comes across something that isn't".

Mr Innes and Ms Mattiazo's case was financially supported by the Grata Fund, a new public interest litigation body set up in Australia.

"People really need to be able to hold corporations accountable to the law in courts, but the financial barriers in Australia are just too high," the fund's executive director Isabelle Reinecke told 7.30.

"It's a massive hurdle for people to bring public interest litigation. If you're facing having to pay a corporation or the government's legal bills if you lose, you're just not going to be able to take that risk on."

 

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Your fetus is precious but not a person, no matter what Fred Nile says

CURRENTLY, NSW LAW ALLOWS FOR A PERSON TO BE CHARGED WITH CAUSING GRIEVOUS BODILY HARM TO A PREGNANT WOMAN - AND THAT INCLUDES HARM TO HER FETUS. BUT THERE IS NO SEPARATE CRIME REGARDING THE FETUS, BECAUSE THE LAW DOES NOT RECOGNISE A FETUS AS A LEGAL PERSON, NOVEMBER 16 2018

Living in the United States, I witnessed first-hand the ways that “fetal personhood” laws are used to punish women and police their pregnancies. Although touted as laws to protect women, fetal personhood laws dilute reproductive rights. The impact on women can be severe. So, when I returned to Australia this year, I was disappointed that Zoe’s Law, Fred Nile’s fetal personhood bill, was back on NSW’s agenda.

But I was alarmed when Premier Gladys Berejiklian yesterday announced her government’s support for a law of this kind.

Currently, NSW law allows for a person to be charged with causing grievous bodily harm to a pregnant woman - and that includes harm to her fetus. But there is no separate crime regarding the fetus, because the law does not recognise a fetus as a legal person. “Zoe’s Law” is Fred Nile’s bill to introduce this specific crime. It follows several tragic road deaths, in which heavily pregnant women were killed and/or their fetuses destroyed. If Nile’s bill becomes law, a person who seriously injures a pregnant woman could be charged with harming both the woman and her fetus.

Nile has tried and failed to get this bill up before. He’s faced strong criticism from women’s advocates. Concerns include the law being used to prosecute women or doctors for ending pregnancies (because abortions necessarily involve the destruction of a fetus). The Nationals have proposed amendments to Nile’s bill to exclude abortions from it. Premier Gladys Berejiklian says her government would propose its own version, also excluding abortion, if re-elected.

But, even if abortion is excluded, recognising a fetus as having legal rights that otherwise only apply after birth remains problematic. We only need to look at the recent experiences of women in the US to understand why.

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ALRC Litigation Funding Inquiry

Grata Fund calls for adverse cost reform in submission to Australian Law Reform Commission inquiry, July 2018

The Australian Law Reform Commission's current Inquiry into Class Action Proceedings and Third Party Litigation Funding raises important questions about the role of funders in enabling access to justice in Australia.

Grata Fund's submission to the inquiry makes the case for reform to remove the significant financial barriers that block ordinary Australians from holding corporations and governments accountable in court.

"Until serious reform of our adverse cost system takes place, funders will only be able to scratch the surface of unmet need in our community for litigation funding in cases that protect our human, environmental and democratic rights", says Grata's Executive Director Isabelle Reinecke.

To read more, see Grata Fund's submission here.


People Powered Justice: Grata Fund

"Stories in Philanthropy", Nicole Richards, Philanthropy Australia, June 2018

Isabelle Reinecke was a ponytailed primary schooler when she began standing up for the rights of others.

Protesting federal funding cuts to the ABC which threatened kids’ programming, Reinecke wrote her first letter to the editor at the tender age of 10. Even then, years before any thought of a legal career took root, she intuited the value of evidence and promptly set about polling her classmates to document their viewing habits and their responses to the potential loss of their favourite tv shows to strengthen the case.

Twenty-odd years later, as founder and executive director of the Grata Fund, Reinecke is still fighting for others, albeit with a few more tools and a lot more experience (including time spent as Director of Legal and Governance at GetUp) at her disposal.

Named in honour of the first woman to practice law in Australia, Grata Flos Matilda Greig, the Grata Fund is a public benevolent institution that uses litigation to protect the rights of ordinary Australians. The Fund has already mounted and secured wins in several cases, including helping Doctors 4 Refugees successfully fight government gag laws.

“Public interest litigation is prohibitively expensive in Australia,” Reinecke explains.

“The cost risk of taking a case to the High Court can be as much as $200,000 which is obviously beyond the means of most Australians. The Grata Fund helps create systemic change on the issues of human rights, democracy and climate change by removing those financial barriers.”

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We need to trust women in NSW to make reproductive decisions, not judge them

FOR AN ABORTION TO BE LEGAL IN NSW, A DOCTOR MUST BELIEVE THAT CONTINUING THE PREGNANCY OR RAISING THE CHILD WOULD POSE A SERIOUS DANGER TO THE WOMAN'S LIFE OR PHYSICAL OR MENTAL HEALTH, DECEMBER 29 2017

When I was 25, I had an abortion.

