(This is extracted from an essay I did on the issue. It is not the final version, so it may contain grammatical errors and such, but I wasn’t going to put the final version up. I am simply interested in sharing the facts and information, not giving out a free essay.)

Photo: “Homeless in Sugamo 1″ by Jim Fischer

Human rights in Australia continue to come under threat. Due to a failure of the Australian Government to uphold its international human rights obligations, asylum seekers have become a disadvantaged group and are threatened by homelessness. Despite Australia’s signature on several key international human rights documents, these rights cannot be realised by asylum seekers due to a lack of legislative protection and subsequent failures of social services. As a result, many asylum seekers live without the human rights that Australia has promised, but not fulfilled.

This paper will discuss the issue of homelessness faced by asylum seekers from a human rights perspective. I will firstly outline the threat of homelessness faced by asylum seekers. Second, I will discuss homelessness as a human rights issue by outlining the international human rights discourse on housing, while also look at Australia’s role in housing rights realisation. Thirdly, I will argue that a human rights approach to tackling the issue of asylum seeker homelessness is required to address the problem. Finally, I will discuss the weaknesses and strengths of a human rights approach.

While homelessness affects many people in Australia, asylum seekers encounter unique circumstances upon arrival in Australia. These barriers to social services due to a range of unique issues faced by asylum seekers have created a disadvantaged group that are unable to realise their right to shelter and human dignity.  Asylum seekers are persons living lawfully within Australia who are outside their country of origin due to a fear of persecution, awaiting the grant of full refugee and protection status from the government (Liddy, Sanders & Coleman 2010, p. 7).  However, it has become clear that asylum seekers, despite being able to live in Australia while awaiting the outcome of their protection/humanitarian visas, are increasingly at risk of becoming homeless. Homelessness Australia notes that asylum seeker and other recently arrived migrants “are very vulnerable to homelessness” and that “as many as one third of refugees and asylum seekers become homeless at some point after arriving in Australia” (Homelessness Australia 2006). Homelessness Australia also notes that youth and children are “six times more likely to become homeless than other young people” (Homelessness Australia 2006), while many asylum seekers are “destitute at some stage…and are…utterly dependent upon charity and community supporters to meet their basic subsistence needs” (Asylum Seekers Centre of New South Wales 2008, p 12). Homelessness, regardless of race and background, is a human rights issue. The right to adequate housing/shelter, food and social services are key human rights in international law As a result of homelessness, asylum seeker’s human rights are failing to be fully realised, and thus Australia is neglecting its international human rights obligations.

The international community, following the end of the Second World War, formed an organisation known as the United Nations (UN) in 1946 “to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind” (United Nations 2010 (2)). One of the core foundations built into the UN was the concept of human rights. Through a number of declarations and covenants, human rights were promulgated and an international human rights framework and institution was created. The core of the human rights system are several key documents which stipulate that an adequate standard of living, which includes, among others, housing, food and medical care, is a fundamental human right. As a result, asylum seekers who have become homeless then are failing to realise their human rights.  According to Article 25 of the Universal Declaration of Human Rights (UDHR),

“everyone has the right to a standard of living adequate for the health and wellbeing of himself…including food, housing and medical care and necessary social services, and the right to security in the event of…circumstances beyond his control” (United Nations 2010).

Asylum seekers, by definition, are the product of circumstances beyond their control and are naturally forced to seek the type of security outlined in Article 25 (along with freedom from persecution, torture, discrimination, arrest (Articles 3, 5, 7, 9) and so forth). Key to understanding human rights is realising that housing is seen to preserve the “health and wellbeing” (United Nations 2010) of the person. As the preamble of the UDHR stipulates, “whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,” (United Nations 2010), the preservation of human dignity is paramount to the realisation of human rights. Former Australian Human Rights Commissioner Chris Sidoti noted that human dignity was irremovable from access to shelter; “adequate housing is essential for human survival with dignity. Without a right to housing, many other basic human rights will be compromised” (Sidoti 1996). Thus, Sidoti acknowledges the flow-on of rights realisation that begins with access to housing.

