Housing: how a NSW Human Rights Act can help

Ponder for a moment the following words. “We consider that a dwelling of good standard and equipment is not only the need, but the right of every citizen”.¹

Not too much to ask?

This is what the Inquiry tasked to identify the housing needs of Australia concluded – not this year, not last year or last decade, but in 1944.

While that report prompted a major post-war push for housing construction (including social housing), clearly we’ve been falling short for a long time.

In 2021, I contributed to an LSJ article entitled ‘The human right to shelter: can the law help?’.²  The premise of the article was that shelter is universally recognised as a fundamental human right and must be more than a mere ideal for policy goals, and that the law has a key part to play in the fulfillment of that right.

The recent announcement that there will be a NSW Parliamentary Inquiry into a proposed Human Rights Act for the State brings opportunities for the law to play its part.

In particular, the opportunity to put in place clear and practical human rights protections.

The Inquiry will examine the Human Rights Bill 2025 introduced by crossbencher Jenny Leong MP. The Bill, as presented to the NSW Parliament, seeks to establish a Parliamentary Joint Committee on Human Rights and a NSW Human Rights Commission.³

The Bill sets out rights that it proposes to protect and frames them as being additional to rights that are recognised in other legislation.⁴ If the Bill were adopted in its current form, section 40 would provide:

Right to adequate standard of living and housing

(1) Every individual has the right to an adequate standard of living, including adequate          food, water, clothing and housing.

(2) Immediately realisable aspects of this right include the following—

(a) every individual is entitled to enjoy this right without discrimination,

(b) no individual may be unlawfully or arbitrarily evicted from the individual’s home,

(c) no individual may have an essential utility service to the individual’s home unlawfully or arbitrarily withdrawn,

(d) every individual is entitled to have access to the minimum essential amount of clean water that is sufficient and safe for personal and domestic uses, including to prevent disease.

For those concerned about private property rights, the Bill proposes:

43    Right to property

(1) Every individual has the right to own property alone and in association with other individuals.

(2) No individual may be arbitrarily deprived of the individual’s property.

Housing as a fundamental human right

Australia was one of the original signatories to the Universal Declaration of Human Rights on 10 December 1948.⁵

Article 25 of the Declaration (in its admittedly gendered 1940s language) declares that:

Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

[Emphasis added]

That right to an ‘adequate standard of living including adequate … housing’ is also set out elsewhere, such as article 11 of the International Covenant on Economic, Social and Cultural Rights (ICESCR).⁶

Australia’s commitment to human rights through other conventions, such as those on the Rights of the Child (CRC) and the Rights of Persons with Disabilities (CRPD) also include a commitment by the signatories to adequate and accessible housing.⁷

Now lawyers will have stored, perhaps somewhere in the back of your mind – from your studies in Foundations of Law and/or Constitutional Law – that although Australia has signed up to international treaties or agreements, they don’t form part of Australia’s domestic law unless specifically incorporated into Australian law.⁸

That’s why the way that those rights are enshrined domestically is important.

“What have the Romans ever done for us?”

Many of you will know the line from Monty Python’s Life of Brian “What have the Romans ever done for us?”.  You’re probably also familiar with the response: Aqueducts … the roads … public order, and so on.

On the issue of housing and human rights, the question could easily be posed as “What could a Human Rights Act in NSW ever do for housing?”.

As you might have guessed, this time the answer isn’t aqueducts. But it’s another thing that was a feature of Roman Law: clearly enunciating the rights and protections of its people.

A right to what though?

Enshrining a right to housing in a Human Rights Act for NSW is, alas, not about enshrining the right to a three-bedroom house to a quarter acre block in a ‘good’ suburb (‘and at a nice interest rate thanks, mortgage lender’).

It’s about something much more basic. That right to adequate shelter that Australia signed up to in all those various UN conventions.

But it’s something that many of our fellow citizens currently lack.

In 2025, the NSW Street Count – an annual count taken of the number of people ‘sleeping rough’- found 2,192 people sleeping rough. This was an eight per cent increase on the 2024 figure.⁹

Just to be clear, that’s empirical evidence (not anecdote) that, on average, a couple of thousand of our fellow citizens in NSW are sleeping rough.

