FEDERAL COURT OF AUSTRALIA

 

Shaw v Minister for Families, Housing, Community Services and Indigenous Affairs [2009] FCA 1397

ADMINISTRATIVE LAW – s 47 Northern Territory National Emergency Response Act 2007 (Cth) – whether the power of the Commonwealth Minister to give a notice under s 47 to compulsorily acquire prescribed areas is conditioned upon affording procedural fairness to the residents of the land the subject of the notice when they occupy parts of the land under tenancy agreements with the principal lessor – whether the Commonwealth Minister had afforded procedural fairness in the circumstances

ASSOCIATIONS AND CLUBS – associations incorporated under Associations Act (NT) – whether the associations will breach their constitutions, contractual duties owed to members and whether the Executive Committees will breach their fiduciary duties owed to members by entering into a transaction under which the land leased by the associations will be subleased to the Commonwealth for a period of 40 years (the proposed subleases) – whether execution of the proposed subleases is contrary to the interests of the associations – question of a fair reading of the constitutions of the associations – whether, upon a fair reading of their constitutions, it is an integral object of the associations that they continue to have direct control and management of particular lands leased by them in perpetuity, so that they may not enter into the proposed subleases

CORPORATIONS – corporations incorporated under Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) – whether the corporations will breach their rule books, contractual duties owed to members and whether the Executive Committees will breach their fiduciary duties owed to members by entering into a transaction under which the land leased by the corporations will be subleased to the Commonwealth for a period of 40 years (the proposed subleases) – whether execution of the proposed subleases is contrary to the interests of the corporations – question of a fair reading of the rule books of the corporations – whether, upon a fair reading of their rule books, it is an integral object of the corporations that they continue to have direct control and management of particular lands leased by them in perpetuity, so that they may not enter into the proposed subleases

 

PRACTICE AND PROCEDURE – representative proceedings – whether expedited proceedings would provide an efficient and effective means of dealing with the claims of group members – whether it would be in the interests of justice to order that proceedings no longer continue as representative proceedings

LANDLORD AND TENANT – tenancy agreements granted other than for specific fixed term – whether periodic tenancies

 

 

Northern Territory National Emergency Response Act 2007 (Cth) ss 4(3), 43, 44, 45, 46, 47, 48, 49, 50, 60, 132, cl 69 Pt 4 Sch 1
Federal Court of Australia Act 1976 (Cth) ss 33N, 33X(2)
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 6(1)(a), 16(2)
Judiciary Act 1903 (Cth) ss 39B(1), 39B(1A)(c)
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ss 20B, 20C, 20CA
Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) ss 42.1, 60.10(2), 69.1, 96.1, 99.5, 104.1, 104.5, 166.1, 166.5, 166.10, 274.1
Racial Discrimination Act 1975 (Cth) s 8
Corporations Act 2001 (Cth) s 125

Special Purposes Act (NT) ss 3, 4(1), 6(1), 9, 9A, 23(1)(a), 28
Associations Act (NT) ss 11, 54, 109, 110
Crown Lands Act (NT) ss 9, 38, 46

Mpwetyerre Aboriginal Corporation v Alice Springs Town Council (1996) 132 FLR 1 cited
Tangentyere Council Inc v Commissioner of Taxes (NT) (1990) 99 FLR 363 cited
Shaw v Minister for Families, Housing, Community Services and Indigenous Affairs [2009] FCA 844 cited
South Australia v Slipper (2004) 136 FCR 259 cited
Kioa v West (1985) 159 CLR 550 cited
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 cited
Salemi v MacKellar (No 2) (1997) 137 CLR 396 cited
Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 cited
Annetts v McCann (1990) 170 CLR 596 cited
Kioa v West (1985) 159 CLR 550 cited
Jarratt v Commissioner of Police for New South Wales (2005) 224 CLR 44 cited
Gerhardy v Brown (1985) 159 CLR 70 followed
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 cited
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 cited
Stewart v Goldman & Co Pty Ltd (1947) 64 WN (NSW) 155 cited
Rolled Steel Products (Holdings) Ltd v British Steel Corporation [1986] 1 Ch 246 cited
Cotman v Brougham [1918] AC 514 cited
Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146 cited
HA Stephenson & Son Ltd (In Liquidation) v Gillanders Arbuthnot & Co (1931) 45 CLR 476 applied
In Re K.L. Tractors Ltd (1961) 106 CLR 318 cited
ANZ Executors & Trustee Co Ltd v Qintex Australia Ltd (receiver and managers appointed) (1990) 8 ACLC 980 cited
Gambotto v WCP Limited (1995) 182 CLR 432 discussed
Allen v Gold Reefs of West Africa Ltd [1900] 1 Ch 656 discussed
Peters’ American Delicacy Co Ltd v Heath (1939) 61 CLR 457 cited
New South Wales Rugby League v Wayde (1985) 1 NSWLR 86 discussed
Wayde v New South Wales Rugby League Inc (1985) 180 CLR 459 discussed
Millar v Houghton Table Tennis & Sports Club Inc [2003] SASC 1 cited
Szencorp Pty Ltd v Clean Energy Council Limited (2009) 69 ACSR 365 discussed
Pettit v South Australian Harness Racing Club Inc (2006) 95 SASR 543 cited
Harlowe’s Nominees Pty Ltd v Woodside (Lakes Entrance) Oil Co N.L. (1968) 121 CLR 483 cited

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

 

VID 547 of 2009

 

 

BARBARA SHAW, GEORGE ROBERTSON JAMPITJINPA, GWEN GILLEN, WARREN TONKIN, MELISSA BROWN, MARLENE HAYES, KEVIN WIRRI, MAUREEN WILLIAMS, RACHEL JURRA, ROSEMARY RUBUNTJA, PAMELA LYNCH, CHERYL MCMILLAN, JANICE PALMER v MINISTER FOR FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS, EXECUTIVE DIRECTOR OF TOWNSHIP LEASING, NORTHERN TERRITORY OF AUSTRALIA and ILPARPA ABORIGINAL CORPORATION, KARNTE ABORIGINAL CORPORATION, ANTHEPE HOUSING ASSOCIATION INC, ILYPERENYE ASSOCIATION INC, INARLENGE COMMUNITY INC, MPWETYERRE ABORIGINAL CORPORATION, YARRENYTY ARLTERE ASSOCIATION INC, AKNGWERTNARRE ASSOCIATION INC, ANTHELK EWLPAYE ASSOCIATION INC, APER-ALWERRKNGE ASSOCIATION INC, MOUNT NANCY HOUSING ASSOCIATION INC, ILPERLE TYATHE ASSOCIATION INC, EWYENPER-ATWATYE ASSOCIATION INC

 

VID 558 of 2009

 

 

 

MANSFIELD J

26 NOVEMBER 2009

ADELAIDE (HEARD IN MELBOURNE)

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY 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:	MANSFIELD J
DATE OF ORDER:	26 NOVEMBER 2009
WHERE MADE:	ADELAIDE (HEARD IN MELBOURNE)

 

THE COURT ORDERS THAT:

 

1.         The application be dismissed.

 

2.         In the event that the respondent applies for costs of the application, the respondent do file and serve written submissions as to costs within 14 days of this date and the applicant do file and serve written submissions in opposition to the application for costs within 14 days of service of the respondent’s submissions, to the intent that the Court will determine any application for costs on the written submissions of the parties.

 

3.         There be liberty to either party to apply within 21 days of this date to seek to make oral submissions on any issue as to the costs of the application.

 

 

 

 

 

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.

 

IN THE FEDERAL COURT OF AUSTRALIA
northern territory DISTRICT REGISTRY
GENERAL DIVISION
	VID 558 of 2009
BETWEEN:	BARBARA SHAW, george robertson jampitjinpa, gwen gillen, warren tonkin, melissa brown, marlene hayes, kevin wirri, maureen williams, rachel jurra, rosemary rubuntja, PAMELA LYNCH, CHERYL MCMILLAN, JANICE PALMER Applicants
AND:	MINISTER FOR FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS First Respondent   EXECUTIVE DIRECTOR OF TOWNSHIP LEASING Second Respondent   NORTHERN TERRITORY OF AUSTRALIA Third Respondent   ILPARPA ABORIGINAL CORPORATION, KARNTE ABORIGINAL CORPORATION, ANTHEPE HOUSING ASSOCIATION INC, ILYPERENYE ASSOCIATION INC, INARLENGE COMMUNITY INC, MPWETYERRE ABORIGINAL CORPORATION, YARRENYTY ARLTERE ASSOCIATION INC, AKNGWERTNARRE ASSOCIATION INC, ANTHELK EWLPAYE ASSOCIATION INC, APER-ALWERRKNGE ASSOCIATION INC, MOUNT NANCY HOUSING ASSOCIATION INC, ILPERLE TYATHE ASSOCIATION INC, EWYENPER-ATWATYE ASSOCIATION INC Fourth Respondents
JUDGE:	MANSFIELD J
DATE OF ORDER:	26 NOVEMBER 2009
WHERE MADE:	ADELAIDE (HEARD IN MELBOURNE)

 

THE COURT ORDERS THAT:

 

1.         The application be dismissed.

2.         In the event that any respondent applies for costs of the application, that respondent do file and serve written submissions as to costs within 14 days of this date and the applicant do file and serve written submissions in opposition to any application for costs within 14 days of service of that respondent’s submissions, to the intent that the Court will determine any application for costs on the written submissions of the parties.

3.         There be liberty to any party to apply within 21 days of this date to make oral submissions on any issue as to the costs of the application.

 

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.

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

 

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

 

VID 558 of 2009

 

BETWEEN:

BARBARA SHAW, george robertson jampitjinpa, gwen gillen, warren tonkin, melissa brown, marlene hayes, kevin wirri, maureen williams, rachel jurra, rosemary rubuntja, PAMELA LYNCH, CHERYL MCMILLAN, JANICE PALMER Applicants

AND:

MINISTER FOR FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS First Respondent   EXECUTIVE DIRECTOR OF TOWNSHIP LEASING Second Respondent   NORTHERN TERRITORY OF AUSTRALIA Third Respondent   ILPARPA ABORIGINAL CORPORATION, KARNTE ABORIGINAL CORPORATION, ANTHEPE HOUSING ASSOCIATION, ILYPERENYE ASSOCIATION INC, INARLENGE COMMUNITY INC, MPWETYERRE ABORIGINAL CORPORATION, YARRENYTY ARLTERE ASSOCIATION INC, AKNGWERTNARRE ASSOCIATION INC, ANTHELK EWLPAYE ASSOCIATION INC, APER-ALWERRKNGE ASSOCIATION INC, MOUNT NANCY HOUSING ASSOCIATION INC, ILPERLE TYATHE ASSOCIATION INC, EWYENPER-ATWATYE ASSOCIATION INC Fourth Respondents

JUDGE:	MANSFIELD J
DATE OF ORDER:	26 NOVEMBER 2009
WHERE MADE:	ADELAIDE (HEARD IN MELBOURNE)

REASONS FOR JUDGMENT

THE NATURE OF THE TWO PROCEEDINGS

1                          These two proceedings arise out of actions of the Commonwealth Government and the Northern Territory Government in their implementation of the respective government policies in relation to the land colloquially known as the Alice Springs town camps.

2                          They arise out of concerns about the means by which the Commonwealth wishes to improve the living conditions in the Alice Springs town camps.  As long ago as 5 May 2006 the then Commonwealth Minister for Aboriginal Affairs and the then Northern Territory Chief Minister, announced a joint $30 million (subsequently in 2007 increased to $80 million) commitment to improve living conditions in those town camps.

3                          On 17 August 2007, the Northern Territory National Emergency Response Act 2007 (Cth) (the NTNER Act) came into force.  Pursuant to that Act, in September 2007, the Alice Springs town camp areas were declared “prescribed areas”.

4                          On 17 September 2007, the Commonwealth and the Northern Territory entered into a “Memorandum of Understanding between the Commonwealth Government and the Northern Territory Government: Indigenous Housing, Accommodation and Related Services September 2007” (the MOU).

5                          That enabled, and led to, the Strategic Indigenous Housing and Infrastructure Program (the SIHIP), which was subsequently subsumed into the National Partnership Agreement on Remote Indigenous Housing (the National Partnership Agreement) entered into between the Commonwealth, the States and the Northern Territory.  In June 2008, substantial funds were proposed to be made available from the SIHIP for the development of the Alice Springs town camps.  It was a condition of the availability of those funds that the Commonwealth be granted subleases over the town camp areas for a minimum period of 40 years, to obtain appropriate security for that investment.  Extensive negotiations then followed primarily between the Tangentyere Council Inc acting as agent for the Housing Associations (lessees in perpetuity of the town camps) and the Commonwealth.

6                          In May 2009, the commitment under the SIHIP to improving housing and infrastructure on the Alice Springs town camps was increased to $100 million.

7                          By 24 May 2009, it was apparent that negotiations on the proposed 40 year subleases had stalled.  The prospect of compulsorily acquiring the Alice Springs town camps land under s 47 of the NTNER Act was ventilated.

8                          That apparently prompted a renewal of negotiations about the proposed 40 year subleases.  Ultimately, on 29 July 2009 16 Housing Associations (the fourth respondents) agreed to sign the proposed 40 year subleases.

9                          The applicants in both proceedings are not merely interested in driving a hard bargain.  Fundamentally, their concern is that the Alice Springs town camps are effectively owned by Aboriginal people or their entities, and that they should not, and cannot, alienate their interests in that land either absolutely or by a 40 year sublease, so that they are giving away control of their land. 

10                        The general history of the town camps is set out in the judgment of Kearney J in Mpwetyerre Aboriginal Corporation v Alice Springs Town Council (1996) 132 FLR 1 at 4-5, and by Angel J in Tangentyere Council Inc v Commissioner of Taxes (NT) (1990) 99 FLR 363 at 366-70.  It is not necessary to espouse fully the accuracy of those descriptions.  The first and second respondents do not accept that they are fully accurate.  It is sufficient to accept that the applicants in each proceeding see their tenure in the Alice Springs town camps as of great significance, and as the product of the claim for land rights by Aboriginal people.

11                        The applicant in the first proceeding (VID 547/2009), Barbara Shaw (Ms Shaw), is a resident of one of the town camps under a “permanent tenancy agreement” with the Housing Association which leases the town camp land from the Northern Territory Minister for Lands and Housing. She is concerned about the proposed decision by the Commonwealth Minister for Families, Housing, Community Services and Indigenous Affairs (the Minister) to give a notice pursuant to s 47(1) of the NTNER Act to the Northern Territory in relation to the Alice Springs town camps, including the town camp of which she is a resident, which notice would have the effect of the Commonwealth compulsorily acquiring the town camps land (the proposed decision). I shall call that proceeding “the Section 47 proceeding”.

12                        Ms Shaw is concerned that the Minister intends to make the proposed decision without giving the residents in the Alice Springs town camps “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. Ms Shaw claims that a breach of the rules of procedural fairness has occurred or is likely to occur in connection with the conduct of the Minister leading up to the proposed decision.  She says that the proposed decision, if implemented, would remove her rights to enjoy the benefits of her tenancy agreement, and remove her legal right to continue to live in her house.

13                        The Section 47 proceeding was commenced as a representative party proceeding pursuant to the provisions of Part IVA of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). For the reasons set out below, I ordered that the Section 47 proceeding no longer continue as a representative party proceeding. That does not diminish the significance of Ms Shaw’s claim or of her concerns.

14                        Ms Shaw relies upon the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act), and ss 39B(1) and (1A)(c) of the Judiciary Act 1903 (Cth) to support her action. If the Minister makes a decision under s 47(1) of the NTNER Act, it will be a decision to which the ADJR Act applies. Section 6(1) of the ADJR Act allows a person aggrieved by a person proposing to engage in conduct for the purpose of making a decision to apply to this Court for an order of review in respect of the conduct on several grounds, including the ground relied on in this instance, namely, that a breach of the rules of natural justice has occurred, is occurring or is likely to occur, in connection with the conduct: s 6(1)(a) ADJR Act.

15                        Ms Shaw seeks orders pursuant to s 16(2) of the ADJR Act, and further or alternatively pursuant to ss 39B(1) and (1A)(c) of the Judiciary Act 1903 (Cth), directing the Minister to refrain from making the proposed decision until such time as the Minister has given “reasonable, proper and appropriate notice of the proposed decision to each of the group members and afforded each of them the opportunity to be heard in respect of how their rights and interests may be affected by the proposed decision” or alternatively, an order directing the Minister “personally to refrain from making the proposed decision”, as well as now a more refined declaratory order.

16                        In essence, Ms Shaw seeks to have determined the issue of whether the power of the Minister to give a notice under s 47(1) of the NTNER Act is conditioned upon affording procedural fairness to the residents of the Alice Springs town camps, and specifically, the giving of “reasonable, proper and appropriate” notice to the occupants of land the subject of the notice.

17                        She also claims that the Minister up to the time of the Section 47 proceeding has failed to give reasonable, proper and appropriate notice to her of the proposed decision, or to give her the opportunity to be heard in respect of how her rights and interests may be affected by the proposed decision.

18                        Other issues earlier raised by Ms Shaw are no longer pursued, in part because in any event the Minister proposes to give her, and other residents of the town camps, further opportunity to be heard on those matters.

19                        The applicants in the second proceeding (VID 558/2009) (the Residents) are residents of a number of the Alice Springs town camps. They include Ms Shaw.  Each is a member of a Housing Association, and lives on one of the town camps under a tenancy agreement with that Housing Association.

20                        The fourth respondents, the Housing Associations, are the various incorporated bodies which have a leasehold interest in town camps.  It is over that land that each of the Housing Associations proposes to grant to the Executive Director of Township Leasing (the Executive Director) a 40 year sublease relevantly in common terms.  The lawfulness of the proposed subleases is challenged.  I shall call that proceeding “the Sublease proceeding”.

21                        The Residents allege that the Minister has required each of the Housing Associations to grant, and the Housing Associations have agreed to grant, 40 year subleases of the Alice Springs town camps to the Executive Director for a nominal figure. The Residents further allege that, if the Housing Associations do not enter into the subleases, the Minister has threatened to give a notice to the Northern Territory under s 47 of the NTNER Act, effectively compulsorily to acquire the Alice Springs town camps, and to vest the land in the Commonwealth free and discharged of all rights and interests in the land including all rights of the Residents to live in the houses they occupy on the land under their tenancy agreements. The Residents allege further that the Minister has given, or intends to give, a notice to agree to the subleases under s 20CA(3) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the ALR Act).

22                        The Residents now claim that the proposed 40 year subleases are contrary to the interests of the members of the Housing Associations; that by giving effect to the subleases the Housing Associations will be breaching their Constitutions or their Rule Books and their Executive Committees will be breaching their fiduciary duties and contractual duties owed to the members and the Residents; and that the Minister by requiring the Housing Associations to enter into the subleases will engage in the tort of procuring or inducing those breaches.  Some earlier claims were not pursued at the hearing.

23                        The Sublease proceeding was also commenced as a representative party proceeding pursuant to the provisions of Part IVA of the FCA Act. The group members to whom the Sublease proceeding relates are occupants of houses in the Alice Springs town camps, who have each entered into a tenancy agreement with a Housing Association.  If the proposed 40 year subleases are entered into, they claim that the tenancy agreements under which the Residents and group members occupy their present homes in the Alice Springs town camps will be terminated and extinguished.  More fundamentally, they claim that the Housing Associations in the circumstances cannot agree to enter, and cannot enter, into the 40 year subleases because that would effectively alienate them from their interest in the town camps land.

24                        For reasons set out below, I ordered that the Sublease proceeding no longer continue as a representative party proceeding. That ruling does not diminish the significance of the Residents’ claims or their concerns.

THE PARTIES

25                        It is convenient first to describe the parties in both the Section 47 proceeding and the Sublease proceeding.

26                        All the Residents, including Ms Shaw, are members of one of the Housing Associations.  All live in one of the Alice Springs town camps.  Each has entered into a tenancy agreement with the Housing Association holding the lease over the relevant town camp, under which the Residents pay rent to the Housing Associations and pay bills such as electricity, telephone and excess water.  The terms of the tenancy agreements is a matter to which it will be necessary to refer later in these reasons.

27                        There are 18 Alice Springs town camps that are controlled by 15 different Housing Associations.

28                        Each of the Housing Associations is an incorporated body.  Three are incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (the CATSI Act), namely, Ilparpa Aboriginal Corporation, Karnte Aboriginal Corporation and Mpwetyerre Aboriginal Corporation.  The remainder are incorporated under the Associations Act (NT). The Housing Associations have perpetual succession pursuant to the terms of the Acts under which they were incorporated: s 11 Associations Act (NT) and s 42.1 CATSI Act. The Housing Associations have each been granted either a Special Purposes Lease or a Crown Lease in perpetuity over the particular Alice Springs town camp that it respectively manages by the third respondent, the Northern Territory.  Those leases were granted either under the Special Purposes Leases Act (NT) (the SPL Act) or the Crown Lands Act (NT) (the CL Act).  It will be necessary to refer to the Constitutions, Rule Books, and the Leases of each Housing Association later in these reasons.

29                        Three of the town camps are not involved in the Sublease proceeding.  They are the Irklancha Atwacha town camp, which is under the control of a Housing Association independent of the Tangentyere Council Inc, and the Whitegate and Namatjira town camps that are “unofficial” and operate on Northern Territory Crown land.

30                        Ms Shaw is a member of the Mount Nancy Housing Association Inc. The Mount Nancy Housing Association Inc was granted a Special Purposes Lease on 23 August 1976 over 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 (known as “Mount Nancy town camp”).  Ms Shaw lives with her two daughters in House 5 at the Mount Nancy town camp.

31                        The second applicant in the Sublease proceeding, George Robertson Jampitjinpa, is a member of the Anthelk Ewlpaye Association Inc. The Anthelk Ewlpaye Association Inc was granted a Special Purposes Lease on 12 August 1977 over the whole of the land described in Certificate of Title Volume 622 Folio 183 being Lots 1733, 3702 and 3704 Town of Alice Springs from plan S72/098 (known respectively as “Hoppy’s Camp town camp”, “Charles Creek town camp” and “The Village town camp”).  Mr Jampitjinpa lives with his wife in House 12 at Hoppy’s Camp town camp.

32                        The third applicant, Gwen Gillen, is a member of the Karnte Aboriginal Corporation Inc. The Karnte Aboriginal Corporation was granted a Crown Lease for the purpose of “Aboriginal Residential Housing Area” on 22 January 1993 over 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 (known as “Karnte town camp”). Ms Gillen lives with her husband at House 3 at the Karnte town camp.

33                        The fourth applicant, Warren Tonkin, is a member of the Ilyperenye Association Inc. The Ilyperenye Association Inc was granted a Special Purposes Lease on 10 July 1981 over 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 (known as “Old Timers town camp”). Mr Tonkin lives at House 2 at Old Timers town camp.

34                        The fifth applicant, Melissa Brown, is a member of the Ilperle Tyathe Association Inc. The Ilperle Tyathe Association Inc was granted a Special Purposes Lease on 28 December 1978 over 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 (known as “Warlpiri town camp”).  Ms Brown lives at House 7 at Warlpiri town camp. Ilperle Tyathe Association Inc also has control over an unofficial camp known as “Whitegate town camp” on that land. That camp has not been involved in the negotiations giving rise to the Sublease proceeding.

