McRae, Rowan; Nicholson, Dan --- "No Place Like Home: Homelessness in Australia and the Right to Adequate Housing" [2004] AUJlHRights 3; (2004) 10(1) Australian Journal of Human Rights 3

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No place like home: homelessness in Australia and the right to adequate housing

Rowan McRae^[*]and Dan Nicholson^{+ o}

Australia has long been known as the ‘lucky country’.^[1] In recent years, most Australians have enjoyed the benefits of repeated budget surpluses, a generally high standard of living and a consistent and reliable application of the rule of law.

But on any given night, around 100,000 people in Australia are homeless (Chamberlain and MacKenzie 2003).^[2] This is despite Australia’s international commitment, made almost 30 years ago, to ensure that its population is adequately housed. Rhetorical gestures are made towards the need for a ‘social safety net’ to support homeless Australians, but there remains a distinct reluctance to frame the discussion of homelessness in the language of rights. Governments repeatedly point to the vagueness of economic, social and cultural rights, and hint at the inevitability of homelessness.

In this article, we examine whether the response of state and federal governments to the question of homelessness can be said to represent a violation of Australia’s obligations in respect of the right to adequate housing under the International Covenant on Economic, Social and Cultural Rights. Following a brief discussion of the historical development of economic, social and cultural rights, we analyse the normative content of these rights, particularly as they relate to developed, industrialised states such as Australia. Next, we consider Australia’s specific obligations in relation to the right to adequate housing and how this right relates, in broad terms, to homelessness. Finally, we evaluate the extent to which Australia is fulfilling these specific obligations.

Economic, social and cultural rights in international law

Recognition of economic, social and cultural rights

On 10 December 1948, the UN General Assembly proclaimed the Universal Declaration of Human Rights (UDHR), recognising ‘the inherent dignity and ... the equal and inalienable rights of all members of the human family’ (UDHR, Preamble). The Declaration is probably the most important enunciation of human rights, and has since been the source of constitutions, bills of rights and legal decisions all over the world. However important and groundbreaking, the Declaration was conceived as ‘a common standard of achievement for all peoples and all nations’ (UDHR, Preamble), and was not in and of itself intended to create binding obligations on states in relation to the rights enunciated in the Declaration.

After the proclamation of the Declaration, the Commission on Human Rights was instructed to develop legally binding human rights treaties that would form the basis for legal obligations under international law. After extensive political lobbying and debate, this was achieved through the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The obligations imposed by these Covenants exist at the level of public international law, creating rights and obligations between states parties that have ratified the Covenants. Additionally, however, they create third party beneficiaries, namely the persons whose human rights are to be respected, protected and fulfilled under the terms of the treaty.

The Committee on Economic, Social and Cultural Rights (CESCR) was established in 1987 to supervise the compliance of states parties with their obligations under the ICESCR. The CESCR monitors the implementation of the ICESCR by reviewing periodic reports submitted by states parties under arts 16 and 17 of the ICESCR. The CESCR concludes its review by issuing ‘Concluding Observations’, which constitute the decision of the CESCR regarding the implementation of the ICESCR by a given state party. Since 1988, the CESCR has also prepared ‘General Comments’ on the rights contained in the ICESCR, as a means of providing states parties with greater clarity as to the intent, meaning and content of the ICESCR. Unlike the Human Rights Committee established under the Optional Protocol to the ICCPR, however, the CESCR is not empowered to receive and adjudicate on complaints from individuals about a state party’s violation of its obligations under the treaty.

A range of other international treaties have also recognised economic, social and cultural rights, including the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child, and the Convention on the Elimination of All Forms of Racial Discrimination. The Vienna Declaration and Program of Action adopted by the World Conference on Human Rights in 1993 affirmed the importance of economic, social and cultural rights and recommended that the Human Rights Commission, together with the CESCR, examine the potential for an optional protocol to the ICESCR.

Economic, social and cultural rights: problems of perception and resolve

[P]erhaps no other human rights treaty is violated in as obdurate or frequent a way as the International Covenant on Economic, Social and Cultural Rights ... Problems of perception and resolve rather than any inevitable limitation of law or jurisprudence, have kept economic, social and cultural rights wallowing in the relative purgatory of global efforts to secure human rights (Leckie 1998: 82).

Historically, economic, social and cultural rights have been very much the poor relation of the human rights family. Normative development of these rights and the concurrent obligations they impose on governments has tended to be slower, both at international and at domestic levels, than that of civil and political rights. Many nations that have ratified the ICESCR, and have advanced economies and systems of rule of law, continue to accept a low level of realisation of many Covenant rights.

The delayed normative development of economic, social and cultural rights can be attributed to two significant factors. First, the lack of an individual complaints mechanism attached to the ICESCR has placed significant constraints on the ability of the CESCR to hold states to account for violations of economic, social and cultural rights. The value of a mechanism by which individuals can seek redress for violations of human rights has been demonstrated by the operation of the Optional Protocol to the ICCPR. Under the Optional Protocol, the Human Rights Committee is able to consider specific complaints from individuals or groups about alleged violations under the ICCPR and the Human Rights Committee publishes its decision about whether or not a violation of international law has occurred. These decisions of the Human Rights Committee are developing a body of jurisprudence about the nature and extent of the obligations under that treaty in a wide range of circumstances. Without such a mechanism, the CESCR’s capacity to monitor the implementation of the ICESCR is limited to the analysis and evaluation of states parties’ periodic reports, submitted under arts 16 and 17 of the ICESCR.^[3]

The second factor contributing to the slower development of the normative content of economic, social and cultural rights is the problems associated with interpretation of the duty under the ICESCR for a state party to ‘take steps ... to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant’ (art 2(1)). In contrast to the equivalent provision in the ICCPR, which requires that governments take steps immediately to give effect to the rights of that Covenant (art 2(2)), ICESCR rights may be progressively realised. The notion of progressive realisation has been criticised as being ‘inexact and render[ing] those rights difficult to monitor’ (Chapman 1996: 23). Undoubtedly, it has been ‘embraced as an escape hatch by recalcitrant States’ (Leckie 1998: 94). The notion of ‘maximum of available resources’ as a tool to measure state compliance is equally problematic. Robertson aptly describes the phrase as

two warring adjectives describing an undefined noun. ‘Maximum’ stands for idealism; ‘available’ stands for reality. ‘Maximum’ is the sword of human rights rhetoric; ‘available’ is the wiggle room for the state (Robertson 1994: 694).

Overcoming normative deficiencies

In recent years, however, there have been considerable advances in international law to address the normative deficiency of economic, social and cultural rights. This has occurred through persistent reaffirmation of the equal status of economic, social and cultural rights to civil and political rights; expansion of the work of the CESCR; the work of academics and non-governmental organisations (NGOs); and constitutional incorporation and domestic jurisprudence.

The reaffirmation by nation states in the 1993 Vienna Declaration and Program of Action of the ‘universal, indivisible and interdependent and inter-related’ nature of all human rights marked an important step in the promotion of economic, social and cultural rights (para 5). The Vienna Declaration called for the international community to

treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis. ... [I]t is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms (para 5).

