Badari & Ors v Minister for Housing and Homelands & Anor; Badari & Ors v Minister for Territory Families and Urban Housing & Anor

[2025] HCATrans 60

[2025] HCATrans 060

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D1 of 2025

B e t w e e n -

ASHER BADARI

First Applicant

RICANE GALAMINDA

Second Applicant

LOFTY NADJAMERREK

Third Applicant

CARMELENA TILMOUTH

Fourth Applicant

and

MINISTER FOR HOUSING AND HOMELANDS

First Respondent

CHIEF EXECUTIVE OFFICER (HOUSING)

Second Respondent

Application for special leave to appeal

Office of the Registry
  Darwin  No D7 of 2025

B e t w e e n -

ASHER BADARI

First Appellant

RICANE GALAMINDA

Second Appellant

LOFTY NADJAMERREK

Third Appellant

CARMELENA TILMOUTH

Fourth Appellant

and

MINSTER FOR TERRITORY FAMILIES AND URBAN HOUSING

First Respondent

MINISTER FOR HOUSING AND HOMELANDS

Second Respondent

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 3 SEPTEMBER 2025, AT 10.07 AM

Copyright in the High Court of Australia

____________________

MR M.L.L. ALBERT:   If the Court pleases, I appear with MS M.A. BENN for the applicants in D1/2025 and the appellants in D7/2025.  (instructed by Australian Lawyers for Remote Aboriginal Rights)

MR C.L. LENEHAN, SC:   May it please the Court, I appear with MS R.S. AMAMOO for the respondents in each matter.  (instructed by Solicitor for the Northern Territory)

GAGELER CJ:   Thank you, Mr Lenehan.  Mr Albert.

MR ALBERT:   Your Honours, I would propose to address you first on the appeal and then the special leave application, but I am in the Court’s hands as to the order.

GAGELER CJ:   Yes, proceed in that way.

MR ALBERT:   The Minister responsible for the Housing Act had been empowered for 43 years to override any contractually agreed rent for public housing in the Northern Territory.  Since 1987, that Minister had been empowered to do so in respect of classes of dwellings as well as individual dwellings.  That power was unused in respect of the homes of each of my clients and other public housing homes in their remote communities until 2022.

Then, in the space of nine months in 2022, the two respondent Ministers exercised the power three times:  on 5 January, 29 April and 2 September, the last of which was the only time the power was exercised, relevantly, by the second respondent.  The power in section 23 was exercised in a way that impacted each of my clients, as it did all public housing tenants in remote communities, a list that varied, in respect of the three determinations the subject of this proceeding, between 103 and 109 different communities.

Those first three determinations are the subject of the appeal and the fourth determination, which was made on 3 February 2023, is the subject of the special leave application which I propose to deal with separately and at the end.  There are two grounds of appeal in respect of the three determinations, both of which depend heavily on the statutory and factual context, and in that light, I would propose to address your Honours first on that to sketch those before dealing with each ground then, I hope, relatively efficiently.

The group of those impacted at a high level were public housing tenants living in about 5,000 houses.  Each of those tenants, importantly, had four key things in common.  The first was that each resided in one of 109 remote communities in the Northern Territory.  The second – and it seems this will take particular prominence – was that each was party to an individual contract known at law as a tenancy agreement under the Residential Tenancies Act with the Government Housing Corporation which, for reasons that will become apparent, is known as Chief Executive Officer (Housing).

By reason of those individual contracts, each was easily identifiable and each was in an existing private law relationship with what I will call CEOH, that corporate entity, and that corporate entity was under ministerial control, being the same Ministers who made the determinations, and the source of that control is the Housing Act, section 17, which I do not propose to take your Honours to but is in the joint book of authorities at page 23.  That is the second key thing they had in common.

The third key thing, which ordinarily would be part of the second but was not here, was that each had agreed rent for their particular home.  And the reason it is necessary for that to be separate is, as your Honours will have seen – as it happens – the tenancy agreement for two of the three houses that the appellants occupy was blank as to the rent amount.  So, the agreement was not recorded in the contract but it had been formed at least by conduct.

The fourth and last thing that they had in common, about which I will take a few moments, was that each was only eligible for public housing because they were – and I will go through each element – in their landlord’s opinion, and I quote, “of limited means; and not adequately housed”.  Can I invite your Honours to pull up the Housing Regulations, which are the source of those phrases.  Your Honours will find that in the joint book of authorities, part B, volume 2, at page 84.

GORDON J:   This is tab 8?

MR ALBERT:   Thank you, your Honour, yes, it is.  There, your Honours will see – on, I am sorry, it is page 83 – the definition of “eligible person”.  There are five features of that definition we would seek to point out.  The first is that whether a person is an eligible person turns on:

the opinion of the Chief Executive Officer (Housing) –

that corporate entity.  That is to say, it requires an actual intellectual engagement with the particular predicament of that individual.  The second feature is the one I alluded to a moment ago, and that is, under the Housing Act and therefore its regulations, a distinction – easily missed – is drawn between what is called the “Chief Executive Officer (Housing)”, which is the body corporate sole, and the CEO, the Chief Executive Officer.  They are, as far as we are aware, always peopled by the same individual but they are wearing two legal hats.

So, the second feature of the definition is to emphasise that it is the corporate entity established under section 6 of the Housing Act – which I do not need to go to, but it is in the joint book of authorities at page 20 – as compared with the person who is the Northern Territory equivalent of a departmental secretary.  The Court of Appeal below drew a distinction and relied on the distinction between those two legal personalities, in particular at paragraphs [57] and [58].

The third feature of the definition of “eligible person” we would seek to point out is the use of the conjunctive “and”.  That is, “the opinion” is to be about two things:  the person being:

(a)of limited means; and

(b)not adequately housed.

Again, a highly individualised assessment by definition.  The fourth is to explore the meaning of the phrase “adequately housed” to indicate that that phrase was the subject of discussion in the Court of Appeal’s decision in the Chief Executive Officer (Housing) v Young which, as your Honours will recall, ultimately ended up here, but not on this question. But in that judgment – which is reported at (2022) 43 NTLR 196 – at paragraph 42, the Court of Appeal acknowledged the overlap at law between the phrase “adequately housed” and “habitable”, which is the phrase used in section 48(1)(a) of the Residential Tenancies Act. 

The Court of Appeal also, we would submit correctly, referred to the meaning of the phrase “adequately housed” as a matter of international law, including, importantly, as they cite, the United Nations General Comment on that exact phrase – which I do not need to go to, but your Honours will find in the joint book of authorities at page 1018, volume 6.  We particularly rely on what is said there at paragraphs 7 and 8.  All of that is to say that the phrase “adequately housed” has a particular well‑known meaning both as a matter of Northern Territory law and international law.

The last matter we would seek to emphasise about the definition of “eligible person” is the function of that term in the regulations.  Importantly, its function is to operate in two different time periods.  The first is that it is what I will call a time of letting criteria – and that is revealed where I am about to go in regulation 4 – but it is also an ongoing criteria to the extent there is engagement with regulation 5.  So, regulation 4, which is in the joint book of authorities at 84 – has it that:

Subject to this regulation, the Chief Executive Officer (Housing) –

the entity:

may let a dwelling to an eligible person.

That is, the CEOH can only let dwellings to a very particular and discrete subsection of the wider community.  The reason for that is fairly obvious, that it is to provide assistance because of the recognised vulnerability of such persons, with particular priority given – as identified in subregulation (3) – preference is to be given to eligible persons who are, among other things, homeless or living in unusually bad conditions.  So, that is the time of letting criteria.

One then goes to regulation 5, over the page, one gets to what are called “Rebates of rent”.  They are also only available to eligible persons.  Rebates, as the regulation makes clear, can be given at any point during a period of the lease.  All of that sets the statutory and regulatory background to what we say is the proper conclusion reached in the analysis of this scheme by the Australian National University in the paper that we have put in the joint book of authorities at page 966 to 967, where they describe the people impacted by these determinations as, and I quote:

among the most impoverished people in Australia –

All of that also, importantly, marries with the evidence of the respondent’s key witness, Mr Brent Warren, whose evidence you will find in this respect at the respondent’s book of further material at page 432, where, when discussing these criteria in cross examination with me, his evidence was, and I quote:

all people who live in remote communities are eligible for public housing.

Against that statutory backdrop, can I then move to the impacts of the determinations, in the first instance on my clients and remote housing tenants, and then on the Northern Territory.  In respect of my clients and the Northern Territory, there were both non-pecuniary and pecuniary impacts.  The non-pecuniary impacts in respect of my clients are sourced from the Residential Tenancies Act and the analysis of the Court of Appeal below, which relevantly found that the protections ordinarily given to tenants across the Northern Territory were barred on the coming into operation of a determination under section 23 of the Housing Act.

If I could ask your Honours to go to the joint book of authorities at page 104, where you should find the Residential Tenancies Act as it was at the relevant time and, importantly, the section 41 to which I made reference.
Section 41, as your Honours will see, permits rent increases only where there has been specific prior agreement.

To marry the terms of section 41 with the facts of each of my clients’ cases, the Court of Appeal quite rightly concluded that none of my clients had agreed at law to their rent being increased.  Your Honours will find those findings in the Court of Appeal’s reasons at [13], [14], [39], [40] and [50].  The effect of the exercise of the determination power, so the Court of Appeal found, was to deprive them of the protection against rent rises that they had enjoyed and had arranged their financial affairs based on.

Even though section 41 practically – in the circumstances of the particular tenancy agreements that my clients were party to – did not operate at that time, it was, in our submission, still of value to them, and the value was in allowing them to bargain their way to better circumstances by agreeing to a new tenancy agreement, either in the same community or somewhere else, in the same house or a different house, by which they said, for example, I will agree to a future rent increase if you agree to improve the house in this way or that.

GLEESON J:   I am trying to follow you, Mr Albert, but those references that you gave to the Court of Appeal’s judgments did not clearly correlate with what you had described as the effect of the judgment.

MR ALBERT:   Your Honour, I accept that at one level, however I stand by what I said before.  The way that one gets to the position where the agreement was not one that contained a term that matched section 41 – it is a fairly convoluted path.  One starts by looking at the face of the actual agreements, which are in the core appeal book.  One notices, most relevantly in respect of Mr Badari, Ms Galaminda and Mr Nadjamerrek, that they are not countersigned by or on behalf of the CEO of Housing.  That is step one.

Step two is to go to section 19(4) of the Residential Tenancies Act which says, in circumstances where it is not countersigned, the operative terms of the tenancy agreement are those prescribed.  Step three is to go to regulation 10 of the Residential Tenancy Regulations, which says that where section 19(4) is engaged, one then goes to Schedule 2 of the regulations, which provide the prescribed terms.  Then the final step is to go clause 2(2), where the rent term is provided, and it is that rent term which was operative at law for each of my clients.

GAGELER CJ:   Mr Albert, for the purpose of your argument, do you need to distinguish your client in any way from any other eligible person within the definition that you have taken us to?

MR ALBERT:   I am sorry, I missed the last words.

GAGELER CJ:   Do you need to distinguish your client from any other eligible person within the definition that you have taken us to?

MR ALBERT:   Not in our submission, no.

GAGELER CJ:   All right.

STEWARD J:   Can I ask you, Mr Albert, you would accept, I take it, that your clients and others like them were always subject to the possibility of an exercise of the power under section 23 of the Housing Act?

MR ALBERT:   Yes, we accept that, by reason of the fact that they were tenants of dwellings, as defined, that that was a possibility, subject to matters which will be dealt with in the pending proceeding.

STEWARD J:   Do you agree with Mr Lenehan’s submission about section 42 not being applicable in the case of a ministerial determination under section 23?

MR ALBERT:   The Court of Appeal found that section 42 does not apply where section 23 has been engaged, and we do not appeal that.

STEWARD J:   Thank you.

MR ALBERT:   That is a slightly indirect answer, but I hope it answers your Honour’s question.

STEWARD J:   Thank you.

MR ALBERT:   Can I move then to section 42 briefly, which you will find on the next page.  It is, putting it at a high level, a form of individualised merits review in respect of rent that can be undertaken at any time in circumstances where there is a rent rise or where there is no rent rise but where the house, for whatever reasons, has, for example, degraded such that the rent has become excessive.  As the Court of Appeal found, the effect of the exercise of the determination power was to deprive my clients and all those caught by the determinations of that statutory mechanism.

GORDON J:   I understand, I think, why you are taking us to this, because this is the statutory framework against which the determinations power which was available was exercised.  Is it also to show that this framework had available to it what you have described as an individualised treatment at multiple points in time, both in terms of financial considerations – i.e., can I pay the rent – but secondly, individualised considerations about particular premises itself, i.e., degraded, number of rooms, et cetera?

MR ALBERT:   Yes, your Honour, and can I make one further link to a point that I have not addressed yet, and that is that – and I will step through the bridges – the statutory scheme taken as a whole has, as one of its purposes, ensuring that rent is – and I quote the legislation – “fair”.

GORDON J:   What legislation is that?

MR ALBERT:   Section 3(e) of the Residential Tenancies Act.

GORDON J:   So, this is the objects of this Act.

MR ALBERT:   Indeed.

GORDON J:   You have not taken us to that.

MR ALBERT:   No.

GORDON J:   This is on page 95 of the materials.

MR ALBERT:   Your Honour is quite right.  So, what we say – and it is to develop what your Honour put to me – is that there is what might be called a statutory bridge between the Housing Act and the Residential Tenancies Act.  That is section 34.

GORDON J:   Of?

MR ALBERT:   The Housing Act, which, in terms ‑ ‑ ‑

GORDON J:   So, it:

applies to . . . premises let under this Act.

Under the Housing Act.

MR ALBERT:   Indeed.  So, in our submission, section 34, as I say, is a statutory bridge which says that you read the – as the Court of Appeal rightly accepted – as one whole scheme.  Having regard to that, one then goes to the purposes in section 3 of the Residential Tenancies Act and, in particular – and I will come to another purpose in a moment, but in particular to section 3(e).

Then, to respond to your Honour’s comment, what the scheme as a whole aims at is “fair rent” in respect of those not covered by a determination.  One has access to, as your Honour put it to me, a highly individualised both in respect to the tenant and in respect to the property, highly individualised process of the kind but not limited to section 42.

The Court of Appeal then says, well, section 42 does not apply when section 23 of the Housing Act applies, with the result that you do not get access to that third‑party review mechanism.  But the purpose has not changed, the object of the Act has not changed.  The object of the Act is exactly the same, it is, relevantly here, “fair rent”.

At that point we would say – and it is to seek to add to what your Honour Justice Gordon put to me – that in circumstances where there is a highly individualised process in respect of dwellings not covered by a section 23 determination.  So, the Court of Appeal found, even when they are covered by a section 23 determination, the rent is still intended by Parliament to be fair.

STEWARD J:   You would say, I take it, that purpose governs the exercise of regulation 5 of the Housing Regulations for the rebate.

MR ALBERT:   Yes, is the answer to your Honour’s question, but we would say it governs the entire scheme, including regulation 5.

STEWARD J:   I understand that, yes.

MR ALBERT:   But, for our purposes, most importantly including section 23.

STEWARD J:   I understand.

MR ALBERT:   I suspect we will have a discussion about regulation 5 in due course, but I might, with the Court’s indulgence, park that for a minute.  So, the third‑party mechanism in section 42, in our submission, offered four things.  The first is to ensure that rents accord with the real value of a tenancy at any given time to achieve, quote, “fair rent”; to offer, as Justice Gordon put to me, individual considerations of both the house and the tenant to be taken into account, a full form, in our submission, of procedural fairness.

Third, it provided a means to get a financial remedy before the tenant expends funds on unfair rent.  Lastly, it provides a mechanism in a default no‑cost jurisdiction, which marries neatly with eligible persons, still eligible persons before, substantively, a section 23 determination, being of limited means.  So, those are the non‑pecuniary effects.

The pecuniary effects require some elucidation because they are not straightforward or uniform.  As your Honours will appreciate, the effects of each of the determinations was to set rent at one level for what has been called an interim period, we call stage one, and then to change that rent for a final rent level, which we have called stage two.

Your Honours will find an example of that in the determination in the appellants’ book of further material at page 25, which I might ask your Honours to pull up.  It is same across all the determinations, so in that sense it does not matter which, but there is at least one feature that we would seek to highlight.

GLEESON J:   Were these pecuniary impacts the subject of findings by the Court of Appeal?

MR ALBERT:   I think the answer to that is, no, your Honour.  We have had difficulty both at the primary judge level and the Court of Appeal level at having the court make findings on matters of fact that were clearly articulated and in dispute between the parties.  That was one of them, and the only reason I emphasise that is because your Honours may or may not have picked up that, in the fourth determination challenge, we have sought a declaration as to what rent was payable by our clients at every point of time, having failed to achieve that in this proceeding.

GORDON J:   So, this is the first determination that you have taken us to, at page 25.

MR ALBERT:   Yes, your Honour.  What we would ask your Honours to note is the repeated use of the language of “class” at the end of the chapeau in (a) and (b), all of which then refer to “Column 1”, which, over a couple of pages, your Honours will see refers to the class of “1 bedroom”, class of “2 bedroom”, class of “3 bedroom” and class of “4 or more bedroom”.  That, I think, will take on some significance in due course.

