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

FEDERAL COURT OF AUSTRALIA
Shaw v Minister for Families, Housing, Community Services and Indigenous Affairs [2009] FCA 1397
ADMINISTRATIVE LAW – s 47 Northern Territory National Emergency Response Act 2007 (Cth) – whether the power of the Commonwealth Minister to give a notice under s 47 to compulsorily acquire prescribed areas is conditioned upon affording procedural fairness to the residents of the land the subject of the notice when they occupy parts of the land under tenancy agreements with the principal lessor – whether the Commonwealth Minister had afforded procedural fairness in the circumstances

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

CORPORATIONS – corporations incorporated under Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) – whether the corporations will breach their rule books, contractual duties owed to members and whether the Executive Committees will breach their fiduciary duties owed to members by entering into a transaction under which the land leased by the corporations will be subleased to the Commonwealth for a period of 40 years (the proposed subleases) – whether execution of the proposed subleases is contrary to the interests of the corporations – question of a fair reading of the rule books of the corporations – whether, upon a fair reading of their rule books, it is an integral object of the corporations that they continue to have direct control and management of particular lands leased by them in perpetuity, so that they may not enter into the proposed subleases
PRACTICE AND PROCEDURE – representative proceedings – whether expedited proceedings would provide an efficient and effective means of dealing with the claims of group members – whether it would be in the interests of justice to order that proceedings no longer continue as representative proceedings

LANDLORD AND TENANT – tenancy agreements granted other than for specific fixed term – whether periodic tenancies
Northern Territory National Emergency Response Act 2007 (Cth) ss 4(3), 43, 44, 45, 46, 47, 48, 49, 50, 60, 132, cl 69 Pt 4 Sch 1
Federal Court of Australia Act 1976 (Cth) ss 33N, 33X(2)
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 6(1)(a), 16(2)
Judiciary Act 1903 (Cth) ss 39B(1), 39B(1A)(c)
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ss 20B, 20C, 20CA
Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) ss 42.1, 60.10(2), 69.1, 96.1, 99.5, 104.1, 104.5, 166.1, 166.5, 166.10, 274.1
Racial Discrimination Act 1975 (Cth) s 8
Corporations Act 2001 (Cth) s 125
Special Purposes Act (NT) ss 3, 4(1), 6(1), 9, 9A, 23(1)(a), 28
Associations Act (NT) ss 11, 54, 109, 110
Crown Lands Act (NT) ss 9, 38, 46
Mpwetyerre Aboriginal Corporation v Alice Springs Town Council (1996) 132 FLR 1 cited
Tangentyere Council Inc v Commissioner of Taxes (NT) (1990) 99 FLR 363 cited
Shaw v Minister for Families, Housing, Community Services and Indigenous Affairs [2009] FCA 844 cited
South Australia v Slipper (2004) 136 FCR 259 cited
Kioa v West (1985) 159 CLR 550 cited
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 cited
Salemi v MacKellar (No 2) (1997) 137 CLR 396 cited
Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 cited
Annetts v McCann (1990) 170 CLR 596 cited
Kioa v West (1985) 159 CLR 550 cited
Jarratt v Commissioner of Police for New South Wales (2005) 224 CLR 44 cited
Gerhardy v Brown (1985) 159 CLR 70 followed
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 cited
Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 cited
Stewart v Goldman & Co Pty Ltd (1947) 64 WN (NSW) 155 cited
Rolled Steel Products (Holdings) Ltd v British Steel Corporation [1986] 1 Ch 246 cited
Cotman v Brougham [1918] AC 514 cited
Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146 cited
HA Stephenson & Son Ltd (In Liquidation) v Gillanders Arbuthnot & Co (1931) 45 CLR 476 applied
In Re K.L. Tractors Ltd (1961) 106 CLR 318 cited
ANZ Executors & Trustee Co Ltd v Qintex Australia Ltd (receiver and managers appointed) (1990) 8 ACLC 980 cited
Gambotto v WCP Limited (1995) 182 CLR 432 discussed
Allen v Gold Reefs of West Africa Ltd [1900] 1 Ch 656 discussed
Peters’ American Delicacy Co Ltd v Heath (1939) 61 CLR 457 cited
New South Wales Rugby League v Wayde (1985) 1 NSWLR 86 discussed
Wayde v New South Wales Rugby League Inc (1985) 180 CLR 459 discussed
Millar v Houghton Table Tennis & Sports Club Inc [2003] SASC 1 cited
Szencorp Pty Ltd v Clean Energy Council Limited (2009) 69 ACSR 365 discussed
Pettit v South Australian Harness Racing Club Inc (2006) 95 SASR 543 cited
Harlowe’s Nominees Pty Ltd v Woodside (Lakes Entrance) Oil Co N.L. (1968) 121 CLR 483 cited
BARBARA RACHEL SHAW v MINISTER FOR FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
VID 547 of 2009
BARBARA SHAW, GEORGE ROBERTSON JAMPITJINPA, GWEN GILLEN, WARREN TONKIN, MELISSA BROWN, MARLENE HAYES, KEVIN WIRRI, MAUREEN WILLIAMS, RACHEL JURRA, ROSEMARY RUBUNTJA, PAMELA LYNCH, CHERYL MCMILLAN, JANICE PALMER v MINISTER FOR FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS, EXECUTIVE DIRECTOR OF TOWNSHIP LEASING, NORTHERN TERRITORY OF AUSTRALIA and ILPARPA ABORIGINAL CORPORATION, KARNTE ABORIGINAL CORPORATION, ANTHEPE HOUSING ASSOCIATION INC, ILYPERENYE ASSOCIATION INC, INARLENGE COMMUNITY INC, MPWETYERRE ABORIGINAL CORPORATION, YARRENYTY ARLTERE ASSOCIATION INC, AKNGWERTNARRE ASSOCIATION INC, ANTHELK EWLPAYE ASSOCIATION INC, APER-ALWERRKNGE ASSOCIATION INC, MOUNT NANCY HOUSING ASSOCIATION INC, ILPERLE TYATHE ASSOCIATION INC, EWYENPER-ATWATYE ASSOCIATION INC
VID 558 of 2009
MANSFIELD J
26 NOVEMBER 2009
ADELAIDE (HEARD IN MELBOURNE)

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

VID 547 of 2009

BETWEEN:
BARBARA RACHEL SHAW
Applicant

AND:
MINISTER FOR FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent

JUDGE: MANSFIELD J

DATE OF ORDER: 26 NOVEMBER 2009

WHERE MADE: ADELAIDE (HEARD IN MELBOURNE)
THE COURT ORDERS THAT:
1. The application be dismissed.
2.In the event that the respondent applies for costs of the application, the respondent do file and serve written submissions as to costs within 14 days of this date and the applicant do file and serve written submissions in opposition to the application for costs within 14 days of service of the respondent’s submissions, to the intent that the Court will determine any application for costs on the written submissions of the parties.
3.There be liberty to either party to apply within 21 days of this date to seek to make oral submissions on any issue as to the costs of the application.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

VID 558 of 2009

BETWEEN:

BARBARA SHAW, GEORGE ROBERTSON JAMPITJINPA, GWEN GILLEN, WARREN TONKIN, MELISSA BROWN, MARLENE HAYES, KEVIN WIRRI, MAUREEN WILLIAMS, RACHEL JURRA, ROSEMARY RUBUNTJA, PAMELA LYNCH, CHERYL MCMILLAN, JANICE PALMER
Applicants

AND:

MINISTER FOR FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
First Respondent

EXECUTIVE DIRECTOR OF TOWNSHIP LEASING
Second Respondent

NORTHERN TERRITORY OF AUSTRALIA
Third Respondent

ILPARPA ABORIGINAL CORPORATION, KARNTE ABORIGINAL CORPORATION, ANTHEPE HOUSING ASSOCIATION INC, ILYPERENYE ASSOCIATION INC, INARLENGE COMMUNITY INC, MPWETYERRE ABORIGINAL CORPORATION, YARRENYTY ARLTERE ASSOCIATION INC, AKNGWERTNARRE ASSOCIATION INC, ANTHELK EWLPAYE ASSOCIATION INC, APER-ALWERRKNGE ASSOCIATION INC, MOUNT NANCY HOUSING ASSOCIATION INC, ILPERLE TYATHE ASSOCIATION INC, EWYENPER-ATWATYE ASSOCIATION INC
Fourth Respondents

JUDGE:

MANSFIELD J

DATE OF ORDER:

26 NOVEMBER 2009

WHERE MADE:

ADELAIDE (HEARD IN MELBOURNE)

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

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

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NORTHERN TERRITORY DISTRICT REGISTRY

GENERAL DIVISION

VID 547 of 2009

BETWEEN:
BARBARA RACHEL SHAW
Applicant

AND: MINISTER FOR FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
VID 558 of 2009

BETWEEN:

BARBARA SHAW, GEORGE ROBERTSON JAMPITJINPA, GWEN GILLEN, WARREN TONKIN, MELISSA BROWN, MARLENE HAYES, KEVIN WIRRI, MAUREEN WILLIAMS, RACHEL JURRA, ROSEMARY RUBUNTJA, PAMELA LYNCH, CHERYL MCMILLAN, JANICE PALMER
Applicants

AND:

MINISTER FOR FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
First Respondent

EXECUTIVE DIRECTOR OF TOWNSHIP LEASING
Second Respondent

NORTHERN TERRITORY OF AUSTRALIA
Third Respondent

ILPARPA ABORIGINAL CORPORATION, KARNTE ABORIGINAL CORPORATION, ANTHEPE HOUSING ASSOCIATION, ILYPERENYE ASSOCIATION INC, INARLENGE COMMUNITY INC, MPWETYERRE ABORIGINAL CORPORATION, YARRENYTY ARLTERE ASSOCIATION INC, AKNGWERTNARRE ASSOCIATION INC, ANTHELK EWLPAYE ASSOCIATION INC, APER-ALWERRKNGE ASSOCIATION INC, MOUNT NANCY HOUSING ASSOCIATION INC, ILPERLE TYATHE ASSOCIATION INC, EWYENPER-ATWATYE ASSOCIATION INC

Fourth Respondents

JUDGE:

MANSFIELD J

DATE OF ORDER:

26 NOVEMBER 2009

WHERE MADE:

ADELAIDE (HEARD IN MELBOURNE)

