Markwell, Rita --- "Segues from the Outside: Sources of Indigenous Housing Rights in International Law" [2005] IndigLawB 42; (2005) 6(13) Indigenous Law Bulletin 6

Segues from the Outside: Sources of Indigenous Housing Rights in International Law

by Rita Markwell

The right to adequate housing made its international debut in the Universal Declaration of Human Rights of 1948[1] - a symbolic instrument of persuasive effect. The right gained legal clout in 1976 when it was enshrined in the International Covenant on Economic, Social and Cultural Rights[2] (the ‘ICESCR’).

As a signatory to the ICESCR, the Australian Government is under an obligation to take steps to ensure this right is protected. However, successive Governments have argued that this right is sufficiently addressed in Australia through administrative and financial mechanisms.

The rights contained in the ICESCR, such as housing, poverty, health, employment and education are frequently separated from those contained in the International Covenant on Civil and Political Rights (the ‘ICCPR’[3]). In addition, many states believe that the ICESCR rights are of a lesser significance and require greater resources for their implementation. In Australia, the ICCPR rights are enshrined and enforced under anti-discrimination legislation while the right to housing and other economic, social and cultural rights are framed largely as ‘aspirational’.

The right to adequate housing, as expressed in the ICESCR, has attracted two General Comments[4] which authoritatively demarcate the scope of state obligations, including:

• guaranteed legal protection against forced eviction and harassment;
• sustainable access to water, electricity, sanitation, washing facilities and refuse disposal;
• affordable housing;
• protection from the elements;
• proximity to employment, health and social services; and
• housing policies which enable expression of cultural identity.[5]

Another General Comment prescribed procedural safeguards to be implemented in the case of forced eviction. These include:

• genuine consultation with those affected;
• adequate notice; and
• the provision of legal remedies and aid to evictees.[6]

It is widely recognised that the right to adequate housing is causally connected with the right to the highest attainable standard of mental and physical health.[7] Overcrowding of Indigenous households in Australia is a significant contributor to the medical crisis experienced in many Indigenous communities.

Enter into this equation the Draft Declaration on the Rights of Indigenous Peoples[8] (the ‘Draft Declaration’) which recognises the right of Indigenous peoples to special measures for the improvement of economic and social conditions, including housing.[9] It requires that Indigenous peoples have the right to determine housing policies and to administer such policies through their own institutions.[10] The Draft Declaration has been the subject of protracted debate since its genesis.

In strictly legal terms, Australia is not obliged to comply with any international instruments to which it has signed but has not incorporated into domestic legislation. There is no Australian authority for the proposition that the right to housing is indisputably accepted by all nations and forms part of the universally binding customary law. Australian courts have approached similar customary law arguments with extreme caution, demonstrating an ideological allegiance to the supremacy of state sovereignty.[11]

There is, however, undoubted utility in international law. The process of discussion and negotiation on an international level invites Indigenous peoples to consider their position and inherent rights. As well, ideas begin to trickle down into Australian policy circles.

New initiatives to address Indigenous housing issues on both federal and state levels purport to recognise the key importance of developing and administering policies in co-operation and consultation with Indigenous communities.[12] However, there is concern about the translation of this rhetoric into practice. The Federal Government’s return to ‘mainstreaming’ in Indigenous policy has been widely criticised as marginalising their input in decision-making.[13] Equally, the Government’s campaign for Shared Responsibility Agreements has muddied the waters of entitlement – reducing some basic services into bargaining chips.[14]

More than ever, the ICESCR resonates as a reminder of basic human entitlement. International law illuminates the full spectrum of state responsibility, including the proper terms of engagement with Indigenous communities. Despite its lofty air and limitations, international law presents a source of rights worth knowing and talking about.

Rita Markwell is currently employed as Indigenous Affairs Advisor for the Office of Senator Chris Evans, Shadow Minister for Family and Community Services.

[1] The Universal Declaration of Human Rights was adopted and proclaimed by the United Nations General Assembly, Resolution 217A (III) on 10 December 1948.

[2] The International Covenant on Economic, Social and Cultural Rights was opened for signature on 16 December 1966 and entered into force on 3 January 1976.

[3] ‘The Implementation of the International Covenant on Economic, Social and Cultural Rights in Overseas Jurisdictions and Hong Kong’, Research and Library Services Division, Legislative Council Secretariat, April 1995, Document RP02/94-95: <http://www.legco.gov.hk/yr97-98/english/sec/library/9495rp02e.pdf> .

[4] The Committee on Economic, Social and Cultural Rights (‘CESCR’), General Comment No 4 on the Right to Adequate Housing, UN Doc E/CN.4/1001/4; CESCR, General Comment No 7 on Forced Evictions, UN Doc E/C.12/1997/4.

[5] CESCR, General Comment No 4 on the Right to Adequate Housing, UN Doc E/CN.4/1001/4.

[6] CESCR, General Comment No 7 on Forced Evictions, UN Doc E/C.12/1997/4, at para 15.

[7] Chris Sidoti, ‘Housing as a Human Right’, National Conference on Homelessness, 4 September, 1996; R S Bailie and M J Runcie, ‘Household Infrastructure in Aboriginal Communities and the Implications for Health Improvement’ (2001) 175 Medical Journal of Australia 363; Steering Committee for the Review of Government Service Provision ‘Overcoming Indigenous Disadvantage: Key Indicators’, 2005.

[8] The Draft Declaration on the Human Rights of Indigenous Peoples was published by the United Nations on 23 August 1993 <http://www.usask.ca/nativelaw/ddir.html> at 29 September 2005.

[9] Ibid, Art 22.

[10] Ibid, Art 23.

[11] Nulyarimma v Thompson [1999] FCA 1192; Re Minister for Immigration and Multicultural Affairs; ex parte Lam [2003] HCA 6 (12 February 2003) B33/ 2001.

[12] See, for example, Department of Family and Community Services, ‘Building a Better Future: Indigenous Housing to 2010’, Housing Ministers’ Conference, 4 May 2001 <http://www.facs.gov.au/internet.nsf/aboutfacs/programs/community-indig_housing> at 29 September 2005.

[13] See, for example, Aboriginal and Torres Strait Islander Social Justice Commissioner, Tom Calma, Social Justice Report, 2004 <http://www.hreoc.gov.au/social_justice/sjreport04/index.html> at 29 September 2005; Aden Ridgeway, ‘Senator Aden Ridgeway speaks to the Report “After ATSIC - Life in the Mainstream”’ Australian Democrat Speeches, 8 March 2005 <http://www.democrats.org.au/speeches/?speech_id=1551 & display=1> at 29 September 2005.

[14] ‘Local MP tells Federal Government to Fix Basics in Communities’, ABC Online, 1 August 2005; Ruth McCausland, ‘Shared Responsibility Agreements: Practical Reconciliation or Paternalistic Rhetoric?’ (2005) 6 Indigenous Law Bulletin 12, 9-11; Patricia Karvelas and Tony Koch, ‘Stand-Off as Community Refuses Repairs-for-Study’ (2005) The Australian, 25 August 2005, 3.