The Northern Territory court of appeal has upheld a ruling that state-owned housing must be reasonably comfortable to be considered habitable, in a decision that advocates say should result in better housing outcomes for remote communities across the territory.
Friday’s decision follows a six-year legal battle brought by residents of the Ltyentye Apurte or Santa Teresa community 85km south-east of Alice Springs. The community said inadequate and inhumane housing was due to repeated failures by public housing authorities to conduct necessary repairs.
Seventy residents took the territory government to the Northern Territory civil and appeals tribunal over the state of housing in the Eastern Arrernte community in 2016. One of the claimants lived with a blocked toilet and a leaking shower for 269 days and many homes had missing doors, faulty stoves and leaking air conditioners. One resident, Enid Young, went without an air conditioner for 540 days.
The tribunal found in favour of the residents in 2019 and agreed the government, as landlord, had an obligation to provide habitable housing, but said that under the NT Residential Tenancies Act a house just had to meet standards of health and safety to be considered “habitable”.
The tribunal said it applied a “very high test” for finding a premise uninhabitable, and that to be uninhabitable the state of the premises must have been such that there was a “threat to the tenant’s safety, going to both structural and health issues”.
Two community members, Enid Young and Mr Conway, whose first name is not used as he has since passed away, then challenged that decision in the supreme court, arguing that they were owned further compensation due to the condition of their homes, which in Young’s case included going without a back door for six weeks.
They also argued that the definition of habitability should be expanded, resulting in the supreme court ruling that the question of habitability should include an “overall assessment of humaneness, suitability and reasonable comfort of the premises … judged against contemporary standards”.
In February 2021, the housing authority appealed the supreme court decision, arguing that the definition of habitability adopted by the court was too broad. It also disputed a ruling that the case be remitted to the civil and appeals tribunal to determine compensation.
On Friday, the full bench of the NT court of appeal upheld the government’s appeal on two grounds, challenging the tribunal’s ability to determine compensation for an invalid rental agreement and a failure to replace Young’s door in a timely manner, but dismissed an attempt by the government to narrow the definition of habitability.
The court also heard evidence presented by the Australian Human Rights Commission which intervened in the case as amicus curiae.
In a written judgment, the court said that while the criteria for assessing habitability of housing adopted in the supreme court decision – that housing be both humane and suitable – was “insufficiently precise”, the requirement that a house must be reasonably comfortable should stay.
It found there were provisions in the act “which indicate a legislative intention that the considerations which inform the determination of habitability are not coextensive with matters of health and safety”, and said that “an accumulation of defects in the property may so undermine its comfort and amenity as to render it unfit for habitation, even where those defects do not constitute a threat to health and safety”.
Daniel Kelly, a solicitor with the Australian Lawyers for Remote Aboriginal Rights, which represented community members with funding from Grata Fund, said the judgment “confirmed that the territory government has a legal responsibility to improve the standard of housing for remote communities”.
“This is validation for the people of Santa Teresa, who have spent more than six years fighting for housing they can actually live in,” Kelly said.
“Our thoughts are with Mr Conway’s family today, who unfortunately did not live to see his fight deliver better outcomes for his community. The onus is now on chief minister [Michael] Gunner to work with Aboriginal peaks to implement community-led solutions to the housing crisis.”
