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Australia and the Right to Adequate Housing

Published online by Cambridge University Press:  24 January 2025

Annemarie Devereux
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Extract

Although some fifteen years have passed since Australia ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR) and so incurred an obligation to respect, protect, promote and ensure each individual's “right to adequate housing”, in Australia the right remains little more than a rhetorical tool used by welfare activists. Despite the increased political and legal profIle of human rights in Australia with the establishment of such bodies as the Commonwealth's Human Rights and Equal Opportunity Commission (HREOC), the “right to .adequate housing”, like many other economic rights, has been largely ignored. In an attempt to highlight the gap between Australia's international commibnent and its domestic response, the first part of this paper examines the Eontent and implications of the right to adequate housing and Australia's obligation under Article 11 of the ICESCR. The second part focuses on the Federal Goyernment's response, discussing in particular the absence of any legal provision· for the right's protection and the lack of comprehensive administrative policies aimed at the right's progressive realisation. For the purposes of this latter discussion, a case study of federal policies concerning the homeless, a group most apparently lacking in “adequate housing”, demonstrates the extent to which administrative policies continue to embrace notions of “worthiness” rather than “universal dignity”, making realisation of a “right to adequate housing” impossible.

Type
Research Article
Information
Federal Law Review , Volume 20 , Issue 2 , June 1991 , pp. 223 - 239
Copyright
Copyright © 1991 The Australian National University

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Footnotes

The author wishes to thank Peter Bayne and Peter Bailey for their helpful comments upon earlier drafts of this article.

References

1 The ICESCR entered into force for Australia on 10 March 1976.

2 A similar clause relating to the family appeared in the Universal Declaration of Human Rights(UDHR) - Article 25(1). For the full text of the ICESCR and the UDHR, see Brownlie, I, Basic Documents in International Law (3rd ed 1983)Google Scholar.

3 The International Covenant on Civil and Political Rights, ratified by Australia in 1980.

4 Australia has duly submitted these reports. The most recently completed report was completed in 1980, although a new Report was being prepared at the time of finalising this article in 1990.

5 The change was made in 1986: P Bailey, Human Rights: Australia in an International'Context (1990) 321.

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7 Id.

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9 1976 Statement of the ILO quoted by Tomasevski, K, “Human Rights: the right to food” (1985) 70 Iowa L Rev 1321, 1325Google Scholar.

10 HREOC, Our Homeless Children: Report of the NatioMl Enquiry into Homeless Children (1989) 36. (This report is commonly referred to as the “Burdekin Report”).

11 Id.

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14 Present American law permits in some States the involuntary admission to hospitals and retention in hostels of those individuals considered to be facing a risk of imminent death/serious physical harm and thought to be lacking the capacity to comprehend the probable consequences of remaining in that situa1ion, powers that can be easily abused; see Malone, fM, “Homelessness in a Modem Urban Setting” (1982)10 Fordham Urban Law Journal 749, 752Google Scholar, 775-7

15 The HREOC used the analogy of interpretations of “sufficient livelihood” in the Social Security Act 1947; Re Ezekiel and the Director-General of Social Security (1984) 6 ALN N 235: HREOC, supra n 10, 36.

16 Schachter, supra n 12, 852.

17 M Ginsberg, L Lesser, “Current Developments in economic and social rights: a United States perspective” (1981) 2 Human Rights Law Journal (No 3-4) 237,256.

18 P Alston, “International Law and the Human Right to Food” in P Alston, K Tomasevski (eds), The Right to Food (1984) 9, 11; in relation to the right to food, note the discussion of the views of Isenman and Singer discussed also by Alston, ibid 11.

19 K Tomasevski, supra n 13, 1325.

20 This figure was obtained by the 198S Census, quoted in H Kendig, C Paris, N Anderton, Towards Fair Shara in Australian Housing (1987), 36. The exact number is likely to be higher in view of the difficulty of adequately calculating the number who were not within the written census' ambit. There is a controversy whether those living in caravans are similarly homeless, yet as they were not thought to be “temporary” residents in the Burdekin Report, the question of their status is not addressed here.

21 P Alston, supra n 18, 39.

22 H von Hebel, supra n 6, 28.

23 ICESCR, Anicle 4. A narrow meaning was intended to be given to this “democratic welfare” qualification: P Alston, G Quinn, “The Nature and Scope of States Panies' Obligations under the International Covenant on Economic, Social and Cultural Rights” (1987) 9 Human Rights Quanerly 156, 192-204.

