MEDIA RELEASE: Historic Supreme Court victory establishes right to humane housing for Santa Teresa, and sets scene for new challenges
8 September 2020
The NT Supreme Court today released its decision in the landmark Santa Teresa test case. This precedent established for the first time that remote community tenants must be provided with housing that meets contemporary standards of ‘humaneness, suitability and reasonable comfort’.
The historic win has implications for the renters in up to 70 other remote communities across the Territory who are entitled to the same legal protection and could be the circuit breaker needed for housing policy which has been intractable for years.
Among the issues at one of the two rental homes was a failure by NT Housing, as landlord to provide a back door for 68 months. The Northern Territory Civil and Administrative Tribunal (NTCAT) decision had found this did not make the house insecure, as the CEO of Housing had urged. Today however, Justice Blokland disagreed, and increased the compensation owed to Ms Enid Young for this issue by 102 times the amount originally awarded by NTCAT.
Justice Blokland also found that NTCAT 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 the two lead plaintiffs Ms Young and Mr Conway. The court remitted this aspect of the case to NTCAT for consideration and if successful, this could bring the legitimacy of other rental agreements, found to be entered into unfairly, into question.
The ruling in favour of Ms Young and the late Mr Conway at the Supreme Court significantly increases the standard of housing required in remote communities, previously set at a more narrow standard of ‘safe’.
“One of the homes in this matter was occupied by a couple, Mr Conway who was a lead plaintiff in this case and his wife. Sadly during the 4.5 year legal battle, both Mr Conway and his wife passed away. They bravely took on the powerful NT Government, and leave an enormously significant legacy of advocating for housing rights that could improve the lives of remote communities across the Territory,” said Dan Kelly, lawyer at Australian Lawyers for Remote Aboriginal Rights.
“We expect that NTCAT will award renters in Santa Teresa compensation for the period of time where their rental properties didn’t meet the standard of ‘humaneness, suitability and reasonable comfort’ set by the Supreme Court today” said Dan Kelly.
This decision comes the day after the newly elected Chief Minister Gunner announced his new ministry and statement that remote housing is “one of the Government’s most important commitments”.
“This decision is a real test of Chief Minister Gunner’s assertion yesterday that remote housing is “one of the Government’s most important commitments”,’ said Isabelle Reinecke, Executive Director and Founder of Grata Fund.
“Chief Minister Gunner has already served one full term in Government and remote communities are still desperately calling for action after decades of neglect. What’s clear is that the success of this commitment will ultimately be up to him as Chief Minister and the Treasurer. It’s a challenge I hope he meets,” she said.
“Other First Nations communities with almost carbon copies of the same housing issues, have been monitoring this case very closely. We’re acting for Laramba, another remote community and expect that others will now look at how the standards established by the Supreme Court could be transferred to their communities” said Dan Kelly
“After years of inaction, families living in Santa Teresa were left with no other option but to fight for their right to dignified homes through the courts. This win has shown other remote communities what is possible and put the NT Government on notice to take urgent and meaningful steps on remote housing as it has promised,” said Isabelle Reinecke.
“Government must work with Aboriginal peaks to ensure all housing is climate change resilient, meets housing for health principles, is culturally appropriate in design and control is developed to communities,” said Dan Kelly.
Closing the gap
The Closing the Gap report revealed this year that closing the life expectancy gap by 2031 is not on track.
“The report acknowledges that life expectancy is reliant on health housing and other factors, and yet, we have a situation here where we know how dangerous the housing is to the health of remote First Nations communities, and still, we see no meaningful action” said Dan Kelly.
In 2015-17 life expectancy for First Nations people was lowest in the Northern Territory, sitting at 66.6 for men and 69.9 for women, with the gap worse in remote areas. Staggeringly the Northern Territory showed little or no improvement since the 2006 baseline was set.
The 2020 Closing the Gap report is available for download here.
Available for interview
Dan Kelly, Lawyer at Australian Lawyers for Remote Aboriginal Rights (ALRAR)
Isabelle Reinecke, Executive Director and Founder, Grata Fund
Media contact, Belinda Lowe, 0428 805 696
Josie Douglas, Manager Policy, Central Land Council
Media contact: Elke Wiesmann, 0417 877 579
Supreme Court Appeal
Two members of the Santa Teresa community, Enid Young and 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.
In excellent news, 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.
NT Supreme Court decision is available to download here.
The 70 Santa Teresa residents bringing the case are being represented by Australian Lawyers for Remote Aboriginal Rights at no cost to them and the litigation disbursements are financed by Grata Fund. The NT Department of Housing initially counter-claimed against the plaintiffs for approximately $2million in alleged unpaid rental debts but was forced to withdraw this claim during hearings at NTCAT when it could not produce any evidence of these debts.
In February 2019 NTCAT decided that the Residential Tenancies Act applied to the residents of Santa Teresa, a point which the NT Government had disputed, and that residents are entitled to housing that is at least safe. It ordered the NT Government to provide compensation to families for periods where the housing did not meet that standard.
NTCAT also found that the new tenancy agreements introduced in Santa Teresa by the NT Department of Housing from about 2017 were invalid because they contained terms that were inconsistent with provisions of the Residential Tenancies Act. This meant that the rent increases introduced under the new agreements were invalid.
These findings are significant because it is likely that the same or similar processes were followed by the Department in executing rental agreements in other remote communities. This would entitle people in other communities to the protections provided by the Residential Tenancies Act, including the ability to claim for compensation. Similarly, where tenants in other communities have been signed up to new rental agreements with rent increases, those increases may also be invalid. This has implications for the potential financial liability of the NT Government for any overpaid amounts.
It is possible that every rent increase claimed by the NT Department of Housing for remote tenants is unlawful. The NT should immediately cease collection of these amounts, and conduct an audit to ensure it is not collecting monies it is not entitled to.