So where does responsibility lie in the realisation of housing rights? While the UDHR remains non-committal, latter human rights declarations specify that the state must play a role in rights realisation. The International Covenant on Economic, Social and Cultural Rights (ICESCR) emphasises the right to housing, in an almost identical language to the UDHR, but adds that “the States Parties will take appropriate steps to ensure the realisation of this right” (ICESCR 2007). While the UDHR promulgates the right, the ICESCR places additional emphasis on responsibility, clearly delegating that the state must take a significant role in the realisation of this right. The International Convention on the Elimination of all Forms of Racial Discrimination, Article 5 (e)(iii) also emphasising the role of the state in realising the right;

“States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction….including…the right to housing” (CERD 2007)

Article 27 of the Convention on the Rights of the Child (CRC)  declares that every child has a right to an adequate standard of living, but importantly, “States Parties…shall take appropriate measures to implement this right and shall in case of need provide material assistance…with regard to…housing”(CRC 2007). Finally, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) provides that “States Parties shall take all appropriate measures…to ensure to such women the right…to enjoy adequate living conditions, particularly in relation to housing” (Article 14 (2)(h))(CEDAW 2007). In addition to these human rights instruments, the Report of the United Nations Conference on Human Settlements (HABITAT II) declared that  states “reaffirm our commitment to the full and progressive realisation of the right to adequate housing as provided for in international instruments” (HABITAT II).

What is important about these declarations is the ‘positive’ aspect of these rights. ‘First Generation Rights,’ more commonly known as Civil and Political Rights, generally require the state to abstain from engaging in an activity that would infringe upon a person’s dignity, for example arbitrary arrest, torture, persecution and so on (Ife 2008, p30-31). These are known as ‘negative’ rights, because they largely demand states refrain from certain behaviour. ‘Second Generation Rights,’ as such defined by CEDAW, ICESCR and CRC however are termed as ‘positive’ rights because they must be realised through action, as opposed to abstinence.  This therefore requires the state to act on the issue  of homelessness.

The aforementioned human rights declarations are all documents of international human rights law to which Australia is a party to. Australia was also a signatory of the statement HABITAT II. That said, Australia has therefore declared that the right to housing exists, and that the state is a necessarily component in the right realisation.

On the issue of asylum seekers, the United Nations’ High Commissioner on Refugees (UNHCR) stipulated that housing is essential for their needs;

“asylum-seekers should have access to the appropriate governmental and non-governmental entities when they require assistance so that their basic support needs, including food, clothing, accommodation, and medical care..are met” (UNHCR 2010)

Therefore, state action in addressing the needs of asylum seekers is necessary for the full realisation of the human right to housing. However, asylum seekers in Australia face the threat of becoming homeless due to a lack of state assistance.

After looking at the international discourse on the human right to housing, I now turn to engaging human rights as a solution to the problem. In any solution, it is important to understand the causes contributing to asylum seeker homelessness.

Firstly, asylum seekers “have no access to a government-funded financial safety net or a sustained independent income” (Liddy, Sanders & Coleman 2010, p. 7).  Secondly, for those not accommodated by friends or family, the

“small number of asylum seekers who are able to find employment face significant difficulties in accessing private rental stock due to their lack of rental references, but also due to racism and discrimination” (Liddy, Sanders & Coleman 2010, p. 19).

This lack of financial security creates a situation whereby many asylum seekers are threatened by homelessness and are therefore presented with the only alternative of securing services from the Australian Government.  However, securing such support has been a problem for many asylum seekers.   According to the Asylum Seeker Resource Centre (ASRC), “a recurring theme…is the lack of access that asylum seekers face when approaching Housing Services, and the inadequacy of current responses” (Burns, 2009, p 3). The ASRC also notes that Housing Agencies’ “willingness and understanding to provide an adequate emergency and transitional accommodation response”, as well as “a lack of safe rooming houses” and obstacles to “mainstream transitional housing” (Burns, 2009, p.3) all contributed to asylum seeker homelessness.

