The demolition of Melbourne’s public housing towers and public housing tenants’ right to housing

By Hannah Figueroa

On 20 September 2023, the Victorian Government released its Housing Statement – a major package of government investment and reforms in housing.

Part of the plan is to demolish significant public housing estates across the state, including all 44 public housing towers across Melbourne by 2051. According to The Age, the 10,000 public housing residents were informed of the decision by Homes Victoria via leaflets the day after the announcement.

At this stage it is intended that the public housing towers in Carlton, North Melbourne and Flemington will be replaced with 30,000 new dwellings, of which only 11,000 will be earmarked for social housing. The remaining 19,000 dwellings will be private housing.

According to the State Government, the towers are ‘no longer fit for modern living’ and are unable to be retrofitted and therefore need to be demolished. However, leading experts from the RMIT Centre for Urban Research argue that there is no publicly available evidence to support this proposition and that demolishing the towers will in fact likely add further to the current shortage of public housing. Demolition will displace the closely-linked refugee and migrant communities that have called these estates home for years.

The plan to demolish the towers runs counter to studies and research that have found it both economically feasible and environmentally sustainable to extend and refurbish existing public housing estates; refurbishment can be done in a way that maintains the interests of both residents and the Government.

The State Government has maintained that its plan seeks to address the current housing crisis and the lack of supply of social and affordable housing. Yet in June 2023, there were 65,195 applicants on the Victorian Housing Register (up from 64,168 in June 2022). The displacement of public housing tenants as a result of the demolition will only add to this growing list. The plan outlined in the Statement will not yield a net increase in supply of overall dwellings for at least another decade, and the overall increase will be very modest. Meanwhile, a very significant amount of public land will be transferred to private ownership, removing the option of building public housing on that land from future governments. The plan also assumes that those who ultimately redevelop these sites will ensure that the social housing is protected.

This explainer outlines some of the key human rights issues that the proposed demolition presents, particularly as they concern the rights of public housing residents.

Human rights related to housing: overview of international human rights law

Rights relating to housing are recognised in a number of international human rights treaties to which Australia is a state party and has thereby accepted an obligation to protect and implement into domestic law.

The International Covenant on Civil and Political Rights (ICCPR) provides that ‘No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence’ (Article 17) and the Convention on the Elimination of Racial Discrimination guarantees the right to housing without racial discrimination.

However, the right to housing is most often identified with Article 11(1) of the International Convent on Economic, Social and Cultural Rights (ICESCR), which recognises ‘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 right to adequate housing entails: the protection against forced evictions and the arbitrary destruction and demolition of one’s home; the right to be free from arbitrary interference with one’s home, privacy and family; and the right to choose one’s residence, to determine where to live and to freedom of movement. For housing to be adequate, there must be at a minimum ‘security of tenure’; ‘availability of services, materials, facilities and infrastructure’; ‘affordability’; ‘habitability’; ‘accessibility’; ‘location’; and ‘cultural adequacy’. Forced evictions as understood under the ICESCR are ‘the permanent or temporary removal against their will of individuals, families and/or communities from the homes … which they occupy, without the provision of, and access to, appropriate forms of legal or other protection.’

Forced evictions are carried out in a variety of circumstances, but more often than not to make way for infrastructure projects and housing redevelopment. But international human rights law requires governments to explore all feasible alternatives before carrying out any evictions. The State Government has an obligation to ensure that evictions do not result in individuals being rendered homeless.

Human rights relating to housing under Australian law

In Australia, the right to housing has not been incorporated into domestic law, despite Australia having ratified the major international human rights treaties. We do not have a Federal Human Rights Act or Charter which would help people understand and enforce their rights, including when it comes to housing, as outlined in Liberty Victoria’s submission to the Inquiry into Australia’s Human Rights Framework. Nor is it included in any state or territory human rights charter. In Victoria, the Charter of Human Rights and Responsibilities Act 2006 (Vic) does contain rights relating to the family, and also refers to the right to be free ‘against unlawful or arbitrary interference with privacy, family, home or correspondence’. These Charter rights may be subjected to ‘reasonable limits as can be demonstrably justified’, taking into account factors in section 7(2) –

  • the nature of the right; and
  • the importance of the purpose of the limitation; and
  • the nature and extent of the limitation; and
  • the relationship between the limitation and its purpose; and
  • any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve.

More significantly, the Victorian Charter requires public authorities, including the Director for Housing (DOH) ‘to act compatibly with human rights’ and ‘to give proper consideration to human rights in making decisions.’

