Australia and the Right to Adequate Housing
| Author | Annemarie Devereux |
| DOI | 10.1177/0067205X9102000203 |
| Published date | 01 June 1991 |
| Date | 01 June 1991 |
| Subject Matter | Article |
1991] Australia and the Right to Adequate Housing
AUSTRALIA AND
THE
RIGHT
TO
ADEQUATE HOUSING
ANNEMARIE
DEVEREUX*
223
Although some· fifteen years have passed since Australia ratified the
International Covenant on Economic, Social and CulturalRights (ICESCR) and
so incurred an obligation to respect, protect, promote and ensure each
individual's ·"right to adequate housing", in Australia the right remains little
more than arhetorical tool used by welfare activists. Despite the increased
political and legal profIle
of
human rights in Australia with the establishment
of
such bodies as the Commonwealth's Human Rights and Equal Opportunity
Commission (HREOC), the "right to .adequate housing", like many other
economic rights, has been largely ignored. In an attempt to highlight the gap
between Australia's international commibnent and its domestic response, the first
part
of
this paper examines the Eontent and implications
of
the right to adequate
housing and Australia's obligation under Article
11
of
the ICESCR. The second
part focuses on the Federal Goyernment's response, discussing in particular the
absence
of
any legal
provisi~n·
for the right's protection and the lack
of
comprehensive administrative policies aimed at the right's progressive realisation.
For
the purposes
of
this latter discussion, acase study
of
federal policies
concerning the homeless, agroup most apparently lacking in "adequate housing",
demonstrates the extent to which administrative policies continue to embrace
notions
of
"worthiness" rather than "universal dignity", making realisation
of
a
"right to adequate housing" impossible.
1AUSTRALIA'S INTERNATIONAL LAW OBLIGATION
AArticle
11
of
the /CESCR
In 1975 the Commonwealth ratified the ICESCRI which imposes on the
Australian State·inter alia an obligation to recognise, respect and protect aright
to "adequate housing". This right is contained within amore general·provision,
Article 11(1), concerning the right to an "adequate standard
of
living". Article
11(1) reads:
1. The States Parties to the present Covenant recognize the right
of
everyone to an
adequate standard
of
living for himself and his family, including adequate
food, clothing and housing, and to the continuous improvement
of
living
conditions. The States Parties will take appropriate steps to ensure the
realization
of
this right, recognizing to this effect the essential importance
of
international co-operation based on free consent.2(emphasis added)
Through becoming aparty to the Covenant,.the Commonwealth bound itself in
international law to respect this "human right" and take steps to the maximum
of
its available resources with a
v~ew
to progressively achieving the right's full
realisation (Article 2). Australia undertook to guarantee that this right would be
exercised without discrimination
of
any kind as to "race, colour, sex, language,
1
2
BA{Hons) LLB(Hons); The author wishes
to
thank Peter Bayne and Peter Bailey
for
their
helpful comments upon earlier drafts
of
this article. >
The ICESCR entered into force
for
Australia on 10 March 1976.
Asimilar clause relating
to
the family appeared in the Universal Declaration
of
Human Rights
(UDHR)
_.
Article 25(1). For the full text
of
the ICESCR and the UDHR. see IBrownlie. Basic
Doc~nts
in
International
Law
(3rd
ed
1983).
224 Federal
Law
Review [VOLUME 20
religion, political
or
other opinion,national·or social··origin, property, birth
or
other status" (Article 2(2)). International co-operation and assistance in
achieving these ends was foreshadowed in general terms in Article 2and is
mentioned expressly in Article 11.
Whilst articulating the right to housing, the Covenant provided no
enforcement mechanisms
or
remedies for aperson/State wishing to complain
of
an abrogation
of
the
right
Unlike the ICCPR,3 the ICESCR did not establish a
tribunal nor did it allow for recourse to any sort
of
International Court. States
were to send progress reports to aCommittee
of
the Economic and Social
Council.4Yet, the Committee's role was to assess States' needs for international
aid, rather than enforce compliance·with the Covenant's provisions and even now
that
itis
composed
of
expert personnel rather than government representatives,s
its purpose remains unchanged. Despite there being only political sanctions
available for the ICESCR rights' enforcement, an examination
of
the right to
adequate housing's content and implications reveals that Australia's obligation is
far from an "empty shell".
BConnotations
of
a"Right to Adequate Housing"
The inherent vagueness
of
the term a"right to adequate housing" is
undeniable. Whilst housing in its most basic form connotes stable shelter, to
satisfactorily define an "adequate" standard
of
housing is adifficult task.
Unfortunately, according to von Hebel, the
travaux
preparatoires
of
the
ICESCR provide little elucidation beyond making it clear that the phrase was
intended to signify more than aright to bare shelter.6When Article
11
was
drafted, some representatives feared that "adequate" might be read down to imply
only the "bare necessities". The alternative phrase suggested -"decent housing" -
was rejected, however, on the basis
of
its "moral overtones" and lack
of
clarity.?
Furthermore, as von Hebel points out, when Article
11
is read as awhole, its
reference to the right to "continuous improvement
of
lifestyle", the impression
that "adequate" was designed to mean something more than "subsistence level" is
confirmed
..
The intended meaning thus seems to approximate what might
be
termed a"dignified standard"
of
housing.
This "dignified standard" approach seems in keeping with interpretations
afforded to similar phrases in other international documents. The International
Labour Organisation has been insistent that the "right to housing" for workers
included in its Recommendation 115 concerning Workers Housing
of
19618
represents more than "the minimum necessary for subsistence".9 Similarly, in the
"Burdekin Report", the HREOC concluded that the right to adequate housing
of
children contained within the Declaration
of
the Rights
of
the Child must
be
read consistently with the child's other rights. The housing must therefore be
3
4
6
7
8
9
The International Covenant on Civil and Political Rights, ratified by Australia in 1980.
Australia has duly submitted these reports. The most recently. completed report was completed
in 1980, although anew Report was being prepared at the time
of
finalising this article in
1990.
The change was made in 1986: PBailey, Human Rights: Australia in an InternationafContext
(1990) 321.
Hvon Hebel "The implementation
of
the right to housing
in
article
11
of
the United Nations
Covenant on Economic, Social and Cultural Rights" (1987) 20 SIM Newsletter 26, 27.
Id.
CLeckie, "The Right to Housing" (1987) 20 SIM Newsletter 10,
17.
1976 Statement
of
the ILO quoted by KTomasevski, "Human Rights: the right
to
food" (1985)
70 Iowa LRev 1321, 1325.
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