Housing and Homelessness – What’s Human Rights got to do with It?
By Cassandra Goldie1
Paper presented at the
Homelessness and Human Rights Seminar
Australian Human Rights and Equal Opportunity Commission
12.30 – 2pm, Monday 7 April 2008
133 Castlereagh Street, Sydney, NSW
I would like to begin today by paying my respects to the Gadigal peoples of the Eora nation, the traditional owners of the land where we gather today. I pay my respects to your elders, past and present. And as we begin our discussion today about the connections between housing, homelessness and human rights, I think we will all agree that this acknowledgement is particularly important.
I should also mention that my presentation today is my own personal view, and does not necessarily represent the view of HREOC.
Before the 2007 Federal Election, I had the opportunity to be involved in a vibrant discussion with a former senior government minister about human rights. The discussion was exploring the necessity for improving the domestic legal protection of human rights in Australia.
At one point in the discussion, the minister made the point that people in his electorate just didn’t come to him to talk about human rights. They came to raise issues like housing.
The connection between the two – human rights and housing – was, at least to him, not evidently apparent.
This questioning of the relevance of ‘human rights’ to ‘housing’ and ‘homelessness’ is, however, not confined to this former senior minister.
It is also possible that the new Rudd Labor Government does not necessarily make a clear connection between its policy commitment to improve the legal protection of human rights in Australia, and the issues of affordable housing and homelessness, both of which are policy areas also with a new commitment for action.
And the connection between human rights, housing and homelessness is also not immediately made amongst many advocates. I was recently at a community event organized by the South Australian Women’s Housing Caucus – a fantastic gathering of women who work tirelessly to improve the lives of the homeless girls and women in that state. We began a discussion about the foreshadowed national inquiry into a charter of human rights. Again, for these women, it was not immediately clear to them why they would put their energies into engaging with such a process, unless they could see how human rights laws might make a real difference to improving people’s lives on the ground.
Busy people make good decisions about how best to spend their time.
However, as we spent time talking about the possible implications, their interest was clearly sparked!
So, in the short time that I have, I hope to also spark your interest. It is of course a great beginning that we are all here together today, and I am very much looking forward to our discussions.
I want to provide a couple of examples of where better human rights laws in other countries have indeed made a real difference to people in their daily lives in the area of housing and homelessness.
The couple of stories from other countries deal with two very confronting realities that are a part of the Australian landscape today.
One is about the treatment of people who live their lives out their lives on the streets, and in public spaces.
The other is about the traumatic events that surround an eviction from private rentals into homelessness.
By telling these stories from other places, I hope to make the case that, if we believe that everyone in our wealthy country should have a secure, affordable and appropriate place to live, then human rights has got a lot to do with it!- and in a very practical way.
As we sit here today, every jurisdiction in Australia has laws in place which criminalise people who live in public places. In Darwin, for example, it is an offence to camp, or as an adult, to sleep in public between sunset and sunrise. Yet Darwin has the highest rate of homelessness of any capital city in Australia.2
On my recent trip to Darwin, just a couple of weeks ago as part of the Sex Discrimination Commissioner’s national Listening Tour, we met up with a group of people living ‘in the long grass’. We were fortunate to meet up with this Indigenous extended family group who live tucked right up under the bushes near the beach to avoid the daily council and police patrols that move them on from their camping and resting places.
One of the women told me that early that morning at another location further up the beach, a group had been cooking turtle on a fire. The police came along, warned them, once again, to pick up their belongings, and to ‘move on’.
But move on to where?
It is generally agreed that there is a chronic lack of low cost, culturally appropriate housing options for people living in Darwin. With the impacts of the NT Intervention currently being assessed, it appears that the number of people moving into Darwin from other Indigenous communities across the Northern Territory is only increasing, further intensifying the housing crisis.
Yet, public space laws, and move on powers continue to be used by policing authorities to move on people living in public on a daily basis. And this story is not unique to Darwin.
So, what has human rights law got to do with this?
