Today, the High Court unanimously recognised for the first time the right of tenants to compensation for disappointment and distress when a rented house does not meet legal standards. They did so on the basis that a tenancy is for ‘a home [which should offer] protection of the physical and psychological well-being of the tenant’. The decision is set to have wide-ranging ramifications across the country by giving tenants a new way to hold landlords accountable for unsafe, unhealthy or uncomfortable housing.
This is also a landmark victory for remote Indigenous communities in the NT, with the High Court ruling that the NT Government is liable for compensation to its tenants in Ltyentye Apurte (Santa Teresa) for the distress caused by years living in dilapidated and uninhabitable homes that do not meet basic legal standards.
The lead appellant’s case concerned the NT housing authority’s failure to provide a back door to her premises for over 5 years. Over 70 other households in the same community brought claims for a range of issues, including leaking sewage, unstable electricity, and no air conditioning. Following today’s ruling, all applicants from this remote desert community can hope for compensation for deplorable housing conditions that persisted for weeks, months and even years at a time.
This landmark judgment significantly increases the amount of compensation available to roughly 5,300 remote Indigenous households in the NT and over 30,000 Indigenous tenants who have been subject to the Government’s neglectful approach to housing. With over 50% of all Territorians and approximately one in three Australian households renting their homes, it provides benefit and greater protection to a significant and growing part of the Australian population.
The case is a culmination of this remote NT community’s fight for housing justice that started almost eight years ago when the NT Government was given a list of over 600 repairs requested by the tenants of about 70 homes (see case timeline below).
The residents bringing the case were represented by Australian Lawyers for Remote Aboriginal Rights (ALRAR) and barrister, Matthew Albert, at no cost to the community or the tenants. Grata Fund has provided funding and support to the community throughout the legal journey.
In closing submissions to the High Court, counsel for the tenants, Mr Albert relied directly on the case from 1604 that is the source of the celebrated line that gave the film, The Castle, its title: ‘The home to everyone is to him his castle and fortress, as well for his defence against injury and violence, as for his repose’ (Sir Edward Coke in Semayne’s Case). See ‘background’ below for an excerpt from his submission.
Dan Kelly, Solicitor at Australian Lawyers for Remote Aboriginal Rights, said:
“I congratulate the community for winning this landmark case. It’s a hard fought victory led by the people of Ltyentye Apurte (Santa Teresa), who have spent almost eight years fighting the NT Government to uphold their basic human right to live in decent housing.
“The deplorable state of housing in remote communities, its impacts on health and wellbeing, should not be tolerated in a country as wealthy as Australia. As it stands, legal action is the only way remote communities can enforce their basic rights to habitable housing.
“I am deeply saddened for the family of two tenants who led this case, Ms Young and Mr Conway, who, like Eddie Mabo, did not live to see their fight deliver better outcomes for their community and well beyond it. I honour their legacy and pay my respects to their justifiably proud children and grandchildren.
“Given the injustice recognised today by the High Court, it is regrettable that the last contact Ms Young had from the government landlord before she died was to inform her that her rent was going up.”
“The NT Government’s neglect of remote housing impacts communities across the Territory, and today’s decision sets an important precedent for all 72 other remote communities, and all tenants across the country.
“The judgment establishes an important principle that public housing tenants can be compensated for distress caused by failures to maintain a rental property, and has broader implications for all tenants across the country,” said Dan Kelly.
Isabelle Reinecke, Executive Director, Grata Fund said: “I warmly congratulate the community of the small remote town of Santa Teresa on their significant win today, for leading the way and fighting for better housing conditions for their families, and for all Australians.
“This is the first residential tenancy case heard by Australia’s highest court in a generation, and this historic win will have far-reaching consequences for renters nationwide,” said Isabelle Reinecke.
Available for interview:
- Dan Kelly, Solicitor, Australian Lawyers for Remote Aboriginal Rights
- Isabelle Reinecke, Executive Director, Grata Fund
- Ltyentye Apurte (Santa Teresa) community member interview available on request
- See Judgment Summary
Media contact: Madeleine Burkitt - [email protected]; 0435 045 516
8 YEAR CASE TIMELINE
- 2015: The residents of Santa Teresa made a list of over 600 repairs and presented them to the NT Government. When the Government ignored them, they were forced to take legal action in 2016, supported by Australian Lawyers for Remote Aboriginal Rights.
- February 2018: The Santa Teresa community won at the NT Civil and Administrative Tribunal and established the Santa Teresa community’s right to ‘habitable housing’ - defined as ‘at least safe’.
- The case went to the NT Supreme Court, which again found in favour of the community. It confirmed their right to habitable housing, but said that habitable meant not only safe, but reasonably comfortable, judged against contemporary standards. This was a much stronger definition.
- February 2022: The NT Court of Appeal confirmed that the NT Government must provide decent housing, and rejected the NT Government’s third attempt to water down its obligations.
- March 2022: Residents applied to take their fight for decent rental homes to the High Court by seeking special leave to appeal the decision of the NT Court of Appeal concerning compensation for failure to fix deficiencies, which was granted in September 2022. This was the first time in a generation that the High Court had accepted a residential tenancy case.
- March 2023: The case was heard in the High Court to ensure residents are properly compensated for the harm and distress caused by the poor condition of their homes.
October 2023: The High Court recognised for the first time the right of tenants to compensation for disappointment and distress when a rented house does not meet legal standards. They did so on the basis that a tenancy is for ‘a home [which should offer] protection of the physical and psychological well-being of the tenant’.
See Judgement Summary
- Today’s judgment is also notable for two other milestones. First, it is probably the last judgment given by the current High Court Chief Justice, who is set to retire in two days. Second, it is the first time the High Court has utilised a cultural practice of many First Nations communities, namely to not use the first name of a deceased person: the judgment only refers to the first appellant by the honorific name Kwementyaye (pronounced kwo-man-jayi) and her surname, Young.
- This decision comes after the government introduced a new rent calculation method in February 2023, that saw rent increases of up to 200% for 68% of remote Aboriginal tenants in the NT, no matter the dilapidated state or location of the house.
- Mr Albert, counsel for the tenants, relied directly on the case from 1604 that is the source of the celebrated line that gave the film, The Castle (Sir Edward Coke in Semayne’s Case). He made the following submission to the Court in closing:
"…The universal value of a home… is to be a place that gives peace of mind, personal protection, freedom from molestation, and comfort… The universal truth in Semaynes’ Case… is both revealing and correct. What is… identified in that case is what it means for a home to be, in the language of the Court, a “castle”. [Ms] Young’s home, before your Honours, is modest by any measure, but it is still her castle in the sense that Sir Edward Coke described it. It is where she goes, like the rest of us, to spend her special times with family. It is where she, like the rest of us, gathers to provide comfort to and enjoy the company of her favourite people, to seek refuge and personal protection from her least favourite people; a place for her to seek peace and privacy when she wants time alone. And that is what her contract with her landlord was for. Neither of them was agreeing to the provision of a human storage facility. A home is a place to live in, in the fullest sense – a place to enjoy being alive and a sanctuary to go to when life gets difficult…[T]hese essential truths, in our submission, ought to lead to the appeal being allowed.
[Ms] Enid Young brought a modest claim in the Northern Territory Civil and Administrative Tribunal seven years ago. Against the expectations of us all, that simple claim comes before your Honours…. [Ms] Young seeks nothing more than the benefit of the protection of the law; a benefit that she was denied for five and a half years when she was left without being provided with a door."