After I found out I was pregnant, we talked about the options. I decided to end the pregnancy. He took me to a private clinic in Sydney. I spoke to a doctor whom I'd never met before. A woman performed an ultrasound and told me I was "seven weeks along". She showed me a picture of a bean-shaped thing not yet human in form, but recognisable nonetheless. The doctor asked me about my circumstances, asked whether I had considered the options. I had. She wrote a little blurb on my file.

Suddenly, the artificiality of this exchange struck me. There I was, justifying an incredibly profound and personal decision to a complete stranger. Reduced to a file note. A note that did not, and could not, come close to capturing why I was there.

The conversation felt like what it was: a box-ticking exercise. The law required this stranger to probe the reasons for my decision. Because, in NSW, women and doctors can be criminally prosecuted for seeking or performing abortions.

That's right, abortion is a crime.

For an abortion to be legal in NSW, a doctor must believe that continuing the pregnancy or raising the child would pose a serious danger to the woman's life or physical or mental health. That assessment takes into account the woman's socioeconomic circumstances, making it a fairly broad inquiry. As a consequence, most women can lawfully seek an abortion early in a pregnancy.

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Cameron v The Commonwealth

"Schoolboy, 17, lodges discrimination complaint over same-sex marriage survey", Paul Karp, The Guardian

Cameron Warasta argues that decision to exclude 16- and 17-year-olds from postal plebiscite breaches Age Discrimination Act

A Victorian schoolboy has lodged a discrimination complaint against the federal government’s exclusion of 16- and 17-year-olds from voting in the same-sex marriage postal survey.

Cameron Warasta, 17, lodged a complaint with the Australian Human Rights Commission on Wednesday which could escalate to a federal court case to overturn the government direction excluding Australians under 18.

If successful, the challenge could give a vote on marriage equality to about 50,000 Australians aged 16 and 17 on the electoral roll.

Warasta, the son of two Afghan parents and a youth ambassador for Save the Children, lives in South Yarra and will turn 18 in November – after the survey results are announced.

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Australia's Shame

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"Australia's shame on stage for the world to witness", Jennifer Robinson, The Sydney Morning Hearld

It's not every day you get invited to speak on the stage of New York's Lincoln Centre between the First Minister of Scotland, Nicola Sturgeon, and the woman who very nearly became the first female President of the US, Hillary Clinton – and just after Canadian Prime Minister Justin Trudeau.

But such is the growing international concern about Australia's treatment of refugees in our offshore detention centres: I was invited to speak alongside whistleblowers Alanna Maycock and Viktoria Vibhakar at the Women in the World Summit about what they described as "Australia's Shame". President Trump's infamous first phone call with Prime Minister Turnbull calling the Australia-US refugee deal "dumb" brought global attention to Australia's offshore prisons – and gave us a global platform alongside world leaders.

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Opening the doors to public interest litigation

"Opening the doors to public interest litigation", Eliza Ginnivan, Australian Lawyers Alliance

Sometimes when it rains, it really buckets down. In just one week in June 2015, courts in two continents delivered landmark public interest victories on two of the defining issues of our time.

In the Netherlands on 24 June, 900 co-plaintiffs successfully obtained a court order forcing the Dutch government to adopt more stringent policies against climate change.  This historic verdict was the first time a judge had required a State to take action against climate change, and has inspired climate change litigation around the globe.

Two days later, the US Supreme Court overturned a patchwork of discriminatory state laws and decades of political equivocation to rule that marrying the person you love, regardless of their gender, was a fundamental Constitutional right.

These cases demonstrate public interest litigation at its finest. Supported by groundswells of community support, these cases broke entrenched political impasses and overturned laws that lagged behind community values.

But in Australia public impact litigation wins like these are harder to achieve, in large part due to burdensome costs rules. Neither the Dutch nor American applicants were hampered by the risk of a significant adverse costs order being made, which would require the losing party to pay the other side’s legal costs.

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Grata Fund Backing Public Interest Litigants

"Backing public interest litigants to bring game-changing cases", Australian Pro Bono Centre News

The biggest hurdle for public interest litigants is often the ‘usual order as to costs’ where the losing party foots the other side’s legal bill. The threat of an adverse costs order can stop meritorious public interest matters in their tracks, with many complaints not progressing past the initial client appointment or stalling on the courtroom steps. Legislative measures to encourage public interest litigation such as protective costs orders and broad standing provisions are inadequate, sporadic, limited by jurisdiction and occasionally under threat of being repealed.

This leaves only impecunious or deep-pocketed plaintiffs, who either have little to lose, or can afford to lose a lot, able to take on litigation to effect systemic structural change. In aggregate, the result is that access to justice is restricted for ordinary people, which puts government and corporate actions beyond review of the courts.

The Grata Fund is an innovative response to these issues. 

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