Otto, Dianne; Lynch, Philip --- "Housing, Homelessness and Human Rights" [2004] AUJlHRights 1; (2004) 10(1) Australian Journal of Human Rights 1

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Housing, homelessness and human rights

Dianne Otto^[*]and Philip Lynch⁺

Long gone are the days when a judge could get away with referring to homeless people as the ‘flotsam and jetsam’ (from Callahan v Carey)^[1] of society, we hope. Largely as a result of community based activism, supported more recently by international human rights developments, the public discourse about homelessness, in Australia and elsewhere, has gradually shifted from the common law view that criminal sanctions are required to punish homelessness, to a benevolent concern with addressing ‘human needs’ in the 1970s, to tentatively taking on the language of ‘human rights’ in the late 1990s. It is this movement towards recognising and responding to homelessness within a human rights framework that we hope to augment with this special issue of the Australian Journal of Human Rights. Our aim is to provide some thoughtful analysis about the possibilities that can accompany the engagement of a human rights framework in the struggle to ensure that adequate housing, and interrelated human rights, are enjoyed by everyone. We are acutely aware that while judges may now be more careful about the language they use to refer to homeless people, the reality is that homeless people continue to experience violations of their human rights to non-discrimination, social security, health, security of person, privacy and, of course, adequate housing, to name just a few. There is still a very long way to go before homeless people will be able to look to the law to positively promote and protect their fundamental human rights and dignity.

In particular, our goal is to explore how international human rights law can inform the domestic advocacy of the rights of homeless people and the implementation of measures — both legal and policy based — that would address homelessness in Australia. At the same time, while international standards and movements have often inspired domestic developments, it is important to recognise that the development of international norms relies heavily on the strength of what is happening at the local level. It is common knowledge that enduring socio-political transformation is, historically, community based and grassroots. We want to promote a deeper awareness of the interdependence between the local and the global in order to maximise the potential of both systems of law to interact in an emancipatory way. As Bruce Porter concludes in his contribution to this volume, we need to make advances on both domestic and international fronts if we are to make progress towards ensuring that homelessness is eradicated and that everyone enjoys the right to adequate housing.

While all the contributors to this volume are optimistic about the contribution that human rights law can make to addressing homelessness, they also all attest to the substantial resistances that have emerged. Perhaps Justice Ronald Sackville, of the Federal Court of Australia, expresses the most hopeful view. His article originated as a speech to the Quarterly Homelessness Symposium organised by the Victorian Council to Homeless Persons in March 2004. He reflects on developments since the 1976 Commission of Inquiry into Poverty in Australia, reminding us that laws prohibiting vagrancy and public drunkenness effectively criminalised homelessness until well into the 1970s. While acknowledging that some of these laws remain today, reflecting how ‘little has changed’ in some respects, he also suggests that ‘much has changed’ for the better as a result of the growing number of international mechanisms that hold states accountable for their international human rights obligations, together with the emerging domestic jurisprudence that recognises housing related rights. In Justice Sackville’s view, the debate about homelessness and poverty has been ‘transformed’ into one about human rights.

Indeed, the shift to the language of human rights by housing advocacy and support groups and networks in the Australian context has occurred with remarkable speed over the last decade. This movement has coincided with the incumbency of a conservative national government that has responded dismissively to mounting criticism from international human rights treaty committees and, undeterred, pursued a policy of eroding and dismantling many of the economic and social supports that were previously available to the most disadvantaged sections of the Australian population. The government has legitimated this retrogression by promulgating punitive discourses about the ‘undeserving’ poor, ‘deceitful’ asylum seekers, ‘lazy’ Aborigines, ‘welfare dependent’ single mothers and so on, which sounds like a return to the earlier punitive response to disadvantage that justified criminal sanctions. Although the government’s approach has fallen short of recriminalisation, it has nevertheless further undermined the human dignity of already marginalised groups in the community by legitimating negative stereotypes, and perpetrating myths of individual dysfunction, that are completely at odds with a human rights respecting culture. It is hardly surprising that, in this time of mean self-interest promoted at the highest levels of government, a human rights framework has been widely embraced by community groups because it offers an alternative discourse of a more hopeful, caring and humane society wherein everyone is valued.

