McRae, Rowan; Nicholson, Dan --- "No Place Like Home: Homelessness in Australia and the Right to Adequate Housing" [2004] AUJlHRights 3; (2004) 10(1) Australian Journal of Human Rights 3 (2024)

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

Rowan McRae[*]and Dan Nicholson^+o

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

But on any given night, around 100,000 people in Australia are homeless(Chamberlain and MacKenzie 2003).[2] This is despite Australia’sinternational commitment, made almost 30 years ago, to ensure that itspopulation is adequatelyhoused. Rhetorical gestures are made towards the needfor a ‘social safety net’ to support homeless Australians, butthereremains a distinct reluctance to frame the discussion of homelessness in thelanguage of rights. Governments repeatedly pointto the vagueness of economic,social and cultural rights, and hint at the inevitability of homelessness.

In this article, we examine whether the response of state and federalgovernments to the question of homelessness can be said to representa violationof Australia’s obligations in respect of the right to adequate housingunder the International Covenant on Economic,Social and Cultural Rights.Following a brief discussion of the historical development of economic, socialand cultural rights, weanalyse the normative content of these rights,particularly as they relate to developed, industrialised states such asAustralia.Next, we consider Australia’s specific obligations in relationto the right to adequate housing and how this right relates,in broad terms, tohomelessness. Finally, we evaluate the extent to which Australia is fulfillingthese specific obligations.

Economic, social and cultural rights in international law

Recognition of economic, social and cultural rights

On 10 December 1948, the UN General Assembly proclaimed the UniversalDeclaration of Human Rights (UDHR), recognising ‘the inherentdignity and... the equal and inalienable rights of all members of the human family’(UDHR, Preamble). The Declaration is probablythe most important enunciation ofhuman rights, and has since been the source of constitutions, bills of rightsand legal decisionsall over the world. However important and groundbreaking,the Declaration was conceived as ‘a common standard of achievementfor allpeoples and all nations’ (UDHR, Preamble), and was not in and of itselfintended to create binding obligations on statesin relation to the rightsenunciated in the Declaration.

After the proclamation of the Declaration, the Commission on Human Rights wasinstructed to develop legally binding human rights treatiesthat would form thebasis for legal obligations under international law. After extensive politicallobbying and debate, this wasachieved through the International Covenant onCivil and Political Rights (ICCPR) and the International Covenant on Economic,Socialand Cultural Rights (ICESCR). The obligations imposed by these Covenantsexist at the level of public international law, creatingrights and obligationsbetween states parties that have ratified the Covenants. Additionally, however,they create third party beneficiaries,namely the persons whose human rights areto be respected, protected and fulfilled under the terms of the treaty.

The Committee on Economic, Social and Cultural Rights (CESCR) was establishedin 1987 to supervise the compliance of states partieswith their obligationsunder the ICESCR. The CESCR monitors the implementation of the ICESCR byreviewing periodic reports submittedby states parties under arts 16 and 17 ofthe ICESCR. The CESCR concludes its review by issuing ‘ConcludingObservations’,which constitute the decision of the CESCR regarding theimplementation of the ICESCR by a given state party. Since 1988, the CESCRhasalso prepared ‘General Comments’ on the rights contained in theICESCR, as a means of providing states parties withgreater clarity as to theintent, meaning and content of the ICESCR. Unlike the Human Rights Committeeestablished under the OptionalProtocol to the ICCPR, however, the CESCR is notempowered to receive and adjudicate on complaints from individuals about a stateparty’s violation of its obligations under the treaty.

A range of other international treaties have also recognised economic, socialand cultural rights, including the Convention on theElimination of All Forms ofDiscrimination Against Women, the Convention on the Rights of the Child, and theConvention on the Eliminationof All Forms of Racial Discrimination. The ViennaDeclaration and Program of Action adopted by the World Conference on HumanRightsin 1993 affirmed the importance of economic, social and cultural rightsand recommended that the Human Rights Commission, togetherwith the CESCR,examine the potential for an optional protocol to the ICESCR.

Economic, social and cultural rights: problems of perception andresolve

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

Historically, economic, social and cultural rights have been very much thepoor relation of the human rights family. Normative developmentof these rightsand the concurrent obligations they impose on governments has tended to beslower, both at international and at domesticlevels, than that of civil andpolitical rights. Many nations that have ratified the ICESCR, and have advancedeconomies and systemsof rule of law, continue to accept a low level ofrealisation of many Covenant rights.

The delayed normative development of economic, social and cultural rights canbe attributed to two significant factors. First, thelack of an individualcomplaints mechanism attached to the ICESCR has placed significant constraintson the ability of the CESCRto hold states to account for violations ofeconomic, social and cultural rights. The value of a mechanism by whichindividuals canseek redress for violations of human rights has beendemonstrated by the operation of the Optional Protocol to the ICCPR. Under theOptional Protocol, the Human Rights Committee is able to consider specificcomplaints from individuals or groups about alleged violationsunder the ICCPRand the Human Rights Committee publishes its decision about whether or not aviolation of international law has occurred.These decisions of the Human RightsCommittee are developing a body of jurisprudence about the nature and extent ofthe obligationsunder that treaty in a wide range of circ*mstances. Without sucha mechanism, the CESCR’s capacity to monitor the implementationof theICESCR is limited to the analysis and evaluation of states parties’periodic reports, submitted under arts 16 and 17of the ICESCR.[3]

The second factor contributing to the slower development of the normativecontent of economic, social and cultural rights is the problemsassociated withinterpretation of the duty under the ICESCR for a state party to ‘takesteps ... to the maximum of its availableresources, with a view to achievingprogressively the full realisation of the rights recognised in the presentCovenant’ (art2(1)). In contrast to the equivalent provision in theICCPR, which requires that governments take steps immediately to give effecttothe rights of that Covenant (art 2(2)), ICESCR rights may be progressivelyrealised. The notion of progressive realisation hasbeen criticised as being‘inexact and render[ing] those rights difficult to monitor’ (Chapman1996: 23). Undoubtedly,it has been ‘embraced as an escape hatch byrecalcitrant States’ (Leckie 1998: 94). The notion of ‘maximum ofavailableresources’ as a tool to measure state compliance is equallyproblematic. Robertson aptly describes the phrase as

two warring adjectives describing an undefined noun. ‘Maximum’stands for idealism; ‘available’ stands forreality.‘Maximum’ is the sword of human rights rhetoric;‘available’ is the wiggle room for the state (Robertson1994:694).

Overcoming normative deficiencies

In recent years, however, there have been considerable advances ininternational law to address the normative deficiency of economic,social andcultural rights. This has occurred through persistent reaffirmation of the equalstatus of economic, social and culturalrights to civil and political rights;expansion of the work of the CESCR; the work of academics and non-governmentalorganisations(NGOs); and constitutional incorporation and domesticjurisprudence.