This confirmation of economic, social and cultural rights as equal in status to civil and political rights explicitly rejected the proposition of a ‘hierarchy’ of rights, and reasserted the original conception, as expressed in the UDHR, of the universal application of all human rights.

Since the establishment of the CESCR in 1987, its work has expanded significantly beyond direct dialogue with states parties through the formal reporting process provided for in the ICESCR. In 1993, the CESCR adopted a procedure allowing for the participation of NGOs in its activities. In accordance with this procedure, NGOs may submit shadow or alternative reports to the periodic reports submitted by states parties, and time is set aside during sessions of the CESCR for NGOs to provide additional oral information. The CESCR has also engaged in elaboration of the rights contained in the ICESCR through the production of General Comments since 1989. To date, 15 General Comments have been published. These General Comments, in addition to the Concluding Observations offered by the CESCR on states parties’ reports, have helped to articulate more thoroughly both the content of the rights recognised in the ICESCR, and the particular obligations of states parties.

The work of academics and NGOs has also made a significant contribution to the normative development of economic, social and cultural rights. In 1986, a group of experts in international law agreed upon the Limburg Principles on the Implementation of the International Covenant on Economic, Social and Cultural Rights. These principles analyse the particular content of economic, social and cultural rights and identify potential violations of the ICESCR. Ten years later, these principles were further elaborated by the Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, which establish a comprehensive methodological approach to economic, social and cultural rights based on the obligation of states parties to the ICESCR to respect, protect and fulfil such rights.

Finally, recent years have seen greater constitutional recognition of economic, social and cultural rights. For example, most constitutions adopted in Africa since 1990 incorporate economic, social and cultural rights, as well as civil and political rights. In turn, this has led to an expansion of domestic jurisprudence on the topic.

To take just one example, the post-apartheid South African Constitution incorporates a comprehensive bill of rights, providing extensive and explicit protection of rights to housing, health care, food, water, education and social security. The jurisprudence of the South African Constitutional Court has also contributed to developing certainty about the content of these rights. In its decision in the Grootboom case (Grootboom & Ors v Government of the Republic of South Africa & Ors) regarding the provision of emergency shelter and the right to adequate housing, the Constitutional Court found that socio-economic rights were justiciable under the Constitution. It also found that the South African Government was obliged to develop programs aimed at providing emergency housing relief to those in desperate need. The obligation identified in Grootboom to take steps to assist those in ‘desperate need’ has been upheld by the Supreme Court of Appeal of South Africa. In a recent decision, the Court confirmed that the government is under an obligation to develop a plan for the ‘immediate amelioration of the circumstances of those in crisis’ (President of the Republic of South Africa & Ors v Modderklip Boerdery (Pty) Ltd). Jurisprudential comment of this kind has helped to clarify the particular obligations on states in relation to economic, social and cultural rights, and to confirm the justiciability of such rights.

Determining the normative content of economic, social and cultural rights

Conceptualising the normative content of economic, social and cultural rights has proved a complex and contentious project which is by no means complete. However, the increased focus on economic, social and cultural rights identified in the section above has clarified a number of aspects relating to the normative content of these rights. Four important aspects should be highlighted before moving on to examine in greater depth the core and supplemental content of rights and obligations: economic, social and cultural rights entail obligations of immediate as well as progressive effect; they demand obligations of result as well as of conduct; they can be violated by acts of commission as well as by acts of omission; and they involve the duty to respect, protect and fulfil these human rights.

Obligations of immediate as well as of progressive effect

The ICESCR focuses on ‘progressive realisation’ and acknowledges the difficulties of resource constraints. However, its implementation also imposes obligations of immediate effect. Firstly, while art 2(1) of the ICESCR emphasises ‘progressive realisation’, art 2(2) affirms that states parties

undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

This undertaking to guarantee that rights are enjoyed without discrimination constitutes an obligation of immediate effect, comparable to the language of the ICCPR under which a state party ‘undertakes to respect and ensure’ the rights contained in that instrument (art 2(1)).

Secondly, the undertaking by states parties to ‘take steps’ constitutes an additional obligation of immediate effect (General Comment 3: para 1–2). If a state fails to take steps, a violation will have occurred (Leckie 1998: 93). Clearly, economic, social and cultural rights entail both progressive and immediate obligations.

Obligations of result as well as of conduct

In 1977, the International Law Commission (ILC) made an important distinction between two types of obligations imposed by international human rights treaties. Obligations of conduct require states parties to take action reasonably calculated to realise the enjoyment of a right. Obligations of result require states parties to ensure that the steps taken and the measures adopted actually do produce the desired results, enabling the state to achieve specific targets. For example, a state might be required to halve homelessness within a two year period. Although the ILC initially maintained that the ICESCR imposed only obligations of result upon state parties (Dankwa et al 1998: 715), the CESCR has subsequently confirmed the applicability of obligations of both conduct and result in relation to economic social and cultural rights (General Comment 3: para 1).

Violations by acts of commission as well as by acts of omission

Traditionally, the idea that economic, social and cultural rights imposed only positive obligations on the state meant that undue focus was placed upon violations by acts of omission. But as the Maastricht Guidelines demonstrate, all human rights bring with them both negative and positive duties. Economic, social and cultural rights can be violated by acts of both omission and commission. Violations through acts of commission include the removal of legislation necessary to enjoy rights, the active denial of rights, the adoption of legislation incompatible with rights, the adoption of retrogressive measures, and the reduction or diversion of specific public expenditure (para 14). Violations through acts of omission include failure to take appropriate steps, failure to repeal manifestly inconsistent legislation, failure to utilise the maximum available resources towards full realisation, and failure to monitor the realisation of economic, social and cultural rights (para 15).

Obligations to respect, protect and fulfil economic, social and cultural rights

Like all human rights, the ICESCR imposes obligations to respect, protect and fulfil economic, social and cultural rights on states parties such as Australia. This typology of obligations, initially proposed by Henry Shue in 1981 and developed by the Maastricht Guidelines in 1997, has recently been incorporated in General Comments by the CESCR (General Comment 15: para 20–29). According to the Maastricht Guidelines, a failure to perform any of these obligations represents a violation of human rights (para 6).

Identifying violations

While there has been significant progress made in developing greater clarity about the nature and extent of obligations created under the ICESCR, there continues to be debate about how to make states parties accountable against specific obligations in the treaty that involve concepts such as ‘maximum available resources’ and ‘progressive realisation’. In 1996, Audrey Chapman developed an approach to economic, social and cultural rights which focuses on identifying violations rather than on developing indicators for progressive realisation by reference to ‘maximum available resources’. Chapman’s ‘violations approach’ was designed to address existing deficiencies in effective monitoring of economic, social and cultural rights. Her concern was that in order to monitor progressive realisation in line with the CESCR’s guidelines for reporting, states would require an ‘enormous amount of good-quality data ... disaggregated into relevant categories’ (Chapman 1996: 33). While disaggregated data would certainly be useful to determining progressive realisation, Chapman was concerned that data requirements under the ICESCR were unrealistic:

Few states parties have either the requisite data or the willingness to share such detailed data with a UN supervisory body ... The preparation of a report that followed the guidelines fully and that was sensitive to the need for consistent disaggegation of data and presentation in time series would be a major undertaking, involving an enormous investment of time and resources (Chapman 1996: 34).

