This is the transcript from the Hon Kevin Bell’s speech, “‘Housing and human rights”, recorded 19 September 2024 at Per Capita’s John Cain Lunch.
I thank Per Capita for inviting me to speak at the September 2024 John Cain Lunch on the important subject of housing and human rights.
I have very strong memories of John, the 41st premier of Victoria. He was elected the member for Bundoora in 1976 and the opposition leader in 1981. He became premier when the labour government was elected in 1982. He held that high office for three terms of parliament until, following his resignation, he was succeeded, by Joan Kirner. He did not contest the 1992 election, which Labor lost. I saw him frequently in the late 1970s and the early 1980s.
At that time, I was active with colleagues on a number of issues, including legal aid, community legal centres, housing, tenancy law reform and legal profession reform. John was very supportive of campaigns around these issues. I vividly recall visiting him at his suburban law office in about 1980. It was to ask for his support for Victoria Law Foundation funding for an innovative ‘poverty law practice’ in Footscray, which he immediately gave. On being appointed a lecturer in legal studies at Latrobe university in 1982, I became the director of the West Heidelberg community legal service. This was based in a public housing estate initially built by government for Olympic athletes. It is an example of large-scale public housing built in the Post WWII period of which there should be much more now, although there were and are quality and design issues with the built stock. In human rights terms, the government acted consistently with the right to adequate housing in making housing available but inconsistently in not ensuring it was of adequate quality. John took a great interest in the legal service. I met him on a number of occasions at this time. He went onto the legal service board after he left politics, although not public service. He was diligent, committed, intelligent and appreciated when change was needed. He was prepared to advocate for it with courage and persistence. His influence on me has been enduring.
Due in part to that influence, I am here today speaking about the subject of housing and human rights at a time when change is definitely needed. In fact, this is generally agreed, for it seems everyone knows that Australia is experiencing a housing crisis. I would prefer to call it a housing disaster, because what is occurring is not a blip in an otherwise well-functioning system.
While there is little dispute over the existence of this crisis or disaster, I am calling for a different framing of its causes, consequences and potential solutions. The existing ways of framing the problem are outdated. They neither fully explain the nature, cause and consequences of the problem nor propose complete or enduring solutions. I want to offer a different kind of framing, one based on human rights. In doing so, I am drawing on the tradition that John Cain represented. New ideas. Stronger ideals. Better and more evidenced-based ways of thinking about the causes of problems and possible solutions.
I will begin with a critique of the existing framing.
How do most people currently see the problem? I think most people think that government in Australia has taken its eye off the ball. In the period of rights-based public housing construction following World War 2, the aim of government was to increase owned or rented housing for ordinary people. After that, government deliberately moved housing policy towards private homeownership as the aim. Public housing was allowed to drift and then to rundown, ultimately being treated as a residual part the system, as it is now. Tenancy as a form of tenure was stigmatised as second class, under-regulated within a framework of property-based not home-based laws. In Victoria, John Cain’s government began the long and still uncompleted journey to tenancy law reform in the 1980s, followed later by some other jurisdictions. In the neo-liberal age of the 1990s and thereafter, this narrow ‘private’ vision of housing sharpened, aided by massive tax incentives for investors in housing, at the expense of tens of billions of dollars in tax expenditures (tax revenue forgone). What trickled down was inequality and homelessness, ever increasing in a land of plenty. Historians of and commentators on Australia’s housing system have told this story well. They were true prophets but people weren’t listening.
According to this widely-held view, the solution to the problem is improved supply-side policy development and action. How often have you heard ‘this is fundamentally a question of supply’. More homes need to be built, whether that be by the private sector or the public sector. In what proportion? That depends on your political outlook, which also determines what kinds of other policy levers might be pulled. The need for tenancy law reform is more widely accepted, but at a certain high level of generality. For some, other necessary measures include increasing the supply of building labour; reducing bottlenecks in the building industry; reforming land zoning laws; and reducing taxation expenditures that distort the housing market in favour of those who already have land or wealth.
