FEDERAL COURT OF AUSTRALIA

 

Shaw v Minister for Families, Housing, Community Services and Indigenous Affairs [2009] FCA 844

INJUNCTIONS – interlocutory injunctions - relevant principles – serious question to be tried – Northern Territory Emergency Response Act 2007 – s 47 – compulsory acquisition Alice Springs town camps – whether failure to accord natural justice – whether contrary to members’ interests as a whole - balance of convenience

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), ss 20B, 20CA, 20CA(3)

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss s 5(1), 6(1)(a), s 16(2)

Associations Act 2003 (NT),s 109

Corporations (Aboriginal and Torrens Strait Islander) Act 2006 (Cth), s 166

Crown Lands Act 1992 (NT)

Federal Court of Australia Act 1976 (Cth)

Judiciary Act 1903 (Cth), ss 39(1A)(c), 39B(1)

Lands Acquisition Act 1989 (Cth)

Northern Territory National Emergency Response Act 2007 (Cth), ss 47, 50, 51

Residential Tenancies Act 1999 (NT)

Special Purposes Leases Act 1953 (NT)

 

 

Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, followed

Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, followed

Kioa v West (1985) 159 CLR 550, followed

Northern Territory of Australia v Mengel (1994) 185 CLR 307, considered

Sanders v Snell (1998) 196 CLR 329, considered

Szencorp Pty Ltd v Clean Energy Council Ltd (2009) 69 ACSR 365, followed



BARBARA RACHEL SHAW v MINISTER FOR FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

 

VID 547 of 2009

 

 

BARBARA RACHEL SHAW, GEORGE ROBERTSON JAMPITJINPA, GWEN GILLEN, WARREN TONKIN, MELISSA BROWN, MARLENE HAYES, KEVIN WIRRI, VANESSA KRUGER, MAUREEN WILLIAMS, RACHEL JURRA, ROSEMARY RUBUNTJA, AUDREY McCORMACK, PAMELA SAMPSON, CHERYL MCMILLAN v MINISTER FOR FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS, EXECUTIVE DIRECTOR OF TOWNSHIP LEASING, NORTHERN TERRITORY OF AUSTRALIA AND IIPARPA ABORIGINAL CORPORATION, KARNTE ABORIGINAL CORPORATION, ANTHEPE HOUSING ASSOCIATION, ILYPERENYE ASSOCIATION INC,  INARLENGE COMMUNITY INC, MPWETYERRE ABORIGINAL CORPORATION,  YARRENYTE ARLTERE ASSOCIATION INC, AKNGWERTNARRE ASSOCIATION INC, NYEWENTE ASSOCIATION INC, ANTHELK EWLPAYE ASSOCIATION INC, APER ALWERRKNGE ASSOCIATION INC, MT NANCY HOUSING ASSOCIATION INC, ILPERLE TYATHE ASSOCIATION INC, ILPEYE ILPEYE ABORIGINAL CORPORATION, EWYENPER ATWATYE ASSOCIATION INC, ANHELKE ABORIGINAL CORPORATION, LHENPE ARTNEW ABORIGINAL CORPORATION

 

VID 558 of 2009

 

GOLDBERG J

6 AUGUST 2009

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY GENERAL DIVISION	VID 547 of 2009

 

BETWEEN:	BARBARA RACHEL SHAW Applicant
AND:	MINISTER FOR FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Respondent

 

JUDGE:	GOLDBERG J
DATE OF ORDER:	6 AUGUST 2009
WHERE MADE:	MELBOURNE

 

UPON THE APPLICANT BY HER COUNSEL UNDERTAKING TO THE COURT

 

(a)  to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the following interlocutory order or any continuation (with or without variation) thereof;  and

(b)  to pay the compensation referred to in (a) to the person there referred to.

THE COURT ORDERS THAT:

 

1.   Until the hearing and determination of the trial of this proceeding or further order, the respondent be restrained whether by herself, her servants or agents, or any of them or otherwise howsoever from giving to the Northern Territory pursuant to s 47(1) of the Northern Territory National Emergency Response Act 2007 (Cth) a notice specifying any part of the land referred to in the schedule to this order.

2.   A directions hearing be held on 7 August 2009 at 2.00 pm eastern standard time. 

3.   The costs of the hearing of the application for interlocutory orders be reserved for further consideration.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

SCHEDULE

Akngwertnarra

The whole of the land described in Certificate of Title Volume 622 Folio 176 being Lot 5150 Town of Alice Springs from plan S77/035;

Anthelk-Ewlpaye

The whole of the land described in Certificate of Title Volume 622 Folio 183 being Lot 1733 Town of Alice Springs from plan S72/098 and Lot 3702 Town of Alice Springs from plan S72/098 and Lot 3704 Town of Alice Springs from plan S72/098;

Anthepe

The whole of the land described in Certificate of Title Volume 622 Folio 178 being Lot 5146 Town of Alice Springs from plan S75/103;

Aper-Alwerrknge

The whole of the land described in Certificate of Title Volume 622 Folio 260 being Lot 5180 Town of Alice Springs from plan S78/058;

Basso’s Farm

The whole of the land described in Certificate of Title Volume 192 Folio 046 being Lot 5123 Town of Alice Springs from plan S81/030B;

Ewyenper-Atwatye

The whole of the land described in Certificate of Title volume 622 Folio 177 being Lot 5189 Town of Alice Springs from plan S79/070;

Ilperle Tyathe

The whole of the land described in Certificate of Title Volume 623 Folio 349 being Lot 5149 Town of Alice Springs from plan S77/036;

Ilpeye Ilpeye

The whole of the land described in Certificate of Title Volume 198 Folio 072 being Lot 6911 Town of Alice Springs from plan s85/015;

Ilyiperenye

The whole of the land described in Certificate of Title Volume 192 Folio 020 being Lot 5708 Town of Alice Springs from plan S80/018;

Inarlenge

The whole of the land described in Certificate of Title Volume 333 Folio 116 being Lot 3701 Town of Alice Springs from plan S72/84;

Karnte

The whole of the land described in Certificate of Title Volume 622 Folio 184 being Lot 7850 Town of Alice Springs from plan S87/059;

Mount Nancy

The whole of the land described in Certificate of Title Volume 622 Folio 358 being Lot 5135 Town of Alice Springs from plan S75/104;

Mpwetyerre

The whole of the land described in Certificate of Title Volume 622 Folio 185 being Lot 2664 Town of Alice Springs from plan A000556;

New Ilparpa

The whole of the land described in Certificate of Title Volume 622 Folio 259 being Lot 5713 Town of Alice Springs from plan S80/079;

Nyewente

The whole of the land described in Certificate of Title volume 622 Folio 182 being Lot 5152 town of Alice Springs from plan S77/050;

Yarrenyty-Arltere

The whole of the land described in Certificate of Title Volume 191 Folio 062 being Lot 5195 Town of Alice Springs from plan S79/098

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY GENERAL division	vid 558 OF 2009

 

BETWEEN:

BARBARA RACHEL SHAW, GEORGE ROBERTSON JAMPITJINPA, GWEN GILLEN, WARREN TONKIN, MELISSA BROWN, MARLENE HAYES, KEVIN WIRRI, VANESSA KRUGER, MAUREEN WILLIAMS, RACHEL JURRA, ROSEMARY RUBUNTJA, AUDREY McCORMACK, PAMELA SAMPSON, CHERYL MCMILLAN Applicants

AND:

MINISTER FOR FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS & ORS First Respondent   EXECUTIVE DIRECTOR OF TOWNSHIP LEASING Second Respondent   NORTHERN TERRITORY OF AUSTRALIA Third Respondent   IIPARPA ABORIGINAL CORPORATION KARNTE ABORIGINAL CORPORATION ANTHEPE HOUSING ASSOCIATION ILYPERENYE ASSOCIATION INC INARLENGE COMMUNITY INC MPWETYERRE ABORIGINAL CORPORATION YARRENYTE ARLTERE ASSOCIATION INC AKNGWERTNARRE ASSOCIATION INC NYEWENTE ASSOCIATION INC ANTHELK EWLPAYE ASSOCIATION INC APER ALWERRKNGE ASSOCIATION INC MT NANCY HOUSING ASSOCIATION INC ILPERLE TYATHE ASSOCIATION INC ILPEYE ILPEYE ABORIGINAL CORPORATION EWYENPER ATWATYE ASSOCIATION INC ANHELKE ABORIGINAL CORPORATION LHENPE ARTNEW ABORIGINAL CORPORATION Fourth Respondents

 

JUDGE:	GOLDBERG J
DATE OF ORDER:	6 AUGUST 2009
WHERE MADE:	MELBOURNE

 

UPON THE APPLICANTS BY THEIR COUNSEL UNDERTAKING TO THE COURT

 

(a)  to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the following interlocutory orders or any continuation (with or without variation) thereof;  and

(b)  to pay the compensation referred to in (a) to the person there referred to.