35                        The sixth applicant, Marlene Hayes, is a member of the Akngwertnarre Association Inc. The Akngwertnarre Association Inc was granted a Special Purposes Lease on 22 December 1977 over 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 (known as “Morris Soak town camp”). Ms Hayes lives at House 5 at Morris Soak town camp. The “Namatjira town camp” is an unofficial camp also on that land that has not been involved in the negotiations giving rise to the Sublease proceeding.

36                        The seventh applicant, Keven Wirri, is a member of the Mpwetyerre Aboriginal Corporation. The Mpwetyerre Aboriginal Corporation was granted a Special Purposes Lease on 3 April 1981 over the whole of the land described in Certificate of Title Volume 622 Folio 185 being Lot 2664 Town of Alice Springs from plan A000556 (known as “Abbotts town camp”).  Mr Wirri lives with his wife, two children and one grandchild at House 6 at the Abbotts town camp.

37                        The eighth (former) applicant, Vanessa Kruger, is a member of the Aper-Alwerrknge Association Inc. The Aper-Alwerrknge Association Inc was granted a Special Purposes Lease on 30 January 1979 over 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 (known as “Palmers town camp”).  Ms Kruger lives at House 1B at Palmers town camp. By consent order dated 23 September 2009, Ms Kruger was removed as an applicant. The fifteenth applicant, Janice Palmer, is a member of Aper-Alwerrknge Association Inc, and lives at House 5 at Palmers town camp. She was added as an applicant by consent order dated 23 September 2009.

38                        The ninth applicant, Maureen Williams, is a member of the Inarlenge Community Inc. The Inarlenge Community Inc was granted a Crown Lease for the purpose of “Aboriginal residential living area and ancillary” on 29 October 1993 over 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 (known as “Little Sisters town camp”). Ms Williams lives at House 6 at Little Sisters town camp, with her sister’s two daughters and their families.

39                        The tenth applicant, Rachel Jurra, is a member of the Ilparpa Aboriginal Corporation. The Ilparpa Aboriginal Corporation was granted a Special Purposes Lease on 23 July 1980 over 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 (known as “New Ilparpa town camp”). Ms Jurra lives at House 1 at New Ilparpa town camp.

40                        The eleventh applicant, Rosemary Rubuntja, is a member of the Anthepe Housing Association Inc.  The Anthepe Housing Association Inc was granted a Special Purposes Lease on 8 November 1976 over 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 (known as “Anthepe town camp”).  Ms Rubuntja lives at House 7 at Anthepe town camp.

41                        The thirteenth applicant, Pamela Lynch, is a member of the Yarrenyty Arltere Association Inc. The Yarrenyty Arltere Association Inc was granted a Special Purposes Lease on 27 January 1981 over 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 (known as “Larapinta Valley town camp”).  Ms Lynch lives at House 15 at Larapinta Valley town camp.

42                        The fourteenth applicant, Cheryl McMillan, is a member of the Ewyenper-Atwatye Association Inc. The Ewyenper-Atwatye Association Inc was granted a Special Purposes Lease on 14 February 1980 over 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 (known as “Hidden Valley town camp”).  Ms McMillan lives at House 36 at Hidden Valley town camp.

43                        On 12 August 2009, I gave leave to the applicants in the Sublease proceeding to discontinue that proceeding as against the ninth, fourteenth, sixteenth and seventeenth fourth respondents, namely Nyewente Association Inc, Ilpeye Ilpeye Aboriginal Corporation, Anhelke Aboriginal Corporation and Lhenpe Artnew Aboriginal Corporation.

44                        The Minister is the first respondent in the Sublease proceeding, and the respondent in the Section 47 proceeding.

45                        The Executive Director is the second respondent in the Sublease proceeding. The Executive Director is an officer of the Commonwealth, who has the statutory function of administering the proposed subleases, under s 20C(ac) of the ALR Act. 

46                        The Northern Territory is the third respondent in the Sublease proceeding.

47                        The Tangentyere Council Inc (the Council) is not a party to either proceeding.  It acted as agent for the Housing Associations in the negotiations giving rise to the Sublease proceeding. The Council is incorporated under the Associations Act (NT). The Council is governed by its Constitution as amended on 6 March 2001. Clauses 2 and 3 of its Constitution set out the objects and purposes of the Council as follows:

The central objects of Tangentyere 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.

Tangentyere shall advance its central objects by the following means:

a.         assisting Member Communities develop appropriate means of managing their communities, and in so doing to assist in alleviating the significant social and economic problems that exist within Member Communities.

b.         alleviating the plight of Members of Member Communities, their families and visitors by improving their housing, living conditions and general standard of living.

…

f.          providing for consultation and co-operation between Member Communities and Governments and specialised agencies engaged in the provision of services to Aboriginal people in order that Members may benefit in accordance with these objects.

48                        Clause 4 of the Constitution of the Council sets out the powers that the Council may exercise in order to achieve the central objects of the Council, and includes:

l.          to do all such other lawful things as are considered by the Executive or the Members at a Council Meeting or Annual General Meeting incidental or conducive to the attainment of the objects and purposes of Tangentyere.

49                        The Council has 18 members, being the Housing Associations that control the Alice Springs town camps (see clause 6.1 of the Constitution). The Council’s website (as at 29 July 2009) states that the Council

was established to assist Aboriginal people to gain some form of legal tenure of the land they were living on in order to obtain essential services and housing.

50                        The website notes that there are approximately 1,600 to 2,000 town camp residents, plus many visitors from remote communities.  The residential population of the town camps, including visitors, sometimes rises to about 3,500 people.  Each town camp comprises a largely distinct Aboriginal community based on language and kinship groups. The Council manages some 198 houses on the town camps.

51                        It is not in issue that the housing and infrastructure on the town camps is poor, and that permanent house occupancy on average is about 10 per house or somewhat higher in certain of the town camps. 

PRELIMINARY ISSUES

52                        Before dealing with the detailed background giving rise to these proceedings, it is convenient first to discuss two preliminary issues that were dealt with in these proceedings.

Interlocutory relief granted

53                        Applications for urgent interlocutory injunctive relief were made in both the Section 47 proceeding and the Sublease proceeding. Those applications were heard by Goldberg J on 30 July and 4 August, and were brought to preserve the status quo (in relation to the giving of a notice under s 47(1) of the NTNER Act) until the proceedings could be heard. The applicant sought that the Minister, the Northern Territory and various Housing Associations be restrained, whether by themselves, their servants or agents, from entering into or giving effect to a sublease of any part of the town camps land.

54                        His Honour granted the interlocutory relief on 6 August 2009, pending the hearing of the trial, effectively preserving the status quo until this matter could be heard: see Shaw v Minister for Families, Housing, Community Services and Indigenous Affairs [2009] FCA 844.

Whether the proceedings should continue as representative proceedings

55                        Both proceedings were commenced as representative proceedings pursuant to the provisions of Part IVA of the FCA Act.

56                        The applicant in the Section 47 proceeding is Ms Shaw. The group members were defined in the amended application at paragraph 2 as the persons who have been granted rights of occupancy of houses in the Alice Springs town camps under agreements entered into by them with the Housing Associations, which in turn have been granted Special Purposes Leases or Crown Leases in perpetuity over the town camps land.

57                        The applicants in the Sublease proceeding are set out above.  They are collectively referred to as the Residents. The group members to whom the Sublease proceeding relates are defined in paragraph 2 of the amended application as persons who:

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

(b)        are members of one of the Housing Associations which are incorporated under the Associations Act (NT) or the CATSI Act.

58                        Ordinarily, proceedings under Part IVA of the FCA Act require notification of certain matters to be given to the group members in relation to the proceedings pursuant to s 33X of the FCA Act.  Pursuant to s 33X(2) the Court may dispense with compliance with any or all of the notification requirements where the relief sought in a proceeding does not include any claim for damages. There is no claim for damages in either of the proceedings.  It was common ground that, if the proceedings were to continue as representative proceedings, the Court should make an order under s 33X(2).

59                        The Minister made an application pursuant to s 33N of the FCA Act for orders that both proceedings no longer continue as representative proceedings. Section 33N empowers the Court to make an order that a proceeding not continue as a representative proceeding where the Court is satisfied that it is in the interests of justice to do so because:

(a)        the costs that would be incurred if the proceeding were to continue as a representative proceeding are likely to exceed the costs that would be incurred if each group member conducted a separate proceeding; or

(b)        all the relief sought can be obtained by means of a proceeding other than a representative proceeding under this Part; or

(c)        the representative proceeding will not provide an efficient and effective means of dealing with the claims of group members; or

(d)        it is otherwise inappropriate that the claims be pursued by means of a representative proceeding.

60                        The Minister submitted that, given the expedited nature of the proceedings and the impending hearing dates, the representative proceedings would not provide an efficient and effective means of dealing with the claims of the group members, and therefore it would be in the interests of justice to order that the proceedings no longer continue in that form pursuant to s 33N(1)(c).

61                        The Minister accepted that, if successful, both proceedings would result in orders applying equally to areas of land beyond that parcel of land over which Ms Shaw has a tenancy agreement with the Mount Nancy Housing Association.  The Minister accepted that she would be bound, if final relief in terms of the orders sought in the Section 47 proceeding were granted, not to compulsorily acquire any of the land listed in the Schedule to the application being the town camps land (subject to the land leased by Ilpeye Ilpeye Aboriginal Corporation and Irklancha Alwacha Association, who have expressed their wish to have the land they currently lease from the Northern Territory acquired by the Commonwealth) without according procedural fairness to the Residents of the town camps.

62                        There was, in a practical sense, no need for either the Section 47 proceeding or the Sublease proceeding to be representative proceedings.  It was not suggested that any particular tenancy arrangement between a resident of a town camp and a Housing Association was so different as to require separate consideration.  Nor was it suggested that the leases of the Housing Associations were so different as to require separate consideration in that context.  The Minister accepted that the Section 47 proceeding, if confined to Ms Shaw as the applicant, would apply generally to all residents of the town camps.  She accepted that Ms Shaw had standing to bring that proceeding.  She also accepted the standing of the Residents to bring the Sublease proceeding. On the other hand, the timing of the hearing meant that the right of a group member to opt out of either of the proceedings under s 33J could not be extended to the group members.  There was no time to comply with s 33X(1) to give them that opportunity.  Whilst I have no reason to doubt that Ms Shaw’s concerns or the Residents’ concerns may be widely shared by the residents of the town camps, I did not think it was appropriate to assume that their claims had the informed consent of all of them, or indeed to assume that all of them necessarily agreed with those claims.  I was also mindful of the entitlement of any resident of a town camp who wished to do so to apply to be joined as an applicant in either or both of the proceedings.  There was also no reason to think that the potential evidence to be adduced in the proceedings would in any way be less available or less admissible if an order under s 33N(1) were to be made.

63                        Hence, on 12 August 2009, I ordered pursuant to s 33N, that the Section 47 proceeding and the Sublease proceeding should no longer continue as a representative proceedings.  On that date, I also gave leave to Ms Shaw and the Residents to apply under O 6 r 13 for an order that the applicants in either proceeding represent other concurrent interests.

THE EVENTS LEADING UP TO THE PROCEEDINGS

64                        What follows is simply a more or less sequential description of the events leading up to the proceedings.  It is not intended to convey any commentary upon those events.  Consequently, it is also quite comprehensive, as editing of the history of events might accidentally imply such a commentary.  I have not, however, included all the correspondence between Gilbert + Tobin on behalf of the Council and the Commonwealth concerning the detailed terms of the proposed subleases.

65                        Between April and May 2007, discussions took place between the Commonwealth, the Northern Territory and the Council representatives on behalf of the Housing Associations concerning the joint government commitment of funds to improve living conditions in the Alice Springs town camps, referred to at [2] above.

66                        On 18 April 2007, the then Commonwealth Minister for Aboriginal Affairs wrote to Mr Tilmouth, the Executive Director of the Council, and confirmed that, under the Commonwealth’s offer for the provision of funding, the Northern Territory 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 sublease residential areas to the Northern Territory for no less than 99 years without conditions.

67                        On 20 April 2007, Mr Tilmouth wrote to that Minister welcoming the offer, including allowing the Housing Associations to retain their leases over the town camps.  On 4 May 2007, he wrote to that Minister that the Executive of the Council, as the representative of the Housing Associations, agreed in principle to subleasing their lease areas to the Northern Territory for 99 years, on the basis of $70 million being spent over five years on the housing and infrastructure upgrades of the town camps.

68                        On 18 May 2007, Mr Tilmouth sent, via email, a statement from the then President of the Council, advising that after three days of deliberation, the Council had resolved to decline the Government’s “$60 million conditional offer” and indicating that the Council would not sign a Memorandum of Understanding. In that email, the Council welcomed the commitment of $60 million to the Alice Springs town camps, and appealed to that Minister to reconsider a proposed amendment to the Memorandum of Understanding as to how that commitment would be effected.

69                        A deadline for the Council to sign the proposed Memorandum of Understanding of 23 May 2007 was imposed, with the comment that otherwise the $60 million would be re-allocated to other areas of need.

70                        On 21 June 2007, the Commonwealth announced a “National Emergency Response” for the protection of indigenous children in Northern Territory communities. The catalyst for that announcement was the “Little Children are Sacred” Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse. It gave rise to what has been called “the Intervention” or “the Northern Territory Intervention”.  The Minister’s press release at that time said, 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.

…

Town camps:

The NT Government will be expected to:

Immediately resume all special leases issued by the Northern Territory Government to Aboriginal associations for the town camps in the vicinity of major urban centres where these leases are in breach of their lease conditions, (this would not require compensation) and if such action is not undertaken urgently, that the Australian Government introduce legislation to allow it to exercise the powers of the Northern Territory Government to resume the leases.

71                        The NTNER Act was passed on 17 August 2007. It relevantly came into effect the following day.

72                        Section 4(3) of the NTNER Act empowered the Minister to declare the Alice Springs town camp areas to be “prescribed areas” for the purposes of the NTNER Act.  By the Northern Territory National Emergency Response (Town Camps) Declaration 2007 (No 1), the Alice Springs town camps were declared “prescribed areas” by the Minister. It will be necessary to consider the consequences of the town camps being given that status later in these reasons.

73                        In September 2007, the MOU referred to at [4] above was entered into.  It enabled and led to the SIHIP, which was subsequently subsumed into the National Partnership Agreement, as set out at [5] above.

74                        Following the 2007 federal election, on 12 December 2007, the Council wrote to the Minister to request urgent discussion on aspects of the Northern Territory Intervention, and to restate the proposal presented by the previous government. On 18 March 2008, a meeting was convened between the Minister and the Council representatives (including their solicitors) to discuss the options for resuming negotiations for the development of the Alice Springs town camps.

75                        On 17 June 2008, the Minister wrote to the Council offering up to $50 million from the SIHIP to be used for infrastructure and housing in the Alice Springs town camps on the basis that the government be granted subleases for a minimum of 40 years over the town camps. In that letter, the Minister also noted that she would support the release of up to $5.3 million to the Council as a “transitional payment while SIHIP is established and prior to the grant of subleases”.

76                        On 25 June 2008, the Council wrote to the Minister informing her that the Council Executive had passed a resolution on that same day agreeing to negotiate subleases within the framework set out in the Minister’s letter of 17 June 2008.

77                        On 10 July 2008 a meeting took place in Alice Springs at which 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 15 Alice Springs town camp Housing Associations, and in his capacity as President of the Council.  The Agreed Work Plan provided for 40 year subleases to be granted by the Housing Associations to the Executive Director within six months (that is, by 10 January 2009).

78                        The Agreed Work Plan provided for a Working Group to be formed constituting representatives of each party to the Plan, and for that Working Group “to meet from time to time to check how this Work Plan is going and to review the Work Plan after 12 months to see what should happen next”.  The Council nominated its members of the Working Group, including those from the Housing Associations. The first Working Group meeting took place on 18 August 2008 in Alice Springs. Thereafter a number of meetings were held to implement the Agreed Work Plan.

79                        On 26 August 2008, the Commonwealth provided a draft of the proposed subleases to the Working Group members, including Council representatives.

80                        On 5 September 2008, a funding agreement between the Council and the Northern Territory was signed for a transitional payment of $5.3 million to address urgent house upgrades (and as envisaged in the letter of 17 June 2005, referred to in paragraph [75] above). As at the date of these proceedings, $2.915 million had been released as part of that stage 1 instalment.

81                        The second Working Group meeting was held in Alice Springs on 17 September 2008.  At that meeting, the Council presented an issues paper regarding the proposed subleases drafted by the Commonwealth, and requested a formal response to that issues paper.

82                        On 22 October 2008, the Minister wrote to the Council in response to the Council’s issues paper.

83                        On 27 October 2008, a meeting took place between the Minister and Council representatives in Alice Springs. On 31 October 2008 an email was forwarded to the Council with responses to questions asked of the Minister at that meeting.

84                        On 3 November 2008, the Council released a media statement entitled “Lease Negotiations Continue”, in which it confirmed the Council’s commitment to grant 40 year subleases to the Executive Director in accordance with the Agreed Work Plan. On that same day, the Branch Manager of the Land Reform Branch of the Indigenous Remote Service Delivery Group in the Commonwealth Department of Families, Housing, Community Services and Indigenous Affairs (Ms Edwards) wrote to the Working Group proposing the setting of a timeframe in order to meet the 10 January 2009 negotiation deadline. Thereafter negotiations ensued in relation to settling the terms of the proposed subleases.

85                        On 21 November 2008, Gilbert + Tobin, solicitors on behalf of the Council, wrote to Ms Edwards setting out the Council’s concerns. That letter said:

[O]ur client wishes to clarify that when they commenced these negotiations they did not intend to negotiate a sublease over existing houses or over the entire town camp lease areas. …

So far as our client is concerned, there are a number of fundamental issues which have been touched upon in negotiations to date and others which have not been properly explored at all.

86                        On 1 December 2008, a meeting was held with all the legal representatives of the negotiating parties to discuss the terms of the proposed subleases.

87                        On 5 December 2008, Ms Edwards wrote to Gilbert + Tobin in response to their letter of 21 November 2008. That letter noted:

You have also raised the importance of the Housing Associations having meaningful voices throughout the 40 year Subleases. … [T]he Agreed Work Plan anticipates that Alice Springs town camp residents, the Housing Associations and Tangentyere Council will have a role in the implementation of the Agreed Work Plan by four separate mechanisms … However, the Minister was clear that these roles do not extend to the governance of SIHIP, nor to control of housing policy and tenancy management.

88                        On 10 December 2008 the third Working Group meeting was held in Sydney.  At that meeting an extension of the negotiation period was discussed. There were no meetings of the Working Group after that meeting.

89                        On 17 December 2008, Gilbert + Tobin sent a “marked-up” draft of the proposed subleases, and a bundle of documents, including a proposed timeline for consultations with the Housing Associations regarding the proposed subleases. That proposed timeline indicated that the signing of the subleases would occur during June 2009 at the earliest.  On 18 December 2008, Ms Edwards responded.

90                        On 31 December 2008, Gilbert + Tobin sent a further document setting out their understanding of the proposed terms of the subleases, and an indication of the parties’ positions on each of the terms.  That document was proposed to be used during their consultations with the Housing Associations.

91                        In the meantime, on 29 November 2008, the National Partnership Agreement (referred to at paragraph [5] above) was entered into between the Commonwealth and the States and the Northern Territory, to take effect on 1 January 2009.  The outputs to be achieved by the National Partnership Agreement include (at paragraph 13):

(a)        supply of safe and adequate housing that will contribute to improved living standards for Indigenous people in remote communities;

(b)        robust and standardised tenancy management of all remote Indigenous housing that ensures rent collection, asset protection and governance arrangements consistent with public housing standards;

(c)        a program of ongoing maintenance and repairs that progressively increases the life cycle of remote Indigenous housing from seven years to a public housing-like life cycle of up to 30 years;

(d)        construction of new houses and ongoing repair and maintenance of houses in remote Indigenous communities;

…

(g)        progressive resolution of land tenure on remote community-titled land in order to secure government and commercial investment, economic development opportunities and home ownership possibilities in economically sustainable communities.

92                        Paragraph 15(a) of the National Partnership Agreement provides that the Commonwealth will have responsibility for, amongst other things:

funding for additional Indigenous housing and housing-related infrastructure in remote Australia, conditional on secure land tenure being settled, to significantly reduce overcrowding and homelessness with the aim that a significant level of unmet housing need is met by the end of this period.

93                        On 8 January 2009, the Commonwealth extended the deadline for reaching agreement on the terms of the proposed subleases to 28 February 2009.  The Commonwealth fixed that date as the deadline in order to enable construction under the SIHIP to commence in 2009.

94                        On 9 January 2009, the Minister wrote a letter to each of the Housing Associations urging them to progress consideration of the proposed subleases as soon as possible, so that construction could commence as soon as possible.  The Minister noted that:

An integral element of [the SIHIP] is the prior grant of long term subleases 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 providers to compete for housing services.  This proposal was set out in the Agreed Work Plan which was signed on your behalf in July 2008.

95                        On 23 January 2009, Ms Edwards wrote to Gilbert + Tobin, setting out the Commonwealth’s final response to each of the action items put forward by Gilbert + Tobin, and an amended outline document of the terms of the proposed subleases.

96                        On 27 January 2009, the Council’s housing officer, David Donald, sent a request to Ms Edwards that Commonwealth representatives be present at each of the Housing Association consultation meetings to discuss the proposed subleases. Ms Edwards responded on 30 January 2009 that Commonwealth representatives would be made available to attend.

97                        Between 2 February 2009 and 5 March 2009, consultation meetings were conducted with representatives of the various Housing Associations in relation to the proposed subleases. Mark Coffey, the Executive Director – Alice Springs Transformation Plan, attended with his staff on behalf of the Commonwealth. Northern Territory Government officers also attended. Detailed fact sheets were distributed in simple English. A summary of the meetings was prepared by the Commonwealth.  Ms Shaw attended the meeting held at the Mount Nancy town camp on 4 March 2009. 

98                        On 5 February 2009, a further draft of the proposed subleases was sent to Gilbert + Tobin by the Commonwealth.

99                        On 24 February 2009, the Council Working Group members wrote to the Minister, requesting an extension of the negotiation period beyond the 28 February 2009 deadline, but without nominating a specific date.  On 3 March 2009, Ms Edwards wrote to the Council Working Group members indicating that an extension of time was being considered.

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

101                      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 subleases until 4 May 2009, to allow for a second round of consultations with the Housing Associations.  In the letter the Minister expressed disappointment at the lack of progress in the negotiations and the impact the delays had on the ability of works to be included in the SIHIP’s 2009 work program. The Minister proposed a meeting between the Council’s Executive, Housing Association representatives and interested town camp residents on 24 March 2009 (which was subsequently rescheduled to 23 April) to assist with the progress of the negotiations. The letter relevantly 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 Agreed Work Plan was signed on their behalf in July 2008 and that Tangentyere Council has been negotiating the subleases on behalf of the Housing Associations 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 [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.

102                      On 21 March 2009, the Commonwealth and Northern Territory issued a press release regarding the extension to the negotiation deadline until 4 May 2009.

103                      On 27 March 2009, the Commonwealth and the Northern Territory finalised an Implementation Plan for the National Partnership Agreement.  The Implementation Plan deals with land tenure in the following terms:

LAND TENURE

The aim of progressive resolution of land tenure issues is to implement arrangements which facilitate and support maximum economic development and improved housing including private housing.