As I argued earlier, second generation rights, human rights that ensure human dignity by combatting issues like homelessness must come in part through ‘positive’ action from the state.  The covenants and declarations have all been signed by the Australian government, yet responsibility for realising these rights has often been left largely for non-governmental organisations and charities; but “both physically and financially, the community and not-for-profit sector cannot continue to carry the full responsibility of providing housing for asylum seekers” (Burns, 2009, p 3). Compounding the issue is the fact that “the housing needs of asylum seekers have been largely ignored in public policy debate(s) on homelessness” (Liddy, Sanders & Coleman 2010, p. 11).  Also, Australia’s legislative response could be compared to little more than lip service to the treaties and covenants it has signed; with no bill of rights, Australia has not added any constitutional entrenchment of the human rights it has supported in any of the covenants, unlike many others in the international community (Heyns & Viljoen, 2001, p 500). Further to this, the creation of legislation to adopt the measures of the treaties has been weak at best, with only some aspects of the ICESCR, CERD, CRD and CEDAW have been adopted by Parliament (Heyns & Viljoen, 2001, p 501). Legislative Acts that have been passed have only included specific rights, as Chappell, Chesterman and Hill (2009, p 39) stipulate, “none of the Acts fully implement the range of rights included in the international treaties.” Housing, is one such rights aspect that has failed to be constitutionally or legislatively realised, and according to the Human Rights and Equal Opportunity Commission (HREOC), “agreed international human rights standards, including rights about housing, have not yet been fully incorporated into Australian law” (HREOC, 2008, p 8). In addition, the UN Human Rights Council Special Rapporteur “notes a weakness in Australian legislation regarding the implementation and monitoring of the right to adequate housing” (Kohtari, 2007, p 18). As per the treaties and covenants signed and ratified by Australia, the right to housing is requires significant action on the part of the state in order for the right to be fully realised. However, as I have just argued, Australian law has no constitutional or legislative protection for the right to housing, and thus, it seems, lacks a mandate to uphold the rights of the person, despite its signature on international law documents.  As such, the state has failed to realise the human right of asylum seekers and as a result, the right to an adequate standard of living cannot be met.

As I argued earlier, homeless is a real threat to asylum seekers following a lack of access for asylum seekers to financial and housing security. Government services are either unable or unwilling to arrange accommodation, and for those asylum seekers with an income, racial discrimination is the private housing market is a contributing factor to asylum seeker homelessness.  What is clear is that these issues need to be addressed in order to provide a solution.  While housing is a human right, it is currently being denied as such in Australia through a lack of policy and rights protection. Despite this, a human rights framework for the issue of housing already exists in international law and declarations. Therefore, it would be prudent to engage the government in addressing this issue from a human rights standpoint. Because Australia currently has no bill of rights or legislation enshrining the right to an adequate standard of living that acknowledges housing as a human right, this provides us with area to seek improvement. As the UN Special Rappateur noted, Australian policy, legislation and monitoring of housing rights is weak. As a result, the government needs to be addressed on this issue. The UN Special Rapporteur made several recommendations to the Australian government, in particular,

“ Australian legislation should explicitly incorporate human rights and the right to adequate housing, and the recommendations on housing and land made to the Australian authorities by various United Nations human rights bodies should be fully implemented” (Kohtari, 2007, p 2).

It is clear that Australia has failed to implement many of the UN declarations and treaties into legislative and policy practice, and it is clear that the threat of homelessness to an asylum seeker is related to lack of access and service provided by the government.