What is wrong with this view of things? Well, it depends on your frame of reference. I am contending for a human rights frame of reference. Within this frame of reference, this widely-held framing of the Australian housing disaster is not adequate. Most importantly, it is not rights-based. Sure, examples abound within this discourse of early references in speeches to the human right to housing. After that kind of cursory noting, typically there is nothing more on that momentous aspect of Roosevelt’s four great freedoms – the freedom from want. In this discourse, housing is treated as a matter of policy, not rights.
This approach speaks the language and announces the limited aspirations of greater funding endeavour, not system transformation. It is much influenced by Australia’s three-year federal electoral cycle. It does not look to the long term. It is not person-centred or needs-based, as least not based on fully meeting need. The measure of success is how many extra homes are built, by comparison with the oh-so impoverished standard of the nation’s prior performance. It is reinforced by governmental arrangements which concentrate power in the hands of treasury officials, and which reject the need for free-standing housing departments. To the general community, it has the appearance of experts speaking technical language among themselves. This was most recently represented by last week’s ABC Q&A on housing. Familiar ideas with familiar limitations were recycled by politicians and experts before an audience of highly experienced civil society knowledge holders who knew better but were not represented on the panel.
I’m not one for allowing the perfect to get in the way of the good. I am not decrying the importance of high-quality policy development for addressing the complex and pressing issues raised by the Australian housing disaster. It is essential. Other pressing issues would demand priority if the solutions posed by current approaches were likely to succeed. Here, however, we must decide what the measure of success should be. If we don’t accept the reasonability to make that judgment, a poor measure of success will be imposed upon us by loud voices defending the status quo. This is not a time for moral passivity. It is a time for standing on our nation’s moral watch.
This brings me to human rights, on which, I argue, our measure of success, indeed our whole methodology, should be based.
As I set out in Housing: The Great Australian Right (Monash University Publishing, 2024), Australia has an obligation under international law to ensure the right to adequate housing for everybody in Australia without exception. It is a universal human right. This is not yet part of Australian domestic law, although it should be. We are the only liberal democracy without comprehensive human rights legislation. But the right to housing would be part of Australian domestic law if the National Housing and Homelessness Plan Bill 2024 (No 2) proposed by Senator David Pocock and Kylea Tink MP were supported. The bill has been referred to the Senate Standing Committee on Economics for report. Troublingly, the committee is not yet proposing public hearings as part of the consideration process. The right to housing would also be part of domestic law if the historic recommendations of the Parliamentary Joint Committee on Human Rights for Australian to adopt a comprehensive human rights legislation were accepted. These are under consideration by the federal parliament. While the right to housing is presently based on international law, it is still a powerfully important and influential right, one that Australia recognises. When participants in public debate refer to the right to housing, this is the right in their contemplation.
Here then, in Australia, how do we understand this right to adequate housing? What does it mean?
The purpose of the right to adequate housing is to enable people to flourish in every dimension of their lives. For this to happen, adequate housing is indispensable. The fundamental value which the right expresses is equal and universal human dignity. The right is person-centred. Ensuring the wellbeing of all persons individually and collectively is the end towards which all human rights – including the right to adequate housing – are directed. No person should be treated as the means to the ends of others. That principle has deeply historical origins. In relation to the housing system, we might say that people’s housing needs should come before profit. The fundamental interest which the right to adequate housing protects is having a peaceful, secure and safe place to live. As the applicable UN standards make clear (see here), a decent home is not just a roof over your head, important as this is. It is having a home that is affordable, safe, meets certain minimum physical conditions, accessible and reasonably close to essential services like health, education and transport, as well as work. These and other essential standards are discussed in my book. If these are met, adequate housing can be private or public, owned or rented and, as the need requires, short, medium or long term.
