Homelessness and Human Rights

Charlesworth Hilary , ‘The Australian Reluctance About Rights’ in Alston Philip (ed.), Towards An Australian Bill of Rights, Centre for International and Public Law, Canberra, 1994, pp.21–2.

It should be noted, international human rights law can, in certain circumstances, influence statutory interpretation, the development of the common law, administrative decision making and constitutional interpretation.

Third Periodic Report: Australia, 23/07/98, E/1994/104.Add/22, para 21.

See generally, Campbell Tom , ‘Democracy, Human Rights and Positive Law’ (1994) 16 Sydney Law Review 195.

The Supported Accommodation Assistance Program (SAAP) was the first nationally coordinated approach to addressing homelessness in Australia, commencing in 1985.

CESCR General Comment No.3, para 9.

CESCR General Comment No.3, para 5.

Alston Philip and Quinn Gerard , ‘The Nature and Scope of States Parties' Obligations under the International Covenant on Economic, Social and Cultural Rights’ (1987) 9 Human Rights Quarterly 156, 180.

CESCR General Comment No. 9, para 1.

CESCR General Comment No. 9, para 5. The CESCR has interpreted the use of the term ‘appropriate’ in article 2(1) to require that ‘the means used should be appropriate in the sense of producing results which are consistent with the full discharge of its obligations under the Covenant’.

CESCR General Comment No. 9, para 2.

CESCR General Comment No. 9, para 9.

In the case of administrative remedies, an effective remedy means one that is 'accessible, affordable, timely and effective: CESCR General Comment No.9, para 9.

‘The Right to Adequate Housing’, CESCR General Comment No. 4 (6th Sess. 1991), para 6. See further, ‘The Right to Adequate Food’, CESCR General Comment No.12 (20th Sess. 1999), para 1.

CESCR General Comment No.4, para 9. See further, Farha Leilani , ‘Women and Housing’ in Askin Kelly D and Koenig Dorean M (eds), Women and International Human Rights Law, Transnational Publishers, Vol. 1, 1999, pp.483 and 494.

‘The Right to Adequate Housing’, CESCR General Comment No.4 (6th Sess. 1991); ‘The Right to Adequate Housing: Forced Evictions’, CESCR General Comment No.7 (16th Sess. 1997) and CESCR General Comment No.12 (20th Sess. 1999).

CESCR General Comment No.4, para 7. At para 8, the CESCR identifies various requirements of the concept of ‘adequacy’, including legal security of tenure, availability of services and infrastructure, affordability, habitability, accessibility, location and cultural adequacy.

CESCR General Comment No.4, para 4.

Australian Institute of Health and Welfare, SAAP National Data Collection Annual Report 2000–01, AIHW, Canberra, 2001.

Australian Institute of Health and Welfare, above, ref 19.

The SAAP was preceded by the Homeless Persons Assistance Act 1974 (Cth), which was the first legislation to recognise that the provision of assistance to homeless people was a responsibility of the federal Government.

Supported Accommodation Assistance Act 1985 (Cth), Schedule, para 6.

Third Periodic Report: Australia, 23/07/98, E/1994/104.Add/22, para 219.

Supported Accommodation Assistance Act 1989 (Cth), Schedule 1, Form of Agreement.

SAAP II, para 7(1)(f). The SAAP II also emphasised non-discrimination as a program principle, and explicitly noted that services should be designed to provide equitable access for Aboriginal people and people from non-English speaking backgrounds: see para 6(1)(d).

SAAP II, para 15.

SAAP II, para 15(a).

Supported Accommodation Assistance Act 1994 (Cth) (SAAP III).

SAAP III, preamble para.4. The other instruments referred to were the Convention on the Elimination of All Forms of Racial Discrimination 1965 (CERD), the Convention on the Elimination of All Forms of Discrimination Against Women 1979 (CEDAW), the Convention on the Rights of the Child 1989 (CROC), the Universal Declaration of Human Rights 1948 (UDHR) and the Declaration on the Elimination of Violence Against Women 1994 (DEVAW).

Second Reading Speech, House Hansard, 10 November 1994, 3013.

CESCR General Comment No.4, para 8, defines ‘adequate housing’ as including security of tenure, availability of services infrastructure, affordability, habitability, accessibility, location and cultural adequacy.

Concluding Observations of the Committee on Economic, Social and Cultural Rights: Australia. 01/09/2000, E/C.12/1/Add.50, 1 September 2001, para 34.

Australian Institute of Health and Welfare, SAAP National Data Collection 2000–01, AIHW, Canberra, 2001, p.59. The data collected shows that, in 2000–1, SAAP services supported an estimated 91,200 clients, which was an increase over the previous year's estimate of 90,000, although this was a decrease from the 1997–8 figure of 94,100.

