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	Australian Journal of Human Rights

Homelessness, human rights and the law^[*]

Justice Ronald Sackville⁺

I am honoured to be asked to give the keynote address at this Quarterly Homelessness Symposium. I must confess, however, to some ambivalence about accepting the invitation. I have two principal concerns.

First, although I wrote on the subject of homeless people and the law as part of the Australian Government Commission of Inquiry into Poverty (Sackville 1975; Sackville 1976), that was nearly three decades ago. Needless to say, a great deal has changed in the intervening period. The issues that were paramount in the mid-1970s are not necessarily of major concern in the very different economic, social and legal environment of the early 21st century.

Secondly, unlike some of those who have made insightful and persuasive contributions to the recent literature on homelessness and human rights (see, for example, Otto 2002), I have no recent firsthand knowledge of the particular problems experienced by homeless people. Any analysis of the policy issues presented by homelessness will be enriched if informed by practical experience gained from working with and on behalf of homeless people.

My qualifications to make a contribution can therefore legitimately be questioned. Nonetheless, I think it important to endeavour to bring to the attention of the wider community human rights issues associated with homelessness. Any contribution, however modest, that increases community understanding of these issues is worthwhile. I hope therefore that those scholars and commentators whose work I have freely drawn on will forgive me for borrowing their insights.

The extent of homelessness: what has changed?

The work of the Poverty Commission in the mid-1970s, viewed in retrospect, reflected optimism about the role of law in acting as a positive force for change. The report of that Commission, Law and Poverty in Australia, confidently asserted that:

... the law is capable of providing an important impetus for social and economic change. Not only is reform of the law often essential to overcome obvious inequalities and injustices in society, but the reforms can markedly influence community attitudes and behaviour ... [It] is ... not unduly optimistic to suggest that [the law] is capable of meeting the challenges posed by the inequalities associated with poverty (Sackville 1975: 2).

This was a time, it must be remembered, when the United States had launched and prosecuted, with some apparent success, the ‘War on Poverty’. The Whitlam Government in Australia, during its brief term of office, had invested much political and economic capital in welfare programs designed to alleviate poverty and provide for greater equality of opportunity, if not necessarily of outcomes. The law, which had hitherto largely worked against the interests of poor people, was seen as having the potential to ameliorate if not overcome the powerlessness of the most disadvantaged people in the community.

The question of homelessness presented a more direct challenge for the legal system. The report considered it ‘shameful to record’ that Australian law imposed criminal sanctions on people essentially because they were poor (Sackville 1975: 245). Vagrancy laws, which originated in 14th century England, in practice were used to punish people who simply did not have the resources to maintain a decent standard of living. Similarly, laws prohibiting public drunkenness were overwhelmingly used against the destitute and the chronically ill. To overcome the ‘criminalisation of homelessness’ (Lynch 2002: 697), the report recommended repeal of the laws imposing criminal sanctions for vagrancy and public drunkenness and the establishment of intake centres to provide short term accommodation, medical care and referrals for intoxicated and homeless persons (Sackville 1975: 261).

In one sense, it can be argued that little has changed since the report Law and Poverty in Australia was presented to the Whitlam Government in its dying days.^[1] In the 1970s, no reliable census or survey information was available to enable firm conclusions to be drawn as to the number of homeless people in Australia, whether at a particular time or over a period. While studies had been carried out on subsets of homeless people in urban areas (Sackville 1976: 5–7), estimates of total numbers were essentially educated guesswork. The difficulties were compounded by the absence of a generally accepted definition of homelessness. Within these limitations, a 1973 Working Party estimated that the ‘upper limit’ on numbers of homeless people in Australia was 25,000 (Australian Department of Social Security 1973: 11).