The recent turn to human rights within many sections of the Australian community is so noteworthy that we cannot resist mentioning a few housing related examples in order to convey the sense of the hopefulness that it represents. In Brisbane, the 3rd National Homelessness Conference, held in 2003, had a strong human rights component for the first time. In Melbourne, several non-governmental organisations established the Housing is a Human Right Project, which developed a Housing Rights Charter for Victoria in 2004 and will host a Victorian Housing Rights Tribunal in 2005. In Melbourne (2001), Brisbane (2002), Sydney (2004), Adelaide (2005) and Perth (2005), specialist legal clinics for homeless people have been, or are being, established, providing pro bono legal assistance and operating in a human rights framework. In Darwin, Sydney and Melbourne, homeless people themselves have formed associations, which further the human rights and dignity of homeless people by promoting and enabling the participation of homeless people in program and service development, delivery and management. In Victoria, the crucial role that ‘consumer’ participation can play in promoting both consumer empowerment and effective and appropriately targeted programmatic responses to homelessness, has been recognised and harnessed through the appointment of homeless people to a number of governmental and non-governmental management, reference and advisory groups. Across Australia, alliances of community and human rights organisations have evaluated the Supported Accommodation Assistance Program in a human rights framework and, most recently, have conducted consultations and submitted a report to the UN Special Rapporteur on Adequate Housing in relation to women’s access to adequate housing in Australia.

At the same time as the snowballing of advocacy using the language of human rights, many of our contributors would agree with Justice Sackville’s observation that ‘little has changed’ — and some would argue that things have gotten considerably worse. Australian Bureau of Statistics Census data indicates that, between 1996 and 2001, there was no real decrease in the incidence of homelessness across Australia, despite significant economic prosperity and growth during the same period (Chamberlain and MacKenzie 2003). On any given night it is estimated that there are almost 100,000 people experiencing homelessness across the country, a situation referred to recently by the Senate Community Affairs Committee as a ‘national disgrace’ (Senate Community Affairs Reference Committee 2004: 125). Rowan McRae and Dan Nicholson point to research that suggests that there has been an increase in the number of homeless people in Australia over the past 40 years. Porter describes the current level of homeless and poverty in Canada as a ‘crisis of human rights’, locating it in the larger global crisis of the growing gap between the rich and the poor.

Needless to say, adopting the language of human rights to assert a claim to adequate housing is only the first, and perhaps the easiest, step. What must follow is the translation of this claim into laws and policies that will enable the enforcement of the right to adequate housing through legal and political mechanisms that hold governments accountable. As Philip Lynch observes in his article in this journal, the power of a human rights approach is that it frames solutions to homelessness in the context of ‘state responsibilities’. That is, human rights law imposes responsibilities on states to respect, protect and fulfil their international human rights obligations; to refrain from violating human rights; to adopt laws and regulatory practices to ensure that private actors do no violate human rights; and to take any further positive steps that are required for the full enjoyment of human rights. The full realisation of human rights is dependent not only on the adoption of laws and policies, but also on the establishment of accountability mechanisms that ensure those laws and policies are implemented and that effective remedies are available to those whose rights have been violated (Otto and Wiseman 2001).

In some countries, like South Africa, India and Canada, enforcement has involved claiming housing related rights through constitutional litigation. Several of our authors make reference to these encouraging developments. Even in the absence of explicit inclusion of housing related rights in a constitution, the right to adequate housing has been found, on occasion, to be an incident of the right to life (see Francis Coralie Mullin v The Administrator, Union Territory of Delhi; see also United Nations Human Rights Committee 2001) and the right to security of the person (see Gosselin v Quebec (AG)). But constitutional litigation is not an option in Australia because Australian constitutions do not include bills of rights and only protect individual rights in an extremely limited and piecemeal way. An alternative approach to constitutional entrenchment is to legislatively adopt a bill of rights, as in New Zealand and the United Kingdom. This method of implementation makes it easier for legislatures to update and extend human rights protections, but it is also a more precarious form of implementation because it is easy for the legislature to withdraw rights protections by amendment or repeal. With the exception of the Legislative Assembly of the Australian Capital Territory, which adopted a legislative bill of rights in 2004 (see Human Rights Act 2004 (ACT)), Australian governments have so far chosen not to pursue this option.