The human right to freedom from Cruel, Inhuman and Degrading Punishment or Treatment
For this example, I want to highlight the relevance of the human right to freedom from cruel, inhuman and degrading punishment or treatment. This human right is contained in article 7 of the International Covenant on Civil and Political Rights3 - an international treaty to which Australia is a party. Article 7 provides that:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.
This human right is not currently protected in our national laws. However, it is now contained in s 10 of the Human Rights Act 2004 (ACT) and s 10 of the Charter of Rights and Responsibilities 2006 (Vic).
And I want to share with you a recent story from the United States where this human right, contained in the United States Constitution as the Eighth Amendment, has been used to challenge the enforcement of public spaces laws, like the anti-camping and sleeping ban in Darwin, against people living in public spaces.
A Story from the United States: Jones v City of Los Angeles4
In the City of Los Angeles, there are at least 80 000 people who are homeless each night out of a total population of just under 10 million.5 In Skid Row, a ‘place of desperate poverty, drug use and crime’,6 the number of people who are homeless is in the order of 11-12 000, the highest concentration of homelessness in the United States. There is a dire lack of low cost or free shelter such that at least 1000 people in Skid Row and up to 50 000 in the entire County are forced to sleep outside in public on any given night.
Yet, the City of Los Angeles adopted a city-wide law that criminalizes sitting, lying or sleeping on public streets and sidewalks at all times and in all places within Los Angeles’ city limits. Infringement may incur up to USD$1000 in fines or six months imprisonment.
The law had been in place since 1968 but the enforcement policy had varied over time.
For example, in the late 1980s, the City Attorney and then Mayor had refused to prosecute people living on the streets unless the City provided them with alternative shelter.
However, that policy had since radically changed to a zero tolerance approach to policing of public spaces.
According to the LAPD,
[i]f the behaviour is aberrant, in the sense that it breaks the law, and then there are city ordinances … You arrest them, prosecute them. Put them in jail. And if they do it again, you arrest them, prosecute them and put them in jail. It’s that simple.7
Six homeless people charged under this law for sleeping in public made application to the court to prevent the law from being used against them, relying on the Eight Amendment of the Constitution.
Edward Jones and his wife were two of the appellants. Mrs Jones suffered severe physical and mental health issues. Mr Jones could not work full time because he needed to care for his wife. They received limited social security payments but the amount was only enough for them to pay for low cost temporary accommodation for two weeks out of every month. During other nights, they lived on the streets.
At 6.30 am on November 2002, they were sleeping on the sidewalks when the LAPD charged them with violating the anti-sleeping law. Other stories were similar.
The applicants argued that prosecution of homeless people for sleeping in public at night violated their right to freedom from cruel and unusual punishment.
They argued that enforcement of the law against homeless people involuntarily sitting, or sleeping on the street due to the unavailability of shelter in Los Angeles was to criminalise their status as homeless people, given that the act of sleeping is involuntary and essential to the human condition. The six people who brought the case before the courts produced evidence to show that they were not living on the streets by informed choice.
The Court held that the Eighth Amendment prohibited the City from punishing involuntary sitting, lying, or sleeping on public sidewalks that is an unavoidable consequence of being human and homeless whilst the inordinate lack of low cost of free shelter options in the City of Los Angeles persisted. 8
And I quote:
[A]s long as there is a greater number of homeless individuals in Los Angeles than the number of available beds the City may not enforce the ordinance against homeless individuals for involuntarily sitting, lying and sleeping in public.9
The Court remitted the case to the District Court for the tailoring of the injunctive relief that would be consistent with its opinion, with the appellants entitled at a minimum to a narrowly tailored injunction against the City’s enforcement of the ordinance during certain times and/or places.
Accordingly, whilst the Court was not prepared to say that it was against human rights to ban people generally from sleeping in public places, (ie that the anti-sleeping law was unconstitutional), it agreed that it was against human rights to ban homeless people from sleeping in public places during the night in circumstances where there was no where else for them to sleep.
This is exactly the current situation in Darwin in the Northern Territory. As this case from Los Angeles shows, human rights laws that protect people against cruel, inhuman or degrading punishment or treatment in Australia could be used to stop policing authorities from moving on and harassing homeless people when they have no where else to live.