THE COURT ORDERS THAT:

1.   Until the hearing and determination of the trial of this proceeding or further order, each of the first to the eighth, tenth to the thirteenth and fifteenth fourth respondents be restrained whether by themselves, their servants or agents or any of them or otherwise howsoever, from entering into or giving effect to a sub-lease of any part of the land referred to in the schedule to this order with the second respondent or the third respondent or either of them.

2.   Until the hearing and determination of the trial of this proceeding or further order, each of the second respondent and the third respondent be restrained whether by themselves, their servants or agents or any of them or otherwise howsoever from entering into or giving effect to a sub-lease of any part of the land referred to in the schedule to this order with the first to the eighth, tenth to the thirteenth and fifteenth fourth respondents or any one or more of them.

3.   A directions hearing be held on 7 August 2009 at 2.00 pm eastern standard time.

4.   The costs of the hearing of the application for interlocutory orders be reserved for further consideration.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

SCHEDULE

Akngwertnarra

The whole of the land described in Certificate of Title Volume 622 Folio 176 being Lot 5150 Town of Alice Springs from plan S77/035;

Anthelk-Ewlpaye

The whole of the land described in Certificate of Title Volume 622 Folio 183 being Lot 1733 Town of Alice Springs from plan S72/098 and Lot 3702 Town of Alice Springs from plan S72/098 and Lot 3704 Town of Alice Springs from plan S72/098;

Anthepe

The whole of the land described in Certificate of Title Volume 622 Folio 178 being Lot 5146 Town of Alice Springs from plan S75/103;

Aper-Alwerrknge

The whole of the land described in Certificate of Title Volume 622 Folio 260 being Lot 5180 Town of Alice Springs from plan S78/058;

Basso’s Farm

The whole of the land described in Certificate of Title Volume 192 Folio 046 being Lot 5123 Town of Alice Springs from plan S81/030B;

Ewyenper-Atwatye

The whole of the land described in Certificate of Title volume 622 Folio 177 being Lot 5189 Town of Alice Springs from plan S79/070;

Ilperle Tyathe

The whole of the land described in Certificate of Title Volume 623 Folio 349 being Lot 5149 Town of Alice Springs from plan S77/036;

Ilpeye Ilpeye

The whole of the land described in Certificate of Title Volume 198 Folio 072 being Lot 6911 Town of Alice Springs from plan s85/015;

Ilyiperenye

The whole of the land described in Certificate of Title Volume 192 Folio 020 being Lot 5708 Town of Alice Springs from plan S80/018;

Inarlenge

The whole of the land described in Certificate of Title Volume 333 Folio 116 being Lot 3701 Town of Alice Springs from plan S72/84;

Karnte

The whole of the land described in Certificate of Title Volume 622 Folio 184 being Lot 7850 Town of Alice Springs from plan S87/059;

Mount Nancy

The whole of the land described in Certificate of Title Volume 622 Folio 358 being Lot 5135 Town of Alice Springs from plan S75/104;

Mpwetyerre

The whole of the land described in Certificate of Title Volume 622 Folio 185 being Lot 2664 Town of Alice Springs from plan A000556;

New Ilparpa

The whole of the land described in Certificate of Title Volume 622 Folio 259 being Lot 5713 Town of Alice Springs from plan S80/079;

Nyewente

The whole of the land described in Certificate of Title volume 622 Folio 182 being Lot 5152 town of Alice Springs from plan S77/050;

Yarrenyty-Arltere

The whole of the land described in Certificate of Title Volume 191 Folio 062 being Lot 5195 Town of Alice Springs from plan S79/098

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY GENERAL DIVISION	VID 547 of 2009

 

BETWEEN:	BARBARA RACHEL SHAW Applicant
AND:	MINISTER FOR FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Respondent
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY GENERAL DIVISION		VID 558 of 2009

 

BETWEEN:

BARBARA RACHEL SHAW, GEORGE ROBERTSONJAMPITJINPA, GWEN GILLEN, WARREN TONKIN, MELISSA BROWN, MARLENE HAYES, KEVIN WIRRI, VANESSA KRUGER, MAUREEN WILLIAMS, RACHEL JURRA, ROSEMARY RUBUNTJA, AUDREY McCORMACK, PAMELA SAMPSON, CHERYL MCMILLAN Applicants

AND:

MINISTER FOR FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS First Respondent   EXECUTIVE DIRECTOR OF TOWNSHIPLEASING SecondRespondent   NORTHERN TERRITORY OF AUSTRALIA Third Respondent   IIPARPA ABORIGINAL CORPORATION KARNTE ABORIGINAL CORPORATION ANTHEPE HOUSING ASSOCIATION ILYPERENYE ASSOCIATION INC INARLENGE COMMUNITY INC MPWETYERRE ABORIGINAL CORPORATION YARRENYTE ARLTERE ASSOCIATION INC AKNGWERTNARRE ASSOCIATION INC NYEWENTE ASSOCIATION INC ANTHELK EWLPAYE ASSOCIATION INC APER ALWERRKNGE ASSOCIATION INC MT NANCY HOUSING ASSOCIATION INC ILPERLE TYATHE ASSOCIATION INC ILPEYE ILPEYE ABORIGINAL CORPORATION EWYENPER ATWATYE ASSOCIATION INC ANHELKE ABORIGINAL CORPORATION LHENPE ARTNEW ABORIGINAL CORPORATION Fourth Respondents

 

JUDGE:	GOLDBERG J
DATE:	6 AUGUST 2009
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1                          These reasons for judgment relate to two proceedings before the Court, VID 547 of 2009 and VID 558 of 2009 in which applications for urgent interlocutory injunctive relief were heard at the same time.  As the issues in each proceeding are inter-related I have decided to publish one reasons for judgment which explain the reasons for making interlocutory orders in each proceeding.

The First Proceeding

2                          In proceeding VID 547 of 2009 the applicant, Barbara Rachel Shaw, has filed an application to review the conduct of the respondent, the Minister for Families, Housing, Community Services and Indigenous Affairs (“the Minister”) for the purpose of making a decision to which the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”) applies.  The applicant also relies upon ss 39B(1) and 1A(c) of the Judiciary Act 1903 (Cth) (“the Judiciary Act”).  The proposed decision by the Minister is the giving of a notice pursuant to s 47(1) of the Northern Territory National Emergency Response Act 2007 (Cth) (“the NER Act”) to the Northern Territory specifying certain pieces of land that are the subject of leases under the Special Purposes Leases Act 1953 (NT) (“Special Purposes Leases Act “) or the Crown Lands Act 1992 (NT) (“the Crown Land Act”).  These pieces of land are known colloquially as the “Alice Springs town camps”.

3                          The applicant brings the proceeding as a representative party pursuant to the provisions of Part IVA of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court of Australia Act”).  The group members to whom the proceeding relates are occupants under tenancy agreementsof houses in the Alice Springs town camps with incorporated Housing Associations which have been granted Special Purposes Leases in perpetuity or leases in perpetuity under the Special Purposes Leases Act or the Crown Lands Act of land in the town camps.  The group members are concerned that the Minister intends to make the proposed decision prior to 4 August 2009 without giving them reasonable, proper or appropriate notice of the proposed decision or affording them the opportunity to be heard in respect of how their rights and interests may be affected by the proposed decision.  They claim that a breach of the rules of natural justice has occurred or is likely to occur in connection with the conduct of the Minister leading up to the decision. 

4                          The issue which the applicant seeks to have determined in this proceeding is whether the power of the Minister to give the notice under s 47(1) of the NER Act is conditioned on the giving of reasonable, proper and appropriate notice to the occupants of land the subject of the notice as persons whose rights, interests and legitimate expectations will be affected by the proposed decision and whether such exercise of the power without giving the occupants such notice is beyond the power and jurisdiction of the Minister. 

5                          Accordingly, they seek an order pursuant to s 16(2) of the ADJR Act or pursuant to s 39B(1) and 1A(c) of the Judiciary Act directing the Minister to refrain from making a decision under s 47(1) of the NER Act until such time as she has given reasonable, proper and appropriate notice of the proposed decision to each of the group members and given them the opportunity to be heard in respect of how their rights and interests may be affected by the proposed decision.

6                          The relief sought in the present application is interlocutory relief preserving the status quo until the principal proceeding can be heard and determined by the Court.

7                          If the Minister makes the decision foreshadowed in her letter, it will be a decision to which the ADJR Act applies.  By virtue of s 6(1)(a) of that Act if a person is engaging or proposes to engage in conduct for the purpose of making a decision to which the Act applies a party aggrieved by that conduct may apply to the Court for an order of review in respect of the conduct on the ground, inter alia, that a breach of the rules of natural justice has occurred, is occurring or is likely to occur, in connection with the conduct.  That provision is a mirror image of s 5(1) of the ADJR Act which gives a person aggrieved by a decision to which the Act applies a right to apply to the Court for an order of review on the ground that a breach of the rules of natural justice occurred in connection with the making of the decision.  Section 16(2) of the ADJR Act gives the Court a discretion to make an order directing any party to refrain from doing an act.

