Book – Homelessness and the Law

By Ellena Savage | 12 Dec 11

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.

Relative to international standards, Australia’s economic and political freedoms rank highly. Our standard of living is generally satisfactory. A nation of just 22 million people and a lot of dirt, we are the world’s thirteenth-largest economy, and earn the sixth-highest per capita income. And yet, we are the only Western democracy still without a Bill of Rights.

A Bill of Rights in Australia would describe the rights the majority of us currently enjoy; it would clearly state the obligations of the state and other institutions in protecting those rights universally; and, importantly, it would provide judicial and other remedies available to enforce their protection.

Perhaps it is because the greater part of our society enjoys high living standards that we are blind to the injustices suffered at the fringes; that our affluence and assumed political freedoms—should we use them—impairs our compassion and ability to look beyond personal experiences as the measure of collective ones. People forced into homelessness are denied the dignity of privacy and home, and often are unable to access corresponding human rights.

In her new book Homelessness and the Law (2011), University of Queensland academic Tamara Walsh argues that the rights and dignity of homeless people need to be legally recognised and protected. She provides evidence to suggest that legal institutions need to frame homelessness as a human rights issue, as opposed to a strictly welfare issue, and that a Bill of Rights could provide the requisite legal framework.

“governments have been able to avoid legally committing themselves to measurable responses to homelessness.”

The final chapter, ‘Homelessness as a Violation of Human Rights,’ mounts a legal argument in favour of this view.

Walsh acknowledges that many people experiencing homelessness do not believe they have any rights or that having ‘rights’ is not the solution to their challenges. She argues that in conjunction with better advocacy structures, human rights law can provide “part of the solution to the legal problems faced by people who are homeless.”

While Australia is a signatory to the major United Nations human rights treaties, they are not automatically enforceable in Australian law. To be legally binding, provisions need to be recognised in legislation or common law. There are some such provisions, but as Walsh states, they exist in a “piecemeal and ad hoc fashion.”

To be homeless is to not enjoy the right to shelter. Article 25 of the Universal Declaration of Human Rights recognises the right to housing as part of the right to an adequate standard of living. Homelessness imperils other basic human rights.

Some of these, as Walsh explains, are: “The right to life, liberty and security of person”; “Rights associated with political participation,” challenged by a lack of access to voting registration without a fixed address and a lack of access to media; “The right to freedom from arbitrary interference with privacy, family and the home”; “The right to freedom from cruel, inhuman or degrading treatment” challenged by laws that prohibit homeless people from performing the most basic and inoffensive survival acts, like sleeping and eating; “The right to the highest attainable standard of physical and mental health,” evidenced by the fact an estimated 75 per cent of homeless people suffer mental illness; and “the right to education,” which applies to homeless children, many of whom leave school when they become homeless and where their schools may not adequately support them.

“Like anyone else, people who are homeless want to be treated with dignity and respect”

The potential for a Bill of Rights to protect the human rights of people who are homeless is illustrated by the case of Pottinger v City of Miami, an action challenging the Miami Police for “harassing” homeless people. Using the Eighth and Fourteenth Amendments of the US constitution, the court found that the plaintiffs, who had not chosen to be homeless, were suffering punishment by the city for being homeless. This constituted “cruel and unusual punishment” in violation of the Eighth Amendment. The court also found that, in violation of the Fourteenth Amendment, the city was preventing the free movement of American people.

Walsh highlights how Australians’ ambivalence towards ‘rights’ has “created an environment in which governments have been able to avoid legally committing themselves to measurable responses to homelessness.” Constitutions in Belgium, Finland, the Netherlands, South Africa, Spain, Sweden and Switzerland specifically refer to the right to housing.  In South Africa, to address historical inequalities compounded by inadequate and inequitable housing, the Constitution states, “Everyone has the right to have access to adequate housing.”

Objections to a rights-based legal discourse in Australia – based on the views that enshrined human rights will be too costly, and they are not necessary considering the existing legal protections – are discounted by Walsh. “The overseas experience suggests that it is possible to create social and economic rights that are legally enforceable without seriously compromising the role of the courts or placing excessive burden on the public purse,” she says. Human rights law is a protection, perhaps the last protection, for the most vulnerable among us. As Martha Jackman points out, “To be in a position to complain about state interferences with rights, one has to exercise and enjoy them.”

The rights and dignity of people experiencing homelessness will only be fully restored when such people are not forced to go homeless. Legal reform won’t solve the problems of homelessness per se. But human rights law needs to be available to people who are homeless to protect them where their human rights – including the right to life, liberty and security of person – are being infringed upon. As Walsh writes, “Like anyone else, people who are homeless want to be treated with dignity and respect: by the law, by systems and by individuals.”