The first priority will be to ensure sufficient secure tenure to support substantial government investment in housing and infrastructure on Indigenous held land. The minimum requirements in this regard are:

·     government must have access to and control of the land on which construction will proceed for a minimum period of 40 years. A longer period has additional advantages;

·     the tenure arrangements must support the implementation of tenancy management reforms including the issue of individual tenancy management agreements between the Housing Authority and the tenant without requiring further consent from the underlying land owner. This capacity must also permit replacement of the housing service provider if required; and

·     native title issues must also have been resolved.

104                      Between 30 March and 22 April 2009, the second round of Housing Association consultations took place, and on 31 March 2009, Ms Edwards responded to certain inquiries of Gilbert + Tobin. As occurred with the first round of consultations, Commonwealth and Northern Territory Government representatives attended and detailed fact sheets in simple English were again distributed to residents. A further document responding to questions asked during the first round of consultations with the Housing Associations was also prepared and distributed during the second round of consultations. Those fact sheets included the following information:

The Government wants to lease this land from the Town Camp Housing Associations for 40 years. This is called a Sub-Lease Agreement. This will mean that the Town Camps will still own that Town Camp Lease but the Australian Government will take responsibility for all the infrastructure and houses and community land.

…

People can stay in control of community areas if they want to.

105                      On 21 April 2009, the Council forwarded to the Minister an agenda for the meeting in Alice Springs on 23 April 2009 and a brief update on the progress of the negotiations. The Council noted that at the conclusion of each Housing Association consultation, the Housing Association representatives had been asked by the Council to vote on acceptance of the Commonwealth’s offer, and that none of the Housing Associations had agreed to sign the offer to date.

106                      On 23 April 2009, a Special General Meeting took place at the Council’s offices in Alice Springs.

107                      On 24 April 2009, the Council wrote to the Minister, stating again that the Housing Associations consulted with to date had declined the Government’s offer. The Council also outlined in that correspondence the key “sticking points” in the offer. Part of that letter referred to the concern of one of the Housing Associations that any agreement to a 40 year sublease should involve the Housing Associations retaining “some key decision making powers”, and then set out what the Council understood the Minister’s response to that “sticking point” to be at the meeting held on 23 April 2009 as follows:

Your response to this was that you believed that this would undermine the sublease if granted, and as such would not be acceptable. We clearly hope that you reconsider this position. Our advice is that it would be extremely rare for a lease to be effectively granted with no conditions. Retaining a select band of key decision making responsibilities with the underlying Housing Associations we believe would not undermine the integrity of the sub-lease, but would in fact continue to empower residents to take responsibility for their own lives, something which is lacking in the public housing model that you are proposing.

108                      On 1 May 2009, the Minister wrote to the Council with a revised offer in relation to the proposed subleases, including a commitment to increase housing and infrastructure investment in the Alice Springs town camps as part of the SIHIP to $100 million. The Minister also referred to her decision to commence an Alice Springs Transformation Plan to address broader issues affecting Aboriginal people in the region. The letter also noted:

However, in order to meet your concerns I would also be prepared to entrench an additional consultation mechanism in the sublease document. This mechanism would comprise a tripartite forum comprised of an Australian Government, a Northern Territory Government and a Tangentyere Council representative. This forum would be required to meet quarterly to advise tenancy management issues. This approach would ensure that the Australian Government and Tangentyere Council work cooperatively with the Northern Territory to address any issues arising out of the new tenancy arrangements.

109                      The letter indicated that the Housing Associations would have until the close of business on 21 May 2009 to respond to the revised offer.

110                      On 2 May 2009, the Commonwealth and the Northern Territory issued a joint press release announcing the commencement of the Alice Springs Transformation Plan, including the commitment of up to $125 million.

111                      During the week beginning 11 May 2009, Commonwealth officers conducted a fact sheet drop throughout the Alice Springs town camps in relation to the Commonwealth’s revised offer.  This fact sheet was headed “The NEW Leasing Offer from the Australian Government” and relevantly stated:

·     The Australian Government would still like to lease the Town Camp land area from the Housing Associations for 40 years. The lease is so that the Government can look after the houses properly for people. …

·     This leasing offer is not about kicking people out of their homes in Town Camps. The Government wants to make the houses in Town Camps better and safer for the people who are living there. We don’t want people to end up living in the scrub or the river.

·     The Australian Government has given the Housing Associations more time to think about this new offer. But the Minister is asking for an answer by Thursday 21 May 2009.

112                      On 12 May 2009, the Minister wrote to the Council inviting them to nominate a representative for the Alice Springs Transformation Plan Joint Steering Committee.

113                      On 13 May 2009, the Council wrote to the Minister to address their remaining concerns prior to a meeting scheduled on 14 May 2009 in Canberra.

114                      On 14 May 2009, a meeting occurred between Council representatives, the Minister and Ms Edwards to discuss the remaining concerns in an effort to finalise the negotiations before the deadlines. On that same day, Ms Edwards sent to Gilbert + Tobin a further draft of the proposed subleases.

115                      On 18 May 2009, Gilbert + Tobin sent a proposal to Ms Edwards to revise the proposed subleases in the light of the issues raised in the Council’s letter of 13 May 2009 and as discussed at the meeting of 14 May 2009. On 20 May 2009, Ms Edwards responded to Gilbert + Tobin, addressing the key elements of the Council’s concerns.

116                      On 21 May 2009, the Council wrote to the Minister noting that Ms Edwards’ letter of 20 May 2009 made clear that further concessions on these key points would not be made, and that the Council would not endorse the Commonwealth’s offer. The Council also noted that the Housing Associations had rejected the Commonwealth’s offer, and attached an “All Camps Resolution” document which outlined the decisions of the respective Housing Associations to reject the offer.

117                      On 24 May 2009, the Minister announced the Commonwealth’s consideration of the compulsory acquisition of the Alice Springs town camps under s 47(1) of the NTNER Act by a media release. That media release stated:

Today I am announcing that the Australian Government is taking the first step towards compulsory acquisition of the Alice Springs town camps. …

This action is being considered as a last resort following the failure of Tangentyere Council to meet its commitments under the previously Agreed Work Plan for the town camps by the deadline of 21 May 2009.

118                      On the same day the Minister wrote a letter to the Council and to each of the 15 Housing Associations informing them of the Minister’s consideration of the possible compulsory acquisition of the town camps.  The letter was headed “Proposal to give a notice under section 47 of the Northern Territory National Emergency Response Act 2007”.  By the letter, the Minister gave notice that she was considering giving the Northern Territory Government a notice under s 47(1) of the NTNER Act in respect of the Alice Springs town camps land.  The further content of the letter is set out in [144] below.

119                      The letter 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.  The Minister’s letter of 24 May 2009 was of considerable significance in Ms Shaw’s contentions in the Section 47 proceeding.

120                      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 possible 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 meeting to receive views about it in Alice Springs on 20 July 2009. 

121                      During May and June 2009, Commonwealth officials conducted an information drive and leaflet drop in the Alice Spring town camps regarding the Minister’s consideration of compulsory acquisition.  Ms Edwards gave evidence about that process and produced a document summarising the consultations with residents.  It is apparent from that document that only some, but by no means a large number of, residents 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 any specific details about the consequences of the Minister’s exercise of power under s 47 of the NTNER 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, were discussed.  The evidence was that leaflets or fact sheets were distributed, and that posters were displayed at the Council premises. The flyers and posters were in evidence. The fact sheet was headed “A possible compulsory acquisition – what does this mean for people on Town camps?” The fact sheets said:

·     Because the Australian Government is worried about the people in Town Camps the Australian Government has now said that if the Housing Associations don’t agree to the lease offer then the Australian Government may decide to go ahead with an acquisition.

·     The Housing Associations can still say yes to the lease offer.

The fact sheet does not set out what would be the consequences of compulsory acquisition in relation to the rights which would be extinguished, but says on the third page:

·     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.

122                      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 Coordination Centre on 20 July 2009 to meet with town camp residents and that people could come and tell this person their story.  The fact sheet said that the Minister will

listen and read all these stories and she will make a careful decision. She will not make a decision before 4 August 2009 at the earliest about whether the Australian Government will work with the Northern Territory Government to go ahead with the acquisition.

123                      On 23 June 2009, the Alice Springs Indigenous Coordination Centre sent an email to the Council advising that the Minister wished to meet with town camp residents and other affected parties to listen to their views on the possible compulsory acquisition of the town camps, and advised that the Minister would be hosting a meeting on 29 June 2009, and that transport to and from the meeting would be provided. The email also advised that Government officials were available to provide further information at a free call telephone number or by email.

124                      From 23 to 29 June 2009, the Central Australian Aboriginal Media Association radio in Alice Springs aired a community service announcement on behalf of the Commonwealth to inform the public that people affected by the Minister’s consideration of compulsory acquisition of the town camps leases would be able to meet with the Minister on 29 June 2009 at Alice Springs, and gave details for that meeting.

125                      On 29 June 2009, the Minister attended the meeting in Alice Springs.  Interpreters were provided at the meeting, and parts of the meeting were conducted in Aboriginal local language.  A transcript of that meeting was in evidence. 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.

126                      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.

127                      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 and explained its contents in English. After reading the letter, Ms Edwards said that:

If the Minister were to decide to go ahead it would be for the purpose of making things better and it’s 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.

128                      Copies of the letter were made available to all attendees in English.  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?

Ms Edwards responded:

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

129                      Ms Shaw attended the meeting and asked a number of questions.  Ms Shaw 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 NTNER Act it will terminate her current right of occupancy of her house.  According to her sworn statement, 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.  (It is not necessary to resolve any factual dispute about what she said or was told at that meeting; the different versions of Ms Edwards and Ms Shaw are readily explained by Ms Shaw not having fully understood what she was told and so not recalling it.)

130                      On 3 July 2009, Gilbert + Tobin sent Ms Edwards a “marked-up” copy of the proposed subleases which the Council was prepared to recommend to the Housing Associations for execution.

131                      On 17 July 2009, 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 subleases, and expressing concern that an agreement had not been reached, referring to matters that had no longer been pressed in the marked-up subleases and providing further explanation of matters contained in the marked-up subleases.

132                      On 20 July 2009, Commonwealth officials conducted a further meeting for affected persons at the Alice Springs Indigenous Coordination Centre.  Two persons attended the meeting.

133                      On 24 July 2009, the Minister wrote to the Council (copied to Gilbert + Tobin) rejecting the request for further negotiations in relation to the terms of the proposed subleases.  The Minister stated that the time for negotiations was now over and that there would be no further revisions to the proposed subleases.  In the letter, the Minister observed that if the proposed subleases could not be finalised, this would be part of her consideration regarding the possible acquisition of the town camps. The letter relevantly stated:

I have considered your request to make further revisions to the sublease document notwithstanding that the “marked up” lease version was provided well after the close of the negotiation period on 21 May 2009. I have been consistently clear that the time for negotiations is now over. As such there will be no further revisions to the lease. To accept the Australian and Northern Territory governments’ proposal, Tangentyere Council should accept the current version of the lease without revision.

I am conscious that the Alice Springs Transformation Plan is well underway. The numerous matters raised in the “marked up” lease go well beyond technical drafting matters, raise entirely new issues which had not been the subject of the negotiations and revisit issues which have been previously ruled out as contrary to the lease arrangements required to support major new investment.  …

I would reiterate that the Australian and Northern Territory Governments have negotiated in good faith for nearly a year. …

I would ask that you inform your members and residents of the town camps that a Housing Association which wishes to enter into a sublease should do so before 28 July 2009. You should bear in mind that the Housing Association will require prior Ministerial approvals in order to execute the subleases and this process may take a few days.

The Australian and Northern Territory Governments want to ensure that the government investment that is intended to be made in the town camps is secured by appropriate land tenure arrangements. Negotiated leases remain the preferred outcome for government. However, if, after the lengthy negotiations that have been held, the proposed subleases cannot be finalised, this will be part of my considerations regarding the possible acquisition of the town camps. …

In relation to the potential compulsory acquisition, I would confirm that the deadline for provision of submissions in relation to my consideration of issuing a notice under subsection 47(1) of the [NTNER Act] to acquire the Land which comprises the Alice Springs town camps is 28 July 2009. This is the final date for correspondence or representations on this matter.

134                      That letter enclosed the final version of the proposed subleases, with the handwritten amendments to reflect the $100 million commitment.

135                      On 29 July 2009, the solicitor for the Council informed Ms Shaw’s solicitor 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 subleases.  He also said that he had instructions to deliver the executed documents to the Minister by 31 July 2009.

136                      On 29 July 2009, the Minister announced in a media release that 16 of the Alice Springs town camps under the umbrella of the Council had agreed to the 40 year sublease agreement. The press release noted that the two remaining Housing Associations and their respective town camps, Nyewente Association Inc (Trucking Yards town camp) and Iliyepe Iliyepe (Golders town camp) were in separate discussions with the Commonwealth, and that Lhere Artepe (the organisation representing the Traditional Owners) preferred compulsory acquisition to proceed.

137                      In the meantime, Ms Shaw on about 17 July 2009 became so concerned about what was happening that she prepared with some assistance an open letter, and a document headed “Background to the threatened Commonwealth acquisition of Alice Springs town camps”.  Those documents were widely circulated.  They sought support for opposition to the proposed decision to compulsorily acquire the land on which the town camps existed.

138                      Obviously, the point had been reached where Ms Shaw and the Residents felt the need to institute these two proceedings.  In essence, they want to preserve the power of the Aboriginal people who presently reside on town camps and are members of their respective Housing Associations through the Housing Associations to retain control over the use and development of the town camp lands.

THE SECTION 47 PROCEEDING

The proposed decision pursuant to s 47 NTNER Act

139                      The proposed decision by the Minister is the giving of a notice pursuant to s 47 of the NTNER Act. That section provides:

(1)        The Commonwealth Minister may, on behalf of the Commonwealth, give to the Northern Territory a notice specifying any of the following land that is the subject of a lease under the Special Purposes Leases Act or the Crown Lands Act:

(a)  land referred to in Part 4 of Schedule 1 to this Act;

(b)  any land in the Northern Territory prescribed by the regulations for the purposes of this section.

(2)        A notice may specify land referred to in subsection (1) whether or not that land has been resumed, or a lease in respect of that land has been forfeited, under the Special Purposes Leases Act or the Crown Lands Act.

140                      The “land referred to in Part 4 of Schedule 1” of the NTNER Act comprises the Alice Springs town camps (at clause 69 of Schedule 1).

141                      By virtue of s 47(3) of the NTNER Act, the land specified in a notice under s 47(1) is vested in the Commonwealth. Subsections 47(3) (et seq) provide:

(3)        All rights, titles and interests in land that is specified in a notice given under subsection (1) are (subject to sections 48 and 51):

(a)        vested in the Commonwealth; and

(b)        freed and discharged from all other rights, titles and interests and from all trusts, restrictions, dedications, reservations, obligations, mortgages, encumbrances, contracts, licences, charges and rates.

Note 1:   Native title rights and interests are dealt with in section 51.

Note 2:   The notice may specify rights, titles and interests that are to be preserved under section 48.

Note 3:   For the effect of Commonwealth and Northern Territory laws in relation to rights, titles and interests vested under this section, see Division 3.

(4)        The vesting takes effect, by force of this subsection, at the time specified in the notice (which must not be earlier than the day on which the notice is given to the Northern Territory).

(5)        A copy of a notice given under subsection (1) must be published in the Gazette of the Commonwealth within 7 days of the notice being given to the Northern Territory.

(6)        Failure to comply with subsection (5) does not invalidate a notice.

(7)        A notice given under subsection (1) is not a legislative instrument.

(8)        The Commonwealth Minister may give a notice under subsection (1) only if the notice is given:

(c)        for land referred to in paragraph (1)(b) – after the end of the disallowance period for the regulations; and

(d)        in any case – before the end of the period of 5 years beginning on the day on which this section commences.

(9)        In this section, a reference to rights, titles and interests in land does not include a reference to rights, titles and interests in relation to minerals, petroleum or gas (including rights, titles or interests to explore, prospect, mine, mine for, or extract, minerals, petroleum or gas).

142                      Section 48 provides for the preservation of specified rights, titles and interests:

(1)        If a right, title or interest is specified in a notice given under section 47 as a right, title or interest which is to be preserved, the right, title or interest is preserved as a right, title or interest (as the case requires) in the land after that time.

Note: The right, title or interest can be terminated under section 49.

143                      Section 49 provides that the Commonwealth may terminate existing rights, titles or interests in land that are preserved under s 48, while the Commonwealth interest in the land exists.

144                      A brief recap of the full communications on the topic is probably helpful. On 24 May 2009 the Minister gave notice that she was considering giving to the Northern Territory Government a notice under s 47 of the NTNER Act to compulsorily acquire the Alice Springs town camps land. The Minister wrote a letter to the Council and to the 15 Housing Associations to that effect.  The letter was headed “Proposal to give a notice under section 47 of the Northern Territory National Emergency Response Act 2007”.  The letter first noted the Minister was considering giving the Northern Territory Government a notice under s 47(1) of the NTNER Act in respect of land covering 16 of the Alice Springs town camps. The letter invited the Council and “any other persons who may be affected to be heard on this proposal”.  The letter 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.

The Commonwealth would be liable to pay a reasonable amount of compensation for any acquisition of property, by operation of s 60(2) of the NTNER Act.

145                      The letter invited recipients and 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 submissions received at this meeting.  The Minister attached to the letter the factors and material she considered to be relevant to her consideration of the proposal.

146                      There was, in that letter, no reference to preserving the rights of the residents of the town camps under their tenancy agreements under s 48 of the NTNER Act.  I accept that the reference to the current residents, after acquisition, being able to continue to reside on the land subject to any new residential tenancy arrangements does not amount to an intention to preserve the existing rights of the residents under s 48.

Did the residents have a right to procedural fairness before any decision under s 47 of the NTNER Act was made?

147                      To a degree, this question is now somewhat hypothetical. 

148                      The Minister says, and I accept (as now does Ms Shaw), that she has not yet made a decision under s 47 to compulsorily acquire the town camps.  Moreover, the Minister’s evidence shows that she is undertaking further consultations with Ms Shaw and the residents before making any decision under s 47 to compulsorily acquire the town camps.  Of course, it is not possible, nor would it be appropriate, to finally determine at this point whether – on the basis that the Minister consults further as she proposes to do – that would satisfy any obligation to accord procedural fairness before making such a decision (assuming there is an obligation to accord procedural fairness to Ms Shaw and to the tenants).  However, the submissions on behalf of Ms Shaw did not indicate that, in the particular circumstances, the content of any obligation to accord procedural fairness would extend beyond that which is proposed to be done by and on behalf of the Minister.  That matter was not formally in issue in the Section 47 proceeding.

149                      However, the parties agreed that the issue remained a live one, and so it is desirable to address it.

150                      The submissions expose the significantly different starting points of Ms Shaw on the one hand and the Minister on the other.  From the point of view of Ms Shaw, there was an obligation to be accorded procedural fairness upon conventional legal principles concerning administrative decision-making under the NTNER Act which may adversely affect a person’s rights or interests.  From the point of view of the Minister, the NTNER Act generally (including s 47) reflects a policy decision by the Commonwealth in response to a very significant public policy issue, highlighted by the “Little Children are Sacred” Report, namely the need to address serious and widespread child sexual abuse to Aboriginal children in Aboriginal communities in the Northern Territory, and both by implication and expressly it excludes the requirements of procedural fairness in policy decision-making or implementation of the policy, including under s 47.  It is easy to understand the respective starting points for the competing contentions.

151                      The correct starting point is the NTNER Act itself.  Whilst the NTNER Act and, broadly speaking, what it (and other legislative provisions) authorised as part of the Intervention in response to what is described in the long title to the NTNER Act as a “national emergency”, is a matter of legislative policy, it does not routinely follow that each and every administrative decision made under the NTNER Act is thereby immune from the obligations of according procedural fairness to those whose rights or interests may be adversely affected by such decisions: see eg South Australia v Slipper (2004) 136 FCR 259 at 280 per Finn J, with whom Branson and Finkelstein JJ agreed.  The Minister’s contention was not as broad or as coarse as that.

152                      The starting point for the exercise of a power such as that contained in s 47, when its exercise is likely to affect the rights and interests of a particular group of persons, is that its exercise is to be conditioned on the observance of the principles of procedural fairness: unless they are excluded by plain words or necessary intendment:  see Kioa v West (1985) 159 CLR 550 per Mason J at 584; and per Brennan J at 620; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 per McHugh J at 93 [126].

153                      However, it is necessary to consider the construction of the NTNER Act, including s 47, to determine whether the exercise of the power under s 47 is one which is attended by the obligation to accord procedural fairness to Ms Shaw (and the other residents):  see Salemi v MacKellar (No 2) (1997) 137 CLR 396 at 400-1 per Barwick CJ; at 419-20 per Gibbs J; and at 451 per Jacobs J.

154                      There are some general features of the NTNER Act which provide the context for the particular issue, as well as the general context in which it came to be enacted.  Its object under s 5 is to improve the well-being of certain communities in the Northern Territory.  It specifies by s 4 and Schedule 1 the “prescribed areas” to which it applies; they expressly include the Alice Springs town camps: cl 69 of Part 4 of Schedule 1.  It is therefore clear that the NTNER Act reflects the legislative view that improving the well-being of the residents of the town camps, including by improving their living conditions, is a significant element of the response to the “national emergency”.  The events leading to these proceedings, set out above, show that the Minister had the desire to bring the accommodation and other infrastructure and services in the town camps to the level available to all Australians.

155                      Division 2 of Part 4 of the NTNER Act deals specifically with the acquisition of rights, titles and interests relating to the town camps.  Subdivisions A and B deal with resumption and forfeiture of leases or land under the SPL Act and the CL Act respectively.  In each instance, the Minister is given the powers of the Northern Territory Minister or Administrator in relation to resumption and forfeiture of such leases or land.

156                      Section 47 is in Subdivision C, dealing with vesting of rights, titles and interests in the Commonwealth.  Section 47(1) empowers the Minister to give to the Northern Territory a notice specifying (relevantly) the town camps.  Section 47(3) specifies the effect of such a notice.  It is set out above at [141].

157                      The vesting takes effect at the time specified in the notice, by force of s 47(4).  Its only express prerequisite is that the notice must specify a time which is not earlier than the day on which it is given to the Northern Territory.

158                      As noted earlier in these reasons, s 48 enables the notice under s 47(1) to specify a right, title or interest to be preserved in the acquired land.  There is no indication that, if the Minister makes the proposed decision, the notice will specify the tenancy rights of Ms Shaw or the residents under s 48; indeed, the evidence tends to suggest, in the event of compulsory acquisition, that there is an intention not to do so, but to maintain or restore to them occupancy rights under some new tenancy arrangement.

159                      In the case of a right, title or interest preserved by s 48, s 49 empowers the Commonwealth subsequently to terminate that right, title or interest by notice to the person who holds the right, title or interest.  Like s 47(4), the termination takes effect at the time specified in the notice, by s 49(3), and the only express prerequisite is that the notice must specify a time of the termination which is not earlier than the day on which the notice is given to the person who holds the right, title or interest.

160                      Hence, both the vesting under s 47(3), and the termination under s 49(3) of a preserved right, title or interest, are structured in the same way.  Each may occur on the day of, or the day after, the notice by which the vesting or termination takes effect.  In either event, there is no process specified for notice of the proposed vesting or termination being given (other than on the day of or the day before the notice takes effect) so that persons whose rights, titles or interests may be affected may have an opportunity to be heard as to whether the notice should be given.  In the case of a termination of preserved rights, titles or interests, moreover, s 49 clearly recognises that that process inevitably will affect the persons whose rights, titles or interests are to be terminated.