At one level, the effect of each of the subsequent determinations, including the two other ones challenged here, all defer the time for stage two to come into effect.  Stage two is the one that is referrable for one, two, three and four‑bedroom houses to a so‑called fixed rate of $70 per bedroom.  That $70 per bedroom reference point collapses when one gets beyond four bedrooms.  Mr Warren gave evidence that there were houses up to nine bedrooms in remote communities in respect of which the per bedroom rent rate was $31.

GLEESON J:   Is this a complaint about equity?

MR ALBERT:   It ultimately becomes that, but it also becomes a complaint about, whatever the policy was, it was not in fact what was implemented.  So, it feeds in, among other things, to our legal unreasonableness submissions.

STEWARD J:   Mr Albert, would you have us construe these rent figures as really only being the prima facie rent figures, or the starting point, because of the potential application of what is now called a safety net?

MR ALBERT:   No, we would have you take them as they are, as at least the legal liability of our clients, but more relevantly as the factual liability that would be sought from our clients at the end of the operation of any claimed policy.

STEWARD J:   But this determination cannot be exhaustive of the question of liability going forward, because the safety net may apply in individual cases in different ways, just like the rebate did.

MR ALBERT:   If we are to deal with the safety net, I am content to deal with that, and I might do so ‑ ‑ ‑

STEWARD J:   I do not want to take you out of order.

MR ALBERT:   No, no, I am keen to respond to your Honour.

STEWARD J:   I only ask that because the model is a model where you pay the rent by the difference to the number of bedrooms up to four, but then the model also acknowledges that you will need to look at the individual circumstances of individual tenants because of the potential application of the safety net.

MR ALBERT:   What we say about the safety net – again, can I distinguish it at a legal level and on a factual level.  At a legal level, we essentially say two things.  The first is it tells you nothing about legal liability.  Legal liability is set by the determination under section 23.  The second legal point is that we do not, and cannot and did not at any point understand how one gives safety net or the rebate policy any legal operation in light of section 23(4) of the Housing Act, which expressly says:

any arrangement or agreement, or alleged arrangement or agreement –

is by the by when a determination is exercised.

STEWARD J:   Can I ask you this:  are there any findings below as to, under the old system, how the rebate is determined or calculated?  In particular, did the Department consult with tenants?

MR ALBERT:   The answer to your question about findings is no.

STEWARD J:   No, okay.

MR ALBERT:   The answer to your question about consultation is also no, but I can only give that from the Bar table.

STEWARD J:   Thank you for that.

GAGELER CJ:   So, where were we up to?

MR ALBERT:   I am not sure either, your Honour.

STEWARD J:   Sorry.

MR ALBERT:   Not at all.  Shall I perhaps address the safety nets, now that it has come up?

GAGELER CJ:   I think that would be a good idea.

MR ALBERT:   I have addressed your Honours on what we say is the legal position.  Can I then address your Honours on the factual position.  The factual position, the primary source of the factual position – although one has to go on a convoluted route to arrive back at the start, but the primary source is what Cabinet approved.  What Cabinet approved your Honours will see articulated in the affidavit of Mr Warren, and the key element of it, factually, was that the approval was for a quote‑unquote “safety net” that was Cabinet‑approved on the basis it was temporary.

GAGELER CJ:   I am sorry, where did you want us to look at this?

MR ALBERT:   In the appellants’ book of further materials ‑ ‑ ‑ 

GORDON J:   Can we not look at the judgment?

MR ALBERT:   Yes, it is reflected in the judgment.  There is a finding on this, and the finding is made by Justice Burns and noted by the Court of Appeal in the core appeal book at page 75, at the top of the page.

GAGELER CJ:   What was the legal significance of the Cabinet approval?

MR ALBERT:   We have never been clear of that.  The power is in the Minister, and only the Minister, but it is the respondents who have sought to give some focus to Cabinet.  So, I am afraid I do not know the answer to that.  The policy, however, approved by Cabinet – and in a sense, your Honour the Chief Justice’s question, after a long journey, may amount to no matter of significance, because we end up at the same point.

So, Cabinet approves a policy, as found by Justice Burns and then accepted by the Court of Appeal, that is temporary – flat 25 per cent – and then you will see the phrase:

initially for up to 6 months.

GORDON J:   So, where are you getting all this from?  I am just a bit lost.  It does not appear to me to be at the top of page 75 of the core appeal book.  Or is it the last bit of the quote – is that what you are referring to?

MR ALBERT:   It is, your Honour, yes.

STEWARD J:   Does that last sentence necessarily mean that the Department would have to consult with individual tenants to find out, for example, what their total household income would be?

MR ALBERT:   Not necessarily, no.

STEWARD J:   The policy would not permit the Department to guess that figure, would it?

MR ALBERT:   No, but they can get it from other sources.

STEWARD J:   So, they would have to consult with someone or something.

MR ALBERT:   I mean, the answer to your Honour’s question is Centrelink.

STEWARD J:   Yes, I see.

GORDON J:   I do not understand that answer to that question, Mr Albert.  The reason why I asked that is it says “total household income” – is there not a primary person on the agreement?

MR ALBERT:   Yes.

GORDON J:   So, how would they know what the total household income is?  They would not get that from Centrelink.

MR ALBERT:   On the tenancy agreement, ordinarily there is an identification of all of the residents of the house, and that is the means by which they are identified.

GORDON J:   What happens if the residents change?  The tenancy agreement is amended, is it?

MR ALBERT:   Or not.

GAGELER CJ:   Can I just understand what the legal mechanism is for implementing the safety net?

MR ALBERT:   Your Honour is right to ask, and I do not know the answer.

EDELMAN J:   There must be a waiver, is there not?  A waiver of a statutory entitlement – a policy that the CEO of Housing would waive statutory entitlement.

MR ALBERT:   All I can say is it may be.  It is difficult – if one focuses on regulation 5, regulation 5 uses the language of “rebate”, but in substance regulation 5 is a waiver because it is prospective.  That is where I pause in responding to your Honour’s question, because I think our submission would be that regulation 5 is in fact what governs waiver.

GORDON J:   I do not understand that.  Regulation 5 says:

may . . . grant a rebate of the whole of the rent payable –

That might be both past and present and future, might it not?

MR ALBERT:   Yes.  Yes, it could.

GAGELER CJ:   So, on my understanding, you say regulation 5 provides a legal mechanism for implementing the safety net.  Is that what you are saying, or something different?

MR ALBERT:   No, we say it does not.

GAGELER CJ:   Does not?

MR ALBERT:   No.

GAGELER CJ:   And why not?

MR ALBERT:   Well, it did – does not or did not.  At the “does not” level – the answer to your Honour’s question as a matter of fact is that in order to be eligible for a rebate, whether it is called a rebate or the safety net, there has to be an opinion formed by the CEO of Housing, that corporate entity, that the person is an eligible person at the time of the rebate or the safety net.

As a matter of fact, my clients – so Mr Warren said – were not eligible persons at the time.  So, in respect of each of the appellants, the answer to your Honour’s question is that at a factual level, I put to Mr Warren:  are my clients adequately housed?  And he says yes.  That marries with there being no evidence at all of the opinion of the body corporate in respect of my clients or, indeed, any other remote public housing tenants.

That is the reason why we say the proper construction of the facts is not that there has been any rental rebate but, rather, there has been a rent reduction under section 46 of the Residential Tenancies Act.  A rent reduction does not depend on the opinion of the Chief Executive Officer (Housing), that corporate entity.  All it depends on is an agreement between the tenant and the landlord as to the amount of rent.  So, in our submission, our clients, marrying the law with the evidence of Mr Warren, were not in fact the subject of a rebate and were not in fact eligible for a rebate.

EDELMAN J:   Why were they not eligible persons?  If they were eligible persons at the time they were housed, do you say they ceased to be eligible persons as soon as they have been provided the housing?

MR ALBERT:   No, not necessarily but that is the significance, in our submission, of the conjunctive “not adequately housed”.  It goes back to the point I sought to make earlier that the “eligible person” definition has a time of letting significance and an ongoing significance to the extent one is attempting to give a rebate as compared with a reduction.

EDELMAN J:   But that would mean that you could never give a rebate other than at the time of the letting.

MR ALBERT:   Not in our submission, because as soon as the house is not habitable, the person is not adequately housed.  So, to use an example known to the Court, Ms Young did not have a door, her house was not adequate, she was therefore eligible for rebate.  Equally, if you have a house in the middle of the desert with no air conditioning, they are not adequately housed.

GLEESON J:   But that is not a plausible interpretation of a regulation, that it would only apply in relation to dwellings that are let that then become inadequate.

MR ALBERT:   Well, in our submission, it is plausible when one has regard to regulation 5 as compared with section 46 of the Residential Tenancies Act or section 42 of the Residential Tenancies Act, because what you have in the statutory scheme are a series of mechanisms to respond to the changing circumstances of either the tenant or the house.

STEWARD J:   Well, can I ask you, then, what I regret is a fairly basic question:  is it part of your case that, because of the existence of the policy for the safety net, the tenants should have been consulted when the new system was brought in?

MR ALBERT:   We say they should have been consulted. 

STEWARD J:   Because it is fact‑specific to each dwelling and tenancy.  Is that your case?  Was that part of your case?

MR ALBERT:   We say they should have been consulted with or without the safety net policy, but in respect of the safety net policy, yes.

GORDON J:   So, as I understand your case, the safety net is stage two, in a sense.  The first stage, you say, is that before the determination was made you should have been afforded procedural fairness.

MR ALBERT:   Yes.

GORDON J:   And that is, in a sense, where you started at 10 o’clock this morning to identify the statutory framework which existed before the determination was made.

MR ALBERT:   Yes.

GORDON J:   But then, once the determination has been made, the safety net is an available mechanism for which you should have been consulted.

MR ALBERT:   Yes.

GORDON J:   So, am I right about that?  That there is, in effect, two stages to it.

MR ALBERT:   There are, yes, but can I deal with that second part and the facts, because this is where the facts as they emerged do not marry with the policy of, or intention of, Cabinet.

GAGELER CJ:   Can I just go back to an earlier stage – I do not really want to dwell on this.  Given the decision of Cabinet to have this safety net – I think you have been telling us at least in relation to your clients, regulation 5 was not an available mechanism, but I think you are saying that section 46 remained an available mechanism for all eligible persons affected.  Is that right?  Section 46 of the Residential Tenancies Act.

MR ALBERT:   It was certainly available before the determinations.

GAGELER CJ:   And after the determination?

MR ALBERT:   It would be available to the same extent as regulation 5.  Our primary submission is it is very hard to give any operative effect to either regulation 5 or section 46 of the Residential Tenancies Act in light of section 23(4) of the Housing Act.  They live or die together.

GORDON J:   So, this is why I think you need to start with the Housing Act, do you not?  You need to start to work out, in a sense, where the standard framework, I think – about what existed before they exercised the power under 23 to make the determination.  Am I wrong about that? 

MR ALBERT:   No, I do not think so.  The rebate policy, the safety net policy, is put before the Court before the respondents, not us.  I have addressed you on the reasons at law why it is problematic – legal liability, section 23(4).  There is a second level at which it can be dealt with, and that is the factual level.

We start with Cabinet approving something that is temporary, the significance of Cabinet’s involvement again not clear to us, but that policy position or position of Cabinet is then not operationalised.  This is where the discussion about the safety net becomes quite theoretical, because there is, on the respondents’ own material, no policy to reflect the so‑called safety net, the safety net had no document purporting to implement it at all until 2 May 2022, which was, importantly, after both the first and the second determination.

That policy document, which is the first time the safety net gets referenced in a policy, is so‑called rent policy 4.01, which you will find at the appellant book of further materials at 238 to 239.  So, that – five months after the determination, first determination, shortly after the second determination – is the first time the safety net pops into anything that purports to be operationalised.

However – and there is a big qualification to this – Mr Warren then gave surprising evidence that that May policy was wrong, that it should never have been issued, and that he had unilaterally overridden that policy on 2 September 2022, which is after the decision of the third determination.  So, the high point of the respondents’ evidence about the existence of the safety net policy is, on their own evidence, low to non‑existent because Mr Warren says:  no, no, no, that policy document that was supposed to come into operation on 2 May, on 2 September I overrode that myself.

GAGELER CJ:   Your essential point is that, with or without the safety net policy, the making of a determination was a breach of procedural fairness.

MR ALBERT:   Yes, and legally unreasonable.

GAGELER CJ:   And legally reasonable.

MR ALBERT:   If I might just complete the story of the policy.  So, we start with nothing, on 2 May something looks like it is coming into effect, it first refers to the safety net.  Then, on 2 September Mr Warren says:  no, no, no, ignore what came out on 2 May.  Your Honours will find that evidence at the respondents’ book of further materials at 359, 383 and 443.

Then, what Mr Warren says is:  as at 2 September 2022 – this is after the third determination – I reinstated, and I now say it was always operative, a policy from 2021, which is called the rebate policy 5.02, and this is where things get very confusing.  The rebate policy is not the 25 per cent.  In fact, it does not refer to 25 per cent at any point.  Rather, the rebate policy, which Mr Warren swears is the operative one, gives rebates up to 23 per cent, but more often lower.

STEWARD J:   Are there findings about all of this?

MR ALBERT:   No.

STEWARD J:   No.  I see.

GORDON J:   Where do I – I just went to your chronology, and went to your facts in your submissions, and I do not seem to find this set out anywhere.

MR ALBERT:   Your Honour, I regret that that is correct.

GAGELER CJ:   We are very much in the weeds.  Do we need to get there for your argument?

MR ALBERT:   No, not for us.

GAGELER CJ:   All right.

MR ALBERT:   Not for us.

GAGELER CJ:   Perhaps we should stay at a plane that is appropriate for your argument.

MR ALBERT:   If the Court pleases.  Can I then return to the pecuniary impact of the determinations.

GAGELER CJ:   Yes.

MR ALBERT:   I was addressing your Honours on the second stage and noting the use of the term “class”, and also then seeking to move to a significant feature of the determinations, which is the geographic scope of their operation.

As your Honours will have seen, there is a difference in the list of communities impacted by the determinations:  103 for the first determination, 109 for the second and third determination, and only 92 for the fourth determination.  In our submission, the Court will be aided by appreciating how these lists varied in a geographic sense.  To that end, can I invite your Honours to go to the appellants’ book of further materials at ‑ ‑ ‑

GAGELER CJ:   So, just explain why we would be aided by going to that level of detail, please.

MR ALBERT:   Because your Honours will see that the distinction between the lists is truly arbitrary, which goes directly to our submissions on legal unreasonableness, but also goes to our submissions as to the sorts of things our clients could have said, if procedural fairness has any content at all.

GORDON J:   So can I just – one way to cut through it is if you go to the map at page 391, your point is, as I understand it, straightforward.  That is, the communities are disparate, they are not consistent amongst the three determinations that are before us, and that by reference to location itself, one would expect variation in rent, and by reference to housing, even within one location, you would expect variation in rent because of condition, number of bedrooms and the like.  Is it any more than that?  And that your clients could have said something about each of those issues plus their own financial position.

MR ALBERT:   Your Honour, with respect, neatly distils the core, yes.

GORDON J:   What have I omitted from that analysis of – so, as I understand, it goes to the matters about which you might have been consulted, and then the same kinds of facts and matters go into your unreasonableness argument on ground 2.

MR ALBERT:   They are intertwined, without question, yes.

GORDON J:   And what are the other facts and matters that would go into either the first analysis or the second analysis?

MR ALBERT:   The key one that I was seeking to develop was that while what your Honour says is entirely accurate at a high level, when one looks at individual communities as I had proposed to do, with Laramba being a good example, one sees very acutely and immediately the sorts of specific things that could have been said by individual tenants in particular communities as it relates – and this is the key thing for present purposes – to the oscillation in the list of affected communities.

STEWARD J:   So, your point is that they were denied the ability to make a submission about whether they should have been identified in the list or not.

MR ALBERT:   Indeed.

STEWARD J:   I see.  By reference to their specific factors to them.

MR ALBERT:   It could be the specific factors to them, or the specific factors for their community.

STEWARD J:   Yes, I see.

MR ALBERT:   And it is perhaps at that second level that I am seeking to focus, with respect, embracing and accepting what your Honour has said to me a moment ago.  The map that is at the appellants’ book of further materials, this was an aide memoire that was provided to the Court of Appeal.  If your Honours do not have access to a colour copy, then one has been provided, and it is necessary to have the colour to appreciate how it works.

This was prepared by us and what your Honours will see is we have adopted a series of colours:  yellow for the major centres, green for the communities that are covered by all four determinations, and the green star are for the two communities that my clients are from.  So, Gunbalanya in the centre‑top end, and Laramba in the centre, about a third of the way up.

The orange communities were those added between the first and the second determination, and therefore were not covered by the first determination, and the red communities were the ones that were removed from the list by the fourth determination.  If one starts at 391 ‑ ‑ ‑

GORDON J:   Just so I am clear, as a result of the agreed orders in relation to the special leave application, they would fall away.  That is, they would remain subject to the third determination.

MR ALBERT:   Depending on how one construes the orders, yes.

GORDON J:   Let us leave that, I apologise.

MR ALBERT:   The map on 391 covers the whole of the Northern Territory and your Honours will appreciate that the distances covered are vast:  about 1,600 kilometres north to south, from one community to the next; about 900 kilometres east to west.