In this instance, there is a real question as to whether the proposal to demolish the public housing towers is reasonable and justified. There are also live questions about whether there was due process. Was there reasonable notice of the proposal to affected residents? Have they been properly provided with relevant information? Have they been adequately consulted with regard to the proposed plans? Has the DOH discharged its duties in the Charter before making the decision to demolish?

The right to a home is especially important for individuals who are part of vulnerable groups in our society. Public housing tenants include a large proportion of elderly people, those who have a non-English speaking background, who have health issues and/or a disability, and who have a low income. Social housing providers – as regulated by the Charter – have duties that private landlords do not have. The State has a role to ensure, through appropriate policy, legislation and funding, adequate housing for all, whether residing in private or social housing. However, due to their often-acute vulnerability, social housing tenants are entitled to protection from arbitrary or unjustified eviction beyond the minimal protection provided to other tenants.

Although the civil and political rights recognised in the Charter potentially protect important aspects of people’s relationships with their homes, the Victorian Charter has been demonstrably ineffective in protecting those in public housing. The Victorian Charter (like its Queensland counterpart) does not currently ensure that public housing tenants are protected from arbitrary eviction. This is because – whilst the right to be free from arbitrary interference of one’s home is protected by the Charter – public housing tenants who wish to challenge the demolition of the public housing estates under Charter rights grounds may only be able to seek legal remedies for an act or decision that breaches the Charter where the act or decision in question is also unlawful on another legal basis, independent of the Charter.

Commencing legal proceedings for judicial review is expensive, time-consuming and often inaccessible for vulnerable cohorts. In March 2021, the Legislative Council’s Legal and Social Issues Committee, in its Inquiry into Homelessness in Victoria, recommended that an express right to housing be included in the Charter, and there have been calls from advocacy and legal groups to amend the Victorian Charter so that human rights arguments may be made in ‘any legal proceedings’ related to the Charter.

The plan by the Victorian Government to demolish public housing should be seen in the context of a nationwide housing affordability crisis, a reduction in welfare benefits in real terms, and 30 years of under investment in public and affordable housing as a result of government over-reliance on the private sector to provide housing. Indeed, other parts of the Housing Statement include the sale of additional public land to developers, and implementing significant changes to the way planning and development decisions are made.

Commonwealth Rental Assistance (CRA) – payments which public housing tenants are not eligible to receive – themselves are considered by economists and community groups to be inadequate to alleviate rental stress, and the Productivity Commission in 2022 itself called for the need to prioritise improving the rental assistance scheme so that it is fit for purpose and targets those most vulnerable and disadvantaged when it comes to accessing adequate housing.

The Victorian Government wants to increase the supply of social housing yet this belies the neoliberal-based agenda for advancing public housing. More specifically, it is important to understand what ‘social housing’ actually refers to. Social housing is an umbrella term that refers to both ‘public’ and ‘community’ housing. Public housing is owned and managed by the government (in the case of Victoria, it is administered by the DOH) and rents are capped at 25% of a tenant’s income, whereas community housing estates are owned and managed by not-for-profit consortiums and community housing associations (though they are still regulated by governments). While those in community housing are entitled for CRA, community housing associations – as registered charities – can charge higher rents with no net impact on the tenants’ disposable income hence rents can be up to 30% of a tenant’s income. For low-income households, housing stress often emerges when 30% or more of household income is spent on rent.

It is the proportion of this other social housing that is growing and – with this transfer of public housing to community housing providers – accountability mechanisms that put the administration of government assets or assets that should be held by public agencies to bodies that have no direct responsibility to the public.

In the absence of a clear proposal from the Government as to where the displaced public housing tenants will be accommodated during the demolition and rebuild, there is every possibility that privately rented properties will need to be used to accommodate relocated public housing tenants. In such circumstances – and in a context of a severe housing crisis for low-income households – it is difficult to conclude that public housing residents will have any real ‘choice’ as to where and how to make one’s home post-demolition.

Drawing on the existing evidence about displacement and public housing estate renewal, especially brought to light in the recent inquiry around the Public Housing Renewal Program, demolition will result in a loss of sense of home and community, increased stigmatisation of public housing, loss of access to longstanding social networks on which they relied on, loss of identity, loss of security and other social, health, and economic impacts on the part of residents, families and communities.

The legal and policy frameworks that concern public housing are failing to ensure the basic human rights for the public housing residents. Victoria’s housing agenda over the past decade needs to take a more contextual, human rights based approach to the issues faced by residents.

The emphasis on a lack of supply as the main driver of the housing crisis speaks to a narrow conception of what constitutes adequate housing and what it means to have a home in modern Australia.

Social housing is not merely property to be managed. Public housing providers are not just landlords. And public housing residents not just tenants.

Public housing providers are public authorities and human rights obligations must be central to the exercise of their functions and decision-making.