NT remote housing rent reversal: what are the policy ramifications?

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

The High Court opens the door on the inexcusable dereliction of remote housing policy

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