If one goes a couple of pages over to 394, one sees an illustration of the point I was seeking to make a moment ago, which is a map that is a close-up including Laramba where Ms Tilmouth resides, her community being just to the left of centre.  This is the practical response to the issues raised by your Honours Justice Gordon and Justice Steward a moment ago. 

The very next community that you see – the most proximate, it seems – is Anmatjere.  Anmatjere, your Honours will see, is orange and therefore not covered by the first determination, just as Davenport further north was not covered by the determination.  Any member of the community in Laramba told that this is going to be the effect of the first determination would, fairly obviously, have had something so say about that:  why us and why not Anmatjere?

Equally, if one then focuses on the red dots around Alice Springs, your Honours will see that those communities, very proximate to the services that come from a major centre, are dropped off from the fourth determination but are covered by the earlier ones.  At no point were my clients – in respect of the first, second and third determination – told:  you have the option of advocating for your community to be dropped off a determination.  They could well have said:  well, our place is nowhere near the services of those communities; if you are going to drop them off, drop us off as well.

If one then goes back, just as a further illustration, to 392 – and I will come back to this when we get to legal unreasonableness – you see a map which is a close‑up around Alice Springs, showing many of the communities dropped by the fourth determination.  Only two, Amoonguna and Undoolya, in all four determinations, and two added between the first and the second.  As I say, that goes both to procedural fairness, certainly on materiality, but also legal unreasonableness, and I will come back to it for that purpose.

The pecuniary effects on my clients were, in respect of the deferring of the second stage, immediate and direct.  They left in place elevated rent for one‑, two‑ and three‑bedroom dwellings, including the third and fourth appellants.  They caused a delay in the first instance of 18 weeks and in the second instance of 22 weeks, by which my clients were left at the elevated what we have called stage one rents, which had the direct and immediate consequence of them having legal liability in each case of hundreds of dollars.

They also add the effect of causing significant rent rises from the predetermination amounts, where those predetermination amounts had been individually agreed.  The fact of the increase, we note, does not seem to be disputed, but the extent of it is – and as your Honour Justice Gleeson has noted, regrettably there are no findings about the extent of it but we stand by our calculations – that Mr Bidari and Ms Galaminda had a rent rise of over 200 per cent at a cost of about $10,000, Mr Nadjamerrek had a rent rise of 40 per cent at a cost of $2,132 annually, and Ms Tilmouth had a rent rise of 50 per cent – and this does not seem to be disputed – with an annual increase of $3,640.

Much more briefly, but in ways that it seems may be of great significance to the position put by the respondents now, there was also pecuniary and non‑pecuniary impact on the Territory itself.  The non‑pecuniary impact was, on their evidence, accepted by the courts below, that the new rent was administratively easier.  I do not need to go to it, but the Court of Appeal so finds at paragraph [158], which is at the core appeal book 168 to 169, where they say: 

administrative convenience and ease of implementation formed part of that justification –

That finding is consistent with Mr Warren’s evidence, which I would seek to take the Court to, because it seems, in our submission, this evidence may have the potential to be determinative of the appeal, in light of the way that the respondent now puts its case.  So, can I take your Honours to appellants’ book of further material at page 144, for which your Honours should be in the evidence of Mr Warren.  Mr Warren identifies the intention of the reforms.  They were – consistently with the finding:

to establish a simplified and consistent scheme that is easy to administer for government –

So, that is one part of it:

easy to understand for remote public housing tenants –

In our submission, that is moving towards a concern for the individuals affected.  But then the last words, which, as I say, seem to take on significance:

affordable for all parties.

GAGELER CJ:   Sorry, where are you reading from, please?

MR ALBERT:   I am sorry, it is appellants’ book of further material, page 144, paragraph 11.

GAGELER CJ:   Thank you.

MR ALBERT:   That evidence was accepted, and a finding was made to that effect by Justice Burns in the core appeal book at page 16, paragraph [16].  That language of being “affordable to all parties” necessarily includes affordable for government, for the corporate entity CEOH, but also, in every instance, the individuals who are the subject of the private law contractual relationship that was being upset by the determination.

In our submission, that language of “affordable for all parties” shows that there was a degree of individual consideration being given by the decision‑makers at least at the time of the first determination.  “Affordable for all parties” also acts as a bridge to the evidence as to the financial benefit to the Territory of these new regimes, in respect of which – we do not need to go to it, but we would refer your Honours to the appellants’ book of further materials at 232 where, under the heading “Financial Implications”, the CEO of the Department is told:

The new framework has been identified to generate a $9.7 million per annum revenue increase.

Against that lengthy backdrop, can I then move specifically to the grounds, which, hopefully, will be briefer, having done that.

GAGELER CJ:   Yes, very well.  This will be a convenient time for us to take the morning adjournment, Mr Albert.

MR ALBERT:   If the Court pleases.

GAGELER CJ:   Thank you.

AT 11.14 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.30 AM:

GAGELER CJ:   Mr Albert, we are getting to the first of your two grounds, I think.

MR ALBERT:   Yes.  Can I start by just referring to this Court’s reasoning in Disorganized Developments.

GAGELER CJ:   Yes.

MR ALBERT:   I do not necessarily really need to go to it and, given the concern for time at my end at least, I do not propose to, but we seek to have the Court say nothing new or different from what was said there, in particular, at paragraphs [32] and [33] and paragraph [49] of your Honour Justice Steward’s judgment.

STEWARD J:   I do not think there is any difference in principle between the two of you.

MR ALBERT:   No, with respect, I think that is right, and on that basis I do not propose to take your Honours to it save to note the fairly base point that the concern is with “rights or interests” and in that sense seek to just briefly identify what we say are the rights or interests at play here, because, in our submission, it probably goes to the content of the obligation.  The relevant rights or interests are, without doubt, interrelated, but we would distinguish them in three ways.

First, there are contractual rights arising from the tenancy agreement, both its terms and its nature, upon which most relevantly, in respect of rent, a person necessarily arranges their financial affairs.  The second are property rights in two senses.  First, the property and the money that is paid for rent and second, in the interests acquired by reason of the lease, noting, of course, that property interests have been long recognised as being protected in respect of procedural fairness, as this Court acknowledged in Disorganized Developments at [28] and [35], and equally was the subject of emphasis in Kioa v West at page 518 of the joint book of authorities, in the report at page 618.

GAGELER CJ:   So, all that has changed is the rent, is that right?  I am not sure what the property point adds to the rent.

MR ALBERT:   Well, the property point, as I say, at least in part, is the property in the money, which is obviously part of the rent, and then in the alternative additional point, which I think is your Honour’s concern, is in respect of the lease, and there our concern arises because of the nature of eligible persons in respect of which it is foreseeable that the increase in rent means that they are not able, in a practical sense, to maintain their interest in the property.  So, that is the indirect property interest that we say arises.

That goes to the third thing that we identify, which is the interest in housing or shelter being the basic human need and something that is unusually vulnerable for people that are, quote, “of limited means” and not otherwise adequately housed.  In our submission, that goes to questions of livelihood which were addressed by this Court in Jarratt, or at least mentioned at paragraph 140 of Jarratt by Justice Callinan quoting Chief Justice Gleeson, Gaudron, Kirby and Hayne in Sanders v Snell.

The power, of course, is the power in section 23.  All I would seek to develop at this point is to contextualise the power by reference to the purposes of the Act and the statutory scheme more generally which, in our submission, neatly align with the very same rights or interests that I have just sought to explore.  The purpose of the scheme generally, in particular, the Housing Act and its regulation, is the protection of the basic need for shelter of indigent Territorians.

One gets to that point first by going to the joint book of authorities, the Housing Act, at page 16, and looking at the short title of the Act itself, which is concerned, so Parliament said, with – and I quote:

the provision of housing and other accommodation for letting –

That overall objective of the Act is achieved at least in significant part through the CEOH, which is established by section 6, which is at page 20 of the joint book of authorities.  Then, on the next page of the joint book, section 15 sets the functions of the CEOH, the first of which matches that, the provision – I am sorry:

to provide and to assist in the provision of residential accommodation –

Section 16 then sets the powers of the CEOH, which include under subsection (2)(e) the power to:

let premises –

in a general sense, “premises” being a more general term than “dwelling”, which is a subset of “premises”.  If one then goes to the joint book of authorities at page 25, one finds Part 3, which has only two provisions, the second of which is the one of concern in this appeal, but we would note that the heading for that Part matches the heading of the Act more generally, it is still about the provision of housing and the rental of dwellings.

The final stopping place, just to situate it, is section 34, which arose in discussion with your Honour Justice Gordon earlier, which we rely on, as I said before, as a statutory bridge to the objectives of the Residential Tenancies Act, in particular in section 3.  And we especially rely, as mentioned earlier, on (e), but we equally rely on (d) which, in the Residential Tenancies Act, which your Honours will find at joint book of authorities page 95, the objective (d) is concerned with the provision of:

safe and habitable premises –

alongside the objective of facilitating:

fair rent in return for providing safe and habitable accommodation –

All of that, in our submission, gives important statutory context for a proper reading of section 23 which, read in that context, is to be exercised, in our submission, in a way that promotes the provision of housing and the rental of dwellings that are safe and habitable and subject of fair rent.  Relevantly, for our purposes, as discussed earlier, the rent is still to be fair even when sections 41 and 42 are not available for exercise for the reasons identified by the Court of Appeal.

There are two features – if we can then go back to section 23 – of section 23 which permit fairness in the sense of being tailored to the circumstances of either individual tenants or individual dwellings.  The first is in section 23(1), which allows for the exercise of the power in respect of an individual:

dwelling or a class of dwelling.

Of any size, including very small.  The second feature is section 23(2), which permits the imposition of conditions on any such determination, which again could be tailored to individual tenants or individual dwellings.

In the interests of time, I might not go to them, but can I implore the Court in due course to visit appellants’ book of further materials at 171, and also the joint book of authorities at 1004.  Those are two different determinations made by the Minister exercising the same power which illustrate precisely the kind of individual consideration that we say the power is open to being exercised in respect of.  The determination at 171 – the Gazette for that determination was provided to the Court a few days ago and hopefully has reached your Honours, but we have hard copies if not.

All that I need to say at this stage is the table is the same as the table that appears in that material, and what you will see on that table is a distinction in rent rates that is very small – as little as $5 – one suburb to the next.  And to use, just as an illustrative example, if one looks at the reference to Ross in Alice Springs – Ross being an outer suburb – you will see that the classes are very, very small.

One class is a one‑bedroom flat; a different class is a one‑bedroom duplex; a different class again is a two‑bedroom unit; a different class again two‑bedroom duplex.  It goes all the way through – relevantly for us – to five‑bedroom houses, each of which is distinguished but, importantly for our purposes, each “class”, so called in that determination, is unlikely to be anything but very small.  Equally, the determination – and it is only an example – at joint book of authorities 1004 is a determination made in the very early days of this power.

Again, you see bespoke conditions being put on the determination, relevantly, by reference to very particular features of the dwelling: 2.5 per cent rent increase if you have a carport; 2.5 per cent if you have a covered verandah; two per cent if you have heating; 3.5 per cent if the standard of your house is higher than the average; five per cent reduction if it is lower than the average; five per cent reduction if there is no air conditioning.  Again, an illustration of how the determination power can be – and, indeed, was – exercised many times in respect of very small classes and very individualised considerations.

In respect of the determinations that we are concerned with, we are at the other end of the spectrum.  There are no conditions at all and the class sizes range from as few as about 130 – on the evidence of Mr Warren – to the largest class being 3,066.  Your Honours will find that evidence at the appellants’ book of further materials at 381.  The size of those classes may be of significance later on, depending on the position the respondents take.

But can I then return to the ground and the two‑step inquiry for procedural fairness.  On existing authority, in our submission, it is clear that the task is properly undertaken in two steps.  First, does the obligation of procedural fairness condition the power?  Second, what is the content?  It seems clear now that the respondent accepts that section 23 is conditioned by an obligation to afford procedural fairness, and we take that from their outline this morning at paragraphs 3 to 6.

In that light, I do not – unless the Court wishes me to – propose to say very much about why it is conditioned, save to highlight four points very briefly.  The first is there is nothing in the text of section 23 specifically, the Housing Act generally or the Residential Tenancies Act which gets close to being the clear words needed to displace it.  We in particular rely on the language which your Honour Justice Edelman helpfully collated in Nathanson at paragraph 88, in that sense.

The second is that the statutory power is broad, which this Court has found before suggests that fairness is expected, in particular, in Disorganized Developments at paragraph [32] and in Jarratt, paragraph 25, Chief Justice Gleeson, and paragraphs 129, 139 and 154 in the judgment of Justice Heydon.  The third is the feature I have just identified, that the power can be exercised in respect of one dwelling or a very small class, with the result that, in our submission, it is at least productive of uncertainty if the power, at some indecipherable point, being conditioned by procedural fairness, reduces to nothingness by reason of the size of the class.

The last and perhaps most explicit – certainly unusual – is the legislative history and, in particular, we implore the Court to give emphasis to the Amendment Act, so called, to the Housing Act from 2000, which your Honours will find in the joint book of authorities at 80, where you see Parliament repealing and substituting section 23 – that is the operation of section 3 of that Amendment Act – but section 4 is explicit in engaging with questions of judicial review and is explicit in excluding it in respect of the retrospective exercise of such a power, but importantly for our purposes, saying nothing equivalent in respect of the prospective exercise of the power, noting that that 2000 version of the section 23 power is relevantly the same or rather in the same form as was exercised on the three occasions the subject of this appeal.

One then turns to the content of the obligation.  We accept that it is a flexible content.  To use your Honour the Chief Justice’s words, it has a chameleon‑like quality.  There is no dispute between the parties as to that.  There also seems to be no dispute between the parties that my clients and all remote public housing tenants were not afforded procedural fairness in any form at all in respect of each of the three determinations.

EDELMAN J:   Do you accept that the content of procedural fairness can vary according to its application in relation to the same exercise of a power?  In other words, the same power exercised in relation to, say, individuals, could have a different content of procedural fairness to the power exercised in relation to a class?

MR ALBERT:   We accept that as a possibility, yes, and that would be our reading of the current state of authority, in particular, most recently in Brisbane City Council v Leahy at paragraph [34], where they seem to say almost exactly what your Honour has just said.

GAGELER CJ:   Does your point here just come down to saying that the content of procedural fairness under section 23 requires each tenant of a dwelling that is affected to have an opportunity to be heard – to be notified and given an opportunity to be heard?

MR ALBERT:   We do not say it has to go that far, no.  We do say that that is the better view of the content, but your Honours do not have to accept that for the appeal to be allowed.

GORDON J:   I do not think that is right, to be blunt.  I mean, what Chief Justice has put to you is the general proposition that requires each tenant of a dwelling to be notified and be heard.  The way in which that obligation is done is a different question, so ‑ ‑ ‑

MR ALBERT:   Yes, with respect, that is correct and your Honour is right to point that out.  I may have misconstrued the question.

STEWARD J:   Can I ask you, Mr Albert, what on your view is the minimum that needed to happen here?

MR ALBERT:   Notice – public notice – of how they proposed to implement the power.  And that would include stage one, stage two, the identification of the classes, and importantly, the identification of the communities to be affected.

STEWARD J:   Does the notice need to invite the making of submissions within a prescribed time?

MR ALBERT:   Sensibly, yes.

STEWARD J:   So, that is part of the minimum – an invitation to make submissions.

MR ALBERT:   I do not know that it needs to be explicit, but implicitly, yes.

GORDON J:   I do not know about that either.  I mean, you said to us, when you took us to the map, that they had lost the opportunity to make submissions to have themselves removed from the subsequent determinations like they did around Alice Springs.

MR ALBERT:   Yes.  I am answering ‑ ‑ ‑ 

GORDON J:   So, how can you not accept the proposition that they needed to be given that opportunity?

MR ALBERT:   No – to be clear, I am seeking to engage with Justice Steward’s question on the minimum content, whereas ‑ ‑ ‑ 

STEWARD J:   Your point is that you may not need to expressly invite a submission, but it would be pregnant within the fact that you are giving notice.

MR ALBERT:   With respect, that is exactly right.

STEWARD J:   And can I ask you this question as well.  That would be notice not just to the tenants but to any representative indigenous bodies who – for instance, the people who were part of that SAG process?

MR ALBERT:   In a practical sense, it is hard to imagine how you would give notice to tenants not the representative body.  So, in a practical sense, I am not sure there is an answer, but no, the tenants are the focus because they are the ones impacted.

STEWARD J:   And the form of the notice, you do not prescribe it?

MR ALBERT:   We certainly do not prescribe it.  I am uncomfortably sitting between minimum content ‑ ‑ ‑ 

STEWARD J:   Yes, I understand.

MR ALBERT:   ‑ ‑ ‑ which is what I am seeking to address you on, and what we say should happen.  So, just addressing you on minimum content.

STEWARD J:   Minimum, yes.

MR ALBERT:   No, minimum content, you do not – it would have to be a notice of a form that is noticeable.

STEWARD J:   Well, it would have to be effective.

MR ALBERT:   Precisely.

STEWARD J:   Yes.

MR ALBERT:   And that would perhaps be a notice in a newspaper.  In 2025, it would probably be more accurately and properly a notice on Facebook, by which this would be distributed amongst those who are going to be impacted.  But I am not here dealing with minimum content, I am dealing with how we say ‑ ‑ ‑ 

STEWARD J:   I understand what you are saying, yes.

