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Panel on Poverty and Rights: Graeme Innes AM (2007)

Rights Rights and Freedoms

NCOSS Conference: Perspectives on Poverty

Panel
on Poverty and Rights

Can rights solve issues of
poverty?

Graeme Innes AM
Human Rights
Commissioner

Human Rights and Equal Opportunity Commission

Wednesday 17 October
2007

3pm-4.20pm

Acknowledgements

Before I
start, I would like to acknowledge the Gadigal People of the Eora Nation, the
traditional owners of the land on which we sit and pay my respects to their
elders both past and present.

I would also like to thank the NSW Council
of Social Services for inviting me to speak to you today.

Homelessness
as a human rights issue

Today I would like to talk about homelessness
as a human rights issue.

I am guessing that most of you in this room
have a great depth of knowledge about the social, emotional, financial, mental
and welfare impact that homelessness has on more than 100,000 people within our
community, so I will not be focussing on those aspects of
homelessness.

However, I wonder how many of you have thought about
homelessness as a human rights issue, rather than a social, economic or welfare
issue?

I would like to identify the many human rights issues which are
raised in the context of homelessness and suggest how a human rights framework
might be useful to help address what appears to be an ever-increasing problem in
our society.

I should say that many of my ideas are drawn from an
excellent paper written by Phil Lynch and Jacqueline Cole in the Melbourne
Journal of International Law in 2003. And we at the Human Rights and Equal
Opportunity Commission will shortly be publishing a short paper on our website
which will cover many of the issues that I will be talking about today. So if
you miss anything then please have a look at the Human Rights page on our
website in a few weeks time.

What do I mean by
homelessness?

Many people mistake homelessness as simply a housing
issue. But we all know that having a home means much more than having a roof
over our heads.

For the purposes of today’s discussion I am
thinking about homelessness along the lines of the definition used by the United
Nations Committee on Economic, Social and Cultural Rights which provides that a
person is homeless unless he or she has adequate access to a place to stay which
can provide safety, security, peace and
dignity.[1]

That UN definition
is pretty well reflected in the federal Supported Accommodation Assistance
Act 1994
and the ABS categories of homelessness.

What human
rights are raised by the issue of homelessness?

So, keeping mind that
homelessness is about having a place where a person feels safe and secure, what
human rights issues are raised?

You may be surprised at how many there
are!

A person who is homeless is unlikely to be in a position to enjoy
any or all of the following human rights:

  • The human right to an adequate standard of living, including the right to
    housing, food, clothing and improving living conditions
  • The human right to the highest attainable standard of health
  • The human right to social security
  • The human right to an education
  • The human right to liberty and security of person
  • The human right to vote
  • The human right to privacy
  • The right to enjoy culture and take part in cultural life
  • The human right to freedom of movement
  • The human right to freedom of association
  • The human rights to freedom of expression
  • The human right to be treated with humanity and dignity

And last
but not least

  • The human right to non-discrimination.

Of course, not all
people who are homeless will be denied all of these 13 different human rights,
however there is a very high chance that a homeless person will not be in a
position to enjoy at least one of those rights. And in some communities the
likelihood of enjoying all these rights will be severely diminished.

Indigenous Peoples, women, youth, people who are mentally ill and asylum
seekers in Australia make up most of the people who find themselves homeless in
Australia. And each of those groups is likely to have special protection needs
like mental health care for the mentally ill; education for the youth;
protection from violence for women; non-discrimination and appropriate cultural
environments for Indigenous Peoples and asylum-seekers and so on.

I
won’t go through how each of the 13 rights are relevant to homeless people
because that will clearly take me way over time. But let me just provide a few
examples of how people experiencing homelessness are vulnerable to experiencing
human rights violations.

Homelessness and the right to an adequate
standard of living

The most obvious of the rights which are probably not enjoyed by any person who is homeless is the right to an adequate
standard of living, including the right to adequate housing, food, clothing and
living conditions.

