Make the doors upon a woman's
wit, and it will out at the casement; shut that, and 'twill out at the
key-hole; stop that, 'twill fly with the smoke out at the chimney.
As You Like It, Act Four,
scene one.
The recently decided High Court case of Young v Chief
Executive Officer (Housing) [2023] HCA 31 (link
here)
turned on some relatively technical issues related to the interpretation of the
compensation issues in NT statute law. There have been several media reports (link
here and link
here) making the point that this case has implications for tenants more
broadly, representing an expansion of the onus on landlords. I don’t propose to
attempt to summarise, nor discuss, those compensation issues. Instead I wish to
point out some of the factual background to this litigation, and the policy
implications. While this litigation related to the circumstances faced by one
tenant, there are over 5000 houses managed by the CEO Housing in the NT, all of
whom are subject to the same maintenance regime and levels of attention (or
inattention as the case may be) as those that led to this litigation.
This extract from the Judgement of Gordon J and Edelman J is
a good place to begin:
41 The
premises leased to Ms Young were alleged to be defective in numerous respects .
One respect was that for several years from the time that her tenancy
commenced, the Chief Executive Officer (Housing) had failed to provide Ms Young
with a back door. The absence of a back door was a significant impairment of
security in circumstances where, as Ms Young described, roaming wild horses may
have bent a fence around the property, and where a snake may have entered the
house through a gap that was left between the door and the doorframe following
the eventual installation of a back door by the Chief Executive Officer
(Housing) . Ms Young was "an elderly woman who was left vulnerable to
proven animal intruders and potentially human intruders" .
42 On 22
January 2016, a solicitor acting for Ms Young wrote to the Chief Executive
Officer (Housing) saying that there had been no back door on the premises and
that, although a mesh-steel door had been installed by Ms Young, a new door was
required. More than six weeks later, in late March 2016, the Chief Executive
Officer (Housing) installed a new back door .
43 In
the Tribunal, Ms Young sought orders for repairs to be made to the premises, as
well as a payment of compensation under s 122(1) of the Residential Tenancies
Act. The Chief Executive Officer (Housing) was ordered to: refund rent of
$4,735.80 for 540 days during which the premises were uninhabitable due to the
lack of an air-conditioner; pay $4,000 in damages for distress arising from the
associated physical inconvenience from the lack of an air-conditioner; and pay
$200 in damages for the breach of its duty to repair Ms Young's stove for a
period of 170 days . None of these matters was an issue on appeal to this
Court. The relevant issue concerned the Tribunal's decision in relation to the
failure by the Chief Executive Officer (Housing) to install a back door.
In The Saturday Paper, Rick Morton does an excellent job of
contextualising and illustrating the bureaucratic nightmare for Ms Young that
ultimately led to the High Court decision (link
here).
Here is an extract where Morton recounts evidence from 2019 at an earlier stage
of the litigation:
Ms Young, who testified
through a translator, showed that a shower and drain had been leaking for 2117
days, and that she had no back door for 2090 days and a toilet that flushed
poorly and failed to clear waste for 534 days. In a community where animals
roamed freely, including wild horses, the perimeter fence was bent all the way
to the ground for 2328 days. Ms Young, who was in her late 70s when she brought
the case, had no air-conditioner for 2121 days. Mr Conway had a home infested
with insects for 1035 days and, on account of leaking water, slept in the
kitchen for 1989 nights.
In his article Morton mentions another significant judicial
win for Indigenous tenants in the NT (and potentially elsewhere):
Just weeks ago, Kelly [the
solicitor for the applicants in the Yong case] had another win against the same
government landlord operating the same sublet lease from the Commonwealth. The
Northern Territory Supreme Court overturned a tribunal decision that found the
residents of Laramba, west of Alice Springs, were not owed safe drinking water
by their housing provider. Drinking water in the town contains uranium levels
three times higher than the maximum for safe consumption.
The decision in this case has not yet been published on the
NT Supreme Court web page. It does seem that there has been some action on
Laramba’s water supply with the opening of a new water treatment plant in April
this year (link
here).
Nevertheless, provision of safe water, power and sewerage remains a challenge
across much of the NT (and probably also in other jurisdictions). This is
particularly the case given the accelerating impacts of climate change on
remote communities (link
here
and link
here).
Despite its inclusion as target #9B under the National Agreement on Closing the
Gap, we don’t have good information on the status of infrastructure delivery in
remote Australia (link
here).
In 2006 the national Community Housing and Infrastructure Needs Survey was discontinued,
removing the only national and objective assessment of infrastructure
shortfalls in remote communities [h/t Jon Altman]. Hopefully, with the addition
of target #9B, the current federal Labor Government will do something about
re-establishing the CHINS.
Without wishing to take issue with Morton’s overarching
thesis, I do wish to outline an alternative and in my view more accurate
analysis of the political and bureaucratic history that has contributed to the
current deep seated crisis in remote housing provision, and the concomitant
demographic implications which in turn are contributing to (but are not
necessarily the major cause for) the substantial challenges in the NT’s major
cities and towns related to homelessness, public drunkenness, and the appropriateness
of police and private security firms responses (link
here).
While these issues are perhaps most visible to the national gaze in the NT,
similar issues exist in other jurisdictions with remote communities. My
interpretation is important because it plays into the policy solutions that are
required.