GAGELER CJ:   Let us be conceptually clear about this.  The requirement is to give reasonable notice to each affected tenant and a reasonable opportunity for the affected tenant to be heard.  Now, what is reasonable in the circumstances may actually vary from community to community.  You are talking about newspapers and Facebook – I am not sure that they are relevant to all of these communities – but whatever might be reasonable in the particular circumstances of particular tenants in particular communities, you say did not happen here.

MR ALBERT:   We are in the comfortable position of saying literally nothing happened.  This is why this discussion, which I am very happy to have and I expect, if we are successful, we will ultimately have in a future attempt to exercise this power – there will be a discussion about what the content is, but we do not have to deal with it.  We are in a situation like Jarratt.

EDELMAN J:   Your submission is that there is a statutory implication of procedural fairness with some content.

MR ALBERT:   Yes.

EDELMAN J:   But you have to place what the content is.  I mean, just saying that there is a minimum does not tell us what the implication is.

MR ALBERT:   No, with respect, that is right.

GORDON J:   So, is what the Chief Justice put to you the content of it?  Reasonable notice to each affected tenant and reasonable opportunity for each affected tenant to be heard, with what is reasonable in terms of both notice and reasonable opportunity to each affected to be heard dependent upon the circumstances?

MR ALBERT:   Yes.  Yes, I think we would have to ‑ ‑ ‑ 

GORDON J:   So, it has both meanings, it has notice and opportunity to be heard.  The two important elements of procedural fairness.

MR ALBERT:   Yes.  But I do, with respect, embrace what Justice Steward said, that it may be possible – but we do not say it is proper, I am just again oscillating between minimum content and what we would say it should be – but the fact of the notice of the intention, with a date – we intend to do this in two months – it would, to adopt your Honour’s language, be pregnant.  But it should say:  and tell us what you have to say.

STEWARD J:   Yes.

MR ALBERT:   Absolutely, that is what it should say.

GLEESON J:   Do the landowners have any interest in this case?

MR ALBERT:   The landowners of the?

GLEESON J:   The ultimate owners of the premises that are tenanted.  As I understood, there were some Aboriginal Land Corporations that are the ultimate owners.

MR ALBERT:   Yes.

GLEESON J:   Do they have any relevant interest?

MR ALBERT:   That is, with respect, a very difficult question, because it would depend on the relationship.  But I think the answer to that is probably no, because there is no because there is no evidence to indicate any of the rent money flows to them and, as far as I am aware, it does not.  So, in that sense, their interests are not affected in any direct sense or at all.

GAGELER CJ:   All right.  Is that ground 1?

MR ALBERT:   No.  Can I just give your Honours the pinpoints – I do not propose to take you to it – where the evidence is clear that no procedural fairness was afforded to my clients at all.

STEWARD J:   Well, is that disputed?

MR ALBERT:   I do not think so.

MR LENEHAN:   No notice was given, and therefore no opportunity to be heard.

STEWARD J:   Thank you, Mr Lenehan.

MR ALBERT:   Thank you.  Could I then move into what is essentially prophylactic reply on the point that is put against us ‑ ‑ ‑

GAGELER CJ:   Why do you not leave those for reply?

MR ALBERT:   I am in the Court’s hands.  My hesitance, with great respect ‑ ‑ ‑

GAGELER CJ:   Go ahead, but just do it efficiently, please.

MR ALBERT:   My hesitance, with great respect, is that the scheme I propose to put, I think in fairness, Mr Lenehan should have an opportunity to respond to.

GAGELER CJ:   All right.

MR ALBERT:   But I will attempt to be brief.  The point that seems to be put against us in their outline at paragraph 8 is a version of what is called in their primary submissions the exclusive actual consideration theory.  What I propose to do is to address that directly, again, so that at least Mr Lenehan has an opportunity to respond to how we say it is wrong.

The theory seems to be that if you have an open‑textured power and there are a range of permissible considerations, if the decision‑maker chooses one consideration, and it is about which an “individual”, in inverted commas, could say nothing, then the content of the obligation reduces to nothingness.  We have three responses to that, and it is those I wanted to offer primarily.  The first response is that is not this case on the evidence.  The second is even if it is this case, the logic of the theory is unsafe.  The third is even if it is this case and the theory is safe, it is contrary to this Court’s previous authority.

The exclusive actual consideration theory necessarily requires the Court to be satisfied that there was an exclusive actual consideration.  It is not clear to us even now what the respondents say was the exclusive actual consideration, but what the evidence shows is that there was not one consideration, there were, unsurprisingly, a range that fed into each of three determinations.

That evidence is principally to be found from Mr Warren, whose evidence, in our submission, was clear, putting the first determination in one category and the second and third in a separate, that there was not one exclusive consideration, and if there were considerations, plural, they were not ones about which our clients could say nothing.  If we go back to the appellants’ book of further materials, page 144, paragraph 11, where we were before, one sees immediately that the intention of the scheme was, among other things, to be:

affordable for all parties.

I mentioned before that necessarily includes an individual consideration of the affordability to tenants.  At paragraphs 19 to 20, there is the evidence put by the respondents about the Minister’s decision and Mr Warren’s involvement in that process and, importantly, the respondents put into evidence the brief that went to the Minister for the first determination, which your Honours will find at appellants’ book of further materials, page 222.

In the “Background” there is a noting that Cabinet approved a framework and an implementation plan.  Under the heading “Issues Arising” there is a mention of how it overrides tenancy agreements but there is no mention of sections 41 and 42 of the Residential Tenancies Act and the effect on those.  Then there is an identification of why there is a need for immediate gazettal.  Namely, it is said to:

remove any ambiguity around the rent to be charged, particularly where historical records are of a poor and/or inconsistent standard.

About which individuals could have plenty to say about what the historical rental arrangements were, including all of my clients, who could have said that they had never once paid the amount that was in the quote‑unquote “existing framework”.

Under the heading “Timing” there is an acknowledgement that there had been no communication with the tenants.  Under the heading “Financial” is the word “Nil”, which seems to be a near direct response to the idea that the exclusive actual consideration was money or financial policy.  Rather, if one goes to the next page, the identification of sensitivities, the sensitivities identified are:

legal uncertainty regarding rental liabilities –

and then you have the signature at the bottom.  What we seek to emphasise is the absence of anywhere mention of there being some exclusive actual consideration, let alone the considerations including ones about which my clients could say nothing.

In respect of the second determination, the evidence again comes from Mr Warren.  If one goes to the appellants’ book of further materials at 149, paragraph 22, Mr Warren notes that:

the Chief Executive Officer of the Department signed a brief –

about delaying the second stage.  At 23 he notes the handwritten note linking this brief to the Minister who made the decision.  Importantly, there is no evidence here of high‑level policy, nothing at all to show Cabinet was involved, no mention at all of six communities being added, no mention at all of the effects of the Residential Tenancies Act sections 41 and 42 being blocked.

The explanation, however, given for the delay of the second stage is clear, in particular, in the appellants’ book of further materials at 230, where they note the delay of four months, and then they give four reasons for the delay which, in our submission, are the closest one gets to the actual considerations relevant here.  They were:

COVID‑19 restrictions . . . significant weather events, staffing capacity . . . and concerns by the housing and legal sectors on the model.

The recommendation is to approve a four‑month extension, notation that there is no Cabinet involvement, and then, at 232, the third dot point, identification of how this is being implemented.  In respect of the third determination, there was no evidence put on by the respondents to show the actual consideration at all.  Nowhere is there a mention of high‑level policy in form or in substance.

All that the respondent put on was another affidavit from Mr Warren, which is at the appellants’ book of further materials pages 367 to 369, which annexed the third determination, gave no explanation for what consideration motivated it and, in our submission, that leaves the Court to infer that it was the same set of considerations as the second determination, given that it further delayed stage two.

In our submission, the conclusion on the evidence is enough to defeat the point put by the respondents now, namely, that there was no evidence that supported one actual exclusive consideration, nor is there an actual exclusive consideration identified about which one could say nothing.

Could I then move to what is probably the most important response, putting aside the evidence, to the theory that is put by the respondents, and that is to deal with it at the level of logic.  I would invite the Court, for the sake of argument, to adopt five assumptions in order to explore the logical flaw in the position put by the respondents now.

The first is to assume a statutory power that is limited only by statutory context and purpose and legal unreasonableness but requiring procedural fairness.  The second assumption is that, subject to those limits, I would invite the Court to assume there are, just for the sake of argument, 10 possible permissible considerations.  Then, for the sake of argument, I would invite the Court to put those 10 possible permissible considerations on a spectrum.

At one extreme would be a consideration about which impacted persons would obviously have things to say and at the other extreme would be considerations about which it could be said that impacted persons have nothing to say.  Then assume, as the final assumption, that there is evidence to support the actual consideration being only the one at the far extreme which, for the sake of argument, I will refer to as “X”.

In our submission, even in that scenario, there are things that my clients could have said or, indeed, any person affected could have said.  There are three categories of things.  The first I will call “other than X”.  A person impacted by such a decision could direct the decision‑maker to other permissible considerations.

GAGELER CJ:   I think we understand the argument of logic.

MR ALBERT:   If the Court pleases.

GORDON J:   Mr Albert, I mean, if you just step back for a moment, your starting point is either good or bad, is it not, and that is that affordability for all parties – the point you took us to at the book of further materials 144 – is itself critical.

MR ALBERT:   Yes.

GORDON J:   And we know from Disorganized Developments at [45] that where something is particularly within the knowledge of the person – here, affordability for them – then that is something to which someone might expect there to be procedural fairness, notice and the like.  So, is any of this greater than that proposition, taken at its highest?

MR ALBERT:   No, is the answer to your Honour, but at that point you have accepted our response at the level of fact, which we say is enough ‑ ‑ ‑ 

GORDON J:   Well, it is fact and logic.

MR ALBERT:   And logic, yes, indeed.  But we can – I proposed to deal with it, but I will not at the moment deal with it just at the level of logic, assuming fact is against us, but with respect, what your Honour says about the facts is enough to defeat the submission put against us.

GORDON J:   Well, it is fact and logic that there were particular matters within your clients’ knowledge which were not available to the person making the determination.

MR ALBERT:   Yes.  Yes.

STEWARD J:   I think Mr Lenehan’s point, if I can put it crudely, is that when a government has to deal with something at a very high of policy which will affect a large group of people, it may be the case that the content of procedural fairness does not require the government to consult with all those affected.  So, a good example is raising income taxes, you do not do that. 

Your response here, as I understood it, was that this is different because we have a finite group, and they are especially vulnerable, and they are participants in a statutory scheme which is all about ensuring that they have adequate housing, and they might have had said things that might have affected the way the determination would have been produced and its content.

MR ALBERT:   With respect, that is right, but can I add one factor, which has not yet come up ‑ ‑ ‑

STEWARD J:   Yes, please do.

MR ALBERT:   ‑ ‑ ‑ and that is what distinguishes our situation from those other situations of rates, ratepayers, income tax – there are many other examples – is that we had an individual contract, a private law relationship that was being directly upset by the exercise of the power.

That cannot be said for income tax.  It cannot be said for relocating a runway, which is the Botany Bay Case.  It cannot be said for rates or ratepayers, which is the example given by Justice Mason, I think, in Kioa.  It cannot be said for any of those cases.  In this case, the legal relationship both before the determination and after the determination that is impacted is a private, individual, tailored legal relationship.

GLEESON J:   If regulation 5 is construed in the broad way – I think you want to say that it is construed in a narrow way – how does that impact the private law relationship?

MR ALBERT:   It also impacts the private law relationship.

GLEESON J:   Well, does it not impact it by allowing for the possibility of making submissions in relation to affordability that could reduce the rent to zero?

MR ALBERT:   If the power was available, then yes.  Your Honours have heard me on the question of whether – well, there are two questions:  is it available and was it in fact exercised?  We answer those:  no and no.

GORDON J:   So, this comes back to something I put to you earlier, Mr Albert, and that is your complaint about denial of procedural fairness relates to before the determination.

MR ALBERT:   Yes.

GORDON J:   The availability of the rebate and the other matters arises after the determination has been made.

MR ALBERT:   If at all.

GORDON J:   I accept “if at all” ‑ ‑ ‑ 

MR ALBERT:   Yes.

GORDON J:   ‑ ‑ ‑ but that is why one can put, in a sense, even if you are wrong about the way in which the rebate works, your argument about the lack, denial of procedural fairness before the determination stands good, on your argument. 

MR ALBERT:   With respect, that is right.  I will leave for the moment other matters and address them in reply, if necessary.  Can I move then, relatively briefly, to legal unreasonableness.  The unreasonableness here is an outcome‑focused exercise.  We rely on what this Court said in SZVFW and, in particular, the focus, with respect, rightly given as to the factual circumstances that are the subject of challenge.

For the purposes of legal unreasonableness, we refer back to the earlier submissions about the overall aim of the scheme and, in particular, the notions that it is about provision of housing that is safe and habitable and the subject of fair rent.  We also place emphasis on the second reading speech by which the section 23 power was expanded to cover classes, which your Honours will find in the joint book of authorities at page 1010, where the Minister told the Parliament that the purpose of the adjustment of section 23, relevantly, to capture classes, was to:

rectify an irregularity –

and then, revealingly for our purposes, the Minister said that the rent determination for a class of dwelling would be, and I quote:

taking into account location or style of building.

I want to be clear what we are saying and what we are not saying.  We do not say that that gives rise to mandatory relevant considerations.  What we do say is that it is revealing of the obvious rational criteria for a class determination.  Indeed, it was the criteria used in respect of the urban determinations to which I took the Court earlier.

GORDON J:   Would you just give me that reference again please, Mr Albert?

MR ALBERT:   Yes.  It is in the joint book of authorities, part E, volume 6.

GORDON J:   Page?

MR ALBERT:   Page – I have it as 101, but I am not ‑ ‑ ‑

STEWARD J:   I do not think it is 101.

MR ALBERT:   No.  I am sorry, your Honour.

STEWARD J:   Would it be 1001?

MR ALBERT:   That might be right, I am sorry, your Honour.  Ms Benn no doubt will help me.  It is 1001.  The flaw in the approach adopted by the Court of Appeal below was to ignore almost all detail in respect of the effect of each of the determinations and to instead step right back and look at the alleged overarching approach.  That, in real terms, divorced what was the detached theory from the messy grounded reality of what was being done to these public housing tenants.  I am sorry, the page reference, your Honour, was 1015.  I apologise.

STEWARD J:   Thank you.

MR ALBERT:   In our submission, there are six reasons individually, or in any combination, which show that the reality of these determinations was fairly described as arbitrary, unjust or unfair.  The first is that it treated unlike dwellings alike and like dwellings unlike one another.  The notion in the Act of a class has, in our submission, embedded within it an expectation of a sufficient level of commonality to be properly so described.

In our submission, that is an obvious stretch when one is dealing with a vast area and houses which will, by definition, not all be the same age; not all have the same facilities, including not all having the same facilities other than bedrooms.  For example, a two‑bedroom house with two bathrooms is different to a two‑bedroom house with one bathroom.

That is to say, the proxy that was used by the Minister was itself inappropriate and ill‑adapted for the exercise of the power by reference to class.  It was also problematic in that it disregarded location – which is an obviously salient feature – in the very way that the Minister acknowledged in the second reading speech.

The second factor – and I am going to seek to illustrate these first four factors in a moment – was what the Court of Appeal described, at paragraph [158], as, and I quote:

The adoption of a uniform cost‑based model for the fixing of rent for remote social housing –

and:

a fixed rate of $70 per bedroom –

they said.  In reality, the per‑bedroom rate was not what was in fact implemented.  Instead, what was implemented was far more arbitrary.  Under the first stage, nobody was paying $70 per bedroom, and in the second stage – on Mr Warren’s evidence – there were 170 houses that were also not paying $70 per bedroom because they were five or more.

The third factor that we say is arbitrary or fundamentally unjust was that it had the practical effect – if one assumes in favour of the respondents that the aim was to defray expense – of having those with more bedrooms indirectly subsidised by those with fewer.  There is no such approach in respect of urban public housing dwellings where, as the example we went to before at the appellants’ book of further materials at 172 illustrates, there are bespoke rent rates referable to the actual number of bedrooms, not capped and therefore not leaving smaller bedroomed houses subsidising larger.

The fourth factor is the one that has been hinted at already, and that is about the oscillating list of communities.  In our submission, those changes are not intelligible as to why.  In the first determination, there were 103.  We refer to the practical illustration of that with Laramba and Anmatjere, why those six communities that were added in determination 2 were not there for determination 1.  Equally, it is unintelligible as to why there are 103 communities in the first determination, 109 in the second determination, but 17 were dropped for the fourth determination, again raising the apparent prospect that one could advocate or in some way achieve the end of being excluded from this scheme.

Can I illustrate the arbitrary effects of those combination of factors in respect of a particular and neat example of the communities, and to that end invite your Honours to go to appellants’ book of further materials 392, which I referred to briefly earlier.  We stand by the illustrative examples we gave in the written submissions, but this one illustrates the point – as I say, hopefully neatly – by reference to different communities.

STEWARD J:   What page?

MR ALBERT:   Appellant book of further materials at 392, and it would be useful, if your Honours do not have it, to have the colour copy.

GORDON J:   This is the map you took us to before which shows the exclusions.