REASONS FOR JUDGMENT
THE NATURE OF THE TWO PROCEEDINGS

These two proceedings arise out of actions of the Commonwealth Government and the Northern Territory Government in their implementation of the respective government policies in relation to the land colloquially known as the Alice Springs town camps.
They arise out of concerns about the means by which the Commonwealth wishes to improve the living conditions in the Alice Springs town camps. As long ago as 5 May 2006 the then Commonwealth Minister for Aboriginal Affairs and the then Northern Territory Chief Minister, announced a joint $30 million (subsequently in 2007 increased to $80 million) commitment to improve living conditions in those town camps.
On 17 August 2007, the Northern Territory National Emergency Response Act 2007 (Cth) (the NTNER Act) came into force. Pursuant to that Act, in September 2007, the Alice Springs town camp areas were declared “prescribed areas”.
On 17 September 2007, the Commonwealth and the Northern Territory entered into a “Memorandum of Understanding between the Commonwealth Government and the Northern Territory Government: Indigenous Housing, Accommodation and Related Services September 2007” (the MOU).
That enabled, and led to, the Strategic Indigenous Housing and Infrastructure Program (the SIHIP), which was subsequently subsumed into the National Partnership Agreement on Remote Indigenous Housing (the National Partnership Agreement) entered into between the Commonwealth, the States and the Northern Territory. In June 2008, substantial funds were proposed to be made available from the SIHIP for the development of the Alice Springs town camps. It was a condition of the availability of those funds that the Commonwealth be granted subleases over the town camp areas for a minimum period of 40 years, to obtain appropriate security for that investment. Extensive negotiations then followed primarily between the Tangentyere Council Inc acting as agent for the Housing Associations (lessees in perpetuity of the town camps) and the Commonwealth.
In May 2009, the commitment under the SIHIP to improving housing and infrastructure on the Alice Springs town camps was increased to $100 million.
By 24 May 2009, it was apparent that negotiations on the proposed 40 year subleases had stalled. The prospect of compulsorily acquiring the Alice Springs town camps land under s 47 of the NTNER Act was ventilated.
That apparently prompted a renewal of negotiations about the proposed 40 year subleases. Ultimately, on 29 July 2009 16 Housing Associations (the fourth respondents) agreed to sign the proposed 40 year subleases.
The applicants in both proceedings are not merely interested in driving a hard bargain. Fundamentally, their concern is that the Alice Springs town camps are effectively owned by Aboriginal people or their entities, and that they should not, and cannot, alienate their interests in that land either absolutely or by a 40 year sublease, so that they are giving away control of their land.
The general history of the town camps is set out in the judgment of Kearney J in Mpwetyerre Aboriginal Corporation v Alice Springs Town Council (1996) 132 FLR 1 at 4-5, and by Angel J in Tangentyere Council Inc v Commissioner of Taxes (NT) (1990) 99 FLR 363 at 366-70. It is not necessary to espouse fully the accuracy of those descriptions. The first and second respondents do not accept that they are fully accurate. It is sufficient to accept that the applicants in each proceeding see their tenure in the Alice Springs town camps as of great significance, and as the product of the claim for land rights by Aboriginal people.
The applicant in the first proceeding (VID 547/2009), Barbara Shaw (Ms Shaw), is a resident of one of the town camps under a “permanent tenancy agreement” with the Housing Association which leases the town camp land from the Northern Territory Minister for Lands and Housing. She is concerned about the proposed decision by the Commonwealth Minister for Families, Housing, Community Services and Indigenous Affairs (the Minister) to give a notice pursuant to s 47(1) of the NTNER Act to the Northern Territory in relation to the Alice Springs town camps, including the town camp of which she is a resident, which notice would have the effect of the Commonwealth compulsorily acquiring the town camps land (the proposed decision). I shall call that proceeding “the Section 47 proceeding”.
Ms Shaw is concerned that the Minister intends to make the proposed decision without giving the residents in the Alice Springs town camps “reasonable, proper or appropriate” notice of the proposed decision, or affording them the opportunity to be heard in respect of how their rights and interests may be affected by the proposed decision. Ms Shaw claims that a breach of the rules of procedural fairness has occurred or is likely to occur in connection with the conduct of the Minister leading up to the proposed decision. She says that the proposed decision, if implemented, would remove her rights to enjoy the benefits of her tenancy agreement, and remove her legal right to continue to live in her house.
The Section 47 proceeding was commenced as a representative party proceeding pursuant to the provisions of Part IVA of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). For the reasons set out below, I ordered that the Section 47 proceeding no longer continue as a representative party proceeding. That does not diminish the significance of Ms Shaw’s claim or of her concerns.
Ms Shaw relies upon the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act), and ss 39B(1) and (1A)(c) of the Judiciary Act 1903 (Cth) to support her action. If the Minister makes a decision under s 47(1) of the NTNER Act, it will be a decision to which the ADJR Act applies. Section 6(1) of the ADJR Act allows a person aggrieved by a person proposing to engage in conduct for the purpose of making a decision to apply to this Court for an order of review in respect of the conduct on several grounds, including the ground relied on in this instance, namely, that a breach of the rules of natural justice has occurred, is occurring or is likely to occur, in connection with the conduct: s 6(1)(a) ADJR Act.
Ms Shaw seeks orders pursuant to s 16(2) of the ADJR Act, and further or alternatively pursuant to ss 39B(1) and (1A)(c) of the Judiciary Act 1903 (Cth), directing the Minister to refrain from making the proposed decision until such time as the Minister has given “reasonable, proper and appropriate notice of the proposed decision to each of the group members and afforded each of them the opportunity to be heard in respect of how their rights and interests may be affected by the proposed decision” or alternatively, an order directing the Minister “personally to refrain from making the proposed decision”, as well as now a more refined declaratory order.
In essence, Ms Shaw seeks to have determined the issue of whether the power of the Minister to give a notice under s 47(1) of the NTNER Act is conditioned upon affording procedural fairness to the residents of the Alice Springs town camps, and specifically, the giving of “reasonable, proper and appropriate” notice to the occupants of land the subject of the notice.
She also claims that the Minister up to the time of the Section 47 proceeding has failed to give reasonable, proper and appropriate notice to her of the proposed decision, or to give her the opportunity to be heard in respect of how her rights and interests may be affected by the proposed decision.
Other issues earlier raised by Ms Shaw are no longer pursued, in part because in any event the Minister proposes to give her, and other residents of the town camps, further opportunity to be heard on those matters.
The applicants in the second proceeding (VID 558/2009) (the Residents) are residents of a number of the Alice Springs town camps. They include Ms Shaw. Each is a member of a Housing Association, and lives on one of the town camps under a tenancy agreement with that Housing Association.
The fourth respondents, the Housing Associations, are the various incorporated bodies which have a leasehold interest in town camps. It is over that land that each of the Housing Associations proposes to grant to the Executive Director of Township Leasing (the Executive Director) a 40 year sublease relevantly in common terms. The lawfulness of the proposed subleases is challenged. I shall call that proceeding “the Sublease proceeding”.
The Residents allege that the Minister has required each of the Housing Associations to grant, and the Housing Associations have agreed to grant, 40 year subleases of the Alice Springs town camps to the Executive Director for a nominal figure. The Residents further allege that, if the Housing Associations do not enter into the subleases, the Minister has threatened to give a notice to the Northern Territory under s 47 of the NTNER Act, effectively compulsorily to acquire the Alice Springs town camps, and to vest the land in the Commonwealth free and discharged of all rights and interests in the land including all rights of the Residents to live in the houses they occupy on the land under their tenancy agreements. The Residents allege further that the Minister has given, or intends to give, a notice to agree to the subleases under s 20CA(3) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the ALR Act).