The Second Proceeding

8                          In proceeding VID 558 of 2009 the applicants seek declaratory and injunctive relief restraining the fourth respondents (“the Housing Associations”) from entering into 40 year sub-leases of certain land (the Alice Springs town camps) of which they have a leasehold interest in perpetuity with the second respondent, The Executive Director of Township Leasing (“the Director”) in respect of which proposed sub-leases the third respondent, Northern Territory of Australia (“Northern Territory”) is a party.  The Director is established under s 20B of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (“Aboriginal Land Rights Act”).  The Director’s functions include, if the Minister has agreed to a request under s 20CA(2) in relation to a lease and the Commonwealth intends to enter into the lease, to enter into the lease on behalf of the Commonwealth and administer the lease.

9                          The second proceeding is brought by the applicants as representative parties pursuant to the provisions of Part IVA of the Federal Court of Australia Act.  The group members to whom the second proceeding relates and who are the parties represented are the same persons who are represented in the first proceeding, namely persons who:

(a)        are residents in, or have been granted rights of occupancy of, houses in the Alice Springs town camps under tenancies entered into individually by them with the Housing Associations;

(b)        who are members of one of the Housing Associations which are incorporated under the Associations Act 2003 (NT)(“the Associations Act”) or the Corporations (Aboriginal and Torrens Strait Islander) Act 2006 (Cth) (“the Aboriginal Corporations Act”). 

10                        In the second proceeding the first applicant Barbara Rachel Shaw is a member and tenant of the twelfth fourth respondent Mt Nancy Housing Association Inc.  The second applicant is a member and tenant of the tenth Housing Association.  The third applicant is a member and tenant of the second Housing Association.  The fourth applicant is a member and tenant of the fourth Housing Association.  The fifth applicant is a member and tenant of the thirteenth Housing Association.  The sixth applicant is a member and tenant of the eighth Housing Association.  The seventh applicant is a member and tenant of the sixth Housing Association.  The eighth applicant is a member and tenant of the eleventh Housing Association.  The ninth applicant is a member and tenant of the fifth Housing Association.  The tenth applicant is a member and tenant of the first Housing Association.  The eleventh applicant is a member and tenant of the third Housing Association.  The twelfth applicant is a member and tenant of the ninth Housing Association.  The thirteenth applicant is a member and tenant of the seventh Housing Association.  The fourteenth applicant is a member and tenant of the fifteenth Housing Association.

11                        It appears that the ninth and fourteenth fourth respondent Housing Associations and the Irklancha Atwacha Association Inc (not a respondent) want the town camps which they manage to be acquired compulsorily. 

12                        Pursuant to the provisions of s 20CA of the Aboriginal Land Rights Act, if the Housing Associations are considering granting sub-leases of the Alice Springs town camp land to the Commonwealth they may request the Minister to direct the Director to enter into sub-leases on behalf of the Commonwealth and administer the sub-leases.

13                        Pursuant to the provisions of s 47 of the NER Act the Minister may, on behalf of the Commonwealth, give the Northern Territory a notice specifying, relevantly for present purposes, the land on which are situated 17 town camps in and around Alice Springs:  Pt 4 of Sch 1 cl 69.  By virtue of s 47(3) all rights, titles and interests in land that is so specified are, subject to ss 48 and 51 of the NER Act (not presently relevant) vested in the Commonwealth and freed and discharged from all other rights, titles and interests (save for certain rights not presently relevant).

14                        The applicants allege that the Minister has required each of the Housing Associations to request, and then to grant, a 40 year sub-lease of the land in respect of which each of them holds a leasehold interest in perpetuity to the Director to which sub-lease the Northern Territory is a party and in respect of which the Minister was to agree under s 20CA of the Aboriginal Land RightsAct.  The applicants allege further that if the Housing Associations do not enter into such sub-leases with the Director the Minister has threatened to give a notice to the Northern Territory under s 47 of the NER Act to vest the land in respect of which the Housing Associations hold a leasehold interest in perpetuity in the Commonwealth free and discharged of all rights and interests in the land including all rights of the group members to live in the houses they occupy on such land pursuant to tenancy agreements.  The applicants allege further that the Minister has given, or intends to give, a notice to agree to the sub-leases under s 20CA(3) of the Aboriginal Land Rights Act.

15                        The applicants allege that:

(a)  the proposed sub-leases are contrary to the interests of the members of each of the Housing Associations as a whole;

(b)  the resolutions of the executive of each of the Housing Associations to request and/or agree to grant the sub-leases is a breach of the fiduciary duties they owe as members of the executive to each of the Housing Associations and/or to their members as a whole to act bona fide in the interests, and for the benefit, of the members as a whole;

(c)  if the Housing Associations give effect to the terms of the sub-leases that will constitute a breach of the contractual rights of the group members as a whole under the Constitutions of each of the Housing Associations;

(d)  if the Housing Associations give effect to the terms of the sub-leases in a manner that is intended to enable a termination of existing rights of occupancy of group members in the land by notice by the Director in the absence of default by an occupant that will constitute a breach of the contractual rights of the group members having rights of occupancy;

(e)  the requirement by the Minister to the Housing Associations to enter into the sub-leases involves the Minister in the breaches of fiduciary duty and breaches of contract to which I have referred and this requirement will result in her engaging in the tort of procuring or inducing those breaches;

(f)   in requiring the Housing Associations to request and enter into the sub-leases the Minister is threatening improperly to exercise a power under s 47 of the NER Act that she does not currently possess, by reason of the matters alleged in the first proceeding (VID 547 of 2009) and by reason of that matter constitutes the tort of intimidation;

(g)  the Minister is threatening to exercise her statutory powers under s 20CA of the Aboriginal Land Rights Act and/or s 47 of the NER Act improperly, excessively and for an improper purpose.

These allegations are challenged by the Minister.

16                        The group members to whom the second proceeding relates are occupants of houses in town camps in Alice Springs.  Each of them has entered into a tenancy agreement with a Housing Association such as, in the case of Ms Shaw, Mt Nancy Housing Association.  That Association has been granted a Special Purposes Lease from the Northern Territory which commenced on 23 August 1976 and is in perpetuity. 

17                        If the Minister proceeds with the proposal to which I have referred the tenancy agreements under which Ms Shaw and the other group members occupy their present homes will be terminated and extinguished.

18                        Ms Shaw lives with her two daughters in House 5 on the Mt Nancy town camp under a tenancy agreement dated 27 August 2003.  Ms Shaw’s tenancy agreement is headed “Tenancy Agreement Permanent”.  The tenancy is unlimited in point of time and according to its terms, in para 15, the only ground upon which the Association can give Ms Shaw notice to quit the premises is if she breaks any of the rules of the Association.  She pays rent currently of $123 per fortnight and also pays for services such as electricity, excess water and telephone.  Around 200 people have entered into agreements similar to Ms Shaw’s agreement relating to other houses in the Alice Springs town camps and of the order of 1,800 to 3,000 people live as family units in those houses.  From time to time, visitors from remote communities come to stay in the town camps.  Each town camp comprises a largely distinct Aboriginal community based on language and kinship groups. 

19                        Fifteen Housing Associations control the Alice Springs town camps.  Each of the Housing Associations has been granted a Special Purposes Lease or Crown Lease from the Northern Territory which commenced on various dates.

20                        The Tangentyere Council Inc (“the Council”) has 18 members being the Housing Associations that control the Alice Springs town camps.  The central objects of the Council are:

“To relieve the poverty, sickness, destitution, distress, suffering, misfortune or helplessness of Aboriginal people in Central Australia and in particular:

in recognition of the severe problems encountered by Aboriginal people in Central Australia, and the unfortunate circumstances in which they find themselves”.

21                        The Constitution of the Council provides that the Council shall advance its central objects by a number of specified means which include:

“Alleviating the plight of Members of Member Communities, their families and visitors by improving their housing, living conditions and general standard of living”.

22                        The Council acts as agent for the Housing Associations in relation to all matters relating to the sub-leasing of the land which comprises the town camps.  The Council manages around 200 houses in the town camps. 

23                        Each of the Housing Associations is incorporated and is governed by a Constitution substantially in the same terms and to the same effect.  The Constitution of the Mt Nancy Housing Association Incorporated is dated 30 November 2006.  Clause 2.2 of that Constitution states that the objects and purposes of the Association include:

(a)  to relieve the poverty, sickness, destitution, distress, suffering, misfortune or helplessness of Aboriginal people in Central Australia; and

(b)  advance its objects by means including the following:

(i)         by obtaining land, housing and other community facilities for the Members of the Association;

(ii)        acting and/or promoting programs in accordance with Aboriginal law which advance the living conditions, health, economic status, education, training and well being of the Members.