MR ALBERT:   It does, yes.  So, the three communities that I would ask the Court to focus on for the purposes of the illustration are Arumbera, which is in the bottom‑left and is orange; Ilparpa, which is grey and no dot, up and to the left; and then the third one is a community called Anthepe – which importantly is spelt A‑n‑t‑h‑e‑p‑e – which is the northernmost of the clump of three communities next to Kilgariff.  So, those are the three communities I would seek to focus on, and I am going to ask that the focus be on one‑bedroom dwellings and six‑bedroom dwellings in those three communities.

If one goes – and I would invite your Honours to have the map and this other document open at the same time for ease – if one then opens up the appellant book of further materials at 171, you will find the urban determination that we visited earlier.  That determination was a determination by the Minister, using the same power, exercised – as it says at the top – in 2017.

GORDON J:   This is the one you took us to to show us the extent to which you can impose conditions both by reference to breaking up the classes into smaller classes, distinctions between particular suburbs in particular ‑ ‑ ‑ 

MR ALBERT:   Precisely, precisely.

GORDON J:   But why is that – I mean, we have seen this before, how does that prove unreasonableness in this situation?

MR ALBERT:   If your Honour will indulge me for a minute, it will hopefully become apparent fairly quickly.  So, the table labelled at the top:

Alice Springs – 6 March 2017 –

this is five years before the determination – your Honours will see Arumbera and Ilparpa are both identified as communities.  So, for a one‑bedroom house in Arumbera and Ilparapa it is $250, and for a six‑bedroom house in Arumbera and Ilparpa it is $650.  Critically for what follows, to show the arbitrariness, what this document shows is that in 2017 the Minister, exercising the same power, regarded as exactly equivalent the one‑bedroom and six‑bedroom houses in those very closely proximate communities, about 10 kilometres apart.

That is superficially rational and credible because they are equal distance, roughly, to the services in Alice Springs, and the same number of bedrooms.  What your Honours will not find in that table at 171 is any reference to Anthepe, again spelt A‑n‑t‑h‑e‑p‑e.  So, as at the 2017 determination, Anthepe is not covered by any determination and, importantly for what follows, Anthepe residents have the benefit of sections 41 and 42 of the Residential Tenancies Act.  So, that sets the scene for the predetermination situation.

Then we go to the first determination, which your Honours will find relevantly in the appellants’ book of further materials 26, and when one looks at the list of communities, one sees Anthepe is included, but you will not find Arumbera or Ilparpa.  So, the effect of the first determination – these are three neighbouring communities – is that Anthepe, which had the benefit of sections 41 and 42, lose it.  That is effect on Anthepe.  A one‑bedroom house in Anthepe goes to $150 rent, even though we know in the neighbouring community – by reason of the 2017 determination – a one‑bedroom house is $250 a week.  It is a $5,200 a year difference.

A six‑bedroom house in Anthepe under the first determination goes to $250.  Note the difference:  a six‑bedroom house in Anthepe at this point is $250, and in the neighbouring communities of Arumbera and Ilparpa, it is $650.  That is a $20,000 a year difference between six‑bedroom houses in neighbouring communities, but to make things even more inexplicable, a one‑bedroom house in Arumbera and Ilparpa is $250, and a six‑bedroom house in Anthepe is also $250.

That then changes, and the effect is arbitrary in different ways in the second determination, because in the second determination, if your Honours go to appellants’ book of further materials 31 and 32 – reflected in the fact that Arumbera is orange – captures Anthepe and Arumbera, but it does not capture Ilparpa.  Inexplicably, but no doubt a cause of great joy, Arumbera rents plummet, despite five years elapsing, from their rates by the Minister in 2017, but the Ilparpa residents get none of that benefit.  The Ilparpa residents are still captured by the 2017 determination, for which they are paying $250 for a one‑bedroom house, and they are still paying $650 for a six‑bedroom house.

So, then compare and contrast the Ilparpa six‑bedroom residence with the Arumbera six‑bedroom residence.  In 2017, the Minister exercising this power was satisfied that they were exactly equivalent – $650 for both – but at the point of the second determination, but not the first, the Minister for reasons unknown has dropped the rent from $650 to $250 for the six‑bedroom houses in Arumbera but not Ilparpa.

Those arbitrary effects continue into the third determination, but then in the fourth determination, the misfortune flips.  For reasons that are a mystery, apparently – as we have said – it was possible to be excluded from these, but what you see, again by reference to the colour on the map, is that in the fourth determination Arumbera remains, but this time Ilparpa and Anthepe are excluded.  You will find that list at appellant book of further materials 41.

So, under the fourth determination, if you compare Arumbera and Ilparpa, right next to each other, the rent difference for a one‑bedroom house is 350 per cent:  it is $70 in Arumbera and $250 in Ilparpa.  A six‑bedroom house has a 230 per cent difference:  $280 in Arumbera and $650 in Ilparpa.  But there is another arbitrary element to this and that Anthepe being dropped in the fourth determination and it, not being covered by an earlier determination, means that the rents in Anthepe reverted to the original individual rent settled by their contract and the Anthepe residents regained the protection of sections 41 and 42.

In our submission, that – as one of any number of illustrations – shows the arbitrary effects of these determinations.  It shows like dwellings – and when I say “like”, it is the Minister who regarded them as like in 2017, being treated unlike – it shows that there is not a uniform cost model; it shows that five-and-more-bedroom houses are apparently heavily subsidising – when you talk about Ilparpa, but being subsidised when you talk about, at different times, Arumbura and Anthepe – other houses; and you see the immediate, in our submission, irrational effects of the changing list of communities.

The last two factors that we would seek to identify and rely on briefly is that the only evidence of the cost‑based model, which was the apparent theory being implemented, did not match what was in fact implemented.  The relevant evidence of this is the appellant book of further materials at page 196, where there is an identification of the so‑called stakeholder advisory group agreeing to the operational cost per bedroom model.

That model is to be found in what is called “Attachment A”, which is referred to in the appellant book of further materials 203, but the model itself is at the appellant book of further materials 200, which I would seek to take the Court to, and which sets out the totality of the evidence about the so‑called:

Dwelling Based Rent Data Modelling –

Your Honours will see, the top table, are the:

Dwelling Rent Models –

You will see in the left column that, unlike the determinations, what was put to the stakeholder advisory group included differentiation for five-bedroom dwellings.  The eighth column over identifies the operational cost approach per bedroom, but it is the ninth column which is the one that becomes the thing that is endorsed, and that is the discount.

The discount is consistent with the notion of it being, quote, “affordable for all parties” – at least in part – because it has regard to affordability if one just took the operational cost.  Our point is a simple one:  what was in the determinations did not match what was the operational cost.  So, if the operational cost was rational, that does not explain what was in fact implemented.

The last factor which we identify – to deal with very briefly – is, in our submission, the base unfairness of blocking, for this particular group, access in particular to the process in section 42 of the Residential Tenancies Act in circumstances where the same operational cost could have been recovered by, for example, exercise of the option in section 46 of the Residential Tenancies Act, being the mechanism of a simple rent reduction.

Put it differently, if the CEOH had just wanted to recover $70 per bedroom from one‑bedroom dwellings, the corporation could have done that by just offering all one‑bedroom dwelling occupants a rent rate of $70.  They would have recovered the exact same amount as a rent reduction.  In that circumstance, the only effect of the determinations on that class was to deprive them of access to the very thing that Parliament intended as a mechanism to ensure rent was, in the language of the Act, fair.  That was the mechanism designed in section 42 of the Residential Tenancies Act.

Unless there are any other matters, those are the primary submissions for the appellants.

GAGELER CJ:   And is there anything you wish to say about the special leave application, or is it we just rely on the written submissions here?

MR ALBERT:   I think we are content to rely on the written submission, subject to just one point, and it is a realisation that only hit us – or hit me, at least – in the last week.  I do not think it affects anything anyone has said, but there is a mismatch between the aspect of the proceeding that was referred and the reasons that it was dismissed.

The mismatch is that what was referred by the Chief Justice to the Full Court had two elements:  a challenge to the determination, the fourth determination; and a challenge to the policy.  We submit to the Court that one should read the orders in light of the reasons.  When one looks at the reasons, in particular at paragraph [3], what is clear is they only considered the fourth determination and not the policy.

So, if – as we urge the Court to do – the order is read in light of the reasons, then it is only one part of the part that was referred that the order dealt with.  In respect of the other part, on the totality of the evidence, it seems clear that that aspect of the referral was declined.

GAGELER CJ:   All right.  Thank you.

MR ALBERT:   If the Court pleases.

GAGELER CJ:   Mr Lenehan, can you use five minutes?

MR LENEHAN:   Yes.  I will use the available time to say, really, in a nutshell how we approach both aspects of the claim.  Your Honours have seen that section 23 is a very broad power.  We say it was designed – your Honours can see this from the extrinsic materials – to allow the Minister to do the very thing that was done here, that is, to apply a form of policy.

The extrinsic materials refer to both the idea of Commonwealth policy and also Territory‑specific policy.  That is what was done.  What – and I will come back to this in detail – was actually done here was to apply an across‑the‑board policy that, contrary to what your Honours have heard this morning, brooked no exceptions.  Now, in saying “brooked no exceptions”, I am not overlooking that your Honours find some communities missing from the first determination and the fourth termination.

Your Honours will see from the evidence that I will show you that the explanation in relation to the first determination appears to be an error.  There were some communities that were simply omitted.  In terms of the fourth determination, the situation is somewhat more complicated.  It is somewhat more complicated because, of course, that determination is the subject of D1 and not D7.

So, the evidence that your Honours have does not reveal the reasons for it, but your Honours can infer from the geographic locations of the omitted communities – they are all about Alice Springs – that it had had something to do with Alice Springs and the management of those communities.

So, this was, with that starting point then, an attempt to apply universally in the Territory a policy, and to do so in a manner that, but for the number of bedrooms, which was used as the surrogate for rental value, was entirely agnostic, we say, to the individual characteristics of both the dwelling and the people who lived within the dwelling.  And it was, therefore, equally agnostic to the specific effects of the policy upon Mr Albert’s clients.

Saying that, that was obviously something in a general sense.  Your Honours see in the discussion by the SAG of things like affordability, in a general sense, there was an understanding that it was important to make this form of accommodation affordable, but not by reference to any individual characteristics of the people who dwelt within.

EDELMAN J:   Mr Lenehan, even if all of that is right – you may wish to consider this over the lunch period – given that you accept that procedural fairness is an implied requirement of section 23 ‑ ‑ ‑

MR LENEHAN:   Yes, we do.

EDELMAN J:   ‑ ‑ ‑ why is there not perhaps always a minimum content to procedural fairness?

MR LENEHAN:   Your Honour, in this case, the minimum content is, of course, absence of bias but no hearing when one is applying a policy which simply had no regard for the circumstances of individuals.

EDELMAN J:   Even, perhaps, without a hearing, that notice may be a minimum requirement?

MR LENEHAN:   Yes.

EDELMAN J:   In Kioa v West, Justice Brennan refers with apparent approval to an article by Mr Johnson where he makes that point.

MR LENEHAN:   Yes.  But your Honour also knows that his Honour accepts – although he says it is, perhaps, an exceptional case, and in Kioa, of course, you are dealing with a power directed specifically to the individual – that there may be cases in which no hearing at all is required, because the decision‑maker does not propose to have regard to anything specific to an individual.  That is this case, we say.

GAGELER CJ:   Section 23 can apply to an individual dwelling or it can apply to a class of dwelling.

MR LENEHAN:   Yes.  It can.

GAGELER CJ:   Does your argument go so far as to say if the Government is to adopt a general policy as to rent‑setting, that it would be permissible for the Minister to make a determination applicable to a single dwelling in accordance with that policy and not give the tenant an opportunity to be heard?

MR LENEHAN:   Your Honour, that would be a case which was really functionally equivalent to a dwelling‑level decision.  So, in that case, we would accept that most likely procedural fairness does have content.

GAGELER CJ:   All right.  So, then we are focusing on the class part.

MR LENEHAN:   Yes.

GAGELER CJ:   Now, the class can be defined in any number of ways.  It can be defined geographically, by reference to a type of dwelling.

MR LENEHAN:   Yes.

GAGELER CJ:   And we can see, just from the circumstances of this case, that the classes have been changed, presumably for good reason – you are asking us to draw an inference about a good reason for reducing the class in relation to last determination.  Why should not those who are affected directly by the determination be able to address the Minister as to the desirability of applying this blanket policy to their circumstances?

MR LENEHAN:   Your Honour, at least in relation to the first three determinations, because there were to be no exceptions.  What was sought to be done was simply to apply it to all remote communities.  So, there was no question of people being excluded.

And that was both a permissible approach under a class‑based power, and because it was a permissible approach under a class‑based power, it means that the idea that one then, with that sort of intention to apply this to every remote community in the Territory, has to first consult each of the residents of those dwellings before one can do exactly what the power says one can do seems to us to be quite extraordinary.  It seems to us to really involve what Justice Brennan in Kioa called a clog on administrative decision‑making.  Can I say one more thing?

GAGELER CJ:   Yes.

MR LENEHAN:   The sequence, then, of both the determination making and also the rebate is important, because – and this is the point that your Honour Justice Gordon and Justice Gleeson both made – there is a distinctly different individualised approach to the question of affordability at that level, but that also tells your Honours that this is not something that is then had regard to and requires a hearing on at the level of the determinations, because all of that is to take place later.  I am sorry to delay your Honours.

GAGELER CJ:   No, that is very helpful, thank you.  We will take the luncheon adjournment.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

GAGELER CJ:   Mr Lenehan.

MR LENEHAN:   Your Honours, just to let you know where I am going – so, I was going to go quickly back to one or two aspects of the statutory regime just to clarify some things that emerged this morning.  Then I will go to some of the weeds, but only the important aspects, just to again clarify things for your Honours, particularly in terms of the reasonableness claim, but ultimately we say that really does not matter all that much anyway.  Then ‑ ‑ ‑

GORDON J:   Did you say “matter any more”?

MR LENEHAN:   It really does not – the weeds aspect, your Honours will ultimately find nothing that particularly goes one way or another.  Then I will come directly to the critical aspect, which is really the content question, and some of the questions that your Honours had before lunch.

If I could just ask your Honours to go back to section 23 of the Housing Act just to make the point that your Honours, I think, already have, that is:  a very broad power, no mandatory considerations and giving what is obviously a broad discretion to the Minister.  From there, I mentioned before lunch that it was designedly broad to do the very thing that happened here, that is, to give effect to a policy.  Your Honours, if you turn to the joint book at ‑ ‑ ‑

STEWARD J:   Mr Lenehan, I am so sorry, but when you said no mandatory considerations, would you agree that the concept of fairness from the Residential Tenancies Act would need to be something that would have to be considered?

MR LENEHAN:   Yes, the usual subject, scope, et cetera.  Of course, your Honour.

STEWARD J:   Thank you.

GLEESON J:   Do you accept that the effect of section 23(4) is that the tenants’ liability is decided by the determination, regardless of any rebate that they might receive in due course?

MR LENEHAN:   That is an important point.  Your Honour needs to read that provision in the context of the entire Act and, in particular, the regulation‑making power at section 37, and 37(2)(e) tells your Honours that the kind of provision that your Honours find in regulation 5 is exactly what was contemplated by the Parliament, that is:

The Regulations may:

. . . 

(e)make provision for and in relation to the letting of dwellings by the Chief Executive Officer (Housing) –

So, I think your Honour has in mind that there was a faint, I think, suggestion made that perhaps 23(4) meant that, really, there was no – that the rebate has no effect.  But the regulation‑making power gives power to make exactly the kind of regulations that one has in issue here.  Just while I am on the ‑ ‑ ‑

GLEESON J:   There might be – not that it had no effect, but the fact that the liability is not altered by the rebate was seen to be a matter of importance in working out whether or not procedural fairness – or the content of procedural fairness.

MR LENEHAN:   Your Honour, it is a little bit difficult to understand that submission, because ultimately if the regulations were made within power, looking at 5, it gives a discretion to grant a rebate – and we adopt what your Honour Justice Gordon said, that that is both prospective and past, it can be either – which will modify the person’s liability to pay amounts to the Territory, which is what happened.

Now, the associated submission that “eligible person” means that as soon as one gets a house, one is adequately housed and not an eligible person, we say that must be wrong, because it would have this effect.  If your Honours look again to – I am sorry, I have moved from the Act to what appears behind tab 8, and the regulations – if one looks to regulation 4(1), the power of the Chief Executive Officer to let a dwelling to anybody depends on them having that status.

So, the consequence of what Mr Albert says appears to be perhaps you can let it once, you certainly cannot let it again, and maybe at some interim time you decide that the condition has not been met and you effectively evict the person, because they no longer meet the required condition for having a house let to them.  And, as your Honours observed, it makes the rebate power in regulation 5, in our submission, almost wholly otiose.

Mr Albert gives the example of a house in which there is not a door, but that is obviously not what is sought to be done by this beneficial provision.  The beneficial provision has in mind that people will not be able to pay their entire rent, and when they are not, then they should be able to get a rebate.

So, we do say that it is true, there are different repositories of power, but the scheme here has in mind that there will be a determination, potentially applicable to a dwelling or a class of dwellings, and then there can be a further granting of a rebate by the CEO.  The combined effect of those two exercises of power is what is going to lead to the liability to pay.  Does that answer your Honour’s question?

GORDON J:   Could you put that again?  The combined operation of those two exercises of power gives rise to the liability to pay, being the power of 23 determination plus the rebate?

