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ANGE:

From Schwartz Media, I’m Ange McCormack. This is 7am.

Renters across Australia are facing a worsening housing crisis. With hikes in rents and growing complaints about the quality of living in rental homes, many are at breaking point.

Renters rights are now on the national agenda, as national cabinet considers options for strengthening the hand of those who rent.

But now, a high court judgement has redrawn the relationship between tenants and landlords.

Today, senior reporter for The Saturday Paper Rick Morton, on how one community fought for a case that will change the rights of renters nationwide.

It’s Wednesday, November 8th.

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ANGE:

Rick, last week we heard about a big high court verdict that could actually be good news for renters across Australia. We so rarely have good news for renters. So, is it true? Is there finally some good news for us?

RICK:

I'm actually just about to say the same thing. It doesn't happen very often, where renters have something go in their favour. It's very much a system stacked against them when so many people are now renting throughout Australia. But you're right, the High Court of Australia delivered a pretty significant finding that could actually improve the situation for anyone who is a tenant across Australia. And it came from this really curious and interesting case that a lot of people probably hadn't heard anything about until this High Court case was handed down.

ANGE:

So Rick, can you tell me about Ms. Young, one of the women at the centre of this historic High Court decision over the state of her rental home in the NT? Who is she and what were her rental conditions like?

RICK:

So Ms. Young lived in Ltyentye Apurte, also known as Santa Teresa, which is a small, remote Aboriginal community about 80 kilometres southeast of Alice Springs. It's pretty much smack bang in the middle of the country. She rented, for all intents and purposes, a house owned by the government through NT housing, they called it. But this house and others like it in this community presented particularly exceptional and shocking, kind of, conditions. So, I'm going to run you through some of it.

Ms. Young spent more than five and a half years without a back door. No door at all. And she testified, through the use of a translator because Eastern Arrernte was her first language. And she said that it wasn't just the back door though, you know, she had a shower and drain that had been leaking for 2117 days. Her toilet flushed poorly and failed to clear waste for 534 days. That's, you know, almost two years. She had no air conditioner for 2121 days, or almost six years. And this is a town that's in the middle of the outback. It's actually not too far from the hottest place in Australia, Oodnadatta, where the hottest temperature ever recorded in Australian history was recorded.

So in 2016 Ms. Young, and she was in her seventies at the time, was part of a group from this community that filed, a group of 70 people, that filed applications against the chief executive of Northern Territory housing in the Northern Territory Civil and Administrative Tribunal. But of those 70 cases, the tribunal decided they couldn't go through every single one because it would just take forever. So they picked out four cases. Ms. Young’s was one of them. And they decided that they would resolve those cases and apply the results to the other applications. And basically they were arguing that the dwellings in which they lived, the renters, had been left in a state of shocking disrepair and were unfit for habitation, and that following on from that, they experienced distress, loss of quality of life, loss of enjoyment of a place that they should be able to call their home because of this negligence. And well, I think the facts speak for themselves. That was seven years ago.

ANGE:

Yeah. And they sound like pretty awful conditions, to put it mildly. So what was the NT government’s side of the story? How did they justify what housing they were providing?

RICK:

I find this really interesting because I'm not sure that the Northern Territory Government ever did justify precisely the standard of the dwellings that they provided. But they did take a very combative, quite aggressive approach in defending themselves, right from the very beginning. So at the tribunal, you know, representatives for the CEO of NT Housing, rather than kind of come to the table on negotiating repairs and maintenance and all the rest of it, because they basically didn't have any money, they tried to counterclaim or counter sue the people in the tribunal for unpaid rent. Now, despite all of this, the law on rental tenancies is incredibly tricky because it crosses over general contract law and also, there aren’t a whole heap of test cases that are particularly relevant to rental properties where people live in them. It's strange. It's a strange beast, right? So the NT government, essentially NT Housing, essentially wins in the tribunal. Not everything they wanted but they mostly get the key claim from Ms. Young struck out. And then that then, of course, triggers a round of appeals to the Northern Territory Supreme Court, which then goes up again. And it's a circuitous route and there are years and years and years of court processes and several different courts involved until, we obviously get to the High Court. Which finally, finally earlier this month handed down a decision on something that Ms. Young started her fighting, you know, in 2016.