24                        The Council takes the view that leases such as are held by Ms Shaw are periodic tenancies terminable on 42 days notice under the Residential Tenancies Act 1999 (NT).  However, Ms Shaw contends that when the proper matrix of facts is considered the tenancy agreement is only terminable without the agreement of the tenant on breach.  It is not necessary to resolve this issue on the present application.

25                        Clause 2.2(a) of the proposed sub-lease provides:

“The Association grants to the EDTL [the Director] a sublease of the Living Area, subject to and concurrent with any Registered Interests and any Rights of Occupation, commencing on the Commencement Date, for a term of 40 years (Term)”.

26                        Clause 6 of the proposed sub-lease provides:

“SIHIP Investment

(a)        The Territory must expend $100,000,000 under SIHIP inclusive of SIHIP Project Costs on the upgrade and Construction of houses and Infrastructure in the Alice Springs Living Areas within 5 years of the commencement of the first Alice Springs Living Area Sublease.  The Parties acknowledge and agree that $100,000,000 inclusive of SIHIP Project Costs represents the entire amount that the Territory must expend pursuant to the Alice Springs Living Area Subleases (including this Sublease), regardless of how many Alice Springs Living Area Subleases are entered into.

(b)        The expenditure in clause 6(a) is conditional upon the Territory having access arrangements to the Alice Springs Living Areas (whether by way of leases, licences or other arrangements) that are suitable to it, to permit it to carry out the upgrade and Construction of houses and Infrastructure.

(c)        Nothing in clause 6(a) requires the Territory to make any expenditure under SIHIP on the upgrade and Construction of houses and Infrastructure in the Living Area.

(d)        The Territory must ensure that the SIHIP consultation processes occur in respect of the Alice Springs Living Areas in relation to the expenditure pursuant to clause 6(a).

(e)        All upgrades and Construction of houses under SIHIP will be in accordance with the SIHIP Design Guidelines.

(f)        The Territory must provide a report (SIHIP Annual Report) within 6 months of the end of each Sublease Year in which the Territory has expended money under SIHIP on the upgrade and Construction of houses and Infrastructure in the Alice Springs Living Areas in accordance with clause 6(a).  The SIHIP Annual Report must include details of expenditure under SIHIP on the upgrade and Construction of houses and Infrastructure in the Alice Springs Living Areas during the previous Sublease Year.”

27                        It appears that a substantial majority of the residents of the town camps object to the Housing Associations losing control over the town camps. 

The Background to both proceedings

28                        There is a considerable history and background to the steps which the Australian Government is seeking to take in order to carry out development works in the Alice Springs town camp areas.  I propose to refer only to those aspects of the background which bear upon the issues presently before me.  For present purposes, the narrative commences in May 2006 when the then Federal Minister for Indigenous Affairs, the Hon Mal Brough and the then Northern Territory Chief Minister, Clare Martin announced a joint $30 million commitment to improve living conditions in the Alice Springs town camps.  In March 2007 Minister Brough announced an additional $50 million to progress the implementation of the Alice Springs town camps strategy. 

29                        In April 2007 Minister Brough wrote to Mr Tilmouth, the Executive Director of the Council and said that under the Australian Government’s offer for the provision of funding, the Northern Territory Government would manage the Alice Springs town camps’ housing as public housing and that he had agreed to the current holders of town camp leases retaining those leases, subject to their agreement to sub-lease residential areas to the Northern Territory Government for no less than 99 years without conditions.  The Council resolved to decline this proposal which it called the Government’s “$60 million conditional offer”.

30                        On 21 June 2007, the Australian Government announced what it called a national emergency response for the protection of indigenous children in Northern Territory communities.  In the Minister’s press release it was stated, inter alia,

“The Northern Territory Government will be expected to:

·     Resume all special leases over town camps in the major urban areas where lease conditions have been breached.  The Australian Government will act in this area if the NTG fails to do so”.

31                        The NER Act came into operation on 17 August 2007.

32                        In September 2007 new arrangements for the provision of essential services and infrastructure in Northern Territory town camps were established by a Memorandum of Understanding between the Australian Government and the Northern Territory Government.  The “Strategic Indigenous Housing and Infrastructure Program” (“SIHIP”) was established in accordance with the Memorandum of Understanding and has since been subsumed into the National Partnership Agreement on Remote and Indigenous Housing. 

33                        On 17 June 2008 the Minister wrote to the Council offering up to $50 million from SIHIP to be used for infrastructure and housing in the Alice Springs town camps on the basis that sub-leases for a minimum of 40 years were granted over the town camps to the Government.  On 25 June 2008 the Council Executive wrote to the Minister informing her that the Council Executive had passed a resolution agreeing to negotiate sub-leases within the framework set out in the Minister’s letter.

34                        On 10 July 2008 an Agreed Work Plan was signed by the Minister, the (then) Northern Territory Minister for Housing and the President of the Council who signed for and on behalf of the 15 town camp Housing Associations.  The Agreed Work Plan provided for 40 year sub-leases to be granted by the Housing Associations to the Director within six months.  

35                        The working group constituted by representatives from the Northern Territory Government, the Council and the Housing Associations was established to implement the Agreed Work Plan.  Thereafter a number of meetings were held to implement the work plan.

36                        On 3 November 2008 the Council released a media statement in which it confirmed its commitment to grant 40 year sub-leases to the Australian Government in accordance with the Agreed Work Plan.  Thereafter negotiations ensued in relation to settling the terms of the proposed sub-leases.

37                        On 8 January 2009 the Australian Government extended the deadline for reaching agreement on the terms of the sub-leases from the Housing Associations to the Director to 28 February 2009.  The Australian Government fixed that date as the deadline in order to enable construction under SIHIP to commence in 2009.

38                        On 9 January 2009 the Minister wrote a letter to each of the Housing Associations urging them to progress consideration of the sub-leases as soon as possible.  The Minister noted that:

“An integral element of this program [SIHIP] is the prior grant of long term sub-leases over the town camp areas to provide security for the Government’s investment and to ensure that housing reforms can be implemented effectively”.

The Minister also noted:

“In the first three years of the 40 year sublease all tenancy management and housing repairs and maintenance would be the responsibility of Territory Housing.  Territory Housing would undertake these functions in consultation with each of the Housing Associations.  Territory Housing has also agreed to subcontract Tangentyere Council as an agent, subject to Tangentyere meeting strict performance requirements.  After the initial three year period, a competitive tender process would be held to allow other service provides to compete for housing services.  This proposal would set out in the Agreed Work Plan which was signed on your behalf in July 2008”.

39                        Negotiations over the terms of the sub-leases continued and, between 2 February 2009 and 5 March 2009, the Government representatives conducted consultation meetings with representatives of the various Housing Associations in relation to the proposed sub-leases.  The first applicant, Barbara Shaw, attended the meeting held at the Mt Nancy camp on 4 March 2009. 

40                        Between 11 and 14 March 2009, Australian Government and Northern Territory Government officers visited the town camps and provided information to residents about the Australian Government’s proposal.  The officers also distributed detailed fact sheets to residents in simple English. 

41                        On 20 March 2009 the Minister wrote to the Council agreeing to a further extension of the negotiation period for the purpose of agreeing on the terms of the proposed sub-leases until 4 May 2009.  In the letter the Minister said:

“As I understand the situation, Tangentyere Council has completed a first round of consultations with each of the 15 Housing Associations and has convened a major meeting for 24 March 2009 to consider the proposed subleases.  Officers from my Department and from the Northern Territory Government attended each of the consultation meetings and in addition have been distributing information and discussing the proposed agreement with residents of the various town camps.  Reports of this activity indicate that information about the proposed subleases and related arrangements is new to many town camp residents notwithstanding that the Agree Work Plan was signed on their behalf in July 2008 and that Tangentyere Council has been negotiating the subleases on behalf of the Housing Association for more than eight months.

I am very disappointed by the lack of progress especially given the impact which a delay has on the capacity to include Alice Springs within the 2009 Strategic Indigenous Housing and Infrastructure Investment Program (SIHIP) work schedule.  It is essential that we move quickly on land tenure to ensure that SIHIP can proceed quickly.

However, I am concerned that the representatives of the Housing Associations and other residents of the town camps be provided an additional opportunity to be informed of the substantial benefits which will flow from the proposed subleases and associated government investment.

For this reason, I am prepared to agree to a further extension to the negotiating period to allow for a further round of consultations with each of the Housing Associations.  This extension would be on the basis that a final and definite response on the proposed sublease be provided in writing by close of business on 4 May 2009.  In order to assist with these further consultations, I again offer the assistance of my officials and pass on a similar offer from the Northern Territory Government.  In addition, Minister Anderson and I propose to be available for a meeting with the Tangentyere Council Executive, Housing Association representatives and any other interested town camp residents on Friday 24 April 2009 so that we may explain in person the benefits of agreeing to the subleases.”