24 Richardson v Forestry Commission (1988) 164 CLR 261.

25 This approach was adopted by the High Coun in considering measures to facilitate the enjoyment of human rights of a panicular race: Gerhardy v Brown (1985) 159 CLR 70.

26 H von Hebel, supra n 6, 29.

27 P Alston, G Quinn, supra n 23, 173, 221 discuss the meaning of the obligation with regard to the original documentation.

28 Principles 27 and 28 reaffirm the need for universal access to resources and the primacy of achieving subsistence requirements: 'The Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights' (1987) 9 Human Rights Quanerly 122.

29 E V O Dankwa, C Flinterman, “Commentary by the Rapponeurs on the Nature and Scope of States Panies' Obligations” (1987) 9 Human Rights Quanerly 136, 140; see also P Alston, G Quinn, supra n 23.

30 G J H van Hoof, “The Legal Nature of Economic, Social and Cultural Rights: a Rebuttal o some Traditional Views” in P Alston, supra n 18, 97.

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33 For an examination of the economic rights protected within the Australian Constitution, see Bailey, supra n 5, 99-103.

34 Article XVII s 1 of the New York State Constitution: Callahan v Carey (1979) NYU 10 discussed in KP Sherburne, “The Judiciary and the Ad Hoc Development of a Legal Right t Shelter” (1989) 12 Harv I Law & Pub Policy 193.

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36 HREOC, supra n 10, 3.

37 It is questionable whether under the Declaration on the Rights of the Child, the Commission's jurisdiction extended to over 18 year old youths, for instance.

38 Rzetacznik, “The Right to Life as a Basic Human Right”, discussed by P Alston, “International Law and the Human Right to Food” in P Alston, supra n 18, 9, 24-25.

39 Y Dinstein, “The Right to Life, Physical Integrity and Liberty” in L Henkin, The International Bill of Rights: The Covenant on Civil and Political Rights (1981), 114, 115-116.

40 See for instance M J Bossuyt, Guide to the 'Travaux Preparatoires” of the International Covenant of Civil and Political Rights (1987) 112-121.

41 Alston, P, supra n 18, 24Google Scholar.

42 Tellis and Others v Bombay Municipal Corporation and Others (1987) LRC 351.

43 Watson, D, “Welfare Rights and Human Rights” (1977) 6 Journal of Social Policy 31, 45CrossRefGoogle Scholar.

44 (1988) 12 NSWLR 558,569.

45 Kioa v Minister for Immigration and Ethnic Affairs (1985) 62 ALR 321,336 per Gibbs CJ.

46 Bayne, P, “Administrative Law, Human Rights and International Humanitarian Law” (1990) 64 ALJ 203Google Scholar; see also Hon Justice Kirby, M D, “The Role of the Judge in Advancing Human Rights by Reference to International Human Rights Norms” (1988) 62 ALJ 514Google Scholar.

47 (1982) 153 CLR 168,204.

48 (1988) 82 ALR 633 per Mason CJ, Deane and Gaudron JJ at 645; Brennan J at 657.

49 In the central area of a power, the courts are not concerned with whether the Act is reasonable or necessary: Murphyores Inc Pty Ltd v The Commonwealth (1976) 136 CLR 1.

50 Novel only in the sense of being new in the Australian legal system.

51 Bayne, P, supra n 46, 204Google Scholar.

52 Ibid 205.

53 (1988) 94 FLR 1.

54 P Bayne, supra n 46, 205.

55 Kioa v West (1985) 159 CLR 550, 604 per Wilson J and 630 per Brennan J.

56 Bayne notes the discussion of such “fundamental rights” has been confined to ICCPR rights and other traditional rights such as the right to own property: Bayne, P, supra n 46, 207Google Scholar.

57 Re Marion (1991) FLC 92-193, 78,303.

58 HREOC, supra n 10, 33 (n 2), 34, 37.

59 See for instance the Limburg Principles fonnulated by experts in international law in which was emphasised that “equal attention and urgent consideration” should be given to categories of rights: Principle 3: supra n 28, 123 See also the East's insistence on remedyit housing and economic problems in the Helsinki talks: J Häusennann, supra n 13, 126.

60 M Cranston, What are Human Rights? (1973). Whilst other tests for ascertaining human righ have been proposed, due to the pervasive influence of Cranston on the historiography of ti law, his tests have been accepted as a suitable framework within which to argue: see Watson, supra n 43.