This right is set out in four different treaties
– the International Covenant on Economic Social and Cultural Rights, the
Convention on the Elimination of Racial Discrimination, the Convention on the
Elimination of Discrimination Against Women and the Convention on the Rights of
the Child.[2] And Australia is bound
by international law to comply with each of those treaties.

Whether or not housing is adequate (and therefore complies with this
human right) will depend on a range of factors including:

  • legal security of tenure
  • availability of services, materials, facilities and infrastructure
  • affordability
  • accessibility
  • habitability
  • location
  • cultural adequacy.

A person who does not enjoy housing with
these characteristics may be the victim of a human rights violation. Almost by
definition, most homeless people would fall into this
category.

Homelessness and the right to personal safety

The second example concerns a person’s right to
‘security of the person’. This right is protected under the
International Covenant on Civil and Political Rights and the Convention on the
Rights of the Child.

It is not hard to imagine that most homeless persons
will be especially vulnerable to random harassment and attacks. Women who are
homeless are particularly at risk of violence and sexual abuse and are often
forced into harmful situations and relationships out of need.

Homelessness and the right to vote

Finally, a particularly
topical example concerns homelessness and the human right to vote.

While
it is absolutely the case that a homeless person has the legal right to vote, as
a practical matter he or she may not be in a position to exercise that right.

Some estimates suggest that upto 90% of homeless persons are not validly
registered to vote. This is probably because homeless people generally face
significant hurdles in enrolling, including a difficulty in proving identity.
They are also more likely to experience frequent address changes which means
they will have to update their enrolment before each election.

Recent
changes to the electoral laws have reduced the enrolment deadlines to the effect
that a new voter must enrol by 8pm on the same day as the election writ is
issued (which is today) and a person must update their address within 3 working
days of the write (which is next Tuesday 23 October). These shorter enrolment
deadlines may impact on the number of homeless people voting at the upcoming
election.

How
might a human rights framework help to address the issue of
homelessness?

Those are just three short examples of how various
specific human rights may be relevant to people who experience homelessness. You
may be asking yourself, so what? Does it actually help to talk about this
difficult social issue in terms of human rights?

Well, that’s a
question that human rights advocates ask themselves all the time! And if you
asked 10 different human rights advocates you would probably get 30 different
responses! But I think you would find at least two common themes in amongst the
many valid answers.

Human rights is a language of empowerment which
fosters participation

Firstly, discussing social issues like
homelessness as a human rights issue changes the way you approach it. It changes
the problem from one where individuals are seeking help and compassion from the
state to one where people are asserting their rights against the state.

It provides empowerment to those who experience homelessness and a moral
(if not legal) obligation on those who have the power to help address that
homelessness. A rights based approach also suggests a need to involve people
experiencing homelessness in the design of relevant services. More likely than
not, this will mean that the services available to people experiencing homeless
will be far more relevant to their needs.

In other words, the rights
framework seeks to shift the rhetorical power from the state to the individual.

While a shift in rhetorical power won’t solve the problem by
itself, it can drastically change the nature of the debate and it can provide a
powerful tool for people experiencing homelessness and their advocates to assert
their right to an equal place in society.

Legal enforceability of
human rights

The second reason why most human rights advocates would
argue that human rights are important is they create legal obligations both in
domestic and international law. Let’s have a quick look at that
proposition.

Australia is required to protect and promote all of the
rights I have mentioned because Australia has ratified all of the international
human rights treaties which set out those rights (ICESCR, ICCPR, CRC, CEDAW and
CERD).

At an international level this means that Australia must
periodically report to the various UN treaty bodies regarding our progress in
upholding these rights. For instance, in January next year Australia must
provide a report to the UN Committee on the Rights of the Child so that it can
assess Australia’s performance against the children’s rights set out
in that Convention.