Three decades on, much more precise information is available. The 1996 census was the first to attempt to count Australia’s homeless population using a cultural definition of homelessness (Chamberlain 1999). The 2001 census targeted the homeless population with an enumeration strategy, supplemented by information on people using services provided through the Supported Accommodation Assistance Program (SAAP) (Chamberlain and McKenzie 2003). This approach produced a figure of 99,990 homeless people on census night. Of these, 14,158 were categorised as staying in improvised dwellings or sleeping out; 48,614 were with relatives or friends; 14,251 were in SAAP accommodation; and 22,877 were in boarding houses (Chamberlain and McKenzie 2003: table 1).^[2]

Care must be taken when comparing population estimates from different periods. The early estimates of the homeless population tended to use rather vague definitions of the target group and, in any event, as I have noted, amounted to educated guesswork. Nevertheless, however problematic the comparisons, the available figures do not suggest that the social problems caused by or associated with homelessness have been substantially ameliorated over the years. Perhaps they have even gotten worse.

While many of the specific policy issues identified by the Poverty Commission have been the subjects of legislative reforms,^[3] homeless people are disproportionately represented in and disadvantaged by the criminal justice system. The Deputy Chief Magistrate of Victoria contends that homelessness ‘contributes to much of the summary crime in our community’ (Popovic 2004: 53) and that the courts have become a repository for homeless people (Popovic 2004: 56). She observes, for example, that it is not unusual for homeless people to be charged with car theft for breaking into cars to sleep. Moreover, homeless people are usually regarded as ineligible for certain rehabilitation orders, in lieu of imprisonment, because they have no secure accommodation. Similarly, the lack of accommodation for some alleged offenders, particularly those who are psychiatrically ill or drug abusers, may result in denial of bail (Popovic 2004: 54).

One thoughtful American commentator sees homelessness in prosperous Western societies as the consequence of a ‘bargain with the devil’ (Waldron 2000: 388). For decades, so he argues, those societies attempted to mitigate the worst effects of inequality because they recognised that poverty for some would eventually lead to a deterioration in the quality of life for all. In the last quarter of a century, however, a different hypothesis has prevailed:

... maybe extreme poverty for a substantial section of society can be tolerated with impunity, without undermining (even in the long run) security and quality of life for the most prosperous and the opportunities they cherish for their children (Waldron 2000: 388).

This is the bargain with the devil.

Perhaps Australia is less tolerant of the extremes of poverty that appear to be acceptable in the United States. Perhaps, too, we are more willing to provide the public facilities that can ameliorate the worst of the hardships and humiliations experienced by the homeless. Nonetheless, the sheer number of homeless people in the community, after allowing for difficulties of definition and estimation, rather suggests that we are not altogether strangers to a pact with the devil.

The human rights discourse

Even so, much has changed over the past quarter of a century. Many of the laws that penalised or overtly discriminated against homeless people have been repealed or substantially modified. Governments of all political complexions have embraced long term programs, such as SAAP, in an effort to reduce the incidence of homelessness and to ameliorate the adverse consequences of the experience of homelessness.

These developments are important. But perhaps the most striking change is in the nature of the debate concerning the social, economic and legal position of homeless people in Australia. Proponents of reform almost always employ the rhetoric of human rights to advance their argument. They adopt international human rights norms as the measure by which to assess current policies and practices affecting homeless people or bearing on the phenomenon of homelessness in the community (See, for example, Lynch and Cole 2003; Devereux 1991; Otto 2002; PILCH Homeless Persons’ Legal Clinic 2003). By contrast, there was no reference to the language of human rights in Law and Poverty in Australia or in other contemporary reports. Advocates of reform of the time tended to invoke the ‘needs’ of homeless people as the yardstick for evaluating programs or practices and to concentrate on repealing laws or modifying practices that could be properly characterised as discriminatory or unfair to such people.

Developments in international law

The reason for the debate being transformed into one about human rights is not difficult to discern. The Universal Declaration of Human Rights, adopted by the General Assembly of the United Nations in 1948, declared in art 25 that:

... [e]veryone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services ... (see Foscarinis 2000: 342–3).