Rather than attempting to develop indicators for progressive realisation, Chapman advocated an approach based on a tripartite scheme of violations, comprising violations resulting from positive actions of governments, such as forced evictions; violations relating to patterns of discrimination, such as discrimination in private rental against single mothers; and violations resulting from failure to fulfil minimum core obligations, such as failure to develop an adequate housing policy. Chapman saw the identification of violations not only as a means of ending and rectifying abuses, but also a ‘more effective path to conceptualising the positive content of economic, social and cultural rights than the more abstract legal or philosophical analyses attempted thus far’ (Chapman 1996: 37).

Chapman’s tripartite scheme has proved a useful tool in the effective monitoring of economic, social and cultural rights, particularly for NGOs in developing states which have little or no access to accurate data sources. Chapman’s ‘violations approach’ reflects the fact that to date, much of the academic commentary on the content of economic, social and cultural rights has focused on identifying core minimum obligations (see Weiner 1991). This discussion has primarily been directed towards articulating the obligations of developing states where large numbers of individuals continue to be deprived of the most basic enjoyment of rights to foodstuffs, shelter, primary health care and education.

Identifying a core minimum content

The concept of a core minimum content to economic, social and cultural rights (and thus core minimum obligations) has been developed and endorsed by the CESCR. The CESCR is of the view that

a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party. ... In order for a State party to be able to attribute its failure to meet at least its minimum core obligations to a lack of available resources it must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations (General Comment 3: para 10).

The minimum core obligation on states parties is to secure essential levels of economic, social and cultural rights. General Comment 3 usefully provides examples of prima facie violations based on failure to fulfil minimum core obligations:

[A] State party in which any significant number of individuals is deprived of essential foodstuffs, of essential primary health care, of basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant (General Comment 3: para 10).

Danilo Turk, Special Rapporteur on the Realisation of Economic, Social and Cultural Rights, has endorsed this approach, saying that ‘states with specific legal obligations to fulfil economic, social and cultural rights are obliged, regardless of the level of economic development, to ensure respect for minimum subsistence rights for all’ (Turk 1991, para 52(d)). The Limburg Principles (para 25) and the Maastricht Guidelines (para 9) have similarly promoted the concept of a basic level of obligation applicable to all states parties.

Identifying a core minimum content to economic, social and cultural rights can help to ensure that developing states do not completely abrogate their obligations based on lack of resources. However, it provides a less useful reference point for holding developed, industrialised states to account for their human rights violations. Shifting the focus away from progressive realisation and towards minimum core obligations can mean that the responsibilities of more affluent countries to allocate resources in accordance with substantive rights are likely to go unnoticed (Porter 2003: 126). As Bruce Porter notes, focusing on the ‘most minimal requirements’ can effectively provide an ‘out’ for governments in affluent states such as Canada or Australia (Porter 2003: 126). According to Porter, governments in developed states prefer a narrow violations approach because it

tends to more readily identify violations in poorer countries where the ‘minimum content’ of the right is less likely to be satisfied and where legal processes to address state sponsored violations such as forced evictions may not be so well established and readily available (Porter 2003: 126).

Beyond the core: same principle, different outcomes

The identification of minimum core content, as well as minimum core obligations, is only the first step towards securing economic, social and cultural rights. Definitions of ‘core’ and ‘supplemental’ contents and obligations are ‘being expanded continually’ (Leckie 1998: 102). Expanding the concept of ‘supplemental’ content is of particular importance when we consider the obligations of developed states with access to significant resources, such as Australia. If we are to properly engage with Australia’s obligation to ‘fulfil’ economic, social and cultural rights, it is essential that we are able to articulate obligations beyond core minimum requirements.

The limitations of a narrow approach to violations have, to some extent, been overcome through recent comments of the CESCR in relation to allocation of resources, demonstrating a new appreciation of the obligations placed on developed states. While the CESCR has been reluctant to set solid benchmarks for monitoring the level of expenditure on ‘moving expeditiously and effectively’ towards the goal of full realisation (General Comment 3: para 9), recent General Comments have noted that ‘insufficient expenditure or misallocation of public resources which results in the non-enjoyment of the right’ will be considered a violation of obligations under the ICESCR (General Comment 15: para 44; General Comment 14: para 52). The CESCR has also indicated that ‘[a] State which is unwilling to use the maximum of its available resources for the realisation of the right ... is in violation of its obligations’ (General Comment 15: para 41). In its Concluding Observations, the CESCR has been critical of affluent states parties allocating insufficient public expenditure on steps necessary to the realisation of rights, such as expenditure on public housing (CESCR 1998: para 28).

These comments from the CESCR demonstrate a ‘multiplicity of performance standards for each enumerated right in relationship to the varied social, developmental, and resource contexts of specific countries’ (Chapman 1996: 31). When we apply the obligation to ‘take steps’ to the ‘maximum of available resources’ to an affluent and well-resourced state such as Australia, it is not sufficient to focus on core minimum obligations. While the content of the basic principle to take steps applies equally to all states parties, the outcome of its application will be context-specific, depending on the available resources of the particular state in question.

The right to adequate housing

Australia is a party to all of the major human rights treaties. As such, it has taken on obligations to respect, protect and fulfil the right to adequate housing. This section identifies the international treaties which recognise the right to adequate housing, and elaborates upon the content of this particular right.

Human rights relating to housing can be found in all of the major international human rights treaties. For example, the International Covenant on Civil and Political Rights guarantees that the law will prohibit discrimination in the enjoyment of all human rights (art 26), which includes those rights covered by the ICESCR, and the Convention on the Elimination of Racial Discrimination guarantees that everyone enjoys the right to housing without racial discrimination (art 5(e)(iii)). The particular housing rights of rural women and children are protected in the Convention on the Elimination of All Forms of Discrimination Against Women (art 14(2)(h)) and the Convention on the Rights of the Child (art 27) respectively. Australia is a party to all of these international treaties. The most important housing and homelessness related right, the right to adequate housing, is set out in the ICESCR. Australia ratified the ICESCR on 10 December 1975. Article 11(1) of the ICESCR 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.

In addition to its General Comments on the general nature of obligations under the ICESCR, the CESCR has elaborated on the content of the right to adequate housing in two of its General Comments. General Comment 4 identifies a number of specific obligations in relation to the right to adequate housing. In this General Comment, the CESCR declares that the notion of adequate housing should not be limited to the idea of shelter, but rather understood to mean ‘the right to live somewhere in security, peace and dignity’ (para 7). The CESCR sets out seven aspects of adequacy which should be taken into account in considering whether housing is adequate for the purposes of the right. These are as follows.

• Legal security of tenure: a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats.

• Availability of services, materials, facilities and infrastructure: including safe drinking water, heating and lighting, sanitation and washing facilities and refuse disposal, among others.

• Affordability: adequacy of housing means that the costs of housing are not so high as to threaten other basic needs.

