Australia must treat housing as a human right, says former Victorian Supreme Court judge

by Admin
August 4, 2024

Is Australia’s housing situation a crisis?

Kevin Bell, a former Victorian Supreme Court justice, says it’s worse than a crisis; it’s a socio-economic and human rights disaster.

“The situation we confront has been oft-called a crisis,” he says.

“Maybe that was a fair enough description a generation ago. But now it is obviously not just a blip in an otherwise well-functioning system. It is chronic. It has become the system.

“That is why we need a stronger word to describe what is unfolding. I have chosen the word ‘disaster’, but if it continues much longer, it will be a catastrophe.”

In a new book, Housing: The Great Australian Right, Bell says the values underpinning our modern housing system, where property is viewed as a commodity and instrument of private gain (where speculative investment is encouraged), rather than a home and human right, is a “national disgrace”.

“The economic value of housing as an investment has been allowed to dominate the social value of housing as a home,” he writes.

“That is a skewed way of looking at a fundamental human need that is embodied in a fundamental human right.

“Yet it has come to define the entire housing system. That is the root cause of our dilemma. That way of looking at housing has to change.”

Australian policymakers treated housing differently in the past

Bell says he remembers a very different Australia.

“The baby-boomer generation, which includes me, grew up in a very different era,” he writes.

“I was born in 1954 to young parents who had eight children. Hundreds of thousands of houses were built by the government that low-middle-income families like ours could afford to rent or buy.

“We rented a basic three-bedroom weather-board house from the Victorian Housing Commission in Moorabbin, a south-eastern suburb of Melbourne — fittingly, in the language of the local Bunurong/Boonwurrung people, ‘Moorabbin’ means ‘resting place’ or ‘mother’s milk’.

“My maternal grandparents joined us in a bungalow built for a song out the back.

“As I grew older, it was my job to take rent to the commission office just down the road. When government policy changed to allow sitting tenants to buy their homes at concessional prices, my parents did so, although they still called the money I took to the same office ‘rent’.

“I owe my family upbringing in a decent home to social housing. However, this is now confined to people in the category of greatest need,” he says.

He says Australia’s housing system has been turned on its head in recent decades, and the values underpinning the modern system — in which housing is prioritised as a financial asset and commodity, and tenancy laws better protect the property rights of investor-owners than they do the human rights of their renters — have been socially destructive.

“Housing has reached the point where it is Australia’s largest asset class,” he says of the consequences of those skewed values.

“In 2022, it had a value of $9.615 trillion — four times the capitalised value of the Australian share market. Land and dwellings account for more than half (55 per cent) of the total value of assets held by Australian households.

Former Victoria Supreme Court justice Kevin Bell says Australia’s housing situation is a “human rights disaster”.(Supplied: Supreme Court of Victoria)

“Those households owe a total of $1.4 trillion in loans (landlords owe $640 billion), the highest level of home-ownership debt in the world.

“A large and politically influential cohort of voting Australians has a huge stake in home ownership and small-scale investment in rental housing as supported by present legal and taxation arrangements.

“Home ownership, meanwhile, is unaffordable to households even with two earners on the average wage, rents are skyrocketing, vacancy rates are plummeting, tenancy laws are second-best, social housing is a residual part of the system under chronic strain, and over 120,000 people live in homelessness among the national plenty.”

The housing theory of everything

He reminds us that housing is connected to everything else in society.

It’s linked to family, community, one’s workplace, one’s educational opportunities, and access to health services — the very things that support someone’s social existence.

“Decent housing is a pillar of the whole human rights system,” he says. “When the right to a decent home is put at risk or violated on a large scale, this impacts on a great many other rights.”

But our mishandling of housing is contributing to multiple socio-economic crises, including our mental health crisis, he says.

“Unaffordable housing, scarce social housing and homelessness on the scale being experienced in Australia are driving extremely poor physical and mental health and other outcomes, for a large segment of the population.”

He says Australia’s poor treatment of housing is also contributing to the injustices suffered by a large portion of the population, including people who are being discharged from care or prison straight into homelessness.

“Discharge into homelessness occurs in a number of different settings,” he says.

“Virtually all involve services operated by the Commonwealth, state or territory government agencies who are bound to give effect to the right to a decent home, but do not.

“Government administration is siloed. If housing is another agency’s responsibility but it does not make housing available, the discharge will go ahead anyway. Too often this means homelessness for the person.

“This can and does happen in justice, health, mental health, disability support, aged care, rehabilitation and child-care settings.”

He says from a humanitarian perspective, these situations can be extremely confronting.

“A large proportion of those discharged into homelessness are young people leaving state care at eighteen years of age. Some agencies discharge people to a motel for a night with a reference letter to a housing support agency, then leave them to fend for themselves,” he says.

“Prisoners might be discharged from the prison gate with a bus or train ticket and a food voucher.

“Where is the humanity in this?”

“It is not rationally likely to achieve any sensible public policy outcomes. It is certainly not consistent with Australia’s human rights obligations.”

The system must start housing people again, and here’s how to do it

To fix the system, Bell says we need a national housing strategy supported by a shift in values, with a different legislative framework.

He says he welcomes the early development of a National Housing and Homelessness Plan, which commenced in 2023, but he’s concerned about the fact that the plan is policy-based, not rights-based nor legislation-based.

“If the plan remains purely policy-based and does not have legislative backing, as seems to be the present intention, I fear that it will not succeed in overcoming Australia’s housing disaster nor prevent it from re-ocurring,” he writes.

“The situation is so serious that we should aim to do something that is transformative and ambitious, and I am not sure this will be.

“Valuing housing primarily as a commodity for private investment is deeply entrenched in the system. It is a structural cause of the housing disaster which must be addressed. The values underlying the system will not be changed by purely policy-based, non-legislative approaches.”

He then explains what needs to be done.

“We need to make the realisation of housing as the ‘Great Australian Right’ the purpose of the system, and achieving this purpose must be government’s primary responsibility,” he says.

“For this to occur, there must be a national housing and homelessness plan that is rights-based, comprehensive, strategic and legislated.

“Australia needs to legislate a different enabling environment for the housing system. It must be explicitly based on realising the human right to a decent home — and be linked with the enactment of comprehensive human rights legislation at the federal, state and territory levels.

“This is a necessary part of the structural change that the system needs. The plan should be backed by legislation as a fully worked out strategy for ending, not just ameliorating, the housing disaster.

“It should be directed at meeting, over time, the actual needs — legacy, present, future — of people with respect to affordable housing, social housing and homelessness, not just improving on present and past national efforts. It should follow the principles of the human rights-based approach as adapted to Australian conditions.”

He notes that the Commonwealth Parliamentary Joint Committee on Human Rights recently recommended that a national human rights act should be legislated, including the right to a decent home.

His short book is worth a read.

It only runs to 89 pages so you can finish it in one sitting.

If you’re concerned about the types of claims people may make on governments in such a rights-based system, he talks about that in detail.

“Having the right to a decent home does not necessarily mean that rights-bearers get everything they want, when they want it,” he says.

“There is still significant scope for political contestation about housing issues, but this is about how, and not whether, the right should be implemented. Government has a certain ‘margin of discretion’ about how best to implement the right. Managing scarce resources (even in wealthy countries like Australia) and determining priorities and making trade-offs are an inevitable part of doing so. Also, having this duty does not mean that government must act to realise everyone’s access to housing immediately and fully.

“But it does mean that the primary function of the system is to realise the right.”