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

treat human rights globally in a fair and equal manner, on the same footing,and with the same emphasis. ... [I]t is the duty of States,regardless of theirpolitical, economic and cultural systems, to promote and protect all humanrights and fundamental freedoms (para5).

This confirmation of economic, social and cultural rights as equal in statusto civil and political rights explicitly rejected theproposition of a‘hierarchy’ of rights, and reasserted the original conception, asexpressed in the UDHR, of the universalapplication of all human rights.

Since the establishment of the CESCR in 1987, its work has expandedsignificantly beyond direct dialogue with states parties throughthe formalreporting process provided for in the ICESCR. In 1993, the CESCR adopted aprocedure allowing for the participation ofNGOs in its activities. Inaccordance with this procedure, NGOs may submit shadow or alternative reports tothe periodic reportssubmitted by states parties, and time is set aside duringsessions of the CESCR for NGOs to provide additional oral information.The CESCRhas also engaged in elaboration of the rights contained in the ICESCR throughthe production of General Comments since1989. To date, 15 General Comments havebeen published. These General Comments, in addition to the ConcludingObservations offeredby the CESCR on states parties’ reports, have helpedto articulate more thoroughly both the content of the rights recognisedin theICESCR, and the particular obligations of states parties.

The work of academics and NGOs has also made a significant contribution tothe normative development of economic, social and culturalrights. In 1986, agroup of experts in international law agreed upon the Limburg Principles on theImplementation of the InternationalCovenant on Economic, Social and CulturalRights. These principles analyse the particular content of economic, social andculturalrights and identify potential violations of the ICESCR. Ten yearslater, these principles were further elaborated by the MaastrichtGuidelines onViolations of Economic, Social and Cultural Rights, which establish acomprehensive methodological approach to economic,social and cultural rightsbased on the obligation of states parties to the ICESCR to respect, protect andfulfil such rights.

Finally, recent years have seen greater constitutional recognition ofeconomic, social and cultural rights. For example, most constitutionsadopted inAfrica since 1990 incorporate economic, social and cultural rights, as well ascivil and political rights. In turn, thishas led to an expansion of domesticjurisprudence on the topic.

To take just one example, the post-apartheid South African Constitutionincorporates a comprehensive bill of rights, providing extensive and explicitprotection of rights to housing, health care, food,water, education and socialsecurity. The jurisprudence of the South African Constitutional Court has alsocontributed to developingcertainty about the content of these rights. In itsdecision in the Grootboom case (Grootboom & Ors v Government ofthe Republic of South Africa & Ors) regarding the provision of emergencyshelter and the right to adequate housing, the Constitutional Court found thatsocio-economicrights were justiciable under the Constitution. It also foundthat the South African Government was obliged to develop programs aimed atproviding emergency housing relief to thosein desperate need. The obligationidentified in Grootboom to take steps to assist those in ‘desperateneed’ has been upheld by the Supreme Court of Appeal of South Africa. Inarecent decision, the Court confirmed that the government is under an obligationto develop a plan for the ‘immediate ameliorationof the circ*mstances ofthose in crisis’ (President of the Republic of South Africa & Ors vModderklip Boerdery (Pty) Ltd). Jurisprudential comment of this kind hashelped to clarify the particular obligations on states in relation to economic,social andcultural rights, and to confirm the justiciability of suchrights.

Determining the normative content of economic, social and culturalrights

Conceptualising the normative content of economic, social and cultural rightshas proved a complex and contentious project which isby no means complete.However, the increased focus on economic, social and cultural rights identifiedin the section above has clarifieda number of aspects relating to the normativecontent of these rights. Four important aspects should be highlighted beforemovingon to examine in greater depth the core and supplemental content ofrights and obligations: economic, social and cultural rightsentail obligationsof immediate as well as progressive effect; they demand obligations of result aswell as of conduct; they canbe violated by acts of commission as well as byacts of omission; and they involve the duty to respect, protect and fulfil thesehuman rights.

Obligations of immediate as well as of progressive effect

The ICESCR focuses on ‘progressive realisation’ and acknowledgesthe difficulties of resource constraints. However, itsimplementation alsoimposes obligations of immediate effect. Firstly, while art 2(1) of the ICESCRemphasises ‘progressiverealisation’, art 2(2) affirms that statesparties

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

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

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

Obligations of result as well as of conduct

In 1977, the International Law Commission (ILC) made an important distinctionbetween two types of obligations imposed by internationalhuman rights treaties.Obligations of conduct require states parties to take action reasonablycalculated to realise the enjoymentof a right. Obligations of result requirestates parties to ensure that the steps taken and the measures adopted actuallydo produce the desired results, enabling the state to achieve specifictargets. For example, a state might be required to halve homelessnesswithin atwo year period. Although the ILC initially maintained that the ICESCR imposedonly obligations of result upon state parties(Dankwa et al 1998: 715), theCESCR has subsequently confirmed the applicability of obligations of bothconduct and result in relationto economic social and cultural rights (GeneralComment 3: para 1).

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

Traditionally, the idea that economic, social and cultural rights imposedonly positive obligations on the state meant that unduefocus was placed uponviolations by acts of omission. But as the Maastricht Guidelines demonstrate,all human rights bring with themboth negative and positive duties. Economic,social and cultural rights can be violated by acts of both omission andcommission.Violations through acts of commission include the removal oflegislation necessary to enjoy rights, the active denial of rights,the adoptionof legislation incompatible with rights, the adoption of retrogressive measures,and the reduction or diversion of specificpublic expenditure (para 14).Violations through acts of omission include failure to take appropriate steps,failure to repeal manifestlyinconsistent legislation, failure to utilise themaximum available resources towards full realisation, and failure to monitor therealisation of economic, social and cultural rights (para 15).

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

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

Identifying violations

While there has been significant progress made in developing greater clarityabout the nature and extent of obligations created underthe ICESCR, therecontinues to be debate about how to make states parties accountable againstspecific obligations in the treatythat involve concepts such as ‘maximumavailable resources’ and ‘progressive realisation’. In 1996,AudreyChapman developed an approach to economic, social and cultural rightswhich focuses on identifying violations rather than on developingindicators forprogressive realisation by reference to ‘maximum availableresources’. Chapman’s ‘violationsapproach’ was designedto address existing deficiencies in effective monitoring of economic, social andcultural rights. Herconcern was that in order to monitor progressiverealisation in line with the CESCR’s guidelines for reporting, stateswouldrequire an ‘enormous amount of good-quality data ... disaggregatedinto relevant categories’ (Chapman 1996: 33). Whiledisaggregated datawould certainly be useful to determining progressive realisation, Chapman wasconcerned that data requirementsunder the ICESCR were unrealistic:

Few states parties have either the requisite data or the willingness to sharesuch detailed data with a UN supervisory body ... Thepreparation of a reportthat followed the guidelines fully and that was sensitive to the need forconsistent disaggegation of dataand presentation in time series would be amajor undertaking, involving an enormous investment of time and resources(Chapman 1996:34).

