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The human right to a decent home

By the Hon Kevin Bell AO KC

This special issue of Precedent examines the law in relation to the home. I want to do so from the perspective of international human rights law, and not from the point of view of a particular legal category of the law such as contract or tort, but from the perspective of the housing system as a whole.

Core values
      The purpose and central values of international human rights law are pro hominem, which is to say, ‘for the human person’. Taking that as my starting point, I want to discuss how purposes and values shape, or not, the way that the housing system currently works with respect to people. I argue that the purposes and values of the private market have been dominant in the housing system for decades and are now. Australia sees ‘housing primarily as a commodity to be traded and as a vehicle for wealth creation’.1 This has impeded realising of the human right to a decent home and contributed to the housing disaster which Australia is currently experiencing.
      The purposes and values expressed by this right offer a different way of framing housing issues and reorienting the system. Reflecting human rights generally, the core value of the human right to a decent home is the equal and inherent dignity of all people. Its philosophical foundation is that persons are ends in themselves and not means to others’ ends. Markets are not ends; they are means. Yet Australia’s housing system has become an end in itself to the detriment of many people. The purpose of the human right to housing is to ensure that all people have a decent home because this is indispensable for them to be able to live in dignity and develop in ways they personally choose within families and in society. This is related to one’s conception of the role of government in democracy and to the nature of civil participation in society generally.
      A housing system based on the right to a decent home is not one where these human-centred values are simply noted as they tend to be now. This is lip service. It is talking without walking. A housing system based on the right to a decent home is one where these values are embodied in the purposes of the system as a whole and its operation is held to account in effective ways against those purposes. Other values – like those underpinning the private market – still have a role. But the human-centred purposes of the system are always paramount.

Colonisation and First Peoples
      As housing law in Australia is currently framed on the basis of property, it is important to reflect on how that idea was brought here. Australian housing one way or the other is located on land taken from First Peoples at colonisation, in a massive and systemic breach of their human rights. This is a fundamental truth of history. The foundations of Australia’s market-based system of private land ownership were then established. The injustices of the original dispossession of land continue to impact today on First Peoples, while the benefits of that dispossession continue to accrue today for the general population.
      The right to a decent home is an inseparable part of the human rights framework under which First Peoples have distinct economic, social, cultural and other rights as specified in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and founded upon the right to self-determination which it elaborates. As recently recommended by the Commonwealth Parliament’s Joint Standing Committee on Aboriginal and Torres Strait Islander Affairs, UNDRIP should be implemented by government as appropriate in law, policy and administration.2 As regards First Peoples, the right to a decent home must be interpreted and applied in a way that reflects UNDRIP and their history, culture and lived experiences. This has implications for how housing projects for First Peoples are carried out. They should be designed and led by First Peoples based on their right to develop their own priorities and strategies. First Peoples must also have the full opportunity to include land and housing in the voice, truth and treaty processes which are underway in Australia.
      First Peoples have a special relationship with land (and housing) which is part of their relationship with each other, both within and between their communities. They have a distinct worldview in which land is spiritually central as a vital life force. A human rights-based approach to housing enables this to be done (see below) through foundational values reflected in the design and operation of the system.
      Cases like Young v Chief Executive Officer (Housing)3 demonstrate how existing legislative and common law can be utilised to advance particular interests of Indigenous people in relation to their home (see the following article by Celine Lau, Ivan Mitchell and Kate Taylor). Systemic change would involve the implementation of UNDRIP.

International law
      In the absence of domestic law protecting and guaranteeing the right to a decent home, I turn to international human rights law. Here the right is to be found in the International Bill of Rights, which comprises the United Nations Declaration on Human Rights, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR).

      The housing component of the right is specified in ICESCR as follows:

Article 11.1
‘The State Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions …’

      The home component is specified in ICCPR as follows:

Article 17.1
‘No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence …’

      Australia is bound by international law to respect, protect and fulfill the right to a decent home because it is in the covenants, and also in a number of other international human rights treaties to which Australia is a party. I believe that realising the right to a decent home should become the primary purpose of the housing system. This could be done in a number of ways. Enshrining and implementing that purpose in Commonwealth and state and territory law would supply a strong foundation. Constitutional amendment is not needed for this to happen.
      International law applies to countries with widely varying political, economic and social systems. It does not prescribe the kind of system to be adopted for human rights to be recognised and implemented. In relation to implementing the right to a decent home, the degree of reliance upon market and government mechanisms, and the mix between the two, is a matter for democratic choice in the state concerned, as long as the right is implemented equally for all. This necessarily involves consideration of the link between this right and other human rights, including the distinct rights of Indigenous peoples.
      Similarly, the states of the world have divergent internal political, legal and administrative structures. Some have unitary systems while others are federal in nature. Most states have local government of some kind. Responsibility for implementing human rights – including the right to a decent home – can be shared between different levels of government according to a national plan; it could be in Australia.

