Australia's housing crisis and the right to adequate housing

Jacqueline Ge

Why is Australia experiencing a housing crisis?

Access to secure and affordable housing in Australia has become more difficult in recent years following the COVID-19 pandemic, with supply problems and skyrocketing interest rates adding to an already challenging environment for those in search of adequate housing.

But despite recent media headlines chronicling a sudden shift to 'van life' for some Australians, this crisis has existed for many years. Among the people whose rights have been affected by the housing crisis, vulnerable groups, such as refugees, children, people with disabilities, older adults, and Indigenous peoples, face particularly challenging situations.

Data released by the Australian Bureau of Statistics demonstrates that the number of people who are experiencing homelessness has been consistently rising since 2006. In 2021, 14.4% of homeless people were children under 12, and nearly 15.8% of homeless people were over the age of 55. The rate of Aboriginal and Torrens Strait Islander people experiencing homelessness represents almost one in five homeless Australians.

The increasing cost of living, especially the rising cost of food and rent in Australia, are partly to blame. Since January 2021, rental prices have risen with no signs of slowing. 

What is the right to housing?

The right to housing is set out in Article 11(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which imposes positive obligations on State Parties to take appropriate steps to ensure the realisation of the right to adequate housing. The content of the right is further explained by the UN High Commissioner for Human Rights.

Fulfilling the right to adequate housing includes consideration by the State of the affordability and accessibility of housing, including focusing on protecting the most vulnerable and marginalised peoples’ human rights. Homelessness is a failure of the State’s obligation to ensure protection of the right to housing.

How is the right to adequate housing recognised in Australia?

There are no express protections for the right to adequate housing in the human rights acts in Queensland, Victoria and the Australian Capital Territory, however, all 'states and territories have Housing Acts that govern the administration of social housing and the Commonwealth Housing Act sets up the framework… to fund social housing initiatives'.¹ Despite the lack of express protection in state and territory human rights laws, they can still be a useful mechanism to raise housing issues in a human rights context.

In Victoria, under section 38 of the Charter of Human Rights and Responsibilities Act 2006 (Vic), public authorities need to consider relevant human rights when making a decision. Thus, when public authorities (within the definition of section 4) exercise their power, they should make a decision or policy that is compatible with relevant human rights.

If the public authority has violated relevant human rights, the person affected by the decision may seek relief or remedy under the law to protect their rights. For example, the Victorian Charter has successfully been used to prevent people from being evicted by the Director of Housing (ARF v Director of Housing [2021] VSC 199). Similar examples can also be found in Queensland. The ACT Human Rights Act has also been used to secure a single mother’s priority place on the housing assistance register (Commissioner for Housing in the ACT v Y [2007] ACTSC 84).

However, since these existing human rights charters do not expressly include the right to adequate housing, seeking protection for this right necessarily then focuses on the linkages between the right to housing and other human rights included in the laws. For example, in the Queensland case, a complaint was made because of an alleged violation of the right to protection of families and children (section 26) and other relevant human rights recognised by the Act.

How could a federal Human Rights Act help address the housing crisis?

A federal Human Rights Act could impose a positive duty on public authorities to act compatibly with the human rights expressed in the law (such as the right to adequate housing) and to consider human rights when making decisions.

Globally, there are useful examples of how other countries expressly protect the right to adequate housing. The right is enshrined in South Africa’s Constitution and the Grootboom and The Occupiers of 51 Olivia Road cases are two prominent decisions that have paved the way for understanding how a national government can take reasonable legislative and other measures within its available resources to progressively realise of the right to adequate housing. In France, the Tchokontio Happi case showcased the need for governments to take prompt action to provide vulnerable groups with social housing.

A federal Human Rights Act should cover the human rights Australia has already promised to uphold under international law, including the rights set out in ICESCR. The inclusion of the right to adequate housing is critical because it affects a basic right that is key to a person's well-being.