42                        Thereafter the Council and Government officials conducted a second round of Housing Association consultations in the town camps between 30 March 2009 and 22 April 2009.  As occurred with the first round of consultations, Australian Government and Northern Territory Government representatives attended and detailed fact sheets in simple English were again distributed to residents. 

43                        The meeting with the Minister scheduled for 24 April 2009 was rescheduled for 23 April 2009.  On 21 April 2009 the Council sent an email to the Minister attaching an agenda for the meeting on 23 April 2009.  The agenda included an update on sub-lease negotiations.  The persons present at the meeting included Council representatives, Housing Association representatives and interested town camp residents. 

44                        On 24 April 2009 the Council wrote to the Minister telling her that the Housing Associations had declined the Government’s offer and pointing out what were the sticking points. 

45                        On 1 May 2009 the Minister wrote to the Council with the revised offer in relation to the proposed sub-leases.  The offer included a commitment to increase housing and infrastructure investment in the Alice Springs town camps to $100 million. 

46                        During the week beginning 11 May 2009, Government officials conducted a fact sheet drop throughout the town camps to ensure the Housing Associations and residents were aware of the details of the Government’s revised offer in relation to the proposed sub-leases.  Negotiations continued thereafter in relation to the terms of the proposed sub-leases and on 21 May 2009 the Council wrote to the Minister saying that it would not endorse the Government’s offer.  It also noted that the Housing Associations had rejected the Government’s offer.

47                        On 24 May 2009 the Minister announced the Australian Government’s consideration of the compulsory acquisition of the Alice Springs town camp leases under s 47(1) of the NER Act.  On the same day the Minister wrote letters to the Council and to each of the fifteen Housing Associations informing them of the Government’s consideration of compulsory acquisition of the town camp leases.  The letters were headed “Proposal to give a notice under section 47 of the Northern Territory National Emergency Response Act 2007”.  By the letters the Minister gave notice that she was considering giving the Northern Territory a notice under s 47(1) of the Act in respect of land covering some 16 town camps in and around Alice Springs which are some of the camps referred to in cl 69 of Pt 4 of Sch 1 of the NER Act.  The letters then stated:

“If I give such a notice, the notice would take effect not earlier than 6 July 2009.

If I give such a notice, the acquisition would be for the purpose of improving the wellbeing of Aboriginal people on the Land by implementing a method of delivering housing which improves the standard of housing, improves the infrastructure supporting that housing and addresses the social problems on the Land, and for related purposes.

After any acquisition, the Commonwealth or the Northern Territory or one of their authorities will be responsible for providing housing and infrastructure.  It is possible that the Commonwealth may lease or transfer the Land to the Northern Territory or a Northern Territory authority to enable it to be primarily responsible for providing and improving the housing and infrastructure.

After any acquisition, current residents in the camps will be able to continue to reside on the Land, subject to any new residential tenancy arrangements.

If I give a notice, the legal effect would be to vest in the Commonwealth all rights, titles and interests in the Land, subject to the following.  The non-extinguishment principle (within the meaning of the Native Title Act 1993) would apply to any native title affected by the vesting, by operation of s 51 of the NTNER Act.  The vesting would not include rights, titles and interests in relation to minerals, petroleum or gas, by operation of s 47(9) of the NTNER Act.  Existing registered easements or statutory easements would be preserved, by operation of s 48 of the NTNER Act.”

48                        The letters included an invitation for the recipients “and any other persons who may be affected” to be heard on the proposal by way of written submissions to be submitted by 29 June 2009.  The letter also stated that the Minister would be available to meet with interested persons in Alice Springs at 10.30 am on 29 June 2009 to hear views on the proposal.  The letter indicated that the Minister would take into account any views expressed at this meeting.  The Minister attached to the letter the factors and material she considered to be relevant to her consideration of the proposal.

49                        Subsequently, the Council prepared a submission to the Minister in relation to her proposal to give the Northern Territory notice under the NER Act to acquire compulsorily the town camps.  In the submission the Council set out its reasons why the contemplated compulsory acquisition of the leaseholds over the town camps would be poor policy and would be detrimental to the well-being of the people who lived in the town camps.  The Council also presented a submission that management of the tenancies in the town camps and the housing in them would be more effectively carried out by a community based affordable housing company than by Territory Housing.

50                        On 4 June 2009 the Minister sent a further letter to the Council and the Housing Associations in which she revised the timetable of her consideration of compulsory acquisition to ensure that all affected parties would have sufficient opportunity to consider the proposed acquisition and to provide the Minister with their views.  The deadline for the written submissions was extended to 28 July 2009.  The Minister also proposed to have a second oral hearing in Alice Springs on 20 July 2009. 

51                        Ms Caroline Edwards who has been the lead Australian Government negotiator in relation to the proposed 40 year sub-leases over the Alice Spring town camps has given evidence that during May and June 2009 Australian Government officials conducted an information drive and leaflet drop in the Alice Spring town camps regarding the Minister’s consideration of compulsory acquisition.  Ms Edwards has produced a document summarising the consultations with residents.  It is apparent from that document that only a limited number of tenants in some of the town camps were spoken to.  No-one was available to speak to the officials in a number of the town camps.  It does not appear from the document that in the oral discussions which were held with the tenants that they were given specific details about the consequences of the Minister’s exercise of power under s 47 of the NER Act, namely that the leases in perpetuity would be extinguished as would the rights of the tenants to occupy their houses under the existing tenancy agreements. 

52                        The leaflets or fact sheets which were distributed did not provide such information either.  The first line of the fact sheets stated “A possible compulsory acquisition – what does this mean for people on Town Camps?”.  The fact sheet does not set out what would be the consequences of such compulsory acquisition in relation to the rights which would be extinguished.  However, the second last page of the fact sheet did state:

“One thing that people do need to know is that if the Housing Associations still say no to the 40 year lease offer and the Minister decides to go ahead with the acquisition then the Government will change the leases on the land and the housing associations will not have a lease on that land anymore”.

On the last page of the fact sheet it was stated that the Minister was sending a departmental staff member to the Alice Springs Indigenous Co-Ordination Centre on 20 July 2009 to meet with town camp residents and that people could come and tell this person their story. 

53                        On 23 June 2009 a departmental officer sent an email either to the Council or to one of the Housing Associations advising that the Minister would be visiting Alice Springs and would like to meet with town camp residents and others who might be affected to listen to their views on the possible compulsory acquisition of the town camps.  The email said that the Minister was hosting a meeting at the Centralian College on 29 June 2009 from 10.30 am to 12.30 pm and that buses would be available to provide transport for town camp residents to and from the venue.  Leaflets were also distributed at the town camps and posters were displayed at the Council premises relating to this meeting. 

54                        Further, from 23 to 29 June 2009 the Central Australian Aboriginal Media Association radio in Alice Springs broadcast a community service announcement on behalf of the Australian Government informing the public that people affected by the Australian Government’s consideration of compulsory acquisition of the town camps leases would be able to meet with the Minister on 29 June 2009 in Alice Springs.  Between 25 and 29 June 2009 the announcement gave specific details of arrangements for the 29 June meeting.

55                        On 29 June 2009 the Minister attended the meeting.  Interpreters were provided at the meeting.  A transcript of that meeting was provided in evidence.  I will only extract those parts of the transcript of the meeting which I regard as particularly relevant to the issues presently before the Court.  At the start of the meeting the Minister said:

“This is an important meeting today and it is really about me listening to your point of views.  So if there are questions of detail there will be people from the department who will answer them if you have any questions but more than anything it is about me wanting to come to listen to your point of view of what we have proposed as you know we have been having many discussions over more than 12 months … But we have come to the point where I am now considering compulsory acquisition of the leases and in the process of thinking about that I want to hear directly from you about your views in that regard.”

56                        Ms Edwards said

“Hello everyone as the Minister said today is about giving people an opportunity to talk to her directly about the decision she is going to have to make about whether to take over the Alice Springs town camps to make them better for the people who live there so it’s a chance to hear all your views about that.” 

57                        At an early point in the meeting Ms Edwards read to the meeting a copy of the notice which was sent to the Housing Associations on 24 May 2009.  It will be recalled that that letter included the following:

“After any acquisition current residents in the camps will be able to continue to reside on the land subject to any new residential tenancy arrangements.  If I give a notice the legal effect would be to vest in the Commonwealth all rights, titles, interests in the land subject to the following …”

58                        There was nothing stated in that letter nor in anything stated at the meeting by either the Minister or Ms Edwards that after the acquisition the tenancy agreements between the tenants and the respective Housing Associations would be extinguished.  Although that inexorably followed from the matters referred to in the letter, that extinguishment was not made clear to the people at the meeting.  However, after reading the letter to the meeting Ms Edwards said that:

“If the Minister were to decide to go ahead it would be for the purpose of making things better and its planned that there should be improved infrastructure, power, sewage etc.  Fixing up houses and building new houses and managing houses better including looking after them better and implementing new fair rules about who lives in the houses.  If the Minister were to go ahead with the proposal current residents would be able to stay in their houses and if the Minister were to go ahead reasonable compensation would be paid to the Housing Associations who hold the current leases.”