There is, of course, important human rights protecting legislation in Australia in the form of anti-discrimination laws at both the national and state levels. But these laws fall a long way short of fully implementing Australia’s international human rights obligations, and do not even cover all the prohibited grounds of discrimination that are identified in the human rights treaties to which Australia is a party. For example, discrimination on the grounds of ‘social status’ — including a person’s status as homeless, unemployed or a recipient of social security or welfare benefits — remains widespread but lawful at a national level and in every state and territory across Australia. According to Bernie Geary, Executive Director of Jesuit Social Services, ‘discrimination against the homeless, especially in the areas of housing and health, is widespread and can result in significant psychological deterioration and material deprivation’ (Lynch and Stagoll 2002: 301). Geary says that consistent discrimination against homeless people often results in a ‘deepening of identification with the marginalised condition so as to make negotiation through their issues more difficult’. A recent study published in the Medical Journal of Australia found that not only does discrimination have detrimental effects on people’s health and quality of life, it also has significant social and economic costs (Waller 2004: 293). Urgent reform of equal opportunity and anti-discrimination legislation across Australia is required to prohibit discrimination on the ground of social status and to promote participation and social inclusion for homeless people.

The lack of comprehensive domestic implementing legislation, and the corresponding lack of direct applicability of many of Australia’s international human rights obligations in domestic law, does not alter the fact that Australia may be in violation of its obligations under international law. In their contribution to this volume, McRae and Nicholson examine whether the Australian Government’s responses to homelessness can be said to constitute a violation of its obligations under the International Covenant on Economic, Social and Cultural Rights to progressively implement the right to adequate housing. After outlining a framework for determining the normative content and assessing the progressive implementation of the right to adequate housing, they apply it in the Australian context. Their analysis suggests that Australia may be in violation of at least four of its international obligations: to develop and implement a national plan to tackle the structural causes of homelessness; to implement the right to adequate housing progressively, especially for vulnerable groups, without retrogression; to provide effective remedies for those who are homeless or at risk of homelessness; and finally, to take steps to the maximum of its available resources to progressively eliminate homelessness.

While McRae and Nicholson leave little doubt that Australia is in violation of its international legal obligations, the immediate challenge in the domestic context is to translate the new enthusiasm for human rights advocacy into domestic legal and political claims. In the legal domain, the absence of a bill of rights does not exhaust all possibilities. International human rights law can be used in less visible ways to influence the development of Australian law and policy by, for example, informing the development of the common law, aiding legislative interpretation, developing and implying constitutional guarantees, and as a relevant consideration in reviewing administrative and executive decision making (Lynch and Cole 2003). Further, as Lynch discusses in his contribution to this collection, human rights law provides a framework for lawyering and social service provision practices with people experiencing homelessness, which can also directly influence a client’s self-esteem, wellbeing, development and enjoyment of human rights. Human rights based service delivery includes treating clients with dignity and respect and working collaboratively with them towards solving problems in a holistic way. Importantly, it also involves looking beyond addressing a person’s immediate legal issues to collaboratively tackle structural and systemic causes of homelessness and human rights violations. This might include engaging with homeless people in law reform projects; in advocating for changes to government housing, income, employment and health policies; and in making transnational links with other housing rights and antipoverty movements.

As Maria Foscarinis, Director of the National Law Center on Homelessness and Poverty in Washington DC, recognises in her article, human rights based advocacy to address homelessness must focus particularly on economic and political causes of homelessness. She argues that homelessness in the US, as in Australia, is primarily caused by structural factors such as lack of affordable housing, unemployment and the inadequacy of minimum wages or social security payments. While factors such as mental illness, drug and alcohol dependency, domestic violence and problem gambling — together with the lack of services to address these issues — may all contribute to homelessness, the single most important predictor of homelessness is poverty (Hafetz 2003: 1222-3). In this context, Foscarinis argues that effective efforts to end homelessness must include advocacy regarding implementation of the right to adequate housing and to an adequate income, which will require galvanised efforts to secure significant additional resources.

Addressing the incomplete implementation of Australia’s international human rights obligations, whether through constitutional reform, legislative enactment or policy initiatives, is more a political than a legal issue at this point in time. But translating human rights discourse into political claims in the Australian context, given the imperviousness of the conservative Federal Government to criticism in these terms, is a particular challenge. Tamara Walsh and Carla Klease, in their contribution to this volume, suggest a creative response to this problem. They propose that citizenship theory provides an alternative framework for advancing a human rights agenda; one that is more palatable to conservative governments. Drawing on the citizenship theory of T H Marshall, and linking this with the findings of a survey of homeless people in Brisbane, they argue that the manifold forms of social exclusion experienced by homeless people may be a more persuasive basis from which to argue for political change. They also highlight two ways that citizenship theory can complement a human rights approach: by focusing more on social connectedness and community membership than a human rights framework, which focuses on the individual; and by emphasising that it is only through the enjoyment of social citizenship rights, including the right to adequate housing and to an adequate income, that marginalised people can enjoy civil and political rights, which reverses the human rights hierarchy that has, in practice, prioritised civil and political rights. They stress, however, that human rights underpin theories of citizenship and, therefore, while the promotion of social inclusion provides an alternative language for human rights advocacy, it does not replace the foundation of universal human rights.

