Badari v Minister for Territory Families and Urban Housing; Badari v Minister for Housing and Homelands; Nadjamerrek v Chief Executive Officer (Housing)
[2025] NTCA 1
•24 January 2025
CITATION:Badari & Ors v Minister for Territory Families and Urban Housing & Anor; Badari & Ors v Minister for Housing and Homelands & Anor; Nadjamerrek & Ors v Chief Executive Officer (Housing) [2025] NTCA 1
AP 13/22 (2237775)
PARTIES:BADARI, Asher
and
GALAMINDA, Ricane
and
NADJAMERREK, Lofty
and
TILMOUTH, Carmelena
v
MINISTER FOR TERRITORY FAMILIES AND URBAN HOUSING
and
MINISTER FOR HOUSING AND HOMELANDS
TITLE OF COURT: COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CIVIL APPEAL from the SUPREME COURT exercising Territory jurisdiction
FILE NO:AP 13/22 (2237775)
2023-01110-SC
PARTIES:BADARI, Asher
and
GALAMINDA, Ricane
and
NADJAMERREK, Lofty
and
TILMOUTH, Carmelena
v
MINISTER FOR HOUSING AND HOMELANDS
and
CHIEF EXECUTIVE OFFICER (HOUSING)
TITLE OF COURT: FULL COURT OF THE SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: ON REFERENCE from the SUPREME COURT exercising Territory jurisdiction
FILE NO:2023-01110-SC
2023-01346-SC
PARTIES:NADJAMERREK, Lofty
and
BADARI, Asher
and
GALAMINDA, Ricane
and
TILMOUTH, Carmelena
v
CHIEF EXECUTIVE OFFICER (HOUSING)
TITLE OF COURT: FULL COURT OF THE SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: ON REFERENCE from the SUPREME COURT exercising Territory jurisdiction
FILE NO:2023-01346-SC
DELIVERED: 24 January 2025
HEARING DATES: 15 & 16 November 2023
JUDGMENT OF: Grant CJ, Barr & Huntingford JJ
CATCHWORDS:
LEASES AND TENANCIES – Determination of rent unlawful
Whether four determinations of rent payable for dwellings made pursuant to s 23 of the Housing Act beyond or outside the power conferred by the statute – Whether limitation on landlord’s power to increase rent imposed by s 41 of the Residential Tenancies Act had application – Whether responsible Minister de jure or de facto ‘landlord’ for purposes of s 41 of the Residential Tenancies Act – Whether rent unlawfully increased by application of uncodified policy – Whether exercise of power under s 23 of the Housing Act requires opportunity for hearing – Whether tenants denied procedural fairness – Whether determinations of rent payable legally unreasonable –Appeal and related application for judicial review dismissed.
LEASES AND TENANCIES – Declaration that rent excessive
Whether Northern Territory Civil and Administrative Tribunal has jurisdiction under s 42 of the Residential Tenancies Act to declare excessive rent fixed by the Minister under s 23 of the Housing Act – Tribunal has no jurisdiction – Application for leave to appeal granted – Appeal dismissed.
Housing Act 1982 (NT) ss 5, 6, 15, 16, 17, 21, 22, 23, 28W, 34, 37
Residential Tenancies Act 1999 (NT) ss 3, 4, 6, 7, 19, 31, 32, 35, 37, 39, 41, 42, 46, 48, 49, 112, 122Aboriginal Areas Protection Authority v Director of National Parks [2022] NTSCFC 1, Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 25 FCR 345, Bates v Lord Hailsham of St Marylebone [1972] 1 WLR 1373, Beckingham v Browne [2021] VSCA 362, BMV16 v Minister for Home Affairs [2018] FCAFC 90, Bread Manufacturers of New South Wales v Evans (1981) 180 CLR 404, Brisbane City Council v Leahy [2023] QCA 133, Capital Duplicators v Australian Capital Territory (1992) 177 CLR 248, Castle v Director-General State Emergency Service [2008] NSWCA 231, Chan v Cresdon Pty Ltd (1989) 168 CLR 242, CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76, Comcare v Post Logistics Australasia Pty Ltd (2012) 207 FCR 178, Commissioner of Stamp Duties v Trustee Co Ltd (1987) 9 NSWLR 719, Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No 1) (1991) 32 FCR 219, Day v Harness Racing New South Wales (2014) 88 NSWLR 594, Deputy Commissioner of Taxation (NSW) v Mutton (1988) 12 NSWLR 104, Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 2, Gardner v Dairy Industry Authority of New South Wales [1977] 1 NSWLR 505, Greyhound Racing NSW v Cessnock and District Agricultural Association [2006] NSWCA 333, Grocon Constructors (Victoria) Pty Ltd v APN DF2 Project 2 Pty Ltd [2015] VSCA 190, Hemmes Trading Pty Ltd v State of New South Wales [2009] NSWSC 1303, HN v NTCAT & Ors [2020] NTSC 48, Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438, Jack v Chief Executive Officer (Housing) (No 2) [2021] NTSC 81, Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44, Jennings Constructions v Burgundy Royale Investments (1987) 162 CLR 153, Kennedy v Anti-Discrimination Commission of the Northern Territory (2006) 226 FLR 34, Kioa v West (1985) 159 CLR 550, Medway v Minister for Planning (1993) 30 NSWLR 646, Minister for Home Affairs v DUA16 (2020) 271 CLR 550, Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1, Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12, Minister for Immigration v SZVFW (2018) 264 CLR 541, Nathanson v Minister for Home Affairs (2022) 96 ALJR 737, North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569, Northern Territory v Skywest Airlines (1987) 90 FLR 270, NT Power Generation Pty Ltd v Power & Water Authority (2002) 122 FCR 399, Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319, Queensland Medical Laboratory v Blewett (1988) 84 ALR 615, R v Kearney; Ex parte Japanangka (1984) 158 CLR 395, R v Tkacz (2001) 25 WAR 77, R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170, Re Gosling (1943) 43 SR (NSW) 312, Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322, Re Minister for Immigration and Multicultural Affairs; Ex parte MIAH (2001) 206 CLR 57, Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, Salemi v MacKellar (No 2) (1977) 137 CLR 396, South Australia v O’Shea (1987) 163 CLR 378, State of South Australia v Slipper (2004) 136 FCR 259, Stran v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 233, Svikart v Stewart (1994) 181 CLR 548, Traut v Rogers (1984) 70 FLR 17, Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78, Wake and Gondarra v Northern Territory (1996) 124 FLR 298, Waqa v Technical and Further Education Commission [2009] NSWCA 213, Waters v Acting Administrator for the Northern Territory (1993) 46 FCR 462, Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22, Young & Conway v Chief Executive Officer (Housing) (2020) 355 FLR 290, referred to.
REPRESENTATION:
Counsel
Appellants/Plaintiffs/Applicants: M Albert with D KellyRespondents/Defendants/Respondent: B Doyle KC with L Spargo-Peattie
Solicitors
Appellants/Plaintiffs/Applicants: Australian Lawyers for Remote Aboriginal Rights
Respondents/Defendants/Respondent: Solicitor for the Northern Territory
Judgment category classification: B
Number of pages: 118
IN THE COURT OF APPEAL AND
THE FULL COURT OF THE
NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Badari & Ors v Minister for Territory Families and Urban Housing & Anor; Badari & Ors v Minister for Housing and Homelands & Anor; Nadjamerrek & Ors v Chief Executive Officer (Housing) [2025] NTCA 1
AP 13/22 (2237775)
BETWEEN:
ASHER BADARI
First Appellant
AND
RICANE GALAMINDA
Second Appellant
AND
LOFTY NADJAMERREK
Third Appellant
AND
CARMELENA TILMOUTH
Fourth Appellant
v
MINISTER FOR TERRITORY FAMILIES AND URBAN HOUSING
First Respondent
AND
MINISTER FOR HOUSING AND HOMELANDS
Second Respondent
2023-01110-SC
BETWEEN:
ASHER BADARI
First Plaintiff
AND
RICANE GALAMINDA
Second Plaintiff
AND
LOFTY NADJAMERREK
Third Plaintiff
AND
CARMELENA TILMOUTH
Fourth Plaintiff
v
MINISTER FOR HOUSING AND HOMELANDS
First Defendant
AND
CHIEF EXECUTIVE OFFICER (HOUSING)
Second Defendant
2023-01346-SC
LOFTY NADJAMERREK
First Applicant
and
ASHER BADARI
Second Applicant
and
RICANE GALAMINDA
Third Applicant
and
CARMELENA TILMOUTH
Fourth Applicant
v
CHIEF EXECUTIVE OFFICER (HOUSING)
Respondent
CORAM:GRANT CJ, BARR & HUNTINGFORD JJ
REASONS FOR JUDGMENT
(Delivered 24 January 2025)
These are three separate proceedings variously before the Court of Appeal and the Full Court which have been heard together because they involve facts, issues and questions in common.
The principal matter (AP 13/22 (2237775)) is an appeal from a decision of the Supreme Court delivered on 10 November 2022.[1] That decision, and the grounds of appeal, involve the application of s 41(1) of the Residential Tenancies Act 1999 (NT) (RTA) to the appellants’ tenancy agreements; and the operation of s 23 of the Housing Act 1982 (NT) (Housing Act) and ss 41, 48 and 49 of the RTA concerning rent increases for those tenancies. The principal question is whether three Determinations of Rent Payable for Dwellings made in purported pursuance of s 23 of the Housing Act on 23 December 2021, 29 April 2022 and 2 September 2022 were made beyond or outside the power conferred by the statute.
The second matter (2023-01110-SC) is an adjunct to the appeal in the first matter. In its original form, it is an application for judicial review seeking, amongst other relief, a declaration that a fourth Determination of Rent Payable for Dwellings dated 1 February 2023 made in purported pursuance of s 23 of the Housing Act was ultra vires by operation of s 41 of the RTA and cl 2(2) of Sch 2 of the Residential Tenancies Regulations 2000 (NT) (RT Regulations). In essence, this is a challenge to the validity of a fourth Determination made after the delivery of the decision of the Supreme Court which is presently the subject of appeal in the principal matter. The clear purpose of the challenge is to ensure that any decision on appeal is not rendered nugatory by the continuing operation of the Determination subsequently made. By consent, that particular claim for relief was referred for determination to the Full Court, to be heard together with the other matters.
The third matter (2023-01346-SC) is in its original form an application for leave to appeal from a decision of the Northern Territory Civil and Administrative Tribunal (NTCAT) made on 29 March 2023. The substance of the decision is that NTCAT lacks jurisdiction to determine applications made by the applicants (as tenants) for declarations under s 42 of the RTA. By consent, that question was referred for determination to the Full Court, to be heard together with the other matters.
Factual and statutory background
The four appellants/plaintiffs/applicants (referred to in these Reasons as the appellants) are tenants in public housing in remote communities in the Northern Territory. Due to changes in the Administrative Arrangements Order over the relevant period, the four Determinations in question in these proceedings were made variously by the Minister for Territory Families and Urban Housing and the Minister for Housing and Homelands (referred to in these Reasons as the responsible Minister).
On 23 December 2021, the responsible Minister made a Determination under s 23 of the Housing Act that affected the mechanism by which rent payable by the appellants was to be assessed, and, ultimately, the amount of base rent payable by the appellants with respect to their various leased premises (the First Determination).
The responsible Minister then made a Determination in similar terms on 27 April 2022 which revoked part of the First Determination (the Second Determination).
On 2 September 2022, the responsible Minister made a further Determination in similar terms to that made on 27 April 2022, but revoking part of the Second Determination (the Third Determination).
In essence, the Second and Third Determinations postponed the commencement date for the new rent from that set in each of the earlier Determinations. (The First, Second and Third Determinations are referred to collectively in these Reasons as the Determinations.)