MR LENEHAN:   Yes.  So, somewhat inaptly, the 23 power is sometimes called base rent, but then that is adjusted by the rebate power where a person, prospectively or by reference to what has happened in the past, is relieved of that liability to pay.  I moved away from, but if I could come back to, the rationale for the section 23 power, and your Honours find that in the extrinsic materials that are behind tab 39 of the joint bundle, and at page 1011.  This is part of the second reading speech for amendments made in 1982.

STEWARD J:   What was the page, sorry, Mr Lenehan?

MR LENEHAN:   I am sorry, your Honour, it is 1011, but if your Honours perhaps start at the foot of 1010.  Your Honours there see that the mischief that led to section 23 being in an earlier form, that is then later amended to add provision for classes, is that there was a Commonwealth State Housing Agreement which seemed to be at odds with what was provided for in the Act.

That is at the bottom of 1010 and then over to 1011.  So, the immediate mischief was to ensure that one could take advantage of the Commonwealth State Housing Agreement, but then, reading on:

By giving the responsible minister –

we emphasise:

complete discretionary powers in the matter of rental determination, clause 23 will enable the commission to comply with the requirements of the agreement and with any new or changed requirements which may emerge in the future, either by virtue of the Commonwealth‑Northern Territory relations or purely Northern Territory policy initiatives.

GORDON J:   How does that work in your favour?

MR LENEHAN:   Well, we say from the outset, this broad power was understood not to be directed to, as in Kioa, individual interests.  It was always understood to be operating at that broader policy level.  Now, I accept that policy – see Disorganized Developments and, for that matter, FAI – can sometimes have an individual aspect, it may require a connection of individual facts to the policy, but not necessarily, and what I am about to show your Honours indicates that what was done here was not of that nature.

GAGELER CJ:   So, what is the – I see from your outline, Mr Lenehan, that you explain very clearly in paragraphs 3 through to 6 why this power attracts procedural fairness.

MR LENEHAN:   Yes.

GAGELER CJ:   What I do not see is a clear statement – a positive statement – of what is the content of procedural fairness that it attracts, in your submission.

MR LENEHAN:   Your Honour, variable, and it would depend on the nature of the power being exercised, and I think I have accepted this before lunch.  So, when one makes a determination in respect of a dwelling, that will attract, we would accept, usually, both notice and a hearing requirement.

Your Honour then pressed me and said, well, what about a class of case where there is only one dwelling?  Now, that is the kind of case that your Honours dealt with in Disorganized Developments.  And so, almost inevitably, the connection of the determination to somebody’s individual circumstances is going to involve some matters personal to particular people.  But in this case, what was done – and I am about to show your Honours this – was to make or attempt to make an across‑the‑board policy that simply applied to all dwellings, wherever they were.

GAGELER CJ:   I understand that, but you are accepting, in using section 23 for that purpose, there was a requirement to observe procedural fairness.

MR LENEHAN:   Yes.  We do, but then ‑ ‑ ‑

GAGELER CJ:   Yes.  I am just trying to understand what is the content.  Is it a notice requirement?  Is it – how do you connect it to the individual rights that you say – or individual interests – that underlie the existence of this obligation?

MR LENEHAN:   Your Honour, in this case, it is the kind of situation that Justice Deane deals with in Haoucher.  That is, there is no hearing required, there is no notice required, there remains the need to appear and be unbiased, but that is all that procedural fairness requires here.

EDELMAN J:   What is the statutory implication, then?  The statutory implication is that procedural fairness will be provided, without any necessary content.  What are the terms?  If one were to include the implication in section 23, what would it say?

MR LENEHAN:   Your Honour, the way we would approach that question is that, of course, procedural fairness being a variable content, what is required will depend on the particular circumstances.  And perhaps if I could ask your Honours to turn to what Justice Deane says in Haoucher, because we find it helpful.

GLEESON.J:   Do you have to say that the individual interests that are undoubtedly affected are not affected as individuals?

MR LENEHAN:   Yes.  Yes, we do.

GLEESON.J:   So, the content in section 23 would be referable to the potential impact on individual interests?

MR LENEHAN:   Yes.

STEWARD J:   Mr Lenehan, can I ask you this.  I understand the point you are making.  So, it is the model that we are going to charge rent by reference to bedrooms, the model caps that at four.  You are saying, well, nothing any particular tenant could have said about that would make any difference – it is a take it or leave it sort of situation.  But my question is:  what about the dollars, the fixing of the dollars, for each category?

Could they not have said something like that is, for example, inconsistent with the market rate for rent in the Northern Territory generally, or inconsistent with rates that are applicable in our community, and that might have been something they could have contributed to?

MR LENEHAN:   Your Honour, they may have well have said that, but your Honour has seen in the reasoning of the unfortunately‑named SAG committee, that the approach that is taken has no regard, ultimately, to any of those things.

STEWARD J:   Well, I do recall that the dollars before the SAG committee were different to the ones that ended up in the first determination.

MR LENEHAN:   Well, they lie somewhere between the actual and the discounted rates that one finds for this model.  So ‑ ‑ ‑

STEWARD J:   But what if you wanted to make a submission that a rate for a single bedroom was – as an empirical fact – too high, having regard to prevailing market rates in the Northern Territory?  That might or could have led to a change in the dollar.

MR LENEHAN:   Your Honour, we would submit not, for this reason.  There simply was – the adoption of this policy is driven in part by operational costs.  First the SAG committee, then the Cabinet, and then ultimately the Minister was not paying any regard to those kinds of matters.  There had been a decision to do something which ‑ ‑ ‑

STEWARD J:   What about a submission that says they should have?

MR LENEHAN:   Well, your Honour, that submission might have been made, but this is a power that lets one do exactly what I have just said, that is, put all of those things to one side, put all of those individual interests to one side, and proceed, ignoring them, by the cost per bedroom approach.

GORDON J:   Or it might have been:  we want our entire community excised, as happened in determination 4.

MR LENEHAN:   Your Honour, I should say two things about determination 4.  The first thing is that it is simply not before your Honours in terms of proceeding D7.

GORDON J:   The fact is that they are taken out.  The reason may not be – because it is not really, in a sense – it is just an example of the things that they could have said, even on a class basis.

MR LENEHAN:   Your Honour, there unfortunately is no material in the material before your Honours as to why those communities are taken out from the fourth determination.

GORDON J:   I know that.  I do not need those facts to make the point.  Not only as to the dollars analysis put to you by Justice Steward in terms of dollars generally, given either the market rent particularly or the market rent generally, but there are community excisions as well that might have been put.  There are quality submissions about quality of residence that might have been put, particular, again to a particular community.

MR LENEHAN:   What the fourth determination reflects, your Honour, is really a managerial decision about particular communities located close to Alice Springs.

GORDON J:   I know, just put – assume for the moment that determination 4 is not there, and we were just dealing with 1 to 3.

MR LENEHAN:   Yes.

GORDON J:   These factors that I am putting to you are factors which are relevant to whether or not something could have been said, even taking the policy at the level you put it.

MR LENEHAN:   So, taking only determinations 1 to 3 and taking the terms of section 23, the question is:  can I make a universal policy – which is what I am saying the Territory did – through the determination and apply it, putting out of my mind particular locations and the particular interests of people in those locations?  The answer, we say, on the proper construction of section 23, is yes.

If the answer to that is yes and that is what the Minister determined to do, then how does that then feed into the approach of both Justice Mason and Justice Brennan in Kioa, where their Honours say, effectively, it is really the things that the decision‑maker proposes to have regard to which tell your Honours the outer boundaries of content in that kind of case?

So, having decided to make a universal policy decision applicable to all of the dwellings, there simply is no room for having regard to people’s individual concerns, people’s suggestions that the policy really should be – what your Honour is putting to me is that the policy should be a different policy.

GORDON J:   No, I am not.  What I am putting to you is that the policy can be identified, even – assume, for the moment, for argument purposes – in the way you described, but when you seek to apply that policy or that decision across the board in the way in which you described under section 23, there are really three questions.

First of all, whose interests am I affecting and what are the nature of those interests?  Second, having identified what they are, one then asks oneself, is there procedural fairness?  You say yes.  The question is:  what is the content of that in the context of the answers to the first two questions?  At the moment, I just do not think the right questions are being asked.

MR LENEHAN:   Your Honour, that is the analysis that we would see, but when you get to the third question, what is the content that is affected by the things that the decision‑maker proposes to have regard to, and the decision‑maker here did not propose to have regard to anybody’s individual interests and any suggestion that certain communities should be excluded.  It was a universal policy, that is one of its dimensions.

GAGELER CJ:   There is nothing wrong with the decision‑maker proposing a universal policy, notifying those affected of it, inviting any submissions and then still choosing to go ahead with the universal policy, notwithstanding what might be said by individuals.  That would be an ordinary and natural exercise in policy‑making in an area like this.

You are saying that it is possible to just unilaterally choose a policy which can doubtless be implemented under section 23.  You accept that section 23 attracts a requirement for procedural fairness, but it seems to me, Mr Lenehan, that, at the moment, you are robbing procedural fairness of any procedural aspect.

MR LENEHAN:   Your Honour, we say not.  We do say that when one looks – so your Honour knows that both Justice Mason in Kioa and also Justice Brennan, look at section 18 and ask themselves:  what does it require?  Justice Mason, for his part, says that it goes too far to say, for example, one should be heard on the exercise of that power because one has the status of a prohibited immigrant.

What he goes on to say is that, departing from Ratu, nevertheless that power is a discretionary power and permits regard to personal circumstances.  So, the reason Mr Merkel’s client in Kioa is because his Honour detected, in the circumstances that the delegate proposed to take into account in that case, things that were personal to Mr Kioa and his family.

GORDON J:   But that is what is happening here.  You have a Minister who knows that he is about to – either by reference to an individual tenancy or a class of tenancies – affect those very people.  The interests are directly affected.

MR LENEHAN:   Your Honour, what the Minister is actually doing is to proceed in a similar sort of status‑based way to that that Justice Mason has in mind in Kioa.  That is:  I am going to apply this to everything.  The important point that I think I made before the break, that is not to say that those kinds of important individual interests would not be taken into account, ultimately, but they were to be taken into account – and this ‑ ‑ ‑

GORDON J:   You mean by reference to the rebate

MR LENEHAN:   Yes, yes.  So, your Honours know what O’Shea stands for.  In my submission, there is an analogy to be drawn there, but it also tells your Honours that when the determination was being made – given that both initially the rebate and then later the safety net were things that were contemplated to happen – the determination itself was not having regard to those individual matters.

Then one gets back to:  is that a permissible exercise of power?  Yes.  Does that involve the decision‑maker simply putting to one side all of those individual interest?  Also, yes.  Then, whether one asks it from an instrumental – thinking about the rationale for procedural fairness –perspective or a dignitarian perspective, why does one give a hearing in those circumstances if the Minister is putting all of those things to one side?  There is no purpose.

STEWARD J:   Can I ask a slightly different question which relates to the rebate or the safety net.

MR LENEHAN:   Yes.

STEWARD J:   Why would it not have been a requirement for procedural fairness for the Minister to give notice of the change and then invite submissions from people at that stage, rather than later on, about whether they are eligible for the safety net?  Thus, eliminating any exposure to people who genuinely cannot afford the new increase for some period of time when it kicks in. 

MR LENEHAN:   Your Honour, in a way that is what happened, because your Honour knows that the first determination has the interim period attached to it.

STEWARD J:   Yes.

MR LENEHAN:   The interim period has in mind that you will continue – your Honours see this in the determination in the first column – rental prices that are related to the existing policy.  Your Honours also know that the rebate to be applied for that whole interim period was to be the same one that applied before.

GORDON J:   Sorry, it was to be the?

MR LENEHAN:   Same one that applied before.  Do your Honours want me to take you to those specific references?

GORDON J:   You mean the determination?

MR LENEHAN:   In both the evidence and the policy material, your Honours can see the things that I am saying.

GAGELER CJ:   Perhaps you should, Mr Lenehan.

MR LENEHAN:   Yes.  So, if your Honours start with the old regime and if your Honours go to our book of further materials and to page 35 ‑ ‑ ‑

GLEESON J:   Are there findings about this?

MR LENEHAN:   No, there are not, but happily, the evidence is tolerably clear.  So, on page 35 you see, 1.2, there is reference to the full rent.  Second paragraph under that heading, towards the bottom of the page:

As there is no private market in remote communities on which to base full rent, remote maximum dwelling rents are set in line with the lowest urban full rent in 2010.

There is then reference to different rates potentially applying in different circumstances.  Your Honours see the outcome of that at page 41, which adopts the classifications on the left‑hand side – “New or rebuilt”, “Refurbished” and “Existing houses” – and then has a series of maximum rentals for various bedrooms.

The figures that are applied in the determinations as the interim measure are the ones that appear on the top line, the “New or rebuilt” figures.  That is why, perhaps with the exception of Ms Tilmouth on which the evidence is unclear, the interim period involves Mr Albert’s clients being in really an almost identical position, because not only are the figures from the old policy taken, there is also continuation of the rebate policy.  Your Honours can see that at – it is set out at ‑ ‑ ‑

GORDON J:   Page 35, is it?

MR LENEHAN:   Yes, but then there is ‑ ‑ ‑

GORDON J:   Second‑last paragraph.

MR LENEHAN:   ‑ ‑ ‑ a further developed policy which is at 362 of our bundle of materials.  Within that document, at 367, there is then:

Rate of Assessable Income Charged as Rebated Rent by Category –

And your Honours see the maximum rate – this is on the left‑hand side – is the figure of “23”, which is 23 per cent of income.  You see from the passage that immediately follows that there is a relatively frequent review procedure, and that is what results in these rentals changing frequently.

That is really the – it is true that is part of the animating factor for the adoption of the new policy.  That is the finding of the primary judge, for example, at paragraphs [16] and [17].  So, there is an attempt to rationalise a system in which rents differ widely by reason of the application of the rebate policy.  That is then what leads to the decision – see again paragraph [17] of the primary judge’s reasons, and also paragraph [91] of the Court of Appeal – to first the Cabinet decision and then the development of a new framework.

Perhaps if I could invite your Honours just to go to – Mr Albert took you to these, so I do not need to labour the point, but back to the first determination and at page 29 of the appellants’ book of further materials.  The figures that you see for the interim period, which at that point was to go up to 1 May 2022, those are the figures that I said before are taken directly from the old policy, from the top row of the old policy, the 150 and down to the ‑ ‑ ‑ 

GORDON J:   One aspect of the old policy.

MR LENEHAN:   It is the rates for the new dwellings, and so those had been applied as rent for the interim period, and the rebate policy is continued for that entire period.  Just to give your Honours a reference to the fact that the rebate policy continues for that entire period, that is dealt with in Mr Warren’s third affidavit, at page 358 of the respondents’ book of further materials and paragraph 10.

STEWARD J:   Is that 358, sorry?

MR LENEHAN:   Yes.

STEWARD J:   Thank you.

MR LENEHAN:   It is the passage that I think Mr Albert regarded with some suspicion before, but all he is really saying there is that, because the implementation of the second period – the new approach to rent was delayed on a number of occasions – the rental rebate policy continued to apply.

So, this was, I think, a long way of answering your Honour Justice Steward’s question.  Your Honour asked me:  could the Minister have given notice that this change was coming?  In fact, in effect, that is what was done because we continued over this interim policy, we continued over the rebate, and the interim policy was applying rents based on the old approach.

More importantly for your Honour’s question, the rebate policy was continuing exactly the same, although in the future there was then to be a somewhat different, it is true, safety net approach.  So, people were aware, in prospective terms, what was coming and could have – bearing in mind that there are then two further determinations – made a submission as to why those things should be different.

STEWARD J:   Were there findings below as to whether the first determination, for example, was given notice – people were given notice of it?

MR LENEHAN:   I think we accept, your Honour, that they were not, and there are ‑ ‑ ‑ 

STEWARD J:   This is after it was made.

MR LENEHAN:   There was a finding by the primary judge that perhaps we had complied with any obligation of procedural fairness by talking to the SAG.

STEWARD J:   I understand.

MR LENEHAN:   That is not an argument that we press.

STEWARD J:   But once the determination was made, were people not told about it?  Tenants?

MR LENEHAN:   Yes, there was, and is, a program of telling people about the effect of the determinations.

GORDON J:   That is what is set out in the minute.

MR LENEHAN:   It is.

GORDON J:   Those minutes of that meeting.

MR LENEHAN:   It is.

GORDON J:   But that notice is not notice ‑ ‑ ‑ 

MR LENEHAN:   I am sorry, your Honour, I missed your Honour’s question.

GORDON J:   The form of that notice – all we have is a proposal that that would occur.  There is no evidence of the occurring?

MR LENEHAN:   No, your Honour, I do not – we will check that, but I do not believe there is.

STEWARD J:   So, does that mean though that your case about procedural fairness is slightly more nuanced in the sense that you say it was satisfied by the provision of the interim period?

MR LENEHAN:   Your Honour, that is a conclusion that is open, yes.

GAGELER CJ:   Mr Lenehan, the first determination has already been made at that point.

MR LENEHAN:   It has, that is so.

GAGELER CJ:   So, it cannot be in answer to the first determination.

MR LENEHAN:   No.

GAGELER CJ:   Do you draw a distinction between the first determination and the second and third determination?  Do you say that somehow the first determination constituted notice of the possibility of the second or third determination?

