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Inquiry into national homelessness legislation (2009)

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Friday 14 December, 2012

Inquiry into national homelessness legislation

Australian Human Rights Commission
Submission to the House of Representatives Standing Committee on Family,
Community, Housing and Youth

1 September 2009

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Table of Contents


1 Introduction

  1. The Australian Human Rights Commission (the Commission) welcomes the
    opportunity to make this submission to the House of Representatives Standing
    Committee on Family, Community, Housing and Youth (the Committee) in its Inquiry
    into national homelessness legislation.
  2. The Commission is Australia’s national human rights institution. It is
    established under the Australian Human Rights Commission Act 1986 (Cth).
  3. The Commission has previously made a Submission to the Australian
    Government’s Green Paper on Homelessness, Which Way
    Home?[1]
    At that time, the
    Commission recommended that the Australian Government take a human rights based
    approach to reducing homelessness in Australia.
  4. On 21 December 2008, the Australian Government released its White Paper, The Road Home: A National Approach to Reducing Homelessness (the White
    Paper).[2]
  5. The White Paper included a commitment by the Australian Government to
    ‘enact new legislation to ensure that people who are homeless receive
    quality services and adequate
    support.’[3] The White Paper
    also incorporates a number of the features of a ‘human rights based
    approach’ to reducing
    homelessness.[4]
  6. On 16 June 2009, the Australian Government referred this Inquiry to the
    Committee. The Terms of Reference for the Inquiry are as
    follows:

    The House of Representatives Standing Committee on Family,
    Community, Housing and Youth shall inquire into and report on the content of
    homelessness legislation.

    The Committee will make inquiries into the principles and service standards
    that could be incorporated in such legislation, building on the strengths of
    existing legislation, particularly the Supported Accommodation Assistance Act
    1994.

    The Committee shall give particular consideration to:

    1. The principles that should underpin the provision of services to
    Australians who are homeless or at risk of homelessness.

    2. The scope of any legislation with respect to related government
    initiatives in the areas of social inclusion and rights.

    3. The role of legislation in improving the quality of services for people
    who are homeless or at risk of homelessness.

    4. The effectiveness of existing legislation and regulations governing
    homelessness services in Australia and overseas.

    5. The applicability of existing legislative and regulatory models used in
    other community service systems, such as disability services, aged care and
    child care, to the homelessness sector."

  7. This Inquiry is a crucial stage in implementing the Australian
    Government’s White Paper.
  8. In this Submission, the Commission makes specific recommendations about how
    the national homelessness legislation can incorporate protection of basic human
    rights, and entrench the commitment of the Australian Government to
    progressively reduce homelessness as a national priority.
  9. The Submission highlights:
    1. the relevance of human rights to reducing homelessness;
    2. the key features and principles that underpin a human rights based approach
      to public policy development; and
    3. the connection between such an approach, and pursuing the Australian
      Government’s social inclusion agenda.
  10. The Submission then makes recommendations about how a human rights based
    approach to reducing homelessness can be incorporated into:

    1. national homelessness legislation; and
    2. related measures linked to the homelessness legislation which will enhance
      the effectiveness of efforts to reduce homelessness in Australia.

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2 Summary

  1. The Commission has strongly welcomed the Government’s decision to make
    the reduction of homelessness in Australia a national
    priority.[5] The Commission wholly
    agrees that this is a ‘once in a generation’ opportunity to address
    this important area of human
    rights.[6]
  2. The Commission has also welcomed the Australian Government’s White
    Paper which incorporates key features of taking a human rights based approach to
    addressing homelessness in
    Australia.[7]
  3. New homelessness legislation is an important opportunity to improve
    protection of the basic rights of people facing homelessness in Australia, and
    ensure the reduction of homelessness in Australia becomes a reality.
  4. The homelessness legislation will be a primary mechanism for ensuring that
    people facing homelessness move into adequate housing. The meaning of
    ‘adequate housing’ is particularly important. Internationally, it is
    now well recognised that all people should have housing which:

    1. provides enough security of tenure to protect people from being evicted into
      homelessness;
    2. contains facilities essential to health, security, comfort and
      nutrition;
    3. costs no more than a person can afford so that people still have enough
      money to meet other essential needs;
    4. provides adequate space and protection from cold, damp, heat, rain or other
      threats to health, structural hazards and disease;
    5. accommodates the specific needs of people who experience particular
      disadvantage;
    6. enables access to employment, health services, schools, child care and other
      social facilities, and is not near polluted areas; and
    7. is constructed and supported by policies which enable the expression of
      cultural identity and diversity of
      housing.[8]
  5. The Commission recommends that the homelessness legislation should make a
    commitment to progressively realising the right to adequate housing. It should
    incorporate a human rights based approach to the provision of services to people
    who facing homelessness, based on well-developed, internationally recognised
    principles of:

    1. Accountability and the rule of law;
    2. Universality, non-discrimination and equality;
    3. Participatory decision-making processes; and
    4. The recognition of the interdependence of
      rights.[9]
  6. There is a strong connection between the above principles and the
    Australian Government’s social inclusion agenda.
  7. To give practical effect to these principles, the homelessness legislation
    should incorporate the following features:

    1. objectives which include the protection and promotion of human rights and an
      interpretation clause that requires the legislation, decisions made under it and
      services to protect and promote basic rights;
    2. a definition of homelessness which is linked to adequacy of housing;
    3. clear benchmarks, targets and data systems to track progress made in
      reducing homelessness, including amongst groups who are particularly affected by
      homelessness, including women and their children, youth and older persons,
      Aboriginal and Torres Strait Islander peoples (Indigenous
      peoples),[10] people from culturally
      and linguistically diverse groups, migrants and refugees, people with
      disability, people with mental health issues, and people leaving correctional
      facilities;
    4. a requirement that all intergovernmental arrangements include targeted
      measures so that the specific needs of particularly vulnerable groups are
      addressed;
    5. entrenchment of participatory mechanisms in decision-making processes at
      both national and service levels;
    6. effective individual complaint mechanisms; and
    7. strong independent monitoring mechanisms to ensure that current and future
      Australian Governments comply with the duty of progressive realisation of the
      right to adequate housing.
  8. In addition to the content of homelessness legislation, there are important
    additional reforms that are needed to ensure that efforts under the homelessness
    legislation are coordinated and complement other systems and services.
  9. In particular, the Commission urges the Australian Government
    to:

    1. ensure that other national reforms are integrated with action under the
      White Paper, including the National Plan to Reduce Violence Against Women and
      their Children, which is currently being developed;
    2. review residential tenancy and public spaces laws which either exacerbate
      the rate of homelessness, or operate to further exclude people who are homeless
      from Australian society;
    3. develop a long-term National Housing Strategy which incorporates benchmarks
      and time-bound targets, including a focus on new and emerging groups who may be
      increasingly at risk of homelessness in future years; and
    4. strengthen domestic and international human rights protections for people
      facing homelessness, including through a Human Rights Act which includes the
      right to adequate housing, stronger anti-discrimination laws, increased capacity
      for the Australian Human Rights Commission in respect of the International
      Covenant on Economic Social and Cultural Rights
      (ICESCR), and adoption of
      the Optional Protocol to the ICESCR which enables individuals to lodge
      complaints about housing to the United Nations.
  10. The Commission considers that the adoption of these measures would place
    Australia at the forefront of countries around the world in:

    1. treating every person facing homelessness with dignity and respect;
    2. using legislation to achieve a national result by all governments for people
      facing homelessness;
    3. ensuring accountability to the Australian public for action taken, and
      funding spent, in order to reduce homelessness; and
    4. showing international leadership in how to protect human rights in a
      practical and effective way through dedicated homelessness legislation.

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3 Recommendations

  1. The Australian Human Rights Commission makes the following recommendations
    in this submission:

Recommendation 1: Homelessness
legislation should include as one its objectives the protection and promotion of
the human rights of people facing homelessness.

Recommendation 2: Homelessness legislation should include as one of
its objectives: to ensure that the specific needs of individuals and groups
vulnerable to homelessness are met.

Recommendation 3: Homelessness legislation should include an
interpretative clause which requires that the legislation be interpreted
consistently with human rights, so far as it is possible to do so consistently
with the purpose of the legislation.

Recommendation 4: Homelessness legislation should expressly require
that the obligation to promote and protect human rights be enshrined in any
intergovernmental arrangements between Australia governments, and, consequently,
in funding and service delivery frameworks with third party service
providers.

Recommendation 5: Homelessness legislation should include the
obligation to progressively realise the human right to adequate housing as a key
objective, and clearly set out the elements of this human right.

Recommendation 6: Homelessness legislation should include legislative
safeguards to ensure progressive realisation of the right to adequate housing,
including: (1) substantive provisions which set out key benchmarks and
time-bound targets; and (2) provisions which require intergovernmental
mechanisms to increase funding and services in order to meet targets on time.

Recommendation 7: Homelessness legislation should include minimum
standards of adequacy that housing must meet. Funding for services must be
sufficient to ensure these standards are met.

Recommendation 8: The definition of homelessness in homelessness
legislation should refer to whether the person has access to adequate housing in
accordance with international standards, and should build upon the Supported
Accommodation and Assistance Act 1994
(Cth) (SAA Act) definition.

Recommendation 9: Homelessness legislation should include a
substantive provision which prohibits ‘forced evictions’ (in other
words, evictions into homelessness) from services funded under the legislation,
and ensure institutional and funding arrangements under the legislation support
services to meet this government obligation.

Recommendation 10: Homelessness legislation should include
participation by people who are to benefit from the legislation as a key
objective.

Recommendation 11: The National Council on Homelessness could be set
up in the homelessness legislation as an independent, transparent consultation
mechanism and be required to establish participation mechanisms for people with
direct experience of homelessness.

Recommendation 12: Homelessness legislation should require that
national, state and territory and service level decision-making processes
incorporate participatory mechanisms for people who have experience of
homelessness, including representation from particularly vulnerable groups.
Specific funding should be made available for services to develop and sustain
these participatory processes.

Recommendation 13: Homelessness legislation should require that all
research, reporting, monitoring and evaluation frameworks include disaggregated
data collection and analysis of the outcomes being achieved for vulnerable
groups. Vulnerable groups include women and their children, youth and older
persons, Indigenous peoples, people from culturally and linguistically diverse
groups, migrants and refugees, people with disability, people with mental health
issues, and people leaving correctional facilities.

Recommendation 14: Homelessness legislation should require that
intergovernmental frameworks include provision for how the specific needs of
vulnerable groups will be addressed to achieve substantive equality in reducing
homelessness, including specific benchmarks and time-bound targets.

Recommendation 15: Homelessness legislation should provide for
transparent and independently verifiable mechanisms to monitor progress on the
Australian Government’s targets for reducing homelessness and efforts to
progressively realise the right to adequate housing.

Recommendation 16: Homelessness legislation should provide for
individuals receiving services to have access to: (a) internal complaint
mechanisms; (b) an external independent complaint mechanism; and (c) adequate
advice, advocacy and legal representation to ensure complaints mechanisms are
accessible and people have adequate support.

Recommendation 17: The Australian Government should ensure that action
under the White Paper is coordinated and integrated with other relevant major
national reforms, including the National Plan to Reduce Violence against Women
and their Children, which is currently being developed through COAG.

Recommendation 18: The Australian Government should consider
developing a National Housing Strategy, which sets clear benchmarks and
time-bound targets for all measures of the progressive realisation of the right
to adequate housing.

Recommendation 19: The Australian Government should give a high
priority to establishing a national review of public space laws that impact on
the rights of people who are homeless.

Recommendation 20: The Australian Government should ensure the conduct
of a national review of tenancy laws which has minimum rights protection as a
key term of reference. In particular, tenancy laws should be reviewed to ensure
that there are safeguards to prevent evictions into homelessness.

Recommendation 21: The Australian Parliament should enact a national
Human Rights Act that protects civil, political, economic, social and cultural
rights, including the right to adequate housing.

Recommendation 22: The Australian Government should refer to the
Australian Law Reform Commission for inquiry and report the question of how best
to strengthen, simplify and streamline national anti-discrimination laws. The
inquiry should specifically consider expanding the grounds of protection from
discrimination to include homelessness or social status.

Recommendation 23: The Attorney-General should give consideration to
declaring the ICESCR under section 47(1) of the Australian Human Rights
Commission Act.

Recommendation 24: The Australian Government should ratify the Optional Protocol to the ICESCR.

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4 What
is the relevance of human rights to reducing homelessness?