The Residents now claim that the proposed 40 year subleases are contrary to the interests of the members of the Housing Associations; that by giving effect to the subleases the Housing Associations will be breaching their Constitutions or their Rule Books and their Executive Committees will be breaching their fiduciary duties and contractual duties owed to the members and the Residents; and that the Minister by requiring the Housing Associations to enter into the subleases will engage in the tort of procuring or inducing those breaches. Some earlier claims were not pursued at the hearing.
The Sublease proceeding was also commenced as a representative party proceeding pursuant to the provisions of Part IVA of the FCA Act. The group members to whom the Sublease proceeding relates are occupants of houses in the Alice Springs town camps, who have each entered into a tenancy agreement with a Housing Association. If the proposed 40 year subleases are entered into, they claim that the tenancy agreements under which the Residents and group members occupy their present homes in the Alice Springs town camps will be terminated and extinguished. More fundamentally, they claim that the Housing Associations in the circumstances cannot agree to enter, and cannot enter, into the 40 year subleases because that would effectively alienate them from their interest in the town camps land.
For reasons set out below, I ordered that the Sublease proceeding no longer continue as a representative party proceeding. That ruling does not diminish the significance of the Residents’ claims or their concerns.
THE PARTIES
It is convenient first to describe the parties in both the Section 47 proceeding and the Sublease proceeding.
All the Residents, including Ms Shaw, are members of one of the Housing Associations. All live in one of the Alice Springs town camps. Each has entered into a tenancy agreement with the Housing Association holding the lease over the relevant town camp, under which the Residents pay rent to the Housing Associations and pay bills such as electricity, telephone and excess water. The terms of the tenancy agreements is a matter to which it will be necessary to refer later in these reasons.
There are 18 Alice Springs town camps that are controlled by 15 different Housing Associations.
Each of the Housing Associations is an incorporated body. Three are incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (the CATSI Act), namely, Ilparpa Aboriginal Corporation, Karnte Aboriginal Corporation and Mpwetyerre Aboriginal Corporation. The remainder are incorporated under the Associations Act (NT). The Housing Associations have perpetual succession pursuant to the terms of the Acts under which they were incorporated: s 11 Associations Act (NT) and s 42.1 CATSI Act. The Housing Associations have each been granted either a Special Purposes Lease or a Crown Lease in perpetuity over the particular Alice Springs town camp that it respectively manages by the third respondent, the Northern Territory. Those leases were granted either under the Special Purposes Leases Act (NT) (the SPL Act) or the Crown Lands Act (NT) (the CL Act). It will be necessary to refer to the Constitutions, Rule Books, and the Leases of each Housing Association later in these reasons.
Three of the town camps are not involved in the Sublease proceeding. They are the Irklancha Atwacha town camp, which is under the control of a Housing Association independent of the Tangentyere Council Inc, and the Whitegate and Namatjira town camps that are “unofficial” and operate on Northern Territory Crown land.
Ms Shaw is a member of the Mount Nancy Housing Association Inc. The Mount Nancy Housing Association Inc was granted a Special Purposes Lease on 23 August 1976 over the whole of the land described in Certificate of Title Volume 622 Folio 358 being Lot 5135 Town of Alice Springs from plan S75/104 (known as “Mount Nancy town camp”). Ms Shaw lives with her two daughters in House 5 at the Mount Nancy town camp.
The second applicant in the Sublease proceeding, George Robertson Jampitjinpa, is a member of the Anthelk Ewlpaye Association Inc. The Anthelk Ewlpaye Association Inc was granted a Special Purposes Lease on 12 August 1977 over the whole of the land described in Certificate of Title Volume 622 Folio 183 being Lots 1733, 3702 and 3704 Town of Alice Springs from plan S72/098 (known respectively as “Hoppy’s Camp town camp”, “Charles Creek town camp” and “The Village town camp”). Mr Jampitjinpa lives with his wife in House 12 at Hoppy’s Camp town camp.
The third applicant, Gwen Gillen, is a member of the Karnte Aboriginal Corporation Inc. The Karnte Aboriginal Corporation was granted a Crown Lease for the purpose of “Aboriginal Residential Housing Area” on 22 January 1993 over the whole of the land described in Certificate of Title Volume 622 Folio 184 being Lot 7850 Town of Alice Springs from plan S87/059 (known as “Karnte town camp”). Ms Gillen lives with her husband at House 3 at the Karnte town camp.
The fourth applicant, Warren Tonkin, is a member of the Ilyperenye Association Inc. The Ilyperenye Association Inc was granted a Special Purposes Lease on 10 July 1981 over the whole of the land described in Certificate of Title Volume 192 Folio 020 being Lot 5708 Town of Alice Springs from plan S80/018 (known as “Old Timers town camp”). Mr Tonkin lives at House 2 at Old Timers town camp.
The fifth applicant, Melissa Brown, is a member of the Ilperle Tyathe Association Inc. The Ilperle Tyathe Association Inc was granted a Special Purposes Lease on 28 December 1978 over the whole of the land described in Certificate of Title Volume 623 Folio 349 being Lot 5149 Town of Alice Springs from plan S77/036 (known as “Warlpiri town camp”). Ms Brown lives at House 7 at Warlpiri town camp. Ilperle Tyathe Association Inc also has control over an unofficial camp known as “Whitegate town camp” on that land. That camp has not been involved in the negotiations giving rise to the Sublease proceeding.
The sixth applicant, Marlene Hayes, is a member of the Akngwertnarre Association Inc. The Akngwertnarre Association Inc was granted a Special Purposes Lease on 22 December 1977 over the whole of the land described in Certificate of Title Volume 622 Folio 176 being Lot 5150 Town of Alice Springs from plan S77/035 (known as “Morris Soak town camp”). Ms Hayes lives at House 5 at Morris Soak town camp. The “Namatjira town camp” is an unofficial camp also on that land that has not been involved in the negotiations giving rise to the Sublease proceeding.
The seventh applicant, Keven Wirri, is a member of the Mpwetyerre Aboriginal Corporation. The Mpwetyerre Aboriginal Corporation was granted a Special Purposes Lease on 3 April 1981 over the whole of the land described in Certificate of Title Volume 622 Folio 185 being Lot 2664 Town of Alice Springs from plan A000556 (known as “Abbotts town camp”). Mr Wirri lives with his wife, two children and one grandchild at House 6 at the Abbotts town camp.
The eighth (former) applicant, Vanessa Kruger, is a member of the Aper-Alwerrknge Association Inc. The Aper-Alwerrknge Association Inc was granted a Special Purposes Lease on 30 January 1979 over the whole of the land described in Certificate of Title Volume 622 Folio 260 being Lot 5180 Town of Alice Springs from plan S78/058 (known as “Palmers town camp”). Ms Kruger lives at House 1B at Palmers town camp. By consent order dated 23 September 2009, Ms Kruger was removed as an applicant. The fifteenth applicant, Janice Palmer, is a member of Aper-Alwerrknge Association Inc, and lives at House 5 at Palmers town camp. She was added as an applicant by consent order dated 23 September 2009.
The ninth applicant, Maureen Williams, is a member of the Inarlenge Community Inc. The Inarlenge Community Inc was granted a Crown Lease for the purpose of “Aboriginal residential living area and ancillary” on 29 October 1993 over the whole of the land described in Certificate of Title Volume 333 Folio 116 being Lot 3701 Town of Alice Springs from plan S72/84 (known as “Little Sisters town camp”). Ms Williams lives at House 6 at Little Sisters town camp, with her sister’s two daughters and their families.
The tenth applicant, Rachel Jurra, is a member of the Ilparpa Aboriginal Corporation. The Ilparpa Aboriginal Corporation was granted a Special Purposes Lease on 23 July 1980 over the whole of the land described in Certificate of Title Volume 622 Folio 259 being Lot 5713 Town of Alice Springs from plan S80/079 (known as “New Ilparpa town camp”). Ms Jurra lives at House 1 at New Ilparpa town camp.
The eleventh applicant, Rosemary Rubuntja, is a member of the Anthepe Housing Association Inc. The Anthepe Housing Association Inc was granted a Special Purposes Lease on 8 November 1976 over the whole of the land described in Certificate of Title Volume 622 Folio 178 being Lot 5146 Town of Alice Springs from plan S75/103 (known as “Anthepe town camp”). Ms Rubuntja lives at House 7 at Anthepe town camp.
The thirteenth applicant, Pamela Lynch, is a member of the Yarrenyty Arltere Association Inc. The Yarrenyty Arltere Association Inc was granted a Special Purposes Lease on 27 January 1981 over the whole of the land described in Certificate of Title Volume 191 Folio 062 being Lot 5195 Town of Alice Springs from plan S79/098 (known as “Larapinta Valley town camp”). Ms Lynch lives at House 15 at Larapinta Valley town camp.
The fourteenth applicant, Cheryl McMillan, is a member of the Ewyenper-Atwatye Association Inc. The Ewyenper-Atwatye Association Inc was granted a Special Purposes Lease on 14 February 1980 over the whole of the land described in Certificate of Title Volume 622 Folio 177 being Lot 5189 Town of Alice Springs from plan S79/070 (known as “Hidden Valley town camp”). Ms McMillan lives at House 36 at Hidden Valley town camp.
On 12 August 2009, I gave leave to the applicants in the Sublease proceeding to discontinue that proceeding as against the ninth, fourteenth, sixteenth and seventeenth fourth respondents, namely Nyewente Association Inc, Ilpeye Ilpeye Aboriginal Corporation, Anhelke Aboriginal Corporation and Lhenpe Artnew Aboriginal Corporation.
The Minister is the first respondent in the Sublease proceeding, and the respondent in the Section 47 proceeding.
The Executive Director is the second respondent in the Sublease proceeding. The Executive Director is an officer of the Commonwealth, who has the statutory function of administering the proposed subleases, under s 20C(ac) of the ALR Act.
The Northern Territory is the third respondent in the Sublease proceeding.
The Tangentyere Council Inc (the Council) is not a party to either proceeding. It acted as agent for the Housing Associations in the negotiations giving rise to the Sublease proceeding. The Council is incorporated under the Associations Act (NT). The Council is governed by its Constitution as amended on 6 March 2001. Clauses 2 and 3 of its Constitution set out the objects and purposes of the Council as follows:
The central objects of Tangentyere are to relieve the poverty, sickness, destitution, distress, suffering, misfortune or helplessness of Aboriginal people in Central Australia and in particular:
in recognition of the severe problems encountered by Aboriginal people in Central Australia, and the unfortunate circumstances in which they find themselves.
Tangentyere shall advance its central objects by the following means:
a.assisting Member Communities develop appropriate means of managing their communities, and in so doing to assist in alleviating the significant social and economic problems that exist within Member Communities.
b.alleviating the plight of Members of Member Communities, their families and visitors by improving their housing, living conditions and general standard of living.
…
f.providing for consultation and co-operation between Member Communities and Governments and specialised agencies engaged in the provision of services to Aboriginal people in order that Members may benefit in accordance with these objects.
Clause 4 of the Constitution of the Council sets out the powers that the Council may exercise in order to achieve the central objects of the Council, and includes:
l.to do all such other lawful things as are considered by the Executive or the Members at a Council Meeting or Annual General Meeting incidental or conducive to the attainment of the objects and purposes of Tangentyere.
The Council has 18 members, being the Housing Associations that control the Alice Springs town camps (see clause 6.1 of the Constitution). The Council’s website (as at 29 July 2009) states that the Council
was established to assist Aboriginal people to gain some form of legal tenure of the land they were living on in order to obtain essential services and housing.
The website notes that there are approximately 1,600 to 2,000 town camp residents, plus many visitors from remote communities. The residential population of the town camps, including visitors, sometimes rises to about 3,500 people. Each town camp comprises a largely distinct Aboriginal community based on language and kinship groups. The Council manages some 198 houses on the town camps.
It is not in issue that the housing and infrastructure on the town camps is poor, and that permanent house occupancy on average is about 10 per house or somewhat higher in certain of the town camps.
PRELIMINARY ISSUES
Before dealing with the detailed background giving rise to these proceedings, it is convenient first to discuss two preliminary issues that were dealt with in these proceedings.
Interlocutory relief granted
Applications for urgent interlocutory injunctive relief were made in both the Section 47 proceeding and the Sublease proceeding. Those applications were heard by Goldberg J on 30 July and 4 August, and were brought to preserve the status quo (in relation to the giving of a notice under s 47(1) of the NTNER Act) until the proceedings could be heard. The applicant sought that the Minister, the Northern Territory and various Housing Associations be restrained, whether by themselves, their servants or agents, from entering into or giving effect to a sublease of any part of the town camps land.
His Honour granted the interlocutory relief on 6 August 2009, pending the hearing of the trial, effectively preserving the status quo until this matter could be heard: see Shaw v Minister for Families, Housing, Community Services and Indigenous Affairs [2009] FCA 844.
Whether the proceedings should continue as representative proceedings
Both proceedings were commenced as representative proceedings pursuant to the provisions of Part IVA of the FCA Act.
The applicant in the Section 47 proceeding is Ms Shaw. The group members were defined in the amended application at paragraph 2 as the persons who have been granted rights of occupancy of houses in the Alice Springs town camps under agreements entered into by them with the Housing Associations, which in turn have been granted Special Purposes Leases or Crown Leases in perpetuity over the town camps land.
The applicants in the Sublease proceeding are set out above. They are collectively referred to as the Residents. The group members to whom the Sublease proceeding relates are defined in paragraph 2 of the amended application as persons who:
(a)are residents in, or have been granted rights of occupancy of, houses in the town camps under tenancy agreements entered into individually by them with the Housing Associations; and/or
(b)are members of one of the Housing Associations which are incorporated under the Associations Act (NT) or the CATSI Act.
Ordinarily, proceedings under Part IVA of the FCA Act require notification of certain matters to be given to the group members in relation to the proceedings pursuant to s 33X of the FCA Act. Pursuant to s 33X(2) the Court may dispense with compliance with any or all of the notification requirements where the relief sought in a proceeding does not include any claim for damages. There is no claim for damages in either of the proceedings. It was common ground that, if the proceedings were to continue as representative proceedings, the Court should make an order under s 33X(2).
The Minister made an application pursuant to s 33N of the FCA Act for orders that both proceedings no longer continue as representative proceedings. Section 33N empowers the Court to make an order that a proceeding not continue as a representative proceeding where the Court is satisfied that it is in the interests of justice to do so because:
(a)the costs that would be incurred if the proceeding were to continue as a representative proceeding are likely to exceed the costs that would be incurred if each group member conducted a separate proceeding; or
(b)all the relief sought can be obtained by means of a proceeding other than a representative proceeding under this Part; or
(c)the representative proceeding will not provide an efficient and effective means of dealing with the claims of group members; or
(d)it is otherwise inappropriate that the claims be pursued by means of a representative proceeding.
The Minister submitted that, given the expedited nature of the proceedings and the impending hearing dates, the representative proceedings would not provide an efficient and effective means of dealing with the claims of the group members, and therefore it would be in the interests of justice to order that the proceedings no longer continue in that form pursuant to s 33N(1)(c).
The Minister accepted that, if successful, both proceedings would result in orders applying equally to areas of land beyond that parcel of land over which Ms Shaw has a tenancy agreement with the Mount Nancy Housing Association. The Minister accepted that she would be bound, if final relief in terms of the orders sought in the Section 47 proceeding were granted, not to compulsorily acquire any of the land listed in the Schedule to the application being the town camps land (subject to the land leased by Ilpeye Ilpeye Aboriginal Corporation and Irklancha Alwacha Association, who have expressed their wish to have the land they currently lease from the Northern Territory acquired by the Commonwealth) without according procedural fairness to the Residents of the town camps.
There was, in a practical sense, no need for either the Section 47 proceeding or the Sublease proceeding to be representative proceedings. It was not suggested that any particular tenancy arrangement between a resident of a town camp and a Housing Association was so different as to require separate consideration. Nor was it suggested that the leases of the Housing Associations were so different as to require separate consideration in that context. The Minister accepted that the Section 47 proceeding, if confined to Ms Shaw as the applicant, would apply generally to all residents of the town camps. She accepted that Ms Shaw had standing to bring that proceeding. She also accepted the standing of the Residents to bring the Sublease proceeding. On the other hand, the timing of the hearing meant that the right of a group member to opt out of either of the proceedings under s 33J could not be extended to the group members. There was no time to comply with s 33X(1) to give them that opportunity. Whilst I have no reason to doubt that Ms Shaw’s concerns or the Residents’ concerns may be widely shared by the residents of the town camps, I did not think it was appropriate to assume that their claims had the informed consent of all of them, or indeed to assume that all of them necessarily agreed with those claims. I was also mindful of the entitlement of any resident of a town camp who wished to do so to apply to be joined as an applicant in either or both of the proceedings. There was also no reason to think that the potential evidence to be adduced in the proceedings would in any way be less available or less admissible if an order under s 33N(1) were to be made.

