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Submission to the Green Paper on Homelessness - Which way home?

Legal

 

Submission of the

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
(HREOC)

to the

Green Paper on Homelessness -

Which way home?

4 July 2008


Human Rights and Equal Opportunity Commission

Level 8, 133 Castlereagh St

GPO Box 5218

Sydney NSW 2001

Ph. (02) 9284 9600

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Table of Contents

Introduction

  1. The Human Rights and Equal Opportunity Commission (HREOC) makes this
    submission to ‘Which Way Home?’, the Green Paper on
    homelessness.

  2. HREOC is Australia’s national human rights
    institution.[1]

  3. HREOC commends the Commonwealth government on making homelessness a priority
    issue and recognising that adequate housing is fundamental to social inclusion.
    Recognition of homelessness as a human rights issue should assist in the
    development of policy and programs to address homelessness.

Summary

  1. Access to safe and secure housing is a fundamental human right.

  2. Safe and secure housing is also fundamental to social inclusion. Achieving
    social inclusion through the protection of human rights should be central to
    three important stages of addressing homelessness:

    • prevention of homelessness

    • respecting the rights of people experiencing homelessness

    • creating pathways out of homelessness.

  3. Enhanced protection of the rights of people experiencing homelessness and
    greater accountability to reduce homelessness could be achieved through the
    incorporation of universal human rights standards, including rights about
    housing, into Australian law. This could be achieved through the adoption of a
    federal charter of rights.

  4. In addition, federal and state legislative frameworks regarding housing and
    homelessness, such as supported accommodation, public housing, tenancy laws,
    eviction laws, and public space laws, should be reviewed to ensure compliance
    with minimum universal human rights standards.

  5. This submission focuses on particular issues facing people experiencing
    homelessness, including issues relevant to:

    • women

    • children and young people

    • Indigenous people

    • people with disability, including mental health and accessibility
      issues

    • asylum seekers and immigration

    • welfare payments.

Homelessness, human rights
and social inclusion

  1. HREOC welcomes the recognition in the Green Paper that adequate housing is
    fundamental to social inclusion, and that the rights and responsibilities of
    individuals and families are paramount. HREOC also welcomes the commitment that
    governments are to be held accountable for the delivery of strategies to address
    homelessness.

  2. Breaches of human rights contribute to social marginalisation and
    homelessness.[2] In order to promote
    social inclusion, the government’s strategy to address homelessness would
    benefit from recognition of the relationship between breaches of human rights,
    social marginalisation and homelessness. The government should use
    international human rights standards to inform the development of the rights,
    responsibilities and accountability requirements set out in the strategy.

  3. Access to safe and secure housing is a fundamental human
    right.[3] The Commonwealth government
    is obliged under international law to devote the maximum of its available
    resources towards progressively ensuring that all people have somewhere to live
    in security, peace and
    dignity.[4]

  4. The right to adequate housing is more than simply a right to shelter. This
    right has been defined by the United Nations Committee on Economic, Social and
    Cultural Rights (CESCR). Whether housing is adequate depends on a range of
    factors including: legal security of tenure; availability of facilities and
    infrastructure; affordability; accessibility by disadvantaged groups;
    habitability; location; and cultural
    adequacy.[5]

  5. HREOC welcomes the Green Paper’s acknowledgment of the
    interconnectedness of the issues facing people experiencing homelessness. A lack
    of secure housing can affect a person’s enjoyment of a wide range of other
    human rights, including rights to education, employment, healthcare, privacy,
    and personal safety.[6] Enjoyment of
    these basic human rights is essential to a person’s ability to actively
    participate in society. Consequently, the enjoyment of human rights is
    fundamental to social inclusion.

  6. As noted above, achieving social inclusion through the protection of human
    rights should be central to three important stages of addressing
    homelessness:

    • prevention of homelessness

    • respecting the rights of people experiencing homelessness

    • creating pathways out of homelessness.

  7. Improving protection of the human rights of people at risk of homelessness
    is a critical step in preventing homelessness. Enjoyment of basic rights is
    essential to our ability to actively participate in the community and to remain
    in control of our lives. This approach is outlined in Principles 2 and 3 of the
    principles for change in the Green
    Paper.[7]

  8. While the ultimate goal of any strategy to address homelessness must be to
    reduce the incidence of homelessness, it is also important to ensure that those
    experiencing homelessness are treated with dignity and respect. This principle
    is fundamental to human rights and is recognised by Principle 4 of the
    principles for change in the Green
    Paper.[8]

  9. Creating pathways out of homelessness is not just about providing adequate
    housing. It is also about providing people with tools to make positive decisions
    about their lives, to build connections with the community and to realise a
    range of basic human rights. This requires ensuring that all Australians have an
    adequate income and standard of living, opportunities for education and
    employment, access to healthcare, and opportunities to participate in the
    political and social processes which affect them.

  10. Recognising the relationship between homelessness, human rights and social
    inclusion highlights the need to directly and meaningfully involve people who
    are homeless or who were formerly homeless in the development of solutions to
    homelessness.

  11. Active and informed participation has the potential to empower people
    experiencing homelessness and to create more effective and relevant services.
    Participation is a fundamental element of a human rights approach to
    homelessness.

  12. A strategy which addresses homelessness as a human rights issue involves all
    levels of government committing to measurable outcomes and taking concrete and
    targeted legislative, policy and budgetary steps towards the full realisation of
    the human rights of homeless
    persons.[9]

  13. HREOC commends the Commonwealth government on its leadership and commitment
    to a national and long-term approach to addressing homelessness.

  14. HREOC notes the recommendation of the CESCR in its Concluding Observations
    on Australia’s latest state party report:

    The Committee strongly recommends that the State party, at the
    federal level, develop a housing strategy in keeping with the Committee’s
    General Comments No. 4 and 7, including provisions to protect tenants from
    forced eviction without reasons and from arbitrary rent increases. In addition,
    the Committee recommends that the State party ensure that all State and
    Territory governments establish appropriate housing policies in accordance with
    this strategy.[10]

  15. In 2007 the United Nations Special Rapporteur on Adequate Housing called on
    Australia to develop a ‘comprehensive and coordinated national housing
    policy... [that] embodies an overarching human rights approach, with the primary
    task of meeting the needs of the most vulnerable
    groups’.[11]

  16. Recommendation 1: The Commonwealth government should develop a
    national housing strategy. Addressing homelessness would be a key aspect of any
    housing plan. This strategy should be developed in consultation with people who
    are homeless or formerly homeless, people who are inadequately housed, and their
    representatives.

Legal protection of the rights of
people experiencing homelessness

  1. Protection in Australian law of the rights of people experiencing
    homelessness could be enhanced.[12]

  2. HREOC notes that agreed international human rights standards, including
    rights about housing, have not yet been fully incorporated into Australian law.
    The UN Special Rapporteur on Adequate Housing has recommended
    that:

    Federal and state authorities should make bigger efforts to
    explicitly incorporate the wide range of international human rights instruments
    to which Australia is a party, into the domestic legal
    system.[13]

  3. Australia does not currently have a national law to protect human rights
    through a mechanism such as a charter of rights. A federal charter of
    rights could include the protection of economic, social and cultural rights such
    as the right to adequate housing. A federal charter of rights should include
    appropriate remedies for those whose rights have been violated. HREOC commends
    the government on its intention to hold a national consultation on how to best
    recognise and protect human rights in
    Australia.[14]

  4. On 18 June 2008, the United Nations Human Rights Council adopted the Optional Protocol to the International Covenant on Economic, Social and
    Cultural Rights     (the Optional
    Protocol    ).[15] The Optional
    Protocol     would allow a person to make a complaint to the CESCR about a
    denial of their rights, including their right to adequate housing, under the International Covenant on Economic, Social and Cultural Rights (ICESCR).
    The Human Rights Council has recommended that the UN General Assembly adopt and
    open the Optional Protocol for signature, ratification and accession.