But until the ‘inalienable rights of all members of the human family’ (preamble to the Universal Declaration of Human Rights) were embodied in multilateral human rights instruments, they remained, even as a matter of international law, in the realm of general aspirations rather than enforceable obligations.

It was not until the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) came into force in 1976^[4] that international human rights law provided standards against which the performance of contracting states in addressing homelessness could be effectively measured. When Australia ratified these instruments, in 1976 and 1980 respectively, it became bound, as a matter of international law, to implement their provisions.

A distinction is usually drawn between civil and political rights on the one hand, and economic, social and cultural rights on the other. The former are protected by the ICCPR, while the latter are protected by ICESCR. In fact, as George Williams points out, the dichotomy is problematic given the lack of a clear dividing line between the two categories of rights (Williams 1999: 7). For example, the right to freedom of association, recognised in art 22(1) of the ICCPR, clearly overlaps with the right of everyone to join a trade union, recognised in art 8(1)(a) of ICESCR.

It is therefore not surprising to find that both ICESCR and the ICCPR contain provisions that might be read as imposing obligations on state parties to ameliorate the disadvantages suffered by homeless people. The most significant right for present purposes is that recognised by art 11(1) of ICESCR. In language derived from the Universal Declaration of Human Rights, art 11(1) requires state parties to ‘recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing ...’. State parties are also to take ‘appropriate steps to ensure the realization of this right’, recognising the ‘essential importance of international co-operation based on free consent’ (ICESCR art 11(1)).

The rights recognised by the ICCPR do not expressly address the entitlement to adequate housing. Nonetheless, they are frequently invoked in writings dealing with the disabilities suffered by homeless people. Philip Lynch and Jacqueline Cole argue, for example, that a homeless person’s inherent right to life (art 6(1)) and to liberty and security (art 9(1)) may be violated if that person is vulnerable to random acts of violence by reason of lacking secure accommodation (Lynch and Cole 2003, 145–7). They also contend that the denial of social welfare benefits to homeless people can constitute discrimination on the ground of social origin or status, in contravention of ICCPR arts 2(2) and 26(1), and that the right of every citizen to vote (art 25(2)) is contravened by practical impediments to homeless people exercising the franchise (Lynch and Cole 2003, 149–51, 157–8). While some of these arguments might be thought to stretch the language of the ICCPR, they demonstrate that civil rights discourse can support claims on governments to take positive measures to tackle homelessness and its social consequences.

In one respect, there is an important distinction between rights recognised by the ICCPR and those recognised by ICESCR. The ICCPR obliges state parties to adopt such legislative or other measures as may be necessary to give effect to the rights recognised in the ICCPR itself (art 2(2)). State parties are also required to ensure that any person whose recognised rights or freedoms are violated has an effective remedy (art 2(3)(a)). For those countries which, like Australia, have adopted the First Optional Protocol to the ICCPR,^[5] an individual, after exhausting all available domestic remedies, may complain to the United Nations Human Rights Committee (HRC) that his or her rights under the ICCPR have been breached (First Optional Protocol to the ICCPR, art 5(2)(b)). The HRC forwards its views through the Secretary-General of the United Nations to the state party and to the individual complainant. As Toonen v Australia (Toonen) shows, the use of this mechanism can be a powerful force for change in domestic law.^[6]

ICESCR imposes more qualified obligations on state parties to implement or enforce rights it recognises. State parties are required by art 2(1) of ICESCR

... to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognised in the present covenant by all appropriate means (emphasis added).

The language of art 2(1) contrasts with the unequivocal terms of art 2(2) of the ICCPR. It is also significant that art 2(1) of ICESCR does not impose any specific obligation on state parties to ensure that a person whose rights are violated has an effective remedy.

ICESCR, however, does require state parties to submit reports to the United Nations on the measures they have adopted and the progress made in achieving the observance of rights recognised in ICESCR (art 16(1)).^[7] A mechanism is therefore in place for the United Nations to monitor compliance by state parties of their obligations under ICESCR, including the measures taken to realise the right to adequate housing. But there is no procedure for individuals to make complaints to the HRC or any similar body. The role of the United Nations in encouraging implementation of the requirements of ICESCR is therefore essentially limited to exhortation of state parties to improve their performance.