Because these human rights are not enshrined by law, the Australian judicial system does not need to recognise, legally, any treaty Australia has signed. While a Bill Of Rights would be an adequate response to the legal issue of housing, the Bill of Right is still being debated in Australia. Despite a community consensus that Australia should have a Bill, the Government declared that Australia was not yet ready for such a constitutional entrenchment of rights (Innes, 2010). Chappell, Chestermen and Hill (2009, p 80) also note that without strong leadership, such as that from a Prime Minister, “a bill of rights proposal is likely to founder.”  As a result, I argue that while a bill of rights may be a solution to the homelessness problem, it is unlikely to be practical in the immediate future. Therefore, I argue that a solution instead lies in an immediate, legislative direction.

As Theile (2002, p 714) promulgates, “by enshrining housing rights in legislation, states not only fulfil their respective international legal obligations, but create domestic legal systems that empower individuals…that allow(s) to enforce their rights.” In addition, the plans of the Australian Government’s White Paper on homelessness could be realised through legislative framework, according to Patricia Faulkner of the Social Inclusion Board (Burns, 2009, p.22). Wiles (2006, p 64) also states that social and economic rights (ICESDC) “should be made legally enforceable in principle, to protect the necessities of life.”  As a result of legislative framework, the government is not only provided with a clear mandate to respond to homelessness, but it also shapes the public response. Therefore, the government can be lobbied to create legislation that protects housing rights as a solution to homelessness, but also as one that fulfils Australia’s international legal duties. As such, lobbyists can take argue for dual obligations, strengthening the need for action on part of the government. In 2010, the Australian Parliament showed significant movement on housing legislation, further emphasising that legislative action is more likely to be seen in the short term, as opposed to a bill of rights.  The House of Representatives Family, Community, Housing and Youth Committee in May called for “new legislation to specify the right of all Australians to adequate housing with reference to Australia’s international human rights obligations” (Parliament of Australia, 2010). This declaration showed that Parliament was exhibiting signs of accepting that housing is a human right that requires legislative protection. While legislative action is yet to take place, placing leverage on Parliament, who are acknowledging the right to housing not only as a human right, but as an international obligation could see legislation enacted in Parliament in the near future.

There are issues however with addressing homelessness as a human rights issue. While economic and social rights declare a right to housing, without legal enforcement, they are little more than ideals. As Burns (2005, p 36) notes, “without legal enforceability, it is widely believed that economic and social rights will remain largely ineffectual as legal entities,” therefore, without legislative action, human rights cannot be fully realised. The history of economic and social rights should also not be discounted;  the ICESCR notably enforces rights that were lobbied for by the Soviet Union, and as a result, western nations such as the United States stood in strong opposition to them (Beetham, 1995, p 43).  As such, “the demosie of the USSR…has reinforced the priorities of the USA” (Beetham, 1995, p 43), and emphasised civil and political rights over economic and social right.

Political reality and political ideology are also two separate matters. Firstly, “law cannot be created…without some degree of social and political consensus” (Kinley and Martin, 2004, p 181), meaning public support for homelessness legislation will be paramount for ensuring it is passed in Parliament. The second obstacle in the case of realty vs. ideal is the obvious obligations that homelessness legislation would enforce upon the state.  A homelessness response would certainly require resources and funding, and the limitation of economic rights is that for the state to provide them, they must have the required resources. Maurice Cranston (1967) emphasised this aspect by stating that “ought implies can” (quoted in Hertel and Minkler, 2007, p 17), therefore a state can only provide such rights if it has the resources. Cranston also questioned whether a human right can be universal if it therefore requires positive action from someone, suggesting therefore that it cannot be universal if it depends on a government’s circumstances (Hertel and Minkler, 2007, p 17). Such questions of universality obviously threaten the notion of housing as a fundamental human right, while the financial and resources burden of a state-implemented response to homelessness would not only be a concern for state, but also imply that it won’t be achieved, even with legislation, without the necessary resources. Therefore, a human rights framework might exist through legislation, but fail to be realised as a result of resources.  This notably could also stifle public support for such legislation, if they feel that too many of their tax dollars will be spent on homelessness, rather than items they feel deserve more attention.