And that’s not including those in a position where they are in emergency accommodation, or have to couch surf, live in their cars, or in conditions of severe overcrowding.¹⁰

And yet, for much of the COVID-19 pandemic the issue of homelessness and the public health risk to those sleeping rough was prioritised enough for a substantial number of homeless people in Sydney to be provided with safe and secure accommodation. The research report that evaluated the provision of temporary accommodation to people sleeping rough in inner Sydney¹¹ found that ‘it was a significant achievement and one that was an important and effective measure to prevent the spread of COVID-19 amongst a highly vulnerable cohort’.¹²

There is clear evidence that some groups are more vulnerable to the risk of homelessness, including: people with disabilities, those experiencing family and domestic violence, First Nations people, older people (particularly women over 55), veterans, and people leaving care.¹³

To take one example, it is estimated that veterans are three times as likely to experience homelessness than the general population.¹⁴

The RSL (not an organisation that you would associate with radical ideas) has clearly recognised this in making submissions to government not only seeking to ensure that veterans are recognised as a vulnerable group but also calling for legislation to address the risk of homelessness for a wide range of vulnerable groups.¹⁵

Human Rights Acts in other States

Let’s look at other states with a Human Rights Act. In Victoria, the relevant legislation is the Charter of Human Rights and Responsibilities Act 2006. In Queensland, it’s the Human Rights Act 2019. And in the Australian Capital Territory, it’s the Human Rights Act 2004.

While these Acts differ in content, they have some important common features:

• they maintain the ultimate sovereignty of the parliament in law making;
• each Bill submitted to parliament needs to be accompanied by a statement of compatibility with human rights;
• government agencies are expected to make decisions and act in a manner compatible with human rights; and
• courts are to interpret legislation consistent with human rights wherever possible.¹⁶

At the Commonwealth level, human rights have tended to be addressed through an attribute or discrimination lens,¹⁷ rather than a single comprehensive Human Rights Act. However, the Human Rights (Parliamentary Scrutiny) Act 2011 requires that all new Bills and legislative instruments must be assessed to ensure compliance with the core human rights treaties that Australia has signed (which include those listed above).

How has a Human Rights Act worked elsewhere for housing?

The Australian Housing and Urban Research Institute (AHURI) has observed that ‘although Victoria, the ACT and Queensland have their own human rights charters, these do not explicitly protect the right to adequate housing’, though it notes that other human rights provisions have been used to prevent evictions and to secure housing for those in need.¹⁸

Examples of this are readily available. The group Australian Lawyers for Human Rights has published a set of Plain English case studies on how human rights legislation has operated in other states to protect the rights of members of the community, particularly vulnerable people.¹⁹

The Human Rights Law Centre, in its report 101 cases: How Charters of Human Rights make our lives better,²⁰ has complied numerous case studies (from various attributed sources)²¹ which give examples of how human rights provisions have been used to provide practical assistance, including:

• putting in place alternatives to eviction and potential homelessness;²²
• accessing appropriate alternative accommodation;²³
• intervening to protect people in transient accommodation who would have been unfairly affected by local Council regulations;²⁴
• confirming that an entity (such as a housing agency) whose functions include those of a public nature (e.g. exercising them on behalf of the State or a public authority … and that under section 38(1) of the Victorian Charter it is unlawful to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.²⁵

These cases have, however, relied upon other human rights grounds or issues such as lack of procedural fairness to achieve these outcomes.

Where to from here?

It would be far simpler – and could provide better protection for more of the community – to enshrine housing as a human right.

NSW can get in on the ground floor in this regard, with the proposal for a Human Rights Act. The upcoming parliamentary inquiry provides a great opportunity to canvass these issues and to learn from the experience in other Australian states and other countries.

I don’t pretend for a minute that a Human Rights Act will be some magic wand. The ‘housing crisis’ has been with us for much longer than the relatively recent reporting in the media. It’s a ‘wicked problem’ that needs to be addressed on many fronts.

But it is an opportunity for us, as lawyers and as members of the community. Let’s show that when it comes to the human right to shelter, the law can help.

Bill Steenson is a solicitor and is also Deputy Chair of Shelter NSW, a housing research and advocacy body. The views expressed in the article are his own.

Endnotes:

¹ Commonwealth Housing Commission: Final Report, 25 August 1944. A scanned copy of the report, in its original form, is available through Trove at https://nla.gov.au/nla.obj-851519579/view?partId=nla.obj-851584435#page/n6/mode/1up

² H Bell (with B Steenson and M Siciliano): ‘The human right to shelter: can the law help?’, Law Society Journal Online, 28 November 2021, accessible at https://lsj.com.au/articles/the-human-right-to-shelter-can-the-law-help/

³ Parliament of NSW, Legislative Assembly Hansard: Jenny Leong MP, Second Reading Speech, Human Rights Bill 2025, 23 October 2025.

