Last month the Citizens’ Advice Bureau joined a growing chorus of complaint and anxiety about the state of housing in New Zealand, especially with regard to children. A recent Salvation Army report, subsequent letters and discussion in The Herald and marches of protest on the streets have all recently emphasised the need for housing issues to be addressed. A question which has been asked but not further discussed is whether there is a legal right to housing here. If so, is it an enforceable right, in the courts, for example? If not, could it be?
One commentator mentioned the Millenium Development Goals. These have now been superseded by the Sustainable Development Goals. The first seven concern issues which are closely associated to housing, such as relieving poverty and improving health. The member states of the UN clearly then consider these to be important goals and have agreed to monitor and report progress on them. But they are not bound to do so. These Goals do not confer rights on anyone.
There is, however, another possibility. In 1978 New Zealand ratified the 1966 United Nations International Covenant on Economic, Social and Cultural Rights. This Covenant is one of two (with the International Covenant on Civil and Political Rights) which are intended to give legal force to the 1948 Universal Declaration of Human Rights, adopted by the member states of the new United Nations in the aftermath of the horrors of World War II. Article 11(1) reads in part:
The States Parties to the present Covenant recognise the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing…The States Parties will take appropriate steps to ensure the realisation of this right…
By ratifying this Covenant New Zealand thus recognised a right to housing and agreed to make it realisable here.
In states with a legal system such as ours an international treaty does not become immediately enforceable in a local court; that requires enabling legislation, such as a Bill of Rights or a specific law: for example, the Crimes of Torture Act 1989 outlawed the use of torture to conform with the United Nations Convention Against Torture. Our 1990 Bill of Rights Act protects only civil and political (CP) rights, not economic and social (ESC) rights such as a right to adequate housing. For many years, despite the existence of the Covenant and its ratification by many states, ESC rights were considered to be not as important as CP rights and less attention was paid to them in law and policy. But those days are long passed. The normative content of a right such as that to adequate housing has been increasingly clarified and thus also the extent of a state’s obligations and the role of the judiciary in their enforcement. In very many states, Constitutions and Bills of Rights now include ESC rights and cases are litigated over these rights on a regular basis in all regions of the world.
But not in New Zealand. Here successive governments have refused to include these rights in the Bill of Rights Act or to protect them through other legislation (except for some particular instances such as tenancy regulation). They have maintained this stance despite ongoing criticism from UN bodies and from local NGOs. Amnesty International and the Human Rights Foundation have made strong representations both in international forums and to the 2013 Constitutional Review Panel that this situation, so out of kilter with accepted international practice, be addressed.
One of the reasons given by the government for this lack of action has been that such rights are already well protected in New Zealand, presumably because, despite the lack of legislation, there are good policies and programmes in place to protect such a right. As regards the right to housing, this is manifestly not the case. Not only are children sleeping in cars but in one recent tragic case the coroner linked the death of a child to the conditions in which she was housed.
Having a right enshrined in legislation indicates that it is regarded as of fundamental importance, to be taken seriously by politicians and judges, by civic planners and by the citizens themselves. Such recognition provides a basis for complaint for individuals or for organisations working on their behalf, such as the Salvation Army or the CAB. It can serve as a springboard for lawyers and judges to take action to protect the rights of New Zealanders. There is already a body of information, painstakingly developed by lawyers, judges, NGOs and academics, to establish the several obligations of the state, local authorities and private companies and the roles of the courts, councils and the Executive.
We all do have a right to housing in New Zealand. We need now to make that right a reality.
Human Rights Foundation of Aotearoa New Zealand
Honorary Professor of Law, University of Waikato