A public housing policy which charged tenants in the Northern Territory a flat rental rate based on the number of bedrooms in their home has been ruled unlawful by the High Court, following a three-year challenge brought by residents of two remote Indigenous communities.
The Remote Rental Framework, introduced in phases by the NT Government between December 2021 and February 2023, increased rents by 200% for two-thirds of Aboriginal tenants living in remote communities in the NT, affecting more than 5,300 households.
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On Wednesday, the High Court unanimously found that the former NT Labor government did not provide affected tenants with the procedural fairness required under the Housing Act.
A summary of the decision said the rent change “took effect notwithstanding anything to the contrary contained in existing tenancy agreements” and was made “without giving any notice to any tenant or inviting any tenant to make submissions in relation to the proposed change of rent”.
“Accordingly, the making of each determination was infected with jurisdictional error,” the summary states. “Given that conclusion, it was unnecessary for the Court to address whether the determinations were legally unreasonable.”
The plaintiffs, Asher Badri, Ricken Galaminda and Lofty Ndjamarek of Gunbalanya in West Arnhem Land, along with Carmelena Tilmouth of Laramba, 230 km north of Alice Springs, first brought the case against the territory government in September 2022.
Outside court, lawyer Dan Kelly of Australian Lawyers for Remote Aboriginal Rights, which is representing the plaintiffs, said the NT government should have conducted proper consultation with remote tenants and communities.
“The Northern Territory government has to go back and it has to talk to tenants – and they have to talk to communities – and work out what a fair and reasonable rental system would look like,” he said.
“They thought they could introduce policy without caring about the people affected and their views, so that’s where they went wrong.
“The Court has upheld this strong presumption in the common law that is a fairly ancient protection for all citizens: that our government cannot exercise authority over your rights without talking to you.”
The total value of the increased rents was $9.7m a year, Kelly said.
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An NT Government briefing document about the policy claimed consultation had been taking place since 2018. That document stated that the framework was intended to be “easy for tenants to understand and easy to administer”, and that an income-based model – used to determine public housing rents in other Australian jurisdictions – was “difficult for tenants to understand” and “challenging to administer due to large geographical distances and changing household dynamics”.
Minister for Regional Housing, Local Government and Community Development, Steve Addington, said the NT Government has accepted the High Court decision in relation to the remote rental framework introduced by the former government, and “all public housing tenants, remote and urban” are still required to pay rent.
He said the NT Government was “considering options” to ensure a legitimate rental framework for remote tenants.
In 2022, the NT Government canceled $68 million in rental loans to remote Indigenous communities after a community-led legal challenge argued housing conditions were “inhumane”.
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