Submission on the Exposure Draft, Homelessness Bill 2012 (2012)

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Submission on the Exposure Draft, Homelessness Bill 2012

Australian Human Rights Commission submission to FaHCSIA

7 August 2012

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1 Introduction

The Australian Human Rights Commission welcomes the opportunity to make this
submission on the Exposure Draft of the Homelessness Bill 2012 to FaHCSIA.
The Commission previously made a submission
to the Inquiry into Homelessness Legislation in 2009, conducted by the House
of Representatives Standing Committee on Family, Community, Housing and Youth.
In that submission, the Commission made recommendations for how national
homelessness legislation could adopt a human rights-based approach to
homelessness, including the protection of basic human rights for people at risk
or experiencing homelessness.^[1]
In this submission, the Commission welcomes the efforts to include some
aspects of a human rights-based approach in the draft legislation. However, we
consider that this approach has not been adequately incorporated and note that
some aspects of the Bill undermine this approach and the protection of basic
human rights. We make recommendations for how the draft legislation can be
strengthened to ensure the Australian Government fulfils its human rights
obligations. In summary, we recommend that:

Recommendation 1: That the notion of ‘choice’ in section 5(c) of the draft
legislation be removed given that it requires subjective assessment.

Recommendation 2: That the legislation include a clear definition of
adequate housing.

Recommendation 3: That the legislation explicitly
state the right to adequate housing. Such a provision should include recognition
that the right to adequate housing will be progressively realised.

Recommendation 4: That the legislation include provisions for
independent monitoring of the progress towards the realisation of rights, in
particular the right to adequate housing, and outcomes for vulnerable
groups.

Recommendation 5: That the legislation specify behaviour that would
constitute a violation of rights, in particular the right to adequate housing,
and provide for safeguards to be implemented to ensure that this right is
realised and respected.

Recommendation 6: That the legislation include, as a key principle,
the meaningful and effective participation of people who have experience of
homelessness in key stages of decision-making processes.

2 Definition of homelessness

The Commission welcomes a broad definition of homelessness. However it has
concerns with the notion of ‘choice’ included in the definition in
section 5(c). This section states that a person is homeless if they are not
living in the described housing by ‘choice’. This requires
subjective assessment and is inconsistent with previous definitions of
homelessness, including the definition in the Supported Accommodation
Assistance Act 1994 (Cth).
We are particularly concerned about victims of domestic violence being
excluded under this definition if their situation is subjectively interpreted.
Domestic violence is a leading cause of
homelessness^[2] and a subjective
assessment of people escaping violence is open to misinterpretation.
A more useful defining characteristic would be whether or not a person has
access to housing which is adequate.
Adequate housing can be defined by the following seven key aspects as
identified by the Committee on Economic, Social and Cultural Rights (CESCR):
- legal security of tenure;
- availability of services, materials, facilities and infrastructure;
- affordability;
- habitability;
- accessibility;
- location; and
- cultural
  adequacy.^[3]

Recommendation
1: That the notion of ‘choice’ in section 5(c) of the draft
legislation be removed given that it requires subjective assessment.

Recommendation 2: That the legislation include a clear definition of
adequate housing.

3 Recognition and realisation of rights

The right to adequate housing is a fundamental human right which Australia
has committed to uphold by ratifying the International Covenant on Economic,
Social and Cultural Rights (ICESCR).^[4]
The Commission is concerned that the reflection of this right in sections 7
and 13 of the draft legislation as merely an ‘aspiration’, without
any binding character, does not give sufficient weight to Australia’s
human rights obligations in this regard.
Recognition of the right to adequate housing does not mean housing on demand
for all. The obligation is to ‘progressively realise’ this right.
This allows for the full realisation of the right to adequate housing over a
period of time, taking resource constraints into account. As a party to the
ICESCR, the Australian Government is obliged to:

take steps ...
to the maximum of its available resources, with a view to achieving
progressively the full realization of the rights recognized in the present
Covenant by all appropriate means, including particularly the adoption of
legislative measures.^[5]
Progressive realisation is not the same as an
‘aspiration’, which might never be realised. Stating this right as
an aspiration is inadequate and undermines Australia’s human rights
obligations.

Recommendation 3: That the legislation
explicitly state the right to adequate housing. Such a provision should include
recognition that the right to adequate housing will be progressively
realised.

4 Accountability

Given the Australian Government’s international human rights
obligations and commitment to reducing homelessness, mechanisms for
accountability should be included in the national legislation, with reference to
intergovernmental frameworks.