The appellants brought an application for judicial review seeking the following relief:
1. A declaration of right pursuant to section 18(1) of the Supreme Court Act 1979 (NT) that
(a)the three Determinations do not give rise to an increase in the plaintiffs’ rent having regard to section 41 of the Residential Tenancies Act 1999 (NT) (the RTA) (the first declaration); and
(b)any rent increase by way of an increase in the percentage of the plaintiff’s income is unlawful having regard to section 41 of the RTA (the second declaration).
2. A declaration of right pursuant to section 18(1) of the Supreme Court Act 1979 (NT) that the plaintiffs as tenants of “public housing premises” as defined in section 5 of the Housing Act 1982 (NT) (the Housing Act) can seek a declaration that the rent payable under their tenancy agreement is excessive under section 42 of the RTA because such agreements are not a “tenancy under the Housing Act” as defined in section 4 of the RTA.
3. An order quashing those parts of the three Determinations which give rise to rent increases because of a failure to afford procedural fairness and for legal unreasonableness.
The general factual background to the matter is not in dispute. That background is conveniently set out in the judgment of the Supreme Court in the following terms (subject to a number of assertions of factual error which are dealt with in the course of these Reasons):
It is accepted that each of the plaintiffs occupy residential dwellings in a remote community pursuant to a lease which names the Chief Executive Officer (Housing) (the CEOH) as the landlord. The first and second plaintiffs jointly lease residential premises in Gunbalanya (also known as Oenpelli). The third plaintiff leases different residential premises in Gunbalayna. The fourth plaintiff leases residential premises in Laramba.
The written lease signed by the first and second plaintiffs does not specify within the document the rent that is payable. A clause in the Remote Public Housing Tenancy Rules [clause 5.1], which purported to be part of the terms of the lease, gave the CEOH, as landlord, the right “to vary the Rent from time to time in accordance with any determination made pursuant to section 23 of the Housing Act”. As the copy of the lease before the Court has not been executed by or on behalf of the CEOH, the first and second plaintiffs submitted that the terms of the lease are the default terms set out in Schedule 2 of the Residential Tenancies Regulations 2000 (NT) [Residential Tenancies Act (RTA),[s 19(4)]). The default terms do not contain a clause equivalent to clause 5.1. Nothing turns upon this point. The only relevance of clause 5.1 is as demonstrating that the first and second plaintiffs were on notice that determinations made by the Minister under s 23 of the Housing Act may result in an increase in base rent for the premises they were occupying.
A similar situation existed with regard to the lease signed by the third plaintiff.
The lease signed by the fourth plaintiff specified the rent payable as $140.00 per week, but included a note to the effect that “the rent is subject to adjustment in accordance with section 23 of the Housing Act 1982 (NT).” The terms of the fourth plaintiff’s lease are … identical to the default terms.
The provisions of the Housing Act govern aspects of the provision of public housing in the Northern Territory. The Housing Act establishes an entity by the name of the CEOH. This entity is a body corporate sole and is capable, in its corporate name, of acquiring, holding and disposing of real, leasehold and personal property [the Housing Act, s 6]. The CEOH has power to do all things that are necessary or convenient to be done for or in connection with or incidental to the performance of its functions in the exercise of its powers [the Housing Act, s 16(1)]. The CEOH is, however, subject to Ministerial direction [the Housing Act, s 17].
One of the functions of the CEOH is to provide, and to assist in the provision of, residential accommodation [the Housing Act, s 15(a)]. To that end, and without limiting the generality of s 16(1), in carrying out its functions the CEOH may let premises and may acquire, hold and dispose of real property, or any interest therein.
A dwelling for the purposes of the Housing Act means a house acquired and retained by the CEOH. Section 23 of the Housing Act addresses the rent payable for dwellings to which the Housing Act applies. The section provides:
Rent payable for dwellings
(1)The Minister may, from time to time, by Gazette notice determine the rent to be paid for a dwelling or a class of dwelling.
(2)A determination under this section may be subject to conditions that the Minister thinks fit.
(3)A determination under this section is to specify the date on which the rent will become payable for the dwelling or the class of dwelling.
(4)The rent to be paid for a dwelling is the rent determined from time to time under subsection (1) and the rent is to be paid despite anything to the contrary contained in the tenancy agreement entered into in respect of the dwelling or in any arrangement or agreement, or alleged arrangement or agreement, between the tenant of the dwelling and any other person (including the Chief Executive Officer (Housing), the former Commission, the Territory or their employees or agents).
It is apparent from the provisions of s 23 that the base rent payable for occupation of remote dwellings falling within a class of dwellings to which a determination under that section applies is not set by agreement between the parties as recorded in the lease agreement. It is set by statute as the amount determined from time to time by the Minister … [base rent]. The base rent is not necessarily the rent paid by a tenant, as there exists a rebate system which permits a rebated rent to be charged based on household income. The claim now made by the plaintiffs is that any rent increase, either in base rent or rebated rent, is only permissible if the provisions of the RTA are satisfied, and in particular, that the provisions of s 41 of the RTA are satisfied. I will return to that claim presently. Before doing so, it is appropriate to set out the basis on which the CEOH held an interest in each of the dwellings so as to be able to lease the dwellings to the plaintiff.
In an affidavit made on 22 August 2022, Brent Aaron Warren, the Deputy Chief Executive of Housing Operations in the Department of Territory Families, Housing and Communities stated:
● the townsite of Gunbalanya lies within Northern Territory Portion 1646 (NT 1646), as identified in Survey Plan CP 004181;
● Lots 553 and 699, Town of Gunbalanya, where the first, second, and third plaintiffs reside, are contained within NT 1646;
● NT 1646 is Aboriginal land within the meaning of section 3(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA). The Arnhem Land Aboriginal Trust holds an estate in fee simple over NT Portion 1646;
● on 26 August 2009, the Arnhem Land Aboriginal Trust, Northern Land Council, CEOH and the Commonwealth of Australia entered into an agreement through which the Arnhem Land Aboriginal Trust granted to the CEOH a lease under section 19 of the ALRA (the Gunbalaya lease); and
● the Gunbalaya lease remains in force.
… [T]he parties agree that the residential dwelling occupied by the first and second plaintiffs, and that occupied by the third plaintiff, are premises that were part of the land leased to the CEOH by the Gunbalaya lease.
In the same affidavit, Mr Warren stated:
● Laramba is an Aboriginal community living area which was excised from the Napperby pastoral lease in 1992 under Part 8 of the Pastoral Land Act 1992 (NT). It comprises NT Portion 4069 over which the Laramba Community Incorporated (LCI) holds an estate in fee simple, subject to various statutory conditions and restrictions which cover the use and occupation of Aboriginal community living areas;
● Lot 51, Town of Laramba, where the fourth plaintiff resides, is situated within NT Portion 4069;
● on 18 July 2014, LCI, the Central Land Council and the Executive Director of Township Leasing (the EDTL) entered into a head lease concerning certain land in Laramba, including Lot 51, to facilitate the provision of public housing; and
● on 6 July 2018, the EDTL entered into a sublease with the CEOH to facilitate the CEOH providing public housing in Laramba. This sublease included the land comprising Lot 51.
Prior to December 2021, the Determination setting out base rent payable for remote dwellings included a Table which specified the base rent payable depending upon whether the dwelling was [a] 1, 2, 3 or 4 bedroom dwelling and whether the dwelling was classified as “new or rebuilt”, “refurbished” or an “existing house”. Acknowledging that tenants in public housing were often poor, a safety net system existed such that rent for public housing could be set at the lesser of the base rent determined in accordance with the Table or rent calculated based on a percentage of household income (rebated rent). This safety net was implemented as a matter of policy.
Over time, this system was considered to be inefficient, complex and difficult to administer. As household income frequently changed for tenants in remote public housing, due to factors such as changes in Centrelink entitlements and changes to the number of persons occupying a dwelling, the rent payable by the tenant required frequent reassessment and was subject to change. The Northern Territory Government determined to implement a simplified and consistent scheme that was easy to administer, easy to understand, and affordable for all parties. To that end, a new framework for determining rent for remote dwellings was developed throughout 2018. This process included the formation of the Stakeholder Advisory Group (the SAG), comprising representatives from:
(a) the North Australian Aboriginal Justice Agency;
(b) Aboriginal Housing Northern Territory;
(c) NT Shelter;
(d) the Northern Land Council;
(e) the Central Land Council;
(f) Yili Rreung Aboriginal Housing Corporation;
(g) Kalano Community Association;
(h) the Tangentyere Council;
(i) the Central Australian Affordable Housing Company;
(j) the Julalikari Council Aboriginal Corporation;
(k) Aboriginal Peak Organisations Northern Territory;
(l) North Australian Aboriginal Family Legal Service; and
(m) Aboriginal Medical Services Alliance Northern Territory.
The SAG considered a number of different methodologies for determining base rent for remote dwellings. A record of the meeting of the SAG on 9 November 2018 reveals that all members of the SAG agreed that the operational cost per bedroom model was the best model. This model was approved by Cabinet in December 2021. The model approved by Cabinet provided for base rent for a remote public housing dwelling to be determined based on the number of the bedrooms the dwelling contains and to be set accordingly by the Minister pursuant to s 23 of the Housing Act. The model approved by Cabinet contained a safety net by way of a policy allowing the CEOH to only charge a portion of the full rent payable by a tenant on a temporary basis, if the tenant would encounter rental stress due to being required to pay the full rent payable pursuant to the Determination. The government policy is for the CEOH to require such tenants to pay an amount equivalent to 25% of the total household income of the relevant dwelling, initially for up to 6 months.[2]
It was against that background that the responsible Minister made the three Determinations which were the subject of the original application for judicial review. Section 23 of the Housing Act, pursuant to which the three Determinations were purportedly made, is extracted in that part of the judgment of the Supreme Court set out immediately above. Section 41 of the RTA, the operation of which the appellants say precluded the rent increases effected by the three Determinations, provides:
Increases in rent
(1) A landlord may increase the rent payable under a tenancy agreement only if:
(a) the right to increase the rent; and
(b) the amount of the increase in rent or the method of calculation of the increase in rent,
is specified in the agreement.
(2) A proposal to increase the rent payable under a tenancy agreement is of no effect unless at least 30 days written notice is given to the tenant of:
(a)the amount of the increase; and
(b) the date from which the increase is to take effect.
(3) The date fixed for an increase in rent in relation to a tenancy must not be earlier than 6 months after:
(a)the day on which the tenancy agreement commences; or
(b) if there has been a previous increase of rent under this section in relation to one or more of the same tenants and the same premises – the last increase.
(4) If the rent payable under a tenancy agreement is increased under this section, the terms of the agreement are varied accordingly.
(5) Subsections (2), (3) and (4) do not apply in relation to:
(a) a provision of a tenancy agreement in relation to a tenancy under which the rent payable changes automatically at stated intervals on a basis set out in the agreement or by a determination under the Housing Act 1982 by the minister administering that Act; or
(b) an increase in the amount of rent payable by a tenant because of the cancellation or adjustment of a rent rebate.
Section 19 of the RTA, which the appellants say governed the form of the tenancy agreements, relevantly provides:
Tenancy agreements to be written
(1) If a landlord enters into a written tenancy agreement the agreement is to:
(a) contain the name of the tenants and the name and address for service of the landlord's agent, if any;
(b) contain the full name and address for service of the landlord;
(c) clearly identify the premises to which the agreement relates;
(d) contain each term, or a term to the same effect as each term, that is specified by or under this Act to be a term of a tenancy agreement;
(e) include terms as to the amount of rent payable and how the rent is to be payable; and
(f) if the agreement is for a fixed term tenancy – specify the duration of the agreement.
…
(4) If a tenancy agreement is not in accordance with subsection (1) or is not signed by all parties to the agreement, a tenancy agreement, if any, prescribed for the purposes of this section is to be taken to be the agreement between the parties for the purposes of this Act.