International law and domestic law

It is of course one thing for a country to subject itself to obligations under international law. It is quite another for those obligations to be enforceable under domestic law. The mechanisms for reporting to international agencies progress (or lack of it) in implementing ICESCR and the ICCPR, even if supplemented by the power of a body such as the Human Rights Committee to make recommendations in consequence of individual complaints, cannot ensure domestic compliance with international obligations. In Australia, the provisions of an international treaty do not form part of Australian law merely because Australia has ratified the treaty. Legislation is needed to achieve that result (Victoria v Commonwealth at 481–2). Since neither the ICCPR nor ICESCR has been given the force of law in Australia, neither creates rights and obligations directly enforceable under Australian law (Minogue v Human Rights and Equal Opportunity Commission at 447).

It does not follow, however, that Australia’s treaty obligations are without influence in Australian domestic law. At a general level, international norms influence the development of the Australian common law (see Brennan J in Mabo v Queensland (No 2) at 42). The High Court has repeatedly recognised that legislation should be interpreted, so far as the language permits, in conformity with established principles of international law, including treaty obligations, although this approach does not extend to the interpretation of the Australian Constitution itself (see, for example, Gummow and Hayne JJ in Kartinyeri v Commonwealth at 384–5). And while administrative decision-makers are free to depart from Australia’s unimplemented treaty obligations, they may be required to afford the affected person an opportunity to be heard before taking that course (Minister for Immigration and Ethnic Affairs v Teoh). As Lynch and Cole argue, homeless persons’ legal advocates, by familiarising themselves and relying on the terms of ICESCR and the ICCPR, ‘could ensure greater consonance between administrative decision-making and basic human rights’ (Lynch and Cole 2003: 171).

Even without legislative implementation, Australia’s international human rights obligations may be recognised by domestic law. The functions of the Human Rights and Equal Opportunity Commission (HREOC), for example, include inquiring into legislation, acts or practices of the Commonwealth that may be inconsistent with or contrary to any ‘human right’ (Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act), s 11(1)(e)–(f)). The latter term is defined to include rights and freedoms recognised under the ICCPR (HREOC Act, sch 2). Accordingly, HREOC is empowered to examine the practices of Commonwealth agencies responsible for administering social security or emergency housing programs in order to determine whether they are consistent with the rights and freedoms recognised in the ICCPR. HREOC may report its findings to the Minister (HREOC Act, s 11(1)(e)–(f)).

HREOC’s powers extend to other international human rights instruments if they are declared for the purposes of the HREOC Act (s 47(1)). While ICESCR has not been so declared, the Declaration of the Rights of the Child and equivalent declarations relating to mentally retarded persons and disabled persons have been brought within HREOC’s purview. Because the Declaration of the Rights of the Child provides that all children have the right to receive adequate housing (principle 4), it was within HREOC’s charter to conduct the 1989 national inquiry into youth homelessness (HREOC 1989; Devereux 1991: 229). Of course, the capacity of HREOC to perform its functions is dependent on adequate funding, something that is necessarily dependent upon the variable commitment of successive governments to the protection of human rights. Notwithstanding recent cutbacks in its funding, HREOC has an important role to play in scrutinising Commonwealth programs to ensure that they comply with Australia’s international human rights commitments.

Of more specific significance to the problem of homelessness, the Commonwealth and the states have entered into and maintained SAAP with Australia’s obligations under ICESCR and the ICCPR in mind. The preamble to the governing legislation, the SAAP Act, recites that Australia has acted to protect homeless people or those at risk of homelessness by recognising international standards for the protection of human rights and fundamental freedoms. The ‘overall aim’ of SAAP is to provide transitional supported accommodation and related support services to help homeless people ‘to achieve the maximum possible degree of self-reliance and independence’ (SAAP Act s 5(2)).

