High Court awards Timber Creek native title holders $2.5m, partly for 'spiritual harm'

By Felicity James

The High Court has ruled native title holders from the remote Northern Territory town of Timber Creek will receive $2.5 million in compensation for loss of their rights, including spiritual connection to the land.

Key points:

·         The dispute has been about how to calculate compensation for extinguishment of native title rights

·         The Timber Creek claimants will get $2.5 million, down from the $3.3 million originally awarded

·         The High Court rejects claims that $1.3 million for "spiritual harm" is excessive

The test case — described as one of the biggest since Mabo — brought the High Court to the Northern Territory last September for the first time in its history.

It was the first time the High Court had examined the Native Title Act's compensation provisions, including how to put a price on intangible harm caused by disconnection with country.

The claim by Ngaliwurru and Nungali native title holders was about rights that were extinguished through the building of roads and infrastructure by the Northern Territory Government in the 1980s and 1990s.

The final amount of $2.5 million in compensation settled on by the High Court is divided into three components — economic loss, interest and non-economic loss related to the "spiritual" harm caused by disconnection.

It includes $1.3 million for the non-economic loss. The court rejected the argument from the NT and Federal Governments that the amount was "manifestly excessive".

"The compensation for loss or diminution of traditional attachment to the land or connection to country and for loss of rights to gain spiritual sustenance from the land is the amount which society would rightly regard as appropriate for the award for the loss," the majority judgement said.

The decision has set a precedent for similar claims across the country.

Queensland, Western Australia and South Australia were "interveners" or interested parties in the case, supporting the NT and Federal Governments' position.

Governments win argument about 'economic loss'

The appeal process began after the Timber Creek native title holders were awarded a total of $3.3 million in compensation for extinguishment of their native title rights in 2016.

That decision by Federal Court Justice John Mansfield was challenged by the NT and Federal Governments.

The Full Federal Court then reduced the compensation amount to $2.9 million.

Both the NT and Federal Governments appealed again to the High Court, along with the Ngaliwurru and Nungali claim group.

The Federal and NT Governments argued the native title rights were "overvalued" and the economic loss should not be worth any more than 50 per cent of the freehold value of the land.

The High Court agreed with that argument and awarded $320,250 for that component.

That was partly because Timber Creek was covered by a pastoral lease in the 1880s, which meant native title holders did not have the right under Australian law to exclude people from the land but kept "non-exclusive" rights to hunt, fish and practice their law and culture.

The Ngaliwurru and Nungali people had argued the loss of their native title rights was worth the entire freehold market value of the land.

An end to unfinished business

The lead claimants Lorraine Jones and Chris Griffiths spent several years in court, finishing a job that their late fathers started in 1999, when the native title applications were first filed.

PHOTO: Lorraine Jones and Chris Griffiths continued the fight begun by their late fathers. (ABC News: Mitchell Woolnough)

Ms Jones said loss of culture was the most important part to be recognised, describing it as "like a tangle in the tummy".

"It hurts like something happens to your family," she said.

Mr Griffiths said he was disappointed the economic loss component of the compensation was reduced, but that recognition of their spiritual connection was "what our old people wanted".

"To prove that our culture is still alive, our law is still in the land, our blood is still running in the country, our tears will fall on the land," he said. 

Mr Griffiths and Ms Jones said the Ngaliwurru and Nungali people will decide as a family group how they will use the compensation.

Northern Land Council lawyer Tamara Cole, who has been overseeing the case with the claim group for almost a decade, said the NT Government would be responsible for paying the compensation.

"Native title holders around Australia have been waiting for the High Court to deliver its decision in Timber Creek, so they can get on with their negotiations with state and territory governments to arrive at fair amounts of compensation," Ms Cole said.

First posted 13 Mar 2019, 4:36pm

My anger with George Pell has been replaced by immense sadness

 by

Christos Tsiolkas

I don’t see a monster. I see all the women and children and men and nuns and priests destroyed by shame, fear and lies.

I have been angry with Cardinal George Pell for a long time. That anger was first stirred by his absolute disdain for extending compassion to people living with Aids, and also by his refusal to accept queer people into Catholic fellowship. I was also made furious by his perverting of the teachings of the Gospels, most clearly visible in his prioritising of political alliances with the rich and the powerful rather than offering ministry and care to those most in need. So I understand the righteousness that many people are feeling and expressing, now that he has been convicted of the sexual abuse of two young boys. A hypocrite has been caught out and is being punished. Of course we are going to exalt in that.