• Habitability: adequacy requires sufficient space and protection from cold, heat, rain and threats to health. The physical safety of occupants must also be guaranteed.

• Accessibility: disadvantaged groups, including the elderly, the mentally and physically ill and the disabled, should be given priority consideration in both law and policy on housing.

• Location: housing must be in a location that allows access to employment, health-care, schools and other social facilities.

• Cultural adequacy: the way housing is constructed, the building materials used and the policies supporting these must appropriately enable the expression of cultural identity and diversity of housing (para 8).

General Comment 7 relates specifically to forced evictions, which it declares to be prima facie incompatible with the ICESCR. Forced evictions are defined as:

the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection (para 3).

Of particular relevance in the Australian context is the obligation on the state to ensure that evictions do not render individuals homeless or vulnerable to the violation of other rights. According to the CESCR,

[w]here those affected are unable to provide for themselves, the State party must take all appropriate measures, to the maximum of its available resources, to ensure that adequate alternative housing, resettlement or access to productive land, as the case may be, is available (para 16).

As previously noted, a state party is under obligations to respect, protect and fulfil the right to adequate housing. The obligation to respect requires a state to refrain from interfering, directly or indirectly, in the enjoyment of rights (para 6). The clearest violation of the obligation to respect would be forced evictions conducted by the state. Perhaps more relevant in the Australian context, the obligation to respect also requires the state to refrain from any ‘deliberately retrogressive measures’ (General Comment 3: para 9) in relation to realisation of the right. The obligation to protect requires the state to prevent violations of human rights by third parties including private actors. Protection of the right to adequate housing includes steps such as setting up a legal framework to prevent forced evictions by landlords and discrimination in private rental housing from taking place. Finally, the obligation to fulfil requires the state to take positive measures to ensure the enjoyment of right by individuals and communities, including legislative and budgetary measures. States’ duties to fulfil housing rights include the provision of housing assistance such as public housing and rental assistance.

Homelessness in Australia and human rights

Non-government responses to homelessness in Australia are increasingly framed in the language of human rights. In Victoria, for instance, the Housing is a Human Right Project established under the auspices of the Victorian Council of Social Service adopts a distinctly human rights approach to the issue of homelessness. Similarly, the Homeless Persons’ Legal Clinic, established by the Public Interest Law Clearing House (Vic), uses the terminology of human rights to describe homeless clients’ issues.

Recent academic commentary has also focused on the relationship between human rights and homelessness. Dianne Otto, for example, has analysed the extent to which the major Australian government program providing crisis accommodation to the homeless is consistent with Australia’s international human rights obligations (Otto 2003). Cassandra Goldie notes that

while there is an extensive body of knowledge dealing with the nature and extent of homelessness from a social policy perspective, limited work has been done on developing a body of knowledge and precedents about the legal and human rights of homeless people, in light of their social condition (Goldie 2002: 280).

Analysing the regulation of public space in Australia, Goldie poses the critical question: ‘Do people living in public space have human rights or is public space to be considered a human rights wasteland?’ (Goldie 2002: 277). She advocates the need to move from a welfare to a rights-based approach to homelessness in a context of ‘increasing rates of homelessness, and continuing law and order responses’ (Goldie 2003: 132). Philip Lynch and Jaqueline Cole have undertaken a comprehensive analysis of the relationship between homelessness and Australia’s obligations under the ICCPR and ICESCR, asserting that ‘homelessness is in itself a human rights violation’ (Lynch and Cole 2003: 140). They contend that ‘[r]ecognising, naming and reframing homelessness as a human rights violation carries significant normative value, moral authority and legal import’ (Lynch and Cole 2003: 165).

Adopting the language of human rights can be an empowering step for those experiencing homelessness. It can also form the basis for legal claims against the state for violations of human rights. In order to make such claims, however, it is essential to first unpack the meaning of homelessness, and consider how it relates to the rights enumerated under the ICESCR and ICCPR.

Defining homelessness

‘Homelessness’ is not a term to which international law gives a specific meaning. As Lynch points out, definitions of homelessness tend to be ‘diverse and culturally contingent’ (Lynch 2002: 609). The definition of homelessness developed by Chris Chamberlain and David MacKenzie has been endorsed by the Australian Bureau of Statistics, and we use it throughout this article. Acknowledging that the definition of homelessness is a ‘socially constructed, cultural concept’, Chamberlain and MacKenzie identify three categories of homelessness (Chamberlain and MacKenzie 2003: 1).

Primary homelessness refers to people without conventional accommodation, including those living on the streets, sleeping in parks, squatting in derelict buildings, or using cars or railway carriages for temporary shelter. Secondary homelessness refers to those moving frequently from one form of temporary shelter to another, including people using emergency accommodation (such as hostels for the homeless or night shelters), people residing temporarily with other households (because they have no accommodation of their own) and those using boarding houses on a short-term basis. Tertiary homelessness refers to people who live in boarding houses on a medium to long-term basis. Boarding houses do not have a separate bedroom and living room, do not have kitchen and bathroom facilities of their own, and do not have security of tenure provided by a lease (Chamberlain and Mackenzie 2003: 1-2).

Homelessness and human rights

People experiencing homelessness are subject or susceptible to a range of economic, social, cultural, civil and political rights violations. These include violations of the right to freedom from discrimination, the right to security of the person, the right to privacy, the right to vote, the right to the highest attainable standard of health, the right to education, and perhaps most importantly, the right to adequate housing. All of these rights are enshrined in the ICCPR and the ICESCR, both of which have been signed and ratified by Australia. While the lived experience of homelessness can give rise to ‘multiple and intersectional human rights violations’ (Lynch 2004: 10), the focus of this article remains limited to the relationship between homelessness and the right to adequate housing.

As Lynch and Cole point out, the definition of homelessness adopted in Australia is consistent with definitions of inadequate housing under General Comment 4 and art 11(1) of the ICESCR (Lynch and Cole 2003: 141).^[4] According to General Comment 4, the right to adequate housing entails ‘the right to live somewhere in security, peace and dignity’ (para 7). The seven aspects of adequate housing identified by the CESCR provide a useful link between homelessness and the right to adequate housing. People experiencing homelessness do not enjoy some or all of these aspects considered essential elements of the right to adequate housing.

Those experiencing primary homelessness clearly lack legal security of tenure. They do not have access to appropriate services and infrastructure (such as heating, lighting and sanitation) and do not enjoy habitable conditions (defined as basic protection from the weather and threats to health). The conditions of secondary and tertiary homelessness are similarly marked by a lack of security of tenure, and are likely also to also fall short of habitability standards, access to services and affordability. The connection between poverty and homelessness (Chamberlain and MacKenzie 2003: 40) demonstrates that affordability of housing is an issue for those experiencing all types of homelessness. The significant numbers of those from disadvantaged groups (such as indigenous Australians and the unemployed) experiencing homelessness in Australia indicates that the accessibility element of adequate housing under General Comment 4 is not enjoyed (Chamberlain and MacKenzie 2003: 39–40).

