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Housing and human rights - rights where it matters

Business and Human Rights

Sandy Duncanson Memorial Lecture

Housing and human rights – rights where it matters

Hobart, 11 October 2022

Abstract

Homelessness can happen to anyone. People with disability are at an increased risk and they are joined by a growing invisible cohort of older women. COVID-19 was a trigger for state governments to find shelter for people living rough, illustrating that solutions to homelessness are available to us. The right to an adequate standard of living, including adequate food, clothing and housing, is enshrined in the International Covenant of Economic, Social and Cultural Rights, to which Australia is a party. In this presentation, Professor Croucher explores how a Human Rights Act for Australia could ‘bring this right home’ as part of the Australian Human Rights Commission’s project, Free and Equal: A National Conversation on Human Rights.

Introduction

Thank you for your warm welcome. I also would like to acknowledge the traditional custodians of the land on which I am giving this presentation this evening, the Muwinina people, and pay my respects to elders past, present and emerging.

It is always a pleasure to return to Tasmania. I say ‘return’ as I channel my ancestors. My maternal great grandfather, Dr George Albert Walpole, was one of the best-known medical men in Tasmania, when he died in Devonport in 1942, aged 80. His life is commemorated in the town clock in Station Square, Latrobe, with the inscription, ‘Loved by All’.[i]

In getting to know about Sandy Duncanson for this evening’s presentation, everything I read spoke the same message. Sandy was, quite simply, ‘Loved, and loved greatly, by All’.

Reading and hearing about Sandy is like a warm hug.

He left this earth in 2010, far too soon. We should have been celebrating his approaching 50th birthday. Rather, we have the memories of him, the embodiment of him in his daughters, and the tribute to him in the bursary and the lecture that bear his name.

We know of Sandy’s commitment to advancing social justice. Housing also became a key issue for him, reflected in his role as Principal Solicitor of the Tenants’ Union of Tasmania and his commitment to a Human Rights Charter for enshrining a right to housing.

So, Sandy, I pay tribute to you in my lecture this evening, in speaking of housing and human rights, and the place we have given a right to housing in the Commission’s proposed model of a Human Rights Act for Australia.

The idea of housing as a human right

In the international human rights context, the concept of a right to housing is found in the right to an ‘adequate standard of living’ as, for example, in article 11(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR). This is one the ‘big three’ documents which, together, comprise what is known as the International Bill of Rights – with the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.[ii] Australia signed ICESCR in 1973 and ratified it without reservations in 1975.

The countries who sign up to this important treaty recognise

the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. 

Other international treaties to which Australia is a party also have something to say about a nation’s obligations in relation to housing – for example, concerning children, people with disabilities and women.[iii] First and foremost, the right to housing does not stand alone. Rather, it is ‘integrally linked to other human rights’.[iv]

In 2009, Australians identified housing and other social and economic rights as some of their most important rights, in the National Human Rights Consultation Report of the inquiry led by Fr Frank Brennan SJ, which stated:[v]

The right to adequate housing, the right to the highest attainable standard of physical and mental health, and the right to education are particular priorities for the community.[vi]

The idea of adequate housing as a right raises a number of questions. How is a nation to fulfil this rather ubiquitous obligation – and in a federal system of shared responsibilities? What does adequacy mean? What can nations and others do to address problems?

What we can say is that a problem of homelessness is a failure of the protection of the right to housing. Given that Australia has signed and ratified the treaties that recognise rights to adequate living standards, including adequate housing, there is a responsibility on governments nationwide to respond. As the Australian Government committed to the obligations in the international treaties; the Australian Government should lead.

Homelessness

What is the size of the issue we are discussing when we talk about ‘homelessness‘? Who is regarded as ‘homeless’?

One could be forgiven for assuming that a person is homeless if they are ‘sleeping rough’, or without a roof over their heads of a fixed kind. Perhaps like those who are now sheltering at Hobart’s showgrounds in tents and caravans – many of whom are the ‘working poor’, as journalist Philippa Duncan describes them.[vii]

‘Homeless persons are not just rough sleepers’, is a heading used in the report produced by the Australian Housing and Urban Research Institute (AHURI) in 2020 on ‘Ending Homelessness in Australia’.[viii]

In 2012, the Australian Bureau of Statistics (ABS) developed a statistical definition of homelessness, under which, people are considered ‘homeless’ when they do not have suitable accommodation, or if their current housing arrangement is inadequate, they have no tenure, the lease is not extendable, or the condition of their dwelling limits their control of, and access to, space for social relations.[ix]

Using this definition, about 7% (8,200) of homeless people in Australia were ‘rough sleeping’ on the night of the 2016 Census;[x] and many of these have severe mental health conditions or substance abuse problems.[xi]

The 2016 Census classified 116,427 people as homeless, an increase of nearly 14% from the previous Census in 2011.[xii] While Aboriginal and Torres Strait Islander Peoples made up 3% of the Australian population in 2016, they comprised 20% of all people who were homeless on Census night.[xiii]