  5. HREOC notes that consideration of the Optional Protocol will be an ongoing
    issue for the Commonwealth government.

Rights protections
within the Supported Accommodation Assistance Act 1994 (Cth)

  1. HREOC welcomes the recognition in the Green Paper that all people who are
    homeless or at risk of homelessness need access to stable and affordable
    housing.

  2. HREOC notes that the Supported Accommodation Assistance Act 1994 (Cth) (SAA Act) aims to promote and protect the rights of people
    experiencing homelessness.[16] However, this legislation could further implement the right to adequate housing
    in Australia.

  3. In particular, the SAA Act could:

    • provide homeless people with a right of access to services or
      assistance

    • guarantee that emergency and supported housing fulfils the adequacy
      requirements.

  4. As noted in the Green Paper, SAAP services turn away a significant number of
    people each day, particularly families with children.

  5. Further, particular groups of people may be excluded from SAAP services,
    including people:

    • who use, are dependent on, or are affected by drugs and/or alcohol

    • who exhibit or who have previously exhibited violence or other challenging
      behaviour

    • affected by mental illness

    • with disability, including people with physical disability, intellectual
      disability or acquired brain
      injury.[17]

  6. The failure to ensure access to SAAP services for people defined as homeless
    may constitute a violation of Australia’s obligation to implement the
    right to adequate housing.

  7. According to the CESCR, the obligation of states under the ICESCR to
    progressively realise the right to adequate housing includes a minimum core
    obligation to provide immediate support for the needs of individuals deprived of
    basic shelter and housing.[18]

  8. Therefore, at a minimum, all Australian governments have an obligation to
    provide homeless people with a right to access emergency and supported
    accommodation as an element of the right to adequate
    housing.[19]

  9. A recent model has been developed in Scotland where housing legislation
    guarantees the right of homeless people to secure adequate housing and requires
    local authorities to recognise this right. This right is to be progressively
    implemented over ten years, after which time every homeless person in Scotland
    will have a right to access
    housing.[20]

  10. Recommendation 2: The Supported Accommodation Assistance Act
    1994     (Cth) should be amended to provide for a right, to be progressively
    realised, to emergency housing and related services for those defined as
    homeless.[21]

  11. Implementation of the right to adequate housing for homeless people would
    also require the government to ensure that SAAP accommodation meets the
    standards of adequacy under human rights
    law.[22] Although SAAP service
    standards exist, and might be expected to require accommodation of a standard
    adequate under human rights law, they do not currently provide this level of
    guarantee.

  12. It is important to recognise that what constitutes adequate housing will
    differ according to the specific needs of vulnerable groups.

  13. Recommendation 3: The Supported Accommodation Assistance Act
    1994     (Cth) should be amended to include national standards providing that
    housing under the Act must be
    adequate.[23]

Effective remedies
for people whose housing rights are violated

  1. The provision of effective remedies is fundamental to the implementation of
    human rights obligations. Certain remedies for breaches of the right to adequate
    housing exist in Australia. For example, an eviction conducted without proper
    process may be challenged in a court or a residential tenancies tribunal.
    However, in many instances, effective remedies have not yet been
    established.

  2. The United Nations Special Rapporteur on Adequate Housing identified the
    lack of mechanisms for people to complain about breaches of housing rights as a
    significant problem in
    Australia.[24]

  3. HREOC’s functions are limited with regard to the right to adequate
    housing as rights under the ICESCR are not part of the definition of
    ‘human rights’ under the Human Rights and Equal Opportunity
    Commission Act 1986     (Cth).[25]

  4. Further, Australia’s current anti-discrimination laws do not prohibit
    discrimination on the grounds of social status or housing
    status.[26] Discrimination on these
    grounds is widely experienced by homeless people in the areas of accommodation
    and the provision of goods and services.

Protection against
forced evictions

  1. As noted in the Green Paper, forced evictions can be a key factor in leading
    people into homelessness.[27]
  2. 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 sectors of
    society.[28]
  3. The CESCR has identified forced evictions, in particular, as a violation of
    the human right to adequate housing. The CESCR notes that:

    evictions should not result in rendering individuals 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.[29]

  4. The Commonwealth government must ensure that evictions from all forms of
    housing do not lead to homelessness.

  5. Eviction from SAAP accommodation should be a measure of last resort, and no
    person should be evicted from SAAP accommodation until alternative accommodation
    is found.

  6. Recommendation 4: The Supported Accommodation Assistance Act
    1994     (Cth) should be amended to ensure that forced eviction from SAAP
    accommodation is a measure of last
    resort.[30]

  7. Evictions from public housing can also lead to homelessness. In certain
    cases, evictions may be a consequence of breaches of behavioural standards.
    Eviction in these circumstances may be a disproportionate response. Government
    public housing authorities are under an obligation to ensure that their decision
    to evict a tenant does not lead to the person being made homeless.

  8. Evictions from private housing can also lead to homelessness. Where a
    private landlord is entitled to an eviction order against a private tenant,
    governments are also required to take all reasonable steps to prevent the person
    being evicted from becoming homelessness.

  9. The UN Special Rapporteur on Adequate Housing noted that there is no
    national policy approach to state and territory residential tenancy legislation
    in Australia. He commented that in most states and territories these laws
    ‘allow landlords to freely evict tenants, or increase rents requiring the
    tenant to take formal remedial action to prove such an increase is
    excessive’.[31] People who are
    forcibly evicted are unable to seek adequate compensation and there are no
    appropriate relocation services for people who cannot secure alternative
    accommodation themselves.[32]

  10. In South Africa, the right to adequate housing is protected under the South African
    Constitution    .[33] The South
    African courts have dealt with the obligations on government authorities to
    prevent homelessness arising from evictions, including evictions from private
    housing. The courts have decided that, before making an order to evict a person
    into homelessness, the court may require the government housing authority to
    advise the court whether the person will be housed following the
    eviction.[34] The court is then
    able to ensure that the eviction does not lead to the person being made
    homeless.

  11. Residential tenancy laws in Australia could be reviewed to enable courts and
    tribunals to require government housing authorities to advise the court on
    housing options for a person facing homelessness. This would prevent vulnerable
    people, particularly where children are involved, from being evicted before
    arrangements are in place for alternative housing. This is an example of how
    residential tenancy laws could be improved to help prevent homelessness.

  12. Recommendation 5: The Commonwealth government should encourage and
    facilitate a review of state and territory residential tenancy laws in order to
    ensure compliance with international human rights standards, including
    protection from forced
    evictions.[35]

The impact of public
space laws

  1. HREOC welcomes the Green Paper’s recognition that people experiencing
    homelessness are disproportionately affected by public space laws which
    criminalise poverty and homelessness, prohibiting begging, sleeping, bathing,
    urinating, storing belongings and drinking in public. Homeless people are also
    affected by ‘move on’ powers that authorise police to displace
    people who occupy and live in public
    spaces.[36]

  2. Public space laws disproportionately affect Indigenous people. ‘Living
    rough’ in public spaces is the most visible face of Indigenous
    homelessness and also one of the most complex. People living in the ‘long
    grass’ and other groups of Indigenous people who camp in public places,
    such as riverbeds and parks, may do so for a variety of reasons. Some camp in
    public places because they have nowhere else to go or no means to get home. Some
    may choose to live in these places for cultural or social reasons, in light of
    the lack of alternative forms of culturally appropriate housing.

  3. The Australian Housing and Urban Research Institute argues that:

    A person may have a sense of ‘home’, and a sense of
    belonging to a place (or set of places), and a recognition and acceptance in
    such a place, but nevertheless may not have any conventional
    accommodation.[37]

  4. This complexity requires consideration when developing a range of
    appropriate responses to Indigenous homelessness, including outreach health,
    income and support services.