In the case of civil and political rights Australia
may also have to answer complaints made by individuals to the UN Human Rights
Committee. Although, to my knowledge no person experiencing homelessness has
asserted the right to complain to the UN Committee

Australia may also be
subject to scrutiny by Special Procedures of the United Nations. Just recently
the UN Special Rapporteur on adequate housing – Mr Miloon Kothari -
visited Australia and issued a report giving his view about how Australia is
implementing the right to housing. I understand the Rapporteur met a lot of
civil society groups so some of you may have met him. He issued a report making
a range of recommendations as to how Australia could better protect the right to
adequate housing.

While neither the UN treaty bodies nor the Rapporteur
can enforce their recommendations, the recommendations can be a persuasive
political force and they are very useful advocacy tools for human rights
advocates and bodies like HREOC.

That takes us to the value of human
rights at a domestic level.

International treaties do not become part of
Australian law unless there is domestic legislation which directly incorporates
those treaties. None of the human rights treaties affecting the homeless have
been incorporated into federal Australian law, other than parts of CEDAW
(through the Sex Discrimination Act) and CERD (through the Racial Discrimination
Act).

The charters of rights in the ACT and Victoria do incorporate most
of the rights contained in the International Covenant on Civil and Political
Rights but they do not incorporate the rights in the International Covenant on
Economic Social and Cultural Rights – which means rights like the right to
adequate housing are not enforceable under Australian law.

Nevertheless,
the fact that the treaties are not directly enforceable in federal law does not
mean that the human rights they describe are meaningless in Australia.

For starters, HREOC can look at least some of the rights which affect
the homeless. More than 10 years ago we did a national inquiry on youth
homelessness. And, as I mentioned at the start of my talk, we are just about to
put an updated short document about homelessness and human rights on our
website. Further, the Social Justice Commissioner regularly looks at issues
relating to poverty, human rights and indigenous peoples.

Again, while
HREOC can’t enforce our findings against the government, there is no doubt
that the human rights framework provides an extremely important tool for
advocacy in the area.

Further, Australian law provides that all people
have a ‘legitimate expectation’ that administrative decision makers
will act in accordance with Australia’s human rights obligations. A person
experiencing homelessness cannot force a decision-maker to act in accordance
with human rights. However, he or she could potentially challenge an
administrative decision about, for example, eligibility for social security or
allocation of public housing assistance if he or she thought it was contrary to
human rights.

Finally, to the extent that current federal, state and
territory legislation is ambiguous in its meaning, a court must interpret that
legislation in line with Australia’s human rights obligations. One example
where this might be relevant is in the application of public space laws. Public
space and human rights is an area that I will be exploring over the next year or
so – so I may be able to update you on our thinking on this issue at next
year’s conference!

Conclusion

In conclusion, it is my
view that homelessness can and should be viewed within a human rights framework.

There may not be very strong legal mechanisms to enforce human rights at
either the international or domestic level, but the community at large must
recognise that homeless people have the same rights as everyone else and the
fact that they are homeless means they are unlikely to be enjoying the human
rights to which everyone is entitled.

As Anne Coleman put it in a paper
she wrote in 2004:

“A rights based approach behooves us to recognise what has always been
true. Homelessness is the result of social, economic and political processes of
which we are all a part and to which, to a greater or lesser degree, we are all
vulnerable. ... If we choose to incorporate and enact human rights principles in
our direct work with homeless people, in research and in policy making we will
be challenged to provide the necessities of life...in a way that respects
homeless people and that reflects better on us as a society.”

In
other words, looking at homelessness through a human rights lens will not in
itself solve the problem, but human rights provides us with a language and a
framework that can help shift the debate from one of welfare and pity to one of
rights and empowerment. I think that is an extremely important step, one that we
should not be shying away from.

Thank you.


[1] CESR, General Comment 4: The
Right to Adequate Housing.
[2] ICESCR article 11; CERD article 5(e); CEDAW article 14(2); UDHR article 25; CRC
article 4

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