The current SAAP program, known as SAAP IV, is the subject of a Memorandum of Understanding between the Commonwealth and the states and territories, covering the period 2000 to 2005. It commences by reaffirming ‘a long term commitment by all signatories towards meeting Australia’s social obligations to homeless people’.

There is room for debate as to how close SAAP IV, or any of its predecessors, comes to fulfilling Australia’s international obligations to ensure adequate housing for everyone. But in a country that has no bill of rights and has not directly implemented either the ICCPR or ICESCR, the explicit acknowledgement of Australia’s international obligations to homeless people is an important reflection of the normative force of international human rights standards.

An expansion of domestic human rights

Human rights discourse has had a powerful influence on domestic policies addressing homelessness. But until international norms, such as those stated in the ICESCR, are expressly incorporated into domestic law, they will have limited significance in Australian law. There are two obvious ways in which this gap can be filled at a national level, although realistically neither is particularly likely to be adopted in the short to medium term.

The first is for the Commonwealth Parliament to legislate so as to create enforceable rights that mirror the terms of international treaties that address the position of homeless people. The Commonwealth has legislative power, for example, to implement art 11(1) of ICESCR as part of Australian law.^[8] That is, Parliament could recognise the right of everyone to adequate housing and legislate to provide appropriate mechanisms for the ‘full realization’ of that right (art 2(1)).

The second is for Australia to adopt a national bill of rights, either through a constitutional amendment (a proposal most unlikely to be adopted) or by the enactment of Commonwealth legislation. It is, of course, possible to have a statutory bill of rights, as distinct from one that is constitutionally entrenched, as has occurred in the United Kingdom and New Zealand (Sackville 2000).^[9] In the absence of a constitutional amendment, the Commonwealth Parliament is confined to the heads of legislative power identified in the Australian Constitution. It is, however, open to the states to refer the necessary legislative power to the Commonwealth^[10] or for the Commonwealth to enact the legislation at the request of all the states directly concerned (Constitution, s 51(xxxviii)).^[11]

Of course, even the adoption of a bill of rights will not necessarily ensure that social or economic rights, such as the right to adequate housing, are legally recognised and protected. Most domestic human rights instruments, at least in Western countries, do not go so far. The first bill of rights adopted by an Australian legislature, the Human Rights Act 2004 (ACT) (Human Rights Act),^[12] follows a reasonably conventional pattern. The rights it acknowledges are primarily drawn from the ICCPR. Nonetheless, some protected rights conceivably could be invoked to ameliorate the position of homeless people, especially homeless children. These include a prohibition on treating people in ‘a cruel, inhuman or degrading way’ (s 10(1)(b)); the right of every child to the protection needed ‘by being a child’ (s 11(2)); and the right to ‘liberty and security of person’ (s 18(1)). But the Human Rights Act does not specifically address the rights referred to in ICESCR, in particular the right to adequate food, clothing and housing referred to in art 11(1).

While there is no immediate prospect of social and economic rights being included in any Australian bill of rights, the South African experience suggests that the idea cannot be dismissed as fanciful. The recent case of Minister for Health v Treatment Action Campaign, decided by the Constitutional Court of South Africa, has attracted worldwide attention. There the Court declared that subss 27(1) and 27(2) of the South African Constitution^[13] required the Government to devise and implement, within its available resources, a comprehensive and co-ordinated program ‘to realise progressively the rights of pregnant women and their newborn children to have access to health services to combat mother-to-child transmission of HIV’. The Court also ordered the Government, without delay, to remove the restrictions that prevented the drug Nevirapine from being made available for the purpose of reducing the risk of mother-to-child transmission of HIV at public hospitals and clinics. Important as this case is, a decision of more direct significance to the position of homeless people is that of the Constitutional Court in Government of Republic of South Africa v Grootboom (Grootboom).