The change in the ABS definition of homelessness had an impact on the policy settings, because it meant that the number of people counted as homeless increased, and it ‘highlighted the extent of crowding in households in Australia, particularly for Indigenous Australians living in remote areas’.[xiv] Aboriginal and Torres Strait Islander people are more likely to live in a house with three or more people, and are more than twice as likely to live in a house with six, seven or eight people than the general Australian population.[xv] It is not surprising, then, to see that, in the Northern Territory, Aboriginal and Torres Strait Islander people comprised 88% of the homeless population in 2016; an increase of 13% from the 2011 Census.[xvi]

Where homeless children increased about 10% in the period between 2011 and 2016, which is worrying of itself, people aged 55 and over increased by 28%.[xvii] Older women are a particular ‘at-risk’ group, and were the fastest growing cohort of homeless Australians from 2011 to 2016, increasing by 31%.[xviii] Josh Burns, now federal MP for McNamara in Victoria, and one who has a particular interest in housing policy, said that

Higher rates of divorce and the breakdown of relationships are uncovering the cracks made by a lifetime of lower earnings, fewer assets and minimal superannuation. Combined with rising rental prices, this is a recipe for disaster.[xix]

The risk and the ‘hidden’ nature of older women’s homelessness is one of the areas for advocacy of the Age Discrimination Commissioner, the Hon Dr Kay Patterson AO.

There is also the possibility that people are being missed altogether – particularly Indigenous Australians and young people, where Census data many not accurately highlight the extent of homelessness in these groups.[xx]

Where are homeless people sleeping? In addition to those sleeping rough (7%), others are in a range of accommodations, including: supported accommodation for homeless people (18% – 21,235); staying temporarily in other households (15% – 17,725); boarding houses (15% – 17,503); and temporary lodgings (1% – 678). 44% (51,088), however, are in severely crowded dwellings – an increase of 23% from 2011 to 2016.[xxi]

All of these are pre-COVID-19 statistics. The pandemic was a huge prompt to action,[xxii] and emergency accommodation was provided to more than 40,000 people – a ‘remarkable’ outcome, according to homelessness researchers. But only a third of ‘rough sleepers’ accommodated during this period were subsequently transitioned into long-term housing.[xxiii] Whatever impact the COVID responses had, like increases in JobSeeker payments, moratoriums on evictions, support for rough sleepers, these are not part of the long-term structural changes needed to address homelessness.

Behind every statistic is a person. A person like Tracey, whose story I read in a tweet on Sunday morning. It is a very long thread and starts like this:

A year ago, I was working … . I rented and had approx $36,000 in assets. Landlord decided not to renew lease after 4 years. Not a bad tenant. Always paid rent, and no damage to property. Paid rent throughout COVID, without even a thought.

Car broke down with major repairs and it was essential for my job as a support worker, transporting customers. I consequently lost my job. No one would rent to me due to low/lack of income. Public housing waiting list over 10 years. Became homeless. Everything went into storage.

And then it continues in a downward spiral, on Jobseeker, trying to find permanent work to get housing, because casual work was not enough to secure rental property in a tight market.

I'm 52. Fled DV 12 years ago, with just a bag of clothes and 4 kids. I worked hard to come back from nothing. … I worked really hard to become a contributing part of my community. To live independently and comfortably.

Now, I’m treated as a statistic.

This is a familiar story to those, like Sandy, who supported the Traceys of this world. The first reply to Tracey’s tweet was simply, ‘Dear Tracey, Don’t give up. I know your story. It’s mine. … I lost everything. I clung to my values – no matter what was thrown at me. … Everyone is vulnerable.’

Why are more people homeless?

Understanding homelessness is about seeing it as a multi-dimensional situation ‘shaped by a complex set of multiple risk factors’.[xxiv] An Information Paper published by the ABS about the methodology for estimating homelessness said that

Homelessness is not just the result of too few houses – its causes are many and varied. Domestic violence, a shortage of affordable housing, unemployment, mental illness, family breakdown and drug and alcohol abuse all contribute to the level of homelessness in Australia. Homelessness is not a choice.[xxv]

At particular risk of homelessness are those who have experienced family and domestic violence, young people, children on care and protection orders, Indigenous Australians, people leaving health or social care arrangements, and Australians aged 55 or older.[xxvi]

One thing is clear, and that is that ‘homelessness is a complex social problem that intersects with a range of other social, economic, health and justice issues’.[xxvii]

Homelessness is also a consequence of the compounding inadequacies of policy across governments, state and federal. It is the end of conveyor belt of gaps in supply.

There is not enough social housing to address the needs. Social housing includes public housing, owned and managed by state and territory governments; state owned and managed Indigenous housing; and community housing, which is run by NGOs, although sometimes with government assistance.

Categories for eligibility for social housing include ‘manifest need’ – homeless population; ‘expressed need’ – referring to those on the social housing waitlists; and ‘evident need’ – including people not on these lists but who have low incomes and are under rental stress.[xxviii] The combined waitlists for social housing programs had approximately 194,592 applicants as of 30 June 2019.[xxix] What this number does not show is how many extra people fall into the third category of ‘evident need’ – not even on a waitlist, yet.

Pressure on social housing is increased if the private rental market cannot cope. Let’s look at Tasmania.