Regulation 10 of the RT Regulations provides that for the purposes of s 19(4) of the RTA, ‘the tenancy agreement set out in Schedule 2 is prescribed’. Clause 2(2) of the default tenancy agreement prescribed by Sch 2 of the RT Regulations provides:
The tenant must pay, before each rental payment period in respect of the premises to which this agreement relates, the amount of rent, if any, agreed at the beginning of the tenancy between the landlord and the tenant to be payable in respect of the rental payment period.
The third declaration sought by the appellants in the original application for judicial review was that as tenants of ‘public housing premises’ as defined in s 5 of the Housing Act they can seek a declaration that the rent payable under their tenancy agreements is excessive under s 42 of the RTA because such agreements are not a ‘tenancy under the Housing Act’ as defined in s 4 of the RTA.
The term ‘public housing premises’ is defined in s 5 of the Housing Act to mean (so far as is relevant for these purposes):
(a) premises that are owned or leased by the Chief Executive Officer (Housing) or the Territory for the purpose of being let to eligible persons by the Chief Executive Officer (Housing) or the Territory under a prescribed housing scheme, whether or not the premises have been let;
The term ‘tenancy under the Housing Act 1982’ is defined in s 4 of the RTA to mean:
(a) a social housing tenancy; or
(b) any other tenancy granted under the Housing Act 1982:
(i) in relation to premises that are owned or leased by the CEO (Housing) or the Territory; or
(ii) under which the CEO (Housing) or the Territory is the landlord.
Section 42 of the RTA provides:
Tribunal may declare rent excessive
(1) The Tribunal may, on the application of the tenant, declare that the rent payable under a tenancy agreement is excessive.
(2) The Tribunal must not make a declaration under subsection (1) unless it:
(a) has given 14 days notice to the landlord of the application; and
(b) has invited the landlord to make submissions to the Tribunal in relation to the application before the date specified in the notice; and
(c)has considered any submissions made by the landlord.
(3) The Tribunal may only make a declaration under subsection (1) if the rent paid in respect of the tenancy agreement is, in the opinion of the Tribunal, excessive:
(a) having regard to the general level of rents for comparable premises in the same or similar localities and the cost of any services provided in connection with the tenancy agreement by the landlord or the tenant; or
(b) because the level of services provided under the agreement has, in the opinion of the Tribunal, been reduced to a significant extent, having regard to the cost of any services provided in connection with the tenancy agreement by the landlord or the tenant.
(4) If the Tribunal makes a declaration under subsection (1), it may by order:
(a) specify the rent payable for the premises and vary the agreement by reducing the rent payable under the agreement accordingly; and
(b) specify a date (which is not to be before the date of the application) from which the variation takes effect; and
(c) specify the period of not more than 12 months that the order is to remain in force.
(5) The Tribunal may, on the application of the landlord, vary or revoke an order under this section as the Tribunal thinks fit.
The decision of the Supreme Court
Against that factual and statutory background, the trial judge dismissed the appellants’ application for the declarations sought.
In relation to the argument that s 41 of the RTA precluded the rent increases effected by the three Determinations, the trial judge proceeded on the assumption that none of the leases contained clauses that satisfied the requirements of s 41(1) of the RTA. Even accepting that contention for the purpose of the argument, the trial judge found that the Chief Executive Officer (Housing) was the ‘landlord’ for that purpose, and that the landlord had not purported to increase the rent. The term ‘landlord’ was relevantly defined in s 4 of the RTA to mean ‘the person who grants the right of occupancy under a tenancy agreement’. As neither the responsible Minister nor the Northern Territory of Australia granted any of the appellants a right of occupancy under a tenancy agreement, neither was restricted by s 41 of the RTA in relation to any increase in rent or the method of calculation of an increase in rent.[3]
To the extent that there was any apparent conflict between the responsible Minister’s power to determine rents under s 23 of the Housing Act and the facility to fix rents at a different level under s 41 of the RTA, the trial judge determined that the RTA had been later enacted and the legislature had made a clear choice to allow the Chief Executive Officer (Housing) to grant a right of occupancy for tenancies under the Housing Act while leaving the Minister responsible for determining rents. That intention was consistent with the obvious purpose of s 41 of the RTA to redress inequality of bargaining power in a market-based residential lease system, and the inapplicability of that mechanism to a social housing system which involves quite different obligations and considerations. So much was also apparent from the fact that s 42 of the RTA, to the extent that it permits a declaration that rent is excessive, is entirely unconcerned with the financial position of the lessee, and the fact that rent determinations under the public housing system permitted the grant of rebates to the base rent on the basis of financial circumstance and need.[4]
The confinement of s 41 of the RTA to a rent increase imposed by a ‘landlord’ also reflected the infeasibility of setting an individualised market rent for each of the 5000 dwellings in remote communities which were subject to the Determinations under the Housing Act, and the express grant of power in s 23 of the Housing Act to make determinations for ‘a class of dwelling’. In the opinion of the trial judge, the absence of a reference in s 7(5) of the RTA to s 41 of the RTA as one of the provisions specified not to apply to a tenancy under the Housing Act did not indicate a legislative intention that s 41 was to apply. The inclusion of an express exemption was determined by the trial judge to be unnecessary in a scheme under which the rent payable for public housing tenancies is fixed by determination under s 23 of the Housing Act.[5]
In relation to the argument that the appellants could seek a declaration from NTCAT that the rent payable under their tenancy agreements was excessive under s 42 of the RTA, the trial judge declined to determine that issue in circumstances where the appellants had not at that stage sought to invoke the jurisdiction of NTCAT in that respect. As described at the commencement of these Reasons, the appellants subsequently brought an application for that purpose before NTCAT, which determined as a preliminary issue that it lacked jurisdiction to make declarations under s 42 of the RTA in relation to public housing tenancies. The application for leave to appeal against that determination forms the third matter under consideration (2023-01346-SC) in the subject proceedings.[6]
In relation to the argument that the appellants were denied procedural fairness, the trial judge adopted the respondents’ distinction between the exercise of a power to make a decision which directly affects a person individually and that which simply affects an individual as member of the public or of a class of the public.[7] That latter category of decision includes the exercise of statutory powers to regulate prices in the public interest, which does not attract an entitlement to a prior hearing before the exercise of the power.[8] The trial judge ultimately determined that the responsible Minister was not obliged to provide procedural fairness to the appellants as part of a class of tenants to whom the Determinations applied, but that even if there was such an entitlement it was satisfied by the consultation process undertaken through the SAG.[9]
Finally, the trial judge rejected the argument that the Determinations were legally unreasonable because they applied to all public housing premises in town camps and remote communities regardless of condition or location. That determination was made largely on the basis that s 23 of the Housing Act permitted the responsible Minister to make a Determination in relation to a class of dwelling in the context of a public housing scheme, and the scope and content of the Determinations were readily explicable by the policy considerations relevant to the assessment of base rents in a broad geographical range of communities for a public housing system in which rental rebates were available.[10]
The grounds of appeal in AP 13/22 (2237775)
The appellants’ grounds of appeal may be summarised as follows.[11]
1.The trial judge erred in concluding that s 41(1) of the RTA did not apply to the appellants’ tenancy agreements by concluding that:
(a) the legislature did not intend for it to apply,
(i)especially having regard to ss 7 and 41 of the RTA and ss 23 and 34 of the Housing Act, and
(ii)having regard to the trial judge’s incorrect understanding that a determination of rent with application to the appellants had been made prior to the Determination dated 23 December 2021, and that there was a legal concept of ‘base rent’, when the only relevant concept under both the RTA and s 23 of the Housing Act was ‘rent’;
(b) the responsible Minister was not the ‘landlord’ for the purposes of s 41 of the RTA in circumstances where each was either,
(i)acting as an agent of the Commonwealth pursuant to s 16(2)(h) of the Housing Act and thus within the definition of ‘landlord’, and/or
(ii)an emanation of the same Crown as the Chief Executive Officer (Housing) and/or the Commonwealth and thus within the definition of ‘landlord’;
(c) the responsible Minister was not the de facto ‘landlord’ for the purposes of s 41 of the RTA, especially having regard to ss 16(2)(h), 17, 21 and 22 of the Housing Act.
2.The trial judge erred when concluding that an uncodified policy could lawfully increase the rent payable by the appellants despite s 41 of the RTA and/or s 23 of the Housing Act.
3.The trial judge erred by failing to conclude that those parts of the First, Second and Third Determinations which gave rise to rent increases, and/or applied to classes of two, three and/or four bedroom dwellings, were infected by jurisdictional error on the basis of a denial of procedural fairness to those persons whose rights or interests were affected, including the appellants.
4.The trial judge erred in concluding that procedural fairness was afforded to the appellants in respect of the First, Second and Third Determinations made in 2021 and 2022 on the basis of the SAG consultation in 2018 in circumstances where:
(a) the rent rates which were the subject of the consultation were not replicated in the First, Second or Third Determination;
(b) there was no evidence that any person attending the consultation was a person who would be affected by any future determination made under s 23 of the Housing Act; and/or
(c) the consultation did not include when each of the Determinations was to be made or postponed nor the effect of each of those decisions.
5.The trial judge erred by failing to conclude that those parts of the First, Second and Third Determinations which gave rise to rent increases, and/or applied to classes of two, three and/or four bedroom dwellings, were legally unreasonable in that each took no account of:
(a) the extent of non-compliance by the landlord with the requirements of the RTA in respect of each affected premises, and especially those requirements set out in ss 48 and 49 of the RTA;
(b) the proximity of each affected premises to government, health and education services, especially when compared with determinations made under s 23 of the Housing Act in relation to urban premises; and/or
(c) the departure of each of the First, Second and Third Determinations from the model endorsed by the SAG consultation.
The issue of principle which the appellants say underlies the challenge to the trial judge’s determination is that the relevant legislation should not be construed on the assumption that different considerations apply to private tenants, on the one hand, and social housing tenants of limited means, on the other hand. The appellants say the only relevant point of distinction for these purposes is that members of the latter category of tenant are entitled to the benefits which a public housing scheme affords because they are at relative disadvantage in terms of economic resource and power. Otherwise, they should enjoy the protections of general tenancy law equally with other categories of tenant without any assumption of differential treatment informing the process of statutory construction.[12]
The applicability of s 41(1) of the RTA
The appellants’ first ground of appeal is that the trial judge erred in concluding that s 41(1) of the RTA did not apply to the appellants’ tenancy agreements. As already described, s 41(1) of the RTA provides that a landlord may increase the rent payable under a tenancy agreement only if the right to increase the rent and the amount of the increase in rent or the method of calculation of the increase in rent is specified in the agreement. The trial judge concluded that the increases effected by the Determinations were not made by the Chief Executive Officer (Housing) as ‘landlord’. Rather, the increases were effected by the Determinations made by the responsible Minister, who was an entity quite separate from the ‘landlord’ as relevantly defined in s 4 of the RTA to mean relevantly ‘the person who grants the right of occupancy under a tenancy agreement’.
The appellants’ challenge to the trial judge’s conclusion in that respect is put on a number of bases. The first is that it was erroneous to conclude that the legislature did not intend s 41(1) of the RTA to apply to the appellants’ tenancy agreements, particularly having regard to the operation of ss 7 and 41 of the RTA and ss 23 and 34 of the Housing Act. As an adjunct to that argument, the appellants say that the trial judge also incorrectly understood that a determination of rent with application to the appellants had been made prior to the First Determination, and that there was a legal concept of ‘base rent’, when no prior statutory determination had been made and the only relevant concept under both the RTA and s 23 of the Housing Act was ‘rent’. The second basis for the challenge to the trial judge’s conclusion is that it was erroneous to conclude that the responsible Minister was not the ‘landlord’ for the purposes of s 41 of the RTA in circumstances where the responsible Minister was either acting as an agent of the Commonwealth pursuant to s 16(2)(h) of the Housing Act, and/or an emanation of the same Crown as the Chief Executive Officer (Housing) and/or the Commonwealth. The third basis for the challenge to the trial judge’s conclusion is that the responsible Minister was the de facto ‘landlord’ for the purposes of s 41 of the RTA having regard to ss 16(2)(h), 17, 21 and 22 of the Housing Act.
