The human right to shelter: can the law help?
By Howard Bell
This article was originally published on the Law Society Journal on 28 November, 2021.
Shelter is universally recognised as a fundamental human right and must be more than a mere ideal for policy goals.
Article 25 of the Universal Declaration of Human Rights (the UDHR) provides: “Everyone has the right to a standard of living adequate for the health and well-being [of themselves and their family], including … housing.”
In addition, Australia has ratified the International Covenant on Economic, Social and Cultural Rights 1966 (the Covenant), which recognises “the right of everyone to an adequate standard of living … including adequate food, clothing and housing, and to the continuous improvement of living conditions.
Upon ratification, States are required to “take appropriate steps to ensure the realisation of this right” by bringing legislation, policy and practice into accord with these instruments. However, present human rights and housing-related laws do not give an enforceable statutory voice to the right to shelter.
Stay-at-home orders enforced during Sydney’s 2021 COVID-19 lockdown highlighted the disparity faced by people who are homeless, or at risk of homelessness.
The 2016 Census recorded 116,427 people experiencing homelessness across the nation. This group comprised persons: sleeping rough (8,200), in supported accommodation (21,235), staying temporarily with other households (17,725), in boarding houses (17,503), in other temporary lodgings (678) and in severely crowded dwellings (51,088).
Enacted Housing Laws
While frameworks in past and present legislation have recognised, either expressly or by implication, an underlying right to housing, they tend to stop short of statutory obligation.
The former Housing Assistance Act 1996 (Cth), repealed in October 2014, provided for intergovernmental agreements to be established between the Commonwealth and the States and Territories to progress a key object of that Act: assist people to obtain access to affordable and appropriate housing.
The Act stated in its preamble, “housing and shelter are basic human needs”, which is notably distinct from ‘rights’. The Act stopped short of making express provision for an enforceable right to housing or shelter.
The Housing Act 2001 (NSW) identifies eighteen objects, including maximising opportunities for people: to have access to secure, appropriate and affordable housing; and to ensure that housing opportunities and assistance are available to all sections of the community with housing needs.
This Act established the New South Wales Land and Housing Corporation [LAHC] and confers powers to acquire land for present or future residential development and for public purposes. LAHC may construct buildings for emergency housing accommodation. It is instrumental in progressing Housing 2041, a policy embodying the NSW Government’s housing-related goals by 2041.
The Federal Homelessness Bill 2013 (Cth), drafted in 2013, in its exposure draft, encouraged awareness of vulnerabilities within the homeless community. However, s13 ensured the provision did not “… create or give rise to any rights, duties or obligations that are legally enforceable in any judicial or other proceedings.” It therefore did not have scope to protect against risks of homelessness.
Ultimately, the Bill lapsed in November 2013. To date, no substantially similar legislation has been proposed or considered at the Federal level.
More recently, none of the 35 recommendations in the Final Report of the Inquiry into Homelessness in Australia, call for legislating a statutory entitlement to housing, despite submissions made by the Australian Human Rights Commission.
The Canadian Housing Strategy: Opportunities for the Australian Context
Canada, which like Australia has ratified the Covenant, recently legislated its own national housing laws. It includes a Housing Policy Declaration in which the Government of Canada seeks to:
Recognise the right to adequate housing as a fundamental human right affirmed in international law (s4(a)); and
Further the realisation of the right to adequate housing (s4(d)), (emphasis added).
The Canadian approach requires the responsible minister to develop a National Housing Strategy considering key principles of a rights-based approach to housing and establishes a National Housing Council to advise the Minister on the effectiveness of the Strategy. It additionally establishes a Federal Housing Advocate to monitor implementation of the housing strategy and assess its impact on vulnerable groups, and persons with lived experience of insecure housing. The Advocate periodically submits a report on their findings which the Minister is obliged to table responses in Parliament.
The NHS Act offers insight for NSW on how homelessness legislation may provide a statutory right to shelter along with a related duty to house, based directly on the housing elements within the UDHR and the Covenant.
Unique Opportunities for NSW Law: making the temporary permanent
The COVID-19 pandemic has seen initiatives to house homeless people on a temporary basis. The support for rough sleepers through assertive outreach teams, temporary accommodation and exemptions applicable to homeless people from stay-at-home orders have gone a long way to align with the UDHR and the Covenant.
Introduction of express statutory recognition of the human right to shelter would facilitate making these newly introduced initiatives permanent.
Towards a Human Rights Act for NSW
A homelessness act for NSW centred on human rights is a crucial next step for achieving social justice outcomes in the housing and homelessness space and according with our international obligations.
However, other Australian jurisdictions which have sought to enact human rights, such as the Charter of Human Rights and Responsibilities Act 2006 (Vic), the Human Rights Act 2004 (ACT) and the Human Rights Act 2019 (Qld), fail to include the housing elements outlined in article 25 of the UDHR and article 11.1 of the Covenant. NSW must ensure that if human rights are legislated in NSW, these recognise right to housing.
The consequences of NSW’s prolonged stay-at-home orders, along with the Canadian experience and the existing human rights legislation in some Australian jurisdictions, highlight the need to revisit the issue of homelessness in NSW. In doing so, NSW can lead reform across Australian jurisdictions in homelessness laws and showcase a best practice legal solution by more fully echoing the rights in the UDHR and the Covenant.
Additional contributions by Bill Steenson and Michael Siciliano