Abstract
A large-scale redevelopment of public rental housing towers in Melbourne, Australia illustrates a worldwide problem. The development involves the demolition of over 44 towers and the displacement of over 10,000 people. Their housing and home rights under international human rights law were not taken into account by the government when it decided upon and began implementing the redevelopment. It has acted more like a private property owner than a government with human rights obligations. This has led to a legal challenge and a parliamentary inquiry through which the tenants and human rights defenders seek to hold the government to account.
Keywords
All over the world, governments are redeveloping public rental housing more like private developers than States having obligations towards the tenants under international human rights law. It is happening here in Melbourne, the capital of Victoria, Australia, where over 10,000 tenants live in over 44 ageing public housing towers. After years of neglect, the towers are in various states of disrepair. For example, some common laundries are so bad that tenants will not use them. The solution of the government is not a maintenance blitz. It is demolition of the towers and redevelopment of the land, using its power as the owner of the sites concerned. 1
This is being done without consultation with the tenants. They will be forcibly removed if necessary resulting in the displacement of those thousands of people, including families and children. Many of them are First Peoples; are women with children who have fled from family violence; come from marginalised and traumatised migrant and refugee communities; have medical and other needs and vulnerabilities; and have spent years developing social and other supports in the local area.
After overcoming their initial shock at the government announcement, tenants of the towers have bravely come together to resist the redevelopment through participation in a court challenge, a parliamentary inquiry and other means. Uniquely in Australia, these steps will enable the redevelopment to be assessed against human rights standards.
More than this, the inspiring resistance of the tenants invites us to consider important questions about who we are as a society, how we treat those people who are the most vulnerable, and what values we hold dear. As a society, do we treat the displacement of these public tenants from their long-standing homes as a necessary means to the end of redevelopment; or do we respect them as people holding human rights in deciding whether and how the redevelopment is to proceed? In Australia, as in many places elsewhere in the world, these are not questions that governments always ask in situations such as this. But they should and, indeed, under international human rights law, they must.
The public rental housing towers redevelopment
Under plans announced in 2023, the towers in Melbourne are to be demolished so that the land can be redeveloped with about three times more total housing, and (it is claimed) 10 per cent more social housing, 2 than at present. This housing is to be sold by the government on the private market, except for the small social housing component. The advantage of this model to the government is that it will generate funding for the redevelopment. However, this advantage will come at high social and other cost to the existing tenants, who are to be relocated elsewhere, and to whom no written guarantee of return has been given, 3 resulting in significant disruption to their lives.
The government contends that these plans serve a legitimate public purpose, being to provide more housing for the community. Victoria (indeed Australia) has chronic access and affordability problems in its housing system. 4 But it is surprising and deplorable that the Victorian government has decided upon the redevelopment without carrying out a public consultation process. This would have enabled the purposes and methods of the redevelopment to be objectively examined. Unapologetically, the government has done quite the opposite. It has simply announced the plans to the tenants and the broader community after the fact. It formulated the social rationale, finance structure, development model, project timetable and building program for the redevelopment without giving the people with homes in the towers (many of them long-term) any say whatsoever. This is a serious and deplorable insult to the dignity of those people which violates not only basic and accepted standards of common decency but international human rights law. The government owes them more than an apology. It owes them justice. It is not as if there was no alternative. All this could have been avoided if the government had adopted the human rights-based approach contended for here.
Controversy around the redevelopment
The controversy has led to a legal first in Australia: a group of tenants has brought a class action in the Supreme Court of Victoria challenging the redevelopment on human rights grounds. They are asserting their rights under Victoria’s Charter of Human Rights and Responsibilities Act 2006 (the Charter), 5 claiming that the redevelopment violates the right in s 13(a) to be free of unlawful and arbitrary interference with one’s home. 6 The challenge failed at first instance 7 and the tenants have appealed (at the time of writing the appeal had not been heard).
The controversy has also led to an inquiry by the Legal and Social Issues Committee of the Legislative Council of the Victorian parliament with broad terms of reference. 8 Over 800 submissions have been made to the Committee, including mine, 9 and it is holding public hearings in 2025. The submissions come from both the tenants affected and a broad cross-section of the general community.
As these submissions reveal, many people dispute the social and economic rationale of the redevelopment. They question whether at least some of the towers could be renovated and whether housing for the community could be increased without displacement of the existing tenants. This raises issues about both means and ends. Do the means chosen by the government to achieve the positive ends in view impose social costs for the displaced tenants that disproportionately outweigh those ends? Could the same positive ends be achieved by other means, without that displacement? Other people have given voice to a more fundamental objection which I share. How is it possible to make a proper judgment about the redevelopment where the government has neither been transparent in its actions nor conducted a consultation process? What has the government to fear from such a process?
All of these issues and others come within the terms of reference of the parliamentary inquiry. It is a particularly important inquiry: for the first time in Australia a large-scale redevelopment of public rental housing is to be officially examined so deeply and in a way that takes human rights into account. Implicitly the inquiry will shine light on how Victorian democracy is dealing with vulnerable and marginalised people in relation to the pressing issue of housing and rights.