As I have argued, there are some significant weaknesses in promoting a human rights framework through legislative action. However, as I argued earlier, the political climate in Australia is currently in favour of rights. Parliament, as mentioned earlier, has recommended housing legislation be adopted to combat homelessness, showing that Government has already acknowledged a human rights response to homelessness is a viable solution. Therefore, Government opposition is being eroded in favour of social rights legislation. Secondly, the Australian public declared in 2009, in the National Human Rights Consultation that “only a minority believed our current (human rights) protections are adequate” and that most “wanted to see greater protection and promotion of human rights and responsibilities” (National Human Rights Consultation, 2009). Therefore, while there are a number of hurdles in adoption legislation, the community and the government both believe that greater protection for the homeless is required, and that the government has stipulated that a legislative framework that aims to protect housing as a human right should be adopted.

Human rights are fundamental and inalienable, and yet they are not always protected and enforced. In Australia, asylum seekers are becoming homeless, which prevents them to live in an adequate standard of living and thus realise their full human dignity. As per numerous international conventions and treaties, such as the ICESCR, housing is a human right, to which the state must take a role in ensuring. Australia has signed these international legal documents, but failed to implement any domestic legal protection for housing and the homeless. As a result, Australia has failed in its international obligations. Through lobbying government to enact housing legislation, a solution to homelessness could be achieved. By adopting a human rights framework as a response to homelessness, not only can a solution be found to the issue of asylum seeker homelessness, but Australia can also fulfil its international law obligations by protecting a fundamental human right.

Bibliography

Asylum Seekers Centre of New South Wales 2008, Annual Report 2007-08, viewed on 19 August 2010 via http://www.asylumseekerscentre.org.au/images/resources/reports/2008%20annual%20report%20website.pdf

Beetham, David (1996), What Future For Economic and Social Rights? Political Studies, XLIII, pp. 41-60

Burns, Ellen (2006), ASPIRATIONAL PRINCIPLES OR ENFORCEABLE RIGHTS? THE FUTURE FOR SocIo-ECONOMIC RIGHTS IN NATIONAL LAW, American University International Law Review, Volume 22, Issue 35

Burns, Johanna 2009, Locked Out: Position Paper on Homelessness of Asylum Seekers Living in the Community, Asylum Seeker Resource Centre, viewed on 8 August 2010 via http://www.asrc.org.au/media/documents/locked-out.pdf

CEDAW 2007, International Covenant on the Elimination of all Forms of Discrimination Against Women, Office of the United Nations High Commissioner for Human Rights, viewed 12 October 210 via http://www2.ohchr.org/english/law/cedaw.htm

CERD 2007, International Covenant on the Elimination of all Forms of Racial Discrimination, Office of the United Nations High Commissioner for Human Rights, viewed 12 October 210 via http://www2.ohchr.org/english/law/cerd.htm

CRC (2007), Convention on the Rights of the Child, Office of the United Nations High Commissioner for Human Rights, viewed 12 October 210 via http://www2.ohchr.org/english/law/crc.htm

HABITAT II, Report of the United Nations Conference on Human Settlements (Habitat II), no publication date given, viewed on 10 October 2010 via http://www.un-documents.net/ac165-14.htm

Hertek, Shareen and Minkler, Lanse (2007), Economic Rights: The Terrain, Working Paper 1, Economic Rights Working Paper Series, Human Rights Institute, University of Connecticut, viewed on October 17 via http://www.econ.uconn.edu/working/1.pdf

Heyns, Christof H. & Viljoen, Frans (2001), The Impact of the United Nations Human Rights Treaties on the Domestic Level, Human Rights Quarterly, Volume 23, Number 3, August 2001 pp. 483-535