161                      As the Minister points out, that process contrasts sharply with the process specified for the compulsory acquisition of land under the Lands Acquisition Act 1989 (Cth).  Under that process, persons whose interests are affected are given an opportunity to be heard before the decision to acquire the land is finally made.  Indeed, section 50(2) of the NTNER Act provides, inter alia, that ss 47 and 49 have effect despite anything contained in the Lands Acquistion Act 1989 (Cth).  Section 50(1) more generally provides, inter alia, that ss 47 and 49 have effect despite any other law of the Commonwealth or of the Northern Territory, whether written or unwritten.  The express reference in s 50(1) to “written or unwritten” laws is, in my view, an expression of the intention that the provisions in (relevantly) Division 2 of Part 4 of the NTNER Act, including s 47, are not to be taken to carry within them the rules of procedural fairness in the face of the meaning of, for example, s 47 as construed in its terms and in its statutory content.  Whilst s 50 does not, in express terms, exclude the obligation to give procedural fairness when a decision under s 47 is contemplated, in conjunction with the other provisions to which I have referred that is, I think, the necessary intention of the legislature.  See also Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 per Spigelman CJ at 91 [50].

162                      In my judgment, s 47 in its terms and in its context demonstrates an intention that the rules of procedural fairness (relevantly here at least reasonable notice of a decision proposed to be made under s 47 and an opportunity to be heard before the decision is made) be excluded.

163                      It is apparent that the legislature was aware of the procedures under the Lands Acquisition Act 1989 (Cth) requiring notice of a decision proposing to acquire land, and requiring then an opportunity to be heard, to be given to the person whose land is proposed to be acquired.  Such procedures have been expressly eschewed.   So too, by reference to the written or unwritten law referred to in s 50(1), have the procedural fairness requirements which were given effect to in cases such as Annetts v McCann (1990) 170 CLR 596 and Kioa v West (1985) 159 CLR 550 been considered by the legislature.  The wording of the provisions in Subdivisions A, B and C of Division 2, and Division 3 of Part 4 of the NTNER Act indicate that the legislature was aware that s 47 may lead to the compulsory acquisition of the Alice Springs town camps, and was aware by s 48 that necessarily rights, titles and interests of persons such as the residents may thereby be lost.  Nevertheless, s 47 requires only notice to the Northern Territory before it takes effect.  That cannot have been by oversight.  The particular interests of persons such as the residents may be catered for, in the Minister’s discretion, by s 48.  But, even then, s 49 shows that such preserved rights may be terminated on effectively no notice.

164                      In Jarratt v Commissioner of Police for New South Wales (2005) 224 CLR 44, Gleeson CJ at 56 [25] referred to the “very breadth of the statutory power” as an argument in favour of inferring the intention to preserve procedural fairness in the making of the decision then under challenge, under s 51 of the Police Service Act 1990 (NSW).  In the case of s 47 of the NTNER Act, however, I think there are clear words indicating a legislative intention necessarily to exclude such processes.

165                      Ms Shaw also contended that s 47 of the NTNER Act should be read as requiring procedural fairness to be given to the residents, including Ms Shaw, before a decision is made because s 132(1) declares the provisions of the NTNER Act and actions taken under it for the purposes of those provisions as “special measures” for the purposes of the Racial Discrimination Act 1975 (Cth).  As explained in Gerhardy v Brown (1985) 159 CLR 70, s 8(1) of that Act has the consequence that other provisions of that Act (in particular, those that prohibit racial discrimination in various forms) do not apply to “special measures” as described in Art 1 paragraph 4 of the International Convention on the Elimination of All Forms of Racial Discrimination(defined in s 3 of that Act).  Relevantly, special measures are ones “taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups … as may be necessary in order to ensure such groups … equal enjoyment” of human rights and fundamental freedoms.  It was argued that Indigenous wishes about their lands and their participation in such decision-making as may occur under s 47 is of great importance, and so s 132 supports the preservation of procedural fairness when such a decision is to be made.  I do not think that s 132 supports the contention in that way.  It is a legislative confirmation that the NTNER Act, in its terms as properly construed, and acts which it authorises, will not breach the Racial Discrimination Act 1975 (Cth) because what is authorised by and under the NTNER Act are “special measures”.  In other words, I consider s 132 is a legislative declaration that the NTNER Act, and the conduct it authorises, has each of the characteristics described by Brennan J in Gerhardy v Brown 159 CLR at 133.  In respect of the town camps, that view is also evidenced also from the Second Reading Speech of the Northern Territory National Emergency Response Bill 2007(Hansard, House of Representatives, 7 August 2007, pages 26-7).

166                      Further, and more fundamentally, s 132(2) of the NTNER Act specifically excludes the operation of Part II of the Racial Discrimination Act 1975 (Cth).  Section 132(2) provides:

The provisions of this Act, and any acts done under or for the purposes of those provisions, are excluded from the operation of Part II of the Racial Discrimination Act 1975 (Cth).

In my view, the combination of s 132(1) and (2) evinces a clear intention on the part of the legislature to ensure that the NTNER Act and acts done in accordance with that Act, do not contravene the Racial Discrimination Act 1975 (Cth).

Did the Minister give procedural fairness to the residents in the circumstances?

167                      My conclusion on the first issue means that it is not necessary to determine this issue.  However, as the evidence on this aspect of the case was quite extensive, it is appropriate at least to record my findings on what the Minister and her officers did do in relation to Ms Shaw and the residents and to express my views about it.

168                      Before doing so, there is one additional matter to comment upon.  At [148] above, I noted that in substance there was common ground about the content of the obligation on the part of the Minister to accord procedural fairness to the residents including Ms Shaw when deciding whether to exercise the power under s 47 of the NTNER Act, assuming that obligation existed.  Its content, I noted, was to give the residents reasonable notice of the proposed decision and then to give them an opportunity to be heard in relation to it.

169                      In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 the High Court (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ) at 160-1 [26] said that:

It has long been established that the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires.  It is also clear that the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case.

See also Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at [20], [25].

170                      In the written submissions on behalf of Ms Shaw, the content of the obligation to afford her procedural fairness in relation to a proposed decision under s 47 of the NTNER Act was said to be that she:

(a)        be given the opportunity of ascertaining the relevant issues;

(b)        be told how the relevant exercise of power will affect her rights and interests; and

(c)        be informed about what the practical and legal consequences will be for those rights and interests if the power is exercised.

171                      No doubt through oversight at that point in the submission there was not added that she be given the opportunity to make representations about the proposed decision before it is made.  It was not suggested that those residing in the town camps as visitors had any entitlement to procedural fairness in respect of the proposed decision.

172                      The dispute between Ms Shaw and the Minister in part focused upon the content of the (assumed) obligation itself.  The Minister contended that, in the circumstances, it required that the Council and the Housing Associations be notified of the proposed decision, because they were representative of the residents directly as members of the Housing Associations, and then giving the residents the opportunity to make submissions to the Minister.  It was reasonable, it was argued, that the Council and each Housing Association would notify each of the residents of the respective town camps of the proposed decision.

173                      The nature and extent of the Commonwealth’s communications with the residents, including Ms Shaw, both directly and (if it was appropriate) through the Council and the Housing Associations are set out above.

174                      The Minister gave notice of the proposed decision to the Council by letter of 24 May 2009.  That letter said that, after any acquisition, the residents would be able to continue to reside on their particular town camp (and, by inference, the particular area currently tenanted by them) “subject to any new residential tenancy arrangements”.  It noted that the Commonwealth would be liable to pay reasonable compensation under s 60 of the NTNER Act in respect of the acquisition of any property from any person.  It did not in its terms confine the entitlement to compensation to the Housing Associations only.  It invited written submissions from the Council and any other persons who may be affected by 29 June 2009, or at a meeting with the Council and other interested persons on that date.  The letter included an attachment setting out at some length the “relevant factors and material under consideration” and an attachment setting out in detail the “Agreed Work Plan” for improving housing and infrastructure in the Alice Springs town camps.  No criticism was made about the adequacy of the content of those attachments.  The same letter was sent to the Housing Associations, addressed to the Housing Association (Executives and Members), to Gilbert + Tobin, and to the Northern Territory Minister for Planning and Lands.  A media release about the proposed decision was issued by the Minister on the same day.

175                      The Minister on 4 June 2009 sent out a further letter to the same recipients, extending the time for written submissions to 28 July 2009, and fixing a further meeting at Alice Springs to receive oral views on 20 July 2009.  Any decision under s 47 was not to be taken before 4 August 2009.

176                      From late May and during June 2009, officers of the Commonwealth conducted an information and consultation drive, and a leaflet drop in the town camps.  The Executive Director of the Alice Springs Transformation Plan in the Minister’s Department endeavoured to notify and explain to as many of the residents (and others) as possible about the proposed decision and of the opportunities to make submissions about it.  He was aware that six main Indigenous languages are spoke in the town camps, and that some of the residents are illiterate or barely literate.  He did not have access to a list of the residents.  He was aware of the difficulty of distinguishing the residents from visitor-residents of the town camps.  He had a plain language fact sheet prepared for distribution.  Subject to the two matters referred to below, the submissions of Ms Shaw made no adverse criticism of its content.  He spoke on a number of occasions about the proposed decision to elected members of the Council, and its staff.  He provided the Council with copies of the fact sheet for distribution.  He consulted with the Central Australian Aboriginal Congress, Lhere Artepe (which represents the traditional owners for Alice Springs) and Ingkerreke Outstation Resource Services and gave them copies of the fact sheet for distribution.  Officers under his direction visited some town camps and did “door knocks”, but decided that it was more appropriate and respectful to first consult the relevant Housing Association president, and then to speak to other residents so far as practicable.  It is clear that by no means all of the residents were directly spoken to.  Nor is it likely that each directly received a fact sheet from those officers.

177                      On 23 June 2009, the Council and each of the Housing Associations, and other bodies, received further notification of the Minister being available to meet and hear the views of the residents on the proposed decision.  The notification to each Housing Association was addressed to “The Executive and Members”.  The meeting was to take place on 29 June 2009.  Bus transport was made available to the residents, as proffered by that notice.  Despite the pick-up points being notified at the Council and through the Housing Associations, only one resident used that service.  It also gave contact details for any resident to speak to a Commonwealth officer about the proposed decision.  Notice of the meeting was also given by posters displayed at the Council.  That is the place where the residents collect and send mail, access Centrelink and other government services, and where the majority of them do their banking.  It was also displayed in the community centres of those town camps that had them.  Ms Shaw, in her submission, made no adverse criticism of the contents of that notification or of the poster, save for the two matters discussed below.

178                      Between 23 and 29 June 2009, the Department caused the Central Australian Aboriginal Media Association radio in Alice Springs to air community service announcements about the proposed decision and the meeting on 29 June 2009.  The announcements were made twice hourly during broadcasting hours.  Again, no adverse criticism was made about the content of that announcement, save for the two matters discussed below.

179                      The meeting took place on 29 June 2009.  The convenors were independent.  One spoke several local Indigenous languages.  Interpreters were made available.  An “open mic” session was conducted.  There were 61 persons present, including about 40 of the residents, including Ms Shaw, who asked a number of questions.  She also spoke separately to Ms Edwards about the tenancy management arrangements once (and if) the Commonwealth obtained a long sublease or tenure over the town camps.

180                      There were further meetings between Commonwealth officers and the Executive of the Council on 16 July 2009, and with such interested persons who wished to attend in a public forum on 20 July 2009.  Despite publicity about the latter meeting, only two persons attended.

181                      The evidence is that the Commonwealth intends that the residents, including Ms Shaw, will “retain” all their rights under their existing tenancy arrangements, and that the only legal change will be the substitution of a new landlord, the Commonwealth or its nominee, which will have no greater rights than the Housing Associations as the existing landlord.  The rights will not, strictly speaking, be “retained” but as noted above will be reflected in and (on the evidence which I accept) equal to the existing tenancy rights in all respects.

182                      There is also evidence of further steps the Minister proposes to take to ensure the residents are aware of the proposed decision and its consequences, before deciding whether to make the proposed decision.  That further action followed the commencement of the Section 47 proceeding.

183                      On 7 August 2009, Ms Shaw’s solicitors sought from the Council (through its solicitors) details of all the current residents, that is those holding a tenancy agreement from a Housing Association and sought access to the town camps to deliver any further information considered appropriate.  The Council refused that request because it opposed compulsory acquisition and so could not “reasonably be asked to participate in a process” which it opposed.

184                      The Minister then decided to issue a further notice to “everyone in the Alice Springs town camps and other interested persons” alerting them to the proposed decision and its consequences.  No submissions were made critical of its content, except so far as it deals with the right to compensation.  The notice, on that topic, said:

If the Commonwealth acquires the land of the town camps, the Commonwealth would be liable to pay a reasonable amount of compensation for any acquisition of property.  This means that a person may be entitled to compensation for the termination of any right they have over the land of the town camps (including under any sublease, tenancy agreement, licence or other agreement).

It referred to the intention to recognise existing tenancy rights in the way referred to in [181] above.  It invited the recipients to “have your say” by 27 October 2009.  They were told how to do so.  In addition, Ms Edwards gave evidence that the Minister through her officers also proposed:

·          to issue to the same people a dot point summary of the consequences of the proposed decision, also containing a notice of the opportunity to respond or to seek further information – it said simply “compensation will be payable”;

·          to deliver each of those documents to every apparent dwelling place in each of the town camps;

·          to send by mail and email each of those documents to each of the persons or entities who had previously received a notice;

·          to provide each of the documents to the Council, with the request that they be distributed to each person who has a current tenancy agreement with a Housing Association;

·          to advertise in the local Alice Springs papers, and on the radio station referred to, and by posters at the Council and community centres in the town camps the same information; and

·          to promote and conduct a further public meeting, in the same manner as that conducted on 29 June 2009.

Those steps were all to be taken promptly.  There was no cross-examination of Ms Edwards to challenge her evidence that those steps had been, or would be, taken.  I accept that they have been taken by now or will be taken if the Minister continues with considering the proposed decision.

185                      As I have indicated, it is not necessary to finally decide whether in all the circumstances, and assuming that in making the proposed decision the Minister is obliged to accord procedural fairness to the residents including Ms Shaw, she has done so.

186                      However, in my view, upon the whole of the evidence, the residents including Ms Shaw have:

1.         been given the opportunity of knowing about the proposed decision;

2.         have been told about the consequences of the proposed decision, that is how their rights and interests might be affected and the practical and legal consequences of such a decision; and

3.         have been given the opportunity to make submissions about the proposed decision and how it might affect them and why, if it was their view, it ought not be made.

Indeed, it is difficult to see what more the Minister might have done.

187                      There were, ultimately, two particular matters upon which Ms Shaw made submissions.

188                      One concerned the literacy levels and language skills of some of the residents.  I find that, by the extensive processes referred to, each of the residents must have known of the proposed decision.  Notice of it was given directly, through the Housing Associations of which they were members, through the Council, and through other means.  It is not really conceivable that any of the residents did not know about it.  Their opportunities then to understand its consequences, even accepting that some were of low literacy or with little English skills, were also extensive.  They were not living in isolation from each other, but within each town camp, with a Housing Association representing them and the more pervasive focus of the Council.  Those bodies through their officers, as well as the informal discussion among the community members and the other means of publicity referred to, provided ample opportunity for any resident to know of the proposed decision (as I find each did) and to understand the clear information provided about its consequences by the Minister.  There were levels of information, depending upon the requirements of the particular resident.  It is likely, as in any community, that some residents were more interested in the issue than others, and some required a greater degree of information than others.  The information provided by the Minister was sufficient to satisfy whatever reasonable expectations there were.  The opportunity was given to any resident to understand, to the extent that resident required, the consequences of the proposed decision.  Finally, either directly at the public meetings or to officers of the Commonwealth at other times, or through spokespersons, or through the Council or the Housing Associations or their officers (or their lawyers, as was done), there was an ample opportunity to make submissions about the proposed decision.  The public meetings also provided the opportunity for those who spoke better, or only, in an indigenous language to communicate in that language.  The evidence shows that some residents took up that opportunity. 

189                      The written submissions on behalf of Ms Shaw point out, correctly, that the residents were not told what the detailed terms of any new tenancy agreement with the Commonwealth would be, including the rental.  They were told that they would be able to continue to occupy their dwellings (subject to temporary removal whilst they were replaced or upgraded) and would have a new tenancy agreement with the Commonwealth.  I do not consider procedural fairness required more than that.

190                      The other matter referred to on behalf of Ms Shaw was the question of compensation under s 60 of the NTNER Act.  In my view, the residents were given adequate notice that the proposed decision, if implemented, would entitle them to reasonable compensation for the acquisition of their rights and interests.  As noted above, there is a dispute as to whether the tenancy agreements between the residents and the Housing Associations are terminable on 42 days’ notice or are some form of permanent tenancy agreement, terminable only for breach.  That issue is discussed below.  The quantification of any compensation is a separate process under s 60(3) of the NTNER Act.  The letter of 24 May 2009 to the Council and to each Housing Association (addressed to the “President and Members”) referred to the right to compensation.  It was not confined in terms to the Housing Association.  That letter was read aloud at the public meeting on 29 June 2009.  The communications after the commencement of the Section 47 proceedings explained to the residents that they had a potential entitlement to compensation.  Indeed, in the course of oral submissions, senior counsel for Ms Shaw acknowledged that fact.  I do not consider that it was necessary for the Minister, to accord procedural fairness, to go beyond that on the topic of compensation.

Relief

191                      Ms Shaw sought a declaration in the Section 47 proceeding in the following terms:

PROPOSED DECLARATION

That the power of the Minister to give a notice under s 47(1) of the Northern Territory National Emergency Response Act 2007 (Cth) in respect of the land set out in the Schedule to the Application (Land) is conditioned on:

(i)         the giving of reasonable notice to the applicant, and to each of the other tenants of houses on the Land; and

(ii)        affording to the applicant, and each of the other tenants of houses on the Land, the opportunity to be heard in respect of how their rights and interests may be affected by a decision to give a notice under s 47(1) of that Act.

192                      For the reasons given, I decline to make such a declaration.  The application should be dismissed.

THE SUBLEASE PROCEEDING

193                      It is fair to say that, of the two actions, this proceeding was more the focus of the evidence and submissions at the hearing.

194                      In this proceeding, the Residents allege that:

·          the proposed subleases are beyond the power of the Housing Associations under their respective Constitutions or Rule Books and are contrary to the interests of the members of each of the Housing Associations;

·          the decisions of the Management Committees of each of the Housing Associations to agree to grant the proposed subleases is a breach of the fiduciary duties they owe as members of those Committees 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;

·          if the Housing Associations give effect to the terms of the proposed subleases, that will constitute a breach of the contractual rights of the Residents under the Constitutions and Rule Books of each of the Housing Associations;

·          if the Housing Associations give effect to the terms of the proposed subleases in a manner that is intended to enable a termination of existing rights of occupancy of tenants of the town camps by notice by the Executive Director in the absence of default by a tenant, that will constitute a breach of the contractual rights of the Residents;

·          the requirement by the Minister to the Housing Associations to enter into the proposed subleases involves the Minister in the breaches of fiduciary duty and breaches of contract and so will result in her engaging in the tort of procuring or inducing those breaches.

195                      It is obviously important to set out the terms of the Constitutions and Rule Books of the Housing Associations, the terms of membership of the Housing Associations and the terms of the Special Purposes Leases and Crown Leases.

The Constitutions and Rule Books of the Housing Associations

196                      Each of the Housing Associations is governed by a Constitution or Rule Book more or less in the same terms and to the same effect.

197                      The Constitutions of the Housing Associations incorporated under the Associations Act (NT) set out the objects and purposes of the Housing Associations.  Clause 2.2 says the objects and purposes are set out in Item 1.3 of the Schedule.  Item 1.3 of the Schedule to the Constitutions sets out a non-exhaustive range of measures by which the Housing Associations are obliged to advance their objects.  In broad terms, as the submission of the Residents expressed it, the Housing Associations by their Constitutions are to provide housing for Aboriginal communal living and housing services in a manner that furthers the Aboriginal communal cultural interests of the members.

198                      For example, the Constitution of the Mount Nancy Housing Association Inc is dated 30 November 2006. Item 1.3 of the Schedule to that Constitution sets out the objects and purposes of that Association and the means of achieving them including as follows:

(a)        The objects and purposes of the Association are to relieve the poverty, sickness, destitution, distress, suffering, misfortune or helplessness of Aboriginal people in Central Australia.

(b)        In recognition of the severe problems encountered by Aboriginal people in Central Australia, and the unfortunate circumstances in which they find themselves, the Association shall advance its objects by the 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; …

(iii)       acting and/or promoting programs to develop social cohesion and community development in accordance with Aboriginal law on the Town Camps;

(iv)       acting and/or promoting programs to improve the environment in accordance with Aboriginal and non Aboriginal law of the Town Camps;

(v)        developing relationships with other groups or organisations with similar aims; and

(vi)       assisting Aboriginal groups or organisations with similar aims and needs.

199                      Clause 3.1 sets out the powers of that Housing Association:

In order to achieve the objects, the Association shall, subject to the provisions of the Act and this Constitution, have power to do all such lawful things as seem to the Association to be necessary or desirable to advance the objects and purposes of the Association.

200                      Each Housing Association has a Management Committee. Clause 5.1 of the Constitution of the Mount Nancy Housing Association sets out the roles and powers of the Management Committee as follows:

(a)        The business of the Association must be managed by or under the direction of the Management Committee.

(b)        The Management Committee may exercise all the powers of the Association except those matters that the Act or this Constitution requires the Association to determine through a General Meeting of Members. …

201                      Certain matters are identified in the Constitution of Mount Nancy Housing Association as being required to be determined through a general meeting of members, including:

·          Clause 2.3 – Altering the objects and purpose of the Association – “The Association may alter the objects and purposes of the Association by Special Resolution but not otherwise”;

·          Clause 3.5(a) – Altering the Constitution – “The Association may alter this Constitution by Special Resolution but not otherwise”;

·          Clause 4.13(b) – Appeal by a Member who is suspended or expelled under clause 4.12 – such appeal must be considered at a general meeting;

·          Clause 5.5(b) – Eligibility to be a member of the Management Committee – members must be elected at an annual general meeting;

·          Clause 5.17(a) – Public Officer – appointment must occur at an annual general meeting; and

·          Clause 5.11(a) – Removal of member of the Management Committee – must be removed through a special general meeting.

Those provisions are common to the Housing Associations incorporated under the Associations Act (NT).

202                      The objects and purposes of Housing Associations incorporated under the CATSI Act (Ilparpa Aboriginal Corporation, Karnte Aboriginal Corporation and Mpwetyerre Aboriginal Corporation) are expressed in their Rule Books. Section 69.1 of the CATSI Act provides that the constitution of a Housing Association is the constitution that is registered in respect of the Housing Association.

203                      In the written submissions of the Residents and the Minister, the objects of the Ilparpa Aboriginal Corporation, as set out in its Rule Book at clause 3, are said to provide:

The main purposes of the corporation are:

·     To manage the housing stock and tenancy

·     To support the improvement of the quality of life of its members and develop a happy, safe and health [sic] community on our land

Further the corporation aims to:

·     To support the development of members in all ways

·     To provide general community services to the Community

·     To look after our ‘Town Camp’ now and for future generations

·     To manage our housing and tenancy

·     To keep our housing in good repair

·     To develop and improve our housing

·     To support the improvement of health and well being

·     To provide sporting and recreational facilities for our members and improve our parks and gardens

·     To help build trust and friendship between our members and other people

·     To speak up and be advocates for our members and defend their rights

·     To work together with Tangentyere Council and other Aboriginal groups and other groups on projects for mutual benefit.