ANGE:

Right. And so what was the outcome there? How did the high Court view this issue of whether the anti-government hadn't provided safe housing to their tenants?

RICK:

Well, the tenants won. They beat the government. And I was talking to Dan Kelly, who's the solicitor of Australian Lawyers for Remote Aboriginal Rights.

Audio excerpt - Dan Kelly:

“My name is Dan Kelly and I'm a solicitor with Australian Lawyers for Remote Aboriginal Rights.”

RICK:

Who really kind of shepherded this case from the very beginning.

Audio excerpt - Dan Kelly:

“So what the High Court decided last week, they confirmed a new type of compensation that renters are entitled to when their house is run down or dilapidated. And if the condition of that house creates for them mental anguish, or disappointment and distress, that's an injury for which tenants could now be compensated.”

RICK:

And, you know, he said it quite clearly that this is about compensation for mental anguish that's caused by living in a dilapidated house. It's compensable. In the past, those interpretations of, you know, you have the right to enjoy promises made under a contract were typically reserved for recreational things. Now, what we've got, according to Dan Kelly in this case in the high court, is them saying, well, actually, if you have a tenant of a residential property, not so much a commercial property, but a residential property, part of the right to, you know, enjoy the quiet and safe premises that you have. Part of the right to that enjoyment is to be free from harassment, harm or, you know, free from molestation, they call it.

Audio excerpt - Dan Kelly:

“So this litigation was brought under the Residential Tenancy Act. But that form of legislation exists in all states and territories. There are some variations, but the basics of the legislation are the same in that a landlord is obligated to provide people with a decent house. So this decision of the High Court could well apply in each of those jurisdictions and throughout the country. So it started off in a little community in the Northern Territory, but it has now the potential to affect renters all throughout Australia.”

RICK:

That's huge because this isn't just about Ms. Young now. The irony is not lost on me that, you know, the fight for some of the most disadvantaged people in the country delivers the results for people everywhere else.

Audio excerpt - Dan Kelly:

“It is nice that a fight from a little community up in the NT might now have benefits for all the young people locked out of home ownership around the country.”

RICK:

So this was a huge win for the residents of Ltyentye Apurte, or Santa Teresa, because they will be compensated for their distress and disappointment, and the High Court now has remitted this decision back, essentially to the tribunal, to then go through the other cases that were lodged with it all those years ago. And as we noted, every renter now will be able to look at this case and apply it to their own circumstances. And so now every landlord who has failed or neglected, to the proper upkeep of a home, is really now on the hook for damages if they don't do the right thing.

ANGE:

After the break - how this decision can be used by renters across the country.

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ANGE:

So, Rick, we're talking about this high court decision about renters in the NT that has set new precedents for renters. Can you tell me a bit about how this will practically change things for people renting all over the country?

RICK:

It will make a huge difference. This decision fills a gap beyond questions of mere function. You know, you can ask yourself, did the door lock? Did the oven work? Did the toilet flush? Anyone who's ever rented a property has had all of those questions and has often begged their agent to come and fix something. But those are questions of function. What this High Court case establishes now is that those questions of function have a direct effect on the quality of life of a tenant, and that actually matters. I guess the best outcome from here, you see agents being more proactive about actually making sure the properties they rent out already meet standards and are responding to the requests as they come in. And interestingly, you know, again, I was talking to Dan Kelly, the lawyer in the NT case, and he explained that this case can now be used by renters everywhere when they take their cases to tribunal.

Audio excerpt - Dan Kelly:

“Essentially, anybody who suffers a mental anguish or distress because of the condition of the house, that condition could be of any kind, provided it creates the mental distress in the mind of the renter.”

RICK:

And this is really interesting. He said, now we have this decision and if you have suffered distress and disappointment in a tenancy, you can absolutely cite this case before a tribunal. And then he went on to say, in fact, you should.

Audio excerpt - Dan Kelly:

“So, I mean, anybody I think who was stressed out or left feeling miserable would be able to be compensated.”