MR LENEHAN:   Your Honour, I am saying that it effectively could do, yes.

GAGELER CJ:   Well, I am asking, is it part of your case?  I have not seen any hint of this in your submissions.

MR LENEHAN:   No, it has not.  I think I was responding to, and had perhaps taken too far, a question from Justice Steward.  I think I am saying, though, in terms this perhaps feeds into our materiality argument.  It ultimately does not matter because there is a period which this is continued right up to the time of the third determination and then the fourth determination comes in, which is not in play in D7.

EDELMAN J:   How could it be immaterial when one just does not know what effect – if there were otherwise a condition of procedural fairness, one could not know what effect the compliance with that would have had?

MR LENEHAN:   Your Honour, that is so, but given that the interim period continues and then ultimately the third determination is replaced by a fourth, and your Honours only have determinations one through to three in play, any adverse effect is difficult to discern.

GORDON J:   I do not quite understand how this argument is put, Mr Lenehan – and I am being slow, I know – but when one part of your argument says:  listen, they have the benefit of the interim period after the first determination, so they could have made submissions and could have dealt with, you know – they were on notice and they could have made submissions.  Well, that seems to presuppose that before the first determination, if they had been given notice, they could have made submissions.  I just do not understand how those two submissions can sit. 

MR LENEHAN:   Yes, I ‑ ‑ ‑ 

GORDON J:   It seemed to me to be inconsistent.

MR LENEHAN:   I think I am accepting, in response to the Chief Justice’s argument, that I have gone a little far and ‑ ‑ ‑ 

GORDON J:   Right, okay.  So, then would you just remind me precisely what your case is, then, on that issue.

MR LENEHAN:   Yes, we do accept that there was no notice and no opportunity for submissions given in the making of those three determinations.

EDELMAN J:   And if there were an obligation, either to give notice or to give notice and to accept submissions, then do you press any point that anything that could have been done would have been immaterial?

MR LENEHAN:   Your Honour, we do have – your Honour will have seen, at the back end of our procedural fairness argument, a materiality argument.  That is very short and that is for good reason.

GAGELER CJ:   Mr Lenehan, what you are really saying is it is possible for a decision-maker to say:  I have made up my mind, I am not having regard to any individual circumstances, therefore I am not going to allow anyone to make any submissions to me that might persuade me to take into account what I have already made up my mind I am not going to consider.

MR LENEHAN:   Yes, that is so, but, your Honour, that is not a maverick submission of our own making, that is something that Justice Brennan contemplates in Kioa.

GLEESON J:   And then is there a question about whether the decision is legally unreasonable?

MR LENEHAN:   There may be.  We say your Honours would not accept that submission.  Can I ‑ ‑ ‑ 

GAGELER CJ:   Mr Lenehan, you might have to persuade me of that.  I just do not understand how a decision‑maker can exclude any content of procedural fairness by closing the decision‑maker’s mind to the possibility of being persuaded otherwise.

MR LENEHAN:   Your Honour, would your turn up Kioa, which is tab 18.

GORDON J:   It has been described as reducing the content to nothingness.

MR LENEHAN:   Yes.

EDELMAN J:   Except Justice Brennan is talking about that in the context of a provision where part of the policy of the provision was to ensure that people did not abscond.  So, it is not really so much reducing it to nothingness as excluding procedure.  I appreciate that he does not quite put it in those terms.

GORDON J:   In other words, the way I have always understood it was the reason why there was no notice given was because if you gave them notice they would abscond, and that was the risk that was being sought to be avoided. 

MR LENEHAN:   Yes.

GORDON J:   In other words, the giving of notice rendered the outcome that was sought to be achieved by the policy, in effect, inconsistent with it.  That is not this case.

MR LENEHAN:   Your Honours are focusing, understandably, on what appears at page 615 – which is the passage that Justice Edelman directed me to before – and the reference to what was said by Mr Johnson in the Federal Law Review.  His Honour immediately goes on to not accept that it follows from that and the fact that – this is referring to Russell – the notion of:

an irreducible minimum required by the principles of natural justice –

that:

it would be necessary . . . in some circumstances, perhaps unusual circumstances –

that:

no exercise of that power is conditioned on observance of the principles of natural justice.

Then goes on to say some familiar things which also reflect what your Honour the Chief Justice said in CPCF about variable content and reducing that to nothingness, but the passage that I had in ‑ ‑ ‑

GORDON J:   Sorry, but it is the next bit which is important and that is the question of statutory construction:

the intention to be implied when the statute is silent is that observance of the principles of natural justice conditions the exercise of the power –

and this is the important bit:

although in some circumstances the content of those principles may be diminished (even to nothingness) to avoid frustrating the purpose for which the power was conferred.

MR LENEHAN:   Yes.

GORDON J:   Are you contending that we are in that territory?

MR LENEHAN:   Yes, because when one has – this gets back to where I started before lunch – a power that can be applied in this way to every dwelling in the Territory and can be done in a way that permissibly allows the Minister to put to one side individual interests, can the Minister be required, as a condition of entering into that whole process, to go through a procedure of consulting everybody before one does that.

STEWARD J:   I do not think that was the case that was put.  Mr Albert said the minimum content was giving notice, effectively, and giving people a reasonable opportunity to respond.

MR LENEHAN:   Yes.

STEWARD J:   Not to consult with everybody.

MR LENEHAN:   But then implicit – your Honour immediately thinks about what that then involves – in that would be, presumably, some form of requirement to at least consider those many, many responses all in circumstances where, because section 23 allows one to do this exercise by reference to a class and not be reference to individual interests, ultimately all of that is going to be fruitless.

The passage that I actually wanted to take your Honours particularly to was what appears at page 620 of Justice Brennan’s reasons.  At the foot of that page, where his Honour says – and this is after his Honour has said a number of things about the breadth of the presumption and the need – see 619 – for individual interests to be affected ‑ ‑ ‑

GORDON J:   Sorry, where are you reading from now, Mr Lenehan?

MR LENEHAN:   Sorry, I was just summarising what your Honours see up to this point.

GORDON J:   Right.

MR LENEHAN:   So, his Honour has made the point that your Honours noted in Disorganized Developments.  That is – this is on 619:

If a power is apt to affect the interests of an individual in a way that is substantially different –

et cetera.  So, his Honour is dealing with the strength of the presumption, but then at 620, at the foot of the page – and here his Honour is obviously moving from the attraction of the presumption to what it may require as a matter of content:

It does not follow that the principles of natural justice require the repository of a power to give a hearing to an individual whose interests are likely to be affected by the contemplated exercise of the power in cases where the repository is not bound and does not propose to have regard to those interests in exercising the power.

That is what I am saying is this case:

If the repository of the power were authorized to exercise the power in his absolute discretion –

and his Honour obviously knows – see, for example, Shrimpton – that those words do not literally mean what they say, but his Honour is talking about very broad powers:

without taking account of individual interests and he proposed so to exercise the power, the repository might exercise it without hearing the individuals whose interests are likely to be affected.  But that would be an exceptional case.

Now, his Honour – I am sorry, your Honour is about to ask me a question.

GORDON J:   I think it is very difficult to cherrypick just that bit out of it, because one starts with the passage you took us to on 619.  At 620, in the first big paragraph, it says:

legislature is not likely to intend that a statutory power of a strictly legislative nature be conditioned on the observance of the principles –

where:

all members of the public are affected in the same way –

not this case:

But the legislature is more likely to intend –

it:

to be so conditioned if an exercise of the power singles out individuals by affecting their interests in a manner substantially different –

that is this case.  Then one comes down to the passage you read for us, which is described by Justice Brennan over the page as “exceptional”.

MR LENEHAN:   Yes, but we do apply what his Honour says to this case.  That is, this is in fact a power that allows one to do what his Honour is referring to there:

authorized to exercise the power . . . without taking account of individual interests –

By applying this sort of universal policy in the way that has been done, that is what the Minister did here.  That is why I have been emphasising ‑ ‑ ‑

EDELMAN J:   But the problem is that even if all of that is right, that is not the only aspect of the power.  So, the power can, for example – and I think you have accepted it – be exercised in relation to a dwelling, a single dwelling.

MR LENEHAN:   Yes, that is right.

EDELMAN J:   And there you cannot possibly suggest that it is going to be exercised just in relation to a single dwelling.  One would not have regard to the interests of the person in that dwelling.

MR LENEHAN:   And we do not suggest that, your Honour, no.

EDELMAN J:   Yes.  So, Justice Brennan’s comments are not addressed to a distributive power such as we have here.  It is a power that can apply in a distributive manner, have different circumstances of application, even if one entirely accepts your submission that – in relation to, for example, an extremely large class that is unconstrained by the regulations that were passed the next year – the class that covered the entirety of the exercise of the power, that is only one application of that power.  I think what your submission really amounts to is that, in that application of the power, you say that procedural fairness, maybe other than bias, is excluded.

MR LENEHAN:   Yes, consistent with the passage from Haoucher that I have mentioned a few times and Justice Deane, that is so.

EDELMAN J:   So, your concession is not really a concession at all then.

MR LENEHAN:   Well, we do accept the earlier points that your Honour has just put to me.  So, we do accept single dwelling procedural fairness both applies and undoubtedly requires a hearing.  We do accept that smaller classes, and this is consistent with what is said in cases like Vanmeld, Castle, Leahy, that that kind of case may also require those steps to be taken.

GORDON J:   Can I flip it?  Do you go so far as to say that the exercise of power, the Minister is not entitled to take into account individual interests?

MR LENEHAN:   No, no.

GORDON J:   Well, once you are in that territory, then you are in the presumption which Justice Brennan identifies on 619, at the foot of the page.

GAGELER CJ:   Just after the reference to Browning.

GORDON J:   Just after the reference to Browning.  Thank you.

MR LENEHAN:   No, that is true, but then that is qualified, we say, by what appears over the page in 620, introduced by the words:

It does not follow –

GORDON J:   It is true, his Honour goes on to say that:

the presumption may be displaced by the text . . . the nature of the power and the administrative framework –

but what follows the qualifications are, at one end, clear.  It is an exceptional qualification, and you have to overcome the first full paragraph of 620.

MR LENEHAN:   Your Honour, he of course – and I think I have already made this point – is dealing with a very obviously individually‑directed power, a power of deportation that can only be addressed to a single person.  But his broader point of principle, we say, we do seek to apply to this quite different power, and it is not only that passage of his Honour’s reasons that supports the submission that I am making.

If your Honours go to 628, you see at the top of the page – and this is where he is reaching the conclusions regarding Mr Kioa’s case – after the reference to Jeffs:

The repository must adopt a fair procedure having regard to the matters he is bound to take into account –

So, that is mandatory relevant considerations:

and, I would add, the matters he proposes to take into account.

That distinction that his Honour is drawing – permissive considerations versus mandatory relevant considerations, to use the well‑known distinction from Aronson – is qualified by it is not every permissive consideration that the decision‑maker takes into account.

GORDON J:   That is right, but the preceding page – I have not read it for a while, but I thought on the preceding page his Honour preceded that analysis that it must be read in the context of – that they require:

the principles . . . require in particular circumstances depends on the circumstances known to the repository at the time of the exercise of the power or –

which he would have known, and you have:

to adopt a reasonable and fair procedure . . . which conforms to the procedure which a reasonable and fair repository of the power would adopt in the circumstances when the power is exercised.

So, it is not just limited in that sense to the distinction between mandatory and he proposes to take into account.  The analysis, I think, on the preceding page is broader, is it not?

MR LENEHAN:   Your Honour, he on the subsequent page – and I am not trying to trade quotes with your Honour, but if you look to the bottom of the page, he makes the same point again.

GORDON J:   Where are you reading now, please?

MR LENEHAN:   That is in the final paragraph.

GLEESON J:   Which page are you at now?

MR LENEHAN:   I am sorry, I am at 628:

A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise –

GAGELER CJ:   That is so, but that is not an exhaustive statement of the content of procedural fairness.  That is absolutely right.  If a decision‑maker proposes to take a particular factor into account adversely to a person whose interests are to be affected, ordinarily that particular factor has to be put to the person and they have to be able to respond.

MR LENEHAN:   Yes.

GAGELER CJ:   But also it is a requirement of procedural fairness that the person be able to bring to the decision‑maker’s attention a factor that is able to be taken into account that the decision‑maker may not be proposing to even consider.  That is part of it, is it not?

MR LENEHAN:   Well, your Honour, we would – and I am perhaps repeating myself – then go back to what one sees at 620, which is dealing with breadth of power and is applicable, we say, to this very kind of power.  That is, there may be powers – and this is something that the authors of Aronson deal with in seeking to reconcile various strains in the authorities about numerous people, political considerations, and accept that these circumstances will be relatively rare.  In many cases, particularly with individually directed powers, it will be inescapable that the decision‑maker must or generally will take into account matters personal to the individual.

GAGELER J:   Mr Lenehan, you have scoured the cases in the footnotes in the textbooks.

MR LENEHAN:   Yes.

GAGELER CJ:   What is the closest case to the present that you can point to that would indicate the lack of content that you give to procedural fairness is consistent with authority?

MR LENEHAN:   Well, it really is the passage from Justice Brennan in Kioa.

GAGELER CJ:   All right, that is the high point?

MR LENEHAN:   It is.  We say that the outcome in Disorganized Developments can be seen to be consistent with that.  Your Honours obviously are very familiar with what your Honours said there, but perhaps if your Honours – if your Honours would indulge me, and look to where your Honours dealt with content.

GLEESON J:   This is in Disorganized Developments?

MR LENEHAN:   Yes, which is tab 27 of the joint book of authorities.  The area where your Honours deal with content is at paragraph [43] and following.  So, your Honours note, referring to O’Shea, the point about general policy, but nevertheless say that in this case, this being a particular case, because – see paragraph [11] – the determination could only deal with one property at a time, necessarily:

requires the identification of facts to connect the proposed prescribed place with the purpose of disruption.

So, your Honours then say, paragraph [44]:

There is no reason to doubt that an owner or occupier may have something to say of relevance about the characteristics of the land . . . or about possible adverse impacts of declaring a place –

But then when your Honours come to deal with what is more specifically required in paragraph [45] your Honours draw a distinction between those matters and the:

opportunity to make more general submissions as to the likely efficacy . . . of the declaration power –

So, that matter, as we read it, is in the area that I am seeking to convince your Honours of, that is, there is a policy at that level – a general policy – about which an individual has nothing to say.

GORDON J:   So, [45] draws a distinction, I think you just put to us, between matters within the knowledge of the particular person and what is described as more general submissions?

MR LENEHAN:   Yes.

GORDON J:   Is your submission that the matters identified by Mr Albert are in the latter category, not the former?  That is, they are matters of general submissions, not matters within their knowledge?

MR LENEHAN:   That is so, your Honour, because when it comes down to what would we say, it is things like:  this particular area should not be included.  And as I said, the universal application of this policy to all areas is one of the important integers of the policy itself.

Your Honour the Chief Justice asked me for my high point, and perhaps I skipped too quickly over O’Shea, which is, of course, tab 22 of the joint book, and page 411, the reasons of Justice Brennan where – and we say this coheres with what his Honour said in ‑ ‑ ‑ 

STEWARD J:   Sorry, what page?

MR LENEHAN:   I am so sorry, your Honour, it is page 411, or 738 of the joint book.

STEWARD J:   Thank you.

MR LENEHAN:   After referring, towards the bottom of the page, to Johnson, says:

the Minister is not bound to hear an individual before formulating or applying a general policy or exercising a discretion in the particular case by reference to the interests of the general public, even when the decision affects the individual’s interests.

Again, that is what we say is involved here.

GAGELER CJ:   If I remember correctly, there was a two‑stage decision‑making structure in this case, where the individual is heard in respect to the individual’s circumstances at the first stage, and then a report goes to the Minister at the second stage.

MR LENEHAN:   Yes.

GAGELER CJ:   And it is in that context that Justice Brennan is making this statement.

MR LENEHAN:   That is so, your Honour, but his Honour is making clear that, in terms of the policy itself and whether in particular it should be applied or not, which is I think the high point of Mr Albert’s submissions, those are all things that one is not required to be given procedural fairness in respect of.

When that is applied to this kind of power, your Honour Justice Edelman asked me about the different possible exercises of the power.  So, here, applicable to over 5,000 dwellings and an even larger number of people who are paying money in respect of those dwellings, a requirement to potentially give notice to and receive submissions from that very large number of people – and your Honours see this in cases like Kawasaki and Justice Basten’s reference to Kawasaki in Castle, which your Honours have in the bundle – that is an example of where the class is very large and it also may change between the time of giving notice and the time the determination is made.

So, it is variable in that way, which is a further matter which tells your Honours that the content here is reduced, we say, and your Honours see that that is the approach that Justice Basten suggested should be taken in Castle at paragraph 6. 

EDELMAN J:   So, it is a very small class.  You accept, as I take it, that there is some substantive content of procedural fairness – a class of five or ten people.

MR LENEHAN:   I think I have accepted that a number of times now, your Honour, yes.

EDELMAN J:   So, as the class gets larger and more and more people are deprived of procedural fairness, the content gets smaller.

MR LENEHAN:   It does.

EDELMAN J:   The more people who are deprived of the dignitarian principle of procedural fairness, the stronger your argument is, you say, to reduce the content.