Operation of ss 7 and 41 RTA and ss 23 and 34 Housing Act
The appellants’ principal contention under this ground of appeal is that there is no conflict between the limitation in s 41 of the RTA on a landlord’s right to increase the rent payable under a tenancy agreement and the power of the Minister under s 23 of the Housing Act to determine the rent to be paid.[13] Any apparent or potential conflict is said to be resolved in favour of the RTA by operation of s 34 of the Housing Act, which provides:
The Residential Tenancies Act 1999 applies to and in relation to premises let under this Act.
The appellants submit that the phrase ‘to and in relation to’ is of wide and general import, such that the RTA is afforded primacy over the relevant provisions of the Housing Act unless the latter expressly indicates otherwise.[14] The appellants point in that respect to provisions such as s 28W(2) of the Housing Act, which provides an express indication with the formulation ‘despite the application of the [RTA]’. Similarly, s 7(5) of the RTA provides expressly that ss 31, 32, 37, 39(1) and (2), 42 and 112(5)(b) or (c) and Part 10 of the RTA do not apply in relation to a tenancy or proposed tenancy under the Housing Act. These provisions are said both to acknowledge the default position that the RTA prevails over the Housing Act and to carve out in express terms the limitations from the RTA which would otherwise apply to the Housing Act.
That construction is said to be supported by the fact that s 41(5)(a) of the RTA itself expressly excludes the application of subs (2), (3) and (4) to ‘a tenancy under which the rent payable changes … by a determination under the Housing Act 1982 by the Minister administering that Act’, with no exclusion of the application of subs 41(1) to a tenancy of that type. To the extent it may be required, s 7 of the RTA contains a mechanism which empowers the Minister to exempt specified classes of tenancy agreement from all or any of the provisions of the RTA, subject to a notice and consultation process.
The trial judge found that the omission from s 7(5) of the RTA of s 41 as a specified provision which does not apply to a tenancy under the Housing Act was not indicative of a legislative intention that s 41 was to have such application. That is because the mechanism permitting the rent payable by a tenant in public housing to be fixed by determination under s 23 of the Housing Act rendered express exemption unnecessary.[15] The appellants submit that the effect of that interpretation would be to allow those procedural fairness protections in s 7 to be circumvented by the ‘stroke of a Ministerial pen’ and to subvert the way in which the Housing Act is intended to be read with the RTA.
The appellants’ further or alternative submission is that the two provisions are capable of harmonious operation if the power in s 23 of the Housing Act is taken to permit only the reduction of rent, with an increase in rent available only if the requirements of s 41(1) of the RTA are satisfied. The appellants say that construction would not operate to make a determination under s 23 of the Housing Act inoperative, but only to subject it to the limitations imposed by the RTA in the manner contemplated by s 34 of the Housing Act. That is said to be consistent with a scheme under which rent increases are permitted only if the criteria stipulated in s 41(1) are satisfied, but the manner in which rent may be reduced is not limited under the terms of the legislation to the means permissively specified in s 46 of the RTA. That difference in approach is said to be explicable from a policy perspective to ensure that tenants are afforded transparency, clarity and predictability in how their financial obligations under the tenancy agreement may increase in the future.
The appellants say that the consequence of that constructional approach is that s 23(4) of the Housing Act, which provides that the rent to be paid is the rent determined by the Minister under subs (1) despite anything to the contrary contained in any other arrangement or agreement, operates only to the extent it gives rise to a rent reduction or, alternatively, a rent rise authorised by the specific terms of the tenancy agreement. That is because s 23(4) of the Housing Act would otherwise have the effect of overriding the legislature’s clear expression of intent in s 41(1) of the RTA that any rent increase is authorised ‘only if’ and to the extent contemplated by the terms of the tenancy agreement.
In answering these questions it is necessary so far as is possible to construe the RTA consistently with the relevant provisions of the Housing Act. That is because the two pieces of legislation are clearly interrelated (not least because they make express reference to each other), and are clearly intended to operate as part of a broader scheme for the regulation of tenancies and the provision of housing in the Northern Territory. As was stated in Commissioner of Stamp Duties v Permanent Trustee Co Ltd:
Upon the hypothesis … that there is a rational integration of the legislation of the one Parliament, it is proper for courts to endeavour to so construe interrelated statutes as to produce a sensible, efficient and just operation of them in preference to an inefficient, conflicting or unjust operation.[16]
The submissions made by the appellants in relation to the operation of ss 7 and 41 of the RTA and ss 23 and 34 of the Housing Act do not directly engage with the fact that s 41(1) of the RTA, in its terms, restricts the capacity of a ‘landlord’ to increase the rent for a tenancy. The challenge to the trial judge’s characterisation of the Chief Executive Officer (Housing), rather than the responsible Minister, as the ‘landlord’ within the meaning of s 41(1) of the RTA forms the basis of the second and third grounds of challenge and is discussed further below, including whether there is some contrary intention which would warrant the displacement of the statutory definition of ‘landlord’ appearing in s 4 of the RTA.
The appellants’ first ground of challenge is, in effect, that it was erroneous on the part of the trial judge to conclude that the legislature did not intend s 41(1) of the RTA to apply to the appellants’ tenancy agreements given that its application to public housing tenancies was not expressly excluded.[17] That resolves to the contention that, on proper construction, the scheme created under the RTA and the Housing Act precludes any increase to the rent payable in respect of the lease of a dwelling under the Housing Act other than in compliance with the limitations imposed by s 41(1) of the RTA, regardless of how or by whom that rental increase is effected.
In addressing that contention, the respondents submit that the RTA creates a general framework regulating the relationship of landlords and tenants under residential tenancy agreements. Under that framework, s 19(1) of the RTA contemplates that a landlord and tenant may enter into a tenancy agreement provided it contains certain terms and is signed by both parties. If a tenancy agreement does not contain those conditions, or is not signed by all parties, the tenancy agreement prescribed in Sch 2 to the RT Regulations is taken to be the agreement between the parties.[18] The relevant tenancy agreements in this case were either taken to be those in Schedule 2 to the RT Regulations or mirrored the language of cl 2(2) of Schedule 2.
Clause 2(2) of the RT Regulations relevantly provides that a tenant must pay the amount of rent, if any, agreed at the beginning of the tenancy between the landlord and the tenant to be payable in respect of the rental payment period. Section 35 of the RTA provides that it is a term of a tenancy agreement that the tenant must pay the rent specified in or under the agreement in the manner and at the place specified in the agreement or otherwise agreed in writing. It is as part of that scheme that s 41(1) of the RTA provides that a landlord may increase the rent payable under a tenancy agreement only if (a) the right to increase the rent, and (b) the amount of the increase in rent or the method of calculation of the increase in rent is specified in the agreement. The respondent submits that those incidents demonstrate that the RTA creates a scheme for the regulation of tenancies between landlords and tenants which limits the manner in which landlords may alter rent payable under tenancy agreements.
The respondents submit that, conversely, the Housing Act creates a different and more particular framework for the provision of public housing. That Act and the housing schemes operated under it are administered in large part by the Chief Executive Officer (Housing) as landlord. The power of the responsible Minister under s 23(1) of the Housing Act is relevantly to determine the rent to be paid for a dwelling or a class of dwelling. A ‘dwelling’ is defined in s 5 of the Housing Act as a house built or otherwise acquired, and retained, by the Chief Executive Officer (Housing), or a house in the control of the Chief Executive Officer (Housing) as agent for the Territory or the Commonwealth. The respondents say that under those arrangements, and quite consistently with the operation of a public housing scheme, s 23(4) of the Housing Act expressly and unambiguously requires that the rent to be paid for a ‘dwelling’ is the rent determined by the Minister from time to time, ‘despite anything to the contrary contained in the tenancy agreement entered into in respect of the dwelling or in any arrangement or agreement, or alleged arrangement or agreement, between the tenant of the dwelling and any other person (including the Chief Executive Officer (Housing)’.
The respondents say that this arrangement affords the RTA and the Housing Act harmonious operation, and that the appellants have mischaracterised the trial judge’s reasoning and finding in this respect as predicated upon the existence of a conflict between the two provisions. Rather, the assertion of conflict was one prosecuted by the appellants and which the trial judge addressed in the following terms:
When it is accepted that the legislature in the RTA, a later enactment to the Housing Act, chose to provide that the CEOH could be the entity granting the right of occupancy (effectively the landlord) while retaining the Minister as the person responsible for setting rents, the apparent conflict between the provisions falls away.[19]
The respondents also say that the trial judge did not find that s 41(1) of the RTA ‘did not apply’ to the appellants’ tenancy agreements.[20] Rather, the trial judge found that s 41(1) of the RTA effected no constraint upon the exercise of the Minister’s power under s 23 of the Housing Act because of a deliberate decision on the part of the legislature to establish the Chief Executive Officer (Housing) as the legal person which granted the right of occupancy under public housing tenancy agreements.[21] It was for that reason unnecessary for s 7(5) of the RTA to exclude the operation of s 41(1) to public housing tenancies only ‘[t]o the extent that’ rent is fixed by the Minister.[22] Section 41(1) of the RTA otherwise has application to those tenancies and would prevent the Chief Executive Officer (Housing), as landlord, from increasing the rent unless there was an express term to that effect.
The respondents’ submissions in this respect should be accepted. That the RTA has application to premises under the Housing Act is not in dispute. The relevant question is whether the limitation imposed by s 41(1) of the RTA upon what a landlord may do controls and limits the Minister’s power under s 23 of the Housing Act to determine rents. The provisions of s 23(4) of the Housing Act are entirely inconsistent with the appellants’ contention that the Minister is somehow constrained by the operation of s 41 of the RTA. It may be noticed in this respect that s 41 of the RTA imposes obligations with exclusive reference to tenancy agreements, and that s 23(4) of the Housing Act in its form at the material time was enacted after the promulgation of s 41 of the RTA.
It cannot be said that this stipulation operates only to the extent it gives rise to a rent reduction or, alternatively, a rent rise authorised by the specific terms of the tenancy agreement. Rather, it is this stipulation requiring the rent determined by the Minister for a public housing dwelling to prevail over any other agreement or arrangement. That conclusion is not altered by the fact that the Minister had made no statutory determination in relation to the relevant premises prior to the First Determination.
That specific stipulation in s 23(4) of the Housing Act, together with the fact that the Minister is not the ‘landlord’, obviates the need for any express exemption of the operation of the general provision in s 41(1) of the RTA in the Housing Act, and explains why it was unnecessary for s 41(5) of the RTA to disapply s 41(1) in express terms. Conversely, subss 41(2), (3) and (4) would, but for s 41(5), have application to a rent increase irrespective of the circumstance that it was not imposed by the landlord. We respectfully agree with the trial judge’s observation that the relationship between s 41 of the RTA and s 23 of the Housing Act reflects a legislative intention that s 41(1) of the RTA has application to redress inequality of bargaining power in a market-based residential lease system, and s 23 of the Housing Act has application to a social housing system which involves quite different obligations and considerations.
Notice of Contention
The respondents have filed a Notice of Contention pleading that the trial judge erroneously decided[23] that none of the appellants’ leases contained a provision which satisfied the requirements of s 41(1) of the RTA, in circumstances where the lease between the Chief Executive Officer (Housing) and the fourth appellant dated 20 October 2020[24] specified that the rent was subject to adjustment in accordance with s 23 of the Housing Act in a manner that satisfied the requirements of s 41(1) of the RTA.
It is not necessary to determine this matter given the finding we have made in relation to the relationship between s 41 of the RTA and s 23 of the Housing Act. Moreover, the argument operates only in relation to the fourth appellant. However, the matter was the subject of considered submissions by the parties and it is appropriately determined.
