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Jenny Macklin... the Minister for Indigenous Affairs has suffered a major blow to her plan to forcibly takeover the Alice Springs town camps. |
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ALICE SPRINGS TOWN CAMP TAKEOVER DERAILED: Federal Court issues injunction against Macklin deal
Thursday, 23 July 2009
By Chris Graham
NATIONAL, August 6, 2009: Jenny Macklin's move to takeover the Alice Springs town camps suffered another major blow with the Federal Court issuing an injunction preventing the minister from proceeding with the deal.
Justice Alan Golberg this afternoon issued injunctions against the compulsory acquisition of the town camps, and against the execution of a deal between the government and Tangentyere Council.
The matter will now proceed to the Federal Court for a full hearing on August 28 to 31.
It is a major embarrassment for a minister already under siege over her performance on Indigenous housing.
On May 24 this year, Macklin announced she would compulsorily acquire the town camps after Tangentyere Council - the organisation that manages the land on behalf of the 18 town camp housing associations - refused to sign over control in exchange for a $125 million upgrade to housing and infrastructure.
A week later, Macklin was forced to publicly admit the process had been botched - the Australian Government Solicitor's office had warned the minister that the 'period of notice' provided to Tangentyere was insufficient. An annoyed Macklin publicly rebuked her the government lawyers, and extended the date of the takeover to August 4.
But two weeks out from the deadline - in late July - lawyers for prominent anti-intervention campaigner and town camp resident Barbara Shaw launched a legal challenge in the Federal Court against the planned acquisition.
They sought an injunction against any forced takeover, arguing that while Macklin had properly notified Tangentyere and the housing associations that she intended to seize their land, she hadn't notified the 200 or so residents who hold individual lease agreements over the houses in the town camps.
Under Australian law, government cannot compulsorily acquire someone's property interest - whether it be ownership of land or rental of a house - without properly notifying them.
It was an extraordinary oversight from a Minister who has, in theory, access to the best legal advice money can buy. A deal with Tangentyere, rather than forced acquisition, suddenly became Macklin's only real option.
Within a week, a triumphant Jenny Macklin announced a "major breakthrough" in negotiations with Tangentyere. The council and the housing associations had finally agreed to sign over control of their land for 40 years, in exchange for $138 million in infrastructure and housing upgrades.
It rendered Barbara Shaw's challenge, at least on the surface, invalid. But there were still a few surprises in store for Macklin and her minders.
Shaw's pro bono legal team - prominent Queens Counsel Ron Merkel, the Human Rights Law Resource Centre, leading international law firm Allens Arthur Robinson, George Newhouse, a prominent Sydney-based human rights lawyer and UTS-based lawyers Professor Larissa Behrendt and Alison Vivian - simply sought a second injunction, this time against Macklin executing any deal with Tangentyere and the housing associations.
Her legal team argued that whether the land was seized, or taken through negotiation, the tenants still had rights and interests that should be legally protected.
The matter was in heard in court last week, and what emerged was political dynamite.
In writing to the Minister to accept the takeover deal, Tangentyere's lawyers - respected Sydney law firm Gilbert & Tobin - delivered a stinging summation of the minister's conduct in 'securing an agreement' to lease the land.
"The housing associations have agreed to enter into the sub leases for the simple reason that you have threatened them with compulsory acquisition if they do not...," Gilbert & Tobin wrote.
"The loss of tenure to these lands is something that is abhorrent to the housing associations and they could not run the risk that it might occur."
Gilbert & Tobin added that it was "... in the overriding best interests of the associations and their members that their interest in these lands be maintained rather than completely forgone".
"Acquisitions of these lands would not allow the associations or members to have any input into protecting their rights or interests.
"This ultimate risk of compulsory acquisition has hovered in the background throughout the protracted negotiations."
The letter, obviously, was a major embarrassment for Macklin - she had depicted the 'breakthrough' as a win-win for all parties, and an opportunity for the groups to "work together to give children in the camps a better chance at a safe, healthy and happy life."
The sting from Gilbert & Tobin raises serious questions about the legality of the entire process under Macklin and her minders.
Add it to the growing list of bungles:
o In March, NIT leaked details of a letter Macklin wrote to all state and territory housing ministers, directing them not to expend Commonwealth funds on public housing on Aboriginal land unless they first gained a minimum 40 year lease. The position was a complete turnaround from her policy in Opposition. In July 2006, Macklin gave a passionate speech to parliament, replete with quotes from the iconic Paul Kelly/Kev Carmody song 'From little things big things grow', in which she attacked former minister Mal Brough for trying to link the provision of basic services to land tenure. Macklin noted that only Aboriginal people's property interests would be treated so poorly.
• In late March, Macklin accepted advice from her department which warned her against formally consulting with Aboriginal people in the NT over the compulsory acquisition of their land for five years under the Northern Territory intervention legislation. The department warned that a formal process would be expensive and tie up resources, and was unlikely to get the government the outcome it wanted - voluntary leasing of land. Macklin accepted the advice just one week before she endorsed the United Nations Declaration on the Rights of Indigenous Peoples, which committed her government to consultation with Aboriginal people. That advice is now the subject of a complaint to the United Nations.
• Last month, NIT revealed that Macklin was warned in early 2008 against proceeding with a new model to provide housing under the NT emergency intervention. She was told the SIHIP program would not deliver in housing for years, and would force up the price of construction. A year down the track the predictions came true - no houses have yet been built under the NT intervention, and none expected before late 2010 or early 2011. The cost of housing has sky-rocketed, with companies quoting prices nearing $700,000 for a single home.
• Macklin's handling of the SIHIP program may end up costing Labor power in the Northern Territory. This week, NT Indigenous affairs minister Alison Anderson resigned from the party over the NT and federal government's performance in delivering housing to Aboriginal communities. It remains unclear whether the Henderson government now holds enough seats to retain power.
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