Human rights issues
The redevelopment project raises profound issues about the rights of the tenants and the obligations of the government under international human rights law, to which Australia is a party. The tenants of the towers hold (among other rights) the right to adequate housing, which in turn carries obligations on the part of the government. The government is obliged to respect, protect and fulfill those rights, which have both substantive and procedural elements. People have the right to housing in which to live in security and free of interference, unless such is legally authorised and soundly justified according to a transparent process through which the tenants are fully consulted and their free, prior and informed consent is sought.
Therefore, where the government proposes to undertake a large-scale redevelopment project which will displace over 10,000 people from their homes, as it does here, it is obliged to provide relevant information, carry out a proper consultation process and seek the consent of those affected. This is a binding obligation. It is the right of the tenants to be meaningfully consulted and the obligation of government to carry out the consultation. The Victorian government, though, has not fulfilled this obligation, thereby violating international human rights law under which the tenants are entitled to an effective remedy.
The human right to adequate housing (and to home): Values and purposes
The idea of home is profound for everyone. I wrote about this idea way back in 2012 in relation to the importance of security of tenure for public housing tenants. I recall here what I wrote then as it seems so relevant to what the tenants of the public housing towers are experiencing now. I wrote that, for public housing tenants as for everyone else, [t]he home is a place of belonging, comfort and security. … It is a private place for nurturing oneself, a spouse or partner perhaps, children and other loved ones. It is where we can truly be ourselves with family and friends and they can be themselves with us. … [H]owever much we can agree that a home is shelter, a dwelling and place to inhabit, it is much more than that. It is the primary location of individual physical existence which is indispensable for human flourishing in every respect, including participation in work and education and in cultural, social and religious life.
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It is because of this importance that housing and home come within international human rights. I went on to write about what happens when a public housing tenant loses their home: [B]ecause the home is so central to a person’s life, the consequences of loss of home extend beyond the termination of the tenancy. Forced eviction disrupts individual, family and community life, the health and schooling of children and the capacity of people to work and attend important appointments. Stable and secure housing helps in the support of vulnerable people and families. The loss of the home can be catastrophic for the continuation of the helping relationship. Forced eviction shifts the burden, which is far greater because of the crisis, onto other agencies, such as those assisting the homeless.
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The submissions of the tenants and human rights defenders to the legislative inquiry speak eloquently of these kinds of consequences in relation to the demolition and redevelopment of the public housing towers. It is because of these consequences that international human rights provide protection against unjustified forced eviction.
Human rights are commonly understood to be those inalienable fundamental rights to which individuals are inherently entitled by virtue of their humanity. They are widely accepted as being based on generally agreed values and have the purpose of ensuring human dignity and fulfilling basic human needs. Human rights are seen to be universal and inalienable, meaning that all people have them; indivisible, meaning that the rights all have equal status and cannot be ranked; and interdependent and interrelated, meaning that the realisation of one right often depends upon the realisation of others. 12
As with all human rights, the core value of the human right to adequate housing is respect for the equal and inherent dignity of all people. Its philosophical foundation is that individuals are ends in themselves and not a means to others’ ends. This has important implications in relation to large-scale redevelopment projects involving public rental housing, which I develop below. The purpose of the human right to housing is to ensure that all people have a decent home because this is necessary for living in freedom, peace and dignity and for developing personally in ways that people choose, as well as for realising other human rights. Respecting the dignity of individuals in this context includes giving them a meaningful say, listening to them and seeking their consent in relation to redevelopments affecting their homes.
Sources in international law
The right to adequate housing and to freedom from interference with the home are to be found in the International Bill of Human Rights, which comprises the United Nations (UN) Universal Declaration of Human Rights, 13 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 in the ICESCR is specified as follows:
The States 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.
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The home component of the right in the ICCPR is specified as follows:
No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence …
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Australia (which includes its state and territory governments) is bound by international law to respect, protect and fulfill the right to adequate housing and to ensure freedom from interference with one’s home. It has ratified and become a party to these covenants, and also a number of other international human rights treaties which specify these and similar or related rights.
Main features of the right to adequate housing
The Committee on Economic, Social and Cultural Rights is the principal UN oversight authority for ICESCR. One of the Committee’s responsibilities is to produce guidance on the meaning of the right to adequate housing in that covenant, which it has done. 16
As this guidance makes clear, the right to housing in ICESCR is not to be interpreted in a narrow or restrictive way as only meaning having ‘a roof over your head’. It is a right to live somewhere in security, peace and dignity. It is linked with other human rights founded on the fundamental values of the covenant, which likewise reflect the inherent dignity of the human person. The scope of the right to housing encompasses the associated right in the ICCPR to be free of arbitrary or unlawful interference with a person’s home on which s 13(a) of the Charter is based. 17
The concept of adequacy in the international right to adequate housing is centrally important for achieving the purpose of the right. What is adequate is determined in part by social, economic, climatic, ecological and other factors that are country specific. But other factors which are objective and mandatory apply in all countries. These include the following, which have been called the ‘decency’ housing principles:
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(a) legal security of tenure
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(which is of critical importance in relation to the redevelopment of the towers) (b) availability of services, materials, facilities and infrastructure (c) affordability (d) habitability (e) accessibility (f) location, and (g) cultural adequacy.
