A public housing policy which saw tenants in the Northern Territory charged a flat rental rate based on the number of bedrooms in their home has been ruled unlawful by the high court, after a three-year challenge brought by residents from two remote Indigenous communities.
The Remote Rental Framework, introduced in stages by the NT government between December 2021 and February 2023, raised rent by up to 200% for two-thirds of Aboriginal tenants living in remote communities in the NT, with more than 5,300 homes affected.
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On Wednesday, the high court found unanimously that the former NT Labor government did not afford the affected tenants procedural fairness, as required under the Housing Act.
A summary of the judgment said the rental changes “took effect despite anything to the contrary contained in existing tenancy agreements” and were made “without giving notice to any tenant or inviting any tenant to make submissions regarding the proposed change of rent”.
“Accordingly, the making of each determination was infected with jurisdictional error,” the summary said. “Given that conclusion, it was unnecessary for the Court to address whether the determinations were legally unreasonable.”
The plaintiffs, Asher Badari, Ricane Galaminda and Lofty Nadjamerrek from Gunbalanya, in West Arnhem Land, along with Carmelena Tilmouth from Laramba, 230km north of Alice Springs, first brought the case against the territory government in September 2022.
Outside court, solicitor Dan Kelly from Australian Lawyers for Remote Aboriginal Rights, who has been representing the plaintiffs, said that the NT government should have consulted properly with remote tenants and communities.
“The Northern Territory government has to go back and it has to speak to tenants – and they have to speak to communities – and work out what a fair and appropriate rent system looks like,” he said.
“They thought they could introduce the policy without any regard to 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’s quite an ancient protection for all citizens: that our government can’t exercise power over your rights without talking to you.”
The total value of the increased rents was $9.7m a year, Kelly said.
An NT government briefing document about the policy claimed consultation had been occurring since 2018. That document said the framework was intended to be “easier for tenants to understand and easier 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”.
The Territory housing, local government and community development minister, Steve Edgington, said the NT government acknowledged the high court decision regarding the Remote Rental Framework introduced by the former government, and that “all public housing tenants, remote and urban”, were still required to pay rent.
He said the NT government was “considering options” to ensure a valid rental framework was in place for remote tenants.
In 2022, the NT government cancelled $68m in rental debt for remote Indigenous communities after a community-led legal challenge argued the housing conditions were “inhumane”.