Homelessness Australia (2006), Homelessness: NESB and Migrants, viewed 10 August 2010 via http://www.homelessnessaustralia.org.au/UserFiles/File/Homelessness%20NESB%20and%20migrants%20for%20web%281%29.pdf

HREOC (2008), Submission of the Human Rights and Equal Opportunity Commission (HREOC) to the Green Paper on Homelessness- Which Way Home, 4 July 2008, viewed 4 October 2010 via http://www.hreoc.gov.au/legal/submissions/2008/20080704_homelessness.pdf

ICESCR (2007), International Covenant on Economic, Social and Cultural Rights, Office of the United Nations High Commissioner for Human Rights, viewed 12 October 210 via http://www2.ohchr.org/english/law/cescr.htm

Ife, Jim (2008), Human Rights and Social Work: Towards Rights-Based Practice (rev. ed.), C.V.P.: Port Melbourne

Innes, Greg (2010), Commissioner appears before CERD Committee at the UN, Wednesday 10 August 2010, viewed on 15 August 2010 via http://www.hreoc.gov.au/about/media/speeches/race/2010/20100811_CERD.html

Kinley, David and Martine, Penny (2004), The Institutional Mediation of Human Rights in Australia, in The Politics of Australian Society,  Political Issues for the New Century, Boreham, Stokes and Hall (eds.), Pearson Education, Frenchs Forrest

Kothari, Miloon (2007), Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Mission to Australia, United Nations General Assembly, Human Rights Council, A/HRC/4/18/Add.2, 11 May 2007, accessed 10 October 2010 via http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G07/125/72/PDF/G0712572.pdf?OpenElement

Liddy, N., Sanders, S., & Coleman, C. 2010, Australia’s Hidden Homeless: Community-based options for asylum homelessness, Hotham Mission Aslyum Seeker Project, Melbourne, viewed 10 August 2010 via http://asp.hothammission.org.au/downloader.cgi?file=uploads%2Ffile%2FAustralia%27s%20Hidden%20Homeless%20-%20Hotham%20ASP%20Report%20August%202010.pdf&check=%C0%8A%89l%14L%EA%B4%87%A0%E7%C5%F9%2FH%AFM%8Er%7DL-%C6%8Bh

National Human Rights Consultation (2009), National Human Rights Consultation Report, Commonwealth of Australia, ISBN 978-1-921241-89-5, accessed 19 October 2010 via http://www.humanrightsconsultation.gov.au/www/nhrcc/RWPAttach.nsf/VAP/%284CA02151F94FFB778ADAEC2E6EA8653D%29~NHRC+Report+%28Chapter+2%29.pdf/$file/NHRC+Report+%28Chapter+2%29.pdf

Parliament of Australia (2010), Housing right for homeless, House Magazine, Issue 40, 14, last updated May 2010, viewed on 15 October 2010 via http://www.aph.gov.au/house/news/magazine/40/40_law_homeless.htm

Sidoti, Chris (1996), Housing as a human right, National Conference on Homelessness, Adress by Chris Sidoti on 4 September 1996, viewed on 10 October 2010 via http://www.hreoc.gov.au/pdf/human_rights/housing.pdf

United Nations (2010), The Universal Declaration of Human Rights, viewed 11 August 2010 via http://www.un.org/en/documents/udhr/

Thiele, Brett (2002), The Human Right to Adequate Housing, American Journal of Public Health, May 2002, Volume 95, Issue 2

United Nations 2010 (2), Charter of the United Nations, Preamble,  viewed 12 October 2010 via http://www.un.org/en/documents/charter/preamble.shtml

UNHCR 2010, Executive Committee Conclusion No. 93 – 2002: Conclusion on reception of asylum-seekers in the context of individual asylum systems, No. 93 (LIII) – 2002, United Nations High Commissioner for Refugees, viewed on 5 October 2010 via http://www.unhcr.org/3dafdd344.html