Rather than attempting to develop indicators for progressive realisation,Chapman advocated an approach based on a tripartite schemeof violations,comprising violations resulting from positive actions of governments, such asforced evictions; violations relatingto patterns of discrimination, such asdiscrimination in private rental against single mothers; and violationsresulting from failureto fulfil minimum core obligations, such as failure todevelop an adequate housing policy. Chapman saw the identification of violationsnot only as a means of ending and rectifying abuses, but also a ‘moreeffective path to conceptualising the positive contentof economic, social andcultural rights than the more abstract legal or philosophical analyses attemptedthus far’ (Chapman1996: 37).

Chapman’s tripartite scheme has proved a useful tool in the effectivemonitoring of economic, social and cultural rights, particularlyfor NGOs indeveloping states which have little or no access to accurate data sources.Chapman’s ‘violations approach’reflects the fact that todate, much of the academic commentary on the content of economic, social andcultural rights has focusedon identifying core minimum obligations (see Weiner1991). This discussion has primarily been directed towards articulating theobligationsof developing states where large numbers of individuals continue tobe deprived of the most basic enjoyment of rights to foodstuffs,shelter,primary health care and education.

Identifying a core minimum content

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

a minimum core obligation to ensure the satisfaction of, at the very least,minimum essential levels of each of the rights is incumbentupon every Stateparty. ... In order for a State party to be able to attribute its failure tomeet at least its minimum core obligationsto a lack of available resources itmust demonstrate that every effort has been made to use all resources that areat its dispositionin an effort to satisfy, as a matter of priority, thoseminimum obligations (General Comment 3: para 10).

The minimum core obligation on states parties is to secure essential levelsof economic, social and cultural rights. General Comment3 usefully providesexamples of prima facie violations based on failure to fulfil minimum coreobligations:

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

Danilo Turk, Special Rapporteur on the Realisation of Economic, Social andCultural Rights, has endorsed this approach, saying that‘states withspecific legal obligations to fulfil economic, social and cultural rights areobliged, regardless of the levelof economic development, to ensure respect forminimum subsistence rights for all’ (Turk 1991, para 52(d)). The LimburgPrinciples(para 25) and the Maastricht Guidelines (para 9) have similarlypromoted the concept of a basic level of obligation applicable toall statesparties.

Identifying a core minimum content to economic, social and cultural rightscan help to ensure that developing states do not completelyabrogate theirobligations based on lack of resources. However, it provides a less usefulreference point for holding developed,industrialised states to account fortheir human rights violations. Shifting the focus away from progressiverealisation and towardsminimum core obligations can mean that theresponsibilities of more affluent countries to allocate resources in accordancewith substantiverights are likely to go unnoticed (Porter 2003: 126). As BrucePorter notes, focusing on the ‘most minimal requirements’caneffectively provide an ‘out’ for governments in affluent states suchas Canada or Australia (Porter 2003: 126). Accordingto Porter, governments indeveloped states prefer a narrow violations approach because it

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

Beyond the core: same principle, different outcomes

The identification of minimum core content, as well as minimum coreobligations, is only the first step towards securing economic,social andcultural rights. Definitions of ‘core’ and‘supplemental’ contents and obligations are ‘beingexpandedcontinually’ (Leckie 1998: 102). Expanding the concept of‘supplemental’ content is of particular importancewhen we considerthe obligations of developed states with access to significant resources, suchas Australia. If we are to properlyengage with Australia’s obligation to‘fulfil’ economic, social and cultural rights, it is essential thatwe areable to articulate obligations beyond core minimum requirements.

The limitations of a narrow approach to violations have, to some extent, beenovercome through recent comments of the CESCR in relationto allocation ofresources, demonstrating a new appreciation of the obligations placed ondeveloped states. While the CESCR has beenreluctant to set solid benchmarks formonitoring the level of expenditure on ‘moving expeditiously andeffectively’ towardsthe goal of full realisation (General Comment 3: para9), recent General Comments have noted that ‘insufficient expenditureormisallocation of public resources which results in the non-enjoyment of theright’ will be considered a violation of obligationsunder the ICESCR(General Comment 15: para 44; General Comment 14: para 52). The CESCR has alsoindicated that ‘[a] State whichis unwilling to use the maximum ofits available resources for the realisation of the right ... is in violation ofits obligations’ (GeneralComment 15: para 41). In its ConcludingObservations, the CESCR has been critical of affluent states parties allocatinginsufficientpublic expenditure on steps necessary to the realisation of rights,such as expenditure on public housing (CESCR 1998: para 28).

These comments from the CESCR demonstrate a ‘multiplicity ofperformance standards for each enumerated right in relationshipto the variedsocial, developmental, and resource contexts of specific countries’(Chapman 1996: 31). When we apply the obligationto ‘take steps’ tothe ‘maximum of available resources’ to an affluent andwell-resourced state such as Australia,it is not sufficient to focus on coreminimum obligations. While the content of the basic principle to take stepsapplies equallyto all states parties, the outcome of its application will becontext-specific, depending on the available resources of the particularstatein question.

The right to adequate housing

Australia is a party to all of the major human rights treaties. As such, ithas taken on obligations to respect, protect and fulfilthe right to adequatehousing. This section identifies the international treaties which recognise theright to adequate housing,and elaborates upon the content of this particularright.

Human rights relating to housing can be found in all of the majorinternational human rights treaties. For example, the InternationalCovenant onCivil and Political Rights guarantees that the law will prohibit discriminationin the enjoyment of all human rights(art 26), which includes those rightscovered by the ICESCR, and the Convention on the Elimination of RacialDiscrimination guaranteesthat everyone enjoys the right to housing withoutracial discrimination (art 5(e)(iii)). The particular housing rights of ruralwomenand children are protected in the Convention on the Elimination of AllForms of Discrimination Against Women (art 14(2)(h)) and theConvention on theRights of the Child (art 27) respectively. Australia is a party to all of theseinternational treaties. The mostimportant housing and homelessness relatedright, the right to adequate housing, is set out in the ICESCR. Australiaratified theICESCR on 10 December 1975. Article 11(1) of the ICESCR recognises:

the right of everyone to an adequate standard of living for himself and hisfamily, including adequate food, clothing and housing,and to the continuousimprovement of living conditions.

In addition to its General Comments on the general nature of obligationsunder the ICESCR, the CESCR has elaborated on the contentof the right toadequate housing in two of its General Comments. General Comment 4 identifies anumber of specific obligations inrelation to the right to adequate housing. Inthis General Comment, the CESCR declares that the notion of adequate housingshouldnot be limited to the idea of shelter, but rather understood to mean‘the right to live somewhere in security, peace and dignity’(para7). The CESCR sets out seven aspects of adequacy which should be taken intoaccount in considering whether housing is adequatefor the purposes of theright. These are as follows.