Preventing the enforcement of public space laws against homeless people might then lead to greater efforts on the part of governments to provide more low cost, supported, and culturally appropriate housing options for this sector of our community.
The second issue I want to highlight is the relevance of human rights laws to private landlord evictions.
As you probably know, in most states and territories in Australia, a private landlord is able to obtain an eviction order against a private tenant even if the tenant has not breached the tenancy agreement.
For example, under the Residential Tenancies Act 1987 (NSW), a landlord can seek an eviction order against a tenant upon giving the tenant 60 days notice.10 If the tenant fails to leave, the landlord can make an application to the Consumer, Trader and Tenancy Tribunal for an eviction order.11 The Tribunal is to grant the eviction if it is satisfied that ‘having considered the circumstances of the case, it is appropriate to do so.’12
Ultimately, whilst the Tribunal has a general discretion as to whether an eviction order is to be made, in practice, the eviction will proceed even if the tenant is in dire circumstances, and will be homeless and on the streets, sometimes with children, once the eviction occurs. It is well understood that it is not the responsibility of the private landlord to house people facing homelessness, at the expense of their right to regain possession of their own private property.
According to the Tenants Union of NSW,
The Tribunal exercises its discretion to decline to make orders very rarely: there are only three or four published decisions each year in which the Tribunal declines to order termination because of the circumstances of the case.13
In September 2007, the NSW Office of Fair Trading released its consultation paper, Residential Tenancy Law Reform: A New Direction,14 and is currently taking submissions about a proposal to further limit this discretion. It proposes that the Residential Tenancies Act 1987 (NSW) be amended to, on the one hand, extend the no ground eviction notice period to 90 days (except in certain circumstances, such as a need to move into the property, in which case the notice period would remain at 60 days), but on the other hand, to specify the extenuating circumstances that may avert an eviction, and to only enable the Tribunal to suspend the eviction for a maximum of 12 months, rather than refuse the eviction order altogether.15
Homelessness services and government agencies may be able to prevent the family from ending up on the streets, to a greater or lesser extent. However, many of you will have spent sleepless nights leading up to an eviction that you know will not be averted, worrying whether the people facing eviction will have somewhere to go at the end of the day.
How could human rights laws help?
The Human Right to Adequate Housing
In this example, I want to focus on the human right to adequate housing, which incorporates a prohibition on forced evictions. This human right is contained in art 11(1) of the International Covenant on Economic, Social and Cultural Rights (ICSECR).16Australia is also a party to this international treaty.
Article 11(1) of the ICESCR provides as follows:
The State Parties to the present Covenant 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. The State Parties will take appropriate steps to ensure the realisation of this right, recognising to this effect the essential importance of international co-operation based on free consent.
In essence, this provision places an obligation on governments to progressively realise the right to adequate housing to the maximum of available resources, and to prevent retrogressive measures, such as forced evictions into homelessness.17
At the moment, the human right to adequate housing has not been adopted into Australia’s domestic laws. In three of the four recent public inquiries held in the last few years to consider adoption of state and territory-based human rights laws – ACT, Tasmania and WA - the committees recommended that these rights be included in their new human rights law.18 However, no government has yet to agree to this proposal.
So, I want to tell a story from South Africa to show how our experience of private evictions in Australia might become more humane if we did have a human right to adequate housing in our Australian domestic law.
A Story from South Africa: Lingwood v The Unlawful Occupiers of R/E of Erf 9 Highlands19
In South Africa, s 26 of the Constitution contains a human right of access to adequate housing. As a part of that human right, the Constitution also prohibits arbitrary evictions.20
The South African Parliament has enacted laws to set out in more detail the constitutional and human rights obligations on the government to provide adequate housing on a progressive basis.
The human right to adequate housing does not mean that everyone immediately has an enforceable right to a home.