Federalism poses another particular problem for human rights advocates in the Australian context. Under international law, it is the federal government that is bound to implement Australia’s international human rights obligations; yet much of the constitutional power to realise human rights lies with state and territory governments. Under international law, the federal government cannot use federal arrangements as an excuse for failing to implement its international legal obligations. So, there is a clear legal requirement that the federal government must ensure that the states and territories act so as to fully implement its human rights obligations. Yet the federal government has always been reluctant to do this, despite having the constitutional power to do so (see Commonwealth v Tasmania). This poses a thorny problem for human rights advocates because state and territory governments are able to claim that it is not their responsibility to ensure that human rights are realised.

In our view, however, it is clear that Australia’s ‘collaborative’ or ‘cooperative’ federal arrangements, whereby the federal, state and territory governments are entangled in complicated ‘webs’ of financial and bureaucratic relations, have resulted in a situation where state and territory governments have agreed to take on many of the obligations that are imposed by human rights treaties, especially in the area of economic and social rights. That is, state and territory governments have entered partnership or agency arrangements that make them accountable for implementing those of Australia’s international human rights obligations that fall within the scope of these agreements. State and territory governments have directly assumed many international obligations through these domestic agreements; obligations for which they can and should be held accountable under domestic legal and administrative processes.

In the specific context of the right to adequate housing, the sharing of international responsibilities is made abundantly clear by the legislation that creates the framework for the Commonwealth–State Housing Agreement (CSHA) and the Supported Accommodation Assistance Program (SAAP) Agreement. The Housing Assistance Act 1996 (Cth) and the Supported Accommodation Assistance Act 1994 (Cth) specifically recognise, in their Preambles, that the goals of these programs are to be understood in light of international human rights standards, including the International Covenant on Economic, Social and Cultural Rights (1966), the International Covenant on Civil and Political Rights (1966), the Convention on the Elimination of All Forms of Racial Discrimination (1965), the Convention on the Elimination of All Forms of Discrimination Against Women (1979), the Convention on the Rights of the Child (1989), the Universal Declaration of Human Rights (1948) and the Declaration on the Elimination of Violence Against Women (1993). In entering these agreements, the state and territory governments are assuming some responsibility for the implementation of Australia’s international obligations to fully realise the right to adequate housing.

While at the domestic level of human rights advocacy, there are important differences in states’ legal and political cultures which require strategies that are specifically tailored to the national context, there is nevertheless a great deal that can be learned from experiences elsewhere. To this end, we have included two articles which discuss the development of housing rights advocacy in the United States and Canada. Maria Foscarinis’s contribution examines trends in advocacy to eradicate homelessness in the US over the last two decades. Foscarinis is optimistic that the most recent ‘trend’, that of engaging homelessness and housing in a human rights framework, provides an effective platform from which to advocate for long term solutions to homelessness and for significant increases in housing resources. Her optimism rests on the importance that a human rights approach places on states’ obligations — to take steps, to the maximum of their available resources, to progressively realise human rights and to remedy violations. Importantly, a human rights framework also provides a means by which to measure — and, to some extent, enforce — the satisfaction of those obligations.

The issue of enforcement is taken up by Bruce Porter, Director of the Social Rights Advocacy Centre in Canada, in his contribution. Porter discusses the need to firmly recognise and entrench adequate housing as a human right rather than as a mere aspiration or ‘government defined policy objective’. Canada, like Australia, has not supported the development of an individual complaints mechanism through which alleged violations of the right to housing could be considered under the International Covenant on Economic, Social and Cultural Rights. At a domestic level, Canadian courts, like Australian courts, have been reluctant to involve themselves in the adjudication of disputes pertaining to social or economic policy, rendering the enforcement of economic, social and cultural rights piecemeal and problematic. Recognition of the right to adequate housing as a ‘right’ that is concrete, realisable and enforceable will require concerted and coordinated local, national and international action to develop objective measures and standards pursuant to which implementation and progressive realisation can be measured. It will also require that courts and other complaints and dispute resolution bodies overcome their reluctance about economic and social rights adjudication and, as occurred in the Grootboom case in South Africa, provide effective remedies for housing rights violations.