  5. Indigenous people living in public places often come into contact with the
    justice system through ‘move on’ laws which leave them feeling
    harassed. There are also concerns that the use of police enforcement measures,
    such as tasers, on homeless people who have mental illness, heart conditions,
    are elderly or young, or may be using drugs and alcohol, poses a greater risk of
    serious harm. Further, contact with the police through the ‘move
    on’ laws can easily escalate resulting in more serious charges that may
    lead to imprisonment. This is of concern given the current over-representation
    of Indigenous people within the criminal justice system.

  6. Enforcement of public space laws through fines, arrest and imprisonment
    undermines the objectives of bringing people into stable housing and maximising
    their social inclusion.

  7. International jurisprudence suggests that these laws may violate the right
    to freedom from cruel, inhuman or degrading treatment or
    punishment.[38] Courts in the United
    States have held that these types of laws violate the constitutional right to
    freedom from cruel and unusual punishment because they punish homeless people on
    the basis of their status and not because of their
    conduct.[39] When there is
    insufficient crisis accommodation or public housing to support homeless people,
    homeless people are forced to break the law involuntarily as they have no
    alternative but to perform these acts in
    public.[40]

  8. The existence of laws which criminalise poverty and homelessness was
    identified by the Special Rapporteur on Adequate Housing as a significant
    impediment to Australia’s implementation of the right to adequate
    housing.[41]

  9. Recommendation 6: State and territory governments should be
    encouraged to review and amend laws that disproportionately impact upon people
    experiencing homelessness, such as public drinking laws and public sleeping
    laws, to ensure that fundamental human rights are
    protected.[42]

Women

  1. As highlighted in the Green Paper, domestic and family violence is the
    leading cause of homelessness amongst
    women.[43]

  2. HREOC supports the acknowledgment that finding secure and affordable housing
    options for all women escaping violence must be a priority. It is also important
    to ensure that housing is appropriate and adapted to meet the diverse needs of
    different women.[44] In some cases,
    women may require financial support to assist them to remain in the family home
    after the perpetrator of violence has moved out. In other cases, support must be
    directed at facilitating the transition from a refuge into independent,
    appropriate and stable
    accommodation.[45]

  3. The government’s new approach to homelessness must be fully integrated
    with strategies to address violence against women and their children, including
    the proposed National Plan on Reducing Violence against Women and Children, in
    order secure the human rights of women experiencing domestic and family
    violence.

  4. Recommendation 7: The government’s homelessness strategy should
    be fully integrated with the development of the National Plan on Reducing
    Violence against Women and Children.

  5. Another major factor that affects the housing circumstances of women is
    relationship breakdown. This is noted by the Green Paper as one of the main
    socio-economic causes of homelessness in
    Australia.[46]

  6. The termination of a marriage or a long-term relationship can have a
    significant adverse effect on the financial circumstances of
    women.[47] This effect may be
    particularly acute for women with dependent children and older women who may
    have had a longer period of dependency on a partner with less ability to secure
    an independent income. Women overall have a lower earning capacity than men due
    to several factors including:

    • that women primarily fulfil caring responsibilities

    • pay inequity

    • over representation of women in lower paid, insecure, casual
      employment.[48]

  7. Consequently, strategies to address women’s economic security and
    independence, including during and following separation and divorce, and across
    the lifecycle are essential to ensuring sustainable housing outcomes.

  8. Recommendation 8: The government’s homelessness strategy should
    incorporate strategies which address the particular vulnerability of women to
    homelessness due to poverty and lack of economic security.

Children and Young people

  1. As noted in the Green Paper, child and youth homelessness is one of the
    biggest problems facing Australia. Young people experiencing homelessness are
    among the most marginalised people in our society and are at risk of serious
    breaches of their rights as set out in the Convention on the Rights of the
    Child     (CRC), including rights to an adequate standard of living, education,
    safety and health.

  2. HREOC supports the range of initiatives outlined in the Green Paper for
    improving education, training and employment outcomes and family connections of
    young people experiencing homelessness.

Supported
Accommodation Assistance Program services

  1. HREOC welcomes the government’s acknowledgment that homelessness
    services often lack the capacity and resources to adequately support the needs
    of the large numbers of families with children, and independent young people
    seeking assistance.

  2. The Green Paper identifies that children are not counted in SAAP data
    collection as clients and funding for responding to the needs of children is not
    specifically allocated through
    SAAP.[49]

  3. Specifically, the SAA Act does not recognise children and young people below
    school leaving age as a specific group for the purpose of making service
    agreements, unless they are part of families or accompanying
    women.[50] It is assumed that these
    children and young people will be looked after by state child protection
    authorities.[51] This means there
    are no targeted resources to assist children and young people experiencing
    homelessness.

  4. Recommendation 9: The SAAP funding framework should be amended to
    recognise children and young people as a specific client group so that
    designated funding can be provided for adequate child-specific services.

  5. HREOC notes the Preamble of the SAA Act makes reference to the CRC.

  6. Article 3 of the CRC 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’.

  7. Currently, consideration of this principle and other child rights are not
    incorporated into processes for developing policy and delivering services to
    children and young people experiencing homelessness.

  8. Recommendation 10: The Supported Accommodation Assistance Act
    1994     (Cth) should be amended to incorporate the best interests of the child
    as a principle guiding both the development of SAAP policy and the delivery of
    homelessness services that affect children.

Care and protection
services

  1. The Green Paper highlights the well-documented correlation between state
    care and protection and
    homelessness.[52]

  2. HREOC notes that there is evidence that a large number of children and young
    people are referred to and seek assistance from SAAP services when state care
    and protection services are unable to provide them with adequate
    support.[53] There is also evidence
    that young people who leave care when they reach a certain age are at
    significant risk of becoming
    homeless.[54]

  3. HREOC acknowledges that the government is currently developing a national
    child protection framework to address these issues. HREOC urges that this
    framework be fully integrated with the government’s new approach to
    homelessness.[55]

  4. Recommendation 11: The Commonwealth government should coordinate the
    development of a national care and protection policy to ensure that children at
    risk of homelessness are given prioritised support.

Services for
Indigenous children

  1. As has been frequently reported, most recently in the Little Children are
    Sacred     report, there is a high prevalence of child abuse in Indigenous
    communities.[56] Indigenous children
    at risk of abuse are vulnerable to becoming homeless.

  2. Access to Indigenous community services is an important means of preventing
    vulnerable children from becoming homeless.

  3. The 2007 Social Justice Report examined the ‘Safe Families’
    program run by Tangentyere Council in Alice Springs as a way of providing
    culturally appropriate accommodation and support for children at risk or already
    involved in the child protection
    system.[57] Safe Families has
    achieved great success and provides an essential service but has experienced
    difficulty in gaining sustainable funding. This demonstrates the need for more
    streamlined and less bureaucratic funding processes in the homelessness
    sector.

  4. Initiatives like the ‘Safe Haven’ partnership between the
    Commonwealth government and Queensland government to provide appropriate
    accommodation and support to avoid children’s placement with child
    protection authorities should also be considered in other parts of the
    country.[58]

  5. Recommendation 12: Indigenous community programs and services that
    provide accommodation and support for Indigenous children at risk should be
    identified and supported.

Indigenous people

Indigenous
definitions of homelessness

  1. The Green Paper rightly points out that Indigenous people are likely to
    experience homelessness because of the high levels of social and economic
    disadvantage.