In Grootboom, a number of people in the Western Cape area of South Africa had been rendered homeless as a result of their eviction from their shacks situated on private land earmarked for low cost housing. Their living conditions in the shacks were described as ‘appalling’, but they were ‘forcibly’ and ‘inhumanly’ evicted by the municipality in a manner ‘reminiscent of apartheid-style evictions’ (Grootboom at 56). They sought an order under s 26 of the South African Constitution, which confers a right to adequate housing,^[14] requiring the Government to provide them with adequate basic shelter or housing until they obtained permanent accommodation. They succeeded in the lower court and the Government appealed to the Constitutional Court.

Yacoob J, delivering the judgment of the Court, held that s 26 could not be read as entitling the evicted people to claim shelter or housing upon demand. But s 26 did oblige the state to devise and implement a coherent, co-ordinated program designed to meet its s 26 obligations. The judgment acknowledged that the national Government had established a nationwide housing program which was ‘a major achievement’. Nonetheless, the program was deficient in that it failed to adopt reasonable measures, as required by s 26, to cater for those in desperate need of accommodation. The absence of this component might have been acceptable if the nationwide program could provide affordable houses for most people within ‘a reasonably short time’ (Grootboom at 78). But this simply could not happen. Thus the program fell short of obligations imposed upon the national government ‘to the extent that it fails to recognise that the State must provide relief for those in desperate need’ (Grootboom at 79). They were not to be ignored in the interests of medium and long term objectives.

The Court declared that s 26(2) of the Constitution required the state to devise and implement within its resources a comprehensive and co-ordinated program to realise progressively the right of access to adequate housing. It also declared that the program had to include reasonable measures to provide relief for people who have no access to land, who have no roof over their heads and ‘who are living in intolerable conditions or crisis situations’ (Grootboom at 83).

Grootboom rather dramatically illustrates that it is possible to create legally enforceable social and economic rights without necessarily placing the judicial and legislative or executive arms of government in irreconcilable conflict. The Constitutional Court was careful not to impose unrealistic standards on the national government and explicitly recognised that any program had to be implemented within the limits of available resources. Moreover, the Court effectively redistributed resources within an existing program; it did not challenge the amount of resources allocated by the Government to housing generally (Woods 2003: 786). In short, the case demonstrates that economic and social rights relevant to homelessness need not be purely aspirational. Even in a country with far more limited resources than Australia, social and economic rights can be made legally enforceable within the framework of a constitutional democracy.

Conclusion

In Australia, human rights discourse is an important element of advocacy on behalf of homeless people, who are among the most powerless and deprived members of our community. The fact that Australia is party to an international convention that, for example, requires it to recognise the right of everyone to adequate housing is of greater than purely symbolic significance. While the right is not directly enforceable as a matter of domestic law, it has influenced national policy, particularly through SAAP. It has also provided a powerful reference point for community groups and individuals pressing for more compassionate policies towards homeless people and those at risk of homelessness.

Even so, there is a great gap between countries in which international human rights norms are not directly enforceable under domestic law and those that explicitly recognise those norms and provide mechanisms for their enforcement. Elected politicians in Australia, with the notable recent exception of the Australian Capital Territory, have displayed a profound scepticism about giving unelected judges the power to review legislation to determine whether it is compatible with human rights standards (even if, as under the Canadian Charter of Rights and Freedoms or the Human Rights Act 1998 (UK), it is Parliament that has the last word). It is somewhat humbling that a country like South Africa, facing problems beyond the experience or even the imagination of most Australians, has been prepared to take precisely that step and to include social and economic rights among the human rights specifically protected.