  1. The White Paper recognises that homelessness is not just a housing problem.
    It recognises that there are many drivers and causes of homelessness, including
    the shortage of affordable housing, long term unemployment, mental health
    issues, substance abuse and family and relationship breakdown. For women in
    particular, domestic and family violence is the main reason for seeking help
    from specialist homelessness
    services.[11]
  2. The White Paper acknowledges that a person experiencing homelessness is
    likely to experience poor health and difficulty participating in employment or
    education. The White Paper further recognises that a stable home provides safety
    and security as well as connections to friends, family and a
    community.[12]
  3. When a person faces homelessness, their human rights are at stake. A person
    who does not have a secure place to live may be hurt or sexually assaulted, have
    nothing or little to eat, and be unable to go to school or work. At the heart of
    being homelessness is a lack of control over daily
    life[13] and an absence of the
    essential necessities to live a dignified life. In human rights terms, the
    experiences of people facing homelessness may involve violation of a wide range
    of basic rights, including:

    • the right to an adequate standard of living, including the right to housing,
      food, clothing and to the continuous improvement of living conditions;
    • the right to the highest attainable standard of physical and mental
      health;
    • the right to social security;
    • the right of everyone to an education;
    • the right to liberty and security of person;
    • the right to vote;
    • the right to respect to private and family life;
    • the right to freedom of opinion and expression;
    • the right to enjoy culture and take part in cultural life;
    • the right to work;
    • the right to vote;
    • the right to non-discrimination; and
    • the right not to be subjected to cruel, inhuman or degrading
      treatment.[14]
  4. All of these basic rights are recognised internationally as human rights.
    Australia is a party to a number of international human rights instruments,
    including the International Covenant on Civil and Political Rights (ICCPR) and the ICESCR, which set out these rights. The Australian Government
    has an obligation to protect, respect and fulfil its international human rights
    treaty obligations.[15] See
    Appendix 10.1 for a full list of all relevant international human rights
    instruments.
  5. By ratifying these international human rights treaties, Australia has
    undertaken legal obligations to ensure that everyone in Australia enjoys those
    human rights. The Australian Government has a domestic commitment to enhance the
    protection of human rights, as evidenced by its current National Human Rights
    Consultation.[16]
  6. Relevant United Nations bodies have expressed concern that Australia has
    failed to meet its ongoing obligations to people facing homelessness.
  7. In May 2009, Australia’s human rights record was reviewed by the
    United Nations Committee on Economic, Social and Cultural Rights (CESCR). The
    CESCR reviews the extent to which the Australian Government has met its
    obligations under the ICESCR, including the obligation to progressively realise
    the right to adequate housing for all people in Australia.
  8. The CESCR expressed concern that the incidence of homelessness has increased
    in Australia in the past decade. The CESCR recommended that the Australian
    Government take effective measures to address homelessness, including
    implementing the recommendations made by the UN Special Rapporteur on Adequate
    Housing in 2006.[17]
  9. In 2006, the UN Special Rapporteur on Adequate Housing, Miloon Kothari,
    visited Australia and conducted an intensive investigation into the extent to
    which people had adequate housing. The Special Rapporteur found that there was a
    ‘serious national housing crisis in Australia, especially given that
    Australia is one of the wealthiest developed countries with a comparatively
    small population’.[18] He
    criticised Australia for failing to put in place effective measures to eliminate
    homelessness and for failing to address its housing crisis. In his Report to the
    United Nations Human Rights Council in May 2007, the Special Rapporteur said
    that

    Australia has failed to implement its international legal
    obligation to progressively realize the human right to adequate housing to the
    maximum of its available resources, particularly in view of its possibilities as
    a rich and prosperous
    country.[19]

  10. The Special Rapporteur recommended that Australian governments should
    address homelessness and its causes as a
    priority.[20]
  11. Accordingly, the Commission congratulates the Australian Government
    for:

    1. making the reduction of homelessness in Australia a national priority;
    2. appointing a national Minister for Housing;
    3. developing the White Paper which sets two ‘headline goals’ or
      targets for reducing homelessness in Australia, as follows:

      1. Halving homelessness by 2020; and
      2. Offering accommodation to all rough sleepers who need it by 2020;
        and
    4. committing to specific measures to achieve these targets within the time
      frames set.
  12. This Submission sets out recommendations to the Australian Government about
    how to meet our human rights obligations when developing homelessness
    legislation.
  13. The Submission urges the Australian Government to take a ‘human rights
    based approach’ to the legislation and associated efforts to reduce
    homelessness in Australia. As explained further below, implementing a human
    rights based approach in this area of national public policy will directly
    contribute to the Australian Government’s social inclusion agenda.

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5 What
is a ‘human rights-based approach’ to reducing
homelessness?

  1. There is growing recognition globally of the effectiveness of a human
    rights-based approach to addressing disadvantage. In particular, the connection
    between human rights, development and poverty reduction is well understood. For
    example, CESCR recognises that, ‘anti-poverty policies are more likely to
    be effective, sustainable, inclusive, equitable and meaningful to those living
    in poverty if they are based upon international human
    rights’.[21] There is a range
    of literature and research which provides evidence of the effectiveness of using
    a human rights-based approach to addressing
    disadvantage.[22]
  2. A human rights-based approach to homelessness implements the principles of
    empowerment, equality, dignity and accountability in all stages of legislation,
    policy design and service delivery.
  3. Key features of a human rights-based approach to public policy to address
    disadvantage include:

    Accountability and the Rule of Law: The duties to respect, protect and fulfil human rights must be supported by
    accountability mechanisms which are accessible, transparent and
    effective.[23] Both outcomes and
    processes should be monitored and evaluated, with measurable goals and
    targets.[24] Where governments fail
    to comply with human rights, people are entitled to an effective remedy for
    appropriate redress.[25]

    Universality, non-discrimination and equality: Laws and institutions
    that foster discrimination against specific individuals and groups must be
    eliminated. Laws and institutions need to pursue measures to ensure particularly
    disadvantaged groups enjoy equality of outcomes. Programmes must include focus
    on marginalized, disadvantaged, and excluded groups.[26]

    Participatory decision-making processes: A human rights-based
    approach requires active and informed participation by individuals affected in
    the formulation, implementation and monitoring of laws, policies and services.
    People should be recognised as key actors in their own development, rather than
    passive recipients of commodities and
    services.[27]

    The recognition of the interdependence of rights: Recognition that the
    enjoyment of some right may be dependent on, or contribute to, the enjoyment of
    others.[28]

  4. The White Paper sets out a strong basis for implementing a human
    rights-based approach to reducing homelessness.
  5. For example, the White Paper recognises that:

    a. individuals
    experiencing homelessness, or individuals at risk of homelessness, need to be
    involved in the planning and delivery of
    services[29] (Participatory
    Decision-Making Processes);

    b. that the rights and responsibilities of individuals and families need to
    be protected[30] (Accountability and
    the Rule of Law); and

    c. the ‘response to homelessness will be underpinned by legislation
    that guarantees that people who are homeless are treated with dignity and
    respect, and receive quality
    services’.[31] (Accountability
    and the Rule of Law).

  6. In the Commission’s view, a human rights approach to homelessness is
    the most effective means of helping ‘break the cycle’ of
    homelessness.
  7. Further, as explained in the next section, using a human rights-based
    approach to the development and implementation of new national homelessness
    legislation and related laws and policies will directly contribute to the
    Australian Government’s social inclusion agenda

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6 What
is the connection between social inclusion and human rights to addressing
homelessness?

  1. In the White Paper, the Australian Government states that it ‘is
    committed to using the framework of social inclusion to tackle
    disadvantage’.[32] Addressing
    the incidence of homelessness is one of the Australian Government’s Social
    Inclusion Priorities.[33]
  2. There is a significant degree of overlap between social inclusion and a
    human rights-based approach to tackling disadvantage. There is a particularly
    strong correlation between the principles guiding social inclusion and the
    minimum standards for the enjoyment of human rights. The 60 years of experience
    in applying human rights principles to addressing disadvantage offer practical
    and clear standards for addressing homelessness.
  3. Human rights principles focus on the empowerment of individuals to
    participate in their community and to control their own lives. They also focus
    on ensuring that all people enjoy minimum standards of treatment consistent with
    their inherent dignity and entitlement to respect. This approach is particularly
    important when public policy is endeavouring to support people experiencing
    extreme disadvantage.
  4. Similarly, the Australian Government’s Social Inclusion Principles set
    out three ‘Aspirational Principles’:

    • addressing disadvantage
    • increasing social, civil and economic participation
    • giving people a greater voice, combined with greater
      responsibility.[34]
  5. A human rights-based approach recognises that some people will have
    significant challenges in pursuing social, civil and economic participation due
    to disadvantage or discrimination, yet at all times each and every person must
    be treated with respect and allowed to maintain their dignity.
  6. Well-established human rights standards can provide policy makers with
    ready-made benchmarks when developing and implementing policy to prevent and
    address homelessness in Australia.
  7. For example the basic standards of adequacy for
    housing[35] and the basic tenets of
    effective participation[36] can
    assist policy makers to develop, implement and monitor homelessness legislation
    and policy.
  8. Thus this Submission highlights how the integration of human rights
    principles and standards can simultaneously bolster the Australian
    Government’s social inclusion agenda and help create a stronger national
    homelessness legislative and policy framework.

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7 How
can national homelessness legislation adopt a human rights-based approach?

  1. This section of the Commission’s submission sets out recommendations
    for how a human rights-based approach can be implemented within new national
    homelessness legislation.
  2. In summary, homelessness legislation can implement a human rights-based
    approach to homelessness by:

    • including the protection and promotion of human rights as a legislative
      objective, and an interpretative clause;
    • implementing the right to adequate housing;
    • providing for the effective participation of people with experience of
      homelessness in the development, delivery and assessment of policies and
      services;
    • ensuring that measures are in place to address the specific needs of people
      who are particularly vulnerable to homelessness;
    • establishing and funding mechanisms to effectively monitor progress in
      achieving the goals of the White Paper; and
    • providing accessible and effective remedies for breaches of human rights.

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7.1 Incorporating
human rights objectives and an interpretative clause

  1. The White Paper gives a priority to protecting the rights of individuals and
    families.[37] The recognition of
    people experiencing homeless as rights-holders is an important step towards
    ensuring dignity and respect, and that people are empowered to participate in
    community life. There is a growing consensus that responses to homelessness
    need to be grounded in respect for rights rather than in notions of charity or
    welfare.
  2. In the view of the OHCHR:

    The most fundamental way in which
    empowerment occurs is through the introduction of the concept of rights itself.
    Once this concept is introduced into the context of policymaking, the rationale
    of poverty reduction no longer derives merely from the fact that the people
    living in poverty have needs but also from the fact that they have rights -
    entitlements that give rise to legal obligations on the part of
    others.[38]

  3. The recognition of basic rights needs to be included in the national
    homelessness legislation.
  4. Currently, certain international human rights standards are recognised in
    the preamble to the Supported Accommodation Assistance Act 1994 (Cth)
    (SAA Act). The Act also provides that a form of Supported Accommodation
    Assistance Program (SAAP) agreement should establish ‘the means by which
    the civil, political, economic and social rights of people who are homeless may
    be preserved and protected by service
    providers’.[39]
  5. New homelessness legislation should build and improve upon the SAA Act.
    Homelessness legislation should explicitly recognise the human rights of people
    facing homelessness.
  6. In particular, the legislation should recognise the promotion and protection
    of human rights, including equality and non-discrimination, as one of its key
    objectives and as a guiding principle for the development and delivery of policy
    and services.
  7. Where appropriate, the legislation should recognise the rights of importance
    to specific individuals and groups who may be particularly vulnerable to
    homelessness.[40] For instance,
    article 3 of the Convention on the Rights of the Child requires that in
    ‘all actions concerning children, whether undertaken by private or public
    social welfare institutions, courts of law, administrative authorities or
    legislative bodies, the best interests of the child shall be a primary
    consideration’.[41]
  8. In order to protect the interests of children, it is important that
    homelessness legislation require that ‘the best interests of the
    child’ guide the development of policy and the delivery of homelessness
    services that affect children.
  9. As another example, the Declaration of the Rights of Indigenous
    Peoples
    is particularly important. For instance, article 21 provides that

    Indigenous people have the right, without discrimination, to the
    improvement of their ... [housing] conditions’ and that the government
    must ‘take effective measures, and, where appropriate, special measures to
    ensure continuing improvement of their economic and social conditions.
    Particular attention shall be paid to the rights and special needs of indigenous
    elders, women, youth and persons with
    disabilities.[42]

  10. The Commission sets out in section 7.4 how homelessness legislation can
    ensure that the specific needs of particularly vulnerable groups are met.
  11. In order to protect rights, homelessness legislation should also include an
    interpretative clause that requires the legislation to be interpreted in
    accordance with Australia’s international human rights obligations. This
    interpretative clause would be similar to the clause proposed by the Commission
    for a Human Rights Act in its Submission to the current National Human Rights
    Consultation.[43]
  12. The interpretative clause would mean that, when decisions are made under the
    homelessness legislation, decision-makers will be required to protect
    people’s human rights, so far as it is possible to do so consistently with
    the legislation. This clause would be an important way for the Australian
    Government to foster a human rights culture in this field of public policy as it
    would require that human rights be considered at every level of government
    decision-making under the legislation.
  13. Homelessness legislation should also include a clause which requires that
    the obligation to promote and protect human rights be included in any
    intergovernmental arrangements between Australian governments.
  14. This clause would mean that relevant bodies delivering services under
    homelessness legislation would need to demonstrate that, for example, adequate
    funding is available for services in order to enable basic rights to be
    respected, and appropriate complaints mechanisms exist (see section 7.5, below,
    about complaint mechanisms). The clause would mean that governments would need
    to ensure that any client charters of rights and service standards for service
    delivery under homelessness legislation comply with minimum rights standards.
  15. Importantly, Australian governments would need to ensure that they have a
    mechanism for program and service evaluation which will identify where policies,
    procedures and funding arrangements for services need to be altered in order to
    protect rights.

Recommendation 1: Homelessness legislation
should include as one its objectives: the protection and promotion of the human
rights of people facing homelessness.

Recommendation 2: Homelessness legislation should include as one of
its objectives to ensure that the specific needs of individuals and groups
vulnerable to homelessness are met.

Recommendation 3: Homelessness legislation should include an
interpretative clause which requires that the legislation be interpreted
consistently with human rights, so far as it is possible to do so consistently
with the purpose of the legislation.

Recommendation 4: Homelessness legislation should expressly require
that the obligation to promote and protect human rights be enshrined in any
intergovernmental arrangements between Australia governments, and, consequently,
in funding and service delivery frameworks with third party service
providers.

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7.2 Implementing
the right to adequate housing

  1. The above section of this Submission recommends that homelessness
    legislation should include the promotion and protection of human rights as a key
    objective.
  2. The Commission considers that homelessness legislation should use the key
    elements of the human right to adequate housing as the legislative framework for
    pursuing the human rights objects of the legislation.