  2. According to the 2006 Census, there were 4116 Indigenous people who were
    homeless on Census night. This included 2283 Indigenous people with no
    conventional accommodation (i.e. in improvised dwellings or sleeping rough), 662
    in hostels, refuges or night shelters, and 1171 residing temporarily with
    others.[59] The Northern Territory
    recorded the largest number of Indigenous homeless people (1143), followed by
    Queensland (1019).[60]

  3. Correspondingly, there were 16 200 Aboriginal and Torres Strait Islander
    people aged 15 years or over who received SAAP support in 2005-06, making up 17%
    of all SAAP clients.[61] In every
    state and territory, Indigenous clients of SAAP services were substantially
    over-represented relative to the proportion of Indigenous people in those
    jurisdictions.[62]

  4. However, Indigenous homelessness can be a distinct experience from
    non-Indigenous homelessness, with different causes, dynamics and solutions.
    Various reports have argued that there needs to be a distinct definition of
    Indigenous homelessness:

    the notion of ‘home’ or
    ‘house’ can be differently perceived by Indigenous and non
    Indigenous. Housing for Indigenous communities necessitates a close examination
    of its cultural adequacy to the way of life of these
    communities.[63]

  5. The 2006 report Indigenous Homelessness within Australia recognises
    five different forms of Indigenous homelessness:

    • spiritual homelessness (separation from traditional land or family)

    • overcrowding

    • relocation and transient homelessness (which results in temporary,
      intermittent and often cyclical patterns of homelessness due to transient and
      mobile lifestyles, and also results in a larger proportion of the Aboriginal and
      Islander population, relative to the non-Indigenous population, having to travel
      to obtain services)

    • escaping from unsafe or unstable homes

    • lack of access to any stable shelter (i.e. ‘nowhere to
      go’).[64]

  6. These categories are more complex and nuanced that the definition used in
    the Green Paper (primary, secondary and tertiary homelessness).

  7. National consultations undertaken as part of the 2006 Indigenous
    Homelessness within Australia     report all argued for the inclusion of the
    spiritual element to articulate another dimension of homelessness that is
    distinct from non-Indigenous experience, as well as to reinforce the deep
    Indigenous connection to land and
    country.[65] Disconnection from land
    and country impacts negatively on individual, family and community wellbeing.
    Addressing homelessness is not just about bricks and mortar, but helping to
    re-establish the connections that build strong Indigenous communities.

  8. Homelessness, like all issues affecting Indigenous people, needs to be
    treated holistically. Housing and any other support services need to be built on
    a foundation of cultural safety and as part of broader community
    development.

Indigenous housing
crisis

  1. In 2006, the Special Rapporteur on Adequate Housing identified that there
    was an Indigenous housing crisis in Australia. He argued that the following
    factors have led to a ‘severe housing crisis’ which is likely to
    worsen in coming years as a result of the rapid rate of population growth in
    Indigenous communities:

    • lack of affordable and culturally appropriate housing

    • lack of appropriate support services

    • significant levels of poverty

    • underlying
      discrimination.[66]

  1. Further factors that contribute to Indigenous homelessness include:

    • Many Indigenous people enter poverty and homelessness as a result of poor
      educational and employment opportunities

    • Indigenous people are vulnerable to homelessness when they are forced to
      move in order to access employment and income support

    • The removal or temporary suspension of welfare benefits can increase the
      chances of an Indigenous person becoming homeless

    • A recent survey of housing in the Northern Territory by Professor Torzillo
      found that 65% of houses surveyed in remote communities did not have a working
      shower. Such inadequate housing can severely impact on the health of residents.
      While we applaud initiatives to improve health through better housing, like the
      ‘Fixing Houses for Better Health’ program, there is still a long way
      to go if we are to close the gap in Indigenous and non-Indigenous housing and
      health outcomes.

    • The amendments to the Aboriginal Land Rights Act 1976 (NT) were a
      point of concern noted by the Special Rapporteur, as contributing to inadequate
      housing, by undermining security of tenure. More recently, the Social Justice
      Report 2007 outlined concerns about the compulsory acquisition of property
      without the protection of just terms compensation as further undermining
      security of tenure on a community-wide level.

    • Ensuring that housing is culturally appropriate is necessary to make a
      difference to Indigenous homelessness. This means that consultation must occur
      with local people to ensure that housing design meets local cultural and
      environmental needs.[67]

  1. HREOC supports the broad intention to move away from the crisis model of the
    SAAP service provision towards a more integrated, holistic response that
    addresses the Indigenous housing crisis.

  2. However, there also seems to be a shift towards provision of services
    through mainstream agencies. The experience of mainstreaming Indigenous services
    thus far has been problematic. Given that Indigenous homelessness is so complex,
    a one size fits all approach will not give enough flexibility and creativity to
    solve the problem of Indigenous homelessness. In this regard, it is important to
    ensure that specific services for Indigenous people, especially services
    provided by Indigenous staff, are well resourced and made accessible to
    Indigenous communities.

  3. Recommendation 13: The work of the National Joint Policy Commission
    on Indigenous Housing should be integrated with the strategies targeting
    homelessness to ensure a comprehensive national approach to Indigenous housing
    and homelessness.

Overcrowding –
hidden homelessness

  1. Overcrowding is the hidden face of Indigenous homelessness. In 2004-05,
    nationally, 26.9% of Indigenous people (aged 18 years and older) were living in
    overcrowded households, with a staggering 65.3% experiencing overcrowding in the
    Northern Territory.[68]

  2. Overcrowding results in poor health outcomes and can also increase the risk
    of family violence and child protection issues, as documented in the Little
    Children are Sacred     report. In this report, Anderson and Wild found that
    children living in overcrowded housing were more likely to be exposed to
    pornography, adults having sex and intoxicated
    adults.[69] Lack of privacy and
    space can contribute to tempers fraying and family violence affecting women and
    children.

  3. Overcrowding can also lead to long-term housing problems. Breach of tenancy
    agreements by overcrowding, and resulting anti-social behaviour complaints by
    neighbours, can be lasting strikes on Indigenous people’s tenancy records,
    which can lead to them being moved down the list in the allocation of public
    housing. This may lead to Indigenous people waiting longer than they should for
    adequate housing.

Family
violence

  1. Family violence is the most common reason for Indigenous people to be
    seeking assistance from a SAAP organisation. The dynamics of Indigenous family
    violence and subsequent need for housing are often different to that of
    non-Indigenous women and children, particularly in remote areas. Indigenous
    women may access a safe house to escape immediate situations of violence, to
    prevent violence from occurring or to have some time out. It is often a
    temporary way to manage violence in the community rather than a means to escape
    or to end contact with the violent partner.

  2. Indigenous male perpetrators of family violence have also identified a need
    for ‘time-out places’, where they can remove themselves from the
    family home for a temporary period, thus removing themselves from situations
    where they might carry out acts of family violence. Such places can also be an
    opportunity for men to meet and obtain support from other men. Having a
    ‘time-out place’ could benefit some men by giving them options,
    other than moving out of home, that will assist them in stopping their acts of
    family violence, and could contribute to reduced homelessness among men in this
    situation.

  3. The 2007 Social Justice Report provided a number of case studies about
    promising practice in addressing family violence and child abuse, including a
    case study of the Yuendumu Safe House. However, HREOC has also heard about
    communities like Balgo in Western Australia where, despite the very high levels
    of family violence, there is no safe house in the community.

  4. In addition to providing essential emergency accommodation for women, the
    presence of a community controlled safe house can also serve to empower women
    and reinforce the view that family violence is unacceptable. Safe houses are
    often run by women’s groups that provide other services, such as night
    patrol and children’s services, representing a multidimensional service
    that can address the causes of homelessness.

  5. Recommendation 14: Indigenous community services to provide
    accommodation support and assistance for Indigenous women and children
    experiencing family violence should be supported, and mainstream SAAP services
    should be adequately resourced to meet the specific needs of Indigenous women
    and children.