RICK:

In other words, even if you're not in the NT, if you're in Sydney or Melbourne or wherever, you can cite this case. It's precedent. And this is a huge one because we now have it settled. It had never reached, this question had never reached the High Court. The furthest we've ever been is a few Supreme Court decisions in favour, the same way in New South Wales, for example, But now we've got the highest court in the country and it essentially says that what Ms. Young went through was not okay, and your landlord should not be able to get away with the same thing either.

ANGE:

What does it say about the rights of renters in Australia today, Rick, that this precedent wasn't already set, and that it took a High Court case to prove that, you know, a back door is necessary for tenants to live in a dignified and enjoyable life in a home?

RICK:

I mean, I think it goes to the heart of so much about the rental discourse in Australia as being predicated on technicalities. And I really do think, possibly because of the way renting as a… not so much a way of life, but as a necessity because you can't afford property, has evolved. Like that evolution has been slow and the rest of the debate in Australia hasn't really kept up with the fact that people are not renting to choose where they can live and have some fun in their twenties and thirties anymore. They're renting because they can't afford anything else, and they can barely afford renting. They certainly can't afford to have rights or to take their landlords to the tribunal all the time. You know, renters in Australia have remarkably few rights, particularly compared to other countries, particularly compared to European countries. And, you know, interest rate rises and living, cost of living crises, battering everyone at the moment. But renters have been copping these extraordinary increases that themselves have been singled out by the Reserve Bank of Australia as one of the key drivers of inflation, which then of course put the rates up and ad infinitum. You know, in a very significant sense, this High Court decision is important because, you know, we've got learned people going through the law and saying, well, actually, you know, you can't just have carte blanche on an investment property and refuse to do maintenance and repairs because you want to save money. That's not the contractual obligation you've entered into. It's mutual. The renter is paying you money, but you are providing a service. You're not just providing a hovel and you don't get to get away with that. Now, obviously, in the long term, what does it all mean? Not much. There's lots of other things that need to change. And not every renter is going to be able to take the landlord to a tribunal. But still, you know, something has changed. It's different. It's better than it was before. Does that mean the tide is turning? Maybe not. But certainly the pressures are so extreme now that renters can't continue going on the way that they are going.

ANGE:

And this outcome was only achieved because of an eight-year fight by a community of indigenous renters. And even though they won, they had to live through years of living without doors, leaking toilets and generally unsafe housing. What does this result mean for them now and in the near future?

RICK:

I mean, look, we're talking an almost eight year fight. The really horrifying thing about all this is that Ms. Young was elderly when she, particularly for a First Nations person, in her seventies. And after the high court heard the arguments in this case in March this year but before they delivered their verdict the first week in November, Ms. Young died. So, she never got to see the answers. Like she never actually got to know for sure that she won. So, I mean, it's just sad. It really is.

But I did speak to her niece, Annie Young. And Annie Young is incredible. And Annie Young really started advocating for this stuff years and years and years ago. She decided that housing was a big deal. She's in their fifties now. And she said to me, she said, I've got a lot of energy, still got a lot of energy, which I think is very cool. And I think they're going to need it because within a day, right, within a day of this High Court decision, you've got Slater and Gordon, a law firm, they’ve now said they’re working with Dan Kelly to investigate a potential class action on behalf of thousands of tenants living in substandard, their words, public housing in remote Aboriginal communities in Western Australia. And they're just the remote Aboriginal communities. Then you've got every slumlord essentially operating boarding houses, absolute dives in suburban Australia. They're all on notice. And they absolutely should be. And Ms. Young, who fought for this from the very beginning, now gets to claim that as her legacy. And what a legacy, to have done something, despite all of that, you know, effort through the court system. To have done something that actually might make things better.

ANGE:

Rick, thanks so much for your time today.

RICK:

Thanks, Ange. And I appreciate it.

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ANGE:

Also in the news today…

The RBA has increased interest rates for the 13th time since May 2022, in an attempt to curb inflation.

Interest rates have been lifted to a 12-year high of 4.35 per cent.

And,

The chief of the United Nations says he is mourning the loss of dozens of UN aid workers in Gaza.

António Guterres said “more UN aid workers have been killed in recent weeks than in any comparable period in the history of our organisation.”

I’m Ange McCormack and this is 7am. We’ll be back again tomorrow.

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