O, it
is excellent
To have a giant's strength;
but it is tyrannous
To use it like a giant
Measure for Measure, Act two,
Scene two.
A decision by the High Court yesterday (link
here) overturned a series of ministerial determinations by the Former ALP Government
in 2021, 2022 and 2023 which purported to introduce a new rent system for the
5000 plus remote social housing units across the NT. An associated decision dealt
with an associated matter that had been incorrectly dealt with by the NT Court of
Appeal (link
here).
The ABC news article published yesterday (High Court
strikes down remote NT public housing rent rises: link
here) and a previous article published in 2022 (Rent hike looms for many
Northern Territory residents under new remote rent system: link
here) provide good and accessible summaries of the issues involved.
The High Court summary released yesterday is included below
as an addendum.
The Decision itself is legally complicated and largely deals
with the circumstances in which ministers and agencies are required to provide
procedural fairness to individuals affected by government decisions. I wont
attempt to summarise the decisions here and would merely note that the decision
(which was unanimous) is reasonably easy to read and follow.
The following comments are observations on some of the
policy issues that fed into and are likely to flow from the Court’s decision.
The former NT Housing Minister made an initial
determination to change rental arrangements and a number of subsequent determinations
which were required to either address errors in the original determination, and/or
to make adjustments to the reach of the determination. There is a strong sense of
administrative hyper-complexity exacerbated by a degree of administrative incompetence
in the management of the rental system applying to remote social housing. The
remote housing stock (which was the subject of this Court decision) is almost
universally made available to Indigenous community tenants.
It is unclear how the current NT Government will respond to
the Court’s decision. There are two obvious elements requiring attention:
First, how to retrospectively
correct and make amends to tenants who have been charged rents collected on the
basis of the determinations which have now been quashed (and presumably must be
held to have been of no effect from the start).
Second, how to proceed going
forward.
There are clearly a number of options available to the NT Government
in relation to both these issues, include (a) retrospective legislation validating
the determinations (although this would inevitably attract further litigation);
(b) seeking to remake the determinations in some form following a process of procedural
fairness though the fact that the Court identified that the circumstances of
individual tenants were important factors would make such a process extremely time
consuming, complex and expensive; and (c) deciding to adopt an identical tenancy
and rental framework as applies in urban areas of the NT (though this too may
need to involve the provision of procedural fairness to existing remote tenants
(unless it was grandfathered); and (d) reverting to the status quo ante.
There are arguments for and against each of these options,
and they all involve complex administrative and political factors. There may be
elements of each that could be adopted.
The bottom line is that the NT Government cannot do nothing,
it must act. The question for Indigenous interests is obvious: can they trust
the NT Government to treat them fairly going forward in a context where both
parties have demonstrated in recent years the capacity to ignore the interests
of remote communities, and to pander to powerful interest groups such as mining
and petroleum interests, gambling interests, the alcohol industry and the urban
majority in Darwin, Katherine and Alice Springs in ways which systemically disadvantage
Aboriginal Territorians.
The Commonwealth too has a stake here given that it has
provided over $4 billion for remote housing and associated infrastructure
funding over the past 15 years, and of course is the source of the bulk of the
NT’s general-purpose funding via the GST and various special purpose funding arrangements.
My strong suggestion is that to protect its ongoing
investments, the Commonwealth should get on the front foot here. In conjunction
with the NT Government, the Commonwealth should convene a process that involves
key Aboriginal interests linked to remote community housing (APONT and the four
NT land councils and perhaps local governments spring to mind) to develop a way
forward that both simplifies and strengthens the current policy arrangements governing
remote housing provision and administration and importantly that treats all
tenants respectfully and with fairness.
While the issues discussed in this post are an NT issue, the
overcrowding crisis in remote Australia is not limited to the NT, and there is
a case for the Commonwealth to step back into this policy space in a much more proactive
way. There are no guarantees that the administrative and policy failures that
have emerged in the NT and led to this litigation are not being replicated in
one form or another in other jurisdictions.
One of the realities of remote service provision for Indigenous
communities is that the risk that their real and substantive needs become
invisible is ever-present. It is past time in my view that the Prime Minister
and his Minister for Indigenous Australians asked themselves: what was the
point of the 1967 referendum amending the Australian Constitution to grant the Commonwealth
a head of power in relation to First Nations people?
Addendum (link
here)
High Court of Australia
3 December 2025
Summary Note: BADARI
& ORS v MINISTER FOR TERRITORY FAMILIES AND URBAN HOUSING & ANOR [2025]
HCA 47
Today, the High Court of
Australia allowed an appeal (in proceeding D7/2025) from a judgment of the
Court of Appeal and the Full Court of the Supreme Court of the Northern
Territory (the "Court of Appeal"). The appeal was heard on 3
September 2025, together with a related application (in proceeding D1/2025) for
special leave to appeal, in which the High Court delivered judgment separately.
The appeal concerned three
determinations made variously by the Minister for Territory Families and Urban
Housing and the Minister for Housing and Homelands – on 23 December 2021, 27
April 2022 and 2 September 2022 respectively – pursuant to s 23 of the Housing
Act 1982 (NT). The determinations prescribed the rent payable for over 5,000
dwellings in various remote communities, and took effect despite anything to
the contrary contained in existing tenancy agreements entered into in respect
of those dwellings. The Ministers made the determinations without giving notice
to any tenant or inviting any tenant to make submissions regarding the proposed
change of rent.
The appellants, who each were
party to tenancy agreements entered into in respect of dwellings affected by
the determinations, applied to the Supreme Court of the Northern Territory for
judicial review of the three determinations on two grounds: first, that they
were not afforded procedural fairness; and second, that each determination was
legally unreasonable. The primary judge dismissed the application for judicial
review, and an appeal from that judgment was subsequently dismissed unanimously
by the Court of Appeal. The appellants appealed to the High Court.
The High Court unanimously
held that the exercise of the power to make determinations under s 23 of the
Housing Act is conditioned by an obligation to observe procedural fairness. The
Court further held that the appellants were denied procedural fairness, and
that the denial was material. Accordingly, the making of each determination was
infected with jurisdictional error. Given that conclusion, it was unnecessary
for the Court to address whether the determinations were legally unreasonable.
4 December 2025