Given that homelessness, as defined in Australia, can be equated with inadequate housing under international law, acts of commission and acts of omission by the Australian government which result in homelessness constitute a violation of human rights law. This is not to say that all incidences of homelessness are necessarily a consequence of violations of the right to adequate housing. It is important to recognise potential limitations of a cultural definition of homelessness, including the fact that a small number of individuals who fall within the definition may prefer to live in conditions which are not considered ‘appropriate’ according to the cultural expectations of most Australians. However, the ICESCR and General Comment 4 make it clear that all persons, and particularly those in disadvantaged groups, have the right to access adequate housing, regardless of whether they choose to exercise this right.

Counting the homeless in Australia

The tripartite definition of homelessness developed by Chamberlain and MacKenzie has been adopted by the Australian Bureau of Statistics (ABS) to collect data on homelessness. In 1996, the ABS adopted a ‘special enumeration strategy’ to collect data on homelessness in Australia for the first time. The main aim of the strategy was to improve identification of people in the ‘primary homelessness’ category (Chamberlain and MacKenzie 2003: 17). The 1996 figures revealed that 105,304 individuals were homeless on census night in Australia. This included 23,299 people in boarding houses; 12,926 in SAAP accommodation; 48,500 staying with friends and relatives; and 20,579 in improvised dwellings or sleeping out (Chamberlain and MacKenzie 2003: 32).

The 2001 census aimed to ‘replicate the 1996 analysis and examine changes in the homeless population over time’ (Chamberlain and MacKenzie 2003: 1). The figures in the 2001 census revealed that 99,900 individuals were homeless on census night, suggesting a significant drop in the total number of homeless people in Australia. The federal Minister for Family and Community Services celebrated this apparent reduction in homelessness with a press release entitled ‘The number of homelessness falls, says new report’. However, as Goldie notes, a closer reading of the 2001 figures does not support this claim (Goldie 2004a: 38).

Comparing the 1996 and 2001 census figures, it is clear that the numbers of individuals in boarding houses, in Supported Accommodation Assistance Program (SAAP) accommodation and staying with friends and relatives remained fairly static. The significant drop was registered in the number of individuals in improvised dwellings or sleeping out. When we disaggregate this data further, it becomes evident that the number of non-indigenous people in improvised dwellings or sleeping out actually increased. Therefore, a reduction in the number of indigenous people in improvised dwellings or sleeping out was the primary reason for an overall drop in homelessness figures. The 1996 census registered 9751 indigenous individuals in this category; the 2001 census registered just 2681.

The dramatic ‘drop’ in the number of indigenous Australians in improvised dwellings or sleeping out is primarily attributable to a change in counting rules for the 2001 census. In 1996, census data collectors in remote indigenous communities were instructed to count dwellings without a working shower and toilet as ‘improvised dwellings’, based on the shared community standard that houses and flats should include these facilities. In 2001, data collectors were instructed that ‘to be counted as a house for the census a dwelling needs to be a permanent structure built for the purpose of housing people’ (Chamberlain and MacKenzie 2003: 56), based on the fact that some remote indigenous communities use properly constructed, shared amenities blocks. As Goldie points out, the effect of this was to ‘change the definition of homelessness on remote indigenous communities’ (Goldie 2004a: 38). As a result of the change in definition, the number of improvised dwellings in indigenous communities decreased from 8727 in 1996 to 823 in 2001 (Chamberlain and MacKenzie 2003: 22).

Taking the change in definition into account, it becomes clear that the number of homeless individuals in Australia has not changed significantly in recent years. In fact, Chamberlain and MacKenzie’s research suggests that Australia’s homeless population has increased over the past 40 years, although there is no quantitative data on the rate of increase (Chamberlain and MacKenzie 2003: 64).

Homelessness in Australia and the right to adequate housing

In order to meet its obligations under the ICESCR, the Australian government must do more than ensure that individuals are not deprived of basic shelter and housing. Given its access to resources, the Australian government is obliged to take steps beyond the core minimum required of all states parties to the ICESCR.

This section identifies four obligations beyond the core minimum relating to the right to adequate housing. We consider whether Australia’s programs and policies on homelessness are sufficient to discharge its obligations to develop a national plan to combat homelessness; to implement the right to adequate housing progressively, without retrogression; to provide effective remedies to those who become homeless; and to take steps to the maximum of its available resources to reduce homelessness.

Australia’s obligation to develop a national plan on housing rights

In its General Comment 1, the CESCR sets out the obligation to ‘work out and adopt a detailed plan of action for progressive implementation’ (para 4) as a part of the obligation in art 2 of the Covenant to ‘take steps ... by all appropriate means’ to implement the Covenant rights. According to the Committee, states must develop ‘clearly stated and carefully targeted policies, including the establishment of priorities which reflect the provisions of the Covenant’ (para 4).

In respect of the right to adequate housing, the more particular obligation to develop a national policy on housing rights is articulated in General Comment 4. The CESCR states that steps taken towards the full realisation of the right to adequate housing will ‘almost invariably require the adoption of a national housing strategy’ (para 12). Citing the Global Strategy for Shelter, the General Comment notes that such a policy

defines the objectives for the development of shelter conditions, identifies the resources available to meet these goals and the most cost-effective way of using them and sets out the responsibilities and time-frame for the implementation of the necessary measures.

A national housing rights policy should incorporate a national action plan for the full implementation of housing rights. It should facilitate the creation of adequate housing stock sufficient to meet the needs of the population and to secure the housing rights of the most vulnerable groups. Such a strategy should reflect extensive genuine consultation with, and participation by, stakeholders including the homeless, the inadequately housed and their representatives (Goldie 2003: 133). Finally, General Comment 4 suggests that steps should be taken to ensure coordination between various levels of government, and between relevant government departments to ‘reconcile related policies’ (para 12).

Australia’s failure to fulfil its obligation to develop a national policy on housing rights was emphasised by the CESCR in its Concluding Observations on Australia’s report submitted in 2000. The CESCR strongly recommended that Australia

at the federal level, develop a housing strategy in keeping with the Committee’s General Comments No 4 and 7 ... In addition, the Committee recommends that [Australia] ensure that all State and Territory governments establish appropriate housing policies in accordance with this strategy (CESCR 2000: para 34).

A national strategy on homelessness would appear to be an integral part of a national housing strategy. Homelessness is the most stark example of non-enjoyment of the right to adequate housing. Such a strategy could, in line with the expectations set out in the General Comments, identify the scope of the problem, determine its causes, and identify strategies and resources required to reduce homelessness over time.

In May 2000, the federal government launched a National Homelessness Strategy (NHS) focusing on four themes: working together in a social coalition; prevention; early intervention; and crisis transition and support (Australian Government 2000). The broad aim of the NHS is to ‘provide a much-needed framework for integrated programs and services, geared to preventing and reducing homelessness in a holistic and strategic way’ (Newman 2000). Following the launch of the NHS, in October 2000 the government appointed the Commonwealth Advisory Committee on Homelessness (CACH) to initiate community consultation and provide advice and recommendations to the government.