Indigenous
prisoners

  1. Indigenous people exiting prison or juvenile justice facilities are
    particularly at risk of homelessness. Indigenous prisoners are one of the most
    disadvantaged groups of prisoners and often have very poor access to housing
    when they leave custody. Lack of accommodation has been found to be a critical
    factor in the continuation of the cycle of crime, thus preventing rehabilitation
    and reintegration.

  2. The 2004 Social Justice Report focused on the post-release needs of
    Indigenous women prisoners and found significant gaps in housing support for
    women leaving prison. Indigenous women leaving prison have very few options.
    Crisis accommodation is limited and there are few medium to long-term
    accommodation programs. Many Indigenous women prisoners face either returning to
    a violent partner or ending up on the streets, both of which increase the
    likelihood of reoffending.[70]

  3. Indigenous women and men prisoners may also have mental health or substance
    abuse issues which can further limit their accommodation options. Oglivy
    comments:

    the special need of prisoners frequently make accessing
    programs of one sort or another difficult. For example, many domestic violence
    shelters exclude people with drug problems and many hostels exclude women with
    children. Given that for women prisoners, coping with drug related issues and
    motherhood are often critical to their re-integration back into the community,
    these sorts of exclusions can seriously impede successful re-integration into
    the general community.[71]

  4. Not only do these concerns hinder a woman's chances of obtaining secure
    accommodation but they also contribute to the likelihood of re-offending.
    Accommodation services that can cope with these complex issues in a holistic
    fashion are urgently required.

  5. Another concern is the situation of juvenile offenders being granted bail
    pending suitable accommodation. In NSW, for homeless youth or youth who cannot
    return home, magistrates have the option of setting bail with a condition that
    relies on the responsible government department providing accommodation. In
    these circumstances, the child will not be released on bail unless the
    government department allocates accommodation. In the absence of available
    accommodation, a child can remain in detention even if the original charge is
    minor and, if convicted, would not attract a custodial sentence. There is a
    pressing need for bail support accommodation, especially in rural areas where
    accommodation is very
    limited.[72]

  6. Recommendation 15: Adequate and culturally appropriate accommodation
    support services should be provided to Indigenous people exiting prison or
    juvenile justice facilities and bail support accommodation should be made
    available, especially in rural areas.

Mental health

  1. HREOC welcomes the recognition of people with disability and in particular
    people affected by mental illness, as being at particular risk of homelessness
    and as having needs which are not adequately addressed by current service and
    policy models. HREOC urges the focus on these issues to be maintained in the
    development and implementation of a national strategy on homelessness.

  2. HREOC’s own work supports the need, as identified in the Green Paper,
    for integrated approaches to
    homelessness.[73] Rather than
    housing issues being addressed in isolation, an integrated approach could
    include issues such as income support, assistance and supports in gaining or
    retaining employment, and access to health services and related supports.

  3. The principal recommendation of the National Inquiry on Employment and
    Disability was for the development of a national strategy on disability and
    employment issues, including addressing issues of co-ordination between services
    and programs administered by different areas and levels of government. HREOC
    welcomes the commitment of the new government to such a strategy and the
    commencement of work towards its development. HREOC urges co-ordination between
    the development of a national strategy on homelessness and the National Mental
    Health and Disability Employment Strategy.

  4. HREOC also welcomes the government’s commitment, within the framework
    of its Social Inclusion Agenda, to the development of a broader National
    Disability Strategy.

  5. In view of the evidence referred to in the Green Paper of the scale of
    overlap between homelessness issues and mental health and disability issues,
    HREOC urges close co-ordination between the development of a national strategy
    on homelessness and of the National Disability Strategy. In each case these
    should integrate policy and strategy across areas and between levels of
    government.

  6. HREOC welcomes the commitments noted in the Green Paper for additional
    funding specifically for community housing for people with disabilities. HREOC
    also notes however, that substantial additional provision of funding is required
    to address the needs and rights of those people with disability who require
    housing and related support.

  7. HREOC notes the importance of addressing the specific needs of Indigenous
    people with mental health and disability issues in the context of homelessness.

  8. It is important to integrate the homelessness strategy with other national
    strategies that address mental health concerns of Indigenous people. In
    particular the homelessness strategy should be cognisant of:

    • Aboriginal and Torres Strait Islander Social and Emotional Well-Being
      Framework:       this focuses on the need for a holistic and ‘whole of
      life’ approach to achieving the conditions for well-being. The Framework
      supports self-determination and recognises the impact of trauma, grief, loss,
      discrimination and human rights issues on the social and emotional well being of
      Aboriginal and Torres Strait Islander
      communities.[74]

    • National Mental Health Plan 2003-2008; this emphasises the need for
      partnerships between mental health services and Indigenous specific health
      services, with Aboriginal and Torres Strait Islander peoples taking a lead
      role.[75]

  1. There is currently no national data collection process that is able to
    provide accurate information on the incidence of mental health disorders among
    Indigenous people. The data currently collated is limited to hospitalisation
    reports for suicide, substance abuse and family and community violence alone.
    In 2006, 5% and 3% of all hospitalisations of Indigenous males and females
    respectively were for mental and behavioural
    disorders.[76]

  2. Despite the prevalence of mental health problems in Indigenous communities,
    there is a reported lack of response services available for Indigenous people.
    Government reports show that non-Indigenous models of mental health and
    ill-health have only limited application for Indigenous peoples: 74% of
    residents of discrete communities have inadequate access to visiting or resident
    mental health workers; Indigenous people have disproportionately low access to
    general practitioners and private medical specialists, such as psychiatrists,
    because of the cost of such services; and only 38% of Commonwealth funded
    Aboriginal Community Controlled Health Services have a dedicated mental health
    or social and emotional wellbeing
    worker.[77]

  3. The lack of available services to address mental health disorders
    experienced by Indigenous people makes them vulnerable to homelessness and
    social exclusion.

  4. Recommendation 16: Consideration should be given to development and
    oversight through the Ministerial Council on housing of a national agenda on
    housing and people with disability including people affected by mental
    illness.

Accessibility

  1. The preceding section has set out recommendations for actions in relation to
    people with disability including people affected by mental illness which HREOC
    considers should be taken in the interests of ensuring that measures to address
    homelessness are effective and consistent with Australia’s international
    commitments on human rights. HREOC also wishes to highlight specific issues in
    relation to disability which in our view need to be addressed to ensure not only
    that measures to address homelessness are effective, but also that they are
    consistent with the requirements of federal law under the Disability
    Discrimination Act 1992     (Cth).

  2. HREOC welcomes the acknowledgment in the Green Paper of the need to address
    barriers for people with disability in access to accommodation and related
    services. HREOC recommends that this acknowledgment should be translated into
    more specific measures to address these barriers.

  3. Recommendation 17: The Commonwealth government should ensure
    that:

    • federal funding for construction of new housing or other accommodation is
      applied only to accessible facilities

    • state and territory governments similarly adopt universal access standards
      in construction of new public housing and any other accommodation
      facilities.

Immigration

  1. Asylum seekers who seek refugee status in Australia and who are living in
    the community are particularly vulnerable to homelessness.

  2. While refugees and asylum seekers represent only a small proportion of
    clients of housing assistance services, research has found that the unique
    circumstances of this group places a greater level of demand on their
    resources.[78]

  3. Risk factors of housing vulnerability amongst asylum seekers and refugees
    include:

    • restricted eligibility to entitlements, such as Medicare and social
      security

    • settlement barriers, such as language problems

    • personal issues, such as survival of torture and
      trauma.[79]

Restricted
eligibility to entitlements

  1. Asylum seekers are commonly granted bridging visas to enable them to remain
    in Australia while they apply for a substantive visa or make arrangements to
    leave Australia.

