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Can rights solve the issue of homelessness?

Rights and Freedoms

Can rights solve the issue of homelessness?

Launch of the February 2008 "To Make a Difference: Human Rights and Homelessness" Special Edition of Parity

14 March 2008

Graeme Innes AM, Human Rights Commissioner
Human Rights and Equal Opportunity Commission

I begin by acknowledging the traditional owners of the land on which we are meeting today.

I also thank the Council to Homeless Persons, and Parity, for inviting me to speak.

Homelessness has, I'm sure, been on your agendas for many years. More recently, both Parity and the Rudd federal government (if I can put you both in the same league) has given it a much increased focus. Today, I want to identify the many human rights issues raised in the context of homelessness, and suggest how a human rights framework would help address what is an ever-increasing problem in our society.

Let's look at some relevant human rights. Firstly, the right to an adequate standard of living; this right, including the right to housing, is one of the most basic human rights. It is set out in a number of international treaties which Australia has ratified. Australia is bound by international law to comply with each of these treaties.

Whether or not housing is adequate (and therefore complies with this human right) will depend on a range of factors including:

  • legal security of tenure
  • availability of services, facilities and infrastructure
  • affordability
  • accessibility
  • habitability
  • location; and
  • cultural adequacy

A person who doesn't enjoy housing with these characteristics may be the victim of a human rights violation. Almost by definition, most homeless people would fall into this category.

But homelessness is not just about housing. Homelessness can prevent a person from being able to enjoy a wide range of other human rights. These rights include:

  •  the right to the highest attainable standard of health
  •  the right to social security
  •  the right to education
  •  the right to work
  •  the right to liberty and security of the person
  •  the right to vote
  •  the right to privacy
  •  the right to enjoy one’s culture, and take part in cultural life
  •  the right to freedom of movement
  •  the right to freedom of association
  •  the right to freedom of expression
  •  the right to be treated with humanity and dignity; and
  •  the right to non-discrimination.

Not all people who are homeless will be denied all of these different human rights. But the likelihood of enjoying all of these rights is severely diminished for most people experiencing homelessness.

Let me give you two examples of how people experiencing homelessness are vulnerable to human rights violations. Firstly, let’s take the right to health. Homeless people have significantly less access to health services than the broader population. This may be due to financial hardship; lack of transportation to medical facilities; lack of identification or a Medicare Card; and difficulty maintaining appointments or treatment regimes.

The right to security of the person is another example. The physical safety of a person who is homeless is often under constant threat. Lacking a safe living environment, homeless people are exposed to crime, and personal attacks. Children and young people are particularly vulnerable to attacks on their personal safety. Women who are homeless are also at great risk of violence and sexual abuse, and are often forced into harmful situations and relationships out of need.

Once we acknowledge that homelessness can lead to a wide range of human rights violations, the next question is: How can a human rights framework help to address the issue of homelessness?

Firstly, discussing homelessness as a human rights issue changes the way we approach it. A human rights approach departs from a welfare approach to homelessness. It demonstrates that homeless people are not merely objects of charity, seeking help and compassion from the state. Instead, they are individuals who are entitled to protection and promotion of their human rights.

A rights based approach also highlights the need to directly and meaningfully involve people experiencing homelessness in the development of solutions. This is likely to result in services which are more effective and relevant to their needs.

In other words, the rights framework shifts the rhetorical power from the state to the individual. It isn't a case of homeless persons seeking compassion from the state; rather it's a case of homeless persons asserting their rights to access the same basic services, and opportunities, that most of us take for granted.

This shift won't solve the problem by itself. But it can dramatically change the nature of the debate. It can provide a powerful tool for people experiencing homelessness, and their advocates, to assert their right to an equal place in society.

The second reason why human rights are important to addressing homelessness is that they create legal obligations, both in domestic and international law.

Australia is required to protect and promote all those human rights I mentioned earlier, because Australia has ratified all of the international human rights treaties which set out those rights.

For example, the right to health, the right to education, and the right to housing are all set out under the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Rights of the Child. As a party to the ICESCR, all levels of Australian governments are under an obligation to progressively implement these rights. This requires (to use terms from the Covenant) 'concrete', 'targeted', 'expeditious' and 'effective' steps. In the case of children protected by the CRC, the government has an immediate obligation to take all appropriate measures to implement these rights.

At an international level, Australia must periodically report to the various UN treaty bodies, regarding our progress in upholding the human rights under these treaties. For instance, this year Australia is required to provide a report to the UN Committee on the Rights of the Child, so that it can assess Australia's performance against the children's rights set out in that Convention.

Australia may also be subject to scrutiny by Special Procedures of the United Nations. For example, in 2006, the UN Special Rapporteur on adequate housing, Mr Miloon Kothari, visited Australia to assess its progress in implementing the right to housing. Specific problems highlighted in his report to the Human Rights Council included the lack of complaints mechanisms for alleging violations of housing rights, and the existence of laws which criminalise poverty and homelessness, such as laws which prohibit sleeping and drinking in public.

Despite the fact that neither the UN treaty bodies, nor the Special Rapporteur, can enforce their recommendations, they are often a persuasive political force. They are also useful advocacy tools for human rights advocates, and institutions like the Australian Human Rights Commission.

How can this help domestically? International treaties do not become part of Australian law, unless there is domestic legislation which directly incorporates those treaties. None of the human rights treaties relevant to the experiences of homeless people have been incorporated into federal Australian law, other than parts of CEDAW (through the Sex Discrimination Act) and CERD (through the Racial Discrimination Act).  While the charters of rights in the ACT and Victoria do incorporate most of the civil and political rights contained in the ICCPR, they do not incorporate the economic and social rights in the ICESCR. This means that rights such as the right to adequate housing are not enforceable under Australian law.

Without doubt, the value of human rights in addressing homelessness would be greatly enhanced by stronger domestic legal protections. Nevertheless, the fact that human rights treaties are not directly enforceable in federal law doesn't mean that the human rights they describe are meaningless in Australia.

For starters, through its policy work, the Human Rights Commission can investigate and report on some of the human rights issues which affect homeless persons. In 1989, we conducted a national inquiry into youth homelessness called Our Homeless Children. In 1993 and 2005, we reported on the rights of people with a mental illness, and specifically addressed the needs of homeless people. Recently, we also argued that amendments to voting legislation compromised the right to vote of homeless people.

Again, while the Human Rights Commission can't enforce its findings against the government, there is no doubt that the human rights framework provides an extremely important tool for advocacy in the area.

Further, Australian law provides that all people have a 'legitimate expectation' that administrative decision makers will act in accordance with Australia's human rights obligations.

And finally, to the extent that current federal, state and territory legislation is ambiguous in its meaning, a court must interpret that legislation in line with Australia's human rights obligations.

Homelessness can and should be viewed within a human rights framework. Looking at homelessness through a human rights lens will not in itself solve the problem. However, human rights provides us with a language and a framework that can help shift the debate from one of welfare to one of rights. That is an extremely important step, and one that we should wholeheartedly embrace. Human rights affect everyone, everywhere, every day. It is in the interests of the Australian community to ensure that the rights of homeless people are respected and protected.

Thanks for the chance to speak with you today.