·     Operate and maintain a Gift Fund to be known as “The Ilparpa Aboriginal Corporation Gift Fund” in accordance with the requirements of the Australian Taxation Office”.

It is necessary, however, to make a finding about whether its Rule Book was changed at a later point in time.  That is addressed at [213] to [215] below.

204                      Clause 3 of the Rule Books of Karnte Aboriginal Corporation and Mpwetyerre Aboriginal Corporation are virtually identical, except obviously with respect to the final dot point referring to the particular Housing Association.

205                      Clause 4 of the Rule Book of Ilparpa Aboriginal Corporation provides:

Subject to the Act and these rules, the corporation has the power to do anything lawful to carry out the objectives, except:

·     the corporation cannot charge application fees for membership or annual membership fees.

206                      Clause 4 of the Rule Books of Karnte Aboriginal Corporation and Mpwetyerre Aboriginal Corporation also are virtually identical.

207                      The replaceable rules set out in the CATSI Act apply to these Housing Associations. Replaceable Rule 274.1 provides:

(1)        The business of an Aboriginal and Torres Strait Islander corporation is to be managed by or under the direction of the directors.

(2)        The directors may exercise all the powers of the corporation except any powers that this Act or the corporation’s constitution requires the corporation to exercise in general meeting.

Note: For example, the directors may enter into contracts and borrow money.

208                      The Constitutions of the Housing Associations (including the Housing Associations incorporated under the CATSI Act in combination with their Rule Books and the replaceable rules in the CATSI Act) constitute a contract between the Housing Associations and their members. Section 60.10(2) of the CATSI Act makes that plain:

(1)        An Aboriginal and Torres Strait Islander corporation’s constitution, and any replaceable rules that apply to the corporation, have effect as a contract:

(a)        between the corporation and each member; and

(b)        between the corporation and each director and corporation secretary; and

(c)        between a member and each other member.

(2)        Under the contract, each person agrees to observe and perform the requirements of the constitution and rules so far as they apply to that person.

209                      Each Housing Association’s Constitution provides for, inter alia, the rules governing membership. The members of Housing Associations are required to be Aboriginal persons who are residents in the particular Housing Association’s town camp, or have a strong connection with the particular town camp. For example, clause 4.1 of the Mount Nancy Housing Association Constitution refers to Item 1.7 of the Schedule which provides:

The members of the Association shall comprise Adult Aboriginal persons who:

(a)        apply to the Association for membership;

(b)        the Management Committee decides to admit to membership;

(c)        the Management Committee considers are residents of the [town camp].

Clause 5.1 of the Rule Book of the Ilparpa Aboriginal Corporation provides that a member must be at least 18 years old, must be an Aboriginal or Torres Strait Islander person, and must normally reside at its town camp and have done so for at least one year.

210                      The CATSI Act sets out some further requirements for eligibility for membership of those Housing Associations in Chapter 4, Part 4.2, Division 141, such as an “indigeneity requirement” (section 141.10) and a minimum age of 15 years (section 141.20). It is not in dispute in these proceedings that each of the Residents is a member of a particular Housing Association.

211                      The summary of the Residents, in their written contentions, is that the Housing Associations were established to:

(1)        obtain tenure to the town camps by taking a lease of the land from the Northern Territory;

(2)        make the land available to members of the Housing Associations; and

(3)        control and manage the occupation of the town camps in the interests of the members.

212                      The Minister points out that the Constitutions and Rule Books of the Housing Associations are somewhat wider than that.  In particular, she says that each also has the objective of relieving “the poverty, sickness, destitution, distress, suffering, misfortune or helplessness of Aboriginal people in Central Australia”, and that none specifically require the Housing Associations to provide accommodation for Aboriginal persons only by means of tenancy agreements under which the Housing Associations, are necessarily the landlord.

213                      I note that submissions of the Residents and of the Minister referred to and relied upon versions of the Rule Books of the three Housing Associations incorporated under the CATSI Act as set out above.  An affidavit filed in Court by the Housing Associations on the first day of the hearing of these proceedings indicated that those versions of the Rule Books were replaced on 29 June 2009 by the Registrar of Indigenous Corporations imposing a standard Rule Book, in circumstances where the Housing Associations were in the process of adopting new Rule Books, but had not yet formally endorsed the new Rule Books.  I accept that evidence.  It was not challenged.  I find that the relevant versions of their Rule Books are those from 29 June 2009.

214                      Rather than having the “Objectives” (as set out in [203] above), the current Rule Book for the Ilparpa Aboriginal Corporation has an “Objectives” clause which provides:

The central objects of the Corporation are to relieve the poverty, sickness, destitution, distress, suffering, misfortune or helplessness of Aboriginal people in Central Australia.

In recognition of the severe problems encountered by Aboriginal people in Central Australia, and the unfortunate circumstances in which they find themselves, the Corporation shall advance its central objects by the following means:

(a)        obtain land, housing and other community facilities for the members of the Corporation and other Aboriginal people in need;

(b)        acting or promoting programs in accordance with Aboriginal Law that advance the living conditions, health, economic status, education, training and well being of the members and other Aboriginal people in need;

(c)        acting or promoting programs to develop social cohesion and community development in accordance with Aboriginal law on the town camp;

(d)        acting or promoting programs to improve the environment in accordance with Aboriginal Law of the town camp;

(e)        developing relationships with other groups or organisations with similar aims; and

(f)        assisting Aboriginal groups or organisations with similar aims or needs.

215                      The Mpwetyerre Aboriginal Corporation’s current Rule Book has an “Objectives” clause which is in terms virtually identical to the above, save as to minor grammatical differences, and save for referring to “other needy people” instead of “Aboriginal people in need” in the first and second means by which the objectives are to be advanced.  The Karnte Aboriginal Corporation’s Rule Book’s “Objectives” clause is slightly different to that of the Ilparpa Aboriginal Corporation and Mpwetyerre Aboriginal Corporation.  It provides:

The corporation aims to:

(a)        promote the well-being and community development of the members of the corporation;

(b)        obtain land, housing and other facilities for the members of the corporation;

(c)        meet the social and economic needs of the members of the corporation;

(d)        meet the social and economic needs of the members of the corporation; [sic] and

(e)        act to improve the living conditions of the members of the corporation.

The slight difference in wording of the relevant objectives clauses between the versions of the Rule Books does not affect the conclusions I have reached below.  The current version of the Rule Books is similar to the objects clauses of the Constitutions of the other Housing Associations incorporated under the Associations Act (NT). 

216                      Senior counsel for the Housing Associations did not submit that the changes so made had any particular significance.

The Residents’ Tenancy Agreements with the Housing Associations

217                      Each of the Residents has a tenancy agreement with a Housing Association.

218                      Ms Shaw has a tenancy agreement with the Mount Nancy Housing Association which is entitled “Tenancy Agreement Permanent” and is dated 27 August 2003.  The Minister does not accept that the title of the tenancy agreement accurately describes the rights conferred pursuant to it.  Nor do the Housing Associations.  Ms Shaw pays rent to the Mount Nancy Housing Association Inc of $123 per fortnight.

219                      The terms of that tenancy agreement include the following:

2.         For the whole time I am living in the house as a tenant I will pay rent and other bills sent to me which I am responsible for, like electricity, excess water, telephone and any other bills the Association says I have to pay

3.         I will not let my rent get behind and If I do get behind in rent I agree to catch up on the arrears, If I get behind in rent (over $1000) I may be evicted.

4.         I will look after the house, also look after things like the stove, light fittings, taps and other fittings for the whole time I live in the house.

….

7.         I will allow the PMO from the Housing Office to come into my house to inspect it for damages and repairs from time to time

8.         I will only use the house for members of my family that I take care of and get permission from the Association if anyone else comes to live with me, I will make sure all residents keep the Association’s rules and get them to look after the house and yard too.

In addition, Ms Shaw is to report any maintenance and repair problems and to permit repairs to be carried out: clauses 5, 6, 7 and 9.

220                      In addition to clause 3, clause 15 provides:

15.       If I break any of the rules of the Association I can be made to leave the house after a “NOTICE TO QUIT’ letter from the Association or Housing Office.

221                      Hence, although the tenancy is apparently unlimited in point of time, the Mount Nancy Housing Association can give Ms Shaw notice to quit the premises is if she breaks any rules of the Housing Association (pursuant to clause 15), and her occupancy may also be terminated for non-payment of rent (clause 3).

222                      On the evidence, I find that about 200 people have entered into tenancy agreements similar to Ms Shaw’s agreement relating to other dwellings in the Alice Springs town camps.  A bundle of the other applicants’ tenancy agreements were tendered in the course of the hearing.  There was nothing put in submissions to suggest other tenancy agreements had differences material to the present proceedings.

223                      The Housing Associations, as well as the Minister, take the view that tenancy agreements such as are held by Ms Shaw are periodic tenancies terminable on 42 days’ notice by reason of s 89 of the Residential Tenancies Act (NT). However, Ms Shaw and the Residents contend that, when the proper matrix of facts is considered, the tenancy agreement is only terminable without the agreement of the tenant for breach. The Residents refer to s 4 of the Residential Tenancies Act (NT), which distinguishes between a fixed term and periodic tenancy as follows:

fixed term tenancy means a tenancy for a fixed period specified in the tenancy agreement.

…

periodic tenancy means a tenancy that is not a fixed term tenancy.

224                      Under that Act, the Residents note that different termination provisions apply, depending on whether the tenancy in question is fixed or periodic. Under s 90, a fixed term tenancy that is due to terminate on a particular day may be terminated on 14 days’ notice. Under s 89 a periodic tenancy may be terminated at any time on 42 days’ notice. The Minister contends that Ms Shaw’s agreement is in the nature of a periodic tenancy since it is not for a fixed period, and says that the Residents’ contention that the lease is a permanent one is inconsistent with the position at common law, which does not recognise the concept of a lease in perpetuity. Further, the Minister says that no statutory power to enter into a “permanent lease” has been identified, and the fact that Ms Shaw’s rent (and, I infer, other Residents’ rent) has increased from the time that it was entered into as indicating that the agreement is a periodic lease, and, absent any other explanation, is inconsistent with the contention that the lease was permanent.

225                      The Minister put a further proposition, at least in respect of those Housing Associations which hold Special Purposes Leases.  Section 9A of the SPL Act provides that a lessee “shall not subdivide, or make an application under Part 5 of the Planning Act (NT) for consent to subdivide, the lands comprised in a lease”.  The term “subdivide” is not defined in that Act.  In the Planning Act (NT), “subdivision” is defined in s 5 to include the division of land into parts available for separate occupation or use by an agreement, if the term of the right to use thereby granted is more than 12 years.  Consequently, such a lease to the Housing Associations did not permit any permanent tenancy agreement.  In the case of the CL Act leases, any lease longer than 12 years would require Planning Act (NT) processes to be followed to avoid the subdivision being void by reason of s 63(2) of the Planning Act (NT).

226                      In my view, the submission of the Housing Associations and of the Minister is correct.  The Residential Tenancies Act (NT) applies in its terms to a “tenancy agreement” (subject to inapplicable exclusions) and the tenancy agreements fall within the definition of that term in s 4 of that Act.  Section 20 prohibits a tenancy agreement that is inconsistent with that Act.  The tenancy agreements are not for a fixed period.  They simply do not provide for a fixed term.  Consequently, by definition they must be agreements for a periodic tenancy.  Such agreements, under s 89 of the Residential Tenancies Act (NT), are terminable on 42 days’ notice.  There is no scope under that Act for the type of tenancy for which Ms Shaw and the Residents contend.  Nor could a tenancy of the type for which they contend lawfully be granted under either a Special Purposes Lease, or under a Crown Lease without following the procedures prescribed by the Planning Act (NT), for the reasons identified by the Minister.  I note for the sake of completeness that, because the tenancy agreements are understandably quite brief, the Residential Tenancies Act (NT) prescribes additional terms; they are not of significance to the present issue.

The Special Purposes Leases and the Crown Leases

227                      The Special Purposes Leases granted in favour of the Housing Associations referred to above were granted by the Northern Territory pursuant to s 4(1) of the SPL Act. That subsection provides:

4(1)      Notwithstanding the provisions of any other law in force in the Northern Territory, but subject to this Act, the Minister may, in the name of the Territory, grant a lease for a special purpose of any unleased land belonging to the Crown or the Territory in the Northern Territory …

            …

(c)        to an association if the special purpose is within the objects or purposes of the association;

(d)        to a company, if the special purpose is within the objects of the company; …

228                      “Association” is defined in s 3 of the SPL Act as meaning an association incorporated under the Associations Act (NT) and “special purpose” is defined in the same section as follows:

special purpose means any purpose other than a private residential purpose within a town, or a site for a town, within the meaning of the Crown Lands Act, a pastoral, agricultural or mining purpose.

229                      The Special Purposes Leases are granted in perpetuity, but are each subject to a right of resumption on the part of the Northern Territory by virtue of s 28 of the SPL Act which provides:

Subject to this Act, the Administrator may, by Proclamation –

(a)        resume any land comprising, or included in, a lease –

…

(vii)      for any other public purpose which he thinks fit; …

230                      The NTNER Act also refers to the resumption and forfeiture of land under the SPL Act in Part 4, Division 2, Subdivision A. Sections 43 and 44 of the NTNER Act provide:

43        Effect of Special Purposes Lease Act

(1)        The Special Purposes Leases Act has effect, in relation to the following land that is the subject of a lease granted under that Act, subject to the modifications in this Subdivision:

(a)        land referred to in Part 4 of Schedule 1 to this Act;

(b)        any land in the Northern Territory prescribed by the regulations for the purposes of this section.

(2)        The Special Purposes Leases Act, as modified by this Subdivision, has effect as a law of the Northern Territory.

44        Modification of Special Purposes Leases Act

(1)        The Special Purposes Leases Act has effect, in relation to land referred to in section 43, as if:

(a)        references in the following provisions of that Act to the Northern Territory Minister or the Administrator included references to the Commonwealth Minister:

(i)         sections 13, 14, 15, 17, 24, 25, 26, 29, 30 and 32;

(ii)        section 23 (other than paragraph 23(1)(da));

(iii)       paragraph 28(a); …

…

(2)        To avoid doubt, the Commonwealth Minister forfeits a lease of land, or resumes land, under the Special Purposes Leases Act on behalf of the Northern Territory Minister or the Administrator of the Northern Territory.

231                      Part 4 of Schedule 1 to the NTNER Act (referred to in s 43(1)(a) set out above) is headed “Town Camps”. Clause 69 of that Part is headed “Alice Springs”. The land comprising all the Alice Springs town camps the subject of these proceedings are listed in that clause.

232                      The Crown Leases granted in favour of the Housing Associations referred to above were granted by the Commonwealth pursuant to s 9 of the CL Act, which relevantly provides:

9          Power to alienate land

 

(1)        Subject to this Act, the Minister may, in the name of the Territory, by instrument in the appropriate form under the Land Title Act, grant an estate in fee simple in or a lease of Crown land.

Part 4, Division 2, Subdivision B of the NTNER Act largely mirrors Subdivision A (ss 43 and 44 set out above) in respect of the CL Act.  Sections 45 and 46 provide:

45        Effect of Crown Lands Act

 

(1)        The Crown Lands Act has effect, in relation to the following land that is the subject of a lease granted under that Act, subject to the modifications in this Subdivision:

(a)        land referred to in Part 4 of Schedule 1 to this Act;

(b)        any land in the Northern Territory prescribed by the regulations for the purposes of this section.

(2)        The Crown Lands Act, as modified by this Subdivision, has effect as a law of the Northern Territory.

46        Modification of Crown Lands Act

 

(1)        The Crown Lands Act has effect, in relation to land referred to in section 45, as if:

(a)        references in the following provisions of that Act to the Northern Territory Minister or the Administrator included references to the Commonwealth Minister:

(i)         sections 38, 77, 81, 82, 83, 84, 85 and 87;

(ii)        paragraph 76(1)(a);

(iii)       subsection 80(1); …

…

(2)        To avoid doubt, the Commonwealth Minister forfeits a lease of land, or resumes land, under the Crown Lands Act on behalf of the Northern Territory Minister or the Administrator of the Northern Territory.

233                      The Special Purposes Leases and Crown Leases broadly require that the particular Housing Associations use the Alice Springs town camps land only for maintaining an Aboriginal communal settlement. For example, the Special Purposes Lease for the Mount Nancy Housing Association Inc includes the covenant:

2.         That the lessee will use the land only for the purposes for which it is leased; viz: Establishment, Development [sic] and maintaining a communal settlement for the use of the Mount Nancy Housing Association.

234                      By way of further example, the Crown Lease granted to Inarlenge Community Inc has a purpose of “Aboriginal Camp Buildings and ancillary”. The purpose of the Crown Lease granted to Karnte Aboriginal Corporation is “Aboriginal Residential Housing Area”.  The Minister pointed out that not all the leases are in identical terms, and in particular that only the Mount Nancy Housing Association Inc lease limits the use to the purposes of the particular Housing Association.  However, nothing was really made of those distinctions.  For present purposes, I am satisfied that all the Special Purposes Leases and Crown Leases to the Housing Associations imposed restrictions to the effect that the leased land was to be used for the purpose of Aboriginal community living and ancillary activities.

235                      Section 9 of the SPL Act provides that the land over which a Special Purposes Lease is granted may not be used for any other purposes.  It provides:

9          Land not to be used for other than specified purposes

 

The land comprised in a lease granted under this Act shall not be used for any purpose other than the purpose, or a purpose ancillary to the purpose, for which the lease was granted.

236                      The potential consequence of a failure to comply with s 9 of the SPL Act is forfeiture of the lease: s 23(1)(a) SPL Act provides:

(1)        Where –

(a)        the land comprised in a lease is being used for a purpose other than the purpose, or a purpose ancillary to the purpose, for which the lease was granted;

…

The Minister may by notice in writing to the lessee, in the manner specified in subsection (2) of section 12, forfeit the lease.

237                      As with the power of resumption, the forfeiture power under SPL Act has been modified pursuant to s 44 NTNER Act to include reference to Commonwealth Minister: s 44(1)(a)(ii) (set out above).

238                      Likewise with the Crown Leases, s 38 of the CL Act provides:

38        Breach of conditions

(1)        If the Minister is satisfied that a lessee has failed to comply with a condition of a lease, the Minister may give written notice of the breach to the lessee to furnish to the Minister, within the time specified in the notice, an explanation of why the lessee has not complied with the condition.

That section then provides for the lessee to furnish an explanation for the alleged breach of condition by way of notice, and then continues in s 38(4):

(4)        If a lessee fails to comply with a notice under subsection (3)(d) within the time specified in the notice, the Minister shall forfeit the lease.

The holder of a Special Purposes Lease under the SPL Act or a Crown Lease under the CL Act has a statutory right to transfer the whole or a part of the lease, or sub-let the whole or a part of the land comprised in the lease, subject to consent from the relevant minister (see s 6(1) SPL Act and s 46 CL Act).

The Proposed 40 Year Subleases

239                      The proposed 40 year subleases are to be made between a Housing Association, the Executive Director, the Northern Territory and the Chief Executive Officer (Housing). In essence, the proposed subleases would involve the Commonwealth being granted a sublease over the land comprising the Alice Springs town camps by each of the Housing Associations, such subleases to be administered by the Commonwealth, for a period of 40 years.

240                      Pursuant to s 20CA of the ALR Act, if the Housing Associations are considering granting subleases of the Alice Springs town camps to the Commonwealth, they may request the Minister to direct the Executive Director to enter into subleases on behalf of the Commonwealth and administer the subleases.  It is common ground that, by the proposed subleases entered into by the Housing Associations, s 20CA has been enlivened.  The expression “town camp” is defined in s 20CA(5) to mean land leased primarily for residential, community or cultural purposes for Aboriginal people under either the SPL Act or the CL Act.  Each of the leases from the Northern Territory to the Housing Associations in respect of the Alice Springs town camps falls within that definition.

241                      The Executive Director is a Commonwealth office, established under s 20B of the ALR Act.  The Executive Director’s functions under s 20C include the following:

(ac)      if the Minister has agreed to a request under subsection 20CA(2) in relation to a sublease, and the Commonwealth intends to enter into the sublease – to enter into, on behalf of the Commonwealth, the sublease; and

(ad)      to administer subleases covered by paragraph (ac), including administering other rights and interests derived from such subleases, in accordance with their terms and conditions; …

Those subclauses mirror s 20C(aa) and (ab) dealing with leases rather than subleases.

242                      Each proposed sublease from a Housing Association is in the same template form.

243                      The proposed subleases commence, after describing the parties, with a section headed “Background”.  They provide as follows:

A.        The Association is the registered proprietor of a lease in perpetuity of the Living Area.

B.        The parties acknowledge that the residents living on the Alice Springs Living Areas are living in very poor conditions and it is very important to improve the health and standard of living of those residents. The Australian Government and the Northern Territory Government have stated their intention to undertake a capital works program to assist in improving the standard of living of those residents.

C.        On 10 July 2008, the Association signed the Agreed Work Plan with the Tangentyere Council, the Australian Government and the Territory Government which described the key terms agreed by the parties in relation to the grant of the Sublease.

D.        The Australian Government has stated its intention to “close the 17 year gap” in life expectancy between Indigenous and non-Indigenous Australians, and that this Sublease opens the way for substantial government investment in improved Infrastructure and housing on the Alice Springs Living Areas as a step to achieving this goal.

E.         The Australian Government wishes to substantially improve:

(i)         the quality and availability of Infrastructure and housing on the Alice Springs Living Areas;

(ii)        the level of maintenance and repair to the housing and Infrastructure on the Alice Springs Living Areas;

(iii)       the quality of tenancy management on the Alice Springs Living Areas; and

(iv)       Indigenous employment and training outcomes.

F.         To help achieve these aims the Australian Government has requested the grant of this Sublease to the EDTL and has offered to make up to $100 million funding available via SIHIP in order to upgrade and increase the housing and Infrastructure located on the Alice Springs Living Areas during the 5 years from the commencement of the first Alice Springs Living Area Sublease.

G.        The Association has requested that the EDTL enter into the Sublease on behalf of the Commonwealth and administer the Sublease.

H.        The Parties have agreed that, on the terms and conditions set out in this Sublease, the Living Area (including all Improvements and Services) will be leased to the EDTL by the Association pursuant to *section 46 of the Crown Lands Act / section 6 of the Special Purposes Leases Act* [delete inapplicable].

I.          The Parties acknowledge that this Sublease is intended to support development and investment in the Alice Springs Living Areas and improve the housing and Infrastructure in the Alice Springs Living Areas, including by:

(i)         the expenditure of up to $100 million in accordance with SIHIP;

(ii)        the development and implementation of policy which has regard to the ongoing Infrastructure and housing needs on the Alice Springs Living Areas;

(iii)       improving the quality of design and construction of new housing on the Alice Springs Living Areas;

(iv)       improving the quality of housing management in the Alice Springs Living Areas including with respect to tenancy management, repairs and maintenance and tenant consultation and participation having regard to the needs and requirements of the residents of the Alice Springs Living Areas;

(v)        increasing the supply of affordable Indigenous rental housing through the expenditure of up to $100 million in accordance with SIHIP; and

(vi)       increasing Indigenous employment and training outcomes.