It is too much to expect the South African model to be adopted in Australia, at least in the foreseeable future. Yet that model provides a reminder of how powerful human rights can be in ameliorating the worst manifestations of inequality in our society. Perhaps we need to rethink our part in the bargain with the devil. l

References

Australian cases

Commonwealth v Tasmania (1983) 158 CLR 1

Croome v Tasmania (1997) 191 CLR 119

Kartinyeri v Commonwealth (1998) 195 CLR 337

Mabo v Queensland (No 2) (1992) 175 CLR 1

Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273

Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438

Victoria v Commonwealth (1996) 187 CLR 416

Australian legislation

Australia Act 1986 (Cth)

Australian Constitution

Criminal Code (Tas)

Human Rights Act 2004 (ACT)

Human Rights and Equal Opportunity Commission Act 1986 (Cth)

Police Act 1892 (WA)

Supported Accommodation Assistance Act 1994 (Cth)

Vagrants, Gaming and Other Offences Act 1931 (Qld)

Canadian legislation

Canadian Charter of Rights of Freedoms, sch B, Canada Act 1982 (UK), c 11

New Zealand legislation

New Zealand Bill of Rights Act 1990 (NZ)

South African cases

Minister for Health v Treatment Action Campaign (2002) 5 South African Law Reports 721

Government of Republic of South Africa v Grootboom (2001) 1 South African Law Reports 46 (CC)

South African legislation

Constitution of the Republic of South Africa 1996

UK legislation

Human Rights Act 1998 (UK)

International legal material

Declaration of the Rights of the Child GA Res 1386 (XIV), UN Doc A/4354 (1959)

First Optional Protocol to the International Covenant on Civil and Political Rights GA Res 2200A (XXI), UN Doc A/6316 (1996)

International Covenant on Civil and Political Rights 23 March 1976, 999 UNTS 171

International Covenant on Economic, Social and Cultural Rights 3 January 1976, 993 UNTS 3

Toonen v Australia UN Doc CCPR/C/50/D/488/1992 (8 April 1994)

Universal Declaration of Human Rights GA Res 217A (III), UN Doc A/810 (1948)

Articles and reports

Chamberlain C (1999) Counting the Homeless: Implications for Policy Development Australian Bureau of Statistics, Canberra [Online] Available: <www.ausstats. abs.gov.au/ausstats/free.nsf/Lookup/8B3540FF145192A7CA256AE90020F638/$File/20410_1996.pdf> [2004, August 11]

Chamberlain C and McKenzie D (2003) Counting the Homeless 2001 Australian Bureau of Statistics, Canberra [Online] Available: <www.ausstats.abs.gov.au/ausstats/free.nsf/ Lookup/5AD852F13620FFDCCA256DE2007D81FE/$File/20500_2001.pdf> [2004, August 11]

Devereux A (1991) ‘Australia and the right to adequate housing’ 20 Federal Law Review pp 223–39

Foscarinis M (2000) ‘Homelessness and human rights: towards an integrated strategy’ 19 St Louis University Public Law Review pp 327–55

Lynch P (2002) ‘Begging for change: homelessness and the law’ 26 Melbourne University Law Review pp 690–706

Lynch P and Cole J (2003) ‘Homelessness and human rights: regarding and responding to homelessness as a human rights violation’ 4 Melbourne Journal of International Law pp 139–76

Otto D (2002) ‘Homelessness and human rights: engaging human rights discourse in the Australian context’ 27 Alternative Law Journal pp 271–7

PILCH Homeless Persons’ Legal Clinic (2003) Homelessness and Human Rights in Australia: Submission to the Supported Accommodation Assistance Program (SAAP IV) National Evaluation [Online] Available: <www.pilch.org.au> [2004, August 11]

Popovic J (2004) ‘Homelessness and the law: a view from the bench’ 17(1) Parity pp 53–6

Sackville R (2000) ‘A bill of rights: form and substance’ 19 Australian Bar Review pp 101–8

Shearer I (1995) ‘United Nations: Human Rights Committee: The Toonen Case’ 69 Australian Law Review pp 600–9

Waldron J (2000) ‘Homelessness and community’ 50 University of Toronto Law Journal pp 371–406

Walsh T (2003) ‘“Waltzing Matilda” one hundred years later: interactions between homeless persons and the criminal justice system in Queensland’ 25 Sydney Law Review pp 75–95

Williams G (1999) Human Rights under the Australian Constitution Oxford University Press, Melbourne

