This AHURI brief explains how the right to housing is understood in Australian and international law.
‘Housing as a human right’ has been debated in Australia for a number of decades. Through the 2009 National Human Rights Consultation, Australians identified housing as one of their most important rights. This is because housing provides the basis for stability and security in many social, cultural, and economic aspects of individual and family life.
International right to housing through ICESCR
Australia’s main international obligation on housing derives from the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR), which the Federal Government ratified in 1980. Under the ICESCR, governments recognise the right of everyone to adequate housing and must take appropriate steps to ensure the realisation of this right.
For housing to be considered adequate, it must be secure, accessible, affordable, habitable, well located, and culturally appropriate. However, governments are not required to build housing for the entire population; rather, they are compelled to use appropriate means to ensure that everyone has access to housing resources adequate for health, wellbeing, security, and other human rights. This is achieved through ‘negative’ obligations (e.g., the repeal of discriminatory laws, regulation of the private sector), and progressive ‘positive’ obligations, such as subsidised housing, housing finance schemes, and support services for marginalised groups.
Rights to housing not protected in Australia
Unfortunately, the right to adequate housing is not well protected in Australia, the only liberal democracy without a national human rights act or charter. While the Federal Government is developing a National Housing and Homelessness Plan, currently there is no federal housing act or strategy that enshrines the right to adequate housing or establishes a suitable monitoring framework.
Although Victoria, ACT and Queensland have their own human rights charters, these do not explicitly protect the right to adequate housing but there are several legal cases where other human rights have been used to avoid evictions and secure housing services.
International bodies have criticised Australia’s progress on housing rights, observing a serious national housing crisis that disproportionately affects those on low incomes, Indigenous peoples, and other marginalised groups.
Current debate on housing rights recommends governments take the lead
Much debate about whether the ICESCR should be incorporated into domestic law centres on the role of the courts in enforcing broadly-worded guarantees of economic, social and political rights—including the right to adequate housing—which may be beyond its capabilities or judicial power under the Constitution.
For this reason, the 2024 parliamentary inquiry recommended including immediately realisable aspects of economic, social and cultural rights in a national human rights act (e.g., protections against discrimination and limits on retrogressive measures that worsen housing outcomes) but excluding aspects that may require the courts to make complex decisions about resource allocation and public policy. The report argued that this was best left to the government and the Parliament, which could establish human rights indicators or benchmarks that can be monitored outside the court system.
Although the Federal Government has not formally incorporated ICESCR rights into domestic law, its official position is that domestic policies and monitoring frameworks are sufficient to implement Australia’s obligations under the Covenant.
International case studies of the right to adequate housing
Other countries have recognised the right to adequate housing through legal (i.e., primarily enforced through the courts) or programmatic approaches (i.e., progressively realised through government policy).
In 1996, South Africa introduced a justiciable right to housing into their Constitution. This compels the State to take reasonable measures within their available resources to progressively realise South African’s right to adequate housing. In practice, however, courts have limited this right through their interpretation of the Constitution. Court rulings have focused on the protection of existing tenure (e.g., protections against displacement) and responses to the immediate needs of people living in crisis situations.
In contrast, Finland has pursued a programmatic approach to housing rights. The Finnish Constitution requires public authorities to ‘promote the right of everyone to housing’ but provides limited actions through the courts. Instead, the right to housing is primarily realised through other constitutional provisions (e.g., the right to life that requires the provision of emergency shelter in conditions that pose a risk to life and personal safety) or through the implementation of domestic policy. Successful programmatic approaches to housing rights require strong political will and a coordinated approach to housing and welfare policy, led by the national government.
In Canada, international human rights obligations created a foundation for a coordinated national housing strategy, involving a coalition of provincial and city leaders alongside the Federal government after decades of decentralisation. In 2019, the National Housing Strategy (NHS) Act legislated “the progressive realization of the right to adequate housing as recognized in the International Covenant on Economic, Social and Cultural Rights”.
Policy implications for the Australian Government
With the Australian Government re-engaging with housing policy and the national framework for human rights, the ICESCR can provide a strong mission statement for a coordinated approach to housing unaffordability and inequality.
However, a right-based approach to housing policy does not necessarily provide the impetus to move beyond the status quo. Ultimately, universal access to adequate housing requires strong political will and ambitious reform with a clear understanding of the drivers of housing unaffordability and inequality.