  2. Bridging visas granted to asylum seekers often restrict the rights of the
    visa holder to work, receive social security, and access Medicare and the
    Pharmaceutical Benefits Scheme.[80] Restricted bridging visas are often granted to asylum seekers who come to
    Australia under a valid visa and wish to apply for a Permanent Protection visa,
    but do not lodge their application within 45 days of arriving in Australia.

  3. Many asylum seekers on bridging visas are also ineligible for support
    through the Asylum Seeker Assistance Scheme
    (ASAS).[81] The ASAS provides
    financial assistance, accommodation and healthcare to asylum seekers in
    financial hardship, unaccompanied minors or elderly people, parents with
    children under 18, and people who are unable to work due to disability, illness,
    torture or trauma. However, eligibility for the ASAS ceases if a person seeks
    review of their application beyond the Refugee Review
    Tribunal.[82]

  4. As a result of these restrictions, many asylum seekers and refugees face
    poverty and homelessness. Without the ability to support themselves through work
    or social security, they are entirely dependent on community services for their
    basic subsistence. Research has also shown that these pressures can have
    negative effects on the physical and social well-being of asylum seekers,
    including anxiety, depression, mental health issues and family
    breakdown.[83]

  5. HREOC is concerned that conditions and restrictions attached to bridging
    visas may significantly impact on the ability of asylum seekers and refugees to
    exercise their basic human rights, including the right to work, the right to
    social security, the right to an adequate standard of living and the right to
    the highest attainable standard of
    health.[84]

  6. Recommendation 18: Asylum seekers living in the community should be
    granted work rights and access to Medicare. Those who are unable to work should
    be granted access to financial and medical assistance through the
    ASAS.

Settlement
barriers

  1. Barriers to settlement have been shown to contribute to levels of poverty
    and housing vulnerability amongst asylum seekers and refugees in Australia. As a result of language difficulties, lack of knowledge about services, lack
    of community connections and support networks, and torture and trauma issues,
    many asylum seekers are socially isolated and unable to seek
    assistance.[85]

  2. Children and young people seeking asylum in Australia have been found to be
    at even greater risk of homelessness due to their distinct needs that must be
    addressed independently of their family or carers’
    needs.[86] Many young people have
    had limited or disrupted schooling, they may come to Australia alone or in the
    care of someone unfamiliar to them, and there may be significant religious and
    cultural barriers that prevent them from taking advantage of available
    services.[87]

  3. Recommendation 19: Services for assisting settlement of asylum
    seekers and refugees should be improved and expanded, including further language
    support, health and education services, and free information and advice about
    housing and settlement issues and special assistance for children.

Welfare payments

  1. HREOC notes the recognition in the Green Paper of the potential of
    ‘breaching’ regimes and former provision for suspension of social
    security payments for eight week periods, to render disadvantaged people (and in
    some cases their families) homeless or put their housing at risk.

  2. Access to welfare benefits can be an important means of preventing
    homelessness and related social exclusion.

  3. However, conditions in the current welfare regime often prevent people from
    accessing vital welfare benefits and leaving them vulnerable to homelessness.

  4. The Social Policy Research Centre has found that up to 30% of those faced
    with an eight-week no payment penalty can lose their accommodation. This is
    significant given the high numbers of people being subjected to the eight-week
    no payment penalty. The Welfare Rights Network has reported that a total of 40
    868 of these penalties have been applied since the commencement of
    ‘Welfare to Work’.[88] Startlingly, in northern Australia, 68% of those who lost all social security
    payments for eight weeks were Indigenous people, and in Western Australia, 29%
    of those who lost payments for eight weeks were Indigenous
    people.[89]

  5. In addition, homeless people are not categorised as being
    ‘exceptionally vulnerable’ within certain components of the welfare
    regime, thus preventing them from accessing specific benefits for vulnerable
    people. For example, within the current penalty regime, there is a Financial
    Case Management (FCM) system to give some people who lose their payments for
    eight weeks access to an equivalent weekly amount paid directly on their behalf
    for ‘essential expenses’ such as food. However, under the rules for
    the case management system, homeless people are not considered
    ‘exceptionally vulnerable’ and therefore unable to avail themselves
    of this interim assistance.[90]

  6. Similarly, the Crisis Payment available to people on a social security
    payment is limited to a number of defined ‘extreme circumstances’
    – for instance, people just out of prison, experiencing domestic violence
    or on a qualifying humanitarian visa, is inadequate and insufficient to provide
    the level of assistance needed to prevent homelessness for people in even these
    few defined circumstances.[91]

  7. Recommendation 20: There should be continued review of the impact of
    compliance measures in the social security system on people who by reason of
    mental health or other disability issues have particular difficulty in meeting
    social security compliance requirements.

  8. Recommendation 21: Welfare regimes should be reviewed and amended to
    ensure that no welfare recipient is made vulnerable to homelessness as a result
    of a welfare penalty.

Appendix – Recommendations

  1. Recommendation 1: The Commonwealth government should develop a
    national housing strategy. Addressing homelessness would be a key aspect of any
    housing plan. This strategy should be developed in consultation with people who
    are homeless or formerly homeless, people who are inadequately housed, and their
    representatives.

  2. Recommendation 2: The Supported Accommodation Assistance Act
    1994     (Cth) should be amended to provide for a right, to be progressively
    realised, to emergency housing and related services for those defined as
    homeless.

  3. Recommendation 3: The Supported Accommodation Assistance Act
    1994     (Cth) should be amended to include national standards providing that
    housing under the Act must be adequate.

  4. Recommendation 4: The Supported Accommodation Assistance Act
    1994     (Cth) should be amended to ensure that forced eviction from SAAP
    accommodation is a measure of last resort.

  5. Recommendation 5: The Commonwealth government should encourage and
    facilitate a review of state and territory residential tenancy laws in order to
    ensure compliance with international human rights standards, including
    protection from forced
    evictions.[92]

  6. Recommendation 6: State and territory governments should be
    encouraged to review and amend laws that disproportionately impact upon people
    experiencing homelessness, such as public drinking laws and public sleeping
    laws, to ensure that fundamental human rights are
    protected.[93]

  7. Recommendation 7: The government’s homelessness strategy should
    be fully integrated with the development of the National Plan on Reducing
    Violence against Women and Children.

  8. Recommendation 8: The government’s homelessness strategy should
    incorporate strategies which address the particular vulnerability of women to
    homelessness due to poverty, and lack of economic security.

  9. Recommendation 9: The SAAP funding framework should be amended to
    recognise children and young people as a specific client group so that
    designated funding can be provided for adequate child-specific services.

  10. Recommendation 10: The Supported Accommodation Assistance Act
    1994     (Cth) should be amended to incorporate the best interests of the child
    as a principle guiding both the development of SAAP policy and the delivery of
    homelessness services that affect children.

  11. Recommendation 11: The Commonwealth government should coordinate the
    development of a national care and protection policy to ensure that children at
    risk of homelessness are given prioritised support.

  12. Recommendation 12: Indigenous community programs and services that
    provide accommodation and support for Indigenous children at risk should be
    identified and supported.

  13. Recommendation 13: The work of the National Joint Policy Commission
    on Indigenous Housing should be integrated with the strategies targeting
    homelessness to ensure a comprehensive national approach to Indigenous housing
    and homelessness.

  14. Recommendation 14: Indigenous community services to provide
    accommodation support and assistance for Indigenous women and children
    experiencing family violence should be supported, and mainstream SAAP services
    should be adequately resourced to meet the specific needs of Indigenous women
    and children.

  15. Recommendation 15: Adequate and culturally appropriate accommodation
    support services should be provided to Indigenous people exiting prison or
    juvenile justice facilities and bail support accommodation should be made
    available, especially in rural areas.

  16. Recommendation 16: Consideration should be given to development and
    oversight through the Ministerial Council on housing of a national agenda on
    housing and people with disability including people affected by mental
    illness.