(a) Key
elements of the right to adequate housing

  1. The right to adequate housing is outlined in article 11(1) of the International Covenant on Economic Social and Cultural Rights (ICESCR)[44]
  2. As a party to the ICESCR, the Australian Government is obliged
    to:

    take steps ... to the maximum of its available resources, with a
    view to achieving progressively the full realization of the rights recognized in
    the present Covenant by all appropriate means, including particularly the
    adoption of legislative
    measures.[45]

  3. The first element therefore is the obligation to ‘progressively
    realise’ this human right. This allows for the full realisation of the
    right to adequate housing over a period of time, taking resource constraints
    into account. This is very important, recognising that ‘the right to
    adequate housing’ does not mean that every person has a right to a house
    immediately.
  4. A second element of the obligation is that housing must be
    ‘adequate’. The notion of adequacy is also very important, and is
    explained in further detail at section 7.2(c).
  5. Thirdly, the ICESCR contains some ‘immediate obligations’. This
    includes the obligation to take ‘deliberate, concrete and targeted’
    steps towards progressively realising the rights recognised in the
    ICESCR.[46] The White Paper is an
    excellent example of implementing this obligation.
  6. Similarly, the obligation to ensure that rights are enjoyed without
    discrimination is of immediate
    effect.[47] This Submission deals
    in section 7.4 with the ways in which homelessness legislation can secure the
    principle of non-discrimination, ensuring that the specific needs of particular
    groups are addressed.
  7. The ICESCR also imposes a minimum core obligation to ensure the satisfaction
    of, at the very least, minimum essential levels of each of the rights contained
    in the ICESCR. This includes basic shelter and
    housing.[48] See section
    7.2(e).
  8. To justify a failure to meet these minimum core obligations on the grounds
    of a lack of available resources, the Australian Government 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’.[49]
  9. Importantly, a fourth element of the obligation on the Australian Government
    is to protect people from ‘forced evictions’ or, in other words,
    evictions into homelessness. This requires that individuals and families are not
    evicted into homelessness, except as a last resort. When an eviction into
    homelessness cannot be avoided and the person is unable to secure alternative
    housing, the Australian Government must ensure that all appropriate measures are
    taken, to the maximum of available to resources,’ to ensure that adequate
    alternative housing is made
    available.[50]

Recommendation 5: Homelessness legislation should include
the obligation to progressively realise the human right to adequate housing as a
key objective, and clearly set out the elements of this human right.

The rest of this section sets out how to insert the elements of the right to
adequate housing into substantive provisions of homelessness legislation.

(b) Progressive
realisation of the right to adequate housing

  1. As noted above, the Australian Government is under an obligation to
    progressively realise the right to adequate housing for all people in Australia.
    This means taking positive, concrete, targeted steps to reduce homelessness and
    increase adequate housing in Australia.
  2. The Australian Government recognises in its White Paper that homelessness
    services are under-funded to meet
    demand.[51] In order to reduce
    homelessness in Australia, the Commission recommends that a framework of
    progressive realisation of the right to adequate housing be set out in the
    substantive provisions of the homelessness legislation. The obligation of
    progressive realisation requires governments to demonstrate they are
    incrementally contributing to the realisation of human rights. Failure to act or
    provide incremental funding increases which are needed to reduce homelessness is
    not in compliance with the principle of progressive realisation.
  3. As part of a legislative framework of progressive realisation, the
    Commission recommends that homelessness legislation include key benchmarks and
    targets, including the ‘headline goals’ set out in the White Paper.
    Legislation would set out the concrete targets that the Australian Government
    has agreed to meet, and by when. Further, homelessness legislation should
    include provisions which require intergovernmental arrangements to include
    mechanisms to ensure, first, that existing funding and services are not be
    reduced and, secondly, that mechanisms are in place to expand funding to
    progressively reach the benchmarks and targets which have been set.
  4. In this respect, the Australian Government could have regard to the
    legislative model which has been developed in Scotland. Under the Housing
    (Scotland) Act 1987
    (UK), local authorities are under an obligation to
    provide particularly vulnerable individuals with emergency
    accommodation.[52] In 2003, the Act
    was amended to implement a 10-year goal of requiring local authorities to
    provide all persons who are homeless with temporary accommodation (ie by
    2012).[53]

Recommendation
6:
Homelessness legislation should include legislative safeguards to ensure
progressive realisation of the right to adequate housing, including: (1)
substantive provisions which set out key benchmarks and time-bound targets; and
(2) provisions which require intergovernmental mechanisms to increase funding
and services in order to meet targets on time.

(c) Adequate
housing – how to assess ‘adequacy’

  1. The CESCR has provided clear guidance in assessing whether housing meets the
    required standard of adequacy. Specifically, the CESCR states that the following
    factors must be taken into account in that assessment:

    • Legal security of tenure: People should possess a degree of security
      of tenure which guarantees legal protection against forced evictions, harassment
      and other threats, regardless of the type of tenure
    • Availability of services, materials, facilities and infrastructure:
      To be adequate, housing must contain certain facilities essential for health,
      security, comfort and nutrition.
    • Affordability: Housing costs should be at such a level that the
      attainment and satisfaction of other basic needs are not threatened or
      compromised.
    • Habitability: Housing must provide adequate space and protection from
      cold, damp, heat, rain, wind or other threats to health, structural hazards and
      disease vectors.
    • Accessibility to disadvantaged groups: Disadvantaged groups must be
      accorded full and sustainable access to adequate housing resources. Housing law
      and policy should take their special housing needs fully into account.
    • Location: Housing must be located as to allow access to employment
      options, health-care services, schools, child-care centre and other social
      facilities, and must not be built on or near polluted sites or sources of
      pollution.
    • Cultural adequacy: The construction of housing, including the
      building materials used and supporting policies must appropriately enable the
      expression of cultural identity and diversity of
      housing.[54]
  2. These international standards of adequacy are an important measure for the
    development and implementation of services and responses under homelessness
    legislation.
  3. In the White Paper, the Australian Government has committed to developing
    national accreditation, service standards and service charters for people who
    are homeless.[55] Homelessness
    legislation would require that standards of housing adequacy be embedded within
    national service standards, accreditation criteria and evaluation
    mechanisms.
  4. Further, the definition of homelessness should be directly linked to whether
    the person has access to adequate housing. The current definition in the SAA Act
    should be considered as a basis for developing a definition which reflects
    international standards regarding adequate housing:
  5. The SAA Act defines a person as being homeless ‘if and only if he or
    she has inadequate access to safe and secure housing’. It states that a
    person is taken to have inadequate access to safe and secure housing if the only
    housing to which he or she has access:

    1. damages, or is likely to damage a person’s health; or
    2. threatens a person’s safety; or
    3. marginalises the person through failing to provide access to adequate
      personal amenities or the economic and social supports that a home normally
      affords; or
    4. Places the person in circumstances which threaten or adversely affect the
      adequacy, safety, security and affordability of that
      housing.[56]

Recommendation 7: Homelessness legislation should
include minimum standards of adequacy that housing must meet. Funding for
services must be sufficient to ensure these standards are met.

Recommendation 8: The definition of homelessness in homelessness
legislation should refer to whether the person has access to adequate housing in
accordance with international standards, and should build upon the Supported
Accommodation and Assistance Act 1994
(Cth) (SAA Act) definition.

(d) Prohibition
on ‘forced evictions’ (in other words, evictions into
homelessness)

  1. As noted in the Green Paper, forced evictions can be a key factor in leading
    people into homelessness.[57] The
    Commission notes that forced evictions are considered to be a violation of a
    wide range of human rights under international law. Forced evictions usually
    affect the poorest and most economically vulnerable and marginalised people in
    society.[58] The CESCR has
    identified forced evictions, in particular, as a violation of the right to
    adequate housing.[59]
  2. As recommended in the Commission’s submission to the Green Paper,
    homelessness legislation should provide that evictions into homelessness from
    accommodation services only occur as a matter of last resort, and that where an
    eviction occurs all appropriate measures are taken to secure alternative
    accommodation. Funding would need to be made available to meet this human rights
    standard.

Recommendation 9: Homelessness legislation should
include a substantive provision which prohibits ‘forced evictions’
(in other words, evictions into homelessness) from services funded under the
legislation, and ensure institutional and funding arrangements under the
legislation support services to meet this government obligation.

(e) Immediate
obligations in respect of the provision of adequate housing

  1. It is arguable that, in the Australian context, the provision of emergency
    housing to people who are homeless is an immediate obligation, noting that the
    obligation to progressively realise adequate housing is about providing housing
    that meets all the standards of adequacy. Emergency housing is about meeting the
    most immediate basic requirements of shelter and essential necessities such as
    power and water.[60]
  2. At a minimum, the homelessness legislation should incorporate the headline
    goal of the White Paper and insert additional key targets for tracking progress
    on being able to offer emergency accommodation to every homeless person. See
    earlier Recommendation 6, above.

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7.3 Effective
participation by people with experience of homelessness

  1. Enabling the participation of people in decision-making that will affect
    them is a key feature of a human rights-based
    approach.[61] The Australian
    Government’s Social Inclusion
    Principles[62] and the White
    Paper[63] acknowledge that the
    participation of people in decisions which affect them is an important part of
    achieving social inclusion.
  2. The Commission attaches to this Submission additional key international
    standards and sources that set out the importance of participation from a
    development, poverty reduction and international human rights perspective (see Appendix 9.3).
  3. The United Nations Office of the High Commissioner of Human Rights has
    identified key stages of the decision-making processes in public affairs when
    participation by people affected should be incorporated. These stages are:

    • assessing what people want to improve or change;
    • choosing policy responses, when decisions are made regarding the allocation
      of resources and conflicts of interest (or disagreement as to how those
      resources are allocated) are solved;
    • implementing agreed policies;
    • monitoring, assessment and
      accountability.[64]
  4. A human rights-based approach to homelessness would therefore involve the
    effective participation of people who are facing homeless at each stage of
    policy development and service delivery.
  5. There are a number of ways in which homelessness legislation can enhance the
    effective participation by people with experience of homelessness in the
    development, implementation, monitoring and evaluation of services and
    policies.
  6. The principle of meaningful and effective participation should be included
    within homelessness legislation, with the objective of ensuring that this
    principle is implemented at all four policy stages outlined above.
  7. National policy making, implementation, monitoring and evaluation process
    should also incorporate mechanisms for participation by people who have
    experienced homelessness. For example, the National Council on Homelessness,
    which will play a key role in providing advice to the Australian Government
    about the ongoing implementation of the White Paper, could be funded to
    establish participatory mechanisms to inform its work.
  8. Further, to implement this principle at the level of service delivery,
    services established and funded under homelessness legislation should be
    required to include participatory processes in their governance and evaluation
    arrangements, with funding specifically identified for sustaining the meaningful
    participation by people who have been homeless.
  9. These participatory processes should allow input from a variety of people
    with experience of homelessness and representatives of groups that are
    particularly vulnerable to homelessness.
  10. Models for such engagement mechanisms at service delivery level already
    exist. These include consumer advisory groups, consumer fora and other consumer
    participation strategies such as surveys and organisational
    development.[65]
  11. For example, in Victoria, the PILCH Homeless Persons’ Legal Clinic has
    had a Consumer Advisory Group (CAG) since 2006. Comprised of up to 8 people who
    have all experienced homelessness, the CAG’s role is ‘to provide
    guidance and advice, and make recommendations, to the Clinic to enhance and more
    effectively target its service delivery, law reform, advocacy, education and
    community development
    activities’.[66]
  12. Similarly, the Homeless Advocacy Advisory Group, established in NSW by the
    Homeless Persons’ Legal Service, provides advice to the Homeless
    Persons’ Legal Service on how best to ensure that people experiencing
    homelessness can effectively participate in policy decisions that involve
    them.[67]
  13. In a further example, the Council to Homeless Persons has developed a
    Consumer Participation Resource Kit for housing and homelessness assistance
    services. It provides these services with ‘information on ways to engage
    with service users, to listen to their views, and to develop strategies based on
    their advice with the aim of improving
    services’.[68] The Kit
    comprises factsheets on the various stages of consumer participation, including
    consumer participation plans and Consumer Advisory Groups.
  14. To ensure that people experiencing homelessness are able to fully
    participate, Australian governments must adequately fund mechanisms for
    participation. This should include reimbursement for the time and expertise
    offered by participants in ongoing consultative
    processes.[69] It may also be
    appropriate to provide development and training support for services regarding
    effective participatory mechanisms.

Recommendation 10:
Homelessness legislation should include participation by people who are to
benefit from the legislation as a key objective.

Recommendation 11: The National Council on Homelessness could be set
up in homelessness legislation as an independent, transparent consultation
mechanism and be required to establish participation mechanisms for people with
direct experience of homelessness.

Recommendation 12: Homelessness legislation should require that
national, state and territory and service level decision-making processes
incorporate participatory mechanisms for people who have experience of
homelessness, including representation from particularly vulnerable groups.
Specific funding should be made available for services to develop and sustain
these participatory processes.