•Legal security of tenure: a degree of security of tenure whichguarantees legal protection against forced eviction, harassment and otherthreats.

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

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

•Habitability: adequacy requires sufficient space andprotection from cold, heat, rain and threats to health. The physical safety ofoccupants mustalso be guaranteed.

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

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

•Cultural adequacy: the way housing is constructed, thebuilding materials used and the policies supporting these must appropriatelyenable the expressionof cultural identity and diversity of housing (para8).

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

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

Of particular relevance in the Australian context is the obligation on thestate to ensure that evictions do not render individualshomeless or vulnerableto the violation of other rights. According to the CESCR,

[w]here those affected are unable to provide for themselves, the State partymust take all appropriate measures, to the maximum ofits available resources,to ensure that adequate alternative housing, resettlement or access toproductive land, as the case maybe, is available (para 16).

As previously noted, a state party is under obligations to respect, protectand fulfil the right to adequate housing. The obligationto respectrequires a state to refrain from interfering, directly or indirectly, in theenjoyment of rights (para 6). The clearest violationof the obligation torespect would be forced evictions conducted by the state. Perhaps more relevantin the Australian context, theobligation to respect also requires the state torefrain from any ‘deliberately retrogressive measures’ (GeneralComment3: para 9) in relation to realisation of the right. The obligation toprotect requires the state to prevent violations of human rights by thirdparties including private actors. Protection of the right to adequatehousingincludes steps such as setting up a legal framework to prevent forced evictionsby landlords and discrimination in privaterental housing from taking place.Finally, the obligation to fulfil requires the state to take positivemeasures to ensure the enjoyment of right by individuals and communities,including legislativeand budgetary measures. States’ duties to fulfilhousing rights include the provision of housing assistance such as publichousing and rental assistance.

Homelessness in Australia and human rights

Non-government responses to homelessness in Australia are increasingly framedin the language of human rights. In Victoria, for instance,the Housing is aHuman Right Project established under the auspices of the Victorian Council ofSocial Service adopts a distinctlyhuman rights approach to the issue ofhomelessness. Similarly, the Homeless Persons’ Legal Clinic, establishedby the PublicInterest Law Clearing House (Vic), uses the terminology of humanrights to describe homeless clients’ issues.

Recent academic commentary has also focused on the relationship between humanrights and homelessness. Dianne Otto, for example, hasanalysed the extent towhich the major Australian government program providing crisis accommodation tothe homeless is consistentwith Australia’s international human rightsobligations (Otto 2003). Cassandra Goldie notes that

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

Analysing the regulation of public space in Australia, Goldie poses thecritical question: ‘Do people living in public spacehave human rights oris public space to be considered a human rights wasteland?’ (Goldie 2002:277). She advocates the needto move from a welfare to a rights-based approachto homelessness in a context of ‘increasing rates of homelessness, andcontinuinglaw and order responses’ (Goldie 2003: 132). Philip Lynch andJaqueline Cole have undertaken a comprehensive analysis of therelationshipbetween homelessness and Australia’s obligations under the ICCPR andICESCR, asserting that ‘homelessnessis in itself a human rightsviolation’ (Lynch and Cole 2003: 140). They contend that‘[r]ecognising, naming and reframinghomelessness as a human rightsviolation carries significant normative value, moral authority and legalimport’ (Lynch andCole 2003: 165).

Adopting the language of human rights can be an empowering step for thoseexperiencing homelessness. It can also form the basis forlegal claims againstthe state for violations of human rights. In order to make such claims, however,it is essential to first unpackthe meaning of homelessness, and consider how itrelates to the rights enumerated under the ICESCR and ICCPR.

Defining homelessness

‘Homelessness’ is not a term to which international law gives aspecific meaning. As Lynch points out, definitions ofhomelessness tend to be‘diverse and culturally contingent’ (Lynch 2002: 609). Thedefinition of homelessness developedby Chris Chamberlain and David MacKenziehas been endorsed by the Australian Bureau of Statistics, and we use itthroughout thisarticle. Acknowledging that the definition of homelessness is a‘socially constructed, cultural concept’, Chamberlainand MacKenzieidentify three categories of homelessness (Chamberlain and MacKenzie 2003:1).

Primary homelessness refers to people without conventionalaccommodation, including those living on the streets, sleeping in parks,squatting in derelictbuildings, or using cars or railway carriages fortemporary shelter. Secondary homelessness refers to those movingfrequently from one form of temporary shelter to another, including people usingemergency accommodation (suchas hostels for the homeless or night shelters),people residing temporarily with other households (because they have noaccommodationof their own) and those using boarding houses on a short-termbasis. Tertiary homelessness refers to people who live in boarding houseson a medium to long-term basis. Boarding houses do not have a separate bedroomand livingroom, do not have kitchen and bathroom facilities of their own, anddo not have security of tenure provided by a lease (Chamberlainand Mackenzie2003: 1-2).

Homelessness and human rights

People experiencing homelessness are subject or susceptible to a range ofeconomic, social, cultural, civil and political rights violations.These includeviolations of the right to freedom from discrimination, the right to security ofthe person, the right to privacy,the right to vote, the right to the highestattainable standard of health, the right to education, and perhaps mostimportantly,the right to adequate housing. All of these rights are enshrined inthe ICCPR and the ICESCR, both of which have been signed andratified byAustralia. While the lived experience of homelessness can give rise to‘multiple and intersectional human rightsviolations’ (Lynch 2004:10), the focus of this article remains limited to the relationship betweenhomelessness and the rightto adequate housing.

As Lynch and Cole point out, the definition of homelessness adopted inAustralia is consistent with definitions of inadequate housingunder GeneralComment 4 and art 11(1) of the ICESCR (Lynch and Cole 2003: 141).[4]According to General Comment 4, the right to adequate housing entails ‘theright to live somewhere in security, peace and dignity’(para 7). Theseven aspects of adequate housing identified by the CESCR provide a useful linkbetween homelessness and the rightto adequate housing. People experiencinghomelessness do not enjoy some or all of these aspects considered essentialelements ofthe right to adequate housing.

Those experiencing primary homelessness clearly lack legal security oftenure. They do not have access to appropriate services andinfrastructure (suchas heating, lighting and sanitation) and do not enjoy habitable conditions(defined as basic protection fromthe weather and threats to health). Theconditions of secondary and tertiary homelessness are similarly marked by a lackof securityof tenure, and are likely also to also fall short of habitabilitystandards, access to services and affordability. The connectionbetween povertyand homelessness (Chamberlain and MacKenzie 2003: 40) demonstrates thataffordability of housing is an issue forthose experiencing all types ofhomelessness. The significant numbers of those from disadvantaged groups (suchas indigenous Australiansand the unemployed) experiencing homelessness inAustralia indicates that the accessibility element of adequate housing underGeneralComment 4 is not enjoyed (Chamberlain and MacKenzie 2003:39–40).