Except, on seeing him being led out of the courthouse and into the media scrum, my anger fell away and all I felt was an immense sadness.

The ugly story of sexual and physical abuse in the Catholic church is one of the defining stories of our age. As we all do, I know many people who were raised in that church who now find it impossible to remain loyal to the faith. The betrayal, especially for those who have suffered the abuse, is too great.

Yet in acknowledging the horror I don’t want to forget the many Catholics I have met who have remained true to what I believe is the most profound of Jesus’s teachings. I am thinking of the Catholic nurses I met during the worst years of the Aids epidemic, who cared for sick and dying friends even when their church had seemingly turned its back on the ill. During the height of the economic rationalist slashing of social services by Premier Jeff Kennett in Victoria, I witnessed the same care extended to the homeless and to those most affected by recession and poverty. And most recently, I have been humbled by the Catholics I have seen fight for the rights and dignity of the asylum seekers.

I’ve been to the Vatican and there is nothing of the wisdom of Jesus there. I’ve witnessed it on the streets, the detention centres and hospital wards of my city.

George Pell will appeal his conviction and he has every right to do so. But for the purposes of trying to understand why my anger has been replaced by sadness, let us assume that he is indeed guilty of those crimes. The real tragedy is then the abuse visited on the boys. But I can’t help also wondering what it has meant for this man, once we strip him of the aura of his cardinalship and priestly authority, to have clearly led a life as a lie? For years Pell has publicly and vehemently pronounced against the evil of homosexual behaviour. He has been one of the key figures in the institutional church fighting against any leniency or change to Catholic teachings on sexuality. Has he, then, in part, been fighting against himself?

I count myself lucky. I only had a few years where I lived inside the lie of hiding my sexuality. I can write that now, with almost a cavalier objectivity, but in my adolescent years living that lie nearly destroyed me. I did believe myself shameful and I did believe myself monstrous, and I thought that if God did not cure me of my affliction, then the only course left open to me was to take my own life. I loved my family, I loved my friends, I loved my God, but I feared that if I revealed this one truth about myself then I would be cut off from their love for eternity.

Where I was fortunate was that my family and friends did not turn away from me, and that in high school I had two teachers who clearly understood the nature of my struggle against the lie, and who steered me towards books and films that offered me glimpses of how to live an honourable and truthful life. I was also fortunate in coming of age in a time when Gay Liberation had already challenged the laws that made my sexuality illegal, and had started dismantling the social stigmas that made that sexuality shameful.

Maybe I was lucky too that I was raised Orthodox Christian and not Catholic. Unlike many of my peers who were raised in the Catholic church the promise of the priesthood was never an option for extending the lie. The Orthodox priests can marry. Beyond that, the almost idolatrous revering of the priest that has always puzzled me about Irish-Catholicism was never a part of my Orthodox heritage. Both my parents had faith but they also had a strong suspicion of the clergy. “They are men, a few are good, the rest are a pack of wankers!”

At 18, after coming out to Mum, she pleaded with me to go to confession. I didn’t believe I needed to confess anything but to please her I went along. I told the priest that I was there because my mother was distressed that I was homosexual. He pulled up a chair next to me, and placed his hand alarmingly near my crotch. He told me that God loved all the creatures he had created. I firmly smacked his hand away and left. When I told my mother she groaned and said, “You should have bashed the Bible across his head!” But I wasn’t angry at that priest. In truth, I pitied him. He was just a man, just a closeted gay man. I was thankful I didn’t have to lead that life anymore.

Many years later I had a night getting drunk with a group of Catholic priests. They were good men, people I had met who worked in social justice and on the streets. I helped one of the priests, now very drunk, up to his room in the seminary, and put him to bed. He fell asleep immediately, and I looked around the tiny room, at his single bed, the icons and the crucifix on the walls. He was in his late fifties but it reminded me of a schoolboy’s room. It was a cruel thought but I had it: these men have never grown up.

I wonder sometimes what would have happened if I had been born a generation earlier, before Gay Liberation? Would I have married and had children? And in doing so, would my own self-loathing at living a lie have turned into a bitter hate that would have betrayed family, friends and community; would I have never known what it is to love and be loved? I too might have never grown up.