Main features of the right to a decent home
      The Committee on Economic, Social and Cultural Rights is the principal UN oversight authority for ICESCR. One of its responsibilities is producing guidance on the meaning of the right to adequate housing in that covenant, which it has done.4
      As that guidance makes clear, the right to housing is not to be interpreted in a narrow or restrictive way. It is a right to live somewhere in security, peace and dignity. The right to housing in ICESCR is linked with other human rights founded on the fundamental values of the covenant, which reflect the inherent dignity of the human person. The scope of the right to housing encompasses the associated right in ICCPR to be free of arbitrary or unlawful interference with the home. Therefore, I use the right to housing, the right to home and the right to a decent home as meaning the same thing.
      The concept of ‘adequacy’ in the right to adequate housing is determined in part by social, economic, climatic, ecological and other factors that are country specific. However, to be adequate, the housing must satisfy certain elements. These include the following, which have been called the ‘decency’ principles:5

  1. legal security of tenure6
  2. availability of services, materials, facilities and infrastructure
  3. affordability
  4. habitability
  5. accessibility
  6. location, and
  7. cultural adequacy.7

      Principle 1 is implemented by laws and practices that protect different forms of tenure. Private property ownership as a form of tenure, itself an international human right, is well protected in Australian law as it was a purpose of colonisation. But tenancy as a form of secure tenure is not so protected. The right to that security of tenure is clearly breached by weak residential tenancy laws in several Australian jurisdictions which allow forced eviction of tenants without cause, including tenants of public housing. I have previously expressed concern about this.8 I remain concerned about it, although I acknowledge recent improvement in this regard in Victoria and other jurisdictions.
      Principle 2 is supported by Australian laws which commonly specify minimum standards for all dwellings including rented dwellings, private or public. Young is an example of how these standards can be enforced. The location and build form of housing, as well as the kinds of services available in the community, need to be rethought in the light of global warming and climate change, as perceptively discussed by Lily Morton in her article in this special issue, drawing on international human rights.
      Principle 3 is clearly breached in Australia because a feature of the housing disaster is widespread housing stress due to housing unaffordability.
      Principle 4 means that sub-standard housing is not permissible, while laws and regulations providing for minimum habitability standards are means of implementing it. Again, Young is pertinent in this context.
      Principle 5 is not only concerned with physical accessibility. Where affordable or social housing is scarce, it is not accessible. Housing in Australia poses significant accessibility challenges. Accessibility is especially important for people needing emergency accommodation, such as women fleeing violence in their own home (see the article by Nicole Blazinovic in this special issue).
      Principle 6 applies in the Australian context where people are being forced to buy or rent housing further and further away from employment, essential services and family and social supports. The location principle is also challenged. Telehealth is one way of addressing these challenges, but this raises quality of service issues (see the article by Katherine Oldfield).
      Principle 7 is especially important in relation to First Peoples.

Freedoms and entitlements of people as rights-bearers
      The presently dominant conception of people in relation to the home and housing is that the individual is personally responsible for it. If a person fails to find housing themselves, they may have to look to welfare programs administered by government, which may expand or contract as government chooses. If someone gets that assistance, too often they will be seen to be a personal failure – to be the passive recipient or beneficiary of that welfare.
      The human rights conception is different. It sees people in need of housing as active rights-bearers who are empowered to make just claims on government for realisation of their rights which cannot be rejected on purely policy grounds. The administrative and legal systems must be so designed as to give effect to those rights and hold government to account when they do not do so.
      Rights-bearers can make claims under the human right to a decent home with respect to certain freedoms and entitlements. These freedoms and entitlements are reflected in the decency principles. An example of a freedom is the right to be free from arbitrary or unlawful eviction, as when the eviction is without cause, or in retaliation against reasonable complaint or for discriminatory reasons. An example of an entitlement is the right to access emergency accommodation when needed, as when women and children need refuge from violence in their home.
      Having the right to a decent home does not necessarily mean that rights-bearers get everything they want when they want it, but it does mean their claim to a decent home when they need it can be made as of right. As long as the rights-based order continues, it is not susceptible to rejection merely because of changes in government policy.

Duties and obligations of government as the duty-bearer
      For government as the duty-bearer, the human right to a decent home means that government must respect, protect and fulfill the freedoms and entitlements carried by the right. It must do so as a matter of obligation: one side of the right is the right of the person as the rights-bearer to the freedom or entitlement; the obverse is the obligation of government as the duty-bearer to uphold it. The obligation cannot be rejected as a matter of policy, unless of course government withdraws from the rights-based order itself. There is still significant scope for political contestation about housing issues, but 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.