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7.4 Meeting
the specific needs of people who are vulnerable to homelessness

  1. In the White Paper, the Australian Government recognises that ‘[t]he
    homelessness response needs tailored measures for different groups such as
    children, older people, younger people and Indigenous
    people’.[70]
  2. Similarly, the Australian Government’s Social Inclusion Principles
    acknowledge that ‘[f]or some members of the Australian population
    experiencing, or at immediate risk of, significant exclusion, mainstream
    services may not be sufficient or appropriate to mitigate against
    exclusion’.[71]
  3. The obligation to put in place measures to address specific needs is a key
    component of a human rights-based approach to reducing homelessness.
    Homelessness policy must secure universality, non-discrimination and equality of
    rights for all peoples affected.
  4. One of the immediate obligations on Australia as part of the right to
    adequate housing is to ensure that legislative and policy responses do not
    discriminate against people who are particularly vulnerable to
    homelessness.[72]
  5. In order to ensure that rights can be exercised without discrimination,
    Australia should eliminate discrimination both formally and substantively.
  6. ‘Formal’ equality assumes that equality is achieved if a law or
    policy treats all people in a neutral manner. ‘Substantive’
    equality:,

    is concerned, in addition, with the effects of laws,
    policies and practices and with ensuring that they do not maintain, but rather
    alleviate, the inherent disadvantage that particular groups
    experience.[73]

  7. There are several ways in which homelessness legislation could be framed to
    ensure that measures address the specific needs of particularly disadvantaged
    groups.
  8. First, homelessness legislation should require that all research, reporting,
    monitoring and evaluation frameworks include disaggregated data collection and
    analysis of the outcomes which are being achieved for vulnerable groups.
  9. Secondly, the legislation should require that intergovernmental frameworks
    under the legislation include provision for how the specific needs of vulnerable
    groups will be addressed to achieve substantive equality in reducing
    homelessness. The Commission has previously highlighted specific needs of some
    vulnerable groups in relation to housing and homelessness in its Submission to
    the Green Paper.[74] Vulnerable
    groups include women and their children, youth and older persons, Indigenous
    peoples, people from culturally and linguistically diverse groups, migrants and
    refugees, people with disability, people with mental health issues, and people
    leaving correctional facilities. The White Paper also recognises the
    differential experiences of particular groups and the need for measures to meet
    their specific needs.[75] For
    example, lower levels of retirement savings, a likelihood of early retirement
    and longer life expectancy places women at greater risk of poverty and a sharp
    decline in their standard of living during
    retirement.[76]
  10. It is outside the scope of this Submission to set out the full measures
    required to achieve equality in outcomes under homelessness legislation.
    However, the Commission emphasises that it is crucial that homelessness
    legislation actively promotes a substantive equality approach to reducing
    homelessness, so that vulnerable groups receive specific appropriate services
    and support. For example, homelessness legislation or intergovernmental
    arrangements should:

    • recognise children and young people as a specific group within homelessness
      legislation, distinct from their parents and carers. In addition, Australian
      governments should fund child and youth-specific
      services.[77]
    • fund safe, secure and affordable housing, as well as refuges and crisis
      services, for women. This recognises the particular vulnerability of women to
      homelessness and inadequate and exploitative housing due to their susceptibility
      to violence and economic
      insecurity.[78]
    • ensure that housing and support services are fully accessible for people
      with disabilities and people with mental health
      issues.[79]
    • ensure that government-funded housing and support services meet the
      requirements of cultural adequacy for Indigenous peoples, and people from
      culturally and linguistically diverse backgrounds, migrants and
      refugees.[80]
    • ensure minimum standards of acceptable and adequate housing need
      to accommodate the often larger size of Indigenous or migrant families.
    • support holistic and culturally adequate responses to homelessness for
      Indigenous peoples. This includes supporting community-controlled services that
      provide culturally appropriate accommodation support and assistance to
      Aboriginal and Torres Strait Islander women and children experiencing, or at
      risk of, family violence.[81]
    • ensure that the housing needs of persons leaving detention facilities and
      corrective services are addressed, and that people are not leaving detention
      facilities or corrective services into
      homelessness.[82]

Recommendation
13:
Homelessness legislation should require that all research, reporting,
monitoring and evaluation frameworks include disaggregated data collection and
analysis of the outcomes being achieved for vulnerable groups. Vulnerable groups
include women and their children, youth and older persons, Indigenous peoples,
people from culturally and linguistically diverse groups, migrants and refugees,
people with disability, people with mental health issues, and people leaving
correctional facilities.

Recommendation 14: Homelessness legislation should require that
intergovernmental frameworks include provision for how the specific needs of
vulnerable groups will be addressed to achieve substantive equality in reducing
homelessness, including specific benchmarks and time-bound targets.

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7.5 Effective
monitoring mechanisms

  1. In section 7.2(c), above, the Commission has recommended that key benchmarks
    and targets, including the headline goals in the White Paper, be inserted into
    homelessness legislation.
  2. CESCR regards effective monitoring of the situation with respect to housing
    as an obligation of immediate effect under the
    ICESCR.[83] Homelessness legislation
    should provide for mechanisms to ensure that Australia’s progress in
    realising the rights of people experiencing homelessness, including the right to
    adequate housing, is monitored effectively.
  3. The monitoring mechanisms should be transparent, independently verifiable
    and linked to our international human rights obligations. In particular, the
    mechanisms should measure Australia’s progress in implementing the right
    to adequate housing for particularly vulnerable groups.
  4. The Prime Minister has indicated that the National Council on Homelessness
    (the Council) ‘will take a leadership role through independently
    monitoring the White Paper goals and
    targets’.[84]
  5. To ensure that it is able to hold the Australian government accountable for
    its commitments to reducing homelessness, the Council should be permanent,
    transparent and supported by legislation. It should also be adequately
    resourced.
  6. The Council is to report annually to the Prime
    Minister’.[85] To promote
    transparency and accountability, the findings, reports or recommendations of the
    Council should be made public. Homelessness legislation should require that
    reports of the Council be tabled in Parliament within a set period after they
    are received by the Prime Minister. Homelessness legislation should further
    require Parliament to respond to the reports within a set period.
  7. Further, monitoring of progress to reduce homelessness in Australia should
    not be limited to the role of the Council.
  8. Homelessness legislation could provide for the appointment of a specialist
    independent Commissioner on Homelessness and Adequate Housing who is resourced
    to monitor and report on the enjoyment of human rights by people experiencing
    homelessness or at risk of homelessness.
  9. Alternatively, or in addition, the mandate and resources of the Australian
    Human Rights Commission could be expanded to enable the Commission to actively
    monitor the promotion, protection and fulfilment of the human right to adequate
    housing (for further discussion, see section 8.3(e), below).
  10. Any monitoring processes should be informed by timely and disaggregated
    data. Data collection and analysis is essential for assessing the progressive
    realisation of rights, including the ability of marginalised and excluded groups
    to enjoy their rights.[86] As noted
    above in section 7.4, data collection and analysis needs to ensure that the
    outcomes for particularly vulnerable groups are tracked.
  11. The White Paper acknowledges that Australia’s national data collection
    and analysis systems are inadequate to monitor progress towards achieving the
    Government’s targets for reducing homelessness. The White Paper sets a
    foundation for a promising national research
    strategy.[87] It is imperative that
    Australian governments move quickly to address the gaps in data collection,
    analysis and research which are essential for tracking progress.
  12. As noted above in section 7.3, it is also important that those who are
    directly affected by policies are able to participate in monitoring and
    evaluation processes.[88] This could
    be done by incorporating measurements of client satisfaction with
    services and client outcomes into the case management practices of services.
    Past pilot studies conducted or commissioned by the Commonwealth Department of
    Family and Community Services found general support among Supported
    Accommodation and Assistance Program (SAAP) clients and SAAP agencies for the
    introduction of client satisfaction measures into SAAP and positive feedback on
    the value of outcome
    measurement.[89]

Recommendation
15
: Homelessness legislation should provide for transparent and
independently verifiable mechanisms to monitor progress on the Australian
Government’s targets for reducing homelessness and efforts to
progressively realise the right to adequate housing.

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7.6 Accessible
and effective remedies

  1. The provision of effective remedies for breaches of human rights is a
    fundamental requirement of international human rights
    law.[90] The failure to provide
    adequate remedies ‘may itself amount to a violation of international
    obligations regarding economic, social and cultural
    rights’.[91]
  2. However, the major human rights treaties that Australia has agreed to uphold
    have not been fully implemented into Australian
    law.[92] This includes the
    ICESCR.
  3. In some circumstances, remedies may be available for breaches of the right
    to adequate housing in Australia. For example, an eviction conducted without
    proper process may be challenged in a court or residential tenancies tribunal.
    However, in many instances, processes for seeking effective remedies for
    breaches of economic, social and cultural rights have not yet been established.
  4. The CESCR has commented upon the failure of Australia to wholly implement
    the ICESCR into domestic law, such that ‘its provisions cannot be invoked
    before a court of law’.[93]
  5. Individuals should be able to make complaints and enforce entitlements in
    respect of the provision of housing and housing-related assistance. The system
    of enforceable rights should include provision for remedies where those rights
    have not been complied with.
  6. Additional funding should be provided to ensure that people who need it have
    access to adequate advice, advocacy or legal representation, including through
    community legal centres, legal aid bodies and other advocacy services.

(a) Internal
complaint procedures

  1. The SAA Act provides that a key feature of a formal SAAP agreement is to
    safeguard clients’ rights and deal with clients’ responsibilities.
    The SAA Act requires this to be achieved through the following
    measures:

    1. development of grievance and appeals procedures; and
    2. development of charters of clients’ rights and
      responsibilities.[94]
  2. It is important that homelessness legislation provides for grievance and
    appeals procedures that are accessible and provided free of charge to people
    experiencing homelessness.
  3. Further, the Australian Government should ensure that services that advocate
    on behalf of people experiencing homelessness are adequately funded.

(b) External
complaint procedures

  1. In addition to internal complaints mechanisms, homelessness legislation
    should provide for an individual to have access to an external independent
    complaint mechanism.
  2. The Commission does not make a specific recommendation about the preferred
    form of external independent complaint mechanisms. Options may include making a
    complaint to: a state and territory ombudsman; the proposed Commissioner for
    Homelessness and Adequate Housing; or to the Australian Human Rights
    Commission.

Recommendation 16: Homelessness legislation
should provide for individuals receiving services to have access to: (a)
internal complaint mechanisms; (b) an external independent complaint mechanism;
and (c) adequate advice, advocacy and legal representation to ensure complaints
mechanisms are accessible and people have adequate support.

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8 What
else needs to be done? Additional reforms for achieving an integrated, holistic
response to homelessness

  1. This section proposes ways in which action under the White Paper, including
    proposed homelessness legislation, can be integrated and coordinated with other
    relevant legal, policy and institutional arrangements to ensure a coordinated,
    holistic response to reducing homelessness based on protection of rights.
  2. It highlights where reforms may be required in other areas of public policy
    in order to complement action under the White Paper, and contribute to reducing
    homelessness in Australia.

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8.1 Existing
National Reforms

  1. The Commission welcomes the White Paper’s commitment to coordinate
    action under the White Paper with other relevant national reforms, including the
    Closing the Gap Package for Indigenous Australians, the National Mental Health
    and Disability Employment Strategy, and the National Child Protection
    Framework.[95]
  2. The Commission notes that the Australian Government is also currently
    developing its National Plan to Reduce Violence against Women and their
    Children. The Australian Government has referred development of the National
    Plan to the Council of Australian Governments (COAG). The National Plan will
    draw on the work of the former National Council to Reduce Violence against Women
    and their Children, and that Council’s Report to the Australian
    Government, A Time for
    Action.[96]
  3. The Commission has strongly welcomed this important national reform agenda
    to reduce violence against women and their children. It has also urged
    Australian Governments to ensure through COAG that adequate funding for the
    National Plan is secured. Commissioner Broderick has said:

    It is
    critical that the implementation of the National Plan to Reduce Violence against
    Women and their Children is regularly monitored to make sure it is working, and
    that targets and benchmarks are set to measure progress in the reduction of
    violence against women.

    State and territory governments must also make a strong commitment to working
    collaboratively with the federal government to deliver the report’s
    recommendations.[97]

  4. The Commission welcomes the White Paper’s inclusion of action to
    support women and their children who have experienced
    violence.[98]
  5. The Commission urges Australian Governments to ensure that action under the
    White Paper is coordinated with the national reform process to develop,
    implement and monitor the proposed National Plan to Reduce Violence against
    Women and their Children.
  6. For example, safe and secure housing is crucial to efforts to support women
    and their children to stay at home, rather than leave following violence. At the
    present time, there is no national funding arrangement for security upgrades to
    the homes of women and their children who have experienced violence and remain
    at risk.[99] The White Paper has
    made a welcome commitment to developing access to security measures to enable
    women to stay in their homes.[100] This measure needs to be integrated with action under the National Plan to
    Reduce Violence Against Women and their Children that will also be needed to
    enable women to stay at home.

Recommendation 17: The
Australian Government should ensure that action under the White Paper is
coordinated and integrated with other relevant major national reforms, including
the National Plan to Reduce Violence against Women and their Children, which is
currently being developed through COAG.

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8.2 The
Need for a National Housing Strategy

  1. The Commission welcomes the White Paper’s framework for a national
    homelessness response, which sets clear benchmarks and targets to 2020. However,
    it considers that the Australian Government should now develop a National
    Housing Strategy which also sets benchmarks and targets for expanding affordable
    housing options in Australia.
  2. A National Housing Strategy would provide a comprehensive framework for
    securing adequate housing for all people in Australia, incorporating action
    under the White Paper.
  3. In the Commission’s view, there has historically been a lack of
    coordination between housing public policy and homelessness services and support
    systems in Australia. Whilst the causes of homelessness are complex and
    multi-faceted, one key driver is a lack of affordable housing.
  4. In 2006, the UN Special Rapporteur on Adequate Housing found
    that

    Australia lacks a clear consistent, long-term and holistic
    housing strategy. There is no national legislative and policy framework against
    with the outcomes of government programmes and strategies can be evaluated to
    assess to what extent Governments are progressively realising the human right to
    adequate housing for all. Current indicators from diverse sources show
    regressive results: reductions in public housing stock, soaring private rental
    rates, and acknowledged housing affordability crisis and no real reduction in
    the number of homeless.[101]

  5. The UN Special Rapporteur recommended that

    Australia should
    adopt a comprehensive and coordinated national housing policy, and develop a
    clear, consistent, long-term and holistic housing strategy that addresses
    structural problems, is efficient, and embodies an overarching human rights
    approach, with the primary task of meeting the needs of the most vulnerable
    groups.

    All interested parties should be genuinely consulted in designing policies,
    strategies and planning in housing. To this end, the Government should engage in
    a constructive manner with the civil society and advocacy
    groups.[102]

  6. The Australian Government is to be congratulated for the White Paper, and
    appointing a Minister for Housing in 2007. Initiatives to expand the capacity
    for home ownership and access to affordable rental properties are also welcome.
  7. The White Paper now provides for some action to expand social housing,
    assistance to people in the private rental market, support and accommodation for
    people who are homeless and assistance with home
    purchasing.[103]
  8. However, Australia still lacks clear benchmarks and targets for
    progressively expanding affordable housing, developed through an evidence-based
    assessment of current and future housing needs in light of Australia’s
    demographic change.
  9. For example, older women are likely to increasingly be at risk of
    homelessness, and this situation may only become worse in future decades with
    the aging population in
    Australia.[104]

Recommendation 18: The Australian Government should consider
developing a National Housing Strategy, which sets clear benchmarks and
time-bound targets for all measures of the progressive realisation of the right
to adequate housing.