The Housing Act 1997 (SA) places an obligation on the State to take all reasonable and necessary steps within the framework of national and provincial housing legislation and policy to:
- Ensure that inhabitants within its area of jurisdiction have access to housing on a progressive basis;
- Set housing delivery goals in respect of its area of jurisdiction;
- Identify and designate land for housing development; and
- Initiate, plan, coordinate, facilitate, promote and enable appropriate housing development in their areas of jurisdiction.21
Through past court decisions, section 26 of the Constitution has also been found to place an immediate obligation on the State to have a program in place to provide emergency shelter to those who are homeless and living in desperate circumstances.22
The Government has also passed an eviction law that must be followed by both public and private landlords in order to ensure evictions do not violate human rights under the Constitution - the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 1998 (South Africa).
The eviction law provides that a court may grant an order for eviction if it is considered just and equitable to do so, after considering all the relevant circumstances, including the rights and needs of elderly, children, disabled persons and households headed by women.23
If a person has occupied the land in question for more than six months at the time when the proceedings are initiated, except where the land is sold in a sale of execution pursuant to a mortgage, the court is obliged to also take into account whether land has been made available or can reasonably be made available by a municipality or other organ of the State or landowner for the relocation of the unlawful occupier.24
In October last year, the High Court of South Africa heard a case dealing with a private land lord eviction.
In Lingwood v The Unlawful Occupiers of E/R of Erf 9 Highlands, the applicant was a private developer who had recently bought a property consisting of 9 rooms which housed some 19 adults and 8 children. All of the occupants were extremely poor families who had lived in the property lawfully as private tenants, in some cases for over 15 years, paying rent to the previous owner but living a subsistence life in the heart of the city of Johannesburg.
The new owner cut off their water supply and then brought an application to court to get an eviction order against all the families in order to proceed with a development.
The families opposed the application, arguing that, if they were evicted, as desperately poor families, they would have absolutely nowhere else to live. They argued that their eviction would not be just and equitable.
The Court refused to grant the eviction until the City of Johannesburg was joined in the proceedings and could be called to account and subject to court orders regarding provision of alternative accommodation for the families.25
In the Court’s view, the requirement that an eviction order must be just and equitable requires a proper balancing of all the interests, including the statutory and constitutional obligations on State organs to make provision for both emergency accommodation, and longer term accommodation. In order to appropriately balance these interests, the Court would not proceed without the City of Johannesburg being brought before the court.
Citing an earlier South African eviction case, the court affirmed that the purpose of the laws implementing the human right to adequate housing, particularly in relation to evictions require
the Court to infuse elements of grace and compassion into the formal structures of the law. It is called upon to balancing competing interests in a principled way and to promote the constitutional vision of a caring society based on good neighbourliness and shared concern … we are not islands unto ourselves.26
The court made it clear that the City of Johannesburg had clear human rights obligations under the Constitution to make provision for emergency accommodation for people in dire poverty facing homelessness, and so the government needed to be a party to the proceedings before the eviction order would be made, so that the government could have orders made against it to avoid the families being made homeless.
In this way, the human right to adequate housing, if enacted in Australia in a similar way to South Africa, would have the potential to significantly improve the coordination of services to avoid evictions into homelessness. A requirement that government authorities may be joined to private eviction cases would increase the accountability of Australian governments to ensure that desperate people are not evicted into homelessness.
In this way, homelessness services would not be faced with the sometimes terrible pressures of endeavouring to negotiate last minute arrangements outside of the Tribunal proceedings to try to find people a place to stay.
In a human rights-based future, private eviction cases which involve people who are going to be made homeless would require government authorities to come to court as well, to be accountable for what they will do to provide alternative accommodation, when it is just and equitable to do so.
This is a reform which would be particularly important in a housing environment where government authorities have placed an increasingly strong emphasis on the private rental market as a source of low cost housing, with funding subsidy from the State, rather than the provision of publicly-funded social housing.
In my view, this would provide an excellent legal safety net against homelessness in our country.
That’s what human rights have got to do with it!
I hope that these two stories, from the US and South Africa, help to show how better human rights laws and policies in Australia could go further than some might think to ensuring that people who are homeless or facing evictions are treated with greater dignity and respect.
Australia is a wealth country. With the policy commitments from the new Federal Government showing new promise, I would strongly encourage us all to make the connections between human rights laws, and our concerns about housing and homelessness.