Vacancy rates across Tasmania are tightest in the three major centres, Hobart, Burnie and Launceston, from 0.2% to 1%,[xxx] well below the healthy benchmark of 3%.[xxxi] This is typically reflected in ‘lines of people snaking down the street’ at rental open-for-inspections.[xxxii]

When rental properties are in such tight demand, there is pressure on rents. Greater Hobart currently rates as the country’s least affordable metropolitan area in Australia,[xxxiii] due to inadequate supply, high rents and low incomes. ‘Hobart housing crisis sees rents more than double for some tenants’, one headline read last month.[xxxiv]

Ben Bartl, Sandy Duncanson’s ‘successor-in-title’, as it were, as principal solicitor of the Tenants’ Union of Tasmania, says that the lack of properties is forcing rents higher. Tenants in these situations feel completely stuck: ‘if they don’t accept the rent increase, they can be evicted at the end of their lease … in favour of someone that is prepared to pay the increase’.[xxxv]

For migrant communities there may be additional issues to navigate – barriers securing employment due to language and literacy issues, problems with skill recognition and also problems of discrimination.[xxxvi]

Tight rental markets, particularly the sheer lack of availability, puts increased pressure on social housing. ‘It’s little wonder’, writes journalist Philippa Duncan, that ‘4,431 households are on the state government’s waiting list for social housing’.[xxxvii]

Another phenomenon that has presented strongly in Hobart media of late has been the retreat of private rentals from the general rental market into short-term rentals via platforms like Airbnb. As a proportion of its private rental market, Greater Hobart has seven times more Airbnbs than Sydney and almost five more than Melbourne.[xxxviii] This trend is also being played out in many Australian towns, particularly those that are tourist destinations, with smaller housing markets.[xxxix]

If housing markets are dysfunctional, what is needed to be done to address increasing homelessness?

Solutions?

A number of solutions have been advocated and, in some cases, implemented to improve or regulate the availability of housing stock and to protect renters.

Home ownership has become increasingly out of reach as an answer for many. Low (although now increasing) interest rates are only useful if you have a deposit for a house. Take the median price of a house in Hobart, for example, it was just under $1million in September 2022, with an increase of 15.9% over the prior 12-month period, according to realestate.com.[xl]

To quote Josh Burns again, from a paper he wrote for the McKell Institute Victoria in March 2021, titled ‘The Crumbling Australian Dream: An Examination of Australia’s Housing Sector’:

As each generation passes, the dream of home ownership slips further and further out of reach. … Many young Australians in the 2020s simply have no reasonable belief they will ever own their own home.[xli]

If the trends continue on the current trajectory, Burns said, ‘we are on track to reach a situation where for the first time in our modern history, the majority of adult Australians won’t own their own home’.[xlii] And when it comes to supporting first home buyers into the housing market, Journalist Tone Wheeler writes that ‘every attempt to help [them] with a grant or reduced deposit has seen house prices rise in response. Totally counterproductive.’[xliii]

If home ownership is not in the picture, then the stress factor is transferred to finding a secure rental property. Here, the goal is clear: affordable and secure living arrangements that provide certainty for landlords and quality of life for tenants.[xliv]

Residential tenancy legislation plays a role here, in balancing rights, containing protections for tenants in terms of procedural fairness requirements for the end of leases and the notice to be given, with accompanying tribunals to raise concerns. But it is only a small part of a much bigger picture of regulation – and regulatory possibility.

Some have advocated for stronger regulation of the short-term housing market. The NSW Government, for example, has introduced a register of short-term rental homes, a code of conduct and a 180-day-a-year cap on short-term rentals of entire homes in greater Sydney.[xlv] (But that still doesn’t help if you want permanent, 365-day-a year tenancies).

This approach has become one lever that recognises the importance of communities, and stable renters within communities. Trish Burt, the founder of advocacy group Neighbours not Strangers, argues that

Tourism has taken priority over the fundamental right to housing, and the people staying in these properties don’t support the schools, the dentists, the doctors, all that local trade that matters so much to towns. They stay there to have a party.[xlvi]

Ben Bartl says that Airbnb and short-term accommodation more generally ‘has been a disaster for Tasmania’, forcing tenants into transitional accommodation or into homelessness.[xlvii] Bartl advocates for stronger regulation of the housing sector, including a ban on renting out whole unhosted properties to tourists.[xlviii]

There is often another side to a story. From the Airbnb side, the country manager for Australia and New Zealand, argues that housing issues reflect a range of factors, such as population movements, supply, the ratio of public housing, interest rates and broader economic conditions, and that ‘short-term rentals generally comprise a tiny proportion of the overall Australian property market’.[xlix] In holiday destinations, holiday homes would often not have been available to the private rental market anyway, and tree-changers have also played their part, with people moving from the bigger cities to regional areas, particularly through the pandemic, taking advantage of cheaper housing and the ability to work remotely.[l]

There are clearly a number of dynamics in play.

