A group of Aboriginal people living in a remote community have triumphed over the Northern Territory government in a landmark case, with a tribunal finding for the first time that the government has a legal obligation to ensure remote housing is habitable and in good repair. The tribunal also threw out the government's counterclaim seeking thousands of dollars of unpaid rent from the residents, some of whom waited for years to get repairs of their homes.
Seventy residents of Santa Teresa, a remote community about 80km from Alice Springs, sued the government in Feb. 2016, asking the NT Civil and Administrative Tribunal to order the government to make repairs to their properties, saying they were obliged to like any other landlord under the Territory’s Residential Tenancies Act.
Under a housing scheme with its origins in the 2007 NT Intervention, people in remote communities lease their homes, with the NT government as their landlord. The Santa Teresa residents' rental agreements stipulate a maximum rent, but the actual rent varies depending on the number of tenants living in each house, their age, whether they were receiving Centrelink benefits and other factors.
The case arose after the group Australian Lawyers for Remote Aboriginal Rights (ALRAR) surveyed 70 houses in Santa Teresa in early 2016. They identified more than 600 repairs and maintenance issues that needed attention, and some residents had been waiting years for their houses to be fixed.
While the government eventually attended to most of the residents' repairs after they filed their lawsuit, it also counterclaimed and demanded tens of thousands of dollars in what it said was unpaid rent.
The case was heard by the tribunal in Nov. 2018, focusing on four case studies because there were common issues across the 70 applicants. Represented by ALRAR and supported by the Grata Fund, the residents argued they should get damages for the time they were waiting for repairs. The tribunal sat in Santa Teresa for the first day of the four hearing days. A number of the applicants gave evidence through interpreters, as English was not their first language.
Three years after they filed the lawsuit, tribunal member professor Les McCrimmon largely sided with the applicants in a decision published on Wednesday, ordering the government to pay the four residents over $14,000 in compensation in total, and throwing out the government’s counterclaim for lack of evidence.
Some of the homes were uninhabitable – that is, a "threat to the tenant’s safety" – for weeks or months due to a leaking shower, a blocked toilet, and a missing smoke alarm. One house that had no air conditioning was found to be uninhabitable for three months of the year for six years, until it was finally installed.
Resident Jasmine Cavanagh had told the tribunal her leaking shower left the back area of her house full of water.
"This started soon after I moved in," she told the tribunal. "I complained about it many times to Housing. Sometimes I got a bandaid solution.
"Then the same problem would start again. When it was leaking, we would have to mop up dirty water about every four hours."
In other instances, the government breached its obligation to repair problems with the houses. Elderly couple Enid and Gerald Young lived without a working stove for 170 days, and without a back door for 42 days.
The government had defended its conduct, arguing that the back door was an "example of a repair requested, and completed, in the ordinary course of business". But McCrimmon knocked the argument back, finding that "[i]t should not take over six weeks to install a back door".
The government also failed to ensure the homes were secure, including by providing a house without a front door handle and lock.
Other claims by the Santa Teresa residents were rejected because they did not notify the government of the repair issues quickly enough, or because they lacked evidence.
The residents whose properties were uninhabitable received rent refunds, as well as compensation including for distress arising from their physical inconvenience. In other cases, such as a broken stove, the residents only got nominal damages because they could not prove any loss, even though the government had breached its legal obligations.
The "significant" decision establishes for the first time that the NT government has an obligation to provide habitable housing in remote communities "like any other landlord", Grata's head of strategic litigation Lou Dargan told BuzzFeed News. The government had previously disputed that the Residential Tenancies Act applied to the housing arrangement.
The landmark case could have far-reaching implications for the dozens of other remote communities across the NT.
"This is not an issue that's unique to Santa Teresa. The conditions of housing in remote Aboriginal communities across the Territory are appalling."
Dargan said she hoped the case would set a precedent that would encourage the government to act, but that Grata would explore other claims if action was not taken.
The Territory's minister for local government, housing and community development Gerry McCarthy told BuzzFeed News in an emailed statement that he was looking forward to working with Santa Teresa residents and other remote communities to deliver better housing "in partnership with remote Indigenous Territorians".
McCarthy said the Labor government, which came into power in Sept. 2016, was "proud" of its remote housing program, which is "delivering jobs and changing the housing landscape".
He also said the government acknowledged the "historic underfunding" of remote housing and called on the Commonwealth to "honour its outstanding commitment to remote housing which has been held up for eight months". The Territory and Commonwealth are in an ongoing battle over housing funding and management.
Wednesday's decision also found that the government's counterclaim for unpaid rent was unsuccessful. At the hearing, the tribunal rejected the government’s evidence about the amount of rent owed, and so had no evidence to determine how much rent was unpaid.
The government had already partially retreated on that claim, announcing at the hearing that it was reducing the period of time for which it was seeking arrears.
An argument from the government that the tenants should pay damages for some repairs issues they were said to have caused was also rejected for lack of evidence.
McCrimmon cautioned that his findings may not apply directly to all other remote housing.
“My findings in this case should not be taken to suggest that all houses rented by the respondent in desert communities in the Northern Territory should have an air-conditioner,” he wrote, saying that what a house needed to be habitable would depend on the building, whether it had fans, and other factors.
The tribunal even criticised the NT government for conduct in the dispute "falling below the honest and fair handling of litigation expected of a model litigant". In 2017, after the case was lodged and the residents' lawyer asked to be sent any correspondence about the rental agreements between the residents and the government, the government approached three of the four applicants and got them to sign new tenancy agreements without informing their lawyer.
The tribunal found those agreements were void, as were earlier agreements signed in 2010 and 2011. The 2010-2011 agreements imposed a higher obligation to keep the properties clean than the Residential Tenancies Act allowed. Instead, the terms of the lease agreements between the residents and the government are the standard terms in the act.
At the hearing, the residents described being rushed into signing tenancy agreements in 2010 and 2011 with little explanation of what they meant or what their rent would be.
Despite that, the tribunal found that each tenant would have known what their rent was because it was sufficiently clear on the documents.
BuzzFeed News reported in December on the case of an eight-year-old Santa Teresa boy whose doctor said the condition of his housing was exacerbating his poor health.
The child has a congenital condition that means his intestines do not work properly, and he is prone to infections. His condition has sometimes required him to be flown to Adelaide Hospital for treatment, over 1,500km away. Despite a letter from his doctor to the department drawing attention to issues like a water leak and broken fence, which increase the risk of infection, after eight months the department still had not acted.