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8.3 Integrating
other legal and human rights systems with the homelessness
legislation

  1. This Submission has already addressed how protection of the basic rights of
    people facing homelessness can be incorporated into proposed homelessness
    legislation.
  2. This section of the Submission sets out other required legislative and human
    rights reforms to better protect the basic rights of people facing homelessness
    and ensure that measures under homelessness legislation are ‘linked
    up’ with other laws and human rights frameworks.
  3. For example, people requiring services provided under homelessness
    legislation will often have just been evicted from a private tenancy. People who
    cannot get emergency accommodation may be living in public places. People who
    are homeless may be dealing with Centrelink and federally-funded health,
    education, training and employment services.
  4. It is vital that all public authorities – not just specialist
    homelessness services – operate together to help to reduce homelessness in
    Australia.
  5. To create an integrated, holistic response to reducing homelessness whilst
    protecting basic rights, the Australian Government should:

    • review existing laws that impact upon people experiencing homelessness,
      including eviction laws and public space laws, to ensure that uniform minimum
      standards of treatment are secured;
    • enact a Human Rights Act;
    • prohibit discrimination on the grounds of homelessness or social
      status;
    • ratify the Optional Protocol to the International Covenant on Economic,
      Social and Cultural Rights
      (Optional Protocol to the
      ICESCR);[105] and
    • expand the mandate and capacity of the Australian Human Rights Commission.

(a) Review
of public space laws

  1. A strong commitment to reducing homelessness in Australia is a promising
    start. But eliminating homelessness will not be easy or quick.
  2. While primary homelessness continues to
    occur,[106] public space laws have
    a disproportionate impact on persons people living ‘rough’ or
    sleeping in public places.
  3. Commonly referred to as ‘quality of life’
    laws,[107] these laws criminalise
    activities like sleeping, sitting, storing personal belongings, urinating and
    standing in public spaces – activities which, in and of themselves, are
    not criminal activities. ‘Move on’ powers have a similar effect. The
    enforcement of these laws tends to discriminate against homeless individuals
    because they criminalise conduct which people experiencing homelessness
    generally have no choice but to conduct in public places because of their
    homeless status.[108] These laws
    have the effect of criminalising homelessness and thus violate their right to
    freedom from cruel, inhuman or degrading treatment. Public space laws have a
    disproportionate impact on people who are particularly vulnerable to
    homelessness, including Indigenous people and young people
  4. For example, in Darwin, the Darwin City Council has a by-law which prohibits
    sleeping in public space between sunset and sunrise. The by-law is enforced on a
    daily basis, typically involving people being woken up and ‘moved
    on’. Yet, Darwin also has the highest rate of homelessness of any capital
    city in Australia. Indigenous people are disproportionately represented in this
    population.[109]
  5. At the present time, the Alice Springs Town Council is proposing to
    introduce further public space by-laws which are likely to have a
    disproportionate impact on people experiencing primary
    homelessness.[110] Alice Springs
    has a high rate of
    homelessness[111] and lacks
    adequate low cost culturally appropriate housing
    options.[112]
  6. Regrettably, the White Paper is silent on the need to protect people
    experiencing homelessness from policing of public space laws.
  7. The UN Special Rapporteur on Adequate Housing expressed concern about the
    use of public space laws in Australia against people living in public places,
    and called for these laws to be reviewed to ensure that adequate human rights
    protections are in place.[113]
  8. The Government’s homelessness strategy needs to include a commitment
    to the review of public space laws and their impact on people who are
    homeless.[114] For example, public
    space laws could be amended to include defences for homeless individuals which
    allow them to avoid the imposition of criminal sanctions. The defence could
    provide that a person who is homeless is entitled to use public space without
    interference unless there is a reasonable risk that the person’s conduct
    will cause harm to another
    person.[115] In addition, a
    ‘Charter of Rights’ could be established to limit police powers,
    allowing for the protection of the rights of public space users to access public
    spaces without fear of intimidation or harassment by police
    officers.[116]

Recommendation
19:
The Australian Government should give a high priority to establishing a
national review of public space laws that impact on the rights of people who are
homeless.

(b) Review
of tenancy legislation

  1. As noted in section 7.2(d), the right to adequate housing includes a
    prohibition from ‘forced evictions’ or evictions into homelessness.
    In Australia, evictions are a key factor in the incidence of
    homelessness.[117] Evictions are
    the main reason that couples and couples with children seek assistance from
    homelessness support
    services.[118]
  2. According to Australia’s commitments under the ICESCR, the Australian
    Government has an obligation to take all appropriate measures, to the maximum of
    the available resources, to ensure that adequate alternative housing or
    resettlement is available to those who are forcefully evicted and unable to
    provide for themselves.[119] As
    proposed in section 7.2(d) and Recommendation 9, homelessness legislation
    should provide for protection from forced evictions with respect to housing
    services funded under the legislation.
  3. However, evictions into homelessness from private rentals will not be
    prevented by this measure.
  4. Australia has been criticised by the UN Special Rapporteur on Adequate
    Housing for not having adequate legal protection in place to prevent forced
    evictions.[120] Australia does
    not have national standards for tenancy laws which could help ensure forced
    evictions do not occur. At present, state and territory tenancy laws can permit
    landlords to evict tenants with inadequate safeguards to reduce the risk that
    individuals are evicted into
    homelessness.[121]
  5. The White Paper proposes that the Australian Government review the impact of
    tenancy laws on homelessness.[122] This is a welcome development. The review should include a recommendation that
    all eviction laws comply with our minimum human rights obligations.
  6. For example, in South Africa, where the right to adequate housing is
    protected in the Constitution, the High Court has ruled that where a tenant will
    become homeless if evicted by a private landlord, the court may join the
    responsible government department to the eviction proceedings to hear
    submissions from the government about arrangements to rehouse the
    tenant[123]. The Constitutional
    Court has also ruled that, in appropriate cases, the responsible government may
    be ordered to compensate a private landlord if an eviction needs to be delayed
    until re-housing can be
    arranged.[124]
  7. This kind of procedure in our tenancy tribunals could significantly improve
    coordination of services and ensure that there is an appropriate balancing of
    the competing interests of private landlords and vulnerable tenants, especially
    when children are involved. This would also help to prevent people being made
    homeless, and reduce both the personal costs to those facing homelessness and
    the flow-on costs to government agencies and
    services.

Recommendation 20: The Australian Government should
ensure the conduct of a national review of tenancy laws which has minimum rights
protection as a key term of reference. In particular, tenancy laws should be
reviewed to ensure that there are safeguards to prevent evictions into
homelessness.

(c) The
need for a Human Rights Act

  1. The Australian Government is currently conducting a National Human Rights
    Consultation.[125] The Committee
    conducting the Consultation is due to report to the Australian Government by 30
    September 2009.
  2. The Commission has made two submissions to the
    Consultation.[126] This section
    summarises the Commission’s submissions which are relevant to improving
    protection of the human rights of people facing homelessness.
  3. The Commission has recommended to the Consultation that Australia should
    enact a Human Rights Act. One effect of a Human Rights Act would be to provide a
    national framework for helping to ensure that government affords people their
    human right to dignity and respect at all times.
  4. A Human Rights Act would also help ensure that the human rights of people
    facing homelessness, are considered at every stage of federal law and
    policy-making and service delivery.
  5. The Commission recommended that a Human Rights Act should explicitly
    recognise and protect the civil, political, economic, social and cultural rights
    contained in the ICCPR and ICESCR. A Human Rights Act should include core
    economic, social and cultural rights such as the right to an adequate standard
    of living, including adequate food, clothing and housing.

(i) What could be the key features of a Human Rights
Act?

  1. The Human Rights Act model proposed by the Commission would:

    1. require the government to consider human rights, including the right to
      adequate housing, from the earliest stages of the development of laws and
      policies;
    2. require parliamentary scrutiny of new legislation to assess its
      compatibility with human rights obligations, including the right to adequate
      housing. This could include scrutiny by a parliamentary committee and a
      requirement that new Bills be accompanied by a ‘human rights impact
      statement’ when introduced into Parliament;
    3. require legislation to be interpreted consistently with human rights,
      including the right to adequate housing;
    4. require Parliament to be notified, and to publicly respond, if a law is
      found to be inconsistent with human rights;
    5. require public authorities to act in a way that is compatible with human
      rights and to give proper consideration to human rights in decision-making; and
    6. provide for an effective remedy when a public authority breaches human
      rights. Effective remedies are further discussed in section 7.6 of this
      Submission.[127]
  2. The model of a Human Rights Act proposed by the Commission does not allow
    courts to strike down laws. Parliament would retain the final say over
    legislation. However, a Human Rights Act would require the Australian Parliament
    to consider human rights when making decisions and to publicly justify decisions
    to limit rights. This would improve accountability and transparency in
    government decision-making, a key element of taking a human rights-based
    approach to addressing disadvantage.

(ii) How could a Human Rights Act improve responses to
homelessness?

  1. The requirement in a Human Rights Act that the government consider human
    rights at every stage of law and policy making could help ensure that laws do
    not disproportionately impact upon people who are homeless, or place people at
    further risk of homelessness.
  2. A Human Rights Act would also require that public authorities consider and
    respect human rights when making decisions and delivering services. This should
    include ministers, departments, government agencies and any other organisations
    acting on behalf of the government.
  3. This could help to improve the policies, procedures and services that many
    people who are homeless or are at risk of homelessness encounter daily.
  4. This framework can also help to ensure that all people are afforded respect
    by public authorities. Experience in the United Kingdom shows that the Human
    Rights Act
    1998 (UK) ‘has led to a shift away from inflexible
    or blanket policies towards those which are capable of adjustment to recognise
    the circumstances and characteristics of
    individuals’.[128] This, in
    turn, can improve the effectiveness of policies and service delivery.
  5. The Commission considers that if Australia had a Human Rights Act, public
    authorities would become more conscious of the impact their decisions have on
    the rights of individuals and the need to respect those rights. This greater
    awareness and understanding could prevent many human rights breaches from
    occurring.
  6. It would be imperative that government-funded service providers be
    adequately resourced to fulfil obligations under a Human Rights Act. This should
    include appropriate funding and training.

Recommendation 21:
The Australian Parliament should enact a national Human Rights Act that protects
civil, political, economic, social and cultural rights, including the right to
adequate housing.

(d) Prohibiting
discrimination on the grounds of homelessness or social status

  1. At present, Australia’s national anti-discrimination laws prohibit
    discrimination on the grounds of race, sex, disability and age and related
    characteristics. Discrimination on the ground of homelessness or social status
    is not prohibited.
  2. The Commission considers that discrimination on these grounds, including in
    the provision of accommodation and other goods and services, can perpetuate
    disadvantage and prolong homelessness. In June 2008, the Final Report of the
    Victorian Equal Opportunity Review (‘the Victorian Report’)
    recommended that homelessness be included as a protected attribute in
    Victoria’s equal opportunity
    legislation.[129] Among the
    submissions it discussed, the Victorian Report noted the submission of the PILCH
    Homeless Persons’ Legal Clinic that discrimination is not simply another
    obstacle or challenge for vulnerable people. It can lead to and entrench
    homelessness, unemployment and
    poverty.[130] In the Victorian
    Report’s view, there is sufficient evidence to suggest that discrimination
    on the basis of homelessness is occurring in Victoria, and the size of the
    problem is significant. The impact of the discrimination on this large and
    particularly vulnerable group can be severe, further entrenching
    discrimination.[131]
  3. The Victorian Report also noted that other jurisdictions had legislated in a
    similar way. For example, the Human Rights Act 1993 (NZ) prohibits
    discrimination on a number of grounds, including ‘employment
    status’. Employment status is defined to mean being unemployed, or being a
    recipient of a benefit under the Social Security Act 1964 (NZ), or an
    entitlement under the Injury Prevention, Rehabilitation and Compensation Act
    2001
    (NZ). The New Zealand Human Rights Commission has indicated it prefers
    a broad interpretation of ‘unemployment’ for the purposes of the
    Human Rights Act.[132]
  4. The Commission notes that Lynch and Stagoll have outlined relevant examples
    of ‘employment status’ cases in New
    Zealand.[133] For example, in K
    v J
    ,[134] the complainant (K),
    a social security beneficiary, made a complaint that her dentist refused to
    treat where when he was told that payment would be met by the Department of
    Social Welfare. Lynch and Stagoll note the evidence was that the dentist refused
    payment because he believed that the Department should not have to pay for what
    he considered to be non-urgent dental work. K subsequently went to another
    dentist, who noted that she had evidence of acute toothache. The New Zealand
    Human Rights Commission found that the dentist had discriminated against K
    because of her beneficiary status, and had treated her rudely and
    dismissively.[135]
  5. The Commission notes that since the publication of the Victorian Report, the
    United Kingdom House of Lords have also ruled that homelessness is a
    ‘status’ or attribute for the purposes of Article 14 of the European Convention on Human Rights (‘ECHR’).[136] Article
    14 of the ECHR prohibits discrimination in respect of the enjoyment of any of
    the rights contained in the ECHR. Specifically, Article 14 prohibits
    discrimination:

    ...on any ground such as sex, race, colour,
    language, religion, political or other opinion, national or social origin,
    association with a national minority, property, birth or other status.
    (emphasis added)

  6. In the House of Lords’ view, it was appropriate to recognise
    homelessness within the category of ‘other status’ in Article 14 of
    the ECHR.
  7. The House of Lords decision is relevant to Australia in terms of
    Australia’s obligations under Article 26 of the ICCPR. Article 26 of the
    ICCPR states that:

    All persons are equal before the law and entitled
    without any discrimination to the equal protection of the law. In this respect,
    the law shall prohibit any discrimination and guarantee to all persons equal and
    effective protection against discrimination on any ground such as race, colour,
    sex, language, religion, political or other opinion, national or social origin,
    property, birth or other status. (emphasis added).

  8. There is some difference in the operation of Article 14 of the ECHR and
    Article 26 of the ICCPR. Article 14 of the ECHR is concerned with prohibiting
    discrimination in respect of the enjoyment of any of the rights contained in the
    ECHR, while Article 26 of the ICCPR creates a free-standing right to be free
    from discrimination in respect of equality before the law and equal protection
    of the law. The House of Lords decision nevertheless provides some guidance in
    the likely scope of the ground of ‘other status’ in Article 26 of
    the ICCPR.
  9. The Commission has also called for reform of Australia’s current
    national anti-discrimination laws. In the Commission’s submission to the
    National Human Rights Consultation, it proposed, in principle, that
    Australia’s current national anti-discrimination laws should be replaced
    by a single Equality Act, which broadens the grounds on which discrimination is
    prohibited.[137]
  10. The Commission has recommended that the Australian Law Reform Commission
    conduct a comprehensive inquiry on the issue of whether a single Equality Act
    should be enacted. This inquiry would enable the Australian public to consider
    whether it is justified to extend the grounds of prohibited discrimination to
    include homelessness or social status.