Finally, Alison Aggarwal’s article brings us full circle, back to the importance of the local in the development of international human rights law. She discusses the recent work of Miloon Kothari, the Special Rapporteur on Adequate Housing, towards developing the normative content of women’s rights to adequate housing. Her contribution reminds us that masculinist and racist traditions have shaped human rights norms, resulting in the exclusion of the experience of women, particularly disadvantaged women, from their conceptualisation and application. In order to examine the gender dimensions of the right to adequate housing, the Special Rapporteur has drawn directly on the experiences of grass roots women through regional consultations at which a diversity of women have presented testimonies. To date he has made two important findings. First, the testimonies have revealed that gendered violence plays a central role in women’s experience of homelessness and inadequate housing. Second, he has found that gender based discrimination is often compounded by discrimination on other grounds, such as race, poverty and marital status. His conclusion is that measures that address violence against women and eliminate intersectional discrimination are both crucial normative elements of women’s housing and related rights. Aggarwal’s contribution also prompts us to remember that the human rights treaty committees are not the only international mechanisms available to pursue the realisation of human rights, and that human rights advocates need to be cognisant of the different contributions that each mechanism can make.

While homeless people are not yet able to confidently look to the law to positively protect and promote their fundamental human rights and dignity, there are now significant legal and political developments that reach towards this goal, in some domestic jurisdictions as well as internationally. We hope that the experience and vision of the contributors to this special issue will help to further this goal. We would like to thank each of them for submitting their pieces to us and for their obliging responses to our editorial suggestions. We would also like to thank the anonymous referees who took time out of their busy schedules to read and comment on the articles that were submitted to us. Finally, we want to express our gratitude and appreciation for the extensive and expert editorial assistance provided by Beth Midgley and Emily Chew from the Public Interest Law Clearing House (Vic). l

References

Cases

Callahan v Carey, Case No 79-42582 (NY Sup Ct, 1979)

Francis Coralie Mullin v The Administrator, Union Territory of Delhi (1981) 68 All India Reporter SC 746, ^[7]

Gosselin v Quebec (AG) (2002) 221 DLR (4th) 257, ^[377] (Arbour J dissenting), ^[141] (L’Heureux-Dubé J dissenting)

Commonwealth v Tasmania (1983) 158 CLR 1 (Tasmanian Dams case)

Government of the Republic of South Africa and Others v Grootboom and Others (1) SA 46 (CC) (2000); Grootboom & Ors v Government of the Republic of South Africa & Ors, Case No CCT38/00, 21 Sept 2000

International legal materials

United Nations Human Rights Committee (2001) CCPR General Comment 6: The Right to Life ^[1], UN Doc HRI/GEN/1/Rev 5 ^[5]

Books and articles

Chamberlain C and McKenzie D (2003), Counting the Homeless 2001

Hafetz J L (2003) ‘Homeless legal advocacy: new challenges and directions for the future’ 30 Fordham Urban Law Journal pp 1215–65

Lynch P and Cole J (2003) ‘Homelessness and human rights: regarding and responding to homelessness as a human rights violation’ 4 Melbourne Journal of International Law pp 139–76

Lynch P and Stagoll B (2002) ‘Promoting equality: homelessness and discrimination’ 7 Deakin Law Review pp 295–321

Otto D and Wiseman D (2001) ‘In search of “effective remedies”: a framework for assessing Australia’s progress towards implementation of its obligations under the international covenant on economic, social and cultural rights’ 7 Australian Journal of Human Rights pp 5–46

Senate Community Affairs Reference Committee (2004) A Hand Up Not a Hand Out: Renewing the Fight Against Poverty

Waller L (2004) ‘Living with hepatitis C: from self-loathing to advocacy’ 180 Medical Journal of Australia pp 293–4

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* BA (Adel); LLB (Hons), LLM (Melb); LLM (Columbia); Associate Professor, Faculty of Law, the University of Melbourne.

+ LLB (Hons) (Melb); Coordinator, PILCH Homeless Persons’ Legal Clinic.

[1] Referred to by Maria Foscarinis below.