Late yesterday, Federal Court Justice Alan Goldberg issued an injunction
preventing the Minister for Indigenous Affairs, Jenny Macklin from taking over the Alice Springs town camps. The matter will now proceed to a full hearing on August 28-31.
Until then, minister Macklin will have to sit on her hands. She’ll also have to hope and pray that the penny doesn’t drop for the mainstream media on how, exactly, this all went so badly off the rails. As it stands, she was able to sneak out this morning and blame it all on someone else.
"Work in the Alice Springs town camps will now be delayed and cannot start before this matter is heard," Macklin said. And she’s right, work can’t begin. Here's why.
When Macklin formally notified Tangentyere Council and the 16 Aboriginal housing associations that she was going to compulsorily acquire their land, no-one in the minister's office thought to notify the actual town camp residents, whose rights and interests were also about to be abolished.
That's right, despite having access, in theory, to the best legal advice money can buy, Macklin told the landowners she was taking their land, but forgot to mention anything to the actual tenants of the houses.
I'm no lawyer, but even I know that you can't compulsorily acquire a house out from underneath a tenant without at least telling them beforehand, otherwise, in the words of Ron Merkel QC at the Federal Court, you make them “trespassers in their own home”.
So contrary to the notion peddled by some that lawyers have delayed proceedings, work cannot start on the Alice Springs town camps because, thus far, Jenny Maklin appears to have acted illegally.
Further, anyone suggesting that it’s a group of lawyers running this process clearly hasn’t met the lead litigant in this case, Barbara Shaw.
It’s Ms Shaw who has caused the delay, and she’s done it because, unsurprisingly, she and many of her town camp neighbours aren’t very happy about the extinguishment of their rights without consultation.
Of course, none of this had to happen. The Minister could simply have got the process right in the place. Then there would be no grounds for a legal challenge, least of all an injunction granted by the Federal Court.
Macklin could, at any point in this legal process, have simply halted proceedings. She could, as Justice Goldberg has repeatedly suggested, have agreed to enter into mediation. At any time she liked, Macklin could have provided the town campers with the same 60-days notice that she gave Tangentyere, and then proceeded with her compulsory acquisition and/or her agreement.
But that would have necessitated the minister admitting she made a mistake. So instead, she’s chosen to throw hundreds of thousands of taxpayer dollars at a no brainer court action that thus far she is losing.
This is actually the second time that Macklin has erred in relation to providing a proper period of notice. Two weeks after announcing in May that she was going to compulsorily acquire the camps, Macklin came out and publicly admitted that she hadn’t provided Tangentyere Council adequate notice. She extended the notice period to 60 days, and rebuked the Australian Government solicitor’s office for getting it wrong.
The most extraordinary part of the story is that this is not a complicated area of law. Compulsory acquisitions by government occur all the time, and land law is among the most developed in the Commonwealth. It’s been around since the Middle Ages. Stuffing it up once looks careless. But twice?
The upshot is that journalists should be screaming for Macklin’s scalp on this. Instead, the minister has been allowed to wheel out the violins and play some sob story to a lazy, uninformed and largely uninterested media about how she was "saddened" by the delays. This injunction, Macklin claimed, would further harm the interests of the town campers.
"We had contractors ready to start work on Monday on cleaning up the town camps and conducting urgent repairs. This process means delays... of at least a month," Macklin lamented.
Urgent repairs? Contractors ready to start on Monday? Isn’t this the same minister who hasn't managed to build a single home in almost two years under her "national emergency" housing program?
I asked the minister’s office this morning to name names. Who are these contractors? No response. But for the sake of argument, let's accept that for a change, Macklin is telling the truth. She did actually have some workers lined up to start next week.
Since they’ve got nothing to do now, send them three hours north-east of Alice to the communities of Utopia and Ampilatwatja, where about 100 Aboriginal people are living in rusted out car bodies and tents in the middle of the freezing desert winter because their town was overrun by sewage
three weeks ago.
These people are in deep sh-t, Jenny. Surely you can identify with that?