Recommendation 22: The Australian Government should refer to
the Australian Law Reform Commission for inquiry and report the question of how
best to strengthen, simplify and streamline national anti-discrimination laws.
The inquiry should specifically consider expanding the grounds of protection
from discrimination to include homelessness or social status.

(e) Expanding
the mandate and capacity of the Australian Human Rights Commission

  1. The Commission’s human rights functions are currently limited by the
    definition of ‘human rights’ in section 3 of the Australian Human
    Rights Commission Act 1986
    (Cth) (the Australian Human Rights Commission
    Act). This definition includes those rights set out in the instruments scheduled
    to the Act and other designated ‘relevant international
    instruments’.
  2. The Commission currently has the power to investigate and conciliate some
    complaints of economic, social and cultural rights. For example, the Commission
    can receive complaints about breaches of the rights set out in the Convention
    on the Rights of the Child
    (CRC) if the complaint is against the
    Commonwealth or one of its agencies. The CRC includes a wide range of economic,
    social and cultural rights, including ‘the right of every child to a
    standard of living adequate for the child's physical, mental, spiritual, moral
    and social
    development’.[138] The
    Commission is empowered to receive and investigate complaints under the CRC
    which relate to the adequate housing of children.
  3. The ICESCR has not been declared to be a ‘relevant international
    instrument’ and therefore does not come with the definition of
    ‘human rights’ in section 3 of the Australian Human Rights
    Commission Act.
  4. Declaring the ICESCR to be a ‘relevant international instrument’
    under the Australian Human Rights Commission Act would mean that the Commission
    would be expressly empowered to promote public awareness and understanding of
    economic, social and cultural rights, including the right to adequate housing;
    and to inquire into, and assist to resolve, a broader range of human rights
    complaints.
  5. The Commission recommended to the National Human Rights Consultation
    Committee that its mandate be expanded to include receiving complaints under the
    ICESCR.[139]

Recommendation
23
: The Attorney-General give consideration to declaring the ICESCR under
section 47(1) of the Australian Human Rights Commission Act.

(f) Ratification
of the Optional Protocol to the ICESCR

  1. The Optional Protocol to the ICESCR was adopted by the UN General Assembly
    on 10 December 2008. It is scheduled to open for signature on 24 September
    2009.[140]
  2. The Optional Protocol is an important means of enabling individuals who have
    exhausted all domestic remedies to lodge an individual communication with the
    CESCR to complain about a human rights violation, including violation of the
    right to adequate housing.
  3. The availability of this international remedy would enable people in
    Australia to obtain recognition if their human rights have been violated. It
    would also enable the CESCR to provide guidance to the Australian Government as
    to the specific action that should be taken to address the violation for any
    person concerned.
  4. The views of the CESCR arising out of an individual communication under the
    Optional Protocol would also assist the Australian Government to identify areas
    where current domestic laws, policies, programmes or practices remain inadequate
    to implement the ICESCR obligations.

Recommendation 24: The
Australian Government should ratify the Optional Protocol to the ICESCR.

^top

9 Appendix

9.1 International
Human Rights Instruments to which Australia is a party

  1. The following sets out international human rights treaties relevant to
    homelessness to which Australia is a party:
Major human rights treaties
Australia adopted
International Convention on the Elimination of All Forms of Racial
Discrimination
(CERD)[141]
1975
International Covenant on Economic, Social and Cultural Rights (ICESCR)[142]
1975
International Covenant on Civil and Political Rights (ICCPR)[143]
1980
Convention on the Elimination of All Forms of Discrimination against
Women
(CEDAW)[144]
1983
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment
(CAT)[145]
1989
Convention on the Rights of the Child (CRC)[146]
1990
Convention on the Rights of Persons with Disabilities (Disability
Convention)[147]
2008

208. The ICCPR and the ICESCR form part of the International Bill of Rights,
which was adopted by the United Nations (UN) General Assembly in 1966.

209. The ICCPR protects a broad range of civil and political rights. Many of
these aim to ensure that all people are able to participate in public and
political affairs – for example, the right to vote, to take part in the
conduct of public affairs, and freedom of speech, association and assembly.
Other rights aim to protect people’s physical liberty and safety –
for example, the right to life and to be free from torture, freedom of movement,
freedom from arbitrary detention, and the right to a fair trial.

210. The ICESCR creates obligations on government to progressively realise a
diverse range of economic, social and cultural rights. Many of these relate to
the basic necessities people need in order to lead a healthy and dignified life
– for example, the right to adequate
housing,[148] food and clothing
and the right to adequate health care. Others aim to ensure that all people can
develop to their full potential and have access to economic opportunities
– for example, the right to a basic education, to work, and to fair and
safe conditions at work.

211. Australia is also a party to a number of other international treaties
relating to human rights, including the following:

Other human rights treaties
Australia adopted
Convention on the Prevention and Punishment of the Crime of
Genocide
[149]
1949
Convention relating to the Status of
Refugees
[150]
1954
Supplementary Convention on the Abolition of Slavery, the Slave Trade,
and Institutions and Practices Similar to
Slavery
[151]
1958
Protocol relating to the Status of
Refugees
[152]
1973
Convention relating to the Status of Stateless
Persons
[153]
1973
Convention on the Reduction of
Statelessness
[154]
1973
Convention concerning Discrimination in respect of Employment and
Occupation
(ILO
No.111)[155]
1973
Optional Protocol to the International Covenant on Civil and Political
Rights
[156]
1991
Optional Protocol to the Convention on the Elimination of All Forms of
Discrimination against
Women
[157]
2008

212. Australia has signed but not yet ratified
the Optional Protocol to the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or
Punishment.
[158]

^top

9.2 The
Right to Adequate Housing: Sources and References

  1. The following sets out sources of international standards regarding the
    human right to adequate housing under the International Covenant on Economic,
    Social and Cultural Rights
    (ICESCR).

The right to adequate housing

Article 11(1) ICESCR

The States Parties to the present Covenant recognize the right of everyone to
an adequate standard of living for himself and his family, including adequate
food, clothing and housing, and to the continuous improvement of living
conditions. The States Parties will take appropriate steps to ensure the
realization of this right, recognizing to this effect the essential importance
of international co-operation based on free consent.

The right to non-discrimination

Art 2(2) ICESCR

The States Parties to the present Covenant undertake to guarantee that the
rights enunciated in the present Covenant [the ICESCR] 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.

Effective Remedies

Para 17 CESCR General Comment No 4: The Right to Adequate
Housing[159]

The Committee views many component elements of the right to adequate housing
as being at least consistent with the provision of domestic legal remedies.
Depending on the legal system, such areas might include, but are not limited to: (a) legal appeals aimed at preventing planned evictions or demolitions
through the issuance of court-ordered injunctions; (b) legal procedures
seeking compensation following an illegal eviction; (c) complaints
against illegal actions carried out or supported by landlords (whether public or
private) in relation to rent levels, dwelling maintenance, and racial or other
forms of discrimination; (d) allegations of any form of discrimination in
the allocation and availability of access to housing; and (e) complaints
against landlords concerning unhealthy or inadequate housing conditions. In some
legal systems it would also be appropriate to explore the possibility of
facilitating class action suits in situations involving significantly increased
levels of homelessness.

Prohibition on Forced Evictions

Para 18 CESCR General Comment No 4: The Right to Adequate
Housing[160]

... the Committee considers that instances of forced eviction are prima
facie
incompatible with the requirements of the Covenant and can only be
justified in the most exceptional circumstances, and in accordance with the
relevant principles of international law.

Para 16 CESCR General Comment No 7: Forced
Evictions[161]

Evictions should not result in individuals being rendered homeless or
vulnerable to the violation of other human rights. Where 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.

Monitoring of Progressive Realisation of the Right to Adequate
Housing

Para 13 CESCR General Comment No 4: The Right to Adequate
Housing[162]

Effective monitoring of the situation with respect to housing is another
obligation of immediate effect. For a State party to satisfy its obligations
under article 11 (1) it must demonstrate, inter alia, that it has taken
whatever steps are necessary, either alone or on the basis of international
cooperation, to ascertain the full extent of homelessness and inadequate housing
within its jurisdiction. In this regard, the revised general guidelines
regarding the form and contents of reports adopted by the Committee
(E/C.12/1991/1) emphasize the need to "provide detailed information about those
groups within ... society that are vulnerable and disadvantaged with regard to
housing". They include, in particular, homeless persons and families, those
inadequately housed and without ready access to basic amenities, those living in
"illegal" settlements, those subject to forced evictions and low-income
groups.

National Housing Strategy

Para 12 CESCR General Comment No 4: The Right to Adequate
Housing[163]

While the most appropriate means of achieving the full realization of the
right to adequate housing will inevitably vary significantly from one State
party to another, the Covenant clearly requires that each State party take
whatever steps are necessary for that purpose. This will almost invariably
require the adoption of a national housing strategy which, as stated in
paragraph 32 of the Global Strategy for Shelter, "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". Both for reasons of relevance and effectiveness, as well as in order
to ensure respect for other human rights, such a strategy should reflect
extensive genuine consultation with, and participation by, all of those
affected, including the homeless, the inadequately housed and their
representatives. Furthermore, steps should be taken to ensure coordination
between ministries and regional and local authorities in order to reconcile
related policies (economics, agriculture, environment, energy, etc.) with the
obligations under article 11 of the Covenant.

^top

9.3 The Right to
Participation: Sources and References

  1. The following sets out some sources of international standards regarding
    the right to participation:

The international human rights framework affirms the right to participate in
the conduct of public affairs.[164] The UN
Human Rights Committee has commended that the right of participation ‘is
supported by ensuring freedom of expression, assembly and association’ as
well the right to
information.[165] Enjoyment of the
rights to freedom of association, assembly and expression is required to enable
people experiencing homelessness to participate meaningfully in public
life.[166]

Further, other international human rights instruments also affirm this right.
See, for example:

Article 18 Declaration of the Rights of Indigenous Peoples

Indigenous peoples have the right to participate in decision-making in
matters which would affect their rights, through representatives chosen by
themselves in accordance with their own procedures, as well as to maintain and
develop their own indigenous decision-making institutions.

Art 7 CEDAW

States Parties shall take all appropriate measures to eliminate
discrimination against women in the political and public life of the country
and, in particular, shall ensure to women, on equal terms with men, the right:
...

(b) To participate in the formulation of government policy and the
implementation thereof and to hold public office and perform all public
functions at all levels of government...

The Convention on the Rights of Children also recognises the rights of
children to express their views freely in all matters affecting
them.[167]