We are not a heartless society. All states and territories have Housing Acts that govern the administration of social housing and the Commonwealth Housing Act 1996 sets up the framework within which the federal and state and territory governments jointly fund social housing initiatives – with goals of targeting housing assistance to those considered most in need and ensuring that appropriate housing options are offered to people who require assistance.[li]

One big element in the solutions bucket is to increase the availability of social and public housing. The stock of social housing has barely grown in 20 years, while Australia’s population has increased by 33%.[lii] Between 1991 and 2021, the percentage of social housing in the mix almost halved.[liii]

The Albanese Labor government made a big election commitment to introduce a $10bn Social Housing Future Fund, to build social and affordable housing, while also stimulating the economy and creating jobs.[liv] The Government will put this centrepiece housing legislation to the parliament following the 25 October Budget. The new-ish Housing Minister is Tasmanian, the Hon Julie Collins MP, who spent her first few years in Hobart in public housing, so she understands from lived experience. The creation of such a future fund was strongly advocated by commentators.[lv]

But social housing of itself if not enough. And what there is, is not sufficient,[lvi] nor always adequate – particularly for people with disability.[lvii] As one commentator remarked,

A Social Housing Future Fund alone wouldn’t solve the housing crisis for low-income Australians. But it would give a much needed helping hand to some of our most vulnerable citizens, and ensure social housing will be available for future generations should they need it.[lviii]

Others have advocated for a national homelessness strategy and a new, integrated national homelessness initiative and funding arrangement.[lix]

Our experience of responding to COVID-19 and the leadership seen in governments working together, shows that it can be done and reminded us of the need for governments to work together.

A national homelessness strategy, led by the federal government, would provide the space for all key stakeholders to help shape the responses for the future.

For Wheeler, one of the answers is to ‘separate the idea of house from home’ and change us ‘from an investment-property-owning gerontocracy to a home-for-all loving nation’. How? Change banking and tax policy.[lx] A realignment of economic incentives is a key aspect in a national strategy. Government and private sectors need to work together, and for this to happen, the incentives for investors must also be there. It has to be a ‘win win’.

A national strategy can also provide a distinct consideration of the needs of regional and remote communities, which also listens to and works with First Nations people.[lxi]

Part of the solutions is to provide the anchor point and the bedrock of right in the right to adequate housing in a federal Human Rights Act.

Why a Human Rights Act?

Sandy had an epiphany following a visit to Woomera Detention Centre, where he interviewed refugees who were seeking what is their basic human right to asylum. This was the catalyst for his commitment to social justice and later advocacy for a Human Rights Act for Tasmania and for the nation.

When Fr Frank Brennan SJ led the National Human Rights Consultation, Sandy wrote the submission on behalf of the Tenants’ Union. Human rights could be better protected in Australia, it said,

By a discrete, comprehensive description of those rights …  in a single enforceable form, either as a Constitutional Bill of Rights, or failing that, by a Human Rights Act.

It included a recommendation of a housing right, among others.

The previous year, the Tenants’ Union had advocated for a right to housing to be included in a Tasmanian of Charter of Rights.[lxii]

The Australian Human Rights Commission will shortly release the second Position Paper in our Free and Equal project: An Australian conversation on human rights, setting out our proposed reform agenda for the better protection of human rights at the national level in Australia. It sets out our case for the introduction of a federal Human Rights Act in Australia, and an outline of our proposed model.

One right we include in the model is the right to an adequate standard of living, drawn from ICESCR, and includes a right to access adequate housing. The CESCR Committee explains that

the right to housing should not be interpreted in a narrow or restrictive sense which equates it with, for example, the shelter provided by merely having a roof over one’s head or views shelter exclusively as a commodity. Rather it should be seen as the right to live somewhere in security, peace and dignity.[lxiii]

The idea of a right to housing is ‘not just to housing but to adequate housing’.

Adequate shelter means ... adequate privacy, adequate space, adequate security, adequate lighting and ventilation, adequate basic infrastructure and adequate location with regard to work and basic facilities – all at a reasonable cost.

What we are proposing is this:

Right to adequate standard of living

(1) Everyone has the right to access adequate housing

(2) No one may be unlawfully or arbitrarily evicted from their home

(3) Everyone has the right to have access to adequate food, water and clothing.

How would a Human Rights Act make a difference?

A Human Rights Act would provide the bedrock of right. It would give leverage in relation to the standards expected in the idea of adequacy of housing, and provide a focus for those to advocate for themselves and on behalf of others. A federal Human Rights Act would set the benchmark for states and territories to follow, even for those with such legislation but yet without an express right that embraces housing.

Housing does not stand alone, but is integrally linked to other human rights. Housing issues may come up through the lens of other human rights, particularly in advancing the case for suitable housing.

The following is an example from the UK of how the right to privacy was used as a means of obtaining appropriate housing for a woman with disability and her family.

R (Bernard) v Enfield LB¸[lxiv] concerned a claim for damages by a woman with severe disabilities, Mrs Bernard, and her husband, Mr Bernard, her sole caregiver, alleging that the local Housing Department did not provide them with accommodations suitably adapted for her disability.

Although Mrs Bernard is confined to a wheelchair most of the time, the Department had accommodated them in a home that was not wheelchair accessible. This required that Mr Bernard be present in the home for the majority of the time, because he had to lift his wife for all transfers from the chair, including toileting and bathing. Many additional consequences followed, including adverse effects on their children’s lives and on their ability to enjoy a typical private family life. The Bernards made many requests to the Housing Department for appropriate housing, which were largely ignored or delayed. The Social Services Department supported the Bernards in filing a detailed report with the Housing Department detailing the ways in which their current home was unsuited to their needs. This report went largely unaddressed. 