59                        A number of persons at the meeting asked questions of the Minister and the departmental officials and those questions were answered.  In the course of the meeting Ms Edwards said:

“Just to clarify, the proposal is that people would not have to leave the Town Camps even if they are working and if the means testing comes in we don’t expect that anyone that is living there now would have to move.” 

A person at the meeting then asked

“Can you promise that?”

and Ms Edwards responded:

“I’m just looking at the Territory Housing people, yes that is what is proposed.  People can stay.”

60                        Ms Shaw attended the meeting.  Ms Shaw did not receive the notice and does not recall having been told either during the meeting with the Minister or at any other time that if the Minister gives the proposed notice under s 47(1) of the NER Act it will terminate her current right of occupancy of her house.  According to her solicitor, Ms Shaw is not aware of, and has never been told, what the content of the terms and conditions of “any new residential tenancy arrangements” referred to in the Minister’s letter might be. 

61                        On 3 July 2009 Gilbert + Tobin, the solicitors for the Council sent Ms Edwards a copy of a marked up form of sub-lease which the Council was prepared to recommend to the Housing Associations for execution.  On 17 July 2009 Mr Tilmouth, the Executive Director of the Council sent a letter to the Minister seeking the opportunity to have further negotiations in relation to the terms of the proposed sub-lease.

62                        On 20 July 2009, Departmental officials conducted a further meeting with affected persons at the Alice Springs Indigenous Co-Ordination Centre.  Only two persons attended the meeting.

63                        On 24 July 2009 the Minister wrote to the President of the Council rejecting Mr Tilmouth’s request for further negotiations in relation to the terms of the proposed sub-lease.  The Minister stated that the time for negotiations was now over and that there would be no further revisions to the sub-lease.  In the letter the Minister observed that if the proposed sub-leases could not be finalised this would be part of her consideration regarding the possible acquisition of the town camps. 

64                        The solicitor for the Council informed Ms Shaw’s solicitor on 29 July 2009 that he had received instructions from the Council to accept the alternative offered by the Minister and that he was in the process of arranging execution of the required sub-leases.  He also said that he had instructions to deliver the executed documents to the Minister by 31 July 2009. 

65                        On 29 July 2009 the Minister announced in a media release that 16 Alice Springs town camps and the Council had signed up to a 40 year sub-lease agreement with the Australian Government. 

66                        It appears that a critical element to the Australian Government investing in the Alice Spring town camps under the National Partnership Agreement and SIHIP is to ensure that it has sufficiently secured tenure to support its investment.

67                        The Australian Government’s position was expressed in the following terms by Ms Edwards:

“The Government has made as assessment that conditions in the Alice Springs town camps are unacceptable and that previous arrangements for investing in and managing the areas have not been successful.  The low standard of housing and service delivery in the town camps has led to a decision by the Australian and Northern Territory Governments to do things differently in the future and especially by means of the principles for housing reform set out in the National Partnership for Remote Indigenous Housing.

Under the National Partnership and in accordance with pre-existing Australian Government and Northern Territory Government policy, secure land tenure is a requirement before major investment in housing and infrastructure can proceed.  This is designed to ensure Government is accountable and responsible for long-term repairs and maintenance programs and for best practice tenancy management.  Governments must be able to ensure that major investment (such as the $100 million commitment in Alice Springs) will be used for the intended purpose – that is for improving housing for Aboriginal people and to ensure that the assets continue to be applied for that purpose throughout the life of the asset.”

68                        On 31 July 2009 the solicitor for the applicants retained Professor Jon Altman, the Director of, and Professor at, the Centre for Aboriginal Economic Policy and Research at the Australian National University to express an expert opinion as to how current Aboriginal residents and occupants in the town camps might be likely to be affected by the change proposed by the Minister and his grounds for that view.  Professor Altman provided an opinion in which he points out that for the initial period of 2.5 to 3 years of the sub-leases the occupancy of the tenants and residents will be managed by a Commonwealth officer who will not be directly representative of the residents and will not have to have regard to the purposes and objects of the Housing Associations.  The Director will provide housing services in such manner as he deems appropriate provided that the purpose is within those purposes of the head leases. 

69                        Professor Altman concludes that the current aboriginal residents and occupants of the town camps are likely to be affected negatively by the proposed changes in the arrangements.  If they are accountable to the Director or the Director’s agent, they are more likely to be evicted and possibly homeless than if accountable to their own Housing Association or the Council.  This is because the objects of Housing Associations are broader and more charitable than any that are likely to be adopted by a housing authority. 

70                        This evidence of Professor Altman has little bearing on the legal issues which arise for consideration at this interlocutory stage and, apart from noting it, I have given it little weight when considering the reasons which follow.

The Issue which arise for consideration

71                        It is important to recognise that at this stage of both proceedings, as I am dealing with applications for interlocutory relief, I do not have to make any final determination in respect of the issues raised before the Court.  Consistently with established authority I am required to determine whether there is a serious question to be tried in relation to the causes of action raised by the applicants in each proceeding.  If I am so satisfied and am satisfied that the applicants will suffer irreparable harm in respect of which damages are not an adequate remedy if an injunction is not granted, it is then necessary to determine whether the balance of convenience favours the grant or refusal of the injunctive relief sought.  I am therefore following and applying the process identified by Mason ACJ in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153:

“In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.”

Consideration of the first proceeding

72                        In relation to the first proceeding the applicants submitted that a breach of the rules of natural justice has occurred or is occurring or is likely to occur in connection with the proposal of the Minister to give the notice pursuant to s 47(1) of the NER Act.  The tenants of the Housing Associations will be significantly affected by the proposed decision so that the Minister is obliged to observe the principles of natural justice or procedural fairness and ensure that the tenants are made aware of the manner in which their rights will be affected by the notice and are given an opportunity to make submissions to the Minister as to whether or not she should give a notice before she finally makes a decision. 

73                        The applicants submitted that the power conferred on the Minister by s 47 of the NER Act to issue a notice which had the effect of vesting all rights and interests in the land to which the notice related with the Commonwealth (see s 47(3)), was subject to a duty imposed upon the Minister to accord procedural fairness or natural justice to the applicants.  It was submitted that that duty had not been observed in the present circumstances as the tenants had not been made fully aware of the consequence of the notice on their rights to occupy the land which they sub-leased from the Housing Associations and that they had not been given an opportunity to make submissions to the Minister in respect of her proposal to give such a notice. 

74                        The Minister submitted that the power given to the Minister pursuant to s 47 was not constrained by any obligation to accord natural justice or procedural fairness to the tenants whose rights would be affected, indeed extinguished, by the giving of a notice pursuant to s 47.  The Minister acknowledged that generally one would expect that a power of the kind contained in s 47 would be subject to a duty to accord procedural fairness and that the Commonwealth’s power to acquire land by compulsion contained in the Lands Acquisition Act 1989 (Cth) (“Lands Acquisition Act”) was generally subject to an obligation to notify affected parties.  The Minister then submitted that the NER Act was enacted with a view to a need to respond urgently to a national emergency and that s 47 was enacted as a separate power and that the usual procedural provisions in the Lands Acquisition Act were expressly put aside in relation to acquisitions under s 47.  In this context the Minister referred to s 50(2) of the NER Act.  The Minister submitted that s 50(1) and (2) of the NER Act excluded written and unwritten natural justice obligations.  The Minister submitted that s 50(1) was an unambiguous statement that the s 47 power was not constrained, even by an unwritten law that might otherwise support an implication for a natural justice obligation.  The Minister submitted that it was plain that the legislative expressly turned its mind to, and excluded, procedural fairness that was expressed in written law. 

75                        I consider that there is a serious question to be tried that this is not the proper construction and effect of s 50.  Put another way, I consider there is a serious question to be tried that the provisions of s 47 of the NER Act taken with the provisions of s 50 do not oust the obligation cast upon the Minister to accord natural justice or procedural fairness to the tenants who will be affected by the proposed notice.  I consider it is arguable that s 50 is concerned with laws whether written or unwritten which are inconsistent with the provisions of Div 1 and Div 2 of the Act.  I consider that it is clearly arguable that the principles of natural justice or procedural fairness are not inconsistent with the exercise of power to give a notice under s 47.  As the applicants submitted, it is arguable that natural justice is an adjunct to the exercise of that power.