^top


[1] Human Rights and Equal
Opportunity Commission, Submission to the Australian Government’s Green
Paper: Which Way Home?
(2008). At www.humanrights.gov.au/legal/submissions/2008/20080704_homelessness.pdf (viewed 26 August 2009).
[2] Department of Families, Housing, Community Services and Indigenous Affairs
(FAHCSIA), The Road Home: A National Approach to Reducing Homelessness (2008) (the White Paper). At www.fahcsia.gov.au/sa/housing/progserv/homelessness/whitepaper/Document… (viewed 2 August 2009).
[3] FAHCSIA, note 2, 44.
[4] See
Section 5.
[5] See Human Rights and
Equal Opportunity Commission, Submission to the Australian Government’s
Green Paper: Which Way Home?
(2008), note
1.
[6] FAHCSIA, note 2,
1.
[7] See Section 5.
[8] See Section
7.2(c).
[9] See Section
5.
[10] The Commission recognises
the diversity of the cultures, languages, kinship structures and ways of like of
Aboriginal and Torres Strait Islander peoples. Aboriginal and Torres Strait
Islander peoples are primarily referred to as ‘Indigenous peoples’
in this Submission. This is because the term carries a meaning in international
law. In particular, the use of ‘peoples’ with an ‘s’
(and not people singular) reflects the human rights instruments that refer to
the collective right of self-determination as one enjoyed by
‘peoples’. For a more detailed explanation on the use of the terms
see: Aboriginal and Torres Strait Islander Social Justice Commissioner, Social Justice Report 2008, Commonwealth of Australia, Canberra, 2008).
[11] FAHCSIA, note 2,
1.
[12] FAHCSIA, note 2,
1.
[13] Coleman, A, Five Star
Motels: Spaces, Places and Homelessness in Fortitude Valley, Brisbane
, PhD
Thesis, School of Social Work and Social Policy, University of Queensland, 2000,
167: ‘Homelessness is having no legitimacy or control over the spaces in
which you live, and no legitimated role within the community in which you
live.’
[14]For a more
detailed explanation of the human rights violations which may be experienced by
a person facing homelessness, see Lynch and Cole,‘Homelessness & Human
Rights: Regarding and responding to homelessness as a human rights
violation’ (2003) 4(1) Melbourne Journal of International Law 139.
[15] For more detailed
discussion of the human rights implications of homelessness, see Australian
Human Rights and Equal Opportunity Commission, ‘Homelessness is a Human
Rights Issue’ (2008). At www.humanrights.gov.au/Human_Rights/housing/homelessness_2008.html (viewed 4 August 2009).
[16] UN
Human Rights Committee, General Comment No 31: Nature of the General Legal
Obligation Imposed on States Parties to the Covenant,
UN Doc
CCPR/C/21/Rev.1/Add.13 (2004), para 13. At www.unhchr.ch/tbs/doc.nsf/0/58f5d4646e861359c1256ff600533f5f?Opendocume… (viewed 25 August 2009).
[17] UN Committee on Economic,
Social and Cultural Rights, Concluding Observations of the Committee on
Economic, Social and Cultural Rights: Australia
, UN Doc E/C.12/AUS/CO/4
(2009) (Advanced Unedited Version), para 26. At www2.ohchr.org/english/bodies/cescr/docs/AdvanceVersions/E-C12-AUS-CO-4.doc (viewed 2 August 2009).
[18] Special Rapporteur on Adequate Housing as a component of the right to an
adequate standard of living, Report of the Special Rapporteur on adequate
housing as a component of the right to an adequate standard of living: Mission
to Australia (31 July to 15 August 2006)
, UN Doc A/HRC/4/18/Add.2 (Annex)
(2007), summary. At http://daccessdds.un.org/doc/UNDOC/GEN/G07/125/72/PDF/G0712572.pdf?Open….
[19] Special Rapporteur on Adequate Housing, note 18, para 126.
[20] Special Rapporteur on
Adequate Housing, note 18, para
132.
[21] UN Committee on
Economic and Social Rights, Substantive Issues arising in the Implementation
of the International Covenant on Economic, Social and Cultural Rights: Poverty
and the International Covenant on Economic, Social and Cultural Rights
, UN Doc E/C.12/2001/10 (10 May 2001), para 13. At www2.ohchr.org/english/bodies/cescr/docs/statements/E.C.12.2001.10Poverty-2001.pdf (viewed 6 August 2009).
[22] See,
for example, United Nations Development Program (UNDP), Indicators for Human
Rights Based Approaches to Development in UNDP Programming: A Users’
Guide
(March 2006), and references. At http://www.undp.org/oslocentre/docs06/HRBA%20indicators%20guide.pdf.
See, also, United Nations Education, Scientific and Cultural Organization
(UNESCO): Undertaking a Human Rights-Based Approach: A Guide for Basic
Programming
(2008) and references. At http://www2.unescobkk.org/elib/publications/232_233/HRBA.pdf.
For discussion of a human rights based approach in the Australian context see:
Aboriginal and Torres Strait Islander Social Justice Commissioner, Social
Justice Report 2005
, HREOC Sydney
2005,138-146.
[23] Office of the
High Commissioner on Human Rights (OHCHR), Frequently Asked Questions on a
Human Rights-Based Approach to Development Cooperation,
United Nations,
2006, available online at: http://ohchr.org/english/about/publications/docs/FAQ_en.pdf (Viewed 5 October 2007). 24.
[24] UNESCO, note 22,28,
[25] OHCHR,
note 23, 36.
[26] UNESCO,
note 22, 13.
[27] UNESCO, note
22, 13.
[28] OHCHR, note 23,
2.
[29] FAHCSIA, note 2,
19.
[30] FAHCSIA, note 2,
19.
[31] FAHCSIA, note 2,
12.
[32] FAHCSIA, note 2, 19.
[33] Australian Government, Social Inclusion Priorities, Social Inclusion website, at www.socialinclusion.gov.au/Priorities/Pages/default.aspx,
(viewed 6 August 2009).
[34] Australian Government, Social Inclusion Principles for Australia, Social
Inclusion website, www.socialinclusion.gov.au/Principles/Documents/SIPrincilpes.pdf,
(viewed 6 August 2009).
[35] See
Section 7.2(c).
[36] See Section
7.3.
[37] FAHCSIA, note 2,
19.
[38] OHCHR, note 23, para
19.
[39]Supported
Accommodation Assistance Act 1994
(Cth), s 8(g). The SAAP V Agreement
between the Australian Government and the states and territories was replaced by
the National Affordable Housing Agreement on 1 January
2009.
[40] FAHCSIA, note 2, 19.
See also Human Rights and Equal Opportunity Commission, Submission to the
Australian Government’s Green Paper: Which Way Home?
(2008), note 1.
[41]Convention on the Rights
of the Child
 CRC), 1989. At www2.ohchr.org/english/law/crc.htm (viewed 2 August 2009).
[42]United Nations Declaration of the Rights of Indigenous Peoples, 2007. At http://daccessdds.un.org/doc/UNDOC/GEN/N06/512/07/PDF/N0651207.pdf?OpenElement (viewed 25 August 2009).
[43] Australian Human Rights Commission, Submission to the National Human Rights
Consultation
(2009), par 368. At www.humanrights.gov.au/legal/submissions/2009/200906_NHRC_complete.pdf (viewed 25 August 2009).
[44]International Covenant on Economic, Social and Cultural Rights (ICESCR),
1966, art 11(1). At www.unhchr.ch/html/menu3/b/a_cescr.htm (viewed 22 May 2009). The right to adequate housing is also reflected in other
human rights treaties, including the the Convention on the Rights of the
Child
(CRC), 1989, note 42, art 27(3). At http://www.unhchr.ch/html/menu3/b/k2crc.htm (viewed 29 May 2009); the the International Convention on the
Elimination of all forms of Racial Discrimination
 Discrimination (CERD), 1965, art 5(e)(iii) at www2.ohchr.org/english/law/cerd.htm (viewed 2 August 2009) and the the Convention on the Elimination of all
forms of Discrimination against Women
  (CEDAW), 1979, art 14(2)(h) at www2.ohchr.org/english/law/cedaw.htm (viewed 2 August 2009).
[45] ICESCR, note 45, art 2(1).
[46] UN Committee on Economic, Social and Cultural Rights, General Comment 3: The
nature of States parties obligations (Art. 2, para. 1 of the Covenant)
, UN
Doc E/1991/23, annex III at 86 (1991), para 2. At www.unhchr.ch/tbs/doc.nsf/(Symbol)/94bdbaf59b43a424c12563ed0052b664?Opendocument (viewed
2 August 2009).
[47] UN Committee
on Economic, Social and Cultural Rights, General Comment 3, above, para
2.
[48] UN Committee on
Economic, Social and Cultural Rights, General Comment 3, above, para
10.
[49] UN Committee on
Economic, Social and Cultural Rights, General Comment 3, above, para
9.
[50] UN Committee on Economic,
Social and Cultural Rights, General Comment 7: Forced evictions, UN Doc
E/1998/22 (1997), para 9. At www.unhchr.ch/tbs/doc.nsf/(symbol)/CESCR+General+Comment+7.En?OpenDocument.
(viewed 2 August 2009).
[51] FAHCSIA, note 2, 40.
[52] See Housing (Scotland) Act 1987 (UK), s 29(1). The duty to provide emergency
housing to a person with a ‘priority need’ (see s 25) is subject to
the individual satisfying a requirement of having a ‘local
connection’ (see s 27) and not being ‘intentionally homeless’
(see s 26).
[53]Homelessness
Act (Scotland) 2003
(UK), s
3.
[54] UN Committee on Economic,
Social and Cultural Rights, General Comment 4: The Right to Adequate
Housing
, para 8, At www.unhchr.ch/tbs/doc.nsf/(Symbol)/469f4d91a9378221c12563ed0053547e?Opendocument (viewed 2 August 2009).
[55] FAHCSIA, note 2, 44.
[56]Supported Accommodation Assistance Act 1994 (Cth), s
1(4).
[57] Australian Government
Green Paper on Homelessness, ‘Identifying the Problem’, Which way
‘home: new approaches to homelessness
(2008).
[58] Special Rapporteur
on adequate housing as a component of the right to an adequate standard of
living, note 18, para 67.
[59] UN
Committee on Economic, Social and Cultural Rights, General Comment 7,
note 51, para 16.
[60] For
authority on the nature of a government’s immediate obligation to meet
most basic housing needs, see Government of South Africa and Others v
Grootboom
2001 (1) SA 46, which interprets the constitutional right to
adequate housing under the South African Constitution.
[61] See section
5.
[62] Australian Government,
‘Social Inclusion Principles for Australia’, Principle 3. At www.socialinclusion.gov.au/Principles/Documents/SIPrinciples.rtf (viewed 3 August 2009).
[63] FAHCSIA, note 2, 19.
[64] Office
of the United Nations High Commissioner for Human Rights, Principles and
Guidelines for a Human Rights Approach to Poverty Reduction Strategies
(2006), UN Doc HR/PUB/06/12, 14. At http://www.undg.org/docs/7659/poverty_strategies.doc#_ARTICIPATION (viewed 29 July 2009).
[65] See
Council to Homeless Persons, Consumer Participation Resource Kit –
Information Sheet #3: Benefits of Consumer Participation
(2008). At www.chp.org.au/cpkit/items/2008/02/196987-upload-00001.pdf (viewed 30 July 2009).
[66] PILCH
(Vic) Homeless Person’s Legal Clinic, Consumer Advisory Group (CAG) (2008). At http://www.pilch.org.au/CAG/ (viewed 30
July 2009).
[67] C Hartley,
‘Never for Us, Without Us: The Involvement of Homeless People in the
Implementation of the White Paper’ (2009) 22(1) Parity 30,
30.
[68] Council to Homeless
Persons, note 66, 17.
[69] Hartley, note 68, 30.
[70] FAHCSIA, note 2, 14.
[71] Australian Government, note 35, Principle
6.
[72] ICESCR, note 45, art
2(2); International Covenant on Civil and Political Rights (ICCPR), 1966,
art 2(1). At http://www.unhchr.ch/html/menu3/b/a_ccpr.htm (viewed 22 May 2009),
[73] UN
Committee on Economic Social and Cultural Rights, General Comment No 16 - The
equal right of men and women to the enjoyment of all economic, social and
cultural rights
, UN Doc E/C.12/2005/4 (2005) para 7. At www.unhchr.ch/tbs/doc.nsf/898586b1dc7b4043c1256a450044f331/7c6dc1dee6268e32c125708f0050dbf6/$FILE/G0543539.pdf (viewed 3 August 2009).
[74] Human Rights and Equal Opportunity Commission (2008), Note
1.
[75] FAHCSIA, note 2,
viii.
[76] Diana Warren, Aspects of Retirement for Older Women (2006), 44. At
www.ofw.facsia.gov.au/downloads/pdfs/Aspect_of_Retirement%20_report_final.pdf (viewed 9 February 2009).
[77] For further detail of the particular housing needs of children and youth, see
Human Rights and Equal Opportunity Commission,Submission to the Green Paper
on Homelessness – Which Way Home?
(2008),
18-21.
[78] For further detail of
the particular housing needs of women, see Human Rights and Equal Opportunity
Commission, Submission to the Green Paper on Homelessness – Which Way
Home?
(2008), 16-17.
[79] For further detail of the particular housing needs of people with disabilities
and people with mental health issues, see Human Rights and Equal Opportunity
Commission, Submission to the Green Paper on Homelessness – Which Way
Home?
(2008), 28-31. See also Convention on the Rights of Persons with
Disabilities
, 2006, arts 6(1), 9, 11, 19, 28. At www.un.org/disabilities/documents/convention/convoptprot-e.pdf (viewed 14 August 2009).
[80] For
further detail of the particular housing needs of peoples from culturally and
linguistically diverse backgrounds, migrants and refugees, see Human Rights and
Equal Opportunity Commission, Submission to the Green Paper on Homelessness
– Which Way Home?
(2008),
31-34.
[81] For further detail of
the particular housing needs of Indigenous peoples, see Human Rights and Equal
Opportunity Commission, Submission to the Green Paper on Homelessness –
Which Way Home? (2008)
, 21-28. For examples of promising community practices
to address family violence, including safe houses, see: Aboriginal and Torres
Strait Islander Social Justice Commissioner, Social Justice Report 2007 (2008), chapter 2. At www.humanrights.gov.au/social_justice/sj_report/sjreport07/index.html (viewed 14 August 2009).
[82] For
further detail of the particular housing needs of Indigenous people exiting the
corrective systems of juvenile justice institutions, see Ogilvy, E., 'Prisoners
Post Release'-release', Parity - Post Release-release and Homelessness
Issue
, vol 14, no 10, November
2001,16.
[83] UN Committee on
Economic, Social and Cultural Rights, General Comment 4, note 56, para
13.
[84] Prime Minister of
Australia, ‘Prime Minister establishes independent Council on
Homelessness’, (Media Release, 8 August 2009). At
http://www.pm.gov.au/node/6099www.pm.gov.au/node/6099 (viewed 14
August 2009).
[85] FAHCSIA, note
2, 66.
[86] UN Economic and
Social Council, Report of the High Commissioner for Human Rights on
implementation of economic, social and cultural rights
, UN Doc E/2009/90
(2009), 8.
[87] FAHCSIA, note 2,
57-63.
[88] See section
7.3.
[89] See L Craze,
‘Measuring Client Satisfaction: The National Project to Design and Trial
Client Satisfaction Measures for use in the Support Accommodation Assistance
Program (SAAP)’ (2005) 18(10) Parity 51; C Talbot and J
Baulderstone, ‘Accountability and Practice: The Measurement of Client
Outcomes in SAAP’ (2005) 18(10) Parity 55.
[90] UN Committee on
Economic, Social and Cultural Rights, General Comment No 9: The domestic
application of the Covenant
, UN Doc E/C.12/1998/24 (1998), para 2. At http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/4ceb75c5492497d9802566d500516036?Opendocument (viewed 2 August 2009).
[91] UN
Committee on Economic, Social and Cultural Rights, General Comment No 9,
note 90, 29.
[92] Australian
Human Rights Commission, Submission to National Human Rights Consultation,
(2009), para 106, note 44.
[93] UN Committee on Economic, Social and Cultural Rights, Concluding observations
of the Committee on Economic, Social and Cultural Rights: Australia
, UN Doc
E/C.12/1/Add.50 (2000), paras 14, 24, at http://www.unhchr.ch/tbs/doc.nsf/0/693c56f3d2694130c12569580039a1a2?Opendocument (viewed 2 August 2009), paras 14, 24. See also UN CESCR, Concluding
Observations
(2009), note 96, paras
29-30.
[94]Supported
Accommodation Assistance Act 1994
(Cth), s 5(4)(f).)(i) and
(ii).
[95] FAHCSIA, note 2, ix.
[96] The National Council to
Reduce Violence against Women and their Children, Time For Action: The
National Council’s Plan for Australia to Reduce Violence against Women and
their Children, 2009-2021
(2009). At http://www.fahcsia.gov.au/sa/women/pubs/violence/np_time_for_action/nat… (viewed 25 August 2009).
[97] Australian Human Rights Commission, Leadership in reducing violence against
women welcomed,
Media release 1 May 2009, www.humanrights.gov.au/about/media/media_releases/2009/29_09.html (viewed 25 August 2009).
[98] FAHCSIA, note 2, p 33-34, 36
[99] Australian Domestic and Family Violence Clearinghouse, Response to Which Way Home? A new approach to homelessness, Australian Government Green
Paper,
2008, 2. At www.austdvclearinghouse.unsw.edu.au/PDF%20files/Homelessness%20Green%20Paper%20submission.pdf viewed 25 August 2009).
[100] FAHCSIA, note 2, p 33: ‘brokerage funds that could be used to stabilise
housing or increase home security for
women and children, for example by
installing deadlocks, screen doors, security lighting and
home alarms, or by
providing short-term rental subsidies or mortgage top
ups'.
[101] Special Rapporteur
on adequate housing, note 18, para
2.
[102] Special Rapporteur on
adequate housing, note 18, para
127.
[103] FAHCSIA, note 2,
ix
[104] Sharam A, ‘Going
it alone: Single Low-Needs Women and Hidden Homelessness’ Women’s
Information, Support and Housing in the North, Melbourne, 2008, p 30 .At www.wishin.org.au/GoingItAloneFINAL.pdf (viewed 25 August 2009).
[105]Optional Protocol to the International Covenant on Economic, Social and
Cultural Rights
, 2008. At http://www2.ohchr.org/english/bodies/cescr/docs/A-RES-63-117.pdf (viewed 2 August 2009).
[106] ‘Primary homelessness includes all people without conventional
accommodation, such as people living on the streets, sleeping in parks,
squatting in derelict buildings, or using cars or railway carriages for
temporary shelter.’ Australian Bureau of Statistics, Australian Census
Analytic Program, Counting the Homeless, Australia, 2006, ABS Catalogue
No. 2050.0, At www.ausstats.abs.gov.au/ausstats/subscriber.nsf/0/57393A13387C425DCA2574B900162DF0/$File/20500-2008Reissue.pdf (viewed 25 August 2009).
[107] National Law Center on Homelessness & Poverty, “Homes Not
Handcuffs,” 14 July 2009. At www.nlchp.org/news.cfm?id=108 (viewed 25 August 2009).
[108] C Goldie, ‘Why government is treating us like animals: Legal and Human
Rights Perspectives on Living in Public Space’ (2003) 16(9) Parity 16.
[109] ABC News,
“Territory has highest homelessness rate,” 9 July, 2009. At www.abc.net.au/news/stories/2009/07/09/2621184.htm.
[110] Alice Springs Town
Council, Alice Springs Town Council, Alice Springs (Management of Public
Places) By-Laws July 2009 (Draft)
. At www.alicesprings.nt.gov.au/.../DRAFT_Public_Places_Bylaws_July2009.pdf (viewed 25 August 2009).
[111] Alice Springs Town Council, Alice Springs Town Council, Alice Springs
(Management of Public Places) By-Laws July 2009 (Draft)
. At www.alicesprings.nt.gov.au/.../DRAFT_Public_Places_Bylaws_July2009.pdf (viewed 25 August 2009).
[112] Similar concerns have been expressed regarding the disproportionate impact of
the Adelaide City Council dry area by-laws on homeless people, in particular
those from Aboriginal and Torres Strait Islander backgrounds. According to the
National Drug Research Institute, the by-laws are causing people to move away
from the inner city area and subsequently from critical support services. See
National Drug and Research Institute, Restrictions on the Sale and Supply of
Alcohol Report: Evidence and Outcomes.
At: http://www.google.com/search?q=restrictions+on+the+sale+and+supply+of+alcohol&rls=com.microsoft:*&ie=UTF-8&oe=UTF-8&startIndex=&startPage=1 (viewed 1 September 2009). The dispersal of homeless people has made it more
difficult for services to locate them and provide required
support.
[113]Report of the
Special Rapporteur on adequate housing as a component of the right to an
adequate standard of living
, Miloon Kothari, Mission to Australia,
A/HRC/4/note 18/Add.2 (2007), para
47.
[114] House of
Representatives, Parliament of Australia, House Standing Committee on Family,
Community, Housing and Youth, Inquiry into homelessness legislation (2009) http://www.aph.gov.au/house/committee/fchy/homelessness/index.htm at(viewed on 19 June
2009).
[115] T Walsh, ‘No
vagrancy: An examination of the impact of the criminal justice system on people
living in poverty in Queensland’ (2007) 10,
74.
[116] Ibid, 11, 75. For
detailed discussion of the procedural and substantive rights to be afforded to
people facing forced evictions, including people living in public places, in
accordance with international human rights standards, see also C Goldie,
‘Living in Public Space: A Human Rights Wasteland?” (PhD Thesis,
UNSW, 2008).
[117] Australian
Government, Green Paper on Homelessness, ‘Identifying the Problem’, Which way ‘home: new approaches to homelessness (2008), note 55,
10.
[118] Australian Institute
of Health and Welfare. Homeless people in SAAP: SAAP National
Data
Collection annual report
. SAAP NDC report series 13 (Cat. no. HOU 191)
(2009) 33, 38.
[119] Committee
on Economic, Social and Cultural Rights, General Comment 7: Forced
evictions
, UN Doc E/1998/22 (1997),, note 51 para 16. At http://www.unhchr.ch/tbs/doc.nsf/(symbol)/CESCR+General+Comment+7.En?OpenDocument at 19 June 2009.
[120]Report of the Special Rapporteur on adequate housing as a component of the
right to an adequate standard of living
, Miloon Kothari, Mission to
Australia, A/HRC/4/note 18/Add.2 (2007), para
69.
[121]Report of the
Special Rapporteur on adequate housing as a component of the right to an
adequate standard of living
, Miloon Kothari, Mission to Australia,
A/HRC/4/note 18/Add.2, 11 May (2007,), para
17.
[122] FAHCSIA, note 2,
p36.
[123] In Lingwood v The
Unlawful Occupiers of E/R of Erf 9 Highlands
(Unreported, High Court of
South Africa, Witwatersrand Local Division, Mogagabe AJ,16 October 2007), the
High Court of South Africa considered whether to grant such an order against
some 19 adults and 8 children who were very poor and had lived in the property
lawfully as private tenants, in some cases for over 15 years. The Court ordered
that the City of Johannesburg be joined in the proceedings so that it could be
called to account regarding provision of alternative accommodation for the
families. See, further, C Goldie, Housing and Homelessness: What’s Human
Rights Got to Do With It? (Paper delivered at HREOC Human Rights Law Seminar,
Sydney, 7 April 2009). http://www.humanrights.gov.au/legal/seminars/speeches/cassandra_goldie08.html (viewed at 26 June 2009).
[124] President of the Republic of South Africa and Minister of Agriculture and Land
Affairs v Modderklip Boerdery (Pty) (Ltd) (CCT20/04) [2005] ZACC 5; 2005 (5) SA
3 (CC); 2005 (8) BCLR 786 (CC) (13 May 2005).
[125] Australian Government, National Human Rights Consultation (2009). At http://www.humanrightsconsultation.gov.au/www/nhrcc/nhrcc.nsf/Page/Home (viewed 25 August 2009).
[126] Australian Human Rights Commission, Submission to the National Human Rights
Consultation
(2009). At http://www.humanrights.gov.au/legal/submissions/2009/200906_NHRC_complete.pdf (viewed 25 August 2009)., note 44.
[127] See Australian Human
Rights Commission, National Human Rights Consultation: Australian Human
Rights Commission Submission
(June 2009). At http://www.humanrights.gov.au/legal/submissions/2009/200906_NHRC.html (viewed 14 August).
[128] United Kingdom Department for Constitutional Affairs, Review of the
Implementation of the Human Rights Act
(2006),
4.
[129] Victorian Department
of Justice, An Equality Act for a Fairer Victoria: Equal Opportunity Review
Final Report
(June 2008), Recommendation 46.
[130] Victorian Department of
Justice, An Equality Act for a Fairer Victoria: Equal Opportunity Review
Final Report
(June 2008)note 132, para.
5.99.
[131] Victorian
Department of Justice, An Equality Act for a Fairer Victoria: Equal
Opportunity Review Final Report
(June 2008)note 132, para.
5.100.
[132] Victorian
Department of Justice, An Equality Act for a Fairer Victoria: Equal
Opportunity Review Final Report
(June 2008)note 132, para.
5.84.
[133] P Lynch and B
Stagoll, Promoting Equality: Homelessness and Discrimination, (2002) 7 Deakin Law Review, 295,
-317.
[134] New Zealand Human
Rights Commission,
11/12/97.
[135] P Lynch and B
Stagoll, Promoting Equality: Homelessness and Discrimination, (2002) 7 Deakin Law Review 295,
317.
[136]R (on the
application of RJM) v Secretary of State for Work and Pensions
[2008] UKHL
63, para 41.
[137] Australian
Human Rights Commission, Submission to the National Human Rights
Consultation
(2009), note 44, 35. At http://www.humanrights.gov.au/legal/submissions/2009/200906_NHRC_complete.pdf (viewed 25 August 2009).
[138] CRC, art 27(1).
[139] Australian Human Rights Commission, Submission to the National Human Rights
Consultation
(2009), 109. At http://www.humanrights.gov.au/legal/submissions/2009/200906_NHRC_complete.pdf (viewed 25 August 2009).
[140] United Nations, ‘Optional Protocol to the International Covenant
on