The NHS focuses primarily on the service system’s response to homelessness, aiming to improve inter-agency collaboration, identify best practice models and build the capacity of the community sector (Australian Government 2000: 6). The main programs initiated by the NHS to date have been a series of pilot and demonstration projects. Initial steps towards developing a coordinated national strategy to address homelessness are to be commended, as are genuine efforts to consult with relevant stakeholders.

However, four years after its launch, the NHS has failed to produce a long-term plan to progressively eradicate homelessness in Australia. A successful whole-of-government approach requires not only that service delivery be coordinated, but that cross-sectoral policy be adopted to identify the underlying structural causes of homelessness, as well as the resources required and the steps to be taken to progressively eradicate homelessness. This substantive plan of action would appear to be more consistent with the CESCR’s comments on the development of national policy, rather than coordination and demonstration projects.

A national policy on housing rights would also require the coordination of strategies and programs between the state and federal governments. Federalism represents a potential barrier to the development and implementation of an effective national strategy. While the development of state and territory plans of action are essential, from the perspective of international human rights law, primary responsibility for the implementation of rights, and at the very least for coordination of strategy, lies with the federal government.

The ICESCR makes specific reference to states with federal systems such as Australia, stating that ‘the provisions of the present Covenant shall extend to all parts of federal states without limitations or exceptions’ (art 28). Dianne Otto and David Wiseman note that the effect of this provision is to place primary responsibility with the federal government to ‘ensure that the rights enumerated in the ICESCR are enjoyed throughout Australia, even where they fall under the jurisdiction of state and territory governments’ (Otto and Wiseman 2001: 22). There is no reason why obligations in respect of plans of action should be excluded from such responsibility.

Clear obligations exist to develop a comprehensive housing strategy and plan of action for the progressive eradication of homelessness. While some steps have been taken to develop a National Housing Policy, more substantive work needs to be done to set down the steps to be taken towards the progressive realisation of Australia’s international law obligations regarding homelessness. To this end, the South African example may prove to be a model, where comprehensive White Papers have driven the legislative agenda to implement the constitutional right to housing.

Concurrent with the federal government’s attempts to develop a national homelessness strategy, various state and territory governments have been working to design more localised policies on homelessness (see <www.homeless.dhw.wa. gov.au>, <www.dhs.vic.gov.au/vhs>, <www.housing.nsw.gov.au>). Although many aspects of state- and territory-wide schemes represent effective and holistic approaches to homelessness, they remain disparate and localised, and there is no indication that they are aimed at fulfilling Australia’s international human rights obligations.

While federalism represents a potential barrier to the development of national strategies, state and territory policies could also form the basis for a strong national approach to homelessness. Existing strategies could be evaluated and developed as models for a comprehensive national homelessness strategy. To date, the federal government has failed to coordinate state and territory policies aimed at reducing homelessness, yet this is surely crucial to the federal government’s ability to ensure that its obligations under the ICESCR are fulfilled.

Clearly, the primary obligation to develop a detailed plan of action to ensure progressive realisation of the right to adequate housing in Australia lies with the federal government. The federal government’s ongoing failure to address the issue of homelessness by developing an effective national strategy to ensure the progressive realisation of the right to adequate housing is in violation of its obligations under the ICESCR.

Australia’s obligation to implement the right to adequate housing progressively, without retrogression

One of the principle elements of progressive realisation under art 2(1) of the ICESCR is that any ‘deliberately retrogressive measures’ require careful consideration and must be fully justified ‘by reference to the totality of the rights provided for in the Covenant and in the context of the full use of the maximum available resources’ (General Comment 3: para 9). This flows from the obligation to respect the right — states parties should not interfere, directly or indirectly, with the enjoyment of the right to adequate housing (Maastricht Guidelines: para 6).

Recent General Comments reaffirm and strengthen this requirement, with General Comment 15 on the Right to Water stating that ‘[t]here is a strong presumption that retrogressive measures taken in relation to the right ... are prohibited under the Covenant’ (para 19). The state bears the burden of proving that any ‘deliberately retrogressive measures’ have been introduced after ‘the most careful consideration of all alternatives’.

General Comment 4 elaborates on the requirement of progressive realisation with specific reference to the right to adequate housing. It states that ‘a general decline in living and housing conditions, directly attributable to policy and legislative decisions by States parties, and in the absence of accompanying compensatory measures, would be inconsistent with the obligations under the Covenant’ (para 11). This indicates that where a direct link can be drawn between a policy or legislative initiative by a state party, and a general decline in housing conditions, this would amount to a violation.

The approach taken by the CESCR in evaluating the periodic reports of states suggests that a decline in housing conditions may itself be sufficient evidence of a violation, without being attributable to specific policy or legislation. In its Concluding Observations on Canada’s report in 1998, the CESCR recorded its grave concern that ‘such a wealthy country as Canada has allowed the problem of homelessness and inadequate housing to grow to such proportions that the mayors of Canada’s 10 largest cities have now declared homelessness a national disaster’ (CESCR 1998: para 24). In this instance, no direct link is drawn to a specific government policy; it is sufficient that in ‘such a wealthy country as Canada’, a decline is registered for the CESCR to voice its concern.

Chamberlain and MacKenzie’s research into homelessness reveals a number of disturbing trends within the Australian homeless population. They note that while empirical studies in the 1960s and early 1970s indicated that the homeless population was mostly male and mostly older, today’s figures indicate increasing numbers of women and children experiencing homelessness (Chamberlain and MacKenzie 2003: 64). Almost half of the homeless population in 2001 was aged under 25. Females outnumbered males in the age group 12–18 years, and made up 42 per cent of the homeless population overall.

Chamberlain and MacKenzie also point to the over-representation of indigenous Australians within the homeless population. While 2 per cent of people identify as indigenous, indigenous people represent 9 per cent of the homeless population (Chamberlain and MacKenzie 2003: 39).

While these statistics do not necessarily indicate a dramatic decline in living and housing conditions overall, they certainly suggest that government policies are not having a significant impact on reducing homelessness. Overall levels of homelessness have effectively remained static, and disturbing trends are emerging in respect of women, children and indigenous Australians experiencing homelessness. In ‘such a wealthy country’ as Australia, it is of grave concern that homelessness is not being adequately addressed by government programs and policies. It remains to be seen whether the CESCR is prepared to categorise Australia’s failure to adequately address homelessness as retrogressive, but its comments on the comparable situation of Canada indicate that a decline in housing conditions in a wealthy country may constitute a retrogressive measure, in violation of obligations under the ICESCR.

Australia’s obligation to provide effective remedies to those experiencing violations of the right to adequate housing

Under art 2(1) of ICESCR, states are required to realise the rights in the Covenant ‘by all appropriate means’. In its General Comment 9, the CESCR sets out guidelines on the Domestic Application of the Covenant. The Committee notes that although it takes ‘a broad and flexible approach which enables the particularities of the legal and administrative systems of each State ... to be taken into account’ (para 1), ‘the fundamental requirements of international human rights law must be borne in mind’. In particular, the Committee states that ‘appropriate means of redress, or remedies, must be available to any aggrieved individual or group’ (para 2), referring to art 8 of the Universal Declaration of Human Rights, which enshrines the right to an effective remedy for violations of fundamental rights. States that do not provide effective legal remedies will bear a heavy onus to show that such remedies are not appropriate means or necessary in light of other steps taken, a process the Committee describes as difficult (para 3).