  17. Recommendation 17: The Commonwealth government should ensure
    that:

    • federal funding for construction of new housing or other accommodation is
      applied only to accessible facilities

    • state and territory governments similarly adopt universal access standards
      in construction of new public housing and any other accommodation
      facilities.

  18. Recommendation 18: Asylum seekers living in the community should be
    granted work rights and access to Medicare. Those who are unable to work should
    be granted access to financial and medical assistance through the ASAS.

  19. Recommendation 19: Services for assisting settlement of asylum
    seekers and refugees should be improved and expanded, including further language
    support, health and education services, and free information and advice about
    housing and settlement issues and special assistance for children.

  20. Recommendation 20: There should be continued review of the impact of
    compliance measures in the social security system on people who by reason of
    mental health or other disability issues have particular difficulty in meeting
    social security compliance requirements.

  21. Recommendation 21: Welfare regimes should be reviewed and amended to
    ensure that no welfare recipient is made vulnerable to homelessness as a result
    of a welfare penalty.

[1] HREOC is established by the Human Rights and Equal Opportunity Commission Act 1986 (Cth)
(‘HREOC Act’). Sections 11 and 31 of the HREOC Act set out
HREOC’s functions relating to human rights and equal opportunity in
employment respectively. HREOC also has functions under the Commonwealth Sex
Discrimination Act 1984, Racial Discrimination Act 1975, Disability
Discrimination Act 1992 and Age Discrimination Act
2004.

[2] Philip Lynch,
‘Homelessness, Human Rights and Social Inclusion’ (2005) 30(3) Alternative Law Journal 116.

[3] The right to adequate
housing is recognised by article 11(1) of the International Covenant on
Economic, Social and Cultural Rights (ICESCR) and article 27(3) of the Convention on the Rights of the Child (CRC). This right is also reflected
in article 5(e)(iii) of the International Convention on the Elimination of
all forms of Racial Discrimination (ICERD) and article 14(2)(h) of the Convention on the Elimination of all forms of Discrimination against
Women (CEDAW).

[4] Committee
on Economic, Social and Cultural Rights (CESCR), General Comment 4: The right
to adequate housing, para
7.

[5] CESCR, General Comment 4:
The right to adequate housing, para
8.

[6] For more detailed discussion
of the human rights implications of homelessness, see Human Rights and Equal
Opportunity Commission, Homelessness is a Human Rights Issue, 2008,
available at
http://www.humanrights.gov.au/human_rights/housing/homelessness_2008.ht…. The
human rights relevant to people experiencing homelessness include: the right to
an adequate standard of living, including adequate housing; the right to life,
liberty and security of the person; the right to respect for privacy, family and
home, the right to freedom from cruel, inhuman and degrading treatment, the
right to the highest attainable standard of health; the right to social
security; the right to work; the right to education; the right to vote; the
right to participate in cultural and political life; the right to freedom from
discrimination; the right to freedom of expression; the right to freedom of
association; the right to freedom of movement; the right to a fair hearing and
effective remedy for violation of human rights; and the special rights of
children and young people.

[7] Green Paper, Principles for change,
p57.

[8] Green Paper, Principles
for change, p57.

[9] CESCR, General Comment 3: The nature of States parties’ obligations, para
2.

[10] CESCR, Concluding Observations on Australia, E/C12/1/Add50, 1 September 2000,
para 34.

[11] 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/4/18/Add.2,
11 May 2007, para 127.

[12] See Report of the Special
Rapporteur.

[13]Report of
the Special Rapporteur para 32.

[14] Note that the Human
Rights Act 2004 (ACT) and Charter of Human Rights and Responsibilities
Act 2006 (Vic) do not currently include economic, social and cultural
rights.

[15] United Nations Human
Rights Council, Draft Report of the Human Rights Council on its Eighth
Session, UN Doc A/HRC/8/L.10 (26 June 2008) paras
109-113.

[16] Supported
Accommodation Assistance Act 1994 (Cth), Preamble, section 5.

[17] NSW Ombudsman, Summary
Report: Assisting homeless people – the need to improve their access to
accommodation and support services, May 2004,
p8.

[18] CESCR, General
Comment 3: The nature of States parties’ obligations, paras
9-10.

[19] Homelessness and
Human Rights in Australia, Submission to the Supported Accommodation
Assistance Program (SAAP IV) National Evaluation, November 2003, p34, fn9.

[20] Housing (Homeless
Persons) Act 1977; Housing (Scotland) Act 2001; Homelessness etc.
(Scotland) Act 2003.

[21] Such a right could be progressively implemented by gradually broadening the
categories of people who may rely on the right. See Homelessness and Human
Rights in Australia, recommendation 1.

[22] See definition of
‘adequacy’ in CESCR, General Comment 4: The right to adequate
housing, para 8.

[23] Homelessness and Human Rights in Australia, recommendation 2; CESCR, General Comment 4: The right to adequate housing, para
8.

[24] Report of the Special
Rapporteur, para 16.

[25] Human Rights and Equal Opportunity Act 1986 (Cth), s
3.

[26] Homelessness and Human Rights in Australia, p11.
See for example Anti-Discrimination Act 1977 (NSW); Anti-Discrimination Act 1991 (Qld), s 7; Equal Opportunity Act
1995 (Vic), s 6; Equal Opportunity Act 1984 (WA).

[27] Green Paper,
Identifying the Problem,
p10.

[28] Report of the
Special Rapporteur, para 67. See also Human Rights Council, Basic
principles and guidelines on development-based evictions and displacement,
2007, A/HRC/4/18.

[29] CESCR, General Comment 7: The right to adequate housing: forced
evictions, para 16.

[30] Homelessness and Human
Rights in Australia, recommendation
3.

[31] Report of the Special
Rapporteur, para 17.

[32] Report of the Special Rapporteur, para
69.

[33] South African
Constitution, s 26.

[34] Lingwood v The Unlawful Occupiers of R/E of Erf 9 Highlands (Unreported,
High Court of South Africa, Witwatersrand Local Division, Mogagabe AJ,16 October
2007).

[35] This recommendation
was also made in the Report of the Special Rapporteur, para
131.

[36] See for example: Police Powers and Responsibilities Act 2000 (Qld), ss 46-48; Law
Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 197; Summary
Offences Act 1953 (SA), s 18; Police Offences Act 1935 (Tas), s 15B; Summary Offences Act 2002 (NT), s 47A; Crime Prevention Powers Act
1998 (ACT), s 4.

[37] Memmott, P., Long, S., Chambers, C., and Spring, F., Categories of Indigenous
‘homelessness’ people and good practice responses to their
needs, Australian Housing and Urban Research Institute, 2003,
p(i).

[38] International
Covenant on Civil and Political Rights (ICCPR), article 7; CRC, article 37;
Lynch, P. and Cole, J., ‘Homelessness and Human Rights: Regarding and
Responding to Homelessness as a Human Rights Violation’, Melbourne
Journal of International Law, 2003, vol 4,
pp147-149.

[39] Jones v City
of Los Angeles, No. CV 03-01142 ER, (9th Cir. 2006); State v.
Wicks, Nos. 2711742 & 2711743, (Ore. Cir. Ct. Multnomah County 2000).
See also The National Coalition for the Homeless and The National Law Center on
Homelessness & Poverty, A Dream Denied: The Criminalisation of
Homelessness in U.S. Cities, 2006, pp10,
79-105.

[40] Pottinger v
Miami, 810 F Supp 1551 (SD Fla,
1992).

[41] Report of the
Special Rapporteur, paras 47,
132.

[42] Report of the
Special Rapporteur, para
132.

[43] Green Paper, pp15, 21,
41.

[44] Green Paper,
p21.