Hence, on 12 August 2009, I ordered pursuant to s 33N, that the Section 47 proceeding and the Sublease proceeding should no longer continue as a representative proceedings. On that date, I also gave leave to Ms Shaw and the Residents to apply under O 6 r 13 for an order that the applicants in either proceeding represent other concurrent interests.
THE EVENTS LEADING UP TO THE PROCEEDINGS
What follows is simply a more or less sequential description of the events leading up to the proceedings. It is not intended to convey any commentary upon those events. Consequently, it is also quite comprehensive, as editing of the history of events might accidentally imply such a commentary. I have not, however, included all the correspondence between Gilbert + Tobin on behalf of the Council and the Commonwealth concerning the detailed terms of the proposed subleases.
Between April and May 2007, discussions took place between the Commonwealth, the Northern Territory and the Council representatives on behalf of the Housing Associations concerning the joint government commitment of funds to improve living conditions in the Alice Springs town camps, referred to at [2] above.
On 18 April 2007, the then Commonwealth Minister for Aboriginal Affairs wrote to Mr Tilmouth, the Executive Director of the Council, and confirmed that, under the Commonwealth’s offer for the provision of funding, the Northern Territory would manage the Alice Springs town camps’ housing as public housing, and that he had agreed to the current holders of town camp leases retaining those leases, subject to their agreement to sublease residential areas to the Northern Territory for no less than 99 years without conditions.
On 20 April 2007, Mr Tilmouth wrote to that Minister welcoming the offer, including allowing the Housing Associations to retain their leases over the town camps. On 4 May 2007, he wrote to that Minister that the Executive of the Council, as the representative of the Housing Associations, agreed in principle to subleasing their lease areas to the Northern Territory for 99 years, on the basis of $70 million being spent over five years on the housing and infrastructure upgrades of the town camps.
On 18 May 2007, Mr Tilmouth sent, via email, a statement from the then President of the Council, advising that after three days of deliberation, the Council had resolved to decline the Government’s “$60 million conditional offer” and indicating that the Council would not sign a Memorandum of Understanding. In that email, the Council welcomed the commitment of $60 million to the Alice Springs town camps, and appealed to that Minister to reconsider a proposed amendment to the Memorandum of Understanding as to how that commitment would be effected.
A deadline for the Council to sign the proposed Memorandum of Understanding of 23 May 2007 was imposed, with the comment that otherwise the $60 million would be re-allocated to other areas of need.
On 21 June 2007, the Commonwealth announced a “National Emergency Response” for the protection of indigenous children in Northern Territory communities. The catalyst for that announcement was the “Little Children are Sacred” Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse. It gave rise to what has been called “the Intervention” or “the Northern Territory Intervention”. The Minister’s press release at that time said, inter alia:
The Northern Territory Government will be expected to:
…
· Resume all special leases over town camps in the major urban areas where lease conditions have been breached. The Australian Government will act in this area if the NTG fails to do so.
…
Town camps:
The NT Government will be expected to:
Immediately resume all special leases issued by the Northern Territory Government to Aboriginal associations for the town camps in the vicinity of major urban centres where these leases are in breach of their lease conditions, (this would not require compensation) and if such action is not undertaken urgently, that the Australian Government introduce legislation to allow it to exercise the powers of the Northern Territory Government to resume the leases.
The NTNER Act was passed on 17 August 2007. It relevantly came into effect the following day.
Section 4(3) of the NTNER Act empowered the Minister to declare the Alice Springs town camp areas to be “prescribed areas” for the purposes of the NTNER Act. By the Northern Territory National Emergency Response (Town Camps) Declaration 2007 (No 1), the Alice Springs town camps were declared “prescribed areas” by the Minister. It will be necessary to consider the consequences of the town camps being given that status later in these reasons.
In September 2007, the MOU referred to at [4] above was entered into. It enabled and led to the SIHIP, which was subsequently subsumed into the National Partnership Agreement, as set out at [5] above.
Following the 2007 federal election, on 12 December 2007, the Council wrote to the Minister to request urgent discussion on aspects of the Northern Territory Intervention, and to restate the proposal presented by the previous government. On 18 March 2008, a meeting was convened between the Minister and the Council representatives (including their solicitors) to discuss the options for resuming negotiations for the development of the Alice Springs town camps.
On 17 June 2008, the Minister wrote to the Council offering up to $50 million from the SIHIP to be used for infrastructure and housing in the Alice Springs town camps on the basis that the government be granted subleases for a minimum of 40 years over the town camps. In that letter, the Minister also noted that she would support the release of up to $5.3 million to the Council as a “transitional payment while SIHIP is established and prior to the grant of subleases”.
On 25 June 2008, the Council wrote to the Minister informing her that the Council Executive had passed a resolution on that same day agreeing to negotiate subleases within the framework set out in the Minister’s letter of 17 June 2008.
On 10 July 2008 a meeting took place in Alice Springs at which an Agreed Work Plan was signed by the Minister, the (then) Northern Territory Minister for Housing, and the President of the Council, who signed for and on behalf of 15 Alice Springs town camp Housing Associations, and in his capacity as President of the Council. The Agreed Work Plan provided for 40 year subleases to be granted by the Housing Associations to the Executive Director within six months (that is, by 10 January 2009).
The Agreed Work Plan provided for a Working Group to be formed constituting representatives of each party to the Plan, and for that Working Group “to meet from time to time to check how this Work Plan is going and to review the Work Plan after 12 months to see what should happen next”. The Council nominated its members of the Working Group, including those from the Housing Associations. The first Working Group meeting took place on 18 August 2008 in Alice Springs. Thereafter a number of meetings were held to implement the Agreed Work Plan.
On 26 August 2008, the Commonwealth provided a draft of the proposed subleases to the Working Group members, including Council representatives.
On 5 September 2008, a funding agreement between the Council and the Northern Territory was signed for a transitional payment of $5.3 million to address urgent house upgrades (and as envisaged in the letter of 17 June 2005, referred to in paragraph [75] above). As at the date of these proceedings, $2.915 million had been released as part of that stage 1 instalment.
The second Working Group meeting was held in Alice Springs on 17 September 2008. At that meeting, the Council presented an issues paper regarding the proposed subleases drafted by the Commonwealth, and requested a formal response to that issues paper.
On 22 October 2008, the Minister wrote to the Council in response to the Council’s issues paper.
On 27 October 2008, a meeting took place between the Minister and Council representatives in Alice Springs. On 31 October 2008 an email was forwarded to the Council with responses to questions asked of the Minister at that meeting.
On 3 November 2008, the Council released a media statement entitled “Lease Negotiations Continue”, in which it confirmed the Council’s commitment to grant 40 year subleases to the Executive Director in accordance with the Agreed Work Plan. On that same day, the Branch Manager of the Land Reform Branch of the Indigenous Remote Service Delivery Group in the Commonwealth Department of Families, Housing, Community Services and Indigenous Affairs (Ms Edwards) wrote to the Working Group proposing the setting of a timeframe in order to meet the 10 January 2009 negotiation deadline. Thereafter negotiations ensued in relation to settling the terms of the proposed subleases.
On 21 November 2008, Gilbert + Tobin, solicitors on behalf of the Council, wrote to Ms Edwards setting out the Council’s concerns. That letter said:
[O]ur client wishes to clarify that when they commenced these negotiations they did not intend to negotiate a sublease over existing houses or over the entire town camp lease areas. …
So far as our client is concerned, there are a number of fundamental issues which have been touched upon in negotiations to date and others which have not been properly explored at all.
On 1 December 2008, a meeting was held with all the legal representatives of the negotiating parties to discuss the terms of the proposed subleases.
On 5 December 2008, Ms Edwards wrote to Gilbert + Tobin in response to their letter of 21 November 2008. That letter noted:
You have also raised the importance of the Housing Associations having meaningful voices throughout the 40 year Subleases. … [T]he Agreed Work Plan anticipates that Alice Springs town camp residents, the Housing Associations and Tangentyere Council will have a role in the implementation of the Agreed Work Plan by four separate mechanisms … However, the Minister was clear that these roles do not extend to the governance of SIHIP, nor to control of housing policy and tenancy management.
On 10 December 2008 the third Working Group meeting was held in Sydney. At that meeting an extension of the negotiation period was discussed. There were no meetings of the Working Group after that meeting.
On 17 December 2008, Gilbert + Tobin sent a “marked-up” draft of the proposed subleases, and a bundle of documents, including a proposed timeline for consultations with the Housing Associations regarding the proposed subleases. That proposed timeline indicated that the signing of the subleases would occur during June 2009 at the earliest. On 18 December 2008, Ms Edwards responded.
On 31 December 2008, Gilbert + Tobin sent a further document setting out their understanding of the proposed terms of the subleases, and an indication of the parties’ positions on each of the terms. That document was proposed to be used during their consultations with the Housing Associations.
In the meantime, on 29 November 2008, the National Partnership Agreement (referred to at paragraph [5] above) was entered into between the Commonwealth and the States and the Northern Territory, to take effect on 1 January 2009. The outputs to be achieved by the National Partnership Agreement include (at paragraph 13):
(a)supply of safe and adequate housing that will contribute to improved living standards for Indigenous people in remote communities;
(b)robust and standardised tenancy management of all remote Indigenous housing that ensures rent collection, asset protection and governance arrangements consistent with public housing standards;
(c)a program of ongoing maintenance and repairs that progressively increases the life cycle of remote Indigenous housing from seven years to a public housing-like life cycle of up to 30 years;
(d)construction of new houses and ongoing repair and maintenance of houses in remote Indigenous communities;
…
(g)progressive resolution of land tenure on remote community-titled land in order to secure government and commercial investment, economic development opportunities and home ownership possibilities in economically sustainable communities.
Paragraph 15(a) of the National Partnership Agreement provides that the Commonwealth will have responsibility for, amongst other things:
funding for additional Indigenous housing and housing-related infrastructure in remote Australia, conditional on secure land tenure being settled, to significantly reduce overcrowding and homelessness with the aim that a significant level of unmet housing need is met by the end of this period.
On 8 January 2009, the Commonwealth extended the deadline for reaching agreement on the terms of the proposed subleases to 28 February 2009. The Commonwealth fixed that date as the deadline in order to enable construction under the SIHIP to commence in 2009.
On 9 January 2009, the Minister wrote a letter to each of the Housing Associations urging them to progress consideration of the proposed subleases as soon as possible, so that construction could commence as soon as possible. The Minister noted that:
An integral element of [the SIHIP] is the prior grant of long term subleases over the town camp areas to provide security for the Government’s investment and to ensure that housing reforms can be implemented effectively.
The Minister also noted:
In the first three years of the 40 year sublease all tenancy management and housing repairs and maintenance would be the responsibility of Territory Housing. Territory Housing would undertake these functions in consultation with each of the Housing Associations. Territory Housing has also agreed to subcontract Tangentyere Council as an agent, subject to Tangentyere meeting strict performance requirements. After the initial three year period, a competitive tender process would be held to allow other service providers to compete for housing services. This proposal was set out in the Agreed Work Plan which was signed on your behalf in July 2008.
On 23 January 2009, Ms Edwards wrote to Gilbert + Tobin, setting out the Commonwealth’s final response to each of the action items put forward by Gilbert + Tobin, and an amended outline document of the terms of the proposed subleases.
On 27 January 2009, the Council’s housing officer, David Donald, sent a request to Ms Edwards that Commonwealth representatives be present at each of the Housing Association consultation meetings to discuss the proposed subleases. Ms Edwards responded on 30 January 2009 that Commonwealth representatives would be made available to attend.
Between 2 February 2009 and 5 March 2009, consultation meetings were conducted with representatives of the various Housing Associations in relation to the proposed subleases. Mark Coffey, the Executive Director – Alice Springs Transformation Plan, attended with his staff on behalf of the Commonwealth. Northern Territory Government officers also attended. Detailed fact sheets were distributed in simple English. A summary of the meetings was prepared by the Commonwealth. Ms Shaw attended the meeting held at the Mount Nancy town camp on 4 March 2009.
On 5 February 2009, a further draft of the proposed subleases was sent to Gilbert + Tobin by the Commonwealth.
On 24 February 2009, the Council Working Group members wrote to the Minister, requesting an extension of the negotiation period beyond the 28 February 2009 deadline, but without nominating a specific date. On 3 March 2009, Ms Edwards wrote to the Council Working Group members indicating that an extension of time was being considered.
Between 11 and 14 March 2009, Commonwealth and Northern Territory Government officers visited the Alice Springs town camps and provided information to residents about the Commonwealth’s proposal. The officers also distributed detailed fact sheets in simple English to residents.
On 20 March 2009, the Minister wrote to the Council agreeing to a further extension of the negotiation period for the purpose of agreeing on the terms of the proposed subleases until 4 May 2009, to allow for a second round of consultations with the Housing Associations. In the letter the Minister expressed disappointment at the lack of progress in the negotiations and the impact the delays had on the ability of works to be included in the SIHIP’s 2009 work program. The Minister proposed a meeting between the Council’s Executive, Housing Association representatives and interested town camp residents on 24 March 2009 (which was subsequently rescheduled to 23 April) to assist with the progress of the negotiations. The letter relevantly said:
As I understand the situation, Tangentyere Council has completed a first round of consultations with each of the 15 Housing Associations and has convened a major meeting for 24 March 2009 to consider the proposed subleases. Officers from my Department and from the Northern Territory Government attended each of the consultation meetings and in addition have been distributing information and discussing the proposed agreement with residents of the various town camps. Reports of this activity indicate that information about the proposed subleases and related arrangements is new to many town camp residents notwithstanding that the Agreed Work Plan was signed on their behalf in July 2008 and that Tangentyere Council has been negotiating the subleases on behalf of the Housing Associations for more than eight months.
I am very disappointed by the lack of progress especially given the impact which a delay has on the capacity to include Alice Springs within the 2009 [SIHIP] work schedule. It is essential that we move quickly on land tenure to ensure that SIHIP can proceed quickly.
However, I am concerned that the representatives of the Housing Associations and other residents of the town camps be provided an additional opportunity to be informed of the substantial benefits which will flow from the proposed subleases and associated government investment.
For this reason, I am prepared to agree to a further extension to the negotiating period to allow for a further round of consultations with each of the Housing Associations. This extension would be on the basis that a final and definite response on the proposed sublease be provided in writing by close of business on 4 May 2009. In order to assist with these further consultations, I again offer the assistance of my officials and pass on a similar offer from the Northern Territory Government. In addition, Minister Anderson and I propose to be available for a meeting with the Tangentyere Council Executive, Housing Association representatives and any other interested town camp residents on Friday 24 April 2009 so that we may explain in person the benefits of agreeing to the subleases.
On 21 March 2009, the Commonwealth and Northern Territory issued a press release regarding the extension to the negotiation deadline until 4 May 2009.
On 27 March 2009, the Commonwealth and the Northern Territory finalised an Implementation Plan for the National Partnership Agreement. The Implementation Plan deals with land tenure in the following terms:
LAND TENURE
The aim of progressive resolution of land tenure issues is to implement arrangements which facilitate and support maximum economic development and improved housing including private housing.
The first priority will be to ensure sufficient secure tenure to support substantial government investment in housing and infrastructure on Indigenous held land. The minimum requirements in this regard are:
·     government must have access to and control of the land on which construction will proceed for a minimum period of 40 years. A longer period has additional advantages;
·     the tenure arrangements must support the implementation of tenancy management reforms including the issue of individual tenancy management agreements between the Housing Authority and the tenant without requiring further consent from the underlying land owner. This capacity must also permit replacement of the housing service provider if required; and
·     native title issues must also have been resolved.