The Court found that the Housing Department had breached article 8, which requires governments to respect the private and family lives of persons. The obligation may require positive steps to be taken for that respect, particularly when a case concerns particularly vulnerable groups – like persons with disabilities. Here, such positive steps would include the provision of suitably adapted accommodation to enable the claimants and their children to lead as normal a family life as possible. The Court held that the Department’s inaction displayed a singular lack of respect for the private and family life of the claimants. Appropriate accommodation would have ‘… restored her dignity as a human being’.

Although the family had been placed in suitable accommodation by the time of the litigation, a record damages award of ₤10,000 under the HRA was made in this case, as the ‘only way to afford just satisfaction to the claimants’.

So, this case showed the pathway that a cause of action, based on rights, provided to the Bernards, including the right to a remedy, in this case the remedy of damages.

There are examples in the ACT and Queensland of how their respective Human Rights Acts have been used to prevent eviction of tenants. Both cases involved Civil and Administrative Tribunals and show the leveraging power of the Human Rights Acts.[lxv]

Human Rights Acts provide leverage in other ways, enabling advocates to work directly with public authorities to prevent human rights issues from escalating, by finding ways for people to resolve the issues without the need for court action. Indeed, the biggest impact of a Human Rights Act would be outside the courtroom, often by people who cannot afford lawyers.[lxvi] In a submission to the Commission in our Free and Equal consultations, Victoria Legal Aid, for example said that

The cases in which hardship has been avoided, or court action is no longer necessary, are an often overlooked but essential element of the Victorian Charter’s effectiveness. For example, VLA has assisted tenants to avoid being evicted from their homes by negotiating with community housing providers and emphasising the rights and obligations which apply under the Victorian Charter. In our experience, community housing providers are open to discussing the parties’ Victorian Charter rights and obligations, and frequently agree to take further steps to address the issues which gave rise to the eviction notice rather than unfairly evicting our clients into homelessness.[lxvii]

The Victorian Equal Opportunity and Human Rights Commission (VEOHRC) reported the following similar examples of upstream impacts of shaping major legislative reforms to provide stronger and fairer laws:

For example, the Mental Health Act 2014. Consultation over six years in developing this Act enabled the Victorian Government, service providers and community to consider the significant human rights issues raised by mental health treatment, using the Charter as a framework. The new Act took a significant step forward in protecting the rights of people with psycho-social disabilities.

Similarly, the VEOHRC referred to the contribution of the Human Rights Act to improved decision making in Victorian public bodies.

It has done this by ensuring that public decision-makers must consider and act compatibly with human rights. This has transformed day-to-day decision making. For example, the Department of Health and Human Services’ public housing policy and procedure manuals include information about Charter obligations and guide decision-makers to consider rights in the delivery of housing services.

Moreover, the Human Rights Act provides the foundation for ‘the development of a culture of human rights within public authorities’ – and with an impact on homelessness:

Human rights have become part of the everyday business of government, incorporated into key policies, guidelines and initiatives. For example, in 2018 the Port Phillip City Council used the Charter framework to tackle rough sleeping in the city.[lxviii]

Conclusion

Homelessness is a human rights violation. Looking at, and responding to, homelessness in a human right framework, leads us ‘to recognise that all is not well and that we must do better’.[1] Homelessness is a social issue, in which we are all part of that society; and it is a social justice issue to ensure everyone is treated with dignity and respect.

Embedding the right to an adequate standard of living, including a right to adequate housing, as part of a Human Rights Act for Australia, would place positive obligations on governments and decision makers to take all necessary steps to ameliorate – and eliminate – homelessness. It would also empower those experiencing homelessness themselves and their advocates;[2] advocates like Sandy. He would have been a champion for people like Tracey, and those seeking the sanctuary of Hobart’s showgrounds, and all those hidden in the statistics of homelessness.

Sandy Duncanson made a difference to all who knew him and was dearly loved.

His courage and his contributions will resonate and inspire for years to come. We owe his legacy a continued commitment to social justice, and particularly to address homelessness.

 

[1] Philip Lynch and Jacqueline Cole, ‘Homelessness and Human Rights: Regarding and Responding to Homelessness as a Human Rights Violation’ (2003) 4 Melbourne Journal of International Law 139, 175.

[2] Philip Lynch and Jacqueline Cole, ‘Homelessness and Human Rights: Regarding and Responding to Homelessness as a Human Rights Violation’ (2003) 4 Melbourne Journal of International Law 139, 175.

[i] ‘Australian Human Rights Commission’s Personal Link to Latrobe’, Council, Coast and Country News and Views, Issue No 166, May–June 2019, 1.

[ii] ‘International Bill of Human Rights: A brief history, and the two International Covenants’ OHCHR (Web Page) <https://www.ohchr.org/en/what-are-human-rights/international-bill-human-rights>.

[iii] The Convention on the Rights of the Child; the Convention on the Rights of Persons with Disabilities; the Convention on the Elimination of All Forms of Discrimination Against Women; and the Convention on the Elimination of Racial Discrimination. See overview on Attorney-General’s Department website: <https://www.ag.gov.au/rights-and-protections/human-rights-and-anti-discrimination/human-rights-scrutiny/public-sector-guidance-sheets/right-adequate-standard-living-including-food-water-and-housing>.

