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Australian application

Recalling the two layers of obligation – immediate and progressive implementation – Australian governments are required to take ‘deliberate, concrete and targeted’ steps to progressively realise the right to adequate housing by:

  • developing a housing strategy that prioritises the most vulnerable and that addresses structural issues (eg, affordability, supply of housing stock) (para 12)
  • taking steps, directly or through the private sector, to enable individuals to access adequate housing in the shortest possible time and with the benefit of the maximum available resources
  • ensuring that vulnerable groups can participate in decision-making and deliberation about laws, policies and decisions that affect them; and
  • providing for appropriate complaint and legal mechanisms that provide remedies in relation to evictions; housing conditions; and discrimination.

Australian governments have immediate obligations to:

  • protect against forced evictions (para 8)
  • ensure there is reasonable access for vulnerable and marginalised people to seek emergency accommodation and relief (consider the Scottish example, where local authorities have a stautory duty to offer a minimum of temporary accommodation, advice and assistance to all homeless households and those at risk of homelessness)
  • develop mechanisms to effectively monitor the implementation of the realisation of the right to adequate housing (para 13); and
  • ensure that housing policies and laws do not discriminate without reasonable justification.

(Note: para references above refer to General Comment No. 7, The right to adequate housing(Art. 1.1): forced evictions, (20 May 1997).)

The Committee last considered Australia’s performance of its obligations under ICESCR in 2009. In their document, Concluding Observations. Consideration of Reports submitted by States Parties under Articles 16 and 17 of the Covenant: Australia (which is available from the Australian Human Rights Commission Hot Topic 75: Discrimination.)

Hot Tip

Direct discriminationmeans someone is treated less favourably than another person because of a particular characteristic, for example, an Aboriginal applicant for a lease is knocked back by a landlord or agent in preference for a non-Aboriginal applicant on the basis of race.

Indirect discriminationmeans that the application of a rule, a policy, a standard or some other apparently neutral criteria has the effect of disadvantaging a class of people in comparison to other people on the basis of a protected characteristic (eg, race, age, sex, sexuality, disability). For example, applicants for social housing might be required to have held a tenancy for more than five consecutive years to be eligible, which would exclude young people and newly arrived migrants.

Security of tenure

In addition, tenants and more recently, in some jurisdictions, residents of boarding houses, enjoy some protection of their tenancy or occupancy by law. (See for example, in NSW, the Residential Tenancies Act 2010 and equivalent legislation in the ACT, Northern Territory, Queensland, South Australia, Tasmania, Victoria and Western Australia.)

There is a marked difference in the security of housing tenure that boarders (less protection), as opposed to tenants (more protection), possess in Australia. Other elements of the right are not legally recognised but are nonetheless part of the policy and service landscape in Australia.

Availability, affordability, accessibility

Housing is the constitutional concern of states, rather than the Commonwealth. However, there is a history of joint Commonwealth/state approaches to housing, tied to funding.

Housing legislation is in a state of transition. In 2008, a Green Paper, Which Way Home? was issued as the basis of consultation for a new direction in housing policy. The White Paper The Road Home was released later in 2008 with two key objectives, namely to:

  • halve overall homelessness by 2020; and
  • offer supported accommodation to all rough sleepers who need it by 2020.

The strategy aims to achieve this by early intervention to prevent homelessness; more services to end homelessness through sustainable housing and greater economic and social participation; and ongoing support to ensure people do not return to homelessness.

A five-year National Affordable Housing Agreement was created between Australian governments in 2009. It expires in 2013. It devotes $6.2 billion to affordable and sustainable housing that promotes economic and social participation. The package deals with social housing, homelessness, and housing for Aboriginal and Torres Strait Islander people living in remote places. The six objectives of the Agreement are:

  1. people who are homeless or at risk of homelessness achieve sustainable housing and social inclusion
  2. people are able to rent housing that meets their needs
  3. people can purchase affordable housing
  4. people have access to housing through an efficient and responsive housing market
  5. Indigenous people have the same housing opportunities (in relation to homelessness services, housing rental, housing purchase and access to housing through an efficient and responsive housing market) as other Australians; and
  6. Indigenous people have improved housing amenity and reduced overcrowding, particularly in remote areas and discrete communities.

At the time of publication, a new draft of a Commonwealth housing law was in circulation for comment. It is part of the Commonwealth Government’s response to the Commonwealth Parliament’s House Standing Committee on Family, Community, Housing and Youth’s inquiry into homelessness legislation, Housing the Homeless(2009). The Committee recommended that a rights-based approach to housing be adopted in Australia.

The proposed Homelessness Bill 2012 (Cth) will replace the Supported Accommodation Assistance Act 1994 (Cth). It does not recognise adequate housing as a right, and seems, as currently drafted to frame homelessness as a choice. Many submissions from service providers and rights commentators have commented on this aspect of the Bill.

The most recent data reported to the Council of Australian Governments (COAG) indicated that:

  • housing affordability had not improved
  • rental affordability had worsened, particularly in major cities; and
  • houses were less affordable for purchasers.

Data in relation to homelessness and Indigenous housing was not reported. The lack of reliable data in relation to homelessness and social housing in Australia was criticised by the 2006 UN Special Rapporteur on Adequate Housing, Miloon Kothari.

Specific housing issues

Interpretation of the right to housing can be particularly powerful to advocates and service providers concerned with the following:

  • homeless people
  • children and young people
  • women (including women affected by domestic violence; women in rural and regional Australia; pregnant women; women with new-born children and single women with children)
  • Indigenous people
  • people with disabilities and health problems (including mental illness, HIV/AIDS)
  • people with low incomes
  • non-citizens including refugees, asylum seekers and migrants
  • people living with HIV/AIDS
  • prisoners and persons released from gaol or detention
  • elderly people; and
  • people in rural and remote areas.