Everyone in Australia has a human right to housing. Denying it must cease.

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Since January 1976, the UN’s International Covenant on Economic, Social and Cultural Rights has obliged Australia to ensure “particularly … [via] legislative measures” that the rights of everyone (including non-citizens) to the basics of life – food, health, housing, and so on – are fulfilled. But Australia has not ensured the right to housing. To prevent the housing “disaster” from becoming a “catastrophe”, housing human rights expert Kevin Bell proposes a rights-based, legislated plan.

By Max Costello

The cost of renting or buying housing in Australia is increasingly unaffordable, and there’s not nearly enough affordable public or social housing. The 2021 census found that 5% of people had experienced homelessness. This situation, now “a disaster”, could soon be “a catastrophe”. So writes Kevin Bell in Housing: The Great Australian Right (Monash University Publishing, 2024).

Kevin Bell’s life experiences, nutshelled on the booklet’s cover, make him uniquely qualified in this area. For example, after a Housing Commission upbringing, Bell gained a Monash University Arts/Law degree, worked for the Tenants Union, then practised as a barrister, often taking housing law cases. During his 15 years as a Victorian Supreme Court judge, he wrote many influential judgments on human rights, including the right to housing and home.”

His booklet notes that housing is a human right under the International Covenant on Economic, Social and Cultural Rights (the ICESCR or the Covenant). Let me add that:– the UN General Assembly adopted the ICESCR in 1966; Australia signed it in 1972 and ratified it in 1975; it entered into force on 3 January 1976; and, by February 2024, 172 States had ratified it.

Upon ratifying, Australia became a “State Party”, bound by Article 2.1 to fully realize (provide) the ICESCR’s rights to everyone. Sensibly, 2.1 allows full realization to be achieved progressively.

2.1Each State Party undertakes to take steps … with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.

Developing country Parties must provide all the social and cultural rights to non-nationals, but

2.3 with due regard to human rights and … [their] economy, may determine to what extent they would guarantee the economic rights to non-nationals. [My emphases.]

Developed nation Parties, however, must provide all rights to everyone, including non-nationals.

Article 11.1 states the Covenant’s key housing-related obligations:

11.1The State Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself [the masculine includes the feminine] and his family, including adequate food, clothing and housing, and to the continuous improvement in living conditions

Under the following Articles, “the State Parties … recognize the right of everyone” (6) “to work”, under (7) “safe and healthy conditions”, for “fair” and non-discriminatory wages”, that provide a “decent living”, along with (8) “the right to form trade unions”; (9) “to social security including social insurance”; (10) “to the widest possible protection and assistance … to the family”; (12) “to the highest attainable standard of physical and mental health”; and (13) “to education”.

But Australia has undertaken too few steps towards achieving progressively the full realization of all ICESCR rights, as the nation’s periodic reports to the UN oversight body – the Committee on Economic, Social and Cultural Rights – implicitly acknowledge. At pages 36 37, Bell argues that:

The housing disaster … is also a human rights disaster. ... When the right to a decent home is put at risk or violated on a large scale, this impacts a great many other rights potentially [including] the right to life; … the right to personal inviolability, including the right of women to be free of violence in their own homes; the right to work; the right to education; … and the right to be free of human rights violations that are associated with poverty, inequality and homelessness.

My example: among the 10,000 or so asylum seekers (non-nationals) living in our community on tenuous 6-month bridging visas, few are securely housed; even fewer get a paltry social security allowance; and many have no right to work and/or education. Hundreds are destitute, begging, and without shelterhoping some charitable organisation or person will give them full support.

The denial of the right to study, and the infliction of mass privation, appear sadistic. Denying the right to work appears also, from a nation-building angle, masochistic: work-denied visa holders yearn to contribute to our society and economy, as previous refugees (and migrants) have done. The contribution of just one boatload – the ‘Dunera Boys (the 2,542 mainly anti-fascist refugees, two-thirds of them Jewish), who arrived in 1940 on the ship ‘Dunerahas been immeasurable.

Before outlining Bell’s rescue plan, let me mention that his booklet provides an invaluable record of Australia’s housing story, from Indigenous conceptions of a ‘home-place’ (no homelessness); the 1945 Commonwealth State Housing Agreement (that produced much public rental housing); and numerous official inquiries and recommendations, through to recent half-baked attempts to tackle the disaster. Bell also acknowledges the analyses of Peter Mares, Alan Kohler, and others.

Bell values Jessie Hohmann’s academic journal articles (2020, 2022) urging Covenant-informed deliberations, but goes further, arguing that, since non-fulfilment of the housing for all right is the fundamental cause of the housing disaster, fulfilling it is fundamental to the solution. As Bell declares at pages 78 79, Past approaches to framing housing issues have failed ... [T]here must be a national housing and homelessness plan that is rights-based, comprehensive, strategic and legislated.His explication of those four aspects (which I’ve emphasised) follows. To be

rights-based, [the plan] must … [aim] to realise the right to a decent home for all … and support … all potential forms of tenure. … [For] First People, it … must be linked to and consistent with the United Nations Declaration on the Rights of Indigenous Peoples;

comprehensive, it must cover all parts of the system, because they are interdependent.[S]tate and territory residential tenancies legislation must be reformed in line with … the right to a decent home … [so that] the scourge of eviction without just cause … [is] ended in all jurisdictions;

strategic, it must specify [as Bell does, at pp 55 76] the ways and means of ensuring over time the right to a decent home for all and the end to homelessness, not just lifting the fundingeffort, important as [that] is;

[effectively] legislated, … the legislation … [must be] strong enough to achieve its historic purpose, drawing on overseas experience [Bell cites Canada] [and cover all jurisdictions by] including in a national human rights Act the right to a decent home and other economic, social and cultural rights, as recommended by the Commonwealth Parliamentary Joint Committee on Human Rights [in its May 2024 report].