J.         The Parties acknowledge that decisions in relation to the housing, Infrastructure and tenancy management on the Alice Springs Living Areas will be made in consultation with the residents and have regard to the needs and requirements of residents.

K.        The Association has received consent from the Northern Territory Minister as required by *section 46 of the Crown Lands Act / section 6 of the Special Purposes Leases Act* [delete inapplicable] for the grant of this Sublease.

L.         The Commonwealth Minister has agreed to the Association’s request in accordance with section 20CA of the Land Rights Act.

M.        The EDTL is capable of receiving a grant of a sublease pursuant to section 20C of the Land Rights Act.

Those matters cover the criteria in s 20CA(1), (2) and (3) so as to enable the Executive Director to enter into the proposed subleases, as contemplated by s 20C(ac).  The initials EDTL in the proposed subleases refer to the Executive Director.

244                      I note the definitions in clause 1 of the proposed subleases include definitions of the “Alice Springs Living Area” to encompass the Alice Springs town camps, and tie the area to that referred to in the NTNER Act by subclauses 69(1) to 69(10) and 69(12) to 69(17) of Part 4 of Schedule 1 of the NTNER Act.  Clause 1 also includes definitions of “Housing Authority” to include the Council and any entity which provides community or public housing; of “Housing Management Agreement” to mean a Living Area Underlease or other contract or agreement granted by the Executive Director to a Housing Authority “to manage or provide community or public housing services and related Infrastructure (and all purposes incidental thereto)”; and of “Living Area” to refer to the land described in Item 1 of the Schedule, which is to refer to the Housing Association’s particular town camp land.  “SIHIP” refers to the Strategic Indigenous Housing and Infrastructure Program referred to above.

245                      There are other definitions in clause 1 of the proposed subleases to which it will be necessary to return.  However, as the proposed subleases are so critical a document to the Sublease proceeding, it is helpful to return to their overall structure.

246                      There is a condition precedent to entering into a particular sublease, specified in clause 2.1, namely:

(a)        This Sublease is conditional upon one of the following conditions being satisfied by 30 September 2009, or such later date as the Parties agree:

(i)         at least ten (10) of the Alice Springs Living Areas (including the Living Area) are the subject of a written agreement in the form of a sublease between the registered proprietor of the Alice Springs Living Area and the EDTL, the Commonwealth or the Territory to grant a leasehold interest of the whole of the Alice Springs Living Area to the EDTL, the Commonwealth or the Territory (as the case may be) for a minimum term of 40 years; or

(ii)        the Commonwealth Minister has determined in writing that there are appropriate tenure arrangements in place in the Alice Springs Living Areas (or some of them) to facilitate SIHIP investment.

The requirement in clause 2.1(a)(i) appears to have been met. The expression “appropriate tenure arrangements” in clause 2.1(a)(ii) is not defined, but nothing turns on that because the condition in clause 2.1(a)(i) has been met.

247                      Clause 2.2(a) of the proposed subleases contains the critical term:

The Association grants to the EDTL 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).

That is supported by clause 3 by which, relevantly, the particular Housing Association mutually declares that it is empowered to enter into the proposed sublease pursuant to s 6 of the SPL Act or s 48 of the CL Act and to exercise the powers of a sublessor under the proposed sublease.

248                      Clause 5(a) provides that “EDTL must pay the Association $1 if demanded by the Association (Sublease Payment)”.  The direct payment to the particular Housing Association is therefore a nominal one.

249                      The real financial commitment emerges from clause 6 of the proposed subleases.  Clause 6 is headed “SIHIP Investment” and provides:

(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.

250                      It should be observed that, although the commitment is to spend $100 million within five years of the commencement of the first sublease, clause 6(c) makes it clear that that expenditure is not committed to the particular “Living Area”, that is the area over which the particular Housing Association has entered the proposed sublease.  It is a commitment to expend $100 million on the Alice Springs town camps collectively.  I note also clause 6(d), ensuring the Northern Territory adheres to the “SIHIP consultation processes” in relation to the expenditure of the $100 million.  The SIHIP consultation processes are not defined in the proposed subleases.

251                      Clause 7.2 of the proposed subleases deals with existing tenants of the Alice Springs town camps.  It provides:

(a)        The Parties acknowledge that some natural persons (Tenants) were in occupation of the land in the Living Area immediately before the Commencement Date under an arrangement or understanding with a Housing Authority. The Parties agree that such persons have the right to continue to occupy and use that land, and the Improvements on it, on the same terms and conditions as at the Commencement Date but subject to the terms of this Sublease (Tenant’s Right of Occupation).

(b)        Subject to the terms of any Housing Management Agreement from time to time, the Parties acknowledge that any money in the nature of rent or licence fees payable to the Housing Authority under or in connection with the Tenant’s Right of Occupation is payable to the EDTL from the Commencement Date.

(c)        Subject to the terms and conditions of a Tenant’s Right of Occupation, the EDTL, or if there is a Housing Management Agreement the Housing Authority, may terminate a Tenant’s Right of Occupation provided that the EDTL or Housing Authority (as the case may be) has used their best endeavours to facilitate the grant of a tenancy agreement to the person holding the Tenant’s Right of Occupation.

252                      The Residents submit that their existing tenancy arrangements are vulnerable under the proposed subleases.  They refer to clause 6(b), which makes the expenditure of $100 million conditional upon access to the town camps to upgrade or construct dwellings and infrastructure.  In effect, if the Northern Territory cannot gain the access necessary to carry out particular work, the expenditure of the $100 million will not be made in that area and, in theory, if it cannot gain access to any of the areas of the town camps it will be relieved of the obligation to incur that expense.  To make the incurring of expenditure conditional in that way does not change the extent of the grant in clause 2.2(a).  I reject the Residents’ contentions below at [260] to [266].

253                      The implementation of the overall plan to improve housing and facilities in the town camps is built into the proposed subleases.  Clause 10 provides for a Housing Management Agreement, to enable a Housing Authority to provide housing services to the Aboriginal people in the town camps.  It relevantly provides:

10.1     Housing Management Agreements

(a)        The EDTL must use its best endeavours to ensure that there is a Housing Management Agreement to enable a Housing Authority to provide housing services to Aboriginals in the Living Area.

(b)        Subject to the provisions of this clause 10, the EDTL may enter into a Housing Management Agreement if the Housing Management Agreement is with:

(i)         the Territory or Territory Housing; or

(ii)        a Housing Authority other than the Territory or Territory Housing and has been approved by the Territory and it will commence after the third anniversary of this Sublease.

(c)        The EDTL must:

(i)         include a clause in each Housing Management Agreement which requires the Housing Authority to Consult with the Association in relation to housing and tenancy management policies and procedures (at intervals of not less than every 6 months), as they relate to the Living Area; and

(ii)        procure that the relevant Housing Authority complies with its obligations under the Housing Management Agreement including the clause described in clause 10.1(c)(i) above.

…

10.3     Grant of Living Area Underlease

(a)        Subject to the provisions in this clause 10, the Association acknowledges that the EDTL may grant Living Area Underleases provided that the EDTL ensures that:

(i)         if the Living Area Underlease will commence before the third anniversary of this Sublease, it is granted to:

(A)       the Territory or Territory Housing;

(B)       a Services Provider; or

(C)       the Association or the Association’s nominee;

…

10.4     Grant of Living Area Underlease of Community Land

The EDTL may grant a Living Area Underlease of the Community Land to the Association.

10.5 Grant of Living Area Underlease of Vacant Land

(a)        The Association or the Association’s nominee (Applicant) may request the EDTL to grant it a Living Area Underlease of Vacant Land in the Living Area.

…

(e)        The EDTL must not grant a Living Area Underlease to the Applicant over a Housing Area without the consent of the Territory.

The term “Housing Management Agreement” is defined in clause 1.1 of the proposed subleases as follows:

Housing Management Agreement means a Living Area Underlease or other contract or agreement granted by the EDTL to a Housing Authority to manage or provide community or public housing services and related Infrastructure (and all purposes incidental thereto).

254                      In substance, under clause 10.1(a) the Executive Director is to ensure that there is a “Housing Management Agreement” to enable a “Housing Authority” to provide housing services to Aboriginal persons in the Living Area. Under clause 10.1(b) the Housing Management Agreement is to be entered into:

(a)        for the first three years, with the Northern Territory or Territory Housing;

(b)        after the first three years, with a Housing Authority approved by the Territory.

255                      The separate obligation of the Housing Authority to consult with a Housing Association (clause 10.1(c)(i)) might suggest that a Housing Association may not become a Housing Authority, although the Housing Associations are not specifically precluded from becoming Housing Authorities.  I do not think that is the case.  Clause 10.1(c)(i) clearly has work to do by requiring such consultation during the first three years and consultation by a Housing Authority which is not a Housing Association after that time.  The tender process prescribed by clause 11, to commence before the first three years has expired, would permit a Housing Association to tender to be a Housing Authority after that time.  The term “Housing Authority” is also defined in clause 1.1.  It means a body which provides community or public housing and, for the avoidance of doubt, includes the Northern Territory, the Council, and Central Australian Affordable Housing Corporation.  It does not exclude the Housing Associations.

256                      Under clause 10.3(a), the Executive Director may grant “Living Area Underleases”. For the first three years, the Executive Director is restricted to granting a Living Area Underlease to the Northern Territory, Territory Housing, a “Services Provider” (defined in clause 1.1 to mean a person who provides Services in the Living Area) or the Housing Association or its nominee (clause 10.3(a)(i)). After the first three years, no such restriction applies so that it is in the discretion of the Executive Director.

257                      In my view, clauses 10.4 and 10.5 are permissive and operate in respect of community land and vacant land.  They do not confine the scope of clause 10.3.  In other words, for example, a Living Area Underlease of Community Land could be held by the Housing Association, but could also be granted to the Northern Territory.  They do not confine the Executive Director’s powers to grant such underleases to entities other than the Housing Association, but they direct a focus to the Housing Association when the Executive Director considers what to do.

258                      In addition, it should be noted that the Executive Director’s powers under clauses 10.3, 10.4, 10.5 and 10.6 are permissive only.

259                      Under clause 10.6(a), the Executive Director may grant “Living Area Licences”. Again, for the first three years, the Executive Director is restricted to granting a Living Area Licence to the Northern Territory, Territory Housing, a Services Provider or the Housing Association or its nominee (clause 10.6(a)(i)). After the first three years, no such restriction applies so that it is in the discretion of the Executive Director.

260                      Clause 2.2(a) (set out above) makes the proposed subleases “subject to and concurrent with any Registered Interests and any Rights of Occupation … for a term of 40 years”. “Registered Interest” is defined in clause 1.1 to mean any interest registered on the certificate of title. “Right of occupation” is defined to include “a Tenant’s Right of Occupation”, which in turn is defined to have “the meaning given to that term in clause 7.2(a)”.  Hence, the grant under the proposed subleases is a limited one.  The Residents submit that clause 7.2(a) (set out above) appears to reverse the effect of clause 2.2(a) and purports to make the tenants’ rights of occupancy subject to the subleases. The Minister, in my view rightly, submitted that when clause 7.2 is read as a whole, and in the broader contractual context, including clause 2.2, its effect is clearly to preserve the rights of existing tenants whilst at the same time giving effect to the altered administrative arrangements.  Clause 7.2(b) results in the rent or other monies payable by a tenant under a tenancy agreement to become payable to the Executive Director.  Although clause 7.2(c) might appear at first glance to empower the Executive Director to terminate an existing tenancy agreement, the power to do so is expressly made subject to the rights of the tenants recognised in clause 7.2(a).  In my view, when viewed in the context of all of the terms of the proposed subleases, the words “subject to the terms of this Sublease” at the conclusion of clause 7.2(a) merely reflect the substitution of the Executive Director as the “landlord” under the existing tenancy agreements. 

261                      The Residents further submit that clause 22.1 purports to give superior rights of quiet enjoyment to the Executive Director, even though the tenants have rights of quiet enjoyment of their dwellings. That clause relevantly provides:

If the EDTL pays the Sublease Payment (if demanded) and otherwise complies with the terms of this Sublease, the EDTL may, subject to any Registered Interest, peaceably hold and quietly enjoy the Living Area during the Term without disturbance or interruption from or by the Association or any other person or persons claiming under the Association during the Term.

262                      I do not consider that those rights should be taken to extend beyond the grant under clause 2.2(a) of the proposed subleases.  Consequently, if as I have tentatively concluded, the grant is subject to existing tenancy agreements between a Housing Association and a tenant, including the rights to quiet enjoyment under the tenancy agreement, those rights are not diminished by clause 22.1 of the proposed subleases. 

263                      The Residents further refer to clause 8.1(b) which contains an undertaking by the Housing Association and the Executive Director to “do all things reasonably necessary to enable … persons holding Rights of Occupation to enjoy and exercise their rights, title and other interests under their … Rights of Occupation”. The Residents submit that, as this clause is made “Subject to the terms of this Sublease”, it is inconsistent with the tenants’ existing rights of quiet enjoyment. For the same reasons, and as submitted by the Minister, that contention should be rejected. The words “Subject to the terms of this Sublease” ensures that clause 8.1(b) does not prevent the Executive Director from terminating a tenant’s Right of Occupation, in accordance with the terms of that Right of Occupation, and in accordance with clause 7.2(c). Further, the Minister notes that clause 9.1(b) provides that existing improvements subject to a Right of Occupation are included in that Right of Occupation, for the period of the Right of Occupation.  That confirms that existing tenancies are preserved under the proposed subleases.

264                      Consequently, I do not consider the Residents’ legal position as tenants of Housing Associations is adversely impacted by the proposed subleases.  Although the documents referred to when discussing the sequence of events above do not, of course, operate as an aid to construction of the proposed subleases, with one qualification, that is consistent with the material provided from time to time to the Residents by or on behalf of the Minister.  The one qualification is the reference to there ultimately being a need for the Residents to enter into new tenancy arrangements with a new landlord.  Whether or not that reference is a little inaccurate or simply concerned their status in the event of compulsory acquisition, I think the legal position of the Residents under the proposed subleases is clear: their position as tenants under their existing tenancy agreements is preserved.  And that was the general import of the Minister’s communications to them.

265                      It is obvious, as Ms Edwards said in her evidence, that the upgrading or replacement of a dwelling may require its residents to be temporarily located.  There are few who would not tolerate a temporary relocation to secure improved homes or services.  But, on its proper construction, the right of a tenant not to accept such facilities remains. 

266                      In my judgment, under the terms of the proposed subleases (as acknowledged by the Minister), the legal effect of the proposed subleases is that there is no alteration of any existing right of the pre-existing tenants, the proposed subleases will not alter any rights conferred by the tenancy agreements between the Housing Associations and the tenants, and the interests granted by the proposed subleases will remain subject to the tenancy agreements and other rights of occupation.

267                      The Residents submit that, under the proposed subleases, the rights of the Housing Associations are virtually non-existent for at least 40 years.  That is because the Executive Director controls who is a Housing Authority, the parties to any Housing Management Agreement and to the Living Area Underleases and Licenses.  For the first three years, the Housing Authority must be the Northern Territory or Territory Housing, and even if thereafter a Housing Association becomes a Housing Authority, it “would be acting as the agent under the direction of the Executive Director”.

268                      It is necessary to determine how accurate that submission is.

269                      By the proposed subleases, each Housing Association has granted a sublease over its town camp area effectively to the Executive Director for at least 40 years.

270                      The direct benefits of the proposed subleases are not insubstantial.  It is not simply the $1 specified, if claimed.  The Executive Director receives the rental payable under the tenancy agreements and assumes the obligations of the Housing Association under its tenancy agreements, including the repair and maintenance of existing dwellings and other improvements, and has the obligation to comply with the terms of the head leases and any planning and like laws relating to the town camps: clauses 9.2, 9.4, 17.2 and 17.3 of the proposed subleases.

271                      The “indirect” benefits (“indirect” in the sense that they do not as a matter of strict legal entitlement flow to any particular Housing Association), are the commitment by the Northern Territory to spend $100 million in the Alice Springs town camps within five years: clause 6(a).  In addition, during the negotiation process, the Agreed Work Plan has led to the Council being given direct funding of $5.3 million, and funding of up to $200,000 has been provided for the establishment of the Central Australian Affordable Housing Company.  The latter benefits are not commitments undertaken by reason of the proposed subleases.

272                      Each Housing Association is substantially, but not totally, alienated from the prospect of participating in what happens in its town camp area.  It has no right to control the grant of Living Area Underleases and Licences; they are a matter for the Executive Director.  The Living Area is to be managed by a Housing Authority which, for the first three years is to be the Northern Territory or Territory Housing.  In that period, the Housing Associations may (but has no right to) be granted an underlease of community land: clause 10.4, and may request and be granted (but has no right to be granted) an underlease of vacant land: clause 10.5.  It may also be granted an underlease or licence in respect of other areas in the town camp: clauses 10.3 and 10.6.  After three years, the Housing Association may become a Housing Authority, but there is no right to be given that status and no legally binding assurance that it will be given that status.  In addition, it retains its status under the relevant Special Purposes Lease or Crown Lease.  Apart from what the Housing Associations have ceded by the proposed subleases, they may and no doubt will continue to perform their functions under their Constitutions and Rule Books.  I will return to that issue later in these reasons.

273                      The Housing Associations are given a consultative role under the proposed subleases.

274                      Each Housing Management Agreement must require the Housing Authorities to consult with the Housing Associations in relation to housing and tenancy management policies and procedures, at least six monthly: clause 10.1(c).  That does not extend to a right to be consulted by the Executive Director about the terms of the Housing Management Agreement itself.  The Housing Associations have a role in developing Home Ownership Guidelines to enable Aboriginal people to acquire long-term secure tenure of houses: clause 13, and in negotiating appropriate arrangements with Service Providers: clause 7.3(f).

275                      More generally, under clause 20 there is to be a Consultative Forum comprising the Executive Director and five nominees of the Housing Associations who have granted a sublease.  The Forum is to:

facilitate communications and to discuss land use and other issues arising in relation to the performance of [the proposed subleases] having regard to the interests of [the Housing Associations] and other legitimate community interests.

The nominees from the Housing Associations are to consult with the residents of the town camps.  The Forum does not have power to bind the parties to the proposed subleases.  The Executive Director is obliged to consult with the Forum (by clause 20.5(a)) in relation to:

(i)         the future development of the Subleased Alice Springs Living Areas including the housing and Infrastructure needs of the Subleased Alice Springs Living Areas;

(ii)        Housing Management Agreements or Living Area Underleases which the EDTL proposes to grant, other than a Housing Management Agreement to the Territory or Territory Housing that will commence within the first 3 years of this Sublease; and

(iii)       material contracts which the EDTL proposes to enter into relating to the Subleased Alice Springs Living Areas.

276                      The Residents also contend that they will be worse off by the proposed subleases. As a matter of law, I do not consider that is so.  I have dealt with that issue above.  There are a few additional matters which should be noted.  On the evidence, the rent payable from time to time under the tenancy agreements with the Housing Associations was increased.  There is the prospect that over time, through the Executive Director, the rents might further increase.  That can only occur to the extent that the tenancy agreements in force permit.  There is a loss of control as members of the Housing Association of the selection, from the members, of who gets a tenancy of new dwellings in the town camp, but the subleases are subject to the head lease, and so only members of the Housing Associations are eligible.  There was no dispute that the proposed subleases would be subject to the terms of the head leases, entitled to the benefits and subject to the burdens of their covenants: Stewart v Goldman & Co Pty Ltd (1947) 64 WN (NSW) 155 at 158.  There is also a loss of control as members over the income and expenditure of the Housing Associations, and over what action is taken in the event of non-payment of rent or of other breaches of the terms of a tenancy agreement, because those matters become the function and responsibility of the Executive Director, the Northern Territory or Territory Housing, and then through the Housing Authority.  Those decisions may only be made after the consultation with the Housing Associations imposed by clause 10.1(c).  As a matter of strict interpretation, despite the consultation provided for, the Executive Director or a Housing Authority may adopt a stricter or different view of what is appropriate on those matters than the Housing Associations have done in the past.  Thus, whilst I have concluded that the existing tenancy rights and obligations are preserved by the proposed subleases, there is some scope for those rights and obligations to be enforced in a somewhat different way than has occurred in the past.  There is some evidence that, in the past, Territory Housing where it has had such a role has adopted a less tolerant attitude to tenants’ contraventions of the terms of the tenancy agreements than have the Housing Associations.

277                      The Northern Territory has pointed out that, if the Northern Territory or Territory Housing is the relevant Housing Authority, any new tenancy agreements will comply with the requirements of the Housing Act (NT) and the Housing Regulations (NT).  They are not requirements which in any material way differ from the terms of the existing tenancy agreements.  It has also pointed out that, where it has performed or is performing that role in other Aboriginal Communities, it has established a Housing Reference Group to assist in the selection of new tenants from amongst the eligible persons and to ensure its awareness of cultural concerns and issues which might affect its management of such housing.  Consultation processes for such purposes are built into the proposed subleases.  There is no reason to think that, despite the concerns of the Residents, the Northern Territory or Territory Housing (or any entity) appointed as a Housing Authority under one of the proposed subleases would act inappropriately or unreasonably or inconsistently with the shared intention of improving the housing and support facilities in the town camps.  I, therefore, do not consider that the concerns of the Residents discussed in the preceding paragraph of these reasons provide a sound reason for upholding the Residents’ primary contentions.

Execution of the Proposed Subleases by the Housing Associations

278                      A sublease has been executed by each Housing Association that is a party to the Sublease proceeding, but has not been exchanged. The executed subleases are currently held by the Council, pending the outcome of these proceedings. 

279                      Clause 10.1 of the Constitutions of the Housing Association deals with the common seal of the Housing Associations and its use.  Clause 10.1 relevantly provides:

(b)        The common seal of the Association must not be used without the express authority of the Management Committee and every use of that common seal must be recorded by the Secretary.

…

(d)        Every document to which the Common Seal is affixed shall be countersigned by two Management Committee members in the following form: …

280                      Section 99.5 of the CATSI Act provides that the Housing Associations incorporated under that Act may execute a document with or without using the common seal, if the document is signed by two directors, a director and secretary, or if the corporation has only one director, by that director.

281                      The current version of the Rule Books do not affect the ability of the Housing Associations incorporated under the CATSI Act to execute documents in accordance with that Act.

282                      The execution of the proposed subleases by the Housing Associations has been done in each case by affixing the common seal of the respective Housing Association and signing and countersigning the proposed sublease.

283                      Before turning to the particular contentions, it is necessary to consider the authority of the Housing Associations to decide to enter into the proposed subleases through their respective Management Committees or directors.  That issue arises because the decisions in each instance were made by a “members” meeting, including (I find) the Management Committees, but not by a properly convened special general meeting of the members. 

284                      On 16 July 2009, the Executive of the Council considered the stage of negotiations.  It noted the deadline imposed by the Minister.  It decided to organise meetings of the members of the Housing Associations, so they could decide whether to agree to the proposed subleases.  In the next few days meetings of the members of each of the Housing Associations were arranged.  Notices were distributed which gave only several days’ notice of what was called in the Notices a “Special General Meeting”.

285                      Between 17 July 2009 and 28 July 2009, each of the Housing Associations listed below convened a “meeting” of its members at which resolutions were passed authorising members of each respective Management Committee to enter into a sublease.  I infer that the Management Committee of each Housing Association was present at those meetings.  There is no suggestion to the contrary.  They would each have been acutely aware of the issue, both through the Council and the lengthy process of negotiation.