Effective remedies need not be judicial — administrative remedies may suffice provided they are ‘accessible, affordable, timely and effective’ (para 9). Dianne Otto notes the flexibility available to governments in providing effective remedies when she writes that

remedies may be provided by independent statutory bodies established by parliaments, such as ombuds offices and human rights commissions ... or by other forms of Alternative Dispute Resolution. In addition, remedies may be policy-based, such as developing a plan for implementation, establishing benchmarks and time-frames, or explicitly articulating human rights principles to guide program development (Otto 2002: 273).

The key, however, is that remedial measures provide those affected with a means of enforcing their rights under the ICESCR.

Australia is increasingly atypical in its decision not to enact a statutory bill of rights incorporating some form of the rights enunciated in the two major international human rights covenants. As Cassandra Goldie notes, very few states have no constitutional or statutory bill of rights (Australia, Bhutan, Brunei, Burma and Libya remain some of the exceptions) (Goldie 2004b). Many national bills of rights, as well as the constitutions of states including Belgium, Finland, the Netherlands, South Africa and Switzerland, make specific reference to the right to housing.

It is commonly asserted by those who oppose the introduction of a bill of rights in Australia that human rights are best protected by parliamentary democracy, the common law and other democratic institutions. However, a number of developed countries sharing aspects of Australia’s common law system have introduced legislation providing effective remedies against violations of the right to adequate housing. The Scottish Parliament, for example, recently passed the Homelessness etc (Scotland) Act 2003, which Shelter UK has described as ‘the most progressive homelessness law in Europe’ (www.shelterscotland.org.uk). The Act is aimed at the eventual abolition of the priority needs test for homeless people seeking accommodation assistance from the government. It also provides additional assistance to households categorised as being ‘intentionally’ homeless. If properly implemented, this Act will ensure that within approximately 12 years, all homeless people in Scotland will have a legally enforceable right to housing.

No Australian government has provided for comprehensive legal remedies associated with the right to adequate housing. The ICESCR has no domestic legal status in any jurisdiction in Australia, a fact the CESCR has described as both an impediment to implementation of the Covenant and a subject for concern (CESCR 2000, paras 13–14).

Human rights have indirect legal effect in Australia through the development of the common law, through statutory interpretation and by creating a legitimate expectation in respect of administrative decision-making. However, no major case before Australian courts has considered the right to adequate housing, nor has the right been argued in cases involving homelessness. The main statutory body charged with the implementation of human rights in Australia, the Human Rights and Equal Opportunity Commission, has no direct mandate in relation to housing rights, as the ICESCR is not scheduled to the Act, unlike the ICCPR and a number of other human rights treaties ratified by Australia.

Human rights treaties are not self-executing under Australian law. Without domestic legislation to implement treaty provisions, these provisions do not confer any rights on individuals; nor do they impose obligations on the government. Without access to effective remedies in domestic law, there is currently no alternative mechanism whereby aggrieved individuals can enforce their rights under the ICESCR. Domestic implementation of the ICESCR is itself a vital step towards the realisation of economic, social and cultural rights in Australia. Australia’s continuing failure to ensure protection of economic, social and cultural rights through effective remedies amounts to a violation of its obligations at international law.

Australia’s obligation to take steps to the maximum of its available resources to reduce homelessness

Progressive realisation must take place to the maximum of available resources. It follows that states enjoying greater resources will be obliged to take greater steps towards realisation of economic, social and cultural rights. Robert Robertson notes that debates about the meaning of ‘maximum available resources’ remain at a high level of generality, suffering from ‘the failure of human rights advocates and authoritative bodies to articulate standards of state performance which give definition to and usefulness to the article 2 formulation’ (Robertson 1994: 694). However, recent General Comments, together with the CESCR’s observations on states parties’ compliance with the ICESCR, provide some indication of expected levels of commitment in relation to maximum allocation of available resources.

In recent General Comments, the CESCR has observed that ‘insufficient expenditure or misallocation of public resources which results in the non-enjoyment of the right’ will be considered a violation of the obligations under the ICESCR (General Comment 14: para 52; General Comment 15: para 44). The CESCR has also noted the difference between an inability to take steps based on lack of resources, and unwillingness to commit resources, stating that ‘[a] State which is unwilling to use the maximum of its available resources for the realisation of the right ... is in violation of its obligations’ (General Comment 15: para 41).

In its Concluding Observations on Canada’s report in 1998, the CESCR was highly critical of Canada’s decision to reduce its allocation of funding to government programs which the CESCR considered essential to the realisation of economic, social and cultural rights. The CESCR stated that ‘in addressing the budget deficits by slashing social expenditure, [Canada] has not paid sufficient attention to the adverse consequences for the enjoyment of economic, social and cultural rights by the Canadian population as a whole, and by vulnerable groups in particular’ (CESCR 1998: para 11). The CESCR made specific reference to policies which contributed to non-enjoyment of economic, social and cultural rights, stating that Canada had ‘adopted policies at federal, provincial and territorial levels which exacerbated poverty and homelessness among vulnerable groups during a time of strong economic growth and increasing affluence’ (para 34). The CESCR’s particular focus on housing rights in Canada was reiterated in its recommendation that Canada

address homelessness and inadequate housing as a national emergency by reinstating or increasing, as the case may be, social housing programmes for those in need, improving and properly enforcing anti-discrimination legislation in the field of housing, increasing shelter allowances and social assistance rates to realistic levels, providing adequate support services for persons with disabilities, improving protection of security of tenure for tenants and improving protection of affordable rental housing stock from conversion to other uses (para 46).

The CESCR also urged the Canadian government to implement a ‘national strategy for the reduction of homelessness and poverty’ (para 46).

Similar criticisms may be levelled at Australia’s failure to commit adequate resources to address homelessness. The Commonwealth State Housing Agreement (CSHA) is a series of agreements between the Commonwealth and each of the state and territory governments under the Housing Assistance Act 1989 (Cth), governing the financing and provision of housing assistance. The most significant program of the CSHA is the dual provision of social housing, made up of public housing which is built, owned and managed by state and territory governments; and of community housing, which is owned or managed by NGOs. The Australian Federation of Homelessness Organisations (AFHO) claims that public housing ‘offers homeless people and those at risk of homelessness an important and viable housing option’ (AFHO 2002).

Both social and community housing are rented to tenants at below market value rent, calculated according to income. Since 1945, social housing stock has been acquired totalling almost 400,000 dwellings, representing 6 per cent of the total housing stock and valued at over $31 billion. Other programs funded under the CSHA include various minor forms of rental assistance, assistance to home owners suffering financial hardship, and tenancy advice.

Funding for the CSHA was cut by 25 per cent from the mid-1980s to the mid-1990s. Between 1992 and 2002, a further 30 per cent funding cut has taken place in real terms, including through the introduction of so-called ‘efficiency dividends’ since 1996 (ACOSS 2002). These funding cuts reflect a shift in housing policy in Australia, moving the emphasis from Commonwealth funding of public housing stock to an increased focus on rental support in the private rental market.