61 Ibid 34-36

62 For an exposition of this view by Bossuyt, see G J H van Hoof, supra n 30, 97, 103-105.

63 Only NSW, Victoria and the Northern Territory have abolished the offence of vagrancy and the Burdekin Report confirmed the existence of “considerable evidence” that existing laws were used to penalise people for being poor and homeless: HREOC supra n 10, 19. Seeking shelter in vacant properties leads to trespass actions and possible gaol sentencing. For existing vagrancy provisions, see: Vagrants, Gambling and Other Offences Act 1931, (Qld) - s 4(l)(i), Police Act 1892 (WA) - s 65(1), Police Offences Act 1935 (Tas) - s 5, Police Offences Act 1953 (SA) - s 13.

64 It is noticeable that the right to property does not appear in the ICESCR, but it is firm entrenched within our common law system: Mabo v State of Queensland (1990) EOC 92-297

65 See the judgment of Mason Jin Commonwealth v John Fairfax and Sons (1980) 147 CLR 3 discussed in P Bailey, supra n 5, 23-25.

66 World Commission on Environment and Development, Our Common Future (1987) 250-25 McCloskey also supports rejecting the right to private property as a basic human right, see it as conditional, qualified and derivative: H J McCloskey, “The Moralism and Patemalis Inherent in Enforcing Respect for Human Rights”, in CF G Sampford, DJ Galligan, (ed i.Aw, Rights and the Welfare State (1986), 150.

67 H Kendig, supra n 20, 4.

68 Report Submitted by Australia in Accordance with Economic and Social Council Resolution 1988 (LX) Concerning Rights Covered by Articles 10-12 of the International Covenant on Economic, Social and Cultural Rights (1980), 59-64.

69 See K P Shelburne, supra n 34, 198. In Australia, admittedly some natural justice requirements have been held in situations where the interest did not constitute a property interest but was a “legitimate expectation”: see Kioa, supra n 45.

70 As the promotion and ensuring obligations both involve programmes and non-legal avenues, is convenient to study the obligations jointly. By the time of publication of this article, the may well be new relevant figures, however it is to be doubted whether the basic framewo will have changed dramatically.

71 Report, ESC, supra n 68Google Scholar.

72 Schedule l, cl D.

73 Schedule 1, cl D(a).

74 Department of Community Services and Health, Housing Assistance Act 1984: Annual Repo 1989, 84.

75 Kendig feels within State policies f1U1ds tend to reflect the power of those who have alrea achieved home dominance: H Kendig, supra n 20, 49.

76 Ibid 85.

77 HREOC, supra n 10, 192-200, particularly 198-200.

78 There was an allocation of $19.5 million to CAP projects in 88-89: Depanment of Community Services and Health, supra n 74, 84.

79 For instance domestic violence refuges.

80 Further study of this point would require a survey of hostel practices.

81 Under the Housing (Homeless Persons) Act 1977 (UK) those “Intentionally homeless”, that is whose homelessness is considered to be a product of a previous culpable act or omission on the part of the applicant, are denied assistance: P Q Watchman, P Robson, Homelessness and the I.Aw in Britain (2nd ed 1989) 103-104.

82 Kendig, H, supra n 20, 70Google Scholar.

83 Id.

84 Green v Daniels (1977) 51 AIJR 463.

85 Re Kyvelos and Director General Of Social Services (1981) 3 ALN No 77: where the A/ affirmed a homeless penon's right to benefits in dictum; to be contrasted with the United Stal position: See K P Sherburne, supra n 34, 198.

86 J Hääääusennann, supra n 13, 137.

87 Camey, T, Hanks, P, “Social Security: Resisting Welfare Rights” (1987) 12 Legal Servi Bulletin (6) 266Google Scholar.

88 Discussed by P Bailey, supra n 5,328-332.

89 Lambe v Director General of Social Services (1981) 38 ALR 405, 411-412.

90 HREOC, supra n 10, 35.

91 Id.

92 Quoted in Ciampi, M, “Building a House of Legal Rights: A Plea for the Homeless” (1985) 59 St John's L Rev 530, 530Google Scholar, n 2.

93 See the interviews in L Crisp, “The Underclass: Australia's Social Time Bomb”, The Bulletin

April 3 1990, 48-56.

94 Campbell, T, “The Rights of the Mentally Ill” in T Campbell et al (ed), Human Rights: From Rhetoric to Reality (1986), 126Google Scholar.

95 Brian Lucas, quoted in L Crisp, supra n 93, 56.