We have much to gain by learning from other countries as we continue to work towards building the kind of society we can be: one founded on human rights for everyone, everyday, everywhere, in which, as good neighbours and a caring society, our laws and policies appropriately balance all the interests in make decisions that impact on human rights, and ensure that governments are accountable for their human rights obligations.
Director of the Sex and Age Discrimination Unit at the Australian Human Rights and Equal Opportunity Commission (HREOC); Visiting Fellow, Gilbert + Tobin Centre of Public Law, University of New South Wales; LLB (UWA) (Hons) LLM (UCL) (Dist) Phd Candidate (UNSW). The views expressed in this paper are the author’s views and do not necessarily represent the views of HREOC.
 Based on the Australian Bureau of Statistics 2001 Census, as at August 2001, 3.12% of Darwin’s population was homeless, compared to the next highest rate in Brisbane at 0.48%. Darwin also had the highest percentage of the homeless population who were people in the ‘primary homelessness’ category, the most severe form of homelessness ie living in public spaces or improvised dwellings, being 28% compared to the next highest rate of 8% for Perth. Darwin also had the largest total number of Indigenous people in the primary homelessness category (349), compared to Perth (102) and then Sydney (97) as well as the greatest percentage of Indigenous people in the overall primary homelessness population (62%), compared to Adelaide (22%) and Perth (21%). The proportion of
 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), art 7.
 Jones & Ors v City of Los Angeles & Ors (Unreported, United States Court of Appeals for the Ninth Circuit, 14 April 2006).
 Under the Steward B McKinney Homeless Assistance Act 1987 (United States) , the term ‘homeless individual’ is defined to include: (1) an individual who lacks a fixed, regular and adequate nighttime residence; and (2) an individual who has a primary nighttime residence that is – (A) a supervised publicly or privately operated shelter designed to provide temporary living accommodations (including welfare hotels, congregate shelters, and transitional housing for the mentally ill); (B) an institution that provides a temporary residence for individuals intended to be institutionalized; or (C) a public or private place not designed for, or ordinarily used as, a regular sleeping accommodation for human beings.
 Jones & Ors v City of Los Angeles & Ors (Unreported, United States Court of Appeals for the Ninth Circuit, 14 April 2006), 5.
 Jones & Ors v City of Los Angeles & Ors (Unreported, United States Court of Appeals for the Ninth Circuit, 14 April 2006), 5, citing the LAPD Chief William Bratton.
 Accordingly, the Court upheld the ‘applied challenge’ to the ordinance. The Court rejected submissions from the City that the application of the ordinance was not cruel and unusual because it was open to each of the appellants to have defended their prosecution on the grounds of necessity, relying on In Re Eichorn, 69 Cal App 4th 382 (1998). The Court took the view that the punishment of the appellants commenced from the time of their citation, and the cruel and unusual nature of the punishment could not be remedied by the theoretical possibility of escaping an ultimate conviction through a successful necessity defence at trial. ‘[T]he Appellants have been and in the future will probably be fined, arrested, imprisoned, and/or prosecuted, as well as suffer loss of their personal property, for involuntarily violating [the ordinance]. These pre-conviction harms, some of which occur immediately upon citation or arrest, suffice to establish standing and are not salved by the potential availability of a necessity defence. The loss of Appellants’ possessions when they are arrested and held in custody is particularly injurious because they have so few resources and may find that everything they own has disappeared by the time they return to the street.
Moreover, the practical realities of homelessness make the necessity defence a false promise for those charged with violating [the ordinance]. Homeless individuals, who may suffer from mental illness, substance abuse problems, unemployment, and poverty, are unlikely to have the knowledge or resources to assert a necessity defence to a … charge, much less to have access to counsel when they are arrested and arraigned. Furthermore, even counselled homeless individuals are unlikely to subject themselves to further jail time and a trial when they can plead guilty in return for a sentence of time served and immediate release. Finally, one must question the policy of arresting, jailing, and prosecuting individuals whom the City Attorney concedes cannot be convicted due to a necessity defence. If there is no offence for which the homeless can be convicted, is the City admitting that all that comes before is merely police harassment of a vulnerable population?’: Jones & Ors v City of Los Angeles & Ors (Unreported, United States Court of Appeals for the Ninth Circuit, 14 April 2006), 27-29.