[iv] CESCR Committee – General Comment No 4: <https://www.refworld.org/docid/47a7079a1.html>.

[v] The Committee received 35,014 written responses and conducted 66 community roundtables with 6,000 people, in 52 locations around Australia: Frank Brennan et al, National Human Rights Consultation Committee Report (Attorney-General’s Department, September 2009) xiii.

[vi] Frank Brennan et al, National Human Rights Consultation Committee Report (Attorney-General’s Department, September 2009) 96. The Commission noted that many of the most pressing human rights concerns facing people in Australia relate to economic, social and cultural rights, especially access to adequate health care, education and housing: Australian Human Rights Commission, Submission to the National Human Rights Consultation Committee (2009) [58]. The Committee commissioned a Colmar Brunton Social Research report in support of its conclusions: Colmar Brunton Social Research, National Human Rights Consultation—community research report (2009).

[vii] Philippa Duncan, ‘A bitter winter and nowhere else to go: Hobart housing crisis forcing people to live in tents’, The Guardian, 3 July 2022.

[viii] Angela Spinney et al, Ending Homelessness in Australia: A redesigned homelessness service system, Final Report No 347, AHURI (December 2020) 23.

[ix] Australian Bureau of Statistics, Information Paper: A Statistical Definition of Homelessness, cat no 4922.0 (2012).

[x] Australian Government Australian Institute of Health and Welfare, ‘Homelessness and homelessness services: Snapshot’ (7 December 2021): <https://www.aihw.gov.au/reports/australias-welfare/homelessness-and-homelessness-services/>.

[xi] Angela Spinney et al, Ending Homelessness in Australia: A redesigned homelessness service system, Final Report No 347, AHURI (December 2020) 23.

[xii] ‘Homelessness in Australia’, <https://homelessnessnsw.org.au/wp-content/uploads/2021/03/Homelessness-in-Australia-.pdf>. The 2011 figure was 102,349.

[xiii] ‘Aboriginal Homelessness in Australia’, Homelessness NSW, <https://homelessnessnsw.org.au/wp-content/uploads/2021/03/Aboriginal-Homelessness-in-Australia-.pdf>, 1. This was down from 26% in 2011, but still wildly disproportionate to the non-Indigenous population.

[xiv] Angela Spinney et al, Ending Homelessness in Australia: A redesigned homelessness service system, Final Report No 347, AHURI (December 2020) 23. In 2017, the ICESCR Committee noted the overcrowded housing for Indigenous peoples in remote areas: United Nations Committee on Economic, Social and Cultural Rights, Concluding observations on fifth periodic report on Australia, 61st sess, UN Doc E/C.12/Aus/CO/5 (11 July 2017) [41].

[xv] Australian Bureau of Statistics, Census of Population and Housing: Reflecting Australia - Stories from the Census, 2016, Aboriginal and Torres Strait Islander Population, 2016 2071.0 (2017) <https://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/2071.0~2016~Main%20Features~Aboriginal%20and%20Torres%20Strait%20islander%20Population%20Article~12>.

[xvi] ‘Aboriginal Homelessness in Australia’, Homelessness NSW, <https://homelessnessnsw.org.au/wp-content/uploads/2021/03/Aboriginal-Homelessness-in-Australia-.pdf>, 2. Australian Bureau of Statistics, Census of Population and Housing: Reflecting Australia - Stories from the Census, 2016, Aboriginal and Torres Strait Islander Population, 2016 2071.0 (2017) <https://www.abs.gov.au/ausstats/abs@.nsf/Lookup/by%20Subject/2071.0~2016~Main%20Features~Aboriginal%20and%20Torres%20Strait%20islander%20Population%20Article~12>.

[xvii] ‘Homelessness in Australia’, Homelessness NSW, <https://homelessnessnsw.org.au/wp-content/uploads/2021/03/Homelessness-in-Australia-.pdf>, 2.

[xviii] Australian Human Rights Commission, Older Women’s Risk of Homelessness: Background Paper (2019) <https://www.humanrights.gov.au/our-work/age-discrimination/publications/older-womens-risk-homelessness-background-paper-2019>.

[xix] Josh Burns, The Crumbling Australian Dream: An Examination of Australia’s Housing Sector, (McKell Institute, Victoria (March 2021), 27. Citing <https://www.ahuri.edu.au/__data/assets/pdf_file/0030/65856/An-effective-homelessnessservices-system-for-older-Australians-Executive-Summary.pdf>.

[xx] Josh Burns, The Crumbling Australian Dream: An Examination of Australia’s Housing Sector, McKell Institute of Victoria (March 2021) 41.

[xxi] ‘Homelessness in Australia’, Homelessness NSW, <https://homelessnessnsw.org.au/wp-content/uploads/2021/03/Homelessness-in-Australia-.pdf>.

[xxii] As noted in the Commission’s submission to the ICESCR Committee early this year: <https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT%2fCESCR%2fICS%2fAUS%2f47405&Lang=en>.