Given that homelessness, as defined in Australia, can be equated withinadequate housing under international law, acts of commissionand acts ofomission by the Australian government which result in homelessness constitute aviolation of human rights law. This isnot to say that all incidences ofhomelessness are necessarily a consequence of violations of the right toadequate housing. It isimportant to recognise potential limitations of acultural definition of homelessness, including the fact that a small number ofindividuals who fall within the definition may prefer to live in conditionswhich are not considered ‘appropriate’ accordingto the culturalexpectations of most Australians. However, the ICESCR and General Comment 4 makeit clear that all persons, and particularlythose in disadvantaged groups, havethe right to access adequate housing, regardless of whether they chooseto exercise this right.

Counting the homeless in Australia

The tripartite definition of homelessness developed by Chamberlain andMacKenzie has been adopted by the Australian Bureau of Statistics(ABS) tocollect data on homelessness. In 1996, the ABS adopted a ‘specialenumeration strategy’ to collect data on homelessnessin Australia for thefirst time. The main aim of the strategy was to improve identification of peoplein the ‘primary homelessness’category (Chamberlain and MacKenzie2003: 17). The 1996 figures revealed that 105,304 individuals were homeless oncensus night inAustralia. This included 23,299 people in boarding houses;12,926 in SAAP accommodation; 48,500 staying with friends and relatives;and20,579 in improvised dwellings or sleeping out (Chamberlain and MacKenzie 2003:32).

The 2001 census aimed to ‘replicate the 1996 analysis and examinechanges in the homeless population over time’ (Chamberlainand MacKenzie2003: 1). The figures in the 2001 census revealed that 99,900 individuals werehomeless on census night, suggestinga significant drop in the total number ofhomeless people in Australia. The federal Minister for Family and CommunityServices celebratedthis apparent reduction in homelessness with a press releaseentitled ‘The number of homelessness falls, says new report’.However, as Goldie notes, a closer reading of the 2001 figures does not supportthis claim (Goldie 2004a: 38).

Comparing the 1996 and 2001 census figures, it is clear that the numbers ofindividuals in boarding houses, in Supported AccommodationAssistance Program(SAAP) accommodation and staying with friends and relatives remained fairlystatic. The significant drop was registeredin the number of individuals inimprovised dwellings or sleeping out. When we disaggregate this data further, itbecomes evidentthat the number of non-indigenous people in improvised dwellingsor sleeping out actually increased. Therefore, a reduction in thenumber ofindigenous people in improvised dwellings or sleeping out was the primary reasonfor an overall drop in homelessness figures.The 1996 census registered 9751indigenous individuals in this category; the 2001 census registered just2681.

The dramatic ‘drop’ in the number of indigenous Australians inimprovised dwellings or sleeping out is primarily attributableto a change incounting rules for the 2001 census. In 1996, census data collectors in remoteindigenous communities were instructedto count dwellings without a workingshower and toilet as ‘improvised dwellings’, based on the sharedcommunity standardthat houses and flats should include these facilities. In2001, data collectors were instructed that ‘to be counted as a houseforthe census a dwelling needs to be a permanent structure built for the purpose ofhousing people’ (Chamberlain and MacKenzie2003: 56), based on the factthat some remote indigenous communities use properly constructed, sharedamenities blocks. As Goldiepoints out, the effect of this was to ‘changethe definition of homelessness on remote indigenous communities’ (Goldie2004a: 38). As a result of the change in definition, the number of improviseddwellings in indigenous communities decreased from8727 in 1996 to 823 in 2001(Chamberlain and MacKenzie 2003: 22).

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

Homelessness in Australia and the right to adequate housing

In order to meet its obligations under the ICESCR, the Australian governmentmust do more than ensure that individuals are not deprivedof basic shelter andhousing. Given its access to resources, the Australian government is obliged totake steps beyond the core minimumrequired of all states parties to theICESCR.

This section identifies four obligations beyond the core minimum relating tothe right to adequate housing. We consider whether Australia’sprogramsand policies on homelessness are sufficient to discharge its obligations todevelop a national plan to combat homelessness;to implement the right toadequate housing progressively, without retrogression; to provide effectiveremedies to those who becomehomeless; and to take steps to the maximum of itsavailable resources to reduce homelessness.

Australia’s obligation to develop a national plan on housingrights

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

In respect of the right to adequate housing, the more particular obligationto develop a national policy on housing rights is articulatedin General Comment4. The CESCR states that steps taken towards the full realisation of the rightto adequate housing will ‘almostinvariably require the adoption of anational housing strategy’ (para 12). Citing the Global Strategy forShelter, the GeneralComment notes that such a policy

defines the objectives for the development of shelter conditions, identifiesthe resources available to meet these goals and the mostcost-effective way ofusing them and sets out the responsibilities and time-frame for theimplementation of the necessary measures.

A national housing rights policy should incorporate a national action planfor the full implementation of housing rights. It shouldfacilitate the creationof adequate housing stock sufficient to meet the needs of the population and tosecure the housing rightsof the most vulnerable groups. Such a strategy shouldreflect extensive genuine consultation with, and participation by, stakeholdersincluding the homeless, the inadequately housed and their representatives(Goldie 2003: 133). Finally, General Comment 4 suggeststhat steps should betaken to ensure coordination between various levels of government, and betweenrelevant government departmentsto ‘reconcile related policies’(para 12).

Australia’s failure to fulfil its obligation to develop a nationalpolicy on housing rights was emphasised by the CESCR in itsConcludingObservations on Australia’s report submitted in 2000. The CESCR stronglyrecommended that Australia

at the federal level, develop a housing strategy in keeping with theCommittee’s General Comments No 4 and 7 ... In addition,the Committeerecommends that [Australia] ensure that all State and Territory governmentsestablish appropriate housing policiesin accordance with this strategy (CESCR2000: para 34).

A national strategy on homelessness would appear to be an integral part of anational housing strategy. Homelessness is the most starkexample ofnon-enjoyment of the right to adequate housing. Such a strategy could, in linewith the expectations set out in the GeneralComments, identify the scope of theproblem, determine its causes, and identify strategies and resources required toreduce homelessnessover time.

In May 2000, the federal government launched a National Homelessness Strategy(NHS) focusing on four themes: working together in asocial coalition;prevention; early intervention; and crisis transition and support (AustralianGovernment 2000). The broad aim ofthe NHS is to ‘provide a much-neededframework for integrated programs and services, geared to preventing andreducing homelessnessin a holistic and strategic way’ (Newman 2000).Following the launch of the NHS, in October 2000 the government appointed theCommonwealth Advisory Committee on Homelessness (CACH) to initiate communityconsultation and provide advice and recommendationsto the government.