Between 30 March and 22 April 2009, the second round of Housing Association consultations took place, and on 31 March 2009, Ms Edwards responded to certain inquiries of Gilbert + Tobin. As occurred with the first round of consultations, Commonwealth and Northern Territory Government representatives attended and detailed fact sheets in simple English were again distributed to residents. A further document responding to questions asked during the first round of consultations with the Housing Associations was also prepared and distributed during the second round of consultations. Those fact sheets included the following information:
The Government wants to lease this land from the Town Camp Housing Associations for 40 years. This is called a Sub-Lease Agreement. This will mean that the Town Camps will still own that Town Camp Lease but the Australian Government will take responsibility for all the infrastructure and houses and community land.
…
People can stay in control of community areas if they want to.
On 21 April 2009, the Council forwarded to the Minister an agenda for the meeting in Alice Springs on 23 April 2009 and a brief update on the progress of the negotiations. The Council noted that at the conclusion of each Housing Association consultation, the Housing Association representatives had been asked by the Council to vote on acceptance of the Commonwealth’s offer, and that none of the Housing Associations had agreed to sign the offer to date.
On 23 April 2009, a Special General Meeting took place at the Council’s offices in Alice Springs.
On 24 April 2009, the Council wrote to the Minister, stating again that the Housing Associations consulted with to date had declined the Government’s offer. The Council also outlined in that correspondence the key “sticking points” in the offer. Part of that letter referred to the concern of one of the Housing Associations that any agreement to a 40 year sublease should involve the Housing Associations retaining “some key decision making powers”, and then set out what the Council understood the Minister’s response to that “sticking point” to be at the meeting held on 23 April 2009 as follows:
Your response to this was that you believed that this would undermine the sublease if granted, and as such would not be acceptable. We clearly hope that you reconsider this position. Our advice is that it would be extremely rare for a lease to be effectively granted with no conditions. Retaining a select band of key decision making responsibilities with the underlying Housing Associations we believe would not undermine the integrity of the sub-lease, but would in fact continue to empower residents to take responsibility for their own lives, something which is lacking in the public housing model that you are proposing.
On 1 May 2009, the Minister wrote to the Council with a revised offer in relation to the proposed subleases, including a commitment to increase housing and infrastructure investment in the Alice Springs town camps as part of the SIHIP to $100 million. The Minister also referred to her decision to commence an Alice Springs Transformation Plan to address broader issues affecting Aboriginal people in the region. The letter also noted:
However, in order to meet your concerns I would also be prepared to entrench an additional consultation mechanism in the sublease document. This mechanism would comprise a tripartite forum comprised of an Australian Government, a Northern Territory Government and a Tangentyere Council representative. This forum would be required to meet quarterly to advise tenancy management issues. This approach would ensure that the Australian Government and Tangentyere Council work cooperatively with the Northern Territory to address any issues arising out of the new tenancy arrangements.
The letter indicated that the Housing Associations would have until the close of business on 21 May 2009 to respond to the revised offer.
On 2 May 2009, the Commonwealth and the Northern Territory issued a joint press release announcing the commencement of the Alice Springs Transformation Plan, including the commitment of up to $125 million.
During the week beginning 11 May 2009, Commonwealth officers conducted a fact sheet drop throughout the Alice Springs town camps in relation to the Commonwealth’s revised offer. This fact sheet was headed “The NEW Leasing Offer from the Australian Government” and relevantly stated:
·     The Australian Government would still like to lease the Town Camp land area from the Housing Associations for 40 years. The lease is so that the Government can look after the houses properly for people. …
·     This leasing offer is not about kicking people out of their homes in Town Camps. The Government wants to make the houses in Town Camps better and safer for the people who are living there. We don’t want people to end up living in the scrub or the river.
·     The Australian Government has given the Housing Associations more time to think about this new offer. But the Minister is asking for an answer by Thursday 21 May 2009.
On 12 May 2009, the Minister wrote to the Council inviting them to nominate a representative for the Alice Springs Transformation Plan Joint Steering Committee.
On 13 May 2009, the Council wrote to the Minister to address their remaining concerns prior to a meeting scheduled on 14 May 2009 in Canberra.
On 14 May 2009, a meeting occurred between Council representatives, the Minister and Ms Edwards to discuss the remaining concerns in an effort to finalise the negotiations before the deadlines. On that same day, Ms Edwards sent to Gilbert + Tobin a further draft of the proposed subleases.
On 18 May 2009, Gilbert + Tobin sent a proposal to Ms Edwards to revise the proposed subleases in the light of the issues raised in the Council’s letter of 13 May 2009 and as discussed at the meeting of 14 May 2009. On 20 May 2009, Ms Edwards responded to Gilbert + Tobin, addressing the key elements of the Council’s concerns.
On 21 May 2009, the Council wrote to the Minister noting that Ms Edwards’ letter of 20 May 2009 made clear that further concessions on these key points would not be made, and that the Council would not endorse the Commonwealth’s offer. The Council also noted that the Housing Associations had rejected the Commonwealth’s offer, and attached an “All Camps Resolution” document which outlined the decisions of the respective Housing Associations to reject the offer.
On 24 May 2009, the Minister announced the Commonwealth’s consideration of the compulsory acquisition of the Alice Springs town camps under s 47(1) of the NTNER Act by a media release. That media release stated:
Today I am announcing that the Australian Government is taking the first step towards compulsory acquisition of the Alice Springs town camps. …
This action is being considered as a last resort following the failure of Tangentyere Council to meet its commitments under the previously Agreed Work Plan for the town camps by the deadline of 21 May 2009.
On the same day the Minister wrote a letter to the Council and to each of the 15 Housing Associations informing them of the Minister’s consideration of the possible compulsory acquisition of the town camps. The letter was headed “Proposal to give a notice under section 47 of the Northern Territory National Emergency Response Act 2007”. By the letter, the Minister gave notice that she was considering giving the Northern Territory Government a notice under s 47(1) of the NTNER Act in respect of the Alice Springs town camps land. The further content of the letter is set out in [144] below.
The letter included an invitation for the recipients “and any other persons who may be affected” to be heard on the proposal by way of written submissions to be submitted by 29 June 2009. The letter also stated that the Minister would be available to meet with interested persons in Alice Springs at 10:30 am on 29 June 2009 to hear views on the proposal. The letter indicated that the Minister would take into account any views expressed at this meeting. The Minister attached to the letter the factors and material she considered to be relevant to her consideration of the proposal. The Minister’s letter of 24 May 2009 was of considerable significance in Ms Shaw’s contentions in the Section 47 proceeding.
On 4 June 2009, the Minister sent a further letter to the Council and the Housing Associations in which she revised the timetable of her consideration of possible compulsory acquisition to ensure that all affected parties would have sufficient opportunity to consider the proposed acquisition and to provide the Minister with their views. The deadline for the written submissions was extended to 28 July 2009. The Minister also proposed to have a second meeting to receive views about it in Alice Springs on 20 July 2009.
During May and June 2009, Commonwealth officials conducted an information drive and leaflet drop in the Alice Spring town camps regarding the Minister’s consideration of compulsory acquisition. Ms Edwards gave evidence about that process and produced a document summarising the consultations with residents. It is apparent from that document that only some, but by no means a large number of, residents in some of the town camps were spoken to. No-one was available to speak to the officials in a number of the town camps. It does not appear from the document that in the oral discussions which were held with the tenants that any specific details about the consequences of the Minister’s exercise of power under s 47 of the NTNER Act, namely that the leases in perpetuity would be extinguished as would the rights of the tenants to occupy their houses under the existing tenancy agreements, were discussed. The evidence was that leaflets or fact sheets were distributed, and that posters were displayed at the Council premises. The flyers and posters were in evidence. The fact sheet was headed “A possible compulsory acquisition – what does this mean for people on Town camps?” The fact sheets said:
·     Because the Australian Government is worried about the people in Town Camps the Australian Government has now said that if the Housing Associations don’t agree to the lease offer then the Australian Government may decide to go ahead with an acquisition.
·     The Housing Associations can still say yes to the lease offer.
The fact sheet does not set out what would be the consequences of compulsory acquisition in relation to the rights which would be extinguished, but says on the third page:
·     One thing that people do need to know is that if the Housing Associations still say no to the 40 year lease offer and the Minister decides to go ahead with the acquisition then the Government will change the leases on the land and the Housing Associations will not have a lease on that land anymore.
On the last page of the fact sheet it was stated that the Minister was sending a departmental staff member to the Alice Springs Indigenous Coordination Centre on 20 July 2009 to meet with town camp residents and that people could come and tell this person their story. The fact sheet said that the Minister will
listen and read all these stories and she will make a careful decision. She will not make a decision before 4 August 2009 at the earliest about whether the Australian Government will work with the Northern Territory Government to go ahead with the acquisition.
On 23 June 2009, the Alice Springs Indigenous Coordination Centre sent an email to the Council advising that the Minister wished to meet with town camp residents and other affected parties to listen to their views on the possible compulsory acquisition of the town camps, and advised that the Minister would be hosting a meeting on 29 June 2009, and that transport to and from the meeting would be provided. The email also advised that Government officials were available to provide further information at a free call telephone number or by email.
From 23 to 29 June 2009, the Central Australian Aboriginal Media Association radio in Alice Springs aired a community service announcement on behalf of the Commonwealth to inform the public that people affected by the Minister’s consideration of compulsory acquisition of the town camps leases would be able to meet with the Minister on 29 June 2009 at Alice Springs, and gave details for that meeting.
On 29 June 2009, the Minister attended the meeting in Alice Springs. Interpreters were provided at the meeting, and parts of the meeting were conducted in Aboriginal local language. A transcript of that meeting was in evidence. At the start of the meeting the Minister said:
This is an important meeting today and it is really about me listening to your point of views. So if there are questions of detail there will be people from the department who will answer them if you have any questions but more than anything it is about me wanting to come to listen to your point of view of what we have proposed as you know we have been having many discussions over more than 12 months … But we have come to the point where I am now considering compulsory acquisition of the leases and in the process of thinking about that I want to hear directly from you about your views in that regard.
Ms Edwards said:
Hello everyone as the Minister said today is about giving people an opportunity to talk to her directly about the decision she is going to have to make about whether to take over the Alice Springs town camps to make them better for the people who live there so it’s a chance to hear all your views about that.
At an early point in the meeting Ms Edwards read to the meeting a copy of the notice which was sent to the Housing Associations on 24 May 2009 and explained its contents in English. After reading the letter, Ms Edwards said that:
If the Minister were to decide to go ahead it would be for the purpose of making things better and it’s planned that there should be improved infrastructure, power, sewage etc. Fixing up houses and building new houses and managing houses better including looking after them better and implementing new fair rules about who lives in the houses. If the Minister were to go ahead, with the proposal, current residents would be able to stay in their houses and if the Minister were to go ahead, reasonable compensation would be paid to the Housing Associations who hold the current leases.
Copies of the letter were made available to all attendees in English. A number of persons at the meeting asked questions of the Minister and the departmental officials, and those questions were answered. In the course of the meeting Ms Edwards said:
Just to clarify, the proposal is that people would not have to leave the Town Camps even if they are working and if the means testing comes in we don’t expect that anyone that is living there now would have to move.
A person at the meeting then asked:
Can you promise that?
Ms Edwards responded:
I’m just looking at the Territory Housing people, yes that is what is proposed. People can stay.
Ms Shaw attended the meeting and asked a number of questions. Ms Shaw does not recall having been told either during the meeting with the Minister or at any other time, that if the Minister gives the proposed notice under s 47(1) of the NTNER Act it will terminate her current right of occupancy of her house. According to her sworn statement, Ms Shaw is not aware of, and has never been told, what the content of the terms and conditions of “any new residential tenancy arrangements” referred to in the Minister’s letter might be. (It is not necessary to resolve any factual dispute about what she said or was told at that meeting; the different versions of Ms Edwards and Ms Shaw are readily explained by Ms Shaw not having fully understood what she was told and so not recalling it.)
On 3 July 2009, Gilbert + Tobin sent Ms Edwards a “marked-up” copy of the proposed subleases which the Council was prepared to recommend to the Housing Associations for execution.
On 17 July 2009, the Executive Director of the Council sent a letter to the Minister seeking the opportunity to have further negotiations in relation to the terms of the proposed subleases, and expressing concern that an agreement had not been reached, referring to matters that had no longer been pressed in the marked-up subleases and providing further explanation of matters contained in the marked-up subleases.
On 20 July 2009, Commonwealth officials conducted a further meeting for affected persons at the Alice Springs Indigenous Coordination Centre. Two persons attended the meeting.
On 24 July 2009, the Minister wrote to the Council (copied to Gilbert + Tobin) rejecting the request for further negotiations in relation to the terms of the proposed subleases. The Minister stated that the time for negotiations was now over and that there would be no further revisions to the proposed subleases. In the letter, the Minister observed that if the proposed subleases could not be finalised, this would be part of her consideration regarding the possible acquisition of the town camps. The letter relevantly stated:
I have considered your request to make further revisions to the sublease document notwithstanding that the “marked up” lease version was provided well after the close of the negotiation period on 21 May 2009. I have been consistently clear that the time for negotiations is now over. As such there will be no further revisions to the lease. To accept the Australian and Northern Territory governments’ proposal, Tangentyere Council should accept the current version of the lease without revision.
I am conscious that the Alice Springs Transformation Plan is well underway. The numerous matters raised in the “marked up” lease go well beyond technical drafting matters, raise entirely new issues which had not been the subject of the negotiations and revisit issues which have been previously ruled out as contrary to the lease arrangements required to support major new investment. …
I would reiterate that the Australian and Northern Territory Governments have negotiated in good faith for nearly a year. …
I would ask that you inform your members and residents of the town camps that a Housing Association which wishes to enter into a sublease should do so before 28 July 2009. You should bear in mind that the Housing Association will require prior Ministerial approvals in order to execute the subleases and this process may take a few days.
The Australian and Northern Territory Governments want to ensure that the government investment that is intended to be made in the town camps is secured by appropriate land tenure arrangements. Negotiated leases remain the preferred outcome for government. However, if, after the lengthy negotiations that have been held, the proposed subleases cannot be finalised, this will be part of my considerations regarding the possible acquisition of the town camps. …
In relation to the potential compulsory acquisition, I would confirm that the deadline for provision of submissions in relation to my consideration of issuing a notice under subsection 47(1) of the [NTNER Act] to acquire the Land which comprises the Alice Springs town camps is 28 July 2009. This is the final date for correspondence or representations on this matter.
That letter enclosed the final version of the proposed subleases, with the handwritten amendments to reflect the $100 million commitment.
On 29 July 2009, the solicitor for the Council informed Ms Shaw’s solicitor that he had received instructions from the Council to accept the alternative offered by the Minister, and that he was in the process of arranging execution of the subleases. He also said that he had instructions to deliver the executed documents to the Minister by 31 July 2009.
On 29 July 2009, the Minister announced in a media release that 16 of the Alice Springs town camps under the umbrella of the Council had agreed to the 40 year sublease agreement. The press release noted that the two remaining Housing Associations and their respective town camps, Nyewente Association Inc (Trucking Yards town camp) and Iliyepe Iliyepe (Golders town camp) were in separate discussions with the Commonwealth, and that Lhere Artepe (the organisation representing the Traditional Owners) preferred compulsory acquisition to proceed.