So, when I saw the media images of Pell’s haggard face as he was led out of the courthouse, when I heard the abuse hurled at him, I felt that great sadness. And that spark of empathy. I wondered whether this was a man who had led a lie for decades, and in leading that lie, did he even forget what it was to be human outside it? I know that none of this excuses his hypocrisy, his vainglory, and the perversion of the Gospel teaching that the “last shall be first and the first last”; and it certainly doesn’t excuse his own abusing, and the shameful covering-up of abuse within the church he led. But it may be that even though I no longer profess to be a Christian, some of the foundational tenets of the faith remain vital for me.

I have returned to the Christian Bible many times throughout my life and I am always struck by how there is only a scattering of references or teachings to do with sexual morality. It is compassion, charity, love and humility that are at the centre of the New Testament Gospels. Shame and fear of sex and the body – and the hypocrisy and perversion that arises from this – have compromised Catholicism for centuries. When I observe this tragic mess, when I truly look at the face of George Pell, I don’t see a monster and I don’t see an ogre and I don’t see Satan and I don’t see the Devil. I see the children and the women and the men and the nuns and the priests who have been destroyed by this shame, and this fear, and this living of lies.

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It is long past the time for the church to grow up.

Christos Tsiolkas is an Australian fiction author. He wrote the books The Slap, and Barracuda 

What lies beneath the cracks in Opal Tower — and buildings across Australia

By Laura Crommelin, Bill Randolph, Hazel Easthope and Martin Loosemore

Posted 17 Jan 2019, 5:55am

The saga of Opal Tower, the 36-storey Sydney apartment building evacuated on Christmas Eve after frightening cracking, has helped to expose the deep cracks in Australia's approach to building apartments.

An interim engineering assessment released yesterday indicates concrete panels cracked due to their manufacture and assembly deviating from the original design. Though the building is structurally sound and in no danger of collapse, repairing the faults will be costly, slow and disruptive to residents.

The tower's size, age (it is less than six months old) and the timing of its cracks might have made it particularly newsworthy, but badly built apartment blocks are far from unusual. Right now across Australia's cities many buildings have significant leaks, cracks and fire safety failings.

So we can't just address faults in individual developments. We need to identify the systemic flaws in how "compact city" policies have been planned and implemented.

Cracks in the compact city

The consequences of these flaws increasingly affect us all.

As the population of Australia's capital cities grows, more of us are living in apartments. Governments have been promoting greater housing density as an alternative to sprawl for decades. But they haven't always ensured this density has been done well, including in terms of building quality.

In the aftermath of the Opal Tower saga, experts have pointed to many reasons why building defects can occur.

These include the fact that developers owe buyers few legal obligations once the apartments are sold, which limits their risk if they get things wrong. There are also significant market pressures, particularly in boom times, to build quickly and cheaply. And there are gaps in how the construction process is overseen, meaning errors go unnoticed.

These are not new observations, but getting regulations in place to address them has proven challenging. A case in point is NSW's new defects bond, requiring developers to put aside 2 per cent of the building value to fix defects down the track. The bond's introduction was delayed for years, and it will be a few more years yet before we know if it works.

Scoping the problem

So just how severe is the situation? Right now, we don't know for sure.

In 2012 a City Futures Research Centre project surveyed apartment owners in NSW. Out of more than 1,000 respondents, 72 per cent knew of defects in their strata-title complex. Among those whose apartments had been built since 2000, the percentage was 85 per cent.

That project only looked at building defects as one of a number of issues facing apartment owners, however, so it didn't document the issue in detail.

Our new research project will examine just how prevalent building defects are, the reasons they occur, and how strata-titled housing can be improved.

While the research will focus on Sydney, we hope it is a step towards changing planning and development policies to ensure better quality apartment buildings nation-wide.

Increasing inequality

A system allowing defective apartment buildings not only creates huge financial and emotional stress for residents but much wider economic and social risks.

Poor building practices undermine confidence in the multi-billion-dollar construction industry, the strata management industry and in the planning system.

They also contribute to inequality. This is because apartment residents are more likely to be younger, renting, on lower incomes, and from non-English speaking backgrounds.