In order for a provision to satisfy the requirements of s 41(1) of the RTA it must specify both the right to increase the rent and either the amount of the increase in rent or the method of calculation of the increase in rent. The provision in this case forms part of the tenancy agreement by its incorporation in Schedule 1 headed ‘Public Housing Tenancy Agreement – Periodic Tenancy’ and signed by the fourth appellant. The provision states only that rent may be adjusted in accordance with s 23 of the Housing Act, which grants the Minister the power to determine rents. It may be accepted that the reference to the adjustment of rent is sufficient to constitute the specification of a right to increase rent, notwithstanding the level of generality in that formulation. As the respondents submit, it is unnecessary for the clause to specify the Minister’s future intentions, and the language used is sufficient to convey the necessary information in relation to the right to increase rent. The reference to adjustment comprehends the fact that a determination under that provision may entail the rent being adjusted to a higher or lower amount than the rent currently payable.
Accepting that to be so, the clause manifestly does not specify the amount of the increase in rent. Accordingly, in order to satisfy the requirements of s 41(1) of the RTA it is necessary to characterise the provision that rent may be adjusted in accordance with s 23 of the Housing Act as the specification of the method of calculation of the increase in rent. The term ‘specify’ carries with it the requirement that the clause in question must identify the relevant matter ‘definitely or explicitly’, ‘in detail’ or with ‘unambiguous clarity’. A formulation which identifies matters in general, indefinite and non-specific terms will not meet the requirement of specification.[25] The adjustment provision in this case in no way specifies the method of calculation of the increase in rent. A reference to a singular power on the part of the responsible Minister to increase rent outside the scheme of the RTA does not amount to a method of calculation in the relevant sense.
The Notice of Contention is dismissed.
Whether responsible Minister de jure ‘landlord’
The second basis for appellants’ challenge under this ground of appeal asserts that the responsible Minister was properly characterised as the ‘landlord’ for the purposes of s 41 of the RTA because the responsible Minister was acting as an agent of the Commonwealth pursuant to s 16(2)(h) of the Housing Act, and/or was an emanation of the same Crown as the Chief Executive Officer (Housing) and/or the Commonwealth. The following findings of fact made by the trial judge in relation to the tenancy arrangements are not subject to any challenge on appeal.
The township of Gunbalanya, where the first, second, and third appellants resided at the material times, is Aboriginal land within the meaning of s 3(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALRA). The Arnhem Land Aboriginal Trust (ALAT) holds an estate in fee simple over NT Portion 1646, which includes the township of Gunbalanya. On 26 August 2009, the ALAT, the Northern Land Council, the Chief Executive Officer (Housing) and the Commonwealth of Australia entered into an agreement through which the ALAT granted the Chief Executive Officer (Housing) a lease over the township of Gunbalanya under s 19 of the ALRA. The residential dwellings occupied by the first, second and third appellants form part of the land leased to the Chief Executive Officer (Housing), and the tenancy agreements pursuant to which the first, second and third appellants occupy the residential dwellings in question name the Chief Executive Officer (Housing) as the landlord.
Laramba is an Aboriginal community living area which was excised from the Napperby pastoral lease in 1992 under Part 8 of the Pastoral Land Act 1992 (NT). It comprises NT Portion 4069 over which the Laramba Community Incorporated holds an estate in fee simple. The residential dwelling occupied by the fourth appellant at the material times is situated within NT Portion 4069. On 18 July 2014, Laramba Community Incorporated, the Central Land Council and the Executive Director of Township Leasing (EDTL), a Commonwealth employee, entered into a head lease concerning certain land in Laramba, including the dwelling occupied by the fourth appellant, to facilitate the provision of public housing. Then, contemporaneously with the grant of the head lease, the EDTL entered into a sublease of the housing stock on that land to the Chief Executive Officer (Housing) to facilitate the provision of public housing in Laramba by the Chief Executive Officer (Housing). The residential dwelling occupied by the fourth appellant formed part of the housing stock leased to the Chief Executive Officer (Housing), and the tenancy agreement pursuant to which the fourth appellant occupied the residential dwelling in question named the Chief Executive Officer (Housing) as the landlord.
Against that factual background, the Chief Executive Officer (Housing) is a corporation sole established by s 6 of the Housing Act in the following terms:
Chief Executive Officer (Housing)
(1) There is established an entity by the name of the Chief Executive Officer (Housing).
(2) The Chief Executive Officer (Housing):
(a) is a body corporate sole with perpetual succession; and
(b) has a common seal; and
(c) is capable, in its corporate name, of acquiring, holding and disposing of real, leasehold and personal property and of suing and being sued.
(3) All courts, judges and persons acting judicially must take judicial notice of the seal of the Chief Executive (Housing) affixed to a document and must presume that it was duly affixed.
The relationship between the Commonwealth, the Northern Territory of Australia (the Territory) and the Chief Executive Officer (Housing) was considered in Jack v Chief Executive Officer (Housing) (No 2).[26] The relevant issue in that matter was whether the Territory should be joined as a defendant to proceedings seeking payment of compensation pursuant to s 122 of the RTA for an alleged breach by the ‘landlord’ of the habitability obligation imposed by s 48(1) of the RTA. The plaintiff’s application to join the Territory was made on the basis that it was either the party which granted him the right of occupancy, or that party’s agent, under the terms of the definition of ‘landlord’ in s 4 of the RTA. The distinction between a body politic and a statutory body created by that body politic with separate legal personality was described in Jack v Chief Executive Officer (Housing) (No 2) in the following terms (footnotes omitted):
I turn then to consider the legal personality of the Territory, and the particular legal personality and function of the CEO in relation to public housing. The Territory is the body politic established under the Crown by the name of the ‘Northern Territory of Australia’. Leaving aside purely geographical connotations, the designation ‘Northern Territory of Australia’ is used variously to mean either the whole body politic or the executive branch. A government Department is not a body with separate juridical personality. A government Department is a unit of administration with responsibility for an area of government of and within the body politic, and has no legal personality of its own. A legislature, including the Legislative Assembly of the Northern Territory, may also incorporate or establish an entity with separate juridical personality to the body politic which has created it. Statutory bodies with separate legal personalities are established to carry out specific functions which may be more effectively performed outside a traditional departmental structure. A statutory body is generally created and used when there is a need: for some operational independence from government; to accommodate funding arrangements separate to the annual appropriations processes; and/or for specific expertise on a governing board.
A legal entity created for that purpose may take the form of a corporation sole or a body corporate. Such bodies, when created by the legislature, are not the ‘Territory’ or the ‘Crown’, as they have separate juridical personality. In the ordinary course, they will hold property, enter into contracts and conduct litigation in their own names, even allowing for the fact that they may also be instrumentalities or agents of the Territory depending upon the specific provisions of the legislation, the functions of the statutory body in question and the degree of governmental control to which it is subject. However, that characterisation is only determinative of matters such as whether the body enjoys Crown immunities or whether it is subject to regulatory laws and legislation with specific application to the public sector. It does not deny or deprive the body of its separate legal personality.[27]
For the reasons given in that passage, and having regard to the terms of s 6 of the Housing Act, there is no doubt that the Territory has established the Chief Executive Officer (Housing) as a corporation sole with quite separate legal personality. As the Court in Jack v Chief Executive Officer (Housing) (No 2) went on to describe,[28] the Chief Executive Officer (Housing) is constituted by the Chief Executive Officer of the Agency responsible for the administration of the Housing Act.[29] The functions of the Chief Executive Officer (Housing) are to provide and to assist in the provision of residential, office, industrial or other accommodation for Territory or Commonwealth public purposes.[30] The Chief Executive Officer (Housing) is specifically empowered to do such things as acquire, hold and dispose of real or personal property; build on land; maintain, manage and control premises; let premises; sell dwellings; provide financial and other assistance for the acquisition of land or buildings for accommodation; and sell, lease or otherwise dispose of real or personal property that is surplus to its own, the Territory’s or the Commonwealth’s needs.[31] Most relevantly for present purposes, the Chief Executive Officer (Housing) is empowered to ‘act as agent for the Territory or Commonwealth in administering a Territory or Commonwealth housing scheme’.[32]
In the exercise of those powers and the performance of those functions the Chief Executive Officer (Housing) is subject to the directions of the Minister,[33] but in the absence of any countervailing direction it exercises those powers and performs those functions autonomously. So much is apparent, by way of example, from the fact that it is the Chief Executive Officer (Housing) which determines the criteria that a person must meet in order to be eligible for a social housing lease.[34] The moneys for the performance of those functions are comprised by such moneys as are appropriated to the Chief Executive Officer (Housing) by the Legislative Assembly; the moneys received by the Chief Executive Officer (Housing) in the performance of its functions and the exercise of its powers; moneys lent to the Chief Executive Officer (Housing) by the Territory, a statutory corporation or financial institution; and advances made by the Treasurer.[35]
The Court in Jack v Chief Executive Officer (Housing) (No 2) then went on to describe the practice under which Australian governments have created separate legal entities to conduct their public or social housing functions to better accommodate the conduct of operations of that nature.[36] The Court then described the legislative history and the administrative arrangements in the Northern Territory in the following terms:
In conformance with those usual arrangements, the entity responsible for public or social housing in the Northern Territory prior to self-government was constituted in 1960 as the Housing Commission. That entity continued in existence under the same name following self-government, and following the commencement of the Housing Act in 1982. With the passage of the Housing Amendment Bill in 1998, the constitution of the Housing Commission was changed from that of a body corporate to a body corporate sole, and the name of the entity was changed to the ‘Chief Executive Officer (Housing)’. It has remained the case throughout that period that public or social housing functions in the Northern Territory have been conducted by an entity with legal personality separate to that of the ‘Territory’, which is not subject to the requirements and strictures imposed by public sector financial legislation.
Under the current Administrative Arrangements Order, the Minister for Territory Families and Urban Housing is given responsibility for the areas of government constituted by the ‘Chief Executive Officer (Housing)’ and ‘NT Home Ownership’. However, the ‘Chief Executive Officer (Housing)’ is not nominated as an Agency for the purposes of either the Financial Management Act 1995 (NT) or the Public Sector Employment and Management Act 1993 (NT). Accordingly, the CEO is not subject to the requirements and strictures of that legislation, and particularly the financial legislation. Similarly, the NT Home Ownership scheme is also not nominated as an Agency for the purposes of the Public Sector Employment and Management Act; although it is nominated as an Agency for the purposes of the Financial Management Act and is subject to the strictures of that legislation. While the officer constituting the CEO also holds office as the Chief Executive Officer of the Department of Territory Families, Housing and Communities, the establishment and functions of the CEO under the Housing Act stand quite separately to the other activities of that Department and, as can be seen from the establishing legislation extracted above, the CEO is expressly created with separate juridical personality.[37]
Titles aside, that remains the case under the current Administrative Arrangements Order and legislative structure. The Minister for Housing, Local Government and Community Development is given responsibility for the areas of government constituted by the ‘Chief Executive Officer (Housing)’ and ‘NT Home Ownership’, and the ‘Chief Executive Officer (Housing)’ is not nominated as an Agency for the purposes of either the Financial Management Act 1995 (NT) or the Public Sector Employment and Management Act 1993 (NT).
Against that historical and legislative background, the term ‘landlord’ is used with particularity in s 41 of the RTA. Unless there is plain reason not to, the term must be given the meaning ascribed to it in s 4 of the RTA. That section provides:
landlord means:
(a) the person who grants the right of occupancy under a tenancy agreement; or
(b) a successor in title to the tenanted premises whose title is subject to the tenant's interest,
and includes:
(c) a prospective landlord or a former landlord; and
(d) an agent of the landlord, prospective landlord or former landlord.