Progressive realisation
      While the right to a decent home gives rise to freedoms and entitlements for people as rights-bearers and duties and obligations for government as the duty bearer, people are not entitled to insist on their rights being realised immediately (although there are certain minima). Full implementation of those aspects of the right which involve the allocation of scarce public resources can be progressively realised over time given the availability of those resources and other reasonable constraints.
      However, governments cannot use the principle of progressive realisation as a back-door way of avoiding their human rights obligations. Government must always take steps that are ‘deliberate, concrete and targeted as clearly as possible’ towards the realisation of the right, and it must ‘move as expeditiously and effectively as possible’ toward full realisation of the right.9

Core obligations of immediate effect
      While the right to a decent home can be progressively realised, there are ‘minimum core obligations’ that must be realised immediately. For example, the government must refrain from direct discrimination against people for prohibited reasons, such as disability, sex or race. Also, it has an obligation to provide ‘basic shelter and housing’ to people who need it, which includes the obligation to provide temporary emergency housing when needed. This means significant homelessness, as exists in Australia, is a violation of the right to adequate housing in respect of the minimum core obligation. Finally, government has a core obligation of immediate effect to provide emergency housing to women and children fleeing violence in their homes.10

Obligations to respect, protect and fulfill human rights
      The United Nations has developed principles in relation to the different kinds of obligation that government has when applying human rights, whatever the nature of the right and including the right to a decent home. These principles help in understanding what must be done to give effect to rights, in making claims for rights to be upheld and in designing accountability and governance mechanisms as part of a human rights framework or plan. The principles are supported by a significant body of scholarship. I give a summary here.

      There are three elements to the obligation of government to give effect to human rights: the obligation to respect, protect and fulfill the right.11

  1. The obligation to respect the right. This obligation places a responsibility on government to refrain from interfering directly or indirectly with the enjoyment of a right by all persons. For example, government must not discriminate in the provision of public housing, forcibly evict tenants from public housing without reason or procedural fairness, provide public housing that is unsafe or charge unaffordable rent for public housing.
  2. The obligation to protect the right. This obligation places a responsibility on government to prevent third parties from interfering with the enjoyment of the right by all persons. For example, government must take reasonable steps to ensure that private landlords do not discriminate in the provision of rental housing, provide sub-standard housing or evict tenants without cause. This obligation imposes on government a responsibility to put in place a legislative and administrative framework that guarantees these aspects of the right to a decent home. In most jurisdictions in Australia, no such framework has been put in place.
  3. The obligation to fulfil the right. This obligation requires government to take all necessary and appropriate measures to ensure the full realisation of the right by all persons. These include legislative, administrative and public finance measures. For example, government must create a housing system which enables all people to have access to a decent home taking into account the decency principles. This will require a legislative framework, and departments of state, public finance and inter-governmental arrangements which reflect divisions of responsibility within the political system in the country concerned. The causes of the housing disaster in Australia involve many failures by government to fulfill the right to a decent home.

Conclusion
      This article discusses the scope of the human right to a decent home by reference to international human rights law. Australia is currently facing a system failure in relation to housing.12 Giving full legal effect to that right would make an important contribution to bringing about the systemic change needed to address that failure.

The Hon Kevin Bell AO KC is presently an adjunct professor at Monash University and the patron of Tenants Victoria.

This article appears in Precedent 187: Home and the law, April/May 2025.

1 R Solomon, Australia’s Engagement with Economic and Social Rights: A Case of Institutional Avoidance, Palgrave Macmillan, 2021, 255.
2 See W Atkinson and K Bell, ‘Following the Voice failure, Indigenous politicians are calling for the UN’s Declaration on the Rights of Indigenous Peoples to be implemented. What is it and what would it mean?’, The Conversation, 15 January 2024.
3 [2023] HCA 31.
4 Committee on Economic, Social and Cultural Rights (CECSR), General Comment No 4: The right to adequate housing, UN Doc E/1992/23, 13 December 1991.
5 New Zealand Human Rights Commission, Framework Guidelines on the right to a decent home in Aotearoa, 2021, 25. This report has informed the structure and content of this article.
6 CECSR published more detailed guidance on this subject in General Comment 7: The right to adequate housing: forced evictions, 20 May 1997.
7 The Special Rapporteur on the rights of Indigenous Peoples has published a thematic report on realising the right: Report on the right to adequate housing of Indigenous Peoples, UN Do A/74/183, 17 July 2019.
8 K Bell, ‘Protecting Public Housing Tenants in Australia from Forced Eviction: The Fundamental Importance of the Human Right to Adequate Housing and Home’, Monash University Law Review 39(1), 2012. Reforms have since occurred in Victoria, the ACT, and Queensland.
9 CECSR, General Comment No 3: The Nature of State Parties’ Obligations, UN Doc E/199/23, 14 December 1990, [9]–[12].
10 Ibid, [10].
11 The tripartite obligation schema was expounded by A Eide, the UN Special Rapporteur on the right to adequate food: UN Doc E/CN.4/Sub.2/1987/ 23, 7 July 1987.
12 See K Bell, Housing: The Great Australian Right, Monash University Publishing, 2024. This article draws on a chapter of that book.

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