⁴ Parliament of NSW: Human Rights Bill 2025, Introduced by Ms Jenny Leong MP, First Print, accessed at https://www.parliament.nsw.gov.au/bill/files/18724/First%20Print.pdf

⁵ Dept. of Foreign Affairs and Trade: Australia’s commitment to human rights, accessed 20 April 2026 at https://www.dfat.gov.au/international-relations/themes/human-rights

⁶ ICESCR, entry into force in Australia 10 March 1976, Austlii Australian Treaty Series (ATS) at https://www.austlii.edu.au/cgi-bin/viewdoc/au/other/dfat/treaties/1976/5.html

⁷ CRC [1991] ATS 4 at Article 27, and CPRD [2008] ATS 12 at Articles 9 and 28, accessed at  https://www.austlii.edu.au/cgi-bin/viewdb/au/other/dfat/treaties/ATS/

⁸ Kiao v West, [1985] HCA 81;  Commonwealth v Tasmania (the ‘Tasmanian Dams Case’) [1983] HCA 21; and Bradley v Commonwealth (the ‘Rhodesian Information Centre case’) [1973] HCA 34,  https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1985/81.html

⁹ Homes NSW: 2025 NSW Statewide Street Count: Technical Paper, 31 March 2025, available at https://www.nsw.gov.au/sites/default/files/noindex/2025-04/2025-nsw-street-count-technical-paper.pdf

¹⁰ Australian Bureau of Statistics, Media Release: Nearly 1 in 200 people homeless on Census night in 2021, accessed at https://www.abs.gov.au/media-centre/media-releases/nearly-1-200-people-homeless-census-night-2021

¹¹ A significant number of rough sleepers are located within the boundaries of the City of Sydney  https://www.cityofsydney.nsw.gov.au/public-health-safety-programs/street-counts

¹² C Harley, E Barnes and T Winter: More than temporary? An evaluation of the accommodation of people sleeping rough in inner city Sydney during the COVID-19 pandemic, produced by the Centre for Social Impact and Homelessness NSW, August 2021

¹³ Australian Institute of Health and Welfare: Specialist homelessness services annual report 2024–25, https://www.aihw.gov.au/reports/homelessness-services/specialist-homelessness-services-annual-report/contents/about

¹⁴ RSL Australia: Tackling Veteran Homelessness Through Action and Advocacy, https://www.rslaustralia.org/veteran-homelessness-support , citing the Give Me Shelter report (2023), https://www.rpsgroup.com/imported-media/11982/haa_give-me-shelter_veterans_5_june_final.pdf

¹⁵ RSL NSW: Submission for a Homelessness Prevention for Vulnerable Peoples Bill, https://rslnsw.org.au/wp-content/uploads/2025/04/Submission-2.2B-Homelessness-Bill-Draft-Final-1-1.pdf

¹⁶ NSW Parliament, Parliamentary Research Service: Research Paper 2025-04: Human Rights Acts, August 2025, accessed at https://www.parliament.nsw.gov.au/researchpapers/Documents/Human-rights-Acts.pdf

¹⁷ For example, the Racial Discrimination Act 1975, the Sex Discrimination Act 1984 and the Disability Discrimination Act 1992.

¹⁸ AHURI: Brief: What does ‘Housing as a human right’ mean in Australia?, 17 July 2024, https://www.ahuri.edu.au/analysis/brief/what-does-housing-human-right-mean-australia

¹⁹ Australian Lawyers for Human Rights: Case Studies – Human Rights Acts in Queensland, Victoria and the Australian Capital Territory are delivering dignity and fairness for people everyday, 16 February 2026, accessed at https://alhr.org.au/wp/wp-content/uploads/2026/02/HRA4NSW-Case-Studies-March-26-R.pdf

²⁰ Human Rights Law Centre (HRLC), ‘Charters of human rights make our lives better’ (also referred to as ‘101 cases of how Human Rights Acts make our lives better’), accessed at https://www.hrlc.org.au/projects/101-cases-for-charters-of-rights/

²¹ Such as the first Annual Report on the Operation of Queensland’s Human Rights Act, the ACT Human Rights Commission Annual Report, reports on the Operation of the Charter of Human Rights and Responsibilities (Victoria), and submissions to the review of that Charter, as well as case law (e.g.  Commissioner for Housing in the ACT v Y [2007] ACTSC 84).

²² HRLC: 101 Cases , in particular cases 2, 12, 52, 53, 54, 55, 61, 73, 75, 77, 79, 80, 81, 83, 84, and 87. Details of individual cases are set out at https://www.humanrightsact.org.au/101-cases 

²³ Ibid., cases 34, 53, 56, 68, 73, 78.

²⁴ Ibid., case 76 (The proposal was proposal to criminalise sleeping in cars to prevent unauthorised camping. The Council agreed to both redraft the provision and instructed that staff who suspected a person was homeless were to contact a support agency).

²⁵ Ibid., case 87, which is drawn directly from Homeground Services v Mohamed (Residential Tenancies) [2009] VCAT 1131. Case summary available at https://www.hrlc.org.au/case-summaries/homeground-services-v-mohamed-residential-tenancies-2009-vcat-1131-6-july-2009/