286                      The Ilparpa Aboriginal Corporation unanimously passed a motion on 23 July 2009 authorising two members of the Management Committee to sign, on behalf of the Corporation, “all necessary Legal Agreements, including a Sublease, with the Australian Government and the Northern Territory Government, as recommended by Tangentyere Council”.

287                      The Aper-Alwerrknge Association Inc unanimously passed a motion on 21 July 2009 in virtually identical terms.

288                      The Mount Nancy Housing Association Inc passed a motion on 17 July 2009 in virtually identical terms, with all agreed with the exception of Ms Shaw who voted against the motion.

289                      The Anthelk Ewlpaye Association Inc unanimously passed a motion on 22 July 2009 in virtually identical terms.

290                      The Akngwertnarre Association Inc unanimously passed a motion on 20 July 2009 in virtually identical terms.

291                      The Ewyenper-Atwatye Association Inc unanimously passed a motion on 27 July 2009 in virtually identical terms.

292                      The Yarrenyty Artlerre Association Inc unanimously passed a motion on 24 July 2009 in virtually identical terms. That motion was, according to the document in evidence, seconded by Ms Lynch, the thirteenth applicant in the Sublease proceeding.

293                      The Anthepe Housing Association Inc unanimously passed a motion on 27 July 2009 in virtually identical terms.

294                      The Inarlenge Community Inc unanimously passed a motion on 22 July 2009 in virtually identical terms.

295                      The Ilyperenye Association Inc unanimously passed a motion on 24 July 2009 in virtually identical terms.

296                      The Mpwetyerre Aboriginal Corporation unanimously passed a motion on 22 July 2009 in virtually identical terms. That motion was, according to the document in evidence, moved by Mr Wirri, the seventh applicant in the Sublease proceeding.

297                      The Karnte Aboriginal Corporation unanimously passed a motion on 23 July 2009 in virtually identical terms. That motion was, according to the document in evidence, seconded by Ms Gillen, the third applicant in the Sublease proceeding.

298                      The Ilperle Tyathe Association Inc unanimously passed a motion on 20 July 2009 in virtually identical terms.

299                      Although of no legal significance, I note that the Executive of the Council then on 31 July 2009 resolved formally to endorse the proposed subleases, and recommended them for execution by the Housing Associations in accordance with their individual resolutions.

300                      Each of the Housing Associations has signed the proposed subleases in the manner required by its respective Constitution and, in the case of those incorporated under the CATSI Act, in accordance with Rule 99.5 of that Act.

301                      The Residents submit that on the evidence the members of the Housing Associations did not pass effective resolutions under their respective Constitutions or Rule Books.

302                      It is plain from the provisions of the Constitutions and Rule Books of the Housing Associations set out above, however, that both in respect of the Housing Associations established under the Associations Act (NT) and those established under the CATSI Act, that the Constitutions and Rule Books do not require a resolution of the members to be passed in order to enter into the proposed subleases. The business of a Housing Association incorporated under the Associations Act (NT) must be managed by or under the direction of the Management Committee, and the Management Committee may exercise all the powers of the Association except those matters that the Act or the Constitution requires the Housing Association to determine through a general meeting.  Subject to the primary attack on the powers of the Housing Associations to have entered into the proposed subleases at all, there are no provisions in the Constitutions requiring a general meeting of Members to approve the Housing Associations entering into arrangements with respect to the land leased by them, nor is there any provision requiring a general meeting of Members to approve any arrangements or transactions entered into by the Management Committees. In respect of the Housing Associations incorporated under the CATSI Act, the directors of those Housing Associations have broad powers to manage the business of the corporation (s 274.1 CATSI Act), and there is no requirement for a general meeting to approve entry by the Housing Associations into arrangements or other transactions involving the Housing Associations’ property.

303                      The Residents submit alternatively that Management Committees were not convened to authorise the use of the common seal, and so there was no proper authorisation for the Housing Associations to purport to execute the proposed subleases. I do not accept that submission.  The lack of convening of a Management Committee may have affected the Housing Association’s ability to use the common seal, but it does not mean that there was no proper authorisation for the Housing Associations to execute the proposed subleases.  As noted above, there is no requirement in either the Constitutions or Rule Books or in the Associations Act (NT) or the CATSI Act for the Housing Associations to have convened a meeting of the Management Committee in a particular way in order to agree to enter into the proposed subleases.  In any event, I am not persuaded that the Management Committee, or the directors, of the Housing Associations did not together decide to request pursuant to s 20CA(2) of the ALR Act, and then to grant, the proposed subleases.  To the contrary, I find that they have done so.  Indeed, in their application it was the Residents’ position that they had done so, albeit without power to have done so, or in breach of duty for having done so.  That is why the Housing Associations were joined as respondents to the Sublease proceeding.  Indeed, paragraph 4(b) of the Further Amended Application asserts that the resolutions of the Management Committees, or the directors, to do so were in breach of their duties to the Housing Associations and their members, and it seeks declaratory orders to that effect.  There was, in the light of that assertion, no reason to adduce detailed evidence about how those resolutions or the authority they gave came about.  Their authority to do so may have been given at the “members” meetings convened by the Council or on some other occasion or in some other way.  The evidence did not explore that issue.

304                      As I have concluded that resolutions of the special general meetings of members of the Housing Associations were not necessary for the Housing Associations to agree to grant the proposed subleases, I reject the contention of the Residents (subject to considering their principal contentions) that there has been no valid decision of the Housing Associations to enter into the proposed subleases.

305                      It is also appropriate to note that the Council and the Housing Associations each in fact engaged in extensive consultations with their members, including their tenants, and over a lengthy period of time.  This is not a case where it can be suggested that the Management Committees, or the directors, acted without the opportunity of making themselves fully aware of the views and concerns of the members of the Housing Associations.

306                      The Residents also submitted, that as the relevant transactions have not been completed (in that the executed proposed subleases are currently being held by the Council), and the counter-parties to the proposed subleases are now on notice of the deficiencies in the execution of those proposed subleases, namely that they were not approved by a properly convened special general meeting of the members, then provisions such as s 104.1(4) of the CATSI Act operate, in conjunction with the common law.  That section refers to the indoor management rule and assumptions that can be made by third parties when dealing with corporations (provided for in s 104.5 of the CATSI Act) and provides:

(4)        A person is not entitled to make an assumption in section 104.5 if at the time of the dealings the person knew or suspected that the assumption was incorrect.

307                      As I have decided that there was no such irregularity, there is no need to address that issue further.

Standing

308                      Section 109(1) of the Associations Act (NT) empowers a member of an incorporated association, who believes that a proposed act of the association would be contrary to the interests of the members as a whole, to apply for an order restraining the association from doing a specified act.  Similar powers exist in ss 166.1, 166.5 and 166.10 of the CATSI Act.  In addition, it is not contentious that the Constitutions and Rule Books of the Housing Associations constitute a contract between the Housing Associations and their members and between their members.  Nor is it contentious that the Management Committees or directors of the Housing Associations owed a fiduciary duty to the Housing Associations.  There was no submission that in any way material to the outcome of the Sublease proceeding the content of those several obligations was different.

309                      There is no challenge to the standing of the Residents to bring the Sublease proceeding.

A Stark Choice?

310                      The Residents’ submissions recognised that the Housing Associations were faced with a difficult choice.  They were confronted with the proposed decision, that is that the Minister might decide to compulsorily acquire each of the town camps under s 47 of the NTNER Act.  That would result in the alienation of the town camps land (even if it remained available for their use), which would be most confronting given the recognition of their interests in it by the head leases to the Housing Associations.  Those interests were described as “hard-won land rights”.

311                      The Housing Associations’ submission is that, if they did not agree to enter into the proposed subleases, compulsory acquisition was inevitable and they (and their members and tenants) would lose their legal rights and interests in the land forever.  They chose to maintain their hard-won land rights comprised by the perpetual leases, and to avoid “above all” the dispossession and extinguishment of those rights by compulsory acquisition.  They and their members and tenants have strong familial, spiritual and cultural ties to the land.  They hold the view that, to the greatest extent possible, they have protected and safeguarded the interests and rights of their members and their tenants by the negotiations to the end of July 2009.

312                      As an additional insight into the decisions of the Housing Associations, they also recognise the great benefits to their members and tenants collectively from the proposed injection of $100 million funding.  They submit that there had been years of inadequate funding leading to substandard housing conditions for their members and tenants, including the elderly, women and children.  They had negotiated with the Commonwealth over some 12 months or so, and had secured not insignificant changes to what became the proposed subleases.  It was apparent no further concessions about its terms could be extracted.

313                      In the face of those realities, they submit, they had no choice but to agree to enter into the proposed subleases.  Far from involving any breach of duty or of contact to their members or tenants, it was “overwhelmingly in the best interests of their members” to make the decisions they did.

314                      It is, from a practical and pragmatic viewpoint, easy to understand their decision to enter into the proposed subleases.

315                      The Residents do not accept that the choice of the Housing Associations was so stark.  In the course of submissions, they said that there were other alternatives, including that there would be no compulsory acquisition, because the Minister might not make the proposed decision under the NTNER Act in any event, or might confine any compulsory acquisition to the vacant land only in the town camps, or because the Minister might be prepared to further negotiate the terms of the proposed subleases to reflect more directly and immediately the interests of the Housing Associations through their members in the town camps if the Housing Associations stood firm.

316                      In any event, the Residents contend, the Residents’ position as members of the Housing Associations is so little advanced by the proposed subleases compared to compulsory acquisition as to make the decision of the Housing Associations unjustifiable at law.  Indeed, their submission went so far as to say that in any event the decision of the Housing Associations to enter into the proposed subleases was not legally justifiable, however stark the choice or choices perceived by their Management Committees or directors was.

Will each Housing Association be Acting Contrary to the Interests of the Members as a Whole by Entering into and Perfecting the Proposed Subleases?

317                      The submissions did not distinguish between the position of the Housing Associations incorporated under the Associations Act (NT) or under the CATSI Act, even though their respective Constitutions and Rule Books are a little different.

318                      Their Constitutions and Rule Books, including their purposes and their membership are addressed at some length above.

319                      In my view, there are two steps required to address the primary proposition:

(1)        determining what is authorised by the Constitutions or Rule Books of the Housing Associations; and

(2)        determining whether the proposed conduct of perfecting the grant of the proposed subleases is, in the circumstances, within the scope of that which is authorised or required.

Another way of describing those steps might be to ask whether the grant of the proposed subleases is beyond the express or implied power of the Housing Associations under their Constitutions and Rule Books, whatever organ of the Housing Associations might have made the decision to do so, and secondly whether their grant, although within the express or implied power of the Housing Association under their Constitutions and Rule Books, was not within the powers of the Management Committees or the directors to undertake.  In Rolled Steel Products (Holdings) Ltd v British Steel Corporation [1986] 1 Ch 246, Browne-Wilkinson CJ at 302-5 described the distinction as between ultra vires in the “narrow sense” and ultra vires in the “wider sense”.  His Lordship at 303 noted that Cotman v Brougham [1918] AC 514 recognised that “the objects of a company and the powers conferred on a company to carry out those objects are two different things” (at 303) and remarked at 304:

The critical distinction is, therefore, between acts done in excess of the capacity of the company on the one hand and acts done in excess or abuse of the powers of the company on the other.

Mason CJ in Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146 at 162-3 referred with apparent approval to that distinction.

320                      In the present circumstances, the answer to the first question may answer the second.  That is because the Residents’ position was pitched at two levels.  The first was that the Housing Associations could not agree to enter into the proposed subleases simply because they effectively alienated them from any right to control what happens on the town camps for at least 40 years, irrespective of the benefits that might ensue to their members.  The second was that, even if they could do so, by the particular terms of the proposed subleases, the assured benefits to their members by each proposed sublease were not such that the proposed subleases could reasonably be said to be in the interests of the members of each Housing Association as a whole.

321                      It is important to note that this is not a case where the good faith of those persons who attended the meetings of the Housing Associations in late July 2007, and who resolved that the particular Housing Association should sign the proposed subleases, or of those who signed the proposed subleases, is in issue.  Clearly, it is not.  There was no suggestion by the Residents to the contrary.  It is appropriate to accept, as I do, that those who supported those resolutions and those who then executed the proposed subleases did so in good faith.

322                      In my view, it is also not a case where the commercial judgment of those persons, on a pragmatic basis, can be subject to question.  It is self-evident that, once it is assumed that the only two realistic outcomes are that the proposed subleases be signed alienating control of the town camp areas for 40 years (but subject to the consultative roles of the Housing Associations and possibly more significant roles for them, as discussed above) or alternatively that the town camp areas be compulsorily acquired by the Minister, it was an appropriate commercial judgment on a pragmatic basis to choose the option of the lesser evil of granting the proposed subleases and ultimately retaining the interest in the town camps through the Special Purposes Leases or Crown Leases, unencumbered by the proposed subleases.  Although, as the Residents submitted, there may in fact have been other possible outcomes if the Housing Associations did not agree to grant the proposed subleases, in the light of the communications from the Minister in July 2009, I consider that those who supported the grant of the proposed subleases, and those who signed them for the Housing Associations, cannot be reasonably criticised for assessing the available options as they did.  The Council itself reached the same view about the options.

323                      In my view, the first critical question is, therefore, whether it was within the power of each of the Housing Associations to agree to grant the proposed subleases, having regard to the extent to which an interest in the land comprising the town camps was retained.  That does not involve any assessment of the value of the monetary consideration for the grant of the proposed subleases, because the proposition is that, whatever that consideration, the decision to grant the proposed subleases is beyond the power of the Housing Associations.

324                      To answer that question, it is, I think, a distraction to look to the alternative of compulsory acquisition.  The fact of that being, or being seen to be, the only alternative should not inform what each Housing Association is empowered to do.  It is relevant to the quality of the commercial judgment of each of the Housing Associations by those acting on its behalf, assuming they could enter into the proposed subleases.  I note on that issue (to be addressed below) that as a matter of law, there was no obligation legally enforceable by a particular Housing Association that a particular (or any) part of the $100 million referred to in clause 6(a) of the proposed subleases should be spent on the town camp of the particular Housing Association.  However, as a matter of reasonable and realistic commercial judgment, a significant part of that sum would be spent on each of the town camps of the Housing Associations.  I discuss that issue later in these reasons.

325                      However, if the Constitutions and Rule Books of the Housing Associations do not permit them to grant the proposed subleases to the Executive Director for 40 years, on their terms, then the commercial benefits of doing so will not create the power to do so.  And if they do permit the Housing Associations to grant the proposed subleases, then the assessment of the quality of the commercial benefits for doing so (whether legally enforceable or merely or soundly based expectation) will not limit or confine that power.  In that case, it will be necessary to separately consider whether the proposed conduct of perfecting the grant of the proposed subleases is, in fact, within the scope of that which is authorised; the focus turns more to the second of the two questions I have identified in [319] above.

326                      The Residents say that each Housing Association was established for the purpose of becoming the lessee of its particular Special Purposes Lease or Crown Lease for the purpose of Aboriginal communal living.

327                      That is really an oversimplification of their purposes.

328                      In the case of the Housing Associations incorporated under the Associations Act (NT), their objects set out in clause 2.2 of the Constitutions and Item 1.3 of the Schedule to the Constitutions are firstly “to relieve the poverty, sickness, destitution, distress, suffering, misfortune or helplessness of Aboriginal people in Central Australia” and secondly, having  regard to the circumstances of those people, to advance those objects by means which include the six enumerated means in Item 1.3(b) of the Schedule.  They are set out in [198] above.  Clause 3.1 authorises the doing of “all such lawful things as seem to the Association to be necessary or desirable to advance the objects and purposes of the Association” in order to achieve its objectives.  That power is limited as specified in Item 1.5 of the Schedule.  No submission was made by any party that Item 1.5 had any significance to the present issue.

329                      The definitions in clause 1.1 include “Town Camp” to mean any land leased by the Association, including the land described in Item 1.2 of the Schedule: that is the land comprising their respective town camps [my emphasis].

330                      Membership under clause 4 is confined to eligible persons admitted to membership.  Item 1.7 says that the membership comprises adult Aboriginal persons who apply for, and are admitted to, membership and who are residents of the particular specified town camps.

331                      The objects of those Housing Associations do not expressly state, or confine, their purposes to acquiring the Special Purposes Lease or the Crown Lease of the particular town camp and managing that town camp.  However, that state of affairs underlies the existence of each of those Housing Associations.  That is apparent from the definition of “Town Camp” and the fact of the relevant Special Purposes Lease or Crown Lease.  It is apparent that the Constitutions of the Housing Associations incorporated under the Associations Act (NT) are recent.  Item 1.6 in each instance gives a commencement date of 2006 or thereabouts.  Clause 3.6 says that the Constitutions replace all previous constitutions from that date.  The various Special Purposes Leases and Crown Leases were granted between 1976 and 1981 and in 1983.  Consequently, I am satisfied that, under their Constitutions, the holding of the head lease and the provision of housing and other services to the members at the town camp covered by the particular head lease is an important role of the Housing Associations.

332                      On that basis, however, it does not follow that the Housing Associations must personally procure and provide the housing and services.  Their Constitutions do not prevent them from subcontracting the provision of services to their members to fulfil its objects.  The expressed means of fulfilling their objects are not exclusive.  Clause 2.2 and Item 1.3(b) says the means of doing so include the specified means.  The sub-item most applicable does not confine the means by which obtaining land housing and community facilities are to be achieved for their members.  In particular, it does not require the housing and community facilities be provided directly by the Housing Associations.  And clause 3.1 is also not restrictive in any relevant way.  In fact, the Council has apparently been given the role of managing the various tenancy agreements by the Housing Associations.  It is obvious that the building of new dwellings and the maintenance and repair of existing dwellings may be contracted out.  Many other examples may be given.  It is clear enough that (for example), a Housing Association, in managing the housing stock or maintaining it, could contract with others to provide the services necessary to do so.  Once that step is taken, there is no apparent reason why that contract to do so should be confined to an ad hoc arrangement, and should not include a contract with a third party to do so for a fixed period of time.  That is, it is open to a Housing Association, to decide how it fulfils its objects.  It is the objective of fulfilling those purposes and aims which is the limiting factor in what it may do, or arrange for others to do.

333                      The effect of the proposed subleases is summarised above.  They will remove from the Housing Associations the right to control the nature of any housing improvements or new housing on the town camps for its term.  They give that right to the Executive Director and to the Housing Authority.  The same is true of any infrastructure improvement or new infrastructure.  They remove the right of the Housing Associations to deal with existing tenants or to decide upon and deal with any new tenants for the same lengthy period, although the pool of eligible persons must be its members.  They do provide the opportunity for consultation, and in some respects the opportunity for a more active role for the Housing Associations in respect of vacant land and community land and, after three years, as a Housing Authority, but there is no assurance that that more active role will be granted by the Executive Director.  In substance, in my view, they operate to cede from the Housing Associations to the Executive Director or the Housing Authority the power to address those things in relation to the particular town camp.

334                      Clearly, the proposed subleases are seen by the Housing Associations as an opportunity to meet their primary objectives.  They will result in great improvements in the housing and other community facilities available to their members, and so will relieve the distress, suffering and misfortune of their members.  The “price” is the grant under the proposed subleases.

335                      An analysis of the terms of the proposed subleases however, in my view, reveals that the proposed subleases, if granted, may effectively exclude the Housing Associations from other than the consultative roles referred to above.  For the period of 40 years, they will not have a direct role or responsibility of providing Aboriginal community living or ancillary activities.  The area of the leased land under the head leases is co-terminous with the grant under the proposed subleases.  During the period of the proposed subleases, the Housing Associations will not be entitled to take steps to provide housing or infrastructure in the town camps.  That role and responsibility is ceded by the proposed subleases.  The covenant of quiet enjoyment in clause 22.1 precludes the Housing Associations from doing anything in the areas of the town camps which may disturb or interrupt the Executive Director or any entity performing functions under the proposed subleases from performing those functions.  Their opportunities to perform those functions are dependent upon the preparedness of the Executive Director to accommodate them; they have no legal right to do so.  They may do so only through the direct and indirect (Forum) consultations provided for under the proposed subleases or with the consent of the Executive Director, so as not to contravene the covenant of quiet enjoyment.

336                      Consequently, if the sole or principal objective of the Housing Associations was to hold the head lease and to provide and manage the housing and tenancies for their members, and supporting facilities on their particular town camps, I would be inclined to conclude that the grant of the proposed subleases was so inconsistent with that objective as to be beyond power.

337                      It is necessary to consider whether that is the sole or principal objective of those Housing Associations or whether their objectives are different or more extensive in a relevant way.

338                      I have indicated that I accept that the “context” of the Housing Associations is that each was formed to hold the relevant Special Purposes Lease or Crown Lease from the Northern Territory.  Although not grants of freehold title, their terms show that they are the next best thing: permanent and, in a practical sense, unconstrained title to the town camps land.  Their terms also show that the obligations which the Housing Associations thereby assumed are consistent with the objects of those Associations.  The leased land was to be used for Aboriginal community living and ancillary activities.

339                      The Residents contend that the proposed subleases, for such a lengthy period, removes the sub-stratum for the creation and continuing operation of the Housing Associations as their objects contemplate.  However, it is necessary to pay proper regard to the current Constitutions and Rule Books of those Housing Associations.

340                      In HA Stephenson & Son Ltd (In Liquidation) v Gillanders Arbuthnot & Co (1931) 45 CLR 476 Dixon J at 487 said that the question of corporate capacity

must be ascertained according to the true meaning of the memorandum interpreted by a fair reading of the whole instrument.

341                      In my judgment, a fair reading of the current Constitutions of those Housing Associations does not reveal such a focused and restricted objective or principal objective as the Residents contend for.

342                      Although the name is “town camp specific”, the objectives now contemplate each of those Housing Associations serving their objectives beyond that town camp.  The definition of “Town Camp” extends to any land owned or leased by an association, and includes the particular town camp.  Item 1.3(b) includes serving the objectives in Item 1.3(a) and generally by “obtaining land” for its members.  There is no provision now which specifies the only, or primary, objective to operate the particular town camp.  Item 1.2, under the heading “Town Camp governed by the Association (clause 1.1)” has the name of the Housing Association itself – I take it to be designating the town camp itself – but clause 1.1 is a reference to the definitions in the Constitution, and the only relevant definition is that of “Town Camp”.  Separately, clause 2.2 has the heading “Objects and Purposes” and refers to Item 1.3.  The heading to Item 1.2 in that light cannot be the defining purpose or object of those Housing Associations.  There is now no expression of the object or the principal object of the Housing Associations being to control the provision and maintenance of housing and other facilities on the land held under their head leases.  The objects are more expansive.

343                      Item 1.3(a) of the Objects and Purposes is general in its expression.  It is not confined to particular Aboriginal people in Central Australia.  Item 1.3(b), as pointed out above, does not confine the means by which those objects may be fulfilled.  It says that those objects shall be advanced by means which include the specified means.  Thus, for example, providing housing for its members is a means, but not the only means, by which its objects may be advanced.  It may be consistent with its objects if housing were to be provided to other Aboriginal persons who are not, or are not eligible to be, members.  That housing, it contemplates, may be provided on land obtained by a Housing Association which is not the land the subject of its particular head lease.  Similarly, the provision of programs which advance the well being of its members is clearly within the means of advancing its objects, but the provision of programs which advance the well being of other Aboriginal persons may also be advanced consistent with its objects.  Ultimately, the control of what they do is within the control of the members, who must reside on its particular town camp to be eligible to be members, or the Management Committee elected from the members.  But that does not itself limit the objects of the Housing Associations themselves or how they may be advanced.  The powers in clause 3.1 are not restricted in any relevant way.  The limitations on those powers in clause 3.2 and Item 1.5 also do not indicate that, in any way relevant to the present issue, the objects of those Housing Associations are confined: they may not engage in trade or commerce; and they may not grant security over assets so as to expose those assets to being lost by default under the terms of the security instrument.