The use of the expression ‘means’ to qualify that definition indicates that it is intended to be exhaustive in scope, rather than simply enlarging the ordinary meaning of the word. That usage also tells against the appellants’ submission that the definition is broad and inclusive, rather than exhaustive. It may also be noted in this respect that the definition of ‘landlord’ is not qualified by any formulations such as ‘unless the contrary intention appears’ or ‘except where otherwise clearly intended’. Although it may be accepted that even in the absence of express words to that effect such a qualification is implied as a natural feature of the constructional process,[38] the definition in s 4 of the RTA must be read into the substantive enactment in s 41 of the RTA if there is nothing in the text or purpose of the legislation indicating that the definition is expressly or impliedly excluded.
This is not a case in which the statutory definition of ‘landlord’ is either expressly or implicitly excluded from application to s 41 of the RTA by the text and terms of the legislation. It fits comfortably into the substantive enactment without logical or grammatical infelicity. The appellants suggest that some significance should be attached to the fact that s 41(1) of the RTA adopts the formulation ‘a landlord’ when dealing with an increase of rent, whereas s 46 of the RTA adopts the formulation ‘the landlord’ in relation to the reduction of rent. The appellants say this is a textual suggestion that there might be more than one legal entity capable of characterisation as landlord at any given time. A review of the usages throughout the RTA does not suggest any significance to the use of the definite and indefinite articles beyond the fact that the use of the indefinite article is used conventionally to indicate membership of a class, which class is still circumscribed by the statutory definition. To take just one example, the requirement in s 37 of the RTA that ‘a landlord’ must provide a receipt for a cash payment of rent necessarily undermines the appellant’s submission that the phrase ‘the landlord’ is properly taken to refer to the landlord named on the lease, whereas the phrase ‘a landlord’ has some different and more expansive meaning.
That leaves the question whether the subject matter, purpose and context of the legislation evince an intention on the part of the legislature that the definition should not apply. The onus of showing a contrary intention is on the appellants. As observed in the frequently cited passage from Deputy Commissioner of Taxation (NSW) v Mutton,[39] there is no simple formula for determining whether the legislature has evinced a ‘contrary intention’. The circumstances which might lead to such a conclusion include where the definition is plainly inconsistent with the substantive provision, where the context clearly indicates that the definition is not to apply, where the application of the definition would render the substantive provision unworkable and where the application of the statutory definition would lead to confusion. To those circumstances may be added the situation where the application of the definition would result in the operation of the substantive provision in a manner which the legislature clearly did not intend.[40] None of those circumstances apply in the present case. Moreover, there is nothing in the context to suggest that the defined term is not intended to apply. The proposition that public housing tenants should have the same rights and protections as tenants under commercial arrangements is an appeal to sentiment, rather than the identification of a contextual factor demonstrating contrary intention.
On the uncontested findings of fact made by the trial judge, it was the Chief Executive Officer (Housing) who granted the rights of occupancy to the appellants under the relevant tenancy agreements. Having regard to the legislative and administrative arrangements concerning the establishment and character of the Chief Executive Officer (Housing), neither the responsible Minister nor the Territory may be characterised as the ‘landlord’ on the basis that either was the legal person who granted the relevant rights of occupancy. That is a very different question to whether the Chief Executive Officer (Housing) might be characterised as the ‘alter ego’ or emanation of the Crown for the purpose of determining the application or disapplication of a regulatory regime.[41]
It is also not possible to characterise the responsible Minister as the ‘landlord’ for the purposes of s 41 of the RTA on the basis that the responsible Minister was acting as an agent of the Commonwealth pursuant to s 16(2)(h) of the Housing Act. That provision allows that the Chief Executive Officer (Housing) may ‘act as agent for the Territory or Commonwealth in administering a Territory or Commonwealth housing scheme’. That provision has nothing to say about any agency arrangement between the responsible Minister and the Commonwealth, and no bearing on the separation of legal personality between the Territory and the Chief Executive Officer (Housing).
Similarly, and for the reasons already described, the fact that the responsible Minister might be described as an emanation or officer of the same Crown as the Chief Executive Officer (Housing) in no way sustains a legal conclusion that the responsible Minister was the person who granted the rights of occupancy under the relevant tenancy agreements. The Legislative Assembly has expressly constituted the Chief Executive Officer (Housing) as a separate legal personality with the function of providing residential accommodation for public purposes, and to act as agent for the Territory or the Commonwealth in administering a housing scheme. The Legislative Assembly has made that provision in circumstances where the Territory has executive authority to administer public and social housing schemes on its own account should it determine to do so; but it has not. To find in that statutory and functional context that the responsible Minister is indistinguishable from the Chief Executive Officer (Housing) for the purposes of administering tenancy arrangements for public or social housing would be to ignore the legislative arrangement, and to proceed on the basis that the legislature does not mean what it says.[42]
The appellants’ alternative proposition that the responsible Minister is an emanation or officer of the Commonwealth Crown also provides no basis on which to conclude that the responsible Minister was therefore the ‘landlord’ for the purpose of s 41 of the RTA. Leaving aside esoteric arguments about the divisibility of the Crown, and whether a Northern Territory Minister might be characterised as an ‘officer of the Commonwealth’ for the purpose of s 75(v) of the Constitution, the Northern Territory (Self-Government) Act 1978 (Cth) (the Self-Government Act) established the Northern Territory of Australia as a separate body politic under the Crown (s 5), the Legislative Assembly (s 13), the office of the Administrator (s 32) and the Executive Council of the Northern Territory comprising the persons for the time being holding Ministerial office (s 33); and conferred duties, powers, functions and authorities upon the Legislative Assembly and these other institutions.[43]
As part of the establishment of the self-governing body politic, s 6 of the Self-Government Act confers on the Legislative Assembly the power ‘to make laws for the peace, order and good government of the Territory’. The exercise of legislative power by the Legislative Assembly is not an exercise of the Commonwealth Parliament’s legislative power.[44] Section 35 of the Self-Government Act confers executive authority on the Ministers of the Territory with reference to specific heads of executive authority prescribed in reg 4 of the Northern Territory (Self-Government) Regulations 1978 (Cth). Those heads of executive authority include ‘Housing’. Under those constitutional arrangements, the exercise of those heads of executive authority by Ministers of the Territory is not an exercise of Commonwealth executive authority.
Even if it were to be accepted for the sake of argument that the responsible Minister was an emanation of the Commonwealth Crown, that would not sustain any conclusion that the Commonwealth was the legal person which granted the rights of occupancy under the relevant tenancy agreement, or any conclusion that the Chief Executive Officer (Housing) does not have a legal personality distinct and separate from that of both the Territory and the Commonwealth. As the respondents submit, that proposition proceeds from the logical fallacy that ‘the Crown’ is a form of juridical entity so that all entities which are associated with it may be treated as a single person or that each emanation may be treated identically. Neither is the executive government of the Northern Territory a single juristic entity. It is a politically organised group of entities comprising the body politic of the Territory (as a legal person), its unincorporated agencies and instrumentalities, and its agencies and instrumentalities which have their own legal personalities (such as the Chief Executive Officer (Housing)). It is wrong to treat those distinct entities as the same legal person merely because they may each be classified for some purposes as emanations of the Crown.
Whether responsible Minister de facto ‘landlord’
Finally under this ground of appeal, the appellants assert that the responsible Minister was the de facto ‘landlord’ for the purposes of s 41 of the RTA. The basis for that assertion would appear to be that in increasing the rent to be paid to the Chief Executive Officer (Housing) by determination under s 23 of the Housing Act, the responsible Minister was necessarily acting as ‘landlord’ in the relevant sense. Alternatively, the appellants say that s 41 of the RTA is concerned with the source of the obligation to pay, not the source of the amount to be paid. Accordingly, the Chief Executive Officer (Housing) is properly taken to have increased the rent payable under the tenancy agreement within the meaning of s 41 of the RTA by requesting and collecting increased rent, notwithstanding that the increase was consequent upon a determination made under s 23 of the Housing Act.
That alternative proposition may be dealt with in short order. A landlord does not increase the rent payable under a tenancy agreement by collecting rent in a particular amount. Moreover, s 23(4) of the Housing Act makes it plain in its terms that s 23 is the source of both ‘[t]he rent to be paid for a dwelling’ and the obligation to pay ‘despite anything to the contrary contained in [a] tenancy agreement’.
So far as the appellants’ primary proposition is concerned, the meaning of ‘landlord’ is a matter of statutory construction. As already described, the term ‘landlord’ is given a specific and technical meaning for the purposes of the RTA. The question of who is properly characterised as the ‘landlord’ for the purpose of the RTA is a question of law. The question whether the facts as found satisfy a relevant definition contained in a statutory enactment properly construed is also a question of law. The appellants’ proposition that the responsible Minister was the de facto ‘landlord’ for the purposes of s 41 of the RTA does not engage with the statutory definition and the process of construction involved in determining whether the responsible Minister fell within the definition of ‘landlord’ in the RTA.
The appellants say that this de facto characterisation also follows from the provisions of ss 16(2)(h), 17, 21 and 22 of the Housing Act. As already described, s 16(2)(h) of the Housing Act allows that the Chief Executive Officer (Housing) may ‘act as agent for the Territory or Commonwealth in administering a Territory or Commonwealth housing scheme’. There is nothing in the factual findings to sustain the further finding that the Chief Executive Officer (Housing) was acting as the ‘agent’ of the Territory in the administration of the relevant tenancy arrangements. The term ‘agent’ is imprecise and protean in scope, and the meaning to be ascribed to the term as it appears in a statute will depend upon the language, context and purpose of the statute. As used in s 16(2)(h) of the Housing Act, the term means that the Chief Executive Officer (Housing) may act on behalf of the Territory or Commonwealth for the purpose of administering a housing scheme, including in the technical legal sense of having authority to create legal relations between the Territory or Commonwealth and a tenant under such a scheme. However, even if it is accepted that the Chief Executive Officer (Housing) was acting as an agent of either the Territory or the Commonwealth in the provision of social housing in the townships of Gunbalanya and Laramba in the general sense contemplated by s 16(2)(h) of the Housing Act, that in no way sustains a conclusion of either fact or law, or mixed fact and law, that it was the responsible Minister, or even the Territory, which granted the rights of occupancy under the relevant tenancy agreements.
Section 17 of the Housing Act provides that the Chief Executive Officer (Housing) is subject to the directions of the responsible Minister. There is no evidence to sustain the conclusion that the Minister provided any direction to the Chief Executive Officer (Housing) in relation to the administration of the scheme generally, or in relation to the relevant tenancy arrangements specifically. In any event, while it is no doubt the case that directions may be given in relation to broad strategic and financial matters, the deployment of the power of direction by the responsible Minister would not as a matter of legal characterisation supplant the Chief Executive Officer (Housing) as the legal entity which granted the rights of occupancy under the relevant tenancy agreements. For reasons which have already been described, the fact that a power of Ministerial direction is an indicium which may assist in the determination of whether a particular body might be characterised as the ‘alter ego’ or emanation of the Crown for the purpose of determining the application or disapplication of a regulatory regime, whether a corporation conducts its operations by legal personality distinct from the Crown is a quite different issue.
The matter proceeded on the agreed position that s 7(5) of the RTA does not exclude the application of s 42 of the RTA, on the basis that none of the tenancy arrangements in question are ‘a tenancy or proposed tenancy under the Housing Act 1982’. That is because the term ‘tenancy under the Housing Act’ was at the material time defined in s 4 of the RTA not to include a tenancy relating to premises not owned by the Territory or a statutory authority, unless the landlord is the Territory.[105] Accordingly, the issue for determination was whether the NTCAT was precluded from making an order under s 42(1) of the RTA where rent for a dwelling has been set by the Minister pursuant to s 23(1) of the Housing Act.
The NTCAT determined that s 42 of the RTA had application to ‘rent payable under a tenancy agreement’, and that descriptor did not extend to rent payable under a determination made in pursuance of s 23 of the Housing Act. Were that not so, s 42 of the RTA would operate as an avenue for review of the Minister’s determination, in circumstances where the NTCAT was not conferred with any original or supervisory jurisdiction in relation to that category of decision, the proceeding would be inconsistent with the review processes in Part 3, Division 3 of the Northern Territory Civil and Administrative Tribunal Act 2014 (NT), and any declaration made by the NTCAT would have no legal force having regard to the operation of s 23(4) of the Housing Act. That decision was necessarily made on the premise that the Determinations made under s 23 of the Housing Act were valid.