Amid growing concerns about the widening gap between housing "haves" and "have nots", there is renewed political interest in housing policy. Certainly this is a crucial issue for governments to tackle, but it goes beyond a focus on housing supply and prices. Addressing quality must also be a priority.

At the same time, we also need to step back and reconsider how we do compact-city planning more broadly — including the roles governments and the private market play. With two-thirds of us now calling our biggest cities home, we need to have a serious public conversation about what we want our cities to be and how we can best achieve those goals.

We can't afford to ignore the growing evidence that our cities are cracking under the strain. Because like the Opal Tower owners, we're all going to bear the cost when things go wrong, and we'll all have to live amid the wreckage.

Laura Crommelin is a research lecturer at UNSW; Bill Randolph is director of the City Futures Research Centre, Faculty of the Built Environment, UNSW; Hazel Easthope is an associate professor in centre; and Martin Loosemore is a professor of Construction Management at UNSW.

This article first appeared on The Conversation.

Australians of the Year 2019

So proud of you.

Codey Herrmann faces court charged with rape and murder of Aiia Maasarwe

By Erin Pearson, Matilda Boseley & Joe Hinchliffe The Age

The man accused of killing 21-year-old international student Aiia Maasarwe has fronted court charged with her murder.

Codey Herrmann, 20, sat silent during the brief hearing at Melbourne Magistrates Court on Saturday afternoon, dressed in a green T-shirt, following his arrest on Friday.

Codey Herrmann

The court heard the aspiring rapper had also been charged with rape. Particulars of the rape charge have not been released, with the court told some of the "specific words" aren't yet known to the family.

A mental health assessment was requested for Mr Herrmann. He made no bail application and was remanded to reappear on Monday.

When magistrate John Doherty asked Mr Herrmann if he knew what he had been charged with, he replied “yes”. “It’s alleged you murdered Aiia Maasarwe and it's alleged you raped that person,” Mr Doherty said.

Liaison officers had earlier tried to prevent Mr Herrmann from being brought up from the cells to the courtroom for the hearing, but Mr Doherty intervened and requested the accused appear.

When he entered the court, Mr Herrmann sat with his head bowed and avoided eye contact with those sitting in the mostly empty room.

On either side of him sat security officers, with no friends or family attending the hearing.

Mr Herrmann, a self-described rapper who went by the name MC Codez, was arrested by police at a park in Greensborough on Friday, two days after Ms Maasarwe was found near a Bundoora shopping centre.

At the same time, homicide detectives and forensics police descended on a derelict, weatherboard house on Grimshaw Street, Bundoora.

Ms Maasarwe was on her way home from a gig at The Comics Lounge in North Melbourne and was speaking to her sister on her phone via FaceTime when she was allegedly attacked.

Ms Maasarwe's death has rocked Melbourne, where thousands have taken to the streets as well as social media to express outrage and grief over yet another unprovoked killing of a young woman who was simply going about her life.

Her father Saeed Maasarwe spoke at a vigil at Parliament House on Friday night, thanking the more than 1000 people who attended, while hundreds took part in an emotional journey on the 86 tram, filling it with flowers and tributes.

Prime Minister Scott Morrison met Mr Maasarwe on Saturday afternoon.

“The words will fail me I’m sure, as one father to another,” Mr Morrison said at an earlier press conference.

Accompanied by his wife and two daughters, Mr Morrison laid flowers on Saturday at the site where Aiia was found.

“I want to thank those other families and other Australians who have just been quietly passing by and paying their respects, and laying down flowers, leaving cards,” he said.

“I had the chance to read some those messages and talk to them. It was very quiet, and I think that the country is very shaken by it, but at the same time as always reaches out and seeks to comfort."

Tom Meagher, whose wife Jill Meagher was murdered in Brunswick six years ago, has taken to Twitter to pay his respects to Aiia and her family.

“I am so thoroughly sick to my stomach of men murdering women," Mr Meagher wrote. "The human cost of male violence is staggering, the incalculable social trauma and human misery it engenders is soul destroying. Its weight is intolerable

“RIP Aiia & love to her family.”

Ms Meagher was raped and killed by Adrian Bayley while walking home from a night out in September 2012.

Mr Meagher has since been an active advocate for women’s rights and safety.