That rule continued to apply to other incorporated associations. At least in respect of partially executed contracts, the absence of power may not have precluded their enforcement: In Re K.L. Tractors Ltd (1961) 106 CLR 318. That is not this case. There may also be circumstances where, notwithstanding that the corporation has acted ultra vires, relief may be available: see Ford’s Principles of Corporations Law (Butterworths Looseleaf Service) at [12,060]. However, the rule was in any event ameliorated by provisions similar to that in the Corporations Act 2001 (Cth) in most, if not all, of the States’ Associations Incorporation Acts: see s 17 Associations Incorporation Act 1981 (Vic); s 26 Associations Incorporation Act 1981 (Qld); s 27 Associations Incorporation Act 1985 (SA). There was no such provision in the Associations Incorporation Ordinance 1963 (NT) or in the Associations Incorporation Act 1978 (NT). Those enactments were repealed and replaced by the Associations Act (NT), enacted in 2003. There is also no such provision in the Associations Act (NT). Part 6 of the Associations Act (NT) deals with the transfer of property of an incorporated non-trading association. Each of the Housing Associations is not permitted to trade: Item 1.5 of the Schedule to their Constitutions. Section 54 Associations Act (NT) permits the transfer of real property by one association only to another body formed for promoting objects similar to its own or charitable objects, or to a council for the area in which the property is situated. That section also imposes procedural requirements. It is not necessary to refer to them. It is not suggested the grant of the proposed subleases is authorised by s 54 independently of the Constitutions of the Housing Associations. Nor, on the other hand, is it suggested that the grant of the proposed subleases is unlawful so as to prevent the Housing Associations from agreeing to enter into them. Section 54 is expressly subject to s 110. Section 110(2) restricts a Housing Association from disposing of, or charging, prescribed property, which appears to include a lease under the SPL Act or the CL Act (see the definition of prescribed property in s 4), except with the consent of the Minister administering that Act (and, by the NTNER Act, that would include the Minister) without the Minister’s consent. It is also not necessary to further discuss those provisions as they were not relied upon, or referred to, either by the Residents or by any of the respondents, as informing the proper construction of the Constitutions of the Housing Associations either to grant or not to grant the proposed subleases. There is no doubt good reason for that.
The CATSI Act does have a provision similar to that in s 125 of the Corporations Act 2001 (Cth). Section 96.1 relevantly provides:
(1)An Aboriginal and Torres Strait Islander corporation has the legal capacity and powers of an individual within and outside Australia.
(2)An Aboriginal and Torres Strait Islander corporation also has all the powers of a body corporate, including the power to, if the corporation’s constitution permits, distribute any of the corporation’s property among the members, in kind or otherwise.
(3)An Aboriginal and Torres Strait Islander corporation’s legal capacity to do something is not affected by the fact that the corporation’s interests are not, or would not be, served by doing it.
The Minister did not rely upon s 96.1 of the CATSI Act as providing the foundation for the Housing Associations incorporated under it to be enabled to enter into the proposed subleases. That may be simply because there are only three of them, and the condition precedent to the activation of each proposed sublease in clause 2.1(a)(i) referred to above would not be satisfied. It may also be because, notwithstanding its apparent effect, there is some authority to suggest its role is confined to validating corporate dealings with outsiders despite deficiencies in corporate capacity, but not to abrogating restrictions on the exercise of shareholders’ or directors’ powers: see eg per McPherson J (with whom Lee and McKenzie JJ agreed) in ANZ Executors & Trustee Co Ltd v Qintex Australia Ltd (receiver and managers appointed) (1990) 8 ACLC 980 at 988. There may be other reasons. It may be that such a provision does not inhibit a member of such an association from asserting that the common understanding of the members and their general intention was for the association to control the use and development of those town camps, and seeking to enforce that position. That sort of contention has been used to support the winding up of a corporation or the just and equitable ground: see Ford’s Principles of Corporations Law (13^th ed, 2007, Butterworths) at [12.130] p 744 and the cases there cited. As the issue was not raised, it is not necessary to go beyond those comments.
Consequently, it is necessary to consider the second of the questions I have identified above. That is, it is necessary to determine whether the particular terms of the proposed subleases mean that the agreement to enter into them is contrary to the interests of the members as a whole.
The Residents as members put their contention quite brutally: for $1, the Housing Associations have given up all rights, functions and representative activities in relation to their town camps so they cannot discharge their responsibilities to their members under Item 1.3 of their Constitutions and under their Rule Books. There is “an equation of $1 for no rights for at least 40 years”.
In support of the submission, they draw an analogy with the accountability of a corporation to the “interests of its members as a whole”.
Reference was made to Gambotto v WCP Limited (1995) 182 CLR 432 (Gambotto) as supporting the proposition that a company can act bona fide and fairly, and for the benefit of the company as a whole, but cannot do so if that overrides the rights of existing shareholders. I do not think that decision takes the Residents’ position that far. In that case, a small minority shareholder challenged the validity of a proposed meeting to consider amending the company’s constitution to enable a member entitled to 90% of the issued shares to compulsorily acquire the balance. The Court therefore had to address the limits of the power to alter the constitution of the company to enable the appropriation of the shares of a minority. Clearly, it is a very different type of case. The proposed resolution was not shown to be for a proper purpose, nor was it shown to be one which did not operate oppressively in relation to minority shareholders: see per Mason CJ, Brennan, Deane and Dawson JJ at 445 and 448. Their Honours pointed out also at 445 that the position may have been different if the right to expropriation had already existed in the company’s constitution.
Senior counsel for the Residents made the submission that the “interests of the members as a whole” was somehow different from the interests of the Housing Associations themselves. In cross-examination of a solicitor from Gilbert + Tobin (the solicitors for the Council) he elicited that their advice to the Council, and to a working group including certain Housing Association representatives, did not separately address the interests of the members of the Housing Associations as distinct from those of the Housing Associations themselves.
The significance of the distinction, if legally there is one, was not made clear. It is argued that the Housing Associations could not alienate their interests in the town camps under the respective Special Purposes Leases or Crown Leases either absolutely or for 40 years. That was said to flow from the proper construction and understanding of the objects and purposes of the Housing Associations. I have already addressed that contention. No reason was put why those objects and purposes should impose restrictions on the powers of the Housing Associations which preclude their capacity to agree to the proposed subleases as Housing Associations, and different restrictions on their powers because of the interests of their members as a whole. The plurality judgment in Gambotto 182 CLR pointed out at 444 that the observations of Lindley MR in Allen v Gold Reefs of West Africa Ltd [1900] 1 Ch 656 at 671 that the power of the majority to alter the articles of association of a company must be exercised in a lawful manner and “bona fide for the benefit of the company as a whole” was inappropriate where the proposed resolution involved a conflict of interests and advantages. The plurality judgment said at 444:
It seems to us that, in such a case not involving an actual or effective expropriation of shares or of valuable proprietary rights attaching to shares, an alteration of the articles by special resolution regularly passed will be valid unless it is ultra vires, beyond any purpose contemplated by the articles or oppressive as that expression is understood in the law relating to corporations.
Their Honours then said that, where the articles are proposed to be altered to allow expropriation by the majority of shares of the minority, a more stringent test of validity should be imposed: see at 445-6. There is no submission in this matter that the Housing Associations’ entry into the proposed subleases would in any way affect the rights of their members inter se. Clearly it would not do so.
If their rights as existing tenants were relevant, the proposed subleases would again not affect those rights as tenants differentially. The interest of the Residents as tenants of the Housing Associations is, as I have found, preserved by the proposed subleases. The benefit of the rent payments, and the repair and maintenance obligations of the landlord, pass to the Executive Director, but the right of occupancy granted under the tenancy agreements is maintained.
If their rights as members to be eligible in the future for a tenancy of available accommodation in a town camp were separately considered, again those rights as members would not be altered inter se, although the proposed subleases (clause 10) would impose a different decision-making structure for granting new tenancy agreements. The membership eligibility rules will be unchanged, and the Housing Associations will continue to determine in accordance with their Constitutions or Rule Books who becomes members of them. The proposed subleases do not extend the eligibility of persons to be granted a new tenancy agreement in respect of a dwelling in a particular town camp beyond those presently eligible for such an agreement.
Consistent with the expression in Gambotto, in Peters’ American Delicacy Co Ltd v Heath (1939) 61 CLR 457, Dixon J when upholding the validity of an alteration of the articles which discriminated against holders of partly-paid shares in favour of the majority shareholders said at 513 that the resolution
involved no oppression, no appropriation of an unjust or reprehensible nature and did not imply any purpose outside the scope of the power.
To the contrary, in New South Wales Rugby League v Wayde (1985) 1 NSWLR 86 it was expressly decided at 96 by the Court (Street CJ, Kirby P and Hope JA) that the phrase “the interests of the members as a whole” in s 320 of the Companies (New South Wales) Code is synonymous with “the benefit of the company as a whole” because the only legitimate interests of the members would be their interests as corporators. An appeal to the High Court was dismissed: Wayde v New South Wales Rugby League Inc (1985) 180 CLR 459. No comment was made upon the view of the Court of Appeal on that topic, although Brennan J in agreeing with the result of the plurality judgment at 471 made some additional comments upon it. Besanko J in Millar v Houghton Table Tennis & Sports Club Inc [2003] SASC 1 at [135] appears to have adopted the same view.
Szencorp Pty Ltd v Clean Energy Council Limited (2009) 69 ACSR 365, was also an “oppression” case brought in reliance upon the current statutory equivalent, s 232 of the Corporations Act 2001 (Cth), in relation to the conduct of the affairs of an unlisted not-for-profit public company limited by guarantee. It was an entity formed to effect a merger of two existing sustainable energy industry associations. Goldberg J at [59] remarked in the course of his reasons:
The “contrary to the interests” provision now contained in subpar (d) of s 232 has a separate and distinct area of operation from the “oppression” provisions in subpar (e) of s 232. The manner in which a company is being administered and in which its affairs are conducted may fall within the category of conduct contrary to the interests of the company’s members as a whole although it may not be described as oppressive, unfairly prejudicial to, or unfairly discriminatory against members of the company: Turnbull v National Roads & Motorists’ Association Limited (2004) 50 ACSR 44 at 52, 57; Campbell v BackOffice Investments Pty Ltd (2008) 66 ACSR 359 at 400. (See also Re Spargos Mining NL (1990) 3 ACSR 1 at 42; Shelton v NRMA Limited (2005) 51 ACSR 278.) An example of such conduct may be found where a company is formed for the purpose of undertaking particular activities but the directors and management disregard those activities and direct the company into different commercial areas.
The Residents correctly point out that, as his Honour said, the assessment of what is in the interests of the members as a whole of the Housing Associations must be assessed by reference to their objects and purposes. That is uncontentious, so long as their interests as a whole are in broad terms synonymous with the interests of the Housing Associations. Goldberg J did not suggest to the contrary. My analysis of their Constitutions and Rule Books is intended to reflect that approach.
Senior counsel for the Residents also referred to Pettit v South Australian Harness Racing Club Inc (2006) 95 SASR 543, a case concerning applications for membership of the association. Reliance was place on certain remarks of White J in [26] as follows:
1.The constitution of an association binds the association and all of its members. This means that the Committee was bound to apply the relevant provisions of the Club’s constitution in its consideration of the membership applications.
2.The requirement that an exercise of an association’s powers be for the benefit of the members as a whole is to exclude their exercise for “ulterior special and particular advantages”, that is, it negatives “purposes foreign to the association’s operations, affairs and organizations”.
…
4.Conduct by a committee of an association will be contrary to the interests of the members as a whole if no committee, acting reasonably, could have engaged in that conduct. [The supporting references were Wayde 180 CLR and Peters’ 61 CLR].
5.Conduct may be contrary to the interests of the members as a whole even though a committee does not act in bad faith. In Wayde, Brennan J said:
[I]f the directors exercise a power – albeit in good faith and for a purpose within the power – so as to impose a disadvantage, disability or burden on a member that, according to ordinary standards of reasonableness and fair dealing is unfair, the court may intervene …
…
7.However, proof of invalidity or non-compliance with an association’s rules may indicate that a decision is contrary to the interests of the members as a whole. This is because of the importance which the law attaches to adherence to the provisions of an association’s constitution. … [citations omitted].
Again, there is no suggestion in that case that the interests of the members as a whole is significantly different from the interests of the Association itself.
The Residents’ submissions then assert that:
The Corporations Law cases set out above involve “for profit” companies and conduct which is usually oppressive or unfair to some of the members. The principle is necessarily a stronger one where it is applied to a not-for-profit association established for the purpose of providing benefits and services to its members as its raison d’etre.
And they immediately continue:
In any event, both the Corporations cases and the Associations cases demonstrate that conduct which expropriates the rights of existing members and which departs from the objects of the relevant constitution and rules is not in the interests of members as a whole, albeit that it is bona fide.
Those propositions require some comment. There is, in my view, some mixing of concepts in them. In the first place, as the High Court pointed out in Gambotto 182 CLR, these particular considerations arise where the proposed conduct of the entity expropriates or is intended to facilitate the expropriation of the interests of particular members at the expense of others. That is not this case. The rights of the members of the Housing Associations inter se are unchanged. Secondly, the measure in fact of what is in the interests of the entity itself and its members as a whole will necessarily depend upon the constitution of the entity: a company formed “for profit” is likely to have a constitution which permits conduct which may not be permitted in the case of a not-for-profit association; in fact, each of the Constitutions and Rule Books of the Housing Associations prohibits them from trading for profit. But it does not follow that, somehow, the measure of what is “oppressive or unfair … is necessarily” applied more rigorously in the case of not-for-profit associations. The measure will still be the objects and purposes of the association. Thirdly, the second proposition set out in the preceding paragraph is really axiomatic. If a particular course of action is not authorised by the constitution, it may not be undertaken.
On the second issue, it is necessary therefore that the Residents show that the agreement to enter into the proposed subleases is contrary to the interests of the members as a whole, or effectively to the interests of the Housing Associations. Inevitably, on such issues, there are matters of judgment. Different members will make different commercial judgments about what is, or is not, in the interests of the Housing Associations.
The Residents’ submission is that their rights as members of the Housing Associations to have the Housing Associations “separately conduct its activities at the town camps for the benefit of its existing members” have been sold for 40 years for $1, without any other return provided as of right for the benefit of the members. I do not accept that contention. It mis-describes their entitlements under the proposed subleases. The general effect of the proposed subleases is set out above. If there is power under the Constitutions or Rule Books of the Housing Associations to enter into arrangements such as the proposed subleases, the aspirational objectives of the Housing Associations may be fulfilled or served by the Housing Associations arranging for another entity, such as the Executive Director, to engage in or conduct activities at the town camps to fulfil or serve those objectives for the benefit of the members.
Having taken that step, that the proper approach is to determine whether those persons acting on behalf of the Housing Associations are acting for proper purposes and could reasonably have engaged in that conduct. Barwick CJ, McTiernan and Kitto JJ said in Harlowe’s Nominees Pty Ltd v Woodside (Lakes Entrance) Oil Co N.L. (1968) 121 CLR 483 at 493:
Directors in whom are vested the right and the duty of deciding where the company’s interests lie and how they are to be served may be concerned with a wide range of practical considerations, and their judgment, if exercised in good faith and not for irrelevant purposes, is not open to review in the courts.
Whether the obligation of the Housing Associations and of those persons on their behalf is founded in the contractual relationship between the Housing Association and its members; or in the fiduciary obligation of the Management Committee of the Housing Associations to the members, or upon the Constitutions and Rule Books of the Housing Associations, in my view the appropriate question is for present purposes the same.