This way of understanding housing as a human right characterises people with housing needs (that is, everybody) as rights-bearers and government as a duty-holder. The right and the duty are laws, not just in policies. The role of policy is to give effect to the right in public administration, about which democratically elected governments have a wide margin of system choice. Of course, under the right to adequate housing, government does not have the obligation to give everyone in Australia a home. But, progressively over time within the limits of its resources, government must create a housing system which ensures that everyone can have adequate housing whatever their means. This may be through a system having different parts, such as (in Australia) home ownership, social housing, rental housing and emergency or homeless housing. But it must be done, and through an integrated planned process reflecting a human rights-based approach (a subject for another day).
From a human rights perspective, what do we make of the Australian housing disaster? It is not just an economic or a political or a housing disaster. It is a human rights disaster, because government has absolutely failed to fulfill its obligation to fulfil the human right to housing for all. It has been over a generation in the making and one that will be a generation plus in the resolving. It is a human rights disaster because millions of people have not been able to have affordable housing, owned or rented; because they have been living in housing stress, often extreme; because their housing is not peaceful, secure and safe; because they are living in poverty or near so due to the cost of housing; because they’re at risk of or living with homelessness (120,000 plus people are actually homeless); and because rental laws do not give effect to basic human rights standards such as security of tenure. All of these situations involve human rights violations which government is bound to prevent. Age, gender, race and other characteristics magnify the impact of such violations for people in these categories.
Presently, all publicly announced policies by government at all levels are aimed are ameliorating this situation, not resolving it. They are not aimed at progressively over time within the limits of government resources creating a housing system which ensures that everyone can have adequate housing, as is their human right. The policies are not based on the meeting the needs of all people for housing but only some. Millions will be left behind. The measures announced, while welcome and exceeding prior impoverished government efforts, are not nearly sufficient to address (1) current and growing housing needs and (2) the housing stress and homelessness legacy issues that have built up in the system after more than a generation of neglect.
As one authoritative source in support for this conclusion, I refer to the first report of the National Housing and Supply Council, State of the Housing System (2023). The reports finds that the federal government’s announced housing supply initiatives, even if fully implemented, would not resolve significant supply shortfalls within the ordinary supply and demand cycle in the outlook period:
[S]hortfalls in new supply relative to new demand will add to the already significant undersupply of housing in the system in the absence of a significant change in housing policy or the capacity of the housing sector to supply new dwellings … As a result, housing affordability is expected to deteriorate further over the forecast horizon.
As to unmet legacy needs, the report finds that ‘significant unmet need and affordability pressures [have] … already accumulated in the housing system’. The initiatives would not meet these needs:
There will be no surplus of new housing supply to address the significant unmet need for housing that currently exists due to affordability constraints, or to accommodate the 122,000 Australians experiencing homelessness …
In short, existing government policy announcements about increased supply will not meet (1) the demand for housing expected in the course of the ordinary operation of the market during the outlook period and (2) the legacy needs built up in the system, including those arising from housing stress and high homelessness. That is to say, present government approaches will not fulfill its obligation to realise the right to adequate housing of every Australian. For a moving account of what this will mean for the millions of Australians who will be left behind, I recommend that you read Voices of the Crisis: Final Report from the Peoples Commission into Australia’s Housing Crisis (Everybody’s Home, 2024).
A human rights approach to the Australian housing disaster would be based on nobody being left behind because the right belongs to everybody equally. Applying this approach, government would be obliged progressively over time within the limits of its resources to create a housing system which ensures that everyone can have adequate housing whatever their means. To do this, a national housing and homelessness plan based on realising the human right to housing would be needed. To be enduring, it should be legislation and supported by institutions that ensure effective accountability and informed civil participation. This is the rationale of the National Housing and Homelessness Plan Bill 2024 (No 2) that is before the Australian parliament, which in principle should be supported.
[1] Hon Kevin Bell AO KC is a former justice of the Supreme Court of Victoria and president of the Victorian Civil and Administrative Tribunal. He is a past director of the Castan Centre for Human Rights Law and served on the Yoorrook Justice Commission. He is now a writer, researcher and educator in human rights and adjunct professor of law at Monash University (kevin.bell@monash.edu).