[xxiii] University of New South Wales and Australian Council of Social Services, Covid-19: Rental Housing and Homelessness Impacts – an initial analysis (February 2021) <https://povertyandinequality.acoss.org.au/wp-content/uploads/2021/02/COVID19_Rental-housing-and-homelessness-impacts_report-1.pdf>.

[xxiv] Angela Spinney et al, Ending Homelessness in Australia: A redesigned homelessness service system, Final Report No 347, AHURI (December 2020),70.

[xxv] Australian Bureau of Statistics, 2049.0.55.001 Information Paper: Methodology for Estimating Homelessness from the Census of Population and Housing (201), 5.

[xxvi] Australian Bureau of Statistics, 2049.0 Census of Population and Housing: Estimating homelessness, 2016: Key Findings (2018) <http://www.abs.gov.au/ausstats/abs@.nsf/mf/2049.0>; Australian Institute of Health and Welfare, Homelessness and homelessness services: snapshot (7 December 2021) <https://www.aihw.gov.au/reports/australias-welfare/housing-affordability>; Debbie Faulkner and Laurence Lester, ‘400,000 women over 45 are at risk of homelessness in Australia’ The Conversation (August 2020) <https://theconversation.com/400-000-women-over-45-are-at-risk-of-homelessness-in-australia-142906>; Angela Spinney et al, Ending Homelessness in Australia: A redesigned homelessness service system, Final Report No 347, AHURI (December 2020), 14. See also Thomas Chailloux, ‘What many of us face: Homelessness, Disability and Institutional Neglect’ in Precedent 171 (July/August 2022) 24, 25.

[xxvii] Angela Spinney et al, Ending Homelessness in Australia: A redesigned homelessness service system, Final Report No 347, AHURI (December 2020), 1.

[xxviii] Josh Burns, The Crumbling Australian Dream: An Examination of Australia’s Housing Sector, McKell Institute of Victoria (March 2021) 27.

[xxix] Josh Burns, The Crumbling Australian Dream: An Examination of Australia’s Housing Sector, McKell Institute of Victoria (March 2021) 27, noting (n 64) that, as this incudes those on waitlists for Public Housing, Community Housing and State Owned and Managed Indigenous Housing, the numbers may include some who are on multiple waitlists.

[xxx] Adam Holmes, ‘Hobart housing crisis sees rents more than double for some tenants as vacancy rate sits below 1pc’, ABC News, 15 September 2022: <https://www.abc.net.au/news/2022-09-15/hobart-housing-crisis-sees-rents-skyrocketing/101439866>.

[xxxi] Philippa Duncan, ‘A bitter winter and nowhere else to go: Hobart housing crisis forcing people to live in tents’, The Guardian, 3 July 2022.

[xxxii] Philippa Duncan, ‘A bitter winter and nowhere else to go: Hobart housing crisis forcing people to live in tents’, The Guardian, 3 July 2022.

[xxxiii] Rental Affordability Index (November 2021), 4.6.

[xxxiv] Adam Holmes, ‘Hobart housing crisis sees rents more than double for some tenants as vacancy rate sits below 1pc’, ABC News, 15 September 2022.

[xxxv] Adam Holmes, ‘Hobart housing crisis sees rents more than double for some tenants as vacancy rate sits below 1pc’, ABC News, 15 September 2022.

[xxxvi] Josh Burns, The Crumbling Australian Dream: An Examination of Australia’s Housing Sector, (McKell Institute, Victoria, March 2021) 19.

[xxxvii] Philippa Duncan, ‘A bitter winter and nowhere else to go: Hobart housing crisis forcing people to live in tents’, The Guardian, 3 July 2022, referring to the ‘Housing Dashboard’ of the Department of Communities Tasmania (May 2022).

[xxxviii] Philippa Duncan, ‘A bitter winter and nowhere else to go: Hobart housing crisis forcing people to live in tents’, The Guardian, 3 July 2022, referring to research of Professor Peter Phibbs and Julia Ely, Monitoring the Impact of Short-Term Rentals on Tasmanian Housing Markets, Shelter Tas (June 2022).

[xxxix] Elias Visontay, ‘Short-term rentals, long-term anguish for Australian towns struggling to find homes for locals’, The Guardian, 11 June 2022.

[xl] <https://www.realestate.com.au/tas/hobart-7000/>.

[xli] Josh Burns, The Crumbling Australian Dream: An Examination of Australia’s Housing Sector, (McKell Institute, Victoria (March 2021) 11.

[xlii] Josh Burns, The Crumbling Australian Dream: An Examination of Australia’s Housing Sector, McKell Institute Victoria (March 2021) 13.

[xliii] Tone Wheeler, ‘”We must separate the idea of house from home”: the case for drastic actino on shelter’, The Guardian, 13 March 2022.

[xliv] Josh Burns, The Crumbling Australian Dream: An Examination of Australia’s Housing Sector, (McKell Institute, Victoria, March 2021) 16.

[xlv] Elias Visontay, ‘Short-term rentals, long-term anguish for Australian towns struggling to find homes for locals’, The Guardian, 11 June 2022. Visontay notes that in regional areas, councils must nominate to apply a cap.

[xlvi] Elias Visontay, ‘Short-term rentals, long-term anguish for Australian towns struggling to find homes for locals’, The Guardian, 11 June 2022.