The appeal for which the applicants seek leave to prosecute is an appeal restricted to a question of law. The ordinary principles which govern an appeal of that nature have application. The proposition that an appeal of this nature is somehow equivalent to an application for judicial review should not be accepted,[106] except in the limited sense that jurisdictional errors of law may be amenable to judicial review. However, the question whether the NTCAT was precluded from making an order under s 42(1) of the RTA where rent for a dwelling has been set by the Minister pursuant to s 23(1) of the Housing Act is ultimately one of law.
In seeking to establish error of law on the part of the NTCAT, the applicants submit that on existing appellate authority the Tribunal’s power in s 42(1) of the RTA in relation to ‘the rent payable under a tenancy agreement’ is properly construed to mean rent a tenant has a legally enforceable obligation to pay by virtue of, pursuant to or under the authority of an agreement to occupy premises.[107] The legislature chose that formulation rather than, for example, ‘rent payable in accordance with a tenancy agreement’. The formulation selected by the legislature is said to implicate the tenancy agreement as the source of the obligation to pay rent, rather than the means by which the quantum of rent is calculated. The applicants seek to illustrate that principle by reference to the circumstances of the first and second applicants, whose tenancy agreements were silent as to the rent rate. Despite that, each of them paid rent at a rate later agreed with the Chief Executive Officer (Housing). Those payments were properly characterised as ‘rent payable under a tenancy agreement’ because the agreement remained the source of the obligation to pay.
The conclusion that s 42 of the RTA operates in relation to the applicants’ tenancy agreements is said by the appellants to be reinforced by the fact that at the material times s 34 of the Housing Act expressly provided that the RTA applies to and in relation to premises let under the Housing Act, subject only to the exceptions and exemptions in ss 6 and 7 of the RTA. The applicants say that conclusion is further reinforced by the fact that s 23(4) of the Housing Act only overrides rent determined by way of any agreement or arrangement ‘between the tenant of the dwelling and any other person’. A declaration of the NTCAT under s 42 of the RTA does not satisfy the description ‘agreement or arrangement’, and the Tribunal is not a ‘person’. The applicants also say no conflict arises by the operation of s 42(4) of the RTA, by which the NTCAT may couple a declaration with an order specifying the rent payable, because a declaration would bind the Crown and its emanations without need for a coercive order.
Section 23 of the Housing Act as originally enacted empowered and required the Minister to determine the rent to be paid for each dwelling to be let under the Housing Act subject to such terms and conditions as the Minister deemed fit. Under the previous housing legislation, rents were based on the actual cost of constructing and maintaining dwellings. The purpose underlying the enactment of s 23 of the Housing Act was to vest the responsible Minister with what was described in the course of the parliamentary debates as ‘complete discretionary powers in the matter of rental determination’. The purpose of vesting that power was to require the Housing Commission to comply with both intergovernmental funding agreements and ‘purely Northern Territory policy initiatives’. The power was subsequently amended in 1987 to make it clear that the responsible Minister could also in the exercise of that power make determinations for a class of dwellings. Section 23 of the Housing Act was re-enacted in substantially its present form in 2000. There is nothing in that re-enactment which suggests that the legislative intention was to displace the conferral of complete discretionary powers on the Minister in the matter of rental determination. Rather, the enactment of s 23(4) of the Housing Act at the same time made it plain that the responsible Minister’s determination was to prevail over any tenancy or other form of agreement.
Section 34 of the Housing Act relevantly provided that, with certain exceptions and express disapplications, the RTA ‘applies in relation to premises let under [the Housing Act]’. So far as the sequence of enactment is concerned, the RTA commenced operation on 1 March 2000 and s 34 of the Housing Act was repealed and re-enacted from that same date so that it made reference to the RTA rather than the former tenancies legislation. Section 23 of the Housing Act was then further repealed and re-enacted with effect from 31 January 2001 with the express purpose of making it clear that a determination under that section prevailed as the terms of a tenancy agreement.
Section 34 of the Housing Act is not determinative of this issue. The operative question is whether the powers of the NTCAT under s 42 are engaged in relation to a Ministerial determination under s 23(1) of the Housing Act. Although the legislative scheme in this respect is lacking in clarity, we cannot accede to the submission that a coherent reading of the scheme created by the two pieces of legislation leads to the conclusion that the NTCAT has power to strike down a determination made by the Minister with responsibility for social housing of the rent payable for social housing dwellings.
In arriving at that result, it is unnecessary for s 23 of the Housing Act to provide expressly that a determination made under that provision overrides or is not amenable to a determination of the NTCAT pursuant to s 42 of the RTA. Section 42 of the RTA is concerned with the modification of tenancy agreements in circumstances where the rent payable is excessive having regard to market considerations. That is a very different field of operation to s 23 of the Housing Act, which provides for the fixing of rents for social housing schemes. Such a determination is necessarily based upon a multiplicity of considerations which are not amenable to a form of merits review by a quasi-judicial tribunal in the same manner as a market-based residential leasing arrangement would be. That anomaly is reflected in the fact that the declarations and orders sought by the applicants included that the rent determined by the responsible Minister is excessive and that the rent to be paid should reflect the ‘market value’ of the premises. The provision of social housing is the antithesis of a market-based system.
The fact that the power in s 42(1) of the RTA is conferred in relation to ‘the rent payable under a tenancy agreement’ is not determinative of the issue. The meaning and effect of the word ‘under’ must be determined having regard to the particular legislative scheme in question and the subject matter of the inquiry. Depending upon the context, ‘by’ and ‘under’ are commonly used to mean ‘in accordance with’, ‘pursuant to’ or ‘covered by’.[108] When considered in that light, the contrast sought to be drawn by the appellants between ‘rent payable under a tenancy agreement’ and ‘rent payable in accordance with a tenancy agreement’ is of little moment.
Section 42 of the RTA is directed to the level or amount of the rent payable. It is not primarily concerned with the fact that rent is payable or the source of the legally enforceable obligation to pay that rent. To say that the tenancy agreement is the source of the legal obligation does not lead inexorably to the conclusion that s 42 of the RTA has application to rents determined by the Minister pursuant to s 23 of the Housing Act, or that such a determination does not itself give rise to a legal obligation on the part of a person occupying premises subject to such a determination. The seminal source of the obligation is the determination rather than the tenancy agreement, and s 23(4) of the Housing Act provides that rent in accordance with that determination is to be paid despite anything to the contrary in (or under) the tenancy agreement. It is not to the point that in the absence of a declaration under s 23 of the Housing Act the source of the obligation to pay rent will lie elsewhere.
That conclusion receives some textual support from ss 42(2) and (5) of the RTA. Those provisions confer procedural rights only on a ‘landlord’ in relation to an application and order made under s 42(1) of the RTA. For the reasons already given in the context of the appeal in proceeding AP 13/22 (2237775), it is the Minister who makes the determination of rent under s 23(1) of the Housing Act but it is the Chief Executive Officer (Housing) who is the ‘landlord’ in the relevant sense under the legislative scheme. That tells against any construction which would bring determinations by the Minister within the ambit of s 42 of the RTA while denying the procedural rights otherwise available under the provision.
The fact that a bare declaration under s 42(4) of the RTA need not be coupled with an order specifying the rent payable does not lead to the conclusion that there is no conflict between the power reposited in the NTCAT to declare rent excessive and the singular power of the responsible Minister to fix the rent to be paid for a dwelling or a class of dwelling in a social housing scheme. Even allowing for the ordinary presumption that the Crown will act consistently with a declaration without need for a coercive order, the effect of the declaration is still to override the Minister’s determination. That inconsistency is not obviated by the fact that the NTCAT has power to make an order varying a tenancy agreement to reduce the rent payable under that agreement. In any event, whatever speculation there might be about the NTCAT making a declaration and adjourning the proceedings to allow the parties opportunity to reach agreement as to the appropriate rent, the reality is that in the absence of an order a declaration by itself does not specify how much the rent should be in a manner which would allow the parties to give effect to or comply with the NTCAT determination. It is for that very reason that the appellants’ prayer for relief in the proceedings before the NTCAT included an application for an order specifying the rent payable.
There is a particular aspect of the potential conflict between a declaration and order pursuant to s 42 of the RTA and the operation of a determination under s 23 of the Housing Act. Until 2018, s 42 (6) of the RTA provided that it was an offence for a landlord to ask for or receive rent exceeding the amount fixed by an order made under s 42(1). That provision was repealed with effect from 1 July 2018 on the basis that s 84B of the Northern Territory Civil and Administrative Tribunal Act 2014 already created the offence of failing to comply with an order of the NTCAT. That gives rise to a situation in which in the face of an order under s 46(4) of the RTA having application to a determination under s 23 of the Housing Act, the Chief Executive Officer (Housing) would be placed in the invidious position of having to ignore the direction of the responsible Minister in order to avoid criminal liability. It would seem unlikely that the legislature intended the scheme to have that operation.
The review by the NTCAT of rent payable for social housing premises pursuant to a Ministerial determination would, contrary to the appellants’ submissions, permit something in the nature of a merits review of the Minister’s determination. In order to make a declaration in those terms, the NTCAT would need to form the opinion on the basis of evidence that the rent is excessive having regard to the general level of rents for comparable premises in the same or similar localities and the cost of services provided by the landlord in connection with the tenancy agreement; or because the level of services provided under the tenancy agreement has been reduced to a significant extent having regard to the cost of the services provided in connection with the tenancy agreement. It would be impossible in the present circumstances to make either of those determinations without gainsaying the Minister’s determination as to the rent properly payable for social housing premises, and the policy basis on which that rent is properly determined, including in remote communities. That reality is not altered by the fact that the NTCAT is not ‘standing in the shoes of the decision-maker’ in terms of making the same type of decision, or that the NTCAT determination is made in respect of an individual dwelling rather than a class of dwellings.
Contrary to the appellants’ submissions, the exercise of the two powers are quite incompatible. Rather than providing a ‘protective backstop’ to the operation of a determination under s 23 of the Housing Act, the application of s 42 of the RTA to such determinations would bring into play limitations and market-based considerations which do not find voice in the text of s 23 of the Housing Act. There is, in any event, no correlation between the general level of rents for comparable premises in the same or similar localities and a social housing tenant’s financial circumstances. To take the present circumstances by way of example, a declaration on that basis could only be made in the application of a factor principle approach, which would undermine the operational cost model reflected in the Minister’s determination. Similarly, any application on the basis that the level of services provided under the tenancy agreement had been reduced could only be directed to the issue of non-compliance by the landlord in relation to habitability obligations. The question of non-compliance by landlord is a matter which is addressed under quite different mechanisms of the RTA, including the power to order compensation for breach, rather than one which is properly addressed under s 42 of the RTA.
In this matter, leave to appeal should be granted and the appeal dismissed.
Disposition
For these reasons, the appeal in proceeding AP 13/22 (2237775) should be dismissed, and the same consequence follows in relation to the application for judicial review of the Fourth Determination the subject of proceeding 2023-01110-SC. In proceeding 2023-01346-SC we have determined that leave to appeal should be granted and the appeal dismissed. We will hear the parties in relation to the precise form of the orders which should be made consequent upon those findings, and as to costs.
________________________
[1] Badari & Ors v Minister for Territory Families and Urban Housing & Anor [2022] NTSC 83.
[2] Badari & Ors v Minister for Territory Families and Urban Housing & Anor [2022] NTSC 83 at [4]-[17].
[3] Badari & Ors v Minister for Territory Families and Urban Housing & Anor [2022] NTSC 83 at [19]-[21].
[4] Badari & Ors v Minister for Territory Families and Urban Housing & Anor [2022] NTSC 83 at [23]-[25].