The NHS focuses primarily on the service system’s response tohomelessness, aiming to improve inter-agency collaboration, identifybestpractice models and build the capacity of the community sector (AustralianGovernment 2000: 6). The main programs initiatedby the NHS to date have been aseries of pilot and demonstration projects. Initial steps towards developing acoordinated nationalstrategy to address homelessness are to be commended, asare genuine efforts to consult with relevant stakeholders.

However, four years after its launch, the NHS has failed to produce along-term plan to progressively eradicate homelessness in Australia.Asuccessful whole-of-government approach requires not only that service deliverybe coordinated, but that cross-sectoral policybe adopted to identify theunderlying structural causes of homelessness, as well as the resources requiredand the steps to be takento progressively eradicate homelessness. Thissubstantive plan of action would appear to be more consistent with theCESCR’scomments on the development of national policy, rather thancoordination and demonstration projects.

A national policy on housing rights would also require the coordination ofstrategies and programs between the state and federal governments.Federalismrepresents a potential barrier to the development and implementation of aneffective national strategy. While the developmentof state and territory plansof action are essential, from the perspective of international human rights law,primary responsibilityfor the implementation of rights, and at the very leastfor coordination of strategy, lies with the federal government.

The ICESCR makes specific reference to states with federal systems such asAustralia, stating that ‘the provisions of the presentCovenant shallextend to all parts of federal states without limitations or exceptions’(art 28). Dianne Otto and David Wisemannote that the effect of this provisionis to place primary responsibility with the federal government to ‘ensurethat the rightsenumerated in the ICESCR are enjoyed throughout Australia, evenwhere they fall under the jurisdiction of state and territory governments’(Otto and Wiseman 2001: 22). There is no reason why obligations in respect ofplans of action should be excluded from such responsibility.

Clear obligations exist to develop a comprehensive housing strategy and planof action for the progressive eradication of homelessness.While some steps havebeen taken to develop a National Housing Policy, more substantive work needs tobe done to set down the stepsto be taken towards the progressive realisation ofAustralia’s international law obligations regarding homelessness. To thisend, the South African example may prove to be a model, where comprehensiveWhite Papers have driven the legislative agenda to implementthe constitutionalright to housing.

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

While federalism represents a potential barrier to the development ofnational strategies, state and territory policies could alsoform the basis fora strong national approach to homelessness. Existing strategies could beevaluated and developed as models fora comprehensive national homelessnessstrategy. To date, the federal government has failed to coordinate state andterritory policiesaimed at reducing homelessness, yet this is surely crucial tothe federal government’s ability to ensure that its obligationsunder theICESCR are fulfilled.

Clearly, the primary obligation to develop a detailed plan of action toensure progressive realisation of the right to adequate housingin Australialies with the federal government. The federal government’s ongoing failureto address the issue of homelessnessby developing an effective nationalstrategy to ensure the progressive realisation of the right to adequate housingis in violationof its obligations under the ICESCR.

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

One of the principle elements of progressive realisation under art 2(1) ofthe ICESCR is that any ‘deliberately retrogressivemeasures’ requirecareful consideration and must be fully justified ‘by reference to thetotality of the rights providedfor in the Covenant and in the context of thefull use of the maximum available resources’ (General Comment 3: para 9).Thisflows from the obligation to respect the right — statesparties should not interfere, directly or indirectly, with the enjoyment of theright to adequate housing(Maastricht Guidelines: para 6).

Recent General Comments reaffirm and strengthen this requirement, withGeneral Comment 15 on the Right to Water stating that ‘[t]hereis a strongpresumption that retrogressive measures taken in relation to the right ... areprohibited under the Covenant’ (para19). The state bears the burden ofproving that any ‘deliberately retrogressive measures’ have beenintroduced after‘the most careful consideration of allalternatives’.

General Comment 4 elaborates on the requirement of progressive realisationwith specific reference to the right to adequate housing.It states that‘a general decline in living and housing conditions, directly attributableto policy and legislative decisionsby States parties, and in the absence ofaccompanying compensatory measures, would be inconsistent with the obligationsunder theCovenant’ (para 11). This indicates that where a direct link canbe drawn between a policy or legislative initiative by a stateparty, and ageneral decline in housing conditions, this would amount to a violation.

The approach taken by the CESCR in evaluating the periodic reports of statessuggests that a decline in housing conditions may itselfbe sufficient evidenceof a violation, without being attributable to specific policy or legislation. Inits Concluding Observationson Canada’s report in 1998, the CESCR recordedits grave concern that ‘such a wealthy country as Canada has allowed theproblem of homelessness and inadequate housing to grow to such proportions thatthe mayors of Canada’s 10 largest cities have now declared homelessness anational disaster’ (CESCR 1998: para 24). In this instance, no direct linkis drawn to a specific government policy; it is sufficient that in ‘such awealthy country as Canada’, a decline is registeredfor the CESCR to voiceits concern.

Chamberlain and MacKenzie’s research into homelessness reveals a numberof disturbing trends within the Australian homelesspopulation. They note thatwhile empirical studies in the 1960s and early 1970s indicated that the homelesspopulation was mostlymale and mostly older, today’s figures indicateincreasing numbers of women and children experiencing homelessness (Chamberlainand MacKenzie 2003: 64). Almost half of the homeless population in 2001 was agedunder 25. Females outnumbered males in the age group12–18 years, and madeup 42 per cent of the homeless population overall.

Chamberlain and MacKenzie also point to the over-representation of indigenousAustralians within the homeless population. While 2per cent of people identifyas indigenous, indigenous people represent 9 per cent of the homeless population(Chamberlain and MacKenzie2003: 39).

While these statistics do not necessarily indicate a dramatic decline inliving and housing conditions overall, they certainly suggestthat governmentpolicies are not having a significant impact on reducing homelessness. Overalllevels of homelessness have effectivelyremained static, and disturbing trendsare emerging in respect of women, children and indigenous Australiansexperiencing homelessness.In ‘such a wealthy country’ as Australia,it is of grave concern that homelessness is not being adequately addressedbygovernment programs and policies. It remains to be seen whether the CESCR isprepared to categorise Australia’s failureto adequately addresshomelessness as retrogressive, but its comments on the comparable situation ofCanada indicate that a declinein housing conditions in a wealthy country mayconstitute a retrogressive measure, in violation of obligations under theICESCR.

