The High Court will decide whether compensation is available for distress or disappointment suffered by First Nations people living in remote dilapidated housing, in a case that could have ramifications for all Australian renters.
The High Court’s decision this afternoon to grant special leave is one of the last steps in a journey for justice started in 2016 for Enid Young, an elderly Eastern Arrernte woman from Ltyentye Apurte (Santa Teresa) in the remote NT. Now her case has made it to the High Court, Ms Young’s fight will be one that could provide greater legal protection for renters across the country when landlords break their obligations, especially when calculating compensation caused by that breach.
Badly maintained houses have left many people in the remote NT community without electricity, hot water, cooking facilities or functioning toilets for weeks, months and even years at a time. The lead tenant in this case, Ms Young, endured more than five years with an empty external doorframe to her property. Another tenant, young mother Jasmine Cavanagh, would have to wake up multiple times a night to mop up leaking sewage to protect her young children’s health.
The case brought by Ms Young and other residents of Ltyentye Apurte requesting urgent repairs was first heard at the NT Civil and Administrative Tribunal in 2018. In response to the community’s case, the NT Government counterclaimed for unpaid debts, which documents revealed would have totalled $2 million, or roughly $20,000 per household. The Tribunal threw out their counterclaim when the Government could provide no credible evidence that the debts existed. Recently the Government wiped all such rental debts to the tune of $70 million dollars. Whether or not the Government would be able to provide evidence for these alleged debts has been questioned by housing advocates.
Since the matter was heard at the NTCAT it went up to the NT Supreme Court and the NT Court of Appeal where the NT Government argued against the standard of ‘humane’ housing set by a NT Supreme Court Justice.
“The Court of Appeal found the NT Government has a legal duty to provide people with a standard of housing that is not only safe, but reasonably comfortable, judged against contemporary standards,” said Dan Kelly, Solicitor at Australian Lawyers for Remote Aboriginal Rights (ALRAR).
The failure of NT Housing to meet this standard will be examined by the High Court in this case, where it will be asked to decide whether residents are entitled to compensation for the distress and disappointment suffered by living in poorly maintained homes.
The NT Court of Appeal found that existing case law entitling holidaymakers to compensation for distress caused by bad holidays could not be extended to tenants for compensation for bad homes.
Communities across the NT are watching the development of this case keenly, with residents of Laramba working to apply the standards won so far in their community.
Residents of Santa Teresa have been waiting more than 6 years for these matters to be resolved and one of the lead plaintiffs Mr Conway passed away while the litigation was afoot.
“We want to pay our respects to Mr Conway and his family. Mr Conway is a big part of why we made it to the High Court today, and his decision to take up this fight will improve the lives of First Nations people living in remote NT communities,” said Mr Kelly.
Remote Rent Framework
“This case will be heard on the backdrop of community distress in the face of a new remote rent framework that will see increases for 68% of renters, no matter the dilapidated state of the house, pushing many deeper into poverty,” said Ms Maria Nawaz, Acting Executive Director of Grata Fund.
Earlier this year the NT Government introduced a Remote Rent Framework which has caused distress amongst Aboriginal community-controlled organisations and people living remotely and in town camps. This Framework is subject to another legal challenge supported by ALRAR and Grata Fund in the NT Supreme Court. Critics have said there is a high likelihood the Remote Rent Framework in its current form will see vulnerable families at greater risk of experiencing homelessness and family violence, which will drive upward pressure on an already strained service sector.
“It’s extraordinary that the NT Government has introduced this new framework that covers only remote communities and town camps. One has to ask why these new rent hikes will not affect all Territorians equally and will disproportionately impact First Nations Peoples?” said Ms Nawaz.
“The fact the Santa Teresa case has ended up in the High Court is another example of how failure to meaningfully engage First Nations Peoples and their organisations leads to abject policy failure. We call on the NT Government to return to the table and meaningfully consult with the Aboriginal community-controlled organisations on a rental framework that is fair,” said Ms Nawaz.
Available for interview
Dan Kelly, Solicitor for Australian Lawyers for Remote Aboriginal Rights
Maria Nawaz, Acting Executive Director, Grata Fund
Media contact: Belinda Lowe 0428 805 696