I have referred above to the finding that each Housing Association, although having no legally enforceable right to any particular part of the $100 million, could reasonably expect and assume that a significant proportion of that sum would be spent on housing and facilities at its town camp. They were aware of the fundamental importance of the town camps land to their respective members. They had negotiated with the Minister for over 12 months. They could reasonably conclude that no “better deal” could be reached. They could reasonably conclude that, if they did not agree to the proposed subleases, the town camps would be compulsorily acquired. They understood the very strong desire of their members to avoid alienation of their land (the land held under the Special Purposes Leases or Crown Leases), and so were making the decision which would ultimately preserve their lands rather than have them compulsorily acquired. They had secured some consultation rights, both directly and through the Forum. They were aware that the $100 million was a package for all the Housing Associations, and its allocation would follow consultation through the Forum. They were aware that the $100 million was required to be expended over a period of five years, and so would provide promptly benefits to existing members, as well as to future generations. They had consulted widely with their members. They had the support of the Council in their decision. They were aware that, under the terms of the proposed subleases, they could be given a significant and direct ongoing role (as recognised in Recitals I and J of the proposed subleases, and in respect of community land, vacant land and after three years potentially as a Housing Authority). As senior counsel for the Housing Associations argued, the Housing Associations were aware that there was no other realistic opportunity available to secure the potential benefits to the town camps which the expenditure of $100 million would bring; they knew of the past “years of inadequate funding leading to substantial housing and conditions for the members and tenants”; and they believed that that funding to the Housing Associations through clause 6(a) of the proposed subleases would directly serve their primary function of relieving the poverty, sickness and suffering and helplessness of Aboriginal people in Central Australia, including their members. Finally, they were aware that the proposed subleases would not preclude them from continuing to engage in activities directed to the six “means” set out in Item 1.3(b) of the respective Constitutions and Rule Books, save to the extent that certain of those activities would be subject to the role and obligations and activities of the Executive Director under the proposed subleases, and they were also aware of the ongoing important role of the Council.
All of those considerations lead me to the view that, if it is assumed that for appropriate consideration the Housing Associations had power to grant a 40 year sublease to the Executive Director ceding the degree of control of the lands of the town camps which it did, the decisions of the Housing Associations to grant the proposed subleases were for proper purposes and were reasonably in the interests of their respective Housing Associations and their members as a whole.
The submissions for the Residents did not suggest that, in practical terms, the content of the duties of the Management Committees or directors of the Housing Associations, whether founded in contract or equity or otherwise, were different. Consequently, on that assumption, I would have refused relief in the Sublease proceeding. On the conclusion I have reached on the first question set out above, there was no contractual provision which has been breached by agreeing to enter into the proposed subleases. That is, in essence, a consequence of how the members of the Housing Associations have chosen to express the objects and purposes of those Associations in their Constitutions and Rule Books.
ORDERS
For the reasons given, I consider that both the Section 47 proceeding and the Sublease proceeding should be dismissed.
I will give the parties the opportunity to make written submissions as to costs of those proceedings or to apply to make oral submissions on costs.