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

Under art 2(1) of ICESCR, states are required to realise the rights in theCovenant ‘by all appropriate means’. In itsGeneral Comment 9, theCESCR sets out guidelines on the Domestic Application of the Covenant. TheCommittee notes that although ittakes ‘a broad and flexible approachwhich enables the particularities of the legal and administrative systems ofeach State... to be taken into account’ (para 1), ‘the fundamentalrequirements of international human rights law must be bornein mind’. Inparticular, the Committee states that ‘appropriate means of redress, orremedies, must be available to anyaggrieved individual or group’ (para2), referring to art 8 of the Universal Declaration of Human Rights, whichenshrines theright to an effective remedy for violations of fundamental rights.States that do not provide effective legal remedies will beara heavy onus toshow that such remedies are not appropriate means or necessary in light of othersteps taken, a process the Committeedescribes as difficult (para 3).

Effective remedies need not be judicial — administrative remedies maysuffice provided they are ‘accessible, affordable,timely andeffective’ (para 9). Dianne Otto notes the flexibility available togovernments in providing effective remedieswhen she writes that

remedies may be provided by independent statutory bodies established byparliaments, such as ombuds offices and human rights commissions... or by otherforms of Alternative Dispute Resolution. In addition, remedies may bepolicy-based, such as developing a plan forimplementation, establishingbenchmarks and time-frames, or explicitly articulating human rights principlesto guide program development(Otto 2002: 273).

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

Australia is increasingly atypical in its decision not to enact a statutorybill of rights incorporating some form of the rights enunciatedin the two majorinternational human rights covenants. As Cassandra Goldie notes, very few stateshave no constitutional or statutorybill of rights (Australia, Bhutan, Brunei,Burma and Libya remain some of the exceptions) (Goldie 2004b). Many nationalbills ofrights, as well as the constitutions of states including Belgium,Finland, the Netherlands, South Africa and Switzerland, make specificreferenceto the right to housing.

It is commonly asserted by those who oppose the introduction of a bill ofrights in Australia that human rights are best protectedby parliamentarydemocracy, the common law and other democratic institutions. However, a numberof developed countries sharing aspectsof Australia’s common law systemhave introduced legislation providing effective remedies against violations ofthe right toadequate housing. The Scottish Parliament, for example, recentlypassed the Homelessness etc (Scotland) Act 2003, which Shelter UK hasdescribed as ‘the most progressive homelessness law in Europe’(www.shelterscotland.org.uk). TheAct is aimed at the eventual abolition of thepriority needs test for homeless people seeking accommodation assistance fromthe government.It also provides additional assistance to households categorisedas being ‘intentionally’ homeless. If properly implemented,this Actwill ensure that within approximately 12 years, all homeless people in Scotlandwill have a legally enforceable right tohousing.

No Australian government has provided for comprehensive legal remediesassociated with the right to adequate housing. The ICESCR hasno domestic legalstatus in any jurisdiction in Australia, a fact the CESCR has described as bothan impediment to implementationof the Covenant and a subject for concern (CESCR2000, paras 13–14).

Human rights have indirect legal effect in Australia through the developmentof the common law, through statutory interpretation andby creating a legitimateexpectation in respect of administrative decision-making. However, no major casebefore Australian courtshas considered the right to adequate housing, nor hasthe right been argued in cases involving homelessness. The main statutory bodycharged with the implementation of human rights in Australia, the Human Rightsand Equal Opportunity Commission, has no direct mandatein relation to housingrights, as the ICESCR is not scheduled to the Act, unlike the ICCPR and a numberof other human rights treatiesratified by Australia.

Human rights treaties are not self-executing under Australian law. Withoutdomestic legislation to implement treaty provisions, theseprovisions do notconfer any rights on individuals; nor do they impose obligations on thegovernment. Without access to effectiveremedies in domestic law, there iscurrently no alternative mechanism whereby aggrieved individuals can enforcetheir rights underthe ICESCR. Domestic implementation of the ICESCR is itself avital step towards the realisation of economic, social and culturalrights inAustralia. Australia’s continuing failure to ensure protection ofeconomic, social and cultural rights through effectiveremedies amounts to aviolation of its obligations at international law.

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

Progressive realisation must take place to the maximum of availableresources. It follows that states enjoying greater resources willbe obliged totake greater steps towards realisation of economic, social and cultural rights.Robert Robertson notes that debatesabout the meaning of ‘maximumavailable resources’ remain at a high level of generality, suffering from‘the failureof human rights advocates and authoritative bodies toarticulate standards of state performance which give definition to andusefulnessto the article 2 formulation’ (Robertson 1994: 694). However,recent General Comments, together with the CESCR’s observationson statesparties’ compliance with the ICESCR, provide some indication of expectedlevels of commitment in relation to maximumallocation of availableresources.

In recent General Comments, the CESCR has observed that ‘insufficientexpenditure or misallocation of public resources whichresults in thenon-enjoyment of the right’ will be considered a violation of theobligations under the ICESCR (General Comment14: para 52; General Comment 15:para 44). The CESCR has also noted the difference between an inability to takesteps based on lackof resources, and unwillingness to commit resources,stating that ‘[a] State which is unwilling to use the maximum ofits available resources for the realisation of the right ... is in violation ofits obligations’ (GeneralComment 15: para 41).

In its Concluding Observations on Canada’s report in 1998, the CESCRwas highly critical of Canada’s decision to reduceits allocation offunding to government programs which the CESCR considered essential to therealisation of economic, social andcultural rights. The CESCR stated that‘in addressing the budget deficits by slashing social expenditure,[Canada] has notpaid sufficient attention to the adverse consequences for theenjoyment of economic, social and cultural rights by the Canadian populationasa whole, and by vulnerable groups in particular’ (CESCR 1998: para 11).The CESCR made specific reference to policies whichcontributed to non-enjoymentof economic, social and cultural rights, stating that Canada had ‘adoptedpolicies at federal,provincial and territorial levels which exacerbated povertyand homelessness among vulnerable groups during a time of strong economicgrowthand increasing affluence’ (para 34). The CESCR’s particular focus onhousing rights in Canada was reiterated inits recommendation that Canada

address homelessness and inadequate housing as a national emergency byreinstating or increasing, as the case may be, social housingprogrammes forthose in need, improving and properly enforcing anti-discrimination legislationin the field of housing, increasingshelter allowances and social assistancerates to realistic levels, providing adequate support services for persons withdisabilities,improving protection of security of tenure for tenants andimproving protection of affordable rental housing stock from conversionto otheruses (para 46).

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

Similar criticisms may be levelled at Australia’s failure to commitadequate resources to address homelessness. The CommonwealthState HousingAgreement (CSHA) is a series of agreements between the Commonwealth and each ofthe state and territory governmentsunder the Housing Assistance Act 1989(Cth), governing the financing and provision of housing assistance. The mostsignificant program of the CSHA is the dual provisionof social housing, made upof public housing which is built, owned and managed by state and territorygovernments; and of communityhousing, which is owned or managed by NGOs. TheAustralian Federation of Homelessness Organisations (AFHO) claims that publichousing‘offers homeless people and those at risk of homelessness animportant and viable housing option’ (AFHO 2002).