(a) Effective monitoring mechanisms

The legislation should provide for mechanisms to ensure that
Australia’s progress in realising the rights of people experiencing
homelessness, including the right to adequate housing, is monitored
effectively.
It is not clear from the draft legislation how the Australian
Government’s duty to protect the rights of people facing homelessness, in
particular vulnerable groups, will be assessed.
Provisions should be made to ensure both outcomes and processes are
independently monitored and evaluated, with measurable goals and
targets.

Recommendation 4: That the
legislation include provisions for independent monitoring of the progress
towards the realisation of rights, in particular the right to adequate housing,
and outcomes for vulnerable groups.

(b) Accessible and effective remedies

The provision of effective remedies for breaches of human rights is a
fundamental requirement of international human rights
law.^[6]
The experiences of people facing homelessness may involve violations of a
wide range of basic rights, including the right to adequate
housing.^[7]
People experiencing homelessness should have access to effective remedies if
their rights are violated. One such violation would be a person being
arbitrarily evicted from government-funded accommodation into homelessness.
Where other laws violate the rights of people who are homeless, these laws
should be reviewed.

Recommendation 5: That the
legislation specify behaviour that would constitute a violation of human rights,
in particular the right to adequate housing, and provide for safeguards to be
implemented to ensure that rights are realised and respected.

5 Consultation and participation

The Commission welcomes the inclusion of a ‘cooperative
approach’ to tackling homelessness in the draft legislation in section
8(2). However, this section on social inclusion fails to include the
participation of people who have experience of homelessness.
Enabling the participation of people in decision-making that will affect
them is fundamental to effective social
inclusion^[8] and
also a key feature of a human rights-based
approach.^[9]
National legislation on homelessness needs to ensure that those most
affected and vulnerable are included in key decision-making processes, in
particular in the development, delivery and assessment of policies and services.

Recommendation 6: That the legislation include, as a key
principle, the meaningful and effective participation of people who have
experience of homelessness in key stages of decision-making processes.

^[1] Australian Human Rights
Commission, Submission to the Inquiry into national homelessness
legislation, Sept 2009, at: http://www.humanrights.gov.au/legal/submissions/2009/20090901_homelessness.html (viewed July 2012)

^[2] Australian Institute of Health and Welfare, Specialist Homelessness Services
Collection: December quarter 2011, p. 7, 9, 13, at http://www.aihw.gov.au (viewed July 2012).

^[3] UN Committee on Economic,
Social and Cultural Rights, General Comment 4: The Right to Adequate
Housing, para 8, at http://www.unhchr.ch/tbs/doc.nsf/%28Symbol%29/469f4d91a9378221c12563ed0053547e?Opendocument (viewed 23 July, 2012)

^[4] International Covenant on Economic, Social and Cultural Rights (ICESCR),
1966, art 11(1). At http://www2.ohchr.org/english/law/cescr.htm (viewed July 2012). The right to adequate housing is also reflected in other
human rights treaties, including the Convention on the Rights of the
Child (CRC), 1989, note 42, art 27(3). At http://www2.ohchr.org/english/law/crc.htm (viewed July 2012); the International Convention on the Elimination of all
forms of Racial Discrimination (CERD), 1965, art 5(e)(iii) at http://www2.ohchr.org/english/law/cerd.htm (viewed July 2012) and the Convention on the Elimination of all forms of
Discrimination against Women (CEDAW), 1979, art 14(2)(h) at http://www2.ohchr.org/english/law/cedaw.htm (July 2012).

^[5] ICESCR, art
2(1).

^[6] UN Committee on
Economic, Social and Cultural Rights, General Comment No 9: The domestic
application of the Covenant, UN Doc E/C.12/1998/24 (1998), para 2. At http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/4ceb75c5492497d9802566d500516036?Opendocument (viewed July 2012).

^[7] Further
explanation on the range of rights that could be violated for people facing
homelessness is included in the Commission’s Submission to the Inquiry
into national homelessness legislation, Sept 2009, para 24, at: http://www.humanrights.gov.au/legal/submissions/2009/20090901_homelessness.html (viewed July 2012)

^[8] Australian Government,
Social Inclusion Principles Explained; at http://www.socialinclusion.gov.au/resources/asib-publications (viewed July 2012).

^[9] Kirkemann Boesen, J and Martin, T, Applying
a Rights-Based Approach: An Inspirational Guide for Civil Society, The
Danish Institute for Human Rights (2007), p.30 (viewed July 2012) and in
Australian Human Rights Commission, Submission to the Inquiry into national
homelessness legislation, Sept 2009, para 37 at: http://www.humanrights.gov.au/legal/submissions/2009/20090901_homelessness.html (viewed July 2012)