As the AFHO has argued, rental housing assistance ‘does not achieve housing affordability and has a limited impact on the key housing assistance objectives of security, adequacy, and appropriateness’ (AFHO 2002). In other words, the government’s decision to increase private rental assistance does not adequately compensate for cuts to public housing schemes. Government assistance to those renting through the private market is less likely to ensure enjoyment of the seven elements of housing adequacy identified by the CESCR than public housing, where the state has far greater influence over aspects such as security of tenure, access to services and accessibility for disadvantaged groups.

The homelessness figures above indicate that cutbacks to the CSHA cannot be attributed to a reduced need for public housing in Australia. Given that homelessness has not decreased, and may in fact be on the rise among certain disadvantaged groups, to reduce funding to the primary government scheme aimed at providing public housing is inconsistent with Australia’s international obligations. Australia’s continuing economic growth means that its available resources are expanding, and thus the resources devoted to the enjoyment of the right to adequate housing should also grow, unless the government can show full realisation of the right. Funding cuts to the CSHA are indicative of Australia’s failure to commit maximum available resources towards the realisation of the right to adequate housing.

Similarly, the major government program aimed at providing assistance to the homeless has suffered from inadequate resources, despite repeated budget surpluses in Australia. The Supported Accommodation Assistance Program (SAAP) is funded jointly by federal and state governments and is administered by state governments. It funds NGOs that provide supported accommodation and other services. A study produced by the Australian Institute for Health and Welfare into the provision of SAAP services in 2001–2 showed that of those seeking immediate accommodation, an average of over 55 per cent were turned away (AIHW 2003: 422).^[5] In Victoria and the Northern Territory, this rate was over 72 per cent. Clearly, demand for emergency housing currently far exceeds the capacity of the SAAP to provide necessary assistance.

Cuts in funding to the CSHA and the inability of the SAAP to meet demand for emergency housing assistance demonstrate that Australia is not currently meeting its obligation to take steps to the maximum of its available resources to reduce homelessness.

Conclusion

Economic, social and cultural rights are an integral part of international human rights law. Although the normative development of these rights has been slower than that of civil and political rights, this deficiency has largely been overcome through the work of the CESCR, NGOs and academics, and by the gradual incorporation of economic, social and cultural rights into domestic law. In conceptualising the normative content of economic, social and cultural rights, the focus has tended to be on establishing a core minimum content to secure essential levels of food, primary health care, basic shelter and housing, and basic education. While this has proved a useful project, particularly in relation to developing countries with minimal access to resources, the basic measure for compliance remains the obligation for a state party to the ICESCR to ‘take steps ... to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant’ (art 2). The application of this basic principle will produce different results in different states, depending on their available resources. For states such as Australia, with access to significant resources, the content of the obligation goes significantly beyond the ‘core minimum’.

The right to adequate housing is a key economic, social and cultural right, and is entrenched in a number of international human rights treaties. The content of the right has been developed by the CESCR through its General Comments and Concluding Observations on states parties’ reports. States parties to the ICESCR are obliged to respect, protect and fulfil this right. Homelessness, as defined in Australia, amounts to inadequate housing under the ICESCR. As such, acts of omission and commission by the Australian government which result in homelessness constitute violations of international human rights law. Homelessness remains an issue of major concern in Australia. The overall rate of homelessness remains at about 100,000 and there is no indication that this number is dropping. Increasing numbers of women and children are experiencing homelessness and indigenous Australians are significantly over-represented in the homeless population.

Australia is obliged to move expeditiously and effectively towards full realisation of the right to adequate housing. This includes taking steps to ensure that all homeless people have access to adequate housing. Identifying four key obligations beyond the core minimum, it is clear that Australia is currently failing to meet its obligations under international law.

First, the federal government has failed to produce a coordinated, cross-sectoral national policy identifying and addressing the structural causes of homelessness. Second, current policies and programs are not having a significant impact on the numbers of homeless people in Australia. Housing conditions for a number of vulnerable groups have declined significantly over the past 40 years, illustrating Australia’s failure to implement the right to adequate housing progressively, without retrogression. Third, the ICESCR has no domestic legal status in any domestic jurisdiction in Australia, highlighting the failure of the Australian government to provide for comprehensive legal remedies associated with the right to adequate housing. Finally, Australia’s failure to commit adequate resources to address homelessness demonstrates that it is not meeting its obligation to take steps to the maximum of its available resources.

Ultimately, Australia’s image as the ‘lucky country’ cannot be allowed to mask its abject failure to adequately address economic, social and cultural rights obligations to which it has made a longstanding international commitment to respect, protect and fulfil.

References

Australian legislation

Supported Accommodation Assistance Act 1994 (Cth)

Commonwealth State Housing Agreement authorised under the Housing Assistance Act 1996 (Cth)

Scottish legislation

Homelessness etc (Scotland) Act 2003 (Scot)

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Grootboom & Ors v Government of the Republic of South Africa & Ors, Case No CCT38/00, 21 Sept 2000

President of the Republic of South Africa & Ors v Modderklip Boerdery (Pty) Ltd, Case Nos 187/03 and 213/03, 27 May 2004

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Australian Government, Department of Family and Community Services National Homelessness Strategy: A Discussion Paper (2000)

Australian Government Implementation of the International Covenant on Economic, Social and Cultural Rights: Third Periodic Report, 23 July 1998

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* Rowan McRae is a final-year Arts/Law student at the University of Melbourne and works as a Legal Assistant at the Centre on Housing Rights and Evictions.

⁺ Dan Nicholson (BA/LLB) (Melb) is an Articled Clerk at Fitzroy Legal Service, and previously worked at the Centre on Housing Rights and Evictions.

^o The authors would like to thank Dianne Otto and Cassandra Goldie for their insightful comments on earlier drafts of this article.

[1] This phrase was first coined by Donald Horne as the title of his book The Lucky Country (1964).

[2] Based on the 2001 census data, Chamberlain and MacKenzie estimated that 99,900 people were homeless. However, the researchers also noted that this was a conservative estimate, and the number of people was likely to be much greater, particularly people living in ‘primary homelessness’ circumstances, the ‘category where there is greatest risk of undercounting.’ (Chamberlain and Mackenzie 2003: 56). ‘Primary homelessness’ is defined to mean: ‘people without conventional accommodation, such as those living on the streets, sleeping in parks, squatting in derelict buildings, or using cars or railway carriages for temporary shelter’.

[3] Note that the Commission on Human Rights has established an open-ended working group to consider options regarding the elaboration of an optional protocol to the ICESCR. The first session of the working group was held in Geneva in February–March 2004: UN Doc E/CN.4/2004/44, 15 March 2004.

[4] Indeed, inadequate housing under international law is probably broader than the Australian definition of homelessness, as it includes those who are housed but whose housing is not affordable.

[5] This rate is calculated based on the average daily number of people who could not be accommodated, expressed as a percentage of all people making requests for SAAP accommodation — both those successfully seeking accommodation and those who were unsuccessful, on an average day during the collection period.