Both social and community housing are rented to tenants at below market valuerent, calculated according to income. Since 1945, socialhousing stock has beenacquired totalling almost 400,000 dwellings, representing 6 per cent of thetotal housing stock and valuedat over $31 billion. Other programs funded underthe CSHA include various minor forms of rental assistance, assistance to homeownerssuffering financial hardship, and tenancy advice.

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

As the AFHO has argued, rental housing assistance ‘does not achievehousing affordability and has a limited impact on the keyhousing assistanceobjectives of security, adequacy, and appropriateness’ (AFHO 2002). Inother words, the government’sdecision to increase private rentalassistance does not adequately compensate for cuts to public housing schemes.Government assistanceto those renting through the private market is less likelyto ensure enjoyment of the seven elements of housing adequacy identifiedby theCESCR than public housing, where the state has far greater influence overaspects such as security of tenure, access to servicesand accessibility fordisadvantaged groups.

The homelessness figures above indicate that cutbacks to the CSHA cannot beattributed to a reduced need for public housing in Australia.Given thathomelessness has not decreased, and may in fact be on the rise among certaindisadvantaged groups, to reduce funding tothe primary government scheme aimedat providing public housing is inconsistent with Australia’s internationalobligations.Australia’s continuing economic growth means that itsavailable resources are expanding, and thus the resources devoted totheenjoyment of the right to adequate housing should also grow, unless thegovernment can show full realisation of the right. Fundingcuts to the CSHA areindicative of Australia’s failure to commit maximum available resourcestowards the realisation of theright to adequate housing.

Similarly, the major government program aimed at providing assistance to thehomeless has suffered from inadequate resources, despiterepeated budgetsurpluses in Australia. The Supported Accommodation Assistance Program (SAAP) isfunded jointly by federal and stategovernments and is administered by stategovernments. It funds NGOs that provide supported accommodation and otherservices. A studyproduced by the Australian Institute for Health and Welfareinto the provision of SAAP services in 2001–2 showed that of thoseseekingimmediate accommodation, an average of over 55 per cent were turned away (AIHW2003: 422).[5] In Victoria and the Northern Territory, this rate wasover 72 per cent. Clearly, demand for emergency housing currently far exceedsthe capacity of the SAAP to provide necessary assistance.

Cuts in funding to the CSHA and the inability of the SAAP to meet demand foremergency housing assistance demonstrate that Australiais not currently meetingits obligation to take steps to the maximum of its available resources to reducehomelessness.

Conclusion

Economic, social and cultural rights are an integral part of internationalhuman rights law. Although the normative development ofthese rights has beenslower than that of civil and political rights, this deficiency has largely beenovercome through the workof the CESCR, NGOs and academics, and by the gradualincorporation of economic, social and cultural rights into domestic law. Inconceptualising the normative content of economic, social and cultural rights,the focus has tended to be on establishing a coreminimum content to secureessential levels of food, primary health care, basic shelter and housing, andbasic education. While thishas proved a useful project, particularly inrelation to developing countries with minimal access to resources, the basicmeasurefor compliance remains the obligation for a state party to the ICESCR to‘take steps ... to the maximum of its available resources,with a view toachieving progressively the full realisation of the rights recognised in thepresent Covenant’ (art 2). Theapplication of this basic principle willproduce different results in different states, depending on their availableresources. Forstates such as Australia, with access to significant resources,the content of the obligation goes significantly beyond the ‘coreminimum’.

The right to adequate housing is a key economic, social and cultural right,and is entrenched in a number of international human rightstreaties. Thecontent of the right has been developed by the CESCR through its GeneralComments and Concluding Observations on statesparties’ reports. Statesparties to the ICESCR are obliged to respect, protect and fulfil this right.Homelessness, as definedin Australia, amounts to inadequate housing under theICESCR. As such, acts of omission and commission by the Australian governmentwhich result in homelessness constitute violations of international human rightslaw. Homelessness remains an issue of major concernin Australia. The overallrate of homelessness remains at about 100,000 and there is no indication thatthis number is dropping.Increasing numbers of women and children areexperiencing homelessness and indigenous Australians are significantlyover-representedin the homeless population.

Australia is obliged to move expeditiously and effectively towards fullrealisation of the right to adequate housing. This includestaking steps toensure that all homeless people have access to adequate housing. Identifyingfour key obligations beyond the coreminimum, it is clear that Australia iscurrently failing to meet its obligations under international law.

First, the federal government has failed to produce a coordinated,cross-sectoral national policy identifying and addressing the structuralcausesof homelessness. Second, current policies and programs are not having asignificant impact on the numbers of homeless peoplein Australia. Housingconditions for a number of vulnerable groups have declined significantly overthe past 40 years, illustratingAustralia’s failure to implement the rightto adequate housing progressively, without retrogression. Third, the ICESCR hasno domestic legal status in any domestic jurisdiction in Australia, highlightingthe failure of the Australian government to providefor comprehensive legalremedies associated with the right to adequate housing. Finally,Australia’s failure to commit adequateresources to address homelessnessdemonstrates that it is not meeting its obligation to take steps to the maximumof its availableresources.

Ultimately, Australia’s image as the ‘lucky country’ cannotbe allowed to mask its abject failure to adequatelyaddress economic, social andcultural rights obligations to which it has made a longstanding internationalcommitment to respect,protect and fulfil.

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*Rowan McRae is a final-year Arts/Law student at the University of Melbourneand works as a Legal Assistant at the Centre on HousingRights andEvictions.

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

^oThe authors would like to thank Dianne Otto and Cassandra Goldiefor their insightful comments on earlier drafts of this article.

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

[2]Based on the 2001 census data, Chamberlain and MacKenzie estimated that99,900 people were homeless. However, the researchers alsonoted that this wasa conservative estimate, and the number of people was likely to be much greater,particularly people living in‘primary homelessness’ circ*mstances,the ‘category where there is greatest risk of undercounting.’(Chamberlainand Mackenzie 2003: 56). ‘Primary homelessness’ isdefined to mean: ‘people without conventional accommodation,such as thoseliving on the streets, sleeping in parks, squatting in derelict buildings, orusing cars or railway carriages for temporaryshelter’.

[3]Note that the Commission on Human Rights has established an open-endedworking group to consider options regarding the elaborationof an optionalprotocol to the ICESCR. The first session of the working group was held inGeneva in February–March 2004: UNDoc E/CN.4/2004/44, 15 March 2004.

[4]Indeed, inadequate housing under international law is probably broader thanthe Australian definition of homelessness, as it includesthose who are housedbut whose housing is not affordable.

[5]This rate is calculated based on the average daily number of people whocould not be accommodated, expressed as a percentage of allpeople makingrequests for SAAP accommodation — both those successfully seekingaccommodation and those who were unsuccessful,on an average day during thecollection period.

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