Opal Tower residents face six-week wait to go home, others left out of pocket

 By Rebecca Trigger and Jonathan Hair ABC News

Some residents of Sydney's damaged Opal Tower are facing up to six more weeks living in a hotel before they find out if their apartment is safe after the builder revealed it needed more time to assess the damage.

Key points:

·         No residents have moved back to Opal Tower while independent engineers assess the building

·         Cost of living in alternative accommodation is leaving some residents out of pocket

·         Friday will be the earliest residents can move back in, with experts expected to provide an update

It comes as other residents say they have been left out of pocket after paying for alternative accommodation despite the builder providing a stipend and hotel accommodation.

About 300 people were evacuated from Opal Tower in Sydney's Olympic Park after a loud cracking sound was heard on December 24, and a large crack appeared on the 10th floor.

A crack in the plaster and wall seen on Christmas Eve.

The majority of residents are expected to learn whether they can move back in on Friday.

But some living in the worst-affected apartments have already been told by the builder, Icon Co, they will have to wait much longer before they can go home.

Nika Khodjasteh, 27, was living with her boyfriend and flatmate in a third-floor apartment.

She has been told it will be four to six weeks before she can move back in.

"My assumption is they'll keep us in the hotel or put us in the serviced apartment, but I actually have a cat," Ms Khodjasteh said.

'Some people haven't received money'

Ehsan Jahanandish was originally provided temporary accommodation at a nearby hotel.

But with no end to the ordeal in site, he has now found his own Airbnb to stay in.

"The reimbursement form that we submitted, they haven't been paying them in full, and I know some people, they haven't received any money at all," he said.

"But for us, we have been receiving some money to recover expenses."

Investigations are today taking place in his level 25 apartment, where workers plan to tear open a section of his wall and roof to take a look at the concrete behind.

Mr Jahanandish said he was unsure if he wanted to move back to the tower.

"We are putting our lives in this building, so we are going to live here, sleep here, and we are going to have to make sure that we feel safe and comfortable," he said

He has been told he can move back into the tower on Friday, but he does not believe the timeline.

"It's been devastating, it's been very, very difficult … we are anxious and we are stressed, and we have to start working again."

 "[Builder] Icon is now working with me to provide solutions. And they are being quite flexible, but you know under the circumstances this should have never occurred."

Most residents have been put up in Sydney hotels while engineers assess the damage, and one section of the building has been braced with huge metal jacks to provide structural support.

The ABC understands some residents are being paid around $300 per night in compensation for being forced to move out of a two-bedroom apartment in the complex.

Residents are also reportedly being given $100 per person per day for the cost of food, as not all alternative accommodation has kitchens.

Newlyweds forced out of home

Resident Farzad Rezvani, 35, also moved into Airbnb accommodation after being forced out on Christmas Eve.

The mechanical engineer married just two months ago and had moved into Opal Tower with his wife.

"It's kind of a sad feeling," Mr Rezvani said.

"This unit was our first unit with my wife … so we are kind of attached to this one where we started our married life."

Mr Rezvani said he had trouble contacting the builder to get access to the property to recover their things.

Residents have posted photos of their possessions piled on the floor at Opal Tower.

"When I called no-one was picking up, but when I got here the lady in the reception she was friendly and she said it was OK and gave us access to our unit."

A number of renters are concerned they are still being charged rent while they are unable to live in the tower.

Mr Rezvani said the payments had ceased about five days ago. He said he had been told a stipend would be paid until January 7.

A spokeswoman for Icon Co said a large number of residents had been able to access the building, and a contact email and phone number would be answered by a dedicated team.

She said Icon Co had advised residents on Friday it would pay accommodation costs of displaced residents until January 11, when professors Mark Hoffman and John Carter are expected to make a further statement on the building's integrity.

Jacks were installed as a redundancy measure to ensure structural integrity, she said.

Planning Minister Andrew Roberts issued a statement on Friday last week saying Professor Hoffman and Professor Carter, two independent experts brought in by the NSW Government to review the situation, would need more time to complete their work.

The statement said they did not find evidence of issues with the foundations of the building, but believed there were a number of design and construction issues that required further investigation.

The 392-apartment block only opened in 2018.

It sparked a pledge by the NSW Government to crack down on the construction industry, with Minister for Better Regulation Matt Kean saying he will "throw the book" at building certifiers who have done the wrong thing.

The Government said it would audit 25 to 30 per cent of certification work audited every year.