Economic, Social and Cultural Rights: New York, 10 December
2008: Opening for Signature’ (19 February 2009). At http://treaties.un.org/doc/source/signature/CN106E.pdf (viewed 2 August 2009). note
107.
[141]International
Convention on the Elimination of All Forms of Racial Discrimination
(CERD),
1965. At http://www.unhchr.ch/html/menu3/b/d_icerd.htm (viewed 29 May 2009).
[142]International Covenant on Economic, Social and Cultural Rights (ICESCR),
1966, art 2(2). At http://www.unhchr.ch/html/menu3/b/a_cescr.htm (viewed 22 May 2009).
[143]International Covenant on Civil and Political Rights (ICCPR), 1966, art
26. At http://www.unhchr.ch/html/menu3/b/a_ccpr.htm (viewed 22 May 2009).
[144]Convention on the Elimination of All Forms of Discrimination against
Women
(CEDAW), 1979. At http://www.unhchr.ch/html/menu3/b/e1cedaw.htm (viewed 29 May 2009).
[145]Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment
(CAT), 1984. At http://www2.ohchr.org/english/law/cat.htm (viewed 29 May 2009).
[146]Convention on the Rights of the Child (CRC), 1989. At http://www.unhchr.ch/html/menu3/b/k2crc.htm (viewed 29 May 2009).
[147]Convention on the Rights of Persons with Disabilities (Disability
Convention), 2006. At http://www.un.org/disabilities/documents/convention/convoptprot-e.pdf (viewed 29 May 2009).
[148] See
Appendix 9.2, below, for more detail about the human right to adequate housing.
[149]Convention on the
Prevention and Punishment of the Crime of Genocide
, 1948. At http://www.unhchr.ch/html/menu3/b/p_genoci.htm (viewed 29 May 2009).
[150]Convention relating to the Status of Refugees (Refugee Convention), 1951.
At http://www.unhchr.ch/html/menu3/b/o_c_ref.htm (viewed 29 May 2009).
[151]Supplementary Convention on the Abolition of Slavery, the Slave Trade, and
Institutions and Practices Similar to Slavery
, 1956. At http://www2.ohchr.org/English/law/slavetrade.htm (viewed 29 May 2009).
[152]Protocol relating to the Status of Refugees, 1967. At http://www.unhchr.ch/html/menu3/b/o_p_ref.htm (viewed 29 May 2009).
[153]Convention relating to the Status of Stateless Persons, 1954. At http://www.unhchr.ch/html/menu3/b/o_c_sp.htm (viewed 29 May 2009).
[154]Convention on the Reduction of Statelessness, 1961. At http://www.unhchr.ch/html/menu3/b/o_reduce.htm (viewed 29 May 2009).
[155]Convention concerning Discrimination in respect of Employment and Occupation
(ILO No. 111)
, 1958. At http://www.unhchr.ch/html/menu3/b/d_ilo111.htm (viewed 29 May 2009).
[156]Optional Protocol to the International Covenant on Civil and Political
Rights
, 1966. At http://www.unhchr.ch/html/menu3/b/a_opt.htm (viewed 29 May 2009).
[157]Optional Protocol to the Convention on the Elimination of All Forms of
Discrimination against Women
, 1999. At http://www.unhchr.ch/html/menu3/b/opt_cedaw.htm (viewed 29 May 2009).
[158]Optional Protocol to the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment
(OPCAT), 2002. At http://www.unhchr.ch/html/menu2/6/cat/treaties/opcat.htm (viewed 29 May 2009). The Australian Government signed OPCAT on 19 May 2009, but
has not yet ratified it.
[159] UN Committee on Economic, Social and Cultural Rights, General Comment 4.
At http://www.bayefsky.com/general/cescr_gencomm_4.php.
note 55
[160] UN Committee on
Economic, Social and Cultural Rights, General Comment 4. At http://www.bayefsky.com/general/cescr_gencomm_4.php.
[161] UN Committee on
Economic, Social and Cultural Rights, General Comment
7.

[162] UN Committee on
Economic, Social and Cultural Rights, General Comment 4. At http://www.bayefsky.com/general/cescr_gencomm_4.php.
[163] UN Committee on
Economic, Social and Cultural Rights, General Comment 4. At http://www.bayefsky.com/general/cescr_gencomm_4.php.
[164] ICCPR, art 25. See also
OHCHR, note 23, 14.
[165] UN
Human Rights Committee, General Comment No. 25: The right to participate in
public affairs, voting rights and the right of equal access to public service
(Art. 25)
UN Doc CCPR/C/21/Rev.1/Add.7 (1996), para 8. At http://www.unhchr.ch/tbs/doc.nsf/0/d0b7f023e8d6d9898025651e004bc0eb?Opendocument (viewed 29 July 2009).
[166] ICCPR, arts 19, 21,
22(1).
[167] CRC, art 12.