 Jones & Ors v City of Los Angeles & Ors (Unreported, United States Court of Appeals for the Ninth Circuit, 14 April 2006). The Court discussed earlier authorities such as Robinson v California Robinson v California, 370 US 660 (1962) finding that the protection of the Eighth Amendment extends to an act or condition which is involuntarily engaged and inextricably linked to a person’s status.
 Residential Tenancies Act 1987 (NSW), s 58.
 Residential Tenancies Act 1987 (NSW), s 64(1).
 Residential Tenancies Act 1987 (NSW), s 64(2)(ii).
 Tenants’ Union of NSW, Termination and evictions ‘without grounds’: Part of the NSW Office of Fair Trading’s Proposals for residential tenancies law reform (http://www.tenants.org.au/policy/campaigns/spotlight/no_grounds_2.pdf).
 NSW Office of Fair Trading, Residential Tenancy Law Reform: A New Direction (2007). Go to http://www.fairtrading.nsw.gov.au/pdfs/About_us/residentialtenancylawreformanewdirection.pdf.
 International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 999 UNTS 3 (entered into force 3 January 1973).
 Elaboration of the meaning and content of the human right to an ‘adequate standard of living, including … housing’ in Article 11 and the obligations on the State is to be found in United Nations Committee on Economic, Social and Cultural Rights, General Comment No 4: The Right to Adequate Housing, UN Doc E/CN4/1991/4 (1991), United Nations Committee on Economic, Social and Cultural Rights, General Comment No 7: Forced Evictions, UN Doc E/1998/22 (1997), United Nations Committee on Economic, Social and Cultural Rights, General Comment No 3: The nature of States parties obligations (Art 2 para 1 of the Covenant), 55th Sess, UN Doc E/1991/23 (1990); and United Nations 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). For an analysis of this obligation by reference to the Australian context, see Dianne Otto, 'Addressing Homelessness: Does Australia's Indirect Implementation of Human Rights Comply with its International Obligations? 'in Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone (eds), Protecting Human Rights: Instruments and Institutions (2003) 14. See also Rowan McRae and Dan Nicholson, 'No place like home: Homelessness in Australia and the right to adequate housing' (2004) 10(2) Australian Journal of Human Rights 27.
 See ACT Bill of Rights Consultative Committee, 'Towards an ACT Human Rights Act' (Australian Capital Territory, 2003); Tasmanian Law Reform Institute, 'A Charter of Rights for Tasmania' (Tasmanian Law Reform Institute, 2007); Consultation Committee for a Proposed WA Human Rights Act, 'Report of the Consultation Committee for a Proposed WA Human Right Act' (2007).
 Lingwood v The Unlawful Occupiers of R/E of Erf 9 Highlands (Unreported, High Court of South Africa, Witwatersrand Local Division, Mogagabe AJ,16 October 2007).
 See Constitution of the Republic of South Africa 1996, s 26 which provides that: (1) Everyone has the right to have access to adequate housing; (2) The State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of this right; and (3) No one may be evicted from the home or have their home demolished without an order of Court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.
 Lingwood v The Unlawful Occupiers of R/E of Erf 9 Highlands (Unreported, High Court of South Africa, Witwatersrand Local Division, Mogagabe AJ,16 October 2007),
 Grootboom v Oostenberg Municipality & Ors 2000 (3) BCLR 277 (C) .
 Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 1998 (South Africa), s 4(6).
 Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 1998 (South Africa), s 4(7).
 In Port Elizabeth Municipality v Various Occupiers 2004 (12) BCLR 1268, Sachs J had held that ‘a court should be reluctant to grant an eviction against relatively settled occupiers unless it is satisfied that a reasonable alternative is available, even if as an interim measure pending ultimate access to housing in the formal housing programme’: at .
 Lingwood v The Unlawful Occupiers of R/E of Erf 9 Highlands (Unreported, High Court of South Africa, Witwatersrand Local Division, Mogagabe AJ,16 October 2007), , citing Port Elizabeth Municipality v Various Occupiers 2004 (12) BCLR 1268, -, Sachs J.