344                      In addition, even if those Housing Associations were to cede control of their particular town camps (as I have found they do under the proposed subleases) the advancement of their objects by the means specified in Item 1.3(b)(i) and (ii) even in respect of their members will not be entirely redundant: other community facilities for members need not be on the particular town camp; or the programs which advance (for example) the health or education of members need not be provided on the particular town camp.  And the means specified in Item 1.3(b)(iii), (iv), (v) and (vi) would also be able to be carried out.

345                      In my judgment, for those reasons, on the proper construction of the Constitutions of those Housing Associations, I consider that the entry into the proposed subleases is within the objects and purposes of those Associations, even though it effectively cedes control of the particular town camps for 40 years.  It is a way of obtaining significant housing and facilities and benefits to its members in a manner which, upon the proper reading of their objects, is not alien to them.

346                      It is not necessary to determine the alternative argument put on behalf of the Minister that, assuming the objects of those Associations are confined to obtaining housing and other facilities on the particular town camp of each Housing Association, the grant of the proposed subleases is not inconsistent with those objects because their Constitutions do not direct that the control of the provision of housing and other facilities must lie with the Housing Associations, so the provision of housing and other facilities – to a much greater degree than would otherwise have been the case – through the grant of the proposed subleases in any event is within their power.

347                      The objects of the Housing Associations constituted under the CATSI Act are a little different.  They are relevantly set out in [214] to [215] above.  They also encompass the provision of housing and facilities for Aboriginal people who are not members: see clause (b) of the “Objectives” clause.  The Karnte Aboriginal Corporation’s “Objectives” are a little more confined in one sense but they are otherwise quite general.

348                      Accepting that it is an underlying, but not express, foundation for those Housing Associations that each has an interest in its particular town camp, I reach the same conclusion as in the case of the Housing Associations incorporated under the Associations Act (NT), that it was within their objects to agree to enter into the proposed subleases.  The significance of the terms of the Constitutions or Rule Books is, perhaps, evident from their earlier Rule Books as set out at [203] above in which there is more of a focus on direct control of the town camp and direct management of its houses by the use of the active verbs: to manage the housing stock and tenancy; to look after our Town Camp now and for future generations; to keep our housing in good repair; to develop and improve our housing. 

349                      In my judgment, in the case of those Housing Associations also under their current Rule Books, there was power to agree to the proposed subleases.  In my judgment, on a fair reading of the present Constitutions and Rule Books of the Housing Associations, it is not so integral to their purposes that they directly control the provision of housing and other facilities on their respective town camps that their agreement to enter into the proposed subleases is simply beyond their power as incorporated associations.

350                      Simply to show that it has not been overlooked, there is one ancillary matter I should mention.  The common law “narrow” ultra vires rule which restricts an incorporated entity to doing only what its constitution authorises and to exercising only those powers which are expressly or implicitly conferred upon it has long been qualified in the case of corporations: see now s 125, Corporations Act 2001 (Cth) and see the discussion in Gower, Modern Company Law,(4^th ed 1979, Stevens) at 161-74.  Gower says at 171 that the rule was designed to protect the incorporated entity “against itself (or rather against its organs) so as to safeguard its members and creditors”.

351                      That rule continued to apply to other incorporated associations.  At least in respect of partially executed contracts, the absence of power may not have precluded their enforcement: In Re K.L. Tractors Ltd (1961) 106 CLR 318.  That is not this case.  There may also be circumstances where, notwithstanding that the corporation has acted ultra vires, relief may be available: see Ford’s Principles of Corporations Law (Butterworths Looseleaf Service) at [12,060].  However, the rule was in any event ameliorated by provisions similar to that in the Corporations Act 2001 (Cth) in most, if not all, of the States’ Associations Incorporation Acts: see s 17 Associations Incorporation Act 1981 (Vic); s 26 Associations Incorporation Act 1981 (Qld); s 27 Associations Incorporation Act 1985 (SA).  There was no such provision in the Associations Incorporation Ordinance 1963 (NT) or in the Associations Incorporation Act 1978 (NT).  Those enactments were repealed and replaced by the Associations Act (NT), enacted in 2003.  There is also no such provision in the Associations Act (NT).  Part 6 of the Associations Act (NT) deals with the transfer of property of an incorporated non-trading association. Each of the Housing Associations is not permitted to trade: Item 1.5 of the Schedule to their Constitutions.  Section 54 Associations Act (NT) permits the transfer of real property by one association only to another body formed for promoting objects similar to its own or charitable objects, or to a council for the area in which the property is situated.  That section also imposes procedural requirements.  It is not necessary to refer to them.  It is not suggested the grant of the proposed subleases is authorised by s 54 independently of the Constitutions of the Housing Associations.  Nor, on the other hand, is it suggested that the grant of the proposed subleases is unlawful so as to prevent the Housing Associations from agreeing to enter into them.  Section 54 is expressly subject to s 110.  Section 110(2) restricts a Housing Association from disposing of, or charging, prescribed property, which appears to include a lease under the SPL Act or the CL Act (see the definition of prescribed property in s 4), except with the consent of the Minister administering that Act (and, by the NTNER Act, that would include the Minister) without the Minister’s consent.  It is also not necessary to further discuss those provisions as they were not relied upon, or referred to, either by the Residents or by any of the respondents, as informing the proper construction of the Constitutions of the Housing Associations either to grant or not to grant the proposed subleases.  There is no doubt good reason for that.

352                      The CATSI Act does have a provision similar to that in s 125 of the Corporations Act 2001 (Cth).  Section 96.1 relevantly provides:

(1)        An Aboriginal and Torres Strait Islander corporation has the legal capacity and powers of an individual within and outside Australia.

(2)        An Aboriginal and Torres Strait Islander corporation also has all the powers of a body corporate, including the power to, if the corporation’s constitution permits, distribute any of the corporation’s property among the members, in kind or otherwise.

(3)        An Aboriginal and Torres Strait Islander corporation’s legal capacity to do something is not affected by the fact that the corporation’s interests are not, or would not be, served by doing it.

353                      The Minister did not rely upon s 96.1 of the CATSI Act as providing the foundation for the Housing Associations incorporated under it to be enabled to enter into the proposed subleases.  That may be simply because there are only three of them, and the condition precedent to the activation of each proposed sublease in clause 2.1(a)(i) referred to above would not be satisfied.  It may also be because, notwithstanding its apparent effect, there is some authority to suggest its role is confined to validating corporate dealings with outsiders despite deficiencies in corporate capacity, but not to abrogating restrictions on the exercise of shareholders’ or directors’ powers: see eg per McPherson J (with whom Lee and McKenzie JJ agreed) in ANZ Executors & Trustee Co Ltd v Qintex Australia Ltd (receiver and managers appointed) (1990) 8 ACLC 980 at 988.  There may be other reasons.  It may be that such a provision does not inhibit a member of such an association from asserting that the common understanding of the members and their general intention was for the association to control the use and development of those town camps, and seeking to enforce that position.  That sort of contention has been used to support the winding up of a corporation or the just and equitable ground: see Ford’s Principles of Corporations Law (13^th ed, 2007, Butterworths) at [12.130] p 744 and the cases there cited.  As the issue was not raised, it is not necessary to go beyond those comments.

354                      Consequently, it is necessary to consider the second of the questions I have identified above.  That is, it is necessary to determine whether the particular terms of the proposed subleases mean that the agreement to enter into them is contrary to the interests of the members as a whole. 

355                      The Residents as members put their contention quite brutally: for $1, the Housing Associations have given up all rights, functions and representative activities in relation to their town camps so they cannot discharge their responsibilities to their members under Item 1.3 of their Constitutions and under their Rule Books.  There is “an equation of $1 for no rights for at least 40 years”.

356                      In support of the submission, they draw an analogy with the accountability of a corporation to the “interests of its members as a whole”.

357                      Reference was made to Gambotto v WCP Limited (1995) 182 CLR 432 (Gambotto) as supporting the proposition that a company can act bona fide and fairly, and for the benefit of the company as a whole, but cannot do so if that overrides the rights of existing shareholders.  I do not think that decision takes the Residents’ position that far.  In that case, a small minority shareholder challenged the validity of a proposed meeting to consider amending the company’s constitution to enable a member entitled to 90% of the issued shares to compulsorily acquire the balance.  The Court therefore had to address the limits of the power to alter the constitution of the company to enable the appropriation of the shares of a minority.  Clearly, it is a very different type of case.  The proposed resolution was not shown to be for a proper purpose, nor was it shown to be one which did not operate oppressively in relation to minority shareholders: see per Mason CJ, Brennan, Deane and Dawson JJ at 445 and 448.  Their Honours pointed out also at 445 that the position may have been different if the right to expropriation had already existed in the company’s constitution.

358                      Senior counsel for the Residents made the submission that the “interests of the members as a whole” was somehow different from the interests of the Housing Associations themselves.  In cross-examination of a solicitor from Gilbert + Tobin (the solicitors for the Council) he elicited that their advice to the Council, and to a working group including certain Housing Association representatives, did not separately address the interests of the members of the Housing Associations as distinct from those of the Housing Associations themselves.

359                      The significance of the distinction, if legally there is one, was not made clear.  It is argued that the Housing Associations could not alienate their interests in the town camps under the respective Special Purposes Leases or Crown Leases either absolutely or for 40 years. That was said to flow from the proper construction and understanding of the objects and purposes of the Housing Associations.  I have already addressed that contention.  No reason was put why those objects and purposes should impose restrictions on the powers of the Housing Associations which preclude their capacity to agree to the proposed subleases as Housing Associations, and different restrictions on their powers because of the interests of their members as a whole.  The plurality judgment in Gambotto 182 CLR pointed out at 444 that the observations of Lindley MR in Allen v Gold Reefs of West Africa Ltd [1900] 1 Ch 656 at 671 that the power of the majority to alter the articles of association of a company must be exercised in a lawful manner and “bona fide for the benefit of the company as a whole” was inappropriate where the proposed resolution involved a conflict of interests and advantages.  The plurality judgment said at 444:

It seems to us that, in such a case not involving an actual or effective expropriation of shares or of valuable proprietary rights attaching to shares, an alteration of the articles by special resolution regularly passed will be valid unless it is ultra vires, beyond any purpose contemplated by the articles or oppressive as that expression is understood in the law relating to corporations.

360                      Their Honours then said that, where the articles are proposed to be altered to allow expropriation by the majority of shares of the minority, a more stringent test of validity should be imposed: see at 445-6.  There is no submission in this matter that the Housing Associations’ entry into the proposed subleases would in any way affect the rights of their members inter se.  Clearly it would not do so.

361                      If their rights as existing tenants were relevant, the proposed subleases would again not affect those rights as tenants differentially.  The interest of the Residents as tenants of the Housing Associations is, as I have found, preserved by the proposed subleases.  The benefit of the rent payments, and the repair and maintenance obligations of the landlord, pass to the Executive Director, but the right of occupancy granted under the tenancy agreements is maintained.

362                      If their rights as members to be eligible in the future for a tenancy of available accommodation in a town camp were separately considered, again those rights as members would not be altered inter se, although the proposed subleases (clause 10) would impose a different decision-making structure for granting new tenancy agreements.  The membership eligibility rules will be unchanged, and the Housing Associations will continue to determine in accordance with their Constitutions or Rule Books who becomes members of them.  The proposed subleases do not extend the eligibility of persons to be granted a new tenancy agreement in respect of a dwelling in a particular town camp beyond those presently eligible for such an agreement.

363                      Consistent with the expression in Gambotto, in Peters’ American Delicacy Co Ltd v Heath (1939) 61 CLR 457, Dixon J when upholding the validity of an alteration of the articles which discriminated against holders of partly-paid shares in favour of the majority shareholders said at 513 that the resolution

involved no oppression, no appropriation of an unjust or reprehensible nature and did not imply any purpose outside the scope of the power.

364                      To the contrary, in New South Wales Rugby League v Wayde (1985) 1 NSWLR 86 it was expressly decided at 96 by the Court (Street CJ, Kirby P and Hope JA) that the phrase “the interests of the members as a whole” in s 320 of the Companies (New South Wales) Code is synonymous with “the benefit of the company as a whole” because the only legitimate interests of the members would be their interests as corporators.  An appeal to the High Court was dismissed: Wayde v New South Wales Rugby League Inc (1985) 180 CLR 459.  No comment was made upon the view of the Court of Appeal on that topic, although Brennan J in agreeing with the result of the plurality judgment at 471 made some additional comments upon it.  Besanko J in Millar v Houghton Table Tennis & Sports Club Inc [2003] SASC 1 at [135] appears to have adopted the same view.

365                      Szencorp Pty Ltd v Clean Energy Council Limited (2009) 69 ACSR 365, was also an “oppression” case brought in reliance upon the current statutory equivalent, s 232 of the Corporations Act 2001 (Cth), in relation to the conduct of the affairs of an unlisted not-for-profit public company limited by guarantee.  It was an entity formed to effect a merger of two existing sustainable energy industry associations.  Goldberg J at [59] remarked in the course of his reasons:

The “contrary to the interests” provision now contained in subpar (d) of s 232 has a separate and distinct area of operation from the “oppression” provisions in subpar (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: Turnbull v National Roads & Motorists’ Association Limited (2004) 50 ACSR 44 at 52, 57; Campbell v BackOffice Investments Pty Ltd (2008) 66 ACSR 359 at 400. (See also Re Spargos Mining NL (1990) 3 ACSR 1 at 42; Shelton v NRMA Limited (2005) 51 ACSR 278.)  An example of such conduct may be found where a company is formed for the purpose of undertaking particular activities but the directors and management disregard those activities and direct the company into different commercial areas.

366                      The Residents correctly point out that, as his Honour said, the assessment of what is in the interests of the members as a whole of the Housing Associations must be assessed by reference to their objects and purposes.  That is uncontentious, so long as their interests as a whole are in broad terms synonymous with the interests of the Housing Associations.  Goldberg J did not suggest to the contrary.  My analysis of their Constitutions and Rule Books is intended to reflect that approach.

367                      Senior counsel for the Residents also referred to Pettit v South Australian Harness Racing Club Inc (2006) 95 SASR 543, a case concerning applications for membership of the association.  Reliance was place on certain remarks of White J in [26] as follows:

1.         The constitution of an association binds the association and all of its members.  This means that the Committee was bound to apply the relevant provisions of the Club’s constitution in its consideration of the membership applications.

2.         The requirement that an exercise of an association’s powers be for the benefit of the members as a whole is to exclude their exercise for “ulterior special and particular advantages”, that is, it negatives “purposes foreign to the association’s operations, affairs and organizations”.

…

4.         Conduct by a committee of an association will be contrary to the interests of the members as a whole if no committee, acting reasonably, could have engaged in that conduct.  [The supporting references were Wayde 180 CLR and Peters’ 61 CLR].

5.         Conduct may be contrary to the interests of the members as a whole even though a committee does not act in bad faith.  In Wayde, Brennan J said:

[I]f the directors exercise a power – albeit in good faith and for a purpose within the power – so as to impose a disadvantage, disability or burden on a member that, according to ordinary standards of reasonableness and fair dealing is unfair, the court may intervene …

…

7.         However, proof of invalidity or non-compliance with an association’s rules may indicate that a decision is contrary to the interests of the members as a whole.  This is because of the importance which the law attaches to adherence to the provisions of an association’s constitution. … [citations omitted].

368                      Again, there is no suggestion in that case that the interests of the members as a whole is significantly different from the interests of the Association itself.

369                      The Residents’ submissions then assert that:

The Corporations Law cases set out above involve “for profit” companies and conduct which is usually oppressive or unfair to some of the members.  The principle is necessarily a stronger one where it is applied to a not-for-profit association established for the purpose of providing benefits and services to its members as its raison d’etre.

And they immediately continue:

In any event, both the Corporations cases and the Associations cases demonstrate that conduct which expropriates the rights of existing members and which departs from the objects of the relevant constitution and rules is not in the interests of members as a whole, albeit that it is bona fide.

370                      Those propositions require some comment.  There is, in my view, some mixing of concepts in them.  In the first place, as the High Court pointed out in Gambotto 182 CLR, these particular considerations arise where the proposed conduct of the entity expropriates or is intended to facilitate the expropriation of the interests of particular members at the expense of others.  That is not this case.  The rights of the members of the Housing Associations inter se are unchanged.  Secondly, the measure in fact of what is in the interests of the entity itself and its members as a whole will necessarily depend upon the constitution of the entity: a company formed “for profit” is likely to have a constitution which permits conduct which may not be permitted in the case of a not-for-profit association; in fact, each of the Constitutions and Rule Books of the Housing Associations prohibits them from trading for profit.  But it does not follow that, somehow, the measure of what is “oppressive or unfair … is necessarily” applied more rigorously in the case of not-for-profit associations.  The measure will still be the objects and purposes of the association.  Thirdly, the second proposition set out in the preceding paragraph is really axiomatic.  If a particular course of action is not authorised by the constitution, it may not be undertaken.

371                      On the second issue, it is necessary therefore that the Residents show that the agreement to enter into the proposed subleases is contrary to the interests of the members as a whole, or effectively to the interests of the Housing Associations.  Inevitably, on such issues, there are matters of judgment.  Different members will make different commercial judgments about what is, or is not, in the interests of the Housing Associations. 

372                      The Residents’ submission is that their rights as members of the Housing Associations to have the Housing Associations “separately conduct its activities at the town camps for the benefit of its existing members” have been sold for 40 years for $1, without any other return provided as of right for the benefit of the members.  I do not accept that contention.  It mis-describes their entitlements under the proposed subleases.  The general effect of the proposed subleases is set out above.  If there is power under the Constitutions or Rule Books of the Housing Associations to enter into arrangements such as the proposed subleases, the aspirational objectives of the Housing Associations may be fulfilled or served by the Housing Associations arranging for another entity, such as the Executive Director, to engage in or conduct activities at the town camps to fulfil or serve those objectives for the benefit of the members.

373                      Having taken that step, that the proper approach is to determine whether those persons acting on behalf of the Housing Associations are acting for proper purposes and could reasonably have engaged in that conduct.  Barwick CJ, McTiernan and Kitto JJ said in Harlowe’s Nominees Pty Ltd v Woodside (Lakes Entrance) Oil Co N.L. (1968) 121 CLR 483 at 493:

Directors in whom are vested the right and the duty of deciding where the company’s interests lie and how they are to be served may be concerned with a wide range of practical considerations, and their judgment, if exercised in good faith and not for irrelevant purposes, is not open to review in the courts.

374                      Whether the obligation of the Housing Associations and of those persons on their behalf is founded in the contractual relationship between the Housing Association and its members; or in the fiduciary obligation of the Management Committee of the Housing Associations to the members, or upon the Constitutions and Rule Books of the Housing Associations, in my view the appropriate question is for present purposes the same.

375                      I have referred above to the finding that each Housing Association, although having no legally enforceable right to any particular part of the $100 million, could reasonably expect and assume that a significant proportion of that sum would be spent on housing and facilities at its town camp.  They were aware of the fundamental importance of the town camps land to their respective members.  They had negotiated with the Minister for over 12 months.  They could reasonably conclude that no “better deal” could be reached.  They could reasonably conclude that, if they did not agree to the proposed subleases, the town camps would be compulsorily acquired.  They understood the very strong desire of their members to avoid alienation of their land (the land held under the Special Purposes Leases or Crown Leases), and so were making the decision which would ultimately preserve their lands rather than have them compulsorily acquired.  They had secured some consultation rights, both directly and through the Forum.  They were aware that the $100 million was a package for all the Housing Associations, and its allocation would follow consultation through the Forum.  They were aware that the $100 million was required to be expended over a period of five years, and so would provide promptly benefits to existing members, as well as to future generations.  They had consulted widely with their members.  They had the support of the Council in their decision.  They were aware that, under the terms of the proposed subleases, they could be given a significant and direct ongoing role (as recognised in Recitals I and J of the proposed subleases, and in respect of community land, vacant land and after three years potentially as a Housing Authority).  As senior counsel for the Housing Associations argued, the Housing Associations were aware that there was no other realistic opportunity available to secure the potential benefits to the town camps which the expenditure of $100 million would bring; they knew of the past “years of inadequate funding leading to substantial housing and conditions for the members and tenants”; and they believed that that funding to the Housing Associations through clause 6(a) of the proposed subleases would directly serve their primary function of relieving the poverty, sickness and suffering and helplessness of Aboriginal people in Central Australia, including their members.  Finally, they were aware that the proposed subleases would not preclude them from continuing to engage in activities directed to the six “means” set out in Item 1.3(b) of the respective Constitutions and Rule Books, save to the extent that certain of those activities would be subject to the role and obligations and activities of the Executive Director under the proposed subleases, and they were also aware of the ongoing important role of the Council.

376                      All of those considerations lead me to the view that, if it is assumed that for appropriate consideration the Housing Associations had power to grant a 40 year sublease to the Executive Director ceding the degree of control of the lands of the town camps which it did, the decisions of the Housing Associations to grant the proposed subleases were for proper purposes and were reasonably in the interests of their respective Housing Associations and their members as a whole. 

377                      The submissions for the Residents did not suggest that, in practical terms, the content of the duties of the Management Committees or directors of the Housing Associations, whether founded in contract or equity or otherwise, were different.  Consequently, on that assumption, I would have refused relief in the Sublease proceeding.  On the conclusion I have reached on the first question set out above, there was no contractual provision which has been breached by agreeing to enter into the proposed subleases.  That is, in essence, a consequence of how the members of the Housing Associations have chosen to express the objects and purposes of those Associations in their Constitutions and Rule Books.

ORDERS

378                      For the reasons given, I consider that both the Section 47 proceeding and the Sublease proceeding should be dismissed.

379                      I will give the parties the opportunity to make written submissions as to costs of those proceedings or to apply to make oral submissions on costs.

 

I certify that the preceding three hundred and seventy-nine (379) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate: 

Dated:         26 November 2009

In proceeding No 547 of 2009:
Counsel for the Applicant:	J Beach QC, D Harding & F Forsyth
Solicitor for the Applicant:	Human Rights Law Resource Centre Ltd
Counsel for the Respondent:	S Lloyd SC, L Clegg & A Mitchelmore
Solicitor for the Respondent:	Australian Government Solicitor

In proceeding No 558 of 2009:
Counsel for the Applicants:	J Beach QC, D Harding & F Forsyth
Solicitor for the Applicants:	Human Rights Law Resource Centre Ltd
Counsel for the First and Second Respondents:	S Lloyd SC, L Clegg & A Mitchelmore
Solicitor for the First and Second Respondents:	Australian Government Solicitor
Counsel for the Third Respondent:	S Brownhill
Solicitor for the Third Respondent:	Solicitor for the Northern Territory
Counsel for the First to Eighth, Tenth to Thirteenth and Fifteenth Fourth Respondents:	P Gray SC
Solicitor for the First to Eighth, Tenth to Thirteenth and Fifteenth Fourth Respondents:	Gilbert + Tobin

Date of Hearing:	31 August 2009 and 1 September 2009
Date of Judgment:	26 November 2009