MR LENEHAN:   We do, and both Kawasaki and Castle explained that that is really a matter of practicality and how one gives notice to and receives submissions from an extraordinarily large and changeable group of people. 

GLEESON J:   Is that where you would start to characterise the power as legislative rather than executive, in a sense?

MR LENEHAN:   Well, those distinctions, of course, are dangerous and have been for some time, but it is the better explanation of what is involved there.  In fact, that is the explanation that one can see in Justice Brennan’s reasons in Kioa, when he talks about individual affectation.  Unless your Honours have any further questions in terms of procedural fairness – I know I have been moving around a little bit – I was proposing then to move to unreasonableness.

GAGELER CJ:   Please do.

MR LENEHAN:   So, your Honours heard that Mr Albert’s argument depends upon a number of suggested features of the determination and the circumstances in which it was made.  The first, as we understood it, was that the determinations were irrational because they treated unlike dwellings alike.  That is, in some sense, true.

The determinations provided the same rent for dwellings by reference to the number of bedrooms, but – and this is the point that the Court of Appeal makes, your Honours see, at 168 of the core appeal book, paragraph [158] – that is really just an incident of the nature of the power, a power that precedes by reference to classes.  The point their Honours make at the top of 169 we say is entirely correct:

Almost any determination made with reference to a class will be susceptible to that criticism, because a class by its very nature involves a grouping by reference to a particular standard which in real life application will fall short of uniformity.

So, we say that is really just an aspect of the power and not something that would lead your Honours to conclude that the decision was unreasonable.  The real complaint, we think, is that Mr Albert’s clients say that a different policy should be adopted.

But your Honours recall – and perhaps your Honours have not yet seen this – if you turn up page 83 of the respondent’s book of further materials, this is where the Stakeholder Advisory Group – I am going to reject SAG as an unfortunate acronym – deals with the various proposed models.  There is an important point, if your Honours start at page 83, just above the “Dwelling Based Rent Model Options” heading:

it is acknowledged that no rent model will be without implementation challenges.

So, recognition that none of these approaches is perfect and each has upsides and downsides.  There is then, over the page, at the top of 84, the “Factor Principle Approach” which is an approach that appears to be closer to the approach Mr Albert suggests would be a rational one, and then there is discussion at the bottom of the page about the approach that is in fact taken, the “Operational Cost Approach”.

If your Honours turn earlier in the book of further materials, you see, starting at page 78, there is a meeting record which evidences the discussion of those things, and you will see there is serious consideration of the various approaches, including the approach that Mr Albert says is preferable, but towards the bottom of the page:

The chair asked the group to nominate their preferred rent model.  All members agreed that the operational cost per bedroom model was the best model.

So that, we say, evidences a process of rational decision-making, looking at the various alternatives, none of which was perfect.  None of that, we say, involves legal unreasonableness.  The second complaint that ties into some of the points that were made about procedural fairness – but I think, in answering many of your Honours’ questions, I might have skipped over this point – it is the notion that the determinations were under-inclusive and did not operate in respect of all remote communities.

I mentioned before that that is explained, it is explained by the ministerial briefing that introduces the second determination, which your Honours have behind or at page 192 of the respondent’s book of further materials.  And if you look at the second‑last paragraph on that page, you will see that it said:

The current gazetted rent determination does not capture all remote communities thereby leaving a small number of remote communities without a gazetted rent rate.  The new instrument rectifies this issue by ensuring remote rent rates are gazetted for remote communities not captured in the current gazetted rent determination.

So, that is the evidence for the proposition that I have put a number of times, that is, this was intended to be a universally applied policy and it inadvertently, in the first determination, omitted some communities.  And so, we say that the submission about under-inclusiveness does not get off the ground as a factual matter.

But even if there was something more to that, the decision that might have been made about including some communities and excluding others, the process that Mr Albert says should have been undertaken, that is also going to involve line‑drawing.  We say it is difficult to discern any legal unreasonableness in line‑drawing of that nature, to the extent that it exists, but the ministerial minute that I have just taken your Honours to tells your Honours that it is true there was an inadvertent omission in the first determination, but the intention was not to be selective and was to be universal.

The third matter that was raised by Mr Albert concerns the operational costs model that was actually implemented, and there was a suggestion that that should have been different.  I think I answered a question from Justice Steward about that issue, about whether it, in fact, reflected the amount put forward by the SAG.  The point that we make in our written submissions is that, really, the $70 figure that emerges falls between the reduced operational costs – which was about $60 – and the actual operational cost of about $80 that was estimated in 2018.

You can see that recorded at the respondents’ book of further materials at page 91.  So, the full rent is the $78 figure and the discount is the $59 figure, and the Minister has chosen something roughly between those figures three years later.  And we say there is nothing that leaps out in the nature of unreasonableness from those facts.

There was also a complaint that there was a different amount charged for the initial rent period – that is, $150 for a one‑bedroom dwelling – before the commencement of the new model.  But really, that just reflects the lead‑in process of applying an interim model and so we say no legal unreasonableness there.

Finally – and maybe this is really where this submission ultimately goes – Mr Albert relied on, I think, a combination of those factors and then, particularly, the exclusion of what he described as the rights under sections 41 and 42 of the Residential Tenancies Act as revealing that this was fundamentally unfair.  But we do say – and I may have made this point already – the relationship between section 41 of the Residential Tenancies Act and section 23 of the Housing Act, that was intended and it reflects the quite different approaches to be applied to a market‑based residential lease system and a social housing system.

Your Honours can see that referred to in the reasons of the Court of Appeal at core appeal book, page 97, paragraph [46], where their Honours say that very thing.  So, we say that it cannot be the case that that obviously intended incident of the scheme, applied here through the making of the determinations, could in some way render those things legally unreasonable because it simply reflects the intention that one sees in setting up section 23 and its overriding effect – see subsection 23(4) – on things that one finds in the Residential Tenancies Act.  Putting all that together, we say the legal unreasonableness aspect of the appeal should also fail.

That, I think, just leaves me with D1, and unless your Honours have any questions about that matter, I am content to rely on our written submissions.  Your Honours will have seen that we largely line up with our friends there in terms of the orders that should be made.  We do say that it is really the jurisdictional issue rather than the procedural fairness issue that would lead your Honours to make those orders.  If that is the choice, then logically the question of jurisdiction is the one that comes first and ought to lead to the disposition in the way that the parties agree.

STEWARD J:   Mr Lenehan, can I just ask you:  the form of the orders, are they the ones at paragraph 32 of your written submissions?

MR LENEHAN:   I think they are, your Honour.  Yes, I am told they are.

STEWARD J:   Thank you.

MR LENEHAN:   Unless your Honours have any other questions, those are the submissions for the respondents.

GAGELER CJ:   Thank you.  Mr Albert, do you have anything in reply?

MR ALBERT:   Yes, your Honour, just in reply to seek to offer slightly different or fuller responses to some of the issues that have been raised with my learned friend.  I would seek to make just a handful of points.  The first is to respond to and expand upon a point raised by your Honour Justice Steward with my learned friend, where you were postulating the question of whether my clients could say something about the amount that had been set either at what we call stage one or stage two.

We would respectfully embrace that, but can I add a consideration that has not yet arisen but falls squarely into the same category of what I took your Honour to be referring to, and that is the question of time.  My clients, in respect of each of the determinations, could foreseeably and sensibly would have said delay – not indefinitely, necessarily – that is to say, we accept, for the sake of argument:  we accept that you have a global policy; we accept you are applying it bluntly and universally; you are already delaying it – indeed, that was the entire point of determination 2 and 3 – but we want to be heard on how long you delay it for.

In our submission, that marries neatly with your Honour’s postulation of quantum of money to say, well, quantum of time – which we know was an issue – could also have been addressed.  That idea, in our submission, marries very neatly – and, indeed, your Honour’s question marries very neatly with what Justice Deane was speaking of in O’Shea, in particular at page 745 at about point 6 of the page, which is report page 418, where his Honour dealt with a postulated scenario of a situation where political grounds which had not been raised before were thought to be relevant.  His Honour says – and we commend it – that fact of political grounds being an issue:

constitutes a powerful reason why the person whose continued incarceration –

in that case:

is involved should be at least given the opportunity of being heard in relation to –

those, in that case, political grounds.  Equally, Justice Deane makes a very similar point in Kioa at page 533, at about point 8 of the page, report page 633.

I heard my learned friend to say – I may be mistaken – that our case was that all our clients could talk about meaningfully were concerns of a general nature – for example, Ms Tilmouth saying:  why is Laramba caught by determination 1 and not Anmatjere next door?  I want to be absolutely clear, we do not and have never, put our case only at that level.  Of course, she could have said that, but equally our clients could have raised very individual considerations.

To marry that point with the point about time that I just raised, can I take you to just one example, which is in the evidence of Mr Badari.  Mr Badari’s evidence, which you do not need to go to, is at the appellants’ book of further materials at page 131.  Mr Badari gives evidence to say – he is about to be hit with this rent rise – and his evidence was, and I quote:

We would have to give up buying more things our kids need if it –

the rent:

goes up again.  We are already struggling to feed our children.  It is –

his son’s:

birthday on 19 September and we cannot afford to buy him a present.  He knows this and he is very upset with us.

That is an example of an individual consideration that could directly feed into the question of time in either of two foreseeable ways:  either he says we have some big bills coming up – like our children’s birthdays – wait to apply it to us, accepting your policy, wait for another two months so we can just get through this hurdle; or – and this would apply, one expects, to almost everyone who got a rent rise – wait six months so I can get another job, so I can pay for this rent rise.

So, this time factor is about as far away from theoretical as you can get but, as we say, respectfully, it fits very neatly with what your Honour Justice Steward was raising with my learned friend.  Equally, matters raised by my learned friend fit neatly with some of the rationales which came out in discussion with Mr Lenehan a few moments ago.

Can I start with the instrumental rationale dealt with, among other places, by Justice Heydon in International Finance Trust, which is at tab 16.  The instrumental rationale, one would think, fits hand in glove with the very thing that Mr Lenehan said about the six communities that he submits to your Honours were omitted by error from the first determination.

Had the first determination been the subject of any form of notice to anyone in remote communities, it is hard to imagine that someone would not have stood up and said, hang on, you are about to make an error here.  You have said – supposing the notice says this – that this is to apply to all remote communities, but we have noticed – Ms Tilmouth might have said – the next down the road is not caught, just letting you know.

So, the very thing that is theoretically spoken of about the instrumental rationale for procedural fairness very practically could have achieved the avoiding of the very thing that Mr Lenehan now describes as an error.  That instrumental rationale, of course, fits immediately with what Justice Heydon said in International Finance at 143 and equally with what your Honour the Chief Justice said in Nathanson at paragraphs 50 and 51, and equally with what Justice Deane said in Kioa at joint book of authorities page 553, at about point six, which is the report at page 633.

GAGELER CJ:   Page 633?

MR ALBERT:   Page 633.

GAGELER CJ:   You have cited that to us before.

MR ALBERT:   I apologise if I am repeating myself.  The second rationale which arose from a question from your Honour the Chief Justice was the dignity rationale, picked up by the question from your Honour Justice Edelman, which feeds directly into what your Honour put to my learned friend about still having a global policy even at the end of a process, but there has still been an inherent value in hearing from people on that.

In our submission, with respect, that has to be right and it is consistent with what this Court said in Nathanson – your Honour Justice Gordon at paragraph 81, your Honour Justice Edelman at paragraphs 89 and 90 – and what your Honour the Chief Justice said in Pompano at paragraph 186 as well.

Can I then move to the point that my learned friend made primarily in response to questions from your Honour Justice Edelman about the size of the class, and Mr Lenehan’s proper and correct concession that where there are smaller classes there would be content.  There is an important but perhaps easily missed what seems to be a concession in the outline filed by the respondents today and their previous submissions at 9.1, where they seem to accept the point that we have been making all along that each of these determinations represents four separate exercises of the section 23 power.

That is so when one looks at the terminology of class and the fact that the Ministers, on each occasion, identified the number of bedrooms as qualifying each class.  The reason that that is significant is because it dovetails directly with the evidence given by Mr Warren, which is at appellants’ book of further materials page 381, where he gave evidence as to the number of people in each class, relevantly, for the third determination.

His evidence was – remembering the third determination is the largest number of affected communities – that the first one-bedroom class had, as its total number for the third determination, 139 people.  What we know is that class was therefore smaller – we do not know how much – for the first determination.  So, when Mr Lenehan says, well, this idea of smaller classes, larger content, what he does not say – and one can understand why – is the tipping points or tipping point at which the content flips from being substantive to being nothing.

In that sense, that concession that there were four exercises on each of the three occasions provides this Court, as it happens, with a perfectly set up situation where the exercise of the power is in respect of classes of very different sizes ranging from, as I said, about 130 at the lowest to, at the highest – according to Mr Warren – 3,066, which was for the determination for the class of three-bedroom dwellings.

I then need to deal with a matter of fact which we say, respectfully, Mr Lenehan has misrepresented, and that is the idea that what the respondents call the interim period reflected a, quote, “existing policy”, and the existing policy, your Honours were told, applied to my clients.  There is no evidence at all that my clients ever agreed in writing or by action to any of the amounts set out in the so-called existing framework.  None.  To the contrary, the evidence filed by the respondents shows my clients never paid or agreed to pay an amount of rent that was reflected by that quote‑unquote existing policy.  Zero out of three houses.

Your Honours will have seen that I cross-examined Mr Warren about this, particularly by reference to Mr Nadjamerrek, at some length.  Mr Nadjamerrek, according to the respondent’s records, was paying $99, and you will see me ask Mr Warren, in a probably not very effective way, how do you get to $99 by reference to the policy?  And the short answer is, he could not.

No matter which way you diced it, he could not get to $99.  And $99 is also not a number that you will see in the policy at all.  So, what we have, as we sought to make the point by way of our written submission, is a gap between the antiseptic, air-conditioned piece of paper in an office in Darwin and the reality on the ground for my clients in Gunbalanya and Laramba, and it is the reality we have now and have always sought to have the Court have regard to.

Can I then relatedly go to the so‑called safety net policy, and that is to try to offer what I hope is a more coherent answer than I fumbled through this morning, because the point distils, I think, to something fairly confined.  On the evidence, which again I emphasise was filed by the respondents, the first time the safety net, so called, which is 25 per cent for a period of six months – the first time that was in an operative policy was from 6 February 2023, not 2022, which is after the fourth determination.

That is important for two reasons.  The first is it has no relationship chronologically with the decision of Cabinet or the three determinations of the Minister that are the subject of the appeal.  The second point is that policy was put into evidence by the respondents principally for the purpose of the fourth determination proceeding which is pending, which directly challenges that policy.  In that sense, in our submission, it is properly left for that proceeding which is pending for it to be explored and perhaps determined in that way.

I understood, perhaps incorrectly, Mr Lenehan to say that the fourth determination was not in evidence in this proceeding.  That, with respect, is incorrect.  The respondents put it into evidence before the Court of Appeal because, quite rightly, they wanted the Court of Appeal to have an awareness of the totality of the picture.  So, it was not before Justice Burns, but it was put in by leave, with our agreement, before the Court of Appeal.

I think the last – no, I am sorry.  There are two points, two final points.  The second‑last point is to draw a distinction which came up slightly indirectly in interactions with my learned friend, a distinction made most clearly in Disorganized Developments – but not only there – between, on the one hand, the formulation of policy and, on the other hand, the application of that policy.  In our submission, this case is about, and is only about, the application of the policy, if there was a policy properly so called.

In that sense, in our submission, we are comfortably within the realm of what this Court said, at paragraph [43] of Disorganized Developments, drawing that very distinction between formulating policy, for which there may be no procedural fairness, and implementation, for which there is procedural fairness.  It is equally consistent with what Chief Justice Mason said in O’Shea at joint book of authorities page 715, at about point 8, which is reported page 388.

That distinction, formulation versus implementation of policy, is most analogously deployed in a way consistent with the submissions we make by the South Australian Court of Appeal in Blyth – which I do not need to take your Honours to, but it is in the joint book of authorities at pages 803 and 804 – where their Honours are similarly dealing with a scenario where there was an uncontested debate about the funding of public hospitals, and there had been a high‑level policy decision about funding of public hospitals and, relevantly, a restriction on that funding.

What Chief Justice King in Blyth says is, well, notwithstanding the formulation of that policy, in that case by commission, it is the implementation of the policy in respect of the individual hospital that was

the thing that was being challenged and was rightly regarded as being conditioned by procedural fairness with some content.

The last point to make by way of reply is on legal unreasonableness, and it is really just to identify that the respondents seem to principally rely on what is in truth a straw man argument, that we are putting forward some alternative model and that that alternative model is not only a rational model but the only rational model.

That is not our case, it has never been our case.  Our case is that the way that it was in fact implemented here was arbitrary, was fundamentally unfair, that it was the blunt nature of the exercise of the power that led to arbitrary effects of the kinds that we have sought to develop earlier.  Unless there is anything further, those are the submissions.

GAGELER CJ:   Mr Lenehan.

MR LENEHAN:   Your Honours, I am so sorry to rise.  Can I just make clear there is no concession by us in paragraph 9.1 that each determination involved multiple exercises of power.

GAGELER CJ:   Thank you.  The Court will consider its decision in these matters and will adjourn until Tuesday 9 September in Canberra at 10.00 am.

AT 3.51 PM THE MATTERS WERE ADJOURNED