[45] Tually, S., Beer, A.,
and Faulkner, D., Too Big to Ignore: Future Issues for Australian
Women’s Housing 2006-2025, Australian Housing and Urban Research
Institute, Executive Summary, September 2007,
p(v).

[46] Green Paper,
p20.

[47] AHURI, Too Big to
Ignore, Executive Summary,
p(v).

[48] HREOC, Listening
Tour Community Report (2008, forthcoming).

[49] Green Paper, Structure of
the Supported Accommodation Assistance Program,
p29.

[50] Supported
Accommodation Assistance Act 1994 (Cth), s
13(1).

[51] National Youth
Commission, Australia’s Homeless Youth: A Report of the National Youth
Commission Inquiry into Youth Homelessness, 2008, Brunswick, para
9.8.

[52] Green Paper, Causes of
homelessness, p24.

[53] National
Youth Commission, Australia’s Homeless Youth, paras
9.9-9.20.

[54] National Youth
Commission, Australia’s Homeless Youth, paras
9.21-9.44.

[55] Green Paper,
Government reforms that will affect homelessness,
p73.

[56] Northern Territory
Government, Board of Inquiry into Protection of Aboriginal Children from Sexual
Abuse, Ampe Akelyernemane Meke Mekarle ‘Little Children are
Sacred’, 2007, available at http://www.nt.gov.au/dcm/inquirysaac/pdf/bipacsa_final_report.pdf.

[57] HREOC, Social Justice Report, 2007, available at http://www.humanrights.gov.au/social_justice/sj_report/sjreport07/index.html.

[58] See Queensland Government, Safe Haven, available at
http://www.communities.qld.gov.au/family/safe-haven/.

[59] Australian Bureau of Statistics (ABS), Australian Institute of Health and
Welfare, The Health and Welfare of Australia’s Aboriginal and Torres
Strait Islander Peoples, Canberra 2008, Table
4.16.

[60] ABS, The Health and
Welfare of Australia’s Aboriginal and Torres Strait Islander Peoples,
p46.

[61] ABS, The Health and
Welfare of Australia’s Aboriginal and Torres Strait Islander Peoples,
Table 4.17.

[62] ABS, The
Health and Welfare of Australia’s Aboriginal and Torres Strait Islander
Peoples, p47.

[63] United
Nations Special Rapporteur on adequate housing, Preliminary Observations,
Mission to Australia, 31 July – 15 August 2006, Canberra, 15 August
2006, p8, available at http://www.hreoc.gov.au/social_justice/international_docs/pdf/un_sp_housing_missiontoaustralia_15aug2006.pdf

[64] Commonwealth of Australia, Commonwealth Advisory Committee on Homelessness and
the Department of Families, Community Services and Indigenous Affairs, Indigenous Homelessness within Australia’, 2006,
p9.

[65] Commonwealth of
Australia, Indigenous Homelessness within Australia, 2006,
p9.

[66] Report of the Special
Rapporteur, paras 80,
85.

[67] The CESCR has noted that
cultural adequacy is an essential aspect of housing adequacy: “the way
housing is constructed, the building materials used and the policies supporting
these must appropriately enable the expression of cultural identity and
diversity of housing”: CESCR, General Comment 4: The right to adequate
housing, para 8(g).

[68] Australian Institute of Health and Welfare, Analysis of National Aboriginal and
Torres Strait Islander Housing Survey (2004–05) and National Health Survey
(2004–05), Table 2.02.2, available at http://www.aihw.gov.au/publications/ihw/atsihpf06r/atsihpf06r-c02-02.pdf.

[69] Little Children are Sacred,
p195.

[70] HREOC, Social
Justice Report 2004, available at
http://www.humanrights.gov.au/social_justice/sj_report/sjreport04/index….

[71] Ogilvy, E., 'Prisoners Post Release'-release', Parity - Post Release-release
and Homelessness Issue, vol 14, no 10, November 2001, pp16-17.

[72] See for example, Bailey,
B., Submission to the Inquiry into Children and Young People 9-14 Years in
NSW, Public Interest Advocacy Centre, 15 May 2008, p6, available at
http://www.piac.asn.au/publications/pubs/08.04.23-PIAC%20CC%209%20to%20….

[73] See for example Report of the National Inquiry on Employment and Disability,
2007, available at
http://www.humanrights.gov.au/disability_rights/employment_inquiry/inde…; Not for Service, Report of consultations undertaken by HREOC, the Mental
Health Council of Australia and the Brain and Mind Research Institute, available
at http://www.humanrights.gov.au/disability_rights/notforservice/index.html.

[74] Social Health Reference
Group for National Aboriginal and Torres Strait Islander Health Council and
National Mental Health Working Group, National Strategic Framework for
Aboriginal and Torres Strait Islander Peoples’ Mental Health and Social
and Emotional Well Being (2004–2009), available at http://www.health.gov.au/internet/main/publishing.nsf/Content/8E8CE65B4FD36C6DCA25722B008342B9/$File/wellbeing.pdf.

[75] Australian Health Ministers, National Mental Health Plan 2003–2008,
available at http://www.health.gov.au/internet/wcms/Publishing.nsf/Content/EE630ADE7F40F80FCA2572220002D081/$File/plan03.pdf.

[76] ABS, The Health and Welfare of Australia’s Aboriginal and Torres Strait
Islander Peoples 2008, p111.

[77] Social Health Reference
Group (2003), Consultation Paper for the Development of the National
Strategic Framework for Aboriginal and Torres Strait Islander Mental Health and
Social and Emotional Well Being 2004-2009, Office of Torres Strait Islander
Health in the Commonwealth Department of Health and
Ageing.

[78] Hanover
Welfare Services, A New Country – But No Place to Call Home, 2004,
Melbourne, p45.

[79] Hanover
Welfare Services, A New Country,
p(xiv).

[80] Australian
Government, Department of Immigration and Citizenship, Fact Sheet 62 –
Assistance for Asylum Seekers in Australia, available at http://www.immi.gov.au/media/fact-sheets/62assistance.htm.

[81] Hanover Welfare Services, A New Country, p17; Hotham Mission, Minimum
Standards of Care for Asylum Seekers in the Community, 2004, available at http://www.asp.hothammission.org.au/index.cgi?tid=25 [10 June 2008].

[82] Department
of Immigration and Citizenship, Fact Sheet
62.

[83] Network of Asylum
Seeker Agencies Victoria, Seeking Safety, Not Charity: A report in support of
work-rights for asylum-seekers living in the community on Bridging Visa E,
2005, pp27-30.

[84] ICCPR,
articles 6; ICESCR, articles 9, 11, 12; CRC, articles 22, 24, 26, 27; CERD,
article 5(e).

[85] Hanover
Welfare Services, A New Country,
pp26-31.

[86] Drummond, S.,
‘Homeless Twice: Exploring Resettlement and Homelessness for Refugee Young
People’, Parity, vol 14, issue 1, 2001,
pp10-11.

[87] Drummond, 2001,
pp10-11.

[88] Raper, M., ’Social Security, homelessness and participation: Summary of
address given at Green Paper Roundtable’, National Welfare Rights Network,
Sydney, 28 March 2008.

[89] Senate Standing Committee on Finance and Public Administration, Human Services
Portfolio, Additional Estimates, February 2008, HS 22, Questions on Notice,
cited in National Welfare Rights Network, Media Release, New data uncovers
massively increased level of eight week no payment penalties hit Indigenous
Australians hardest, 14 April 2008, Table1: Data on Indigenous penalties,
available at http://www.welfarerights.org.au/Policy%20papers%20%20submissions/Gt3108.doc.

[90] Raper,
'2008.

[91] Raper,
2008.

[92] This recommendation
was also made in the Report of the Special Rapporteur, para
131.

[93] Report of the
Special Rapporteur, para 132.