List of Issues: Australia. 23/05/2000, E/C.12/Q/AUSTRAL/1, 23 May 2000, para 25.

Recurrent expenditure for SAAP increased by 22% in the five years from 1996–7 ($219.8 million) to 2000–1 ($268.5 million), which in real terms amounts to an increase of 10%: Australian Institute of Health and Welfare, SAAP National Data Collection 2000–01, AIHW, Canberra, 2001, p.59.

List of Issues: Australia. 23/05/2000, E/C.12/Q/AUSTRAL/1, 23 May 2000, para 25.

In fact, Australian governments over the past decade have decreased expenditure on public housing while increasing expenditure on rental subsidies in the private rental market. This move towards greater reliance on the private market has failed to deliver affordable housing to the poorest Australian households who are spending a mean of 66% of their income on housing. See Australian Social and Economic Rights Project (ASERP), Australia's Compliance with the UN Covenant on Economic, Social and Cultural Rights: Community Perspectives, Submission to the UN Committee on Economic, Social and Cultural Rights, Melbourne, Victorian Council of Social Service, April 2000, pp.40–1.

Kinnear Pamela L. , ‘Mutual Obligation: A Reasonable Policy?’, Paper presented to the National Social Policy Conference, University of New South Wales, 4–6 July 2001 (copy on file with author).

Hohfeld Wesley Newcomb , Fundamental Legal Conceptions as Applied in Judicial Reasoning, Yale University Press, New Haven, 1919, pp.38–9.

Hohfeld , above, ref 39, pp.36–8.

This was confirmed by a single judge of the High Court in Green v Daniels (1997) 51 ALJR 463. Stephen J found that unemployment benefits provided through the Social Securities Act 1947 (Cth) were ‘no more than a gratuity’, which was not enforceable at law. See further, Bailey Peter , ‘The Right to an Adequate Standard of Living: New Issues for Australian Law’ (1997) 4 Australian Journal of Human Rights 25.

Carney Terry and Ramia Gaby , ‘From Citizenship to Contractualism: The Transition from Unemployment Benefits to Employment Services in Australia’ (1999) 6 Australian Journal of Administrative Law 117.

See further, Otto Dianne and Wiseman David , ‘In Search of ‘Effective Remedies’: Applying the International Covenant on Economic, Social and Cultural Rights to Australia’ (2001) 7 Australian Journal of Human Rights 5.

The legislation established four bodies: the Community Services Commission, the Community Visitors Scheme, the Community Services Review Council, and the Community Services Appeals Tribunal, which was reconstituted as the Community Services Division of the Administrative Decisions Tribunal in 1999.

The CSC may also conduct reviews and inquiries, monitor standards, make recommendations about systemic issues, support the development of advocacy services for consumers and play an educational role in relation to service providers and consumers.

Community Services (Complaints, Appeals and Monitoring) Act 1993 (NSW), s.5(c).

New South Wales Law Reform Commission, Report 90 (1999) — Review of the Community Services (Complaints, Appeals and Monitoring) Act 1993 (NSW), para 2.35.

New South Wales, Parliamentary Debates (Hansard), Legislative Assembly, 11 March 1993, the Hon J Longley, Minister for Community Services, Second Reading Speech, 768.

CESCR General Comment No.9, para 3.

von Tigerstrom Barbara , ‘Implementing Economic, Social and Cultural Rights: The Role of National Human Rights Institutions’ in Merali Isfahan and Oosterveld Valerie (eds), Giving Meaning to Economic, Social and Cultural Rights, University of Pennsylvania Press, Philadelphia, 2001, p.139; Gomez Mario , ‘Social Economic Rights and Human Rights Commissions’ (1995) 17 Human Rights Quarterly 155, 163.

Nedelsky Jennifer and Scott Craig , ‘Constitutional Dialogue’ in Bakan Joel and Schneiderman David (eds), Social Justice and the Constitution: Perspectives on a Social Union for Canada, Carleton University Press, Ottawa, 1992, p.59.

See Concluding Observations by the Committee on the Elimination of Racial Discrimination: Australia 24/02/2000, CERD/C/56/Misc.42/rev.3, para 11.

See, for example, Sawer Marian , ‘The Watchers Within: Women and the Australian State’ in Hancock Linda (ed), Women, Public Policy and the State, 1999, p.36.

‘The Role of National Human Rights Institutions in the protection of Economic, Social and Cultural Rights’, CESCR General Comment No.10, para 3: ‘It is essential that full attention be given to economic, social and cultural rights in all of the relevant activities of these institutions’.

For example, in response to Australia's last periodic report the CESCR recommended that an official poverty line be established ‘so that a credible assessment can be made of the extent of poverty in Australia’: Concluding Observations of the Committee on Economic, Social and Cultural Rights: Australia. 01/09/2000, E/C.12/1/Add.50, 1 September 2001, para 33.