High Court rules remote housing tenants can be compensated for impact of dilapidated accommodation

Giovanni Torre
Giovanni Torre Published November 1, 2023 at 9.30am (AWST)

The High Court ruled on Wednesday that Aboriginal people living in remote housing can be compensated for distress and disappointment suffered due to dilapidated accommodation.

The case, which reached the High Court on Close The Gap Day in March this year, began more than seven years ago when tenants Ms Young and Mr Conway (who have both since passed away) from the remote Northern Territory community, Ltyentye Apurte/Santa Teresa, initiated proceedings with 68 other tenants from that community.

Ultimately more than 70 households joined the action, bringing claims on a range of matters including unstable power supplies, leaking water and sewerage systems, and no heat mitigation measures such as air conditioning despite extreme conditions.

The late Ms Young, the lead appellant, had said NT Housing did not replace her front door for five years.

The case is understood to be the first residential tenancy case heard by Australia's highest court in a generation.

The High Court unanimously recognised for the first time the right of tenants to compensation for disappointment and distress when a rented house does not meet legal standards, and did so on the basis that a tenancy is for "a home [which should offer] protection of the physical and psychological well-being of the tenant".

Advocates said the decision is set to have "wide-ranging ramifications" across the country by giving tenants a new way to hold landlords accountable for unsafe, unhealthy or uncomfortable housing.

They described it as a landmark victory for remote Indigenous communities in the NT, with the High Court ruling that the NT Government is liable for compensation to its tenants for the distress caused by years living in dilapidated and uninhabitable homes that do not meet basic legal standards.

Following Wednesday's ruling, "all applicants from this remote desert community can hope for compensation for deplorable housing conditions that persisted for weeks, months and even years at a time".

This judgment significantly increased the amount of compensation available to roughly 5,300 remote Indigenous households in the NT and over 30,000 Indigenous tenants who have been subject to the Government's "neglectful approach" to housing, advocates said.

With more than 50 per cent of all Territorians and approximately one in three Australian households renting their homes, it provides "benefit and greater protection" to a significant and growing part of the Australian population.

The community's fight for housing justice started almost eight years ago when the NT government was given a list of more than 600 repairs requested by the tenants.

The residents bringing the case were represented by Australian Lawyers for Remote Aboriginal Rights (ALRAR) and barrister, Matthew Albert, at no cost to the community or the tenants. Grata Fund has provided funding and support to the community throughout the legal journey.

In closing submissions to the High Court, counsel for the tenants, Mr Albert relied directly on the case from 1604 that is the source of the celebrated line that gave the film, The Castle, its title: "The home to everyone is to him his castle and fortress, as well for his defence against injury and violence, as for his repose" (Sir Edward Coke in Semayne's Case).

Solicitor at Australian Lawyers for Remote Aboriginal Rights, Dan Kelly, congratulated the community "for winning this landmark case".

"It's a hard fought victory led by the people of Ltyentye Apurte (Santa Teresa), who have spent almost eight years fighting the NT Government to uphold their basic human right to live in decent housing," he said.

"The deplorable state of housing in remote communities, its impacts on health and wellbeing, should not be tolerated in a country as wealthy as Australia. As it stands, legal action is the only way remote communities can enforce their basic rights to habitable housing.

"I am deeply saddened for the family of two tenants who led this case, Ms Young and Mr Conway, who, like Eddie Mabo, did not live to see their fight deliver better outcomes for their community and well beyond it. I honour their legacy and pay my respects to their justifiably proud children and grandchildren.

"Given the injustice recognised today by the High Court, it is regrettable that the last contact Ms Young had from the government landlord before she died was to inform her that her rent was going up."

Mr Kelly said the NT Government's "neglect of remote housing" impacts communities across the Territory, and "today's decision sets an important precedent for all 72 other remote communities, and all tenants across the country".

"The judgment establishes an important principle that public housing tenants can be compensated for distress caused by failures to maintain a rental property, and has broader implications for all tenants across the country," he said.

Grata Fund Executive Director Isabelle Reinecke congratulated the community for "leading the way and fighting for better housing conditions for their families, and for all Australians".

"This is the first residential tenancy case heard by Australia's highest court in a generation, and this historic win will have far-reaching consequences for renters nationwide," she said.

National Indigenous Times has contacted the Northern Territory government for comment.

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Disclaimer: This function is AI-generated and therefore may mispronounce.