[xlvii] Elias Visontay, ‘Short-term rentals, long-term anguish for Australian towns struggling to find homes for locals’, The Guardian, 11 June 2022.

[xlviii] Elias Visontay, ‘Short-term rentals, long-term anguish for Australian towns struggling to find homes for locals’, The Guardian, 11 June 2022.

[xlix] Elias Visontay, ‘Short-term rentals, long-term anguish for Australian towns struggling to find homes for locals’, The Guardian, 11 June 2022.

[l] Elias Visontay, ‘Short-term rentals, long-term anguish for Australian towns struggling to find homes for locals’, The Guardian, 11 June 2022.

[li] Tamara Walsh, ‘Homelessness Legislation for Australia: A Missed Opportunity’ (2014) 37(3) University of New South Wales Law Journal 820.

[lii] Brendan Coates, A Place to Call Home: It’s Time for a Social Housing Future Fund, Blog, 28 November 2021, drawing on ABS Census data for 1976–2016.

[liii] From about 6% of housing in Australia to less than 4%: Brendan Coates, A Place to Call Home: It’s Time for a Social Housing Future Fund, Blog, 28 November 2021, drawing on ABS Census data for 1976–2016. Burns provides a summary history of Government policies to social housing in Josh Burns, The Crumbling Australian Dream: An Examination of Australia’s Housing Sector, McKell Institute Victoria (March 2021) 35–36.

[liv] Sarah Martin, ‘Anthony Albanese pledges $10bn social housing fund in Labor’s federal budget reply’, The Guardian, 13 May 2021.

[lv] See, eg, Brendan Coates, A Place to Call Home: It’s Time for a Social Housing Future Fund, Blog, 28 November 2021.

[lvi] Australian Institute of Health and Welfare, Housing Assistance: Snapshot (16 September 2021) <https://www.aihw.gov.au/reports/australias-welfare/housing-assistance>; Australian Institute of Health and Welfare, Housing Affordability: Snapshot (30 June 2021) <https://www.aihw.gov.au/reports/australias-welfare/housing-affordability>; Australian Institute of Health and Welfare, Indigenous Housing: Snapshot (16 September 2021) <https://www.aihw.gov.au/reports/australias-welfare/indigenous-housing>.

[lvii] The issue of suitable, accessible housing is a key concern of the Disability Discrimination Commissioner, Dr Ben Gauntlett. See <https://humanrights.gov.au/our-work/disability-rights/publications/adaptable-housing-people-disability-australia-scoping-study>. See also Philip Lynch and Jacqueline Cole, ‘Homelessness and Human Rights: Regarding and Responding to Homelessness as a Human Rights Violation’ (2003) 4 Melbourne Journal of International Law 139, 174–175. Last year, the Commission had occasion to intervene in a case that tested the right to adequate housing in relation to public housing in the Northern Territory communities of Ltyentye Apurte (Santa Teresa) and Laramba. The Northern Territory Government, as landlord, argued that its obligation to provide housing that was ‘habitable’ was limited to compliance with minimum health and safety requirements. The Commission argued that the standard was higher, requiring an overall assessment of humaneness, suitability and reasonable comfort of the premises judged against contemporary standards – reflecting the ideas of ‘adequacy’ of ICESCR.  In February this year, the Northern Territory Court of Appeal substantially agreed with the position of the tenants and the Commission, holding that ‘habitable’ includes the concept of ‘reasonable comfort’: CEO (Housing) v Young [2022] NTCA 1.

[lviii] Brendan Coates, A Place to Call Home: It’s Time for a Social Housing Future Fund, Blog, 28 November 2021.

[lix] Angela Spinney et al, Ending Homelessness in Australia: A redesigned homelessness service system, Final Report No 347, AHURI (December 2020), 2, 3.

[lx] Tone Wheeler, ‘”We must separate the idea of house from home”: the case for drastic actino on shelter’, The Guardian, 13 March 2022.

[lxi] Josh Burns, The Crumbling Australian Dream: An Examination of Australia’s Housing Sector, McKell Institute of Victoria (March 2021) 55.

[lxii] ‘Human Rights and Housing’ <http://tutas.org.au/campaigns/human-rights-and-housing/>.

[lxiii] Accessible here: <https://www.refworld.org/docid/47a7079a1.html>

[lxiv] [2002] EWHC 2282 Admin. 

[lxv] ACT example: NSW Alliance for Human Rights, Submission to Free and Equal inquiry. The Queensland example is included in Human Rights Law Centre, Charters of Human Rights make our lives Better: 101 Cases showing how (2022) <https://www.hrlc.org.au/reports/2022/6/2/charters-of-human-rights-make-our-lives-better>. Original source: The First Annual Report on the Operation of Queensland’s Human Rights Act 2019–20 (2020) 112

[lxvi] See eg, <https://justiceconnect.org.au/stories/connie/>.

[lxvii] Victoria Legal Aid, Submission, Free and Equal inquiry.

[lxviii] Victorian Equal Opportunity and Human Rights Commission, Submission, Free and Equal inquiry.

rosalind croucher

Rosalind Croucher AM, President

Area:
Commission – General