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Article by James Farrell | Published December 15, 2011
This article is part of our December theme, which focuses on one of the least appreciated but most fundamental aspects of well-being: housing. Read our Editorial for more on this theme.
The Federal Government’s White Paper on Homelessness, The Road Home: A National Approach to Reducing Homelessness (White Paper), proposed the introduction of new legislation that would “underpin the national response to homelessness, setting standards to deliver the best quality services possible”.
In June 2009, the Minister for Housing referred the inquiry into homelessness legislation to the House of Representatives Standing Committee on Family, Community, Housing and Youth (Committee). The Committee’s terms of reference were to inquire into and report on the content of homelessness legislation.
Many of the submissions to the inquiry (including submissions by the PILCH Homeless Persons’ Legal Clinic (HPLC), the Human Rights Law Resource Centre and Hanover Welfare Services) urged the Committee to situate the problem of homelessness within a human rights framework. The HPLC submitted that a human rights framework should be used as a starting point and that legislative mechanisms based on human rights principles and norms should then be adopted to ensure the most effective response to tackle the homelessness crisis in Australia.
In November 2009, the Committee tabled the report of its inquiry, adopting the recommendation of the HPLC and other organisations by making a direct link between social inclusion, human rights and homelessness. One key recommendation of the Committee’s report was that new homelessness legislation should specify the right of all Australians to adequate housing.
This article outlines the significance of this recommendation to Australians experiencing homelessness and focuses on why the problem of homelessness should be situated within a human rights framework.
The Federal government has obligations under international law to respect, protect and fulfil the human rights found in a number of international human rights treaties to which Australia is a party.
The right to adequate housing is one such fundamental human right which Australia is fully committed to implementing by reason of its ratification of the International Covenant on Economic, Social and Cultural Rights (ICESCR).
As a result of Australia’s commitment to implementing the right to adequate housing, Australian governments are obliged to take concrete steps to progressively fulfil this right. This requires the governments to take positive steps to promote and support the right through legislative, administrative and other required measures. Accordingly, the Australian government must take all appropriate legislative, administrative, budgetary, judicial and other measures to facilitate full realisation of the right to adequate housing.
In addition to the Governments’ legal obligations in relation to human rights, using a human rights framework will provide a clear strategy and policy position in tackling homelessness.
A strategy underpinned by a human rights framework would implement the principles of empowerment, equality, dignity and accountability in all stages of legislation, policy design and service delivery. These characteristics operate to set standards and function as a model for all stages of government decision-making, law reform, policy development, programmatic design and service delivery. The experience in comparative jurisdictions is that a human rights approach is effective and meaningful in addressing homelessness. Some of the benefits of using a human rights approach, which are relevant to Australia, include:
Legislative mechanisms based on human rights principles and norms must be adopted to ensure the most effective response to tackle the homelessness crisis in Australia.
Legislation is an important tool in protecting human rights. Legislation can provide the public with direction and guidance about appropriate conduct and behaviour. It can also specify behaviours that infringe on the rights of others, require people to act in certain ways and ensure proper processes.
To enact the right to adequate housing in a Federal Homelessness Act, the Government would be required to take reasonable and effective steps to progressively realise this human right. This realisation would include the provision of housing which satisfies the seven key aspects of the right to adequate housing 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.
The new Act should provide a requirement to set benchmarks and targets which have legislative effect in relation to the government’s progressive realisation of the right to adequate housing. These benchmarks and targets should address the structural, process and outcome issues related to homelessness.
To ensure the right to adequate housing is practically realised, the legislation should specify action that would be a violation of the right to adequate housing. One such violation would be that no person should be arbitrarily evicted from government-funded accommodation into homelessness. To be effective, the legislation should also include effective remedies for individuals whose rights are violated.
It should be remembered that it is government, and not individual service providers, which must be ultimately responsible and accountable for tackling homelessness. The legislation must therefore ensure that service providers are not punished for failures to comply with standards where that failure is caused solely by insufficient funding or support from the government.
In our view, several practical safeguards should be implemented to ensure that the right to adequate housing is realised and respected. For instance, we recommend the establishment of an independent Office of the Commissioner for Adequate Housing for the purpose of monitoring the government’s progressive realisation of the right to adequate housing in Australia and to safeguard individuals’ rights. The Commissioner could set structural, process and outcome benchmarks and targets and report to Government on whether these benchmarks and targets are being met. The Commissioner could also undertake steps such as developing a charter of rights and responsibilities that service providers must adhere to in order to access Government funding and developing grievance and appeals procedures in respect of public housing matters and general social support services.
The Act should also establish a Housing Ombudsman or, in the alternative, provide the Commissioner for Adequate Housing with the power to hear and investigate complaints in respect of federally funded service provision, including whether these service providers are acting compatibly with the rights of the individual. The Housing Ombudsman could also conduct investigations and reviews of Federal government departments and federally funded public authorities, including service providers, on its own initiative.
The Committee’s recommendation that the right to adequate housing be progressively realised in new Federal homelessness legislation is to be welcomed. However, two years on, this recommendation has not been implemented.
Enshrining the right to adequate housing in legislation will protect the human rights of Australians as well as ensuring that the government has a clear policy and strategic position in relation to homelessness.
To respect, protect and fulfil the right to adequate housing, Federal legislation must enact the content of the right and provide for benchmarks and targets by which the progress towards full realisation of the right can be measured. A Federal Homelessness Act must also specify behaviour that violates the right to adequate housing and provide for practical safeguards to be implemented to ensure that the right is realised and respected.
James Farrell is a lecturer at the Deakin University School of Law and a former manager/principal lawyer of the PILCH Homeless Persons’ Legal Clinic. An earlier version of this piece appeared in Parity, the national homelessness publication of the Council to Homeless Persons.