76                        It is a well established principle that a statute will not be construed as excluding the operation of common law principles such as the obligation to accord natural justice or procedural fairness in appropriate circumstances unless there is a clear and unambiguous statement or inference to that effect to be extracted from the relevant legislation.  In Kioa v West (1985) 159 CLR 550 Mason J said at 584 - 585:

“The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.

…

Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute.  In Mobil Oil Australia Pty. Ltd v Federal Commissioner of Taxation (1) Kitto J. pointed out that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on ‘the particular statutory framework’. What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting: Reg. v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (2); National Companies and Securities Commission v News Corporation Ltd (3).

…

When the doctrine of natural justice or the duty to act fairly in its application to administrative decision-making is so understood, the need for a strong manifestation of contrary statutory intention in order for it to be excluded becomes apparent. The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? It will be convenient to consider at the outset whether the statute displaces the duty when the statute contains a specific provision to that effect, for then it will be pointless to inquire what the duty requires in the circumstances of the case, unless there are circumstances not contemplated by the statutory provision that may give rise to a legitimate expectation. However, in general, it will be a matter of determining what the duty to act fairly requires in the way of procedural fairness in the circumstances of the case. A resolution of that question calls for an examination of the statutory provisions and the interests which I have already mentioned.”

77                        With that background I consider that there is a serious question to be tried that the Minister has not accorded the tenants natural justice or procedural fairness at this point in time in relation to her proposal to give a notice under s 47.  The proposal to give the s 47 notice was first raised or articulated clearly by the Minister in the letter of 24 May 2009.  Prior to that time there had been numerous consultations and dialogue between the Minister and the representatives of the Housing Associations and the tenants but that was in relation to the proposal that the Housing Associations enter into 40 year sub-leases. 

78                        Whether the Minister has accorded the tenants natural justice or procedural fairness in relation to her proposal to give a notice under s 47 is to be determined by her conduct and the conduct of her department on and after 24 May 2009.  I consider there is a serious question to be tried that the media release, the letters sent by the Minister to the Council and to the Housing Associations, the meetings held subsequently with some of the tenants and other persons and the leaflet distributions have not been sufficient to discharge the Minister’s obligation to bring to the attention of all the tenants the manner in which the proposed notice will affect their rights.  There is also a serious question to be tried that they have not been given a proper opportunity to make submissions to the Minister.  I am not satisfied that a process or procedure has been adopted whereby sufficient attempts were made to bring these matters to the attention of all the tenants.  The evidence before me is insufficient to satisfy me that all the tenants have been given an opportunity to make submissions to the Minister and have had fairly and squarely put before them the consequences of the Minister giving a notice pursuant to s 47.  The leaflets do not make it clear that the tenants’ rights to occupy their properties by way of sub-leases will be extinguished forever.  Further, this was not made clear at the meeting on 29 June 2009 or in the leaflets that were distributed in the town camps. 

79                        There has not been an explicit statement communicated to the tenants that the tenants’ rights to occupy their properties by way of sub-leases would be extinguished by the Minister giving the notice.  The statement in the Minister’s letter of 24 May 2009:

“After any acquisition current residents in the camps will be able to continue to reside on the land subject to any new residential tenancy agreements”

does not make it clear to the tenants that their individual tenancy agreements such as apply to Ms Shaw (which is expressed to be “permanent”) would be extinguished.  I again refer to Ms Edwards statement at the meeting on 29 June 2009 (par [58] above) that:

“If the Minister were to go ahead with the proposal current residents would be able to stay in their houses …”.

As I have noted earlier no explicit statement was made that the current residents’ tenancy rights would be extinguished forthwith on the giving of the notice.

80                        I accept the Minister’s submission that the content of natural justice is to be determined by reference to the circumstances of the case:  Kioa v West [supra].  In my view, there is a serious question to be tried that the content of the natural justice principle in the circumstances of this case requires that the tenants be told directly, and not indirectly through the Housing Associations or the Council, that a consequence of the giving of the notice is the extinguishment of their rights to occupy their houses.  The Minister submitted that a decision to acquire land by compulsion might in the ordinary case be regarded as having grave consequences for a person holding an interest in the land but that in the present case the evidence disclosed that the practical effect of a decision by the Minister to acquire the land pursuant to s 47 was substantially different to the ordinary case.  The Minister submitted that the reality was that there would only be a beneficial impact on the living conditions of the town camp inhabitants.  The difficulty with that submission is that it ignores, or it does not take into account, the fact that there will be an extinguishment of tenants’ rights of occupation of their houses.  To submit, as the Minister did, that “subject to new tenancy agreements being necessary, no other legal rights of the applicant or group members are impacted”, is to ignore the fact that enforceable rights are being replaced with an opportunity to negotiate a new tenancy agreement which opportunity depends upon agreement between two parties. 

81                        The next inquiry to be made is whether the balance of convenience is in favour or against the grant of an injunction.  I am satisfied that the balance of convenience is in favour of granting an injunction restraining the Minister from giving a notice pursuant to s 47 until such time as the Court can be satisfied that:

(a)  the tenants have been given clear and unambiguous information that if the notice is given their tenancy rights over the land they occupy pursuant to their sub-leases will be extinguished forever;  and

(b)  the tenants have been given the opportunity to make submissions to the Minister after they have been given this information. 

82                        I do not intend to prescribe the process which the Minister should undertake in order to discharge her obligations to accord the tenants natural justice or procedural fairness.  What I am disposed to do is to grant an injunction restraining the Minister from giving a notice pursuant to s 47 until further order.  Such an injunction will enable the Minister to take such steps as she may consider, or she may be advised, will bring to the attention of the tenants the consequences of the giving of the notice and will give them an opportunity to make submissions to her.  The injunction will be cast in terms restraining the Minister from giving a notice until further order.  It will not be cast in terms restraining the Minister from taking any steps in and towards the giving of the notice. 

83                        I consider that the balance of convenience is in favour of the grant of an injunction restraining the Minister from giving the notice.  If a notice is given the tenants’ rights (as well as those of the Housing Associations) are extinguished forever.  In those circumstances, the tenants can be required to vacate the houses they occupy forthwith. 

84                        The Minister submitted that if at trial it was ultimately determined that the Minister’s decision to give a notice and the giving of the notice resulted in a failure to give the tenants natural justice or accord them procedural fairness then the decision would be a nullity and would be set aside.  It was submitted that in those circumstances tenants’ rights would still remain.  That may arguably be so, although much depends upon the ultimate construction of the provisions of Div 1 and Div 2 of the NER Act.  In any event, that submission does not take into account any circumstances which might occur in the intervening period before final judgment.  If the Minister is restrained from giving a notice then no inconvenience or disadvantage accrues to the Minister.  It may result in delay in the processes which the Minister wants to undertake in relation to the upgrading of the town camps but that is dependent on a number of factors which I cannot fully explore at this stage.  In those circumstances I consider that an interlocutory injunction should go until further order in the terms I have proposed.

Consideration of the second proceeding

85                        I turn to the second proceeding and the causes of action relied upon by the applicants.  It is a well accepted principle that it is not open to me to grant an interlocutory injunction in the air in the absence of a cause of action to be adjudicated upon at trial.  It was made clear in Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 that an interlocutory injunction should only be granted by a court in support of a known cause of action upon which the applicant for the interlocutory injunction wishes to rely at trial.

86                        The applicants relied upon the following causes of action:

(a)        The proposal by the Housing Associations to enter into the sub-leases constitutes oppressive conduct and conduct not in the interests of the members of the Housing Associations as a whole giving rise to causes of action under s 109 of the Associations Act and s 166 of the Aboriginal Corporations Act.  The 40 year sub-leases were not in the interests of the members of the Housing Associations as a whole because the Associations were giving away their control of the management of the tenancies of the individual residents to the Commonwealth which was outside the objectives of each Housing Association.  This control was being given away for $1 per year and there was no guarantee by the Minister that any part of the proposed expenditure of $100 million in respect of the town camps would be allocated to any particular or specific Housing Association.  It was further submitted that the 40 year sub-leases did not protect the current rights of occupancy of the tenants under their tenancy agreements;

(b)        The constitutions of the Housing Associations constituted contracts with their members and the entry of the Housing Associations into the sub-leases would be contrary to the objectives of the Housing Associations and would therefore constitute a breach of their constitutions which the Minister was inducing;

(c)        The decision to enter into the 40 year sub-leases was ultra vires the Housing Associations;

(d)        The management committee of each Housing Association was in breach of the fiduciary duty they owed to the Association and its members by agreeing to enter into the sub-leases.

(e)        The entry by the Housing Associations into the sub-leases constituted a breach of contract as the sub-leases would constitute a breach of the individual tenancy agreements of the tenants of the Housing Associations;

(f)         The Minister was engaging in the tort of intimidation by unlawful means in that she was intimidating the Housing Associations to enter into the sub-leases when she had not accorded procedural fairness to the individual tenants;

(g)        Section 20CA of the Aboriginal Land RightsActhad not been complied with as the Housing Associations were required to make a request to the Minister to enter into the sub-leases but that request had to be voluntary.  The requests made by the Housing Associations were not voluntary.