I disagree with Morton in relation to his rolling up of
remote housing issues (and the related 2008 NT local Government reforms) into
the Howard Government Intervention. The two processes largely overlapped but
were and remain conceptually separate. It is undoubtedly the case that in the
minds of many Aboriginal residents of the NT, the two are conjoined. The
motivation for the intervention was primarily to create an electoral
distraction, which conveniently involved a subliminal dog whistle to the far
right built around inflaming debate around allegations of child abuse and
blaming Aboriginal people and communities for the dysfunction and disadvantage
they suffered. It was deliberately punitive and sought to wedge the then Labor
Opposition in the leadup to an election. Labor pragmatically went along with
the associated legislation, including provisions that removed the application
of the Racial Discrimination Act. As an aside, it is worth noting that there is
no constitutional restraint on a future government acting similarly. The case
for substantive constitutional reform is far from resolved, notwithstanding
that it will be a generation before momentum to do so and the political will to
do so might be tested.
Following the 2007 election, Labor was hamstrung by its
lack of numbers in the Senate and so could not repeal the most egregious
elements of the Intervention legislation. Instead, it sought to ameliorate the
impact of its previous pragmatism by investing very considerable amounts of
funding in its Stronger Futures policy (link
here).
Labor also pursued a range of national partnerships focussed on disadvantage in
remote regions nationally, the major one being the National Partnership on Remote
Indigenous Housing (NPARIH) which allocated $5.5 billion over ten years.
In relation to housing, Morton argues that it was the shift
of responsibility for managing community housing that is at the root of the
problem. He writes, quoting Ms Young’s niece:
“In this community we used to
have our own – we called it the Progress Housing Association – that used to be
owned and controlled within the community, by community people working
together. “And now as soon as the [Northern Territory] Intervention came out,
that was the one that wiped everything out.”
Following the NT Intervention,
led by former prime minister John Howard and extended by his successor Kevin
Rudd, the right to manage community housing was taken from residents, with an
emergency lease handed to the NT government. Later, the Commonwealth convinced
residents to sign over the housing stock on a 40-year lease to the federal
government in exchange for maintenance and funding for repairs. They offered no
alternative. As soon as the lease was signed, the Commonwealth sublet the
entire arrangement to the NT government, which has had responsibility ever
since.
In 2017, I published a post (link
here)
where I discussed these issues, and argued that the changes in responsibility
were required because previously governments had not been prepared to provide
adequate funding. Leasehold tenure was required to ensure that Governments had
a legal responsibility to meet the needs of tenants. Previously, that
responsibility was held by land trusts on Aboriginal land (this is still the
case) and Indigenous community housing organisations (ICHOs) within
communities, but tenants (and Indigenous controlled legal services) were never
prepared to initiate litigation against Indigenous landlords. In that post,
which was critiquing a supposedly independent review of NPARIH, I wrote (inter
alia):
Fourth,
property and tenancy management (PTM) is given a lot of attention in the
report, again with virtually no data presented to back up the points made. The
suggestion in section 5.1.1 that PTM was ‘sidelined’ in the early delivery of
the program is mere assertion and in my view is just wrong. It ignores the fact
that before the program existed, there was virtually no funding and no focus on
PTM by ICHOs. The shift of responsibility to state housing authorities under
the program, and the requirement for 40 year leases to underpin all investment,
meant that the states were for the first time responsible for tenancy
management as part of their landlord responsibilities. This was a key objective
of the program, and so to argue that it was ‘sidelined’ is tendentious. The
NPARIH Review of Progress (2008-2013) released in 2013 (link here) reached a
different conclusion, noting that:
There has been considerable
progress with property and tenancy management implementation overall, but key
elements such as reformed rent setting and tenant support services have not
kept pace with capital works delivery in all jurisdictions. (p.11).
Moreover, there is absolutely
no mention of the current [ie LNP] Government’s decision in 2015 to cut $95m
from the forward estimates for PTM (refer to para 2.15 and footnotes 28 and 29
in the recent ANAO report on the Community Development Program for the
rationale for this cut; …. nor any analysis of the performance of the new
Community Development Program in delivering housing repair and/or tenancy
management services which was the rationale given by the Minister in Estimates
in 2015 when he was queried on the cuts.
Rather than blaming the Intervention, or the shift to
community leasing as the source of the current neglect, I would point directly
at the issue of funding. Chronic under-investment by governments in remote
housing has been the fundamental cause of the ongoing disadvantage confronting
remote communities and has undoubtedly played a major role in contributing to
chronic overcrowding, poor health, poor educational outcomes, drug abuse,
domestic violence and other symptoms of fundamental dysfunction. I published an
article on this issue in Inside Story some years ago (link
here).
I am not suggesting that housing is the magic bullet, merely that it is
an essential element in addressing the deep-seated disadvantage that
disproportionately targets residents of remote communities.
One further policy implication that deserves serious consideration
by the Commonwealth and the NT Land Councils are the consequences of these decisions
for dwellings and other facilities on Aboriginal land leased by traditional
owners to Aboriginal and non-Aboriginal tenants.
The upside of these recent cases in the NT Supreme Court
and the High Court is that it will force governments at both Commonwealth and
state levels to reconsider the adequacy of their investment in remote housing,
to revisit the split between capital and recurrent expenditures in their social
hosing programs, and to think again about the benefits of providing much
greater support to innovative community housing models of housing provision and
management. The persistence of the late Ms Young, her community, and it must be
said, her lawyers, has paid off and has delivered what may well turn out to be the
most consequential policy change for remote communities in the last decade.
Disclosure: I was from 2002 to
2006 the CEO Housing in the NT. From 2008 to 2012, I was an adviser to the commonwealth
minister responsible for remote housing programs.
7 November 2023
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