[5] Badari & Ors v Minister for Territory Families and Urban Housing & Anor [2022] NTSC 83 at [26]-[27], [29].
[6] Badari & Ors v Minister for Territory Families and Urban Housing & Anor [2022] NTSC 83 at [32].
[7] Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No 1) (1991) 32 FCR 219 at [239]; Kioa v West (1985) 159 CLR 550 at [584]; Castle v Director-General, State Emergency Services [2008] NSWCA 231 at [6]-[9].
[8] Bread Manufacturers of New South Wales v Evans (1981) 180 CLR 404; Re Gosling (1943) 43 SR (NSW) 312; Bates v Lord Hailsham of St Marylebone [1972] 1 WLR 1373; Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 at 637.
[9] Badari & Ors v Minister for Territory Families and Urban Housing & Anor [2022] NTSC 83 at [39]-[49].
[10] Badari & Ors v Minister for Territory Families and Urban Housing & Anor [2022] NTSC 83 at [51]-[62].
[11] Notice of Appeal, 7 December 2022.
[12]Appellants’ Outline of Submissions, 9 October 2023, [73].
[13] Appellants Outline of Submissions in Chief dated 9 October 2023, [8]-[14].
[14]The appellants say that construction receives support from the legislative history, in that immediately prior to the introduction of the RTA, s 34 of the Housing Act provided that 'Part VII of the Tenancy Act shall apply to and in relation to the repossession by the Commission of premises let under this Act'. That limitation on application is said to evince a legislative intention that the provision as subsequently amended gave the RTA primacy without limitation unless expressed elsewhere in the Housing Act. See Appellants Outline of Submissions in Chief dated 9 October 2023, [10].
[15] Badari & Ors v Minister for Territory Families and Urban Housing & Anor [2022] NTSC 83 at [29].
[16]Commissioner of Stamp Duties v Trustee Co Ltd (1987) 9 NSWLR 719 at 722 per Kirby P.
[17]As is discussed later in these Reasons, the respondents dispute that characterisation of the relevant finding by the trial judge.
[18]RTA, s 19(4); and RT Regulations, r 10
[19] The appellants' submission to that effect is said to read the second sentence of paragraph [29] of the reasons of the trial judge out of context.
[20] Badari & Ors v Minister for Territory Families and Urban Housing & Anor [2022] NTSC 83 at [21]-[22].
[21] Badari & Ors v Minister for Territory Families and Urban Housing & Anor [2022] NTSC 83 at [21]-[22].
[22] Badari & Ors v Minister for Territory Families and Urban Housing & Anor [2022] NTSC 83 at [29].
[23] Badari & Ors v Minister for Territory Families and Urban Housing & Anor [2022] NTSC 83 at [21].
[24] AB 255.
[25] Beckingham v Browne [2021] VSCA 362.
[26]Jack v Chief Executive Officer (Housing) (No 2) [2021] NTSC 81 at [16]-[63].
[27]Jack v Chief Executive Officer (Housing) (No 2) [2021] NTSC 81 at [35]-[36].
[28]Jack v Chief Executive Officer (Housing) (No 2) [2021] NTSC 81 at [38]-[39].
[29]Housing Act, s 7.
[30]Housing Act, s 15.
[31]Housing Act, s 16(2).
[32]Housing Act, s 16(2)(h).
[33]Housing Act, s 17.
[34]Housing Act, s 20A.
[35]Housing Act, s 21.
[36]Jack v Chief Executive Officer (Housing) (No 2) [2021] NTSC 81 at [40]-[42].
[37]Jack v Chief Executive Officer (Housing) (No 2) [2021] NTSC 81 at [43]-[44].
[38]Section 18 of the Interpretation Act 1978 (NT) also provides that definitions in an Act apply except so far as the context or subject-matter otherwise indicates or requires.
[39]Deputy Commissioner of Taxation (NSW) v Mutton (1988) 12 NSWLR 104 at 108.
[40]Kennedy v Anti-Discrimination Commission of the Northern Territory (2006) 226 FLR 34 at [29].
[41]See, for example, NT Power Generation Pty Ltd v Power &Water Authority (2002) 122 FCR 399 at [126]; Aboriginal Areas Protection Authority v Director of National Parks [2022] NTSCFC at [124].
[42]See, for example, R v Kearney; Ex parte Japanangka (1984) 158 CLR 395, 405, 411.
[43] The status of self-governing territories as separate bodies politic has been confirmed: see, for example, R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170; Jennings Constructions v Burgundy Royale Investments (1987) 162 CLR 153; Svikart v Stewart (1994) 181 CLR 548; Traut v Rogers (1984) 70 FLR 17, 19-20; Northern Territory v Skywest Airlines (1987) 90 FLR 270; Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 25 FCR 345; Waters v Acting Administrator for the Northern Territory (1993) 46 FCR 462; Wake and Gondarra v Northern Territory (1996) 124 FLR 298.
[44]Svikart v Stewart (1994) 181 CLR 548, 562, 574; Capital Duplicators v Australian Capital Territory (1992) 177 CLR 248, 265-266, 282, 284; Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322, 352-353; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569, [171], [179].
[45]Jack v Chief Executive Officer (Housing) (No 2) [2021] NTSC 81 at [49]-[59].
[46] Badari & Ors v Minister for Territory Families and Urban Housing & Anor [2022] NTSC 83 at [17], [25].
[47] Appeal Book (AB) 264-265; Badari & Ors v Minister for Territory Families and Urban Housing & Anor [2022] NTSC 83 at [15].
[48] AB 420.
[49] Badari & Ors v Minister for Territory Families and Urban Housing & Anor [2022] NTSC 83 at [16].
[50] Appeal Book (AB) to 67-270, 422-432, 449-453, 735-739; Badari & Ors v Minister for Territory Families and Urban Housing & Anor [2022] NTSC 83 at [16]-[17].
[51] AB 272.
[52] Badari & Ors v Minister for Territory Families and Urban Housing & Anor [2022] NTSC 83 at [46]-[48].
[53] Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 at [74]; Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at [75]; State of South Australia v Slipper (2004) 136 FCR 259 at [93]; Nathanson v Minister for Home Affairs (2022) 96 ALJR 737 at [51], [81], [88]; CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76 at [16].
[54] AB 793; AB 857.
[55] See, for example, Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44 at [25]; Nathanson v Minister for Home Affairs (2022) 96 ALJR 737 at [51].
[56] Comcare v Post Logistics Australasia Pty Ltd (2012) 207 FCR 178 at [99].
[57] Bread Manufacturers of New South Wales v Evans (1981) 180 CLR 404.
[58] Bread Manufacturers of New South Wales v Evans (1981) 180 CLR 404 at 414-415.
[59] Kioa v West (1985) 159 CLR 550 at 584.
[60] Kioa v West (1985) 159 CLR 550 at 586.
[61] Jarratt v Commissioner of Police (NSW) (2005) 224 CLR 44 at [25].
[62] South Australia v O’Shea (1987) 163 CLR 378.
[63] South Australia v O’Shea (1987) 163 CLR 378 at 411.
[64] Salemi v MacKellar (No 2) (1977) 137 CLR 396 at 452.
[65] Kioa v West (1985) 159 CLR 550 at 620.
[66] Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No 1) (1991) 32 FCR 219 at 239.
[67] Medway v Minister for Planning (1993) 30 NSWLR 646.
[68] Medway v Minister for Planning (1993) 30 NSWLR 646 at 652-653.
[69] Brisbane City Council v Leahy [2023] QCA 133.
[70] Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at [15].
[71] Brisbane City Council v Leahy [2023] QCA 133 at [33]-[34].
[72] Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 at [62].
[73] Greyhound Racing NSW v Cessnock and District Agricultural Association [2006] NSWCA 333 at [73].
[74] Brisbane City Council v Leahy [2023] QCA 133 at [47].
[75] Gardner v Dairy Industry Authority of New South Wales [1977] 1 NSWLR 505.
[76] Gardner v Dairy Industry Authority of New South Wales [1977] 1 NSWLR 505 at 519. It may be noted in this respect that the manner in which the relevant power was exercised in the circumstances considered Hemmes Trading Pty Ltd v State of New South Wales [2009] NSWSC 1303 was such that it was properly characterised as directed to individuals rather than to a class.
[77] Brisbane City Council v Leahy [2023] QCA 133 at [40], [51].
[78] Medway v Minister for Planning (1993) 30 NSWLR 646 at 652-653.
[79] Castle v Director-General State Emergency Service [2008] NSWCA 231.
[80] Castle v Director-General State Emergency Service [2008] NSWCA 231 at [6].
[81] Re Minister for Immigration and Multicultural Affairs; Ex parte MIAH (2001) 206 CLR 57 at [29]; cf Waqa v Technical and Further Education Commission [2009] NSWCA 213 at [49].
[82] Castle v Director-General State Emergency Service [2008] NSWCA 231 at [9].
[83] Day v Harness Racing New South Wales (2014) 88 NSWLR 594 at [106]-[107].
[84] AB 25.
[85] Section 7 of the RTA obliges the Minister administering that Act to consult with potentially affected persons before exempting certain classes of tenancy agreements from all or any of the provisions of the RTA or RT Regulations. To the extent the appellant submits that the responsible Minister was able, and in fact obliged, to afford procedural fairness in the same manner, those obligations arise under a different statute and attach to a different Minister. Had the legislature intended a similar procedural requirement should apply to s 23(1) of the Housing Act, similar provision could have been made.
[86] Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438.
[87] Badari & Ors v Minister for Territory Families and Urban Housing & Anor [2022] NTSC 83 at [49].
[88]Minister for Immigration v SZVFW (2018) 264 CLR 541 at [81]-[82]. See also Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [105]; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [2]; Stran v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 233 at [119].
[89]Minister for Immigration v SZVFW (2018) 264 CLR 541 at [52]; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [108]-[113].
[90]See, for example, Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 21 at [33]-[35]; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [38]; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [133]-[136]; Wei v Minister for Immigration and Border Protection (2015) 257 CLR 22 at [33].
[91]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [76].
[92]Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [11].
[93]BMV16 v Minister for Home Affairs [2018] FCAFC 90 at [79]; Minister for Home Affairs v DUA16 (2020) 271 CLR 550 at [26].
[94] Badari & Ors v Minister for Territory Families and Urban Housing & Anor [2022] NTSC 83 at [57].
[95] AB267 [14]-[15].
[96]Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [28], [56].
[97]Housing Act, s 37(2)(c).
[98]AB 303.
[99]AB 313, AB 317 et seq; AB 322; AB 325; AB 331; AB 336-337; AB 343-347.
[100]AB 363-377.
[101]See, for example, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [108].
[102]AB466-468.
[103]See, for example, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at [113].
[104]Badari & Galaminda v Chief Executive Officer (Housing) [2023] NTCAT 6.
[105]The definition has since been amended to include 'a social housing tenancy' or a tenancy granted under the Housing Act in relation to premises owned or leased by the Chief Executive Officer (Housing) or under which the Chief Executive Officer (Housing) is the landlord. However, that subsequent amendment does not bear upon the position adopted by the parties for the purpose of the application to the NTCAT or this application for leave to appeal.
[106]Cf HN v NTCAT & Ors [2020] NTSC 48 at [9]; Young & Conway v Chief Executive Officer (Housing) (2020) 355 FLR 290 at [8].
[107] See Grocon Constructors (Victoria) Pty Ltd v APN DF2 Project 2 Pty Ltd [2015] VSCA 190 at [117]-[119]; R v Tkacz (2001) 25 WAR 77 at [25]; Chan v Cresdon Pty Ltd (1989) 168 CLR 242 at 249.
[108] R v Tkacz (2001) 25 WAR 77 at [23]-[24].
Key Legal Topics
Areas of Law
-
Property Law
Legal Concepts
-
Statutory Interpretation
-
Unconscionable Conduct
-
Breach of Contract
3
61
0