Woods J M (2003) ‘Justiciable social rights as a critique of the liberal paradigm’ 38 Texas International Law Journal pp 763–93

Government publications

Australian Department of Social Security (1973) Report of the Working Party on Homeless Men and Women to the Minister for Social Security AGPS, Canberra

Australian Government Commission of Inquiry into Poverty (1973) Poverty in Australia: Second Main Report AGPS, Canberra

Human Rights and Equal Opportunity Commission (1989) Report of the National Inquiry into Homeless Children: Our Homeless Children AGPS, Canberra

Sackville R (1975) Law and Poverty in Australia: Second Main Report of the Australian Government Commission of Inquiry into Poverty AGPS, Canberra

Sackville R (1976) Homeless People and the Law AGPS, Canberra

* This article is an edited version of a speech delivered at the Council to Homeless Persons (Vic), Homelessness Symposium, 10 March 2004, Melbourne.

+ Ronald Sackville is Judge of the Federal Court of Australia.

[1] As an historical footnote, the report was presented a few weeks before the dismissal of the Whitlam Government on 11 November 1975.

[2] As the figures imply, the definition of ‘homelessness’ used in the project encompasses different categories of homeless persons. ‘Primary homelessness’ is much the same as ‘rooflessness’ and includes all people without conventional accommodation; ‘secondary homelessness’ includes people who move frequently from one form of temporary shelter, such as SAAP accommodation, to another; and ‘tertiary homelessness’ encompasses people who live in boarding houses on a medium to long term basis at a standard below a minimum community standard (Chamberlain and McKenzie 2003, 10–13). Compare the definition of ‘homeless’ in the Supported Accommodation Assistance Act 1994 (Cth) (SAAP Act), s 4.

[3] For the most part, laws penalising persons without visible means of support have been repealed, although not in Queensland or Western Australia: Vagrants, Gaming and Other Offences Act 1931 (Qld) s 4(1)(a); Police Act 1892 (WA) s 65(1). Most states retain begging in public as an offence: see generally Walsh 2003.

[4] ICESCR came into force on 3 January 1976 in accordance with ICESCR art 27; the ICCPR came into force on 23 March 1976 in accordance with ICCPR art 49.

[5] Australia acceded to the First Optional Protocol to the ICCPR on 25 September 1991.

[6] The Toonen case involved a complaint that the Tasmanian Criminal Code contravened Mr Toonen’s right to privacy, recognised in art 17 of the ICCPR, by criminalising homosexual activity between consenting males. The complaint was upheld and the Commonwealth Government subsequently legislated to override the Tasmanian law: See Shearer 1995; Williams 1999: 19–20; Croome v Tasmania.

[7] See also ICESCR arts 17, 18, 21, and 22.

[8] By exercising its power to make laws with respect to external affairs under the Australian Constitution, s 51(xxix): Commonwealth v Tasma nia.

[9] The statutory bill of rights is contained in the Human Rights Act 1998 (UK) and the New Zealand Bill of Rights Act 1990 (NZ).

[10] Pursuant to the Constitution, s 51(xxxvii).

[11] This mechanism was used to enact the Australia Act 1986 (Cth).

[12] The Human Rights Act 2004 (ACT) was passed by the Legislative Assembly on 2 March 2004. The Act does not invalidate laws that are inconsistent with its provisions, but it empowers the Supreme Court of the ACT to make a declaration of incompatibility if it finds a territory law incompatible with a human right: s 32. The declaration must be presented to the Legislative Assembly, along with a response from the Attorney-General: s 33.

[13] Section 27(1)(a) provides that everyone has the right to have access to health services, including reproductive health care. Section 27(2) requires the state to take reasonable measures, within its available resources, to achieve the progressive realisation of the rights in s 27(1).

[14] Section 26(1) provides that ‘everyone has the right to adequate housing’. Section 26(2) obliges the state, within its available resources, to achieve the progressive realisation of this right. It will be seen that s 26 follows reasonably closely the language of arts 11(1) and 2(1) of ICESCR.