(The report arose from the Committee’s Inquiry into Australia’s Human Rights Framework.) As to the 4th aspect, did Bell overlook the following proviso in report Recommendation 2, at paragraph 9.42, dot point one? It suggests that, under the proposed human rights Act, government should:

ensure [that] the drafting of all rights and freedoms:
is consistent with international human rights law (except with respect to the principle of progressive realisation in relation to economic, social and cultural rights). [My emphasis.]

Yet that principle, that obligation to actively implement all rights, is at the heart of the ICESCR! If that heart stops beating, Australia will enter a cryogenic state of ‘frozen’ Covenant compliance. Admittedly, dot point six does require a subsequent reconsideration of the proviso

the first review of the Act should specifically be required to consider whether:
progressive realisation principles should be incorporated …

but such a review is years away, and presumably would only occur if Labor retains government.

Because most non-citizens and many citizens are still being denied their Covenant human right to housing (and associated rights), they are entitled to – and in my view should, as a matter of urgencystart exerting and then maintain concerted pressure on government to:– reject the proviso; start implementing ASAP the Bell plan’s first three aspects; and instruct drafters of the anticipated Human Rights Act to incorporate the Covenant as is, with no proviso.

 

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5 Comments

  1. Too busy selling off the silver (for a commission?).

    Social infrastructure is ripped out in favor of neolib ideology…half $trillion on subs, for crissakes?

    I know it’s a long bow but isn’t Gaza-like disempowerment the end destination?

  2. Oz has a sordid history of trading and involvement with profiteering and murderous beasts, principally from imperialist Britain since the brutal colonial era.

    Oz remains a victim of its own imperialist colonial foundations, embedded in its law and backed / facilitated by jurists and churches. It involves sophisticated property control / theft, and extraction of natural resources without regard for the environment of earth, flora and fauna, nor its First Nations and other folk. Its armies and police have been founded on the damaged dregs of the extremely inhumane and brutal British colonial forces.

    Rather than attend to the arcane supremacist laws, including its utterly inappropriate Constitution (and post Federation legislations), post WWII it magnified its self-victimization by falling for the new commercial imperialism of huge multi-national corporations in privatization of public assets and services using mostly the Anglo-American (free-market) models. They might well have reincorporated such horrendous mercenary murderous arms of the Crown, such as the East India Company. The effect of such privatizations was to mega-size extractionism, diminish government services, empty the brains trust out of the public service departments of government, and open politicians to mega-dollar lobbying, corruption, graft and economic blackmail.

    This process played out under both right-wing and left-wing governments in Oz and internationally through to the GFC in 2008, where the corrupt commercial banking system and private profiteers brought on global collapse and strangulation of the world’s economic system by irredeemable debt to the now networked multi-national profiteers. The profiteer’s objective being their accumulation of wealth at any cost to the public, not the efficient and effective provision and maintenance of projects and services (which it is incapable of without government). Yet beholden governments persisted with self-victimization by bailing them out by money and guarantees through ordinary tax payers.

    While countries competed to attract business to give their people employment and to facilitate circulation through their treasuries, the world’s now entrenched profiteers played into the competition by jurisdiction jumping, profit shifting and shell company deviations to no / low taxing jurisdictions, and other spurious adventures like faux-royalty circuses.

    Whilst Oz, particularly through the Menzies era, had a penchant for making or importing tax-avoiding oligarchs, such as Hancock, Vestey, James Hardie and Rio Tinto amonst many, it continued its bad habits through the halcyon years of multi-nationalism from the 1970s through to the 2008 GFC. And yet following five years of political chaos and cringing avoidance of proper industrial and tax policy, world leading financial and governance law experts coming to grips, from 2013 through 202, the Oz Coalition governments did absolutely nothing about it, preferring to gee it up, dip themselves into the red and black ink of corporate toadying and corruption, backed by Oz’s feckless and corrupted mainstream media.

    The world nearly brought to its knees by a seriously corrupted version of capitalism, a ‘suicide capitalism’ captured by the very worst and most base instincts of survival of the fittest, including the reformist behemoth China and the American hegemon, it has become a very dangerous place as the globalized forces of neoliberalism, commerce and militarized protectionism do their greedy worst against rational debate, diplomacy, trading to strengths through governments by and for the people to attain global improvement and equity.

    Driven by the lazy minded and out-of-control supremacists in fossil-fuel orgs, other multi-nationals and feckless FRWNJ media, and despite organized international moves against their destructive dominance, it will take decades to reform the Oz and international system. In Oz, politics now subject to absurd political point-scoring and legislative delay by the Coalition and other pretenders, regardless of history and structured progress under Labor (in its first term) leaves a slim chance of continuing reform, because everyone protests and blames with their expectant hand out, as if there’s a ‘magic wand’ available to them and the government.

    Typically, I commonly see a slag-off against Aukus as a supposed ballistics paradigm, without any analysis of its short, medium and long-term aims, perhaps as a multi-faceted pathway assisting our domestic economy and international detente, where at present there is precarity in almost every direction.

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