87                        In the circumstances as they developed in the course of the hearing I do not consider that it is necessary to reach a conclusion whether there is a serious question to be tried in relation to each of the causes of action relied upon by the applicants.  I am satisfied that there is a serious question to be tried that if they now enter into the sub-leases the Housing Associations will not be acting in the interests of their members as a whole thereby giving rise to a cause of action under s 109 of the Associations Act and s 166 of the Aboriginal Corporations Act.  Under their Constitutions the only way a person can become a member of the relevant Housing Association is if that person is a resident of the town camp which is situated on the land which is comprised in the perpetual lease or Crown Lease held by the Association. 

88                        As was pointed out in Szencorp Pty Ltd v Clean Energy Council Ltd (2009) 69 ACSR 365 at 378-379:

“The ‘contrary to the interests’ provision now contained in subpara (d) of s 232 [of the Corporations Act 2001 (Cth)] has a separate and distinct area of operation from the ‘oppression’ provisions in subpara (e) of s 232.  The manner in which a company is being administered and in which its affairs are conducted may fall within the category of conduct contrary to the interests of the company’s members as a whole although it may not be described as oppressive, unfairly prejudicial to, or unfairly discriminatory against members of the company”

 

(Citations omitted)

89                        The Housing Associations have made it clear that the reason or, at least the main reason, why they propose to enter into 40 year sub-leases with the Director is to avoid the alternative of the Minister exercising power under s 47 of the NER Act to give notice which will have the effect of extinguishing forever the interests of the Housing Associations in the relevant pieces of land.  The attitude of the Housing Associations on this issue was made abundantly clear in a letter from their solicitors to the Minister on 29 July 2009 which was, inter alia, in the following terms:

“As you know, and as we are now instructed to make clear, the Housing Associations are prepared to enter into the proposed 40 year subleases notwithstanding your rejection of their many requests for the inclusion of terms and conditions designed to further protect the ongoing interests of the Housing Associations, tenants and residents.  The Housing Associations have agreed to enter into the subleases for the simple reason that you have threatened them with compulsory acquisition if they do not enter into the subleases.  As you know, the loss of tenure to these lands is something that is abhorrent to the Housing Associations and they could not run the risk that it might occur.  It is in the overriding best interests of the Associations and their members that their interests in these lands be maintained rather than completely foregone.  Acquisitions of these land would not allow the Associations or members to have any input into protecting their rights or interests.

Indeed, this ultimate risk of compulsory acquisition has hovered in the background throughout the protected negotiations.  That risk was made abundantly clear when you issued notice that you were considering these compulsory acquisitions.  Likewise, your letter to Tangentyere dated 24 July 2009 makes it perfectly clear that unless the subleases are entered into in the terms attached to your letter then you will proceed in relation to the potential compulsory acquisitions.”

90                        Counsel for the Housing Associations submitted that it was in the overriding best interests of the Housing Associations and the tenants of the Housing Associations to retain their perpetual leases and not to have their titles extinguished by compulsory acquisition.  He submitted initially that the Housing Associations were prepared to grant the sub-leases to the Director for two reasons.  Firstly, because it appeared that it was the only way that Commonwealth funding would be provided.  Secondly, because it was the only way to avoid compulsory acquisition.

91                        I would point out that until the Minister raised the spectre of compulsory acquisition of the land on 24 May 2009 and for some time thereafter the Housing Associations were not prepared to enter into the sub-leases in the terms laid down by the Minister.

92                        As counsel for the Housing Associations submitted:

“… the housing associations and their members have only taken the painful decision to agree to these subleases in the form demanded by the government, because of the government’s threat that otherwise it will compulsorily acquire”.

It follows from this submission that were it not for the proposal by the Minister for compulsory acquisition of the land the Housing Associations would not be entering into the sub-leases in their present form.  Counsel for the Housing Associations accepted this proposition and said they would be endeavouring to obtain further changes.

93                        He submitted that the sub-leases did not contain all the terms the Council and the Housing Associations wanted and, in his words, the sub-leases were “sub-optimal”.  I interpret these submissions to mean that if it were not for the threat of the Minister to give a notice under s 47 of the NER Act the Housing Associations would not be executing the 40 year sub-leases as they take the view that those leases in their present form are not in the interests of their members (who are tenants) as a whole.  Counsel for the Housing Association acceded to the proposition that if the Housing Associations were not constrained by the threat of the Minister acting under s 47, they would not be executing the leases. 

94                        As I propose to grant an interlocutory injunction restraining the Minister from giving a notice under s 47 to the Housing Associations until further order, the threat with which the Housing Associations are concerned is not operative and cannot be implemented.  In these circumstances there is no compelling need for them to enter into the sub-leases and if they do so, absent the existence of the threat, there is a serious question to be tried that they are not acting in the interests of their members as a whole. 

95                        If the Housing Associations do enter into the sub-leases, notwithstanding the existence of the threat irreparable harm will result for the members as they will be subject to a change in control of their tenancies which they want to resist and they will be subjected to provisions in the sub-leases which the Housing Associations consider should be altered or added to.

96                        It is therefore necessary to go to the second stage of the process and determine whether the balance of convenience is in favour of, or against the grant of an injunction restraining the Housing Associations from entering into the sub-leases.  The Minister submitted, in short, that if the injunction was granted there was a real possibility that the proposal of the Minister to spend substantial sums of money upgrading the town camps in relation to their houses and the infrastructure would be lost either for a considerable time or maybe for even longer.  If that occurs that is a loss which falls upon the Housing Associations and their members.  But, absent the threat from the Minister to give a notice under s 47 of the NER Act, the Housing Associations do not intend to enter into the sub-leases in their present form.  They had refused to do so until such time as the Minister’s proposal to give a notice under s 47 became a live issue. 

97                        It therefore follows that if the interlocutory injunction is granted the Housing Associations will achieve the result they want, that is that they will not be entering into the proposed 40 year sub-leases in their present form.

98                        I therefore propose to grant an interlocutory injunction until the trial of the proceeding restraining the Housing Associations, the Director and the Northern Territory from entering into sub-leases of the land the Housing Associations hold under Special Purposes Leases in perpetuity or Crown Leases pending the determination of the trial of the proceeding or further order.

99                        Having regard to the conclusion I have reached that there is a serious question to be tried that the proposal by the Housing Associations to enter into the sub-leases constitutes conduct not in the interests of the members of the Housing Associations as a whole thereby giving rise to causes of action under s 109 of the Associations Act and s 166 of the Aboriginal Corporations Act it is not necessary to give further consideration to the other causes of action relied upon by the applicants. 

100                      However, I wish to make an observation in relation to the allegation that the Minister was engaging in intimidation by unlawful means and that she was intimidating the Housing Associations to enter into the sub-leases when she had not given procedural fairness to the tenants.  It is an integer in the tort of intimidation that the relevant conduct be undertaken by unlawful means.  The applicants rely upon their submission that the Minister is threatening to give a notice pursuant to s 47 of the NER Act in circumstances where she has denied procedural fairness to the tenants.  I do not consider that such action by the Minister constitute unlawful means. 

101                      In Sanders v Snell (1998) 196 CLR 329 the majority of the High Court, in relation to the tort of interference with trade or business interests by unlawful means said at 342:

“There are, however, several reasons for concluding that a want of procedural fairness by the appellant before giving the direction that he gave to the Bureau is not conduct that can be characterised as ‘unlawful means’ for the purposes of this tort”.

I consider that this observation is equally applicable to the tort of intimidation.

102                      Further, as Senior Counsel for the Minister submitted, the tort of intimidation also requires establishing an intention on the part of the alleged tortfeasor to cause economic harm:  Northern Territory of Australia v Mengel (1994) 185 CLR 307 at 342.  There was no evidence before me of such an intention by the Minister.  Indeed the intention of the Minister is to the contrary. 

103                      The costs of the application for interlocutory relief in both proceedings will be reserved for further consideration.

 

I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate:

Dated:         6 August 2009

Counsel for the Applicant:	J Beach QC, D Harding and F Forsyth
Solicitor for the Applicant:	Human Rights Law Resource Centre Ltd
Counsel for the First and Second Respondents:	S Lloyd S.C. and L Clegg
Solicitor for the First and Second Respondents:	Australian Government Solicitor
Counsel for the Third Respondent:	S Brownhill
Solicitor for the Third Respondent:	Australian Government Solicitor
Counsel for the First to Eighth, Tenth to Thirteenth and Fifteenth Fourth Respondents:	P Gray S.C.
Solicitor for the First to Eighth, Tenth to Thirteenth and Fifteenth Fourth Respondent:	Gilbert + Tobin

Date of Hearing:	30 July, 4 August 2009
Date of Judgment:	6 August 2009