I certify that the preceding three hundred and seventy-nine (379) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.
Associate:
Dated: 26 November 2009

In proceeding No 547 of 2009:

Counsel for the Applicant: J Beach QC, D Harding & F Forsyth

Solicitor for the Applicant: Human Rights Law Resource Centre Ltd

Counsel for the Respondent: S Lloyd SC, L Clegg & A Mitchelmore

Solicitor for the Respondent: Australian Government Solicitor

In proceeding No 558 of 2009:

Counsel for the Applicants: J Beach QC, D Harding & F Forsyth

Solicitor for the Applicants: Human Rights Law Resource Centre Ltd

Counsel for the First and Second Respondents: S Lloyd SC, L Clegg & A Mitchelmore

Solicitor for the First and Second Respondents: Australian Government Solicitor

Counsel for the Third Respondent: S Brownhill

Solicitor for the Third Respondent: Solicitor for the Northern Territory

Counsel for the First to Eighth, Tenth to Thirteenth and Fifteenth Fourth Respondents: P Gray SC

Solicitor for the First to Eighth, Tenth to Thirteenth and Fifteenth Fourth Respondents: Gilbert + Tobin

Date of Hearing: 31 August 2009 and 1 September 2009

Date of Judgment: 26 November 2009

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

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

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

BETWEEN:	BARBARA SHAW, GEORGE ROBERTSON JAMPITJINPA, GWEN GILLEN, WARREN TONKIN, MELISSA BROWN, MARLENE HAYES, KEVIN WIRRI, MAUREEN WILLIAMS, RACHEL JURRA, ROSEMARY RUBUNTJA, PAMELA LYNCH, CHERYL MCMILLAN, JANICE PALMER Applicants
AND:	MINISTER FOR FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS First Respondent EXECUTIVE DIRECTOR OF TOWNSHIP LEASING Second Respondent NORTHERN TERRITORY OF AUSTRALIA Third Respondent ILPARPA ABORIGINAL CORPORATION, KARNTE ABORIGINAL CORPORATION, ANTHEPE HOUSING ASSOCIATION, ILYPERENYE ASSOCIATION INC, INARLENGE COMMUNITY INC, MPWETYERRE ABORIGINAL CORPORATION, YARRENYTY ARLTERE ASSOCIATION INC, AKNGWERTNARRE ASSOCIATION INC, ANTHELK EWLPAYE ASSOCIATION INC, APER-ALWERRKNGE ASSOCIATION INC, MOUNT NANCY HOUSING ASSOCIATION INC, ILPERLE TYATHE ASSOCIATION INC, EWYENPER-ATWATYE ASSOCIATION INC Fourth Respondents
JUDGE:	MANSFIELD J
DATE OF ORDER:	26 NOVEMBER 2009
WHERE MADE:	ADELAIDE (HEARD IN MELBOURNE)

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

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

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