Principle (a), legal security of tenure, is implemented by laws and practices that protect different forms of tenure, including tenancy (public or private). The right to security of tenure is clearly breached by the weak residential tenancy laws in several Australian jurisdictions, which allow forced eviction of tenants without cause, including tenants of public housing. I expressed concern about this in 2012, 20 and I remain troubled about it, although I acknowledge recent improvement in this regard in Victoria and some other jurisdictions. The right to security of tenure is violated by unjustified forced eviction arising from displacement and relocation – brought about, as in this case, by large-scale redevelopment projects involving public rental housing.
Principle (b), the availability of services, materials, facilities and infrastructure, is supported by Australian laws which commonly specify minimum standards for all dwellings including rented dwellings, private or public. The location and built form of housing, as well as the kinds of services available in the community, need rethinking, especially in light of global warming and climate change. The government is entitled to be concerned about the deteriorating condition of the towers from this point of view.
Principle (c), affordability, is clearly breached in Australia because a feature of the housing system is widespread housing stress due to housing unaffordability. The government is entitled – indeed, bound – to pursue ways of increasing access to affordable housing. This could include efficiently redeveloping land that it owns so as to maximise the housing that it contains but consistently with its other human rights obligations.
Principle (d), habitability, means that sub-standard housing is not permissible, and laws and regulations providing minimum habitability standards are means of implementing that. Again, the government is entitled to be concerned about the condition of the towers from this point of view.
Principle (e), accessibility, refers to accessibility for all, as such. It is not only concerned with physical accessibility. There comes a point where the housing system makes affordable or social housing so hard to obtain that this element of the right is not satisfied. The government is entitled to be concerned about access to housing, and especially affordable housing, in Victoria, where accessibility is poor and worsening. 21
Principle (f), location, applies in the Australian context where people are being forced to buy or rent housing increasingly further away from employment, essential services and family and social supports. The government is entitled to be concerned about increasing access to housing in good locations and the contribution that redeveloping the towers would make to achieving this objective.
Principle (g), cultural adequacy, includes respect for cultural diversity as expressed in relation to housing, including First Peoples’ housing.
Freedoms and entitlements of public housing tenants as rights-holders
In Australia as elsewhere, the dominant perception of public housing tenants is that they are passive welfare recipients, rather than active rights-holders. As government investment in public housing has waned and this component of the housing system has become ‘residual’, 22 this negative perception has deepened.
Thinking in this way results in stigma towards public housing tenants. Stigma has been an institutional feature of public housing administration in Victoria for a long time. It has been associated with a paternalistic mindset on the part of the government and also with the idea that it has unqualified power of ownership of the rented premises just like a private landlord, even though the context is that of public housing. This unfortunate legacy helps to explain the high-handed manner in which the Victorian government has formulated and implemented the redevelopment of the towers.
A human rights-based approach requires a different and human-centred way of thinking about housing in general, and public rental housing in particular. Human rights see all people in need of housing as active rights-holders who are able to make just claims on government for the realisation of the freedoms and entitlements which are embodied in their rights. The administrative and legal systems in the country concerned must be designed by the government to give effect to those rights and to hold it to account when it fails to do so. This approach is not being followed in the towers’ redevelopment project, with the result that Australia is not meeting its international human rights obligations.
Duties and obligations of government as the duty-bearer
Human rights impose duties on governments. These duties legally oblige the government to respect, protect and fulfill the freedoms and entitlements embodied in the right. On one side is the right of the individual as the rights-holder of the freedom or entitlement; on the other side is the obligation of the government as the duty-bearer to uphold that right.
Significant scope for political contestation about housing issues remains, but that discussion must relate to how, and not whether, the right should be implemented. Government has a certain ‘margin of discretion’ about how best to implement the right. The management of scarce resources, determining priorities and making trade-offs come within this margin of discretion, even in wealthy countries like Australia. This applies to all aspects of the housing system including large-scale redevelopment projects.
Progressive realisation
While the right to decent housing gives rise to freedoms and entitlements for people as rights-holders, and duties and obligations for governments as duty-bearers, people are not entitled to insist on all the elements of the right being realised immediately. Full implementation of aspects of the right which involve the management and allocation of scarce public resources can be progressively realised over time, given the availability of those resources and other reasonable constraints. Large-scale redevelopment projects which seek to better utilise government housing resources can fall into this category.
However, governments cannot use the principle of ‘progressive realisation’ as a back-door way of avoiding their human rights obligations. Governments must always take steps that are ‘deliberate, concrete and targeted as clearly as possible’ 23 towards the realisation of the right and must ‘move as expeditiously and effectively as possible’ towards full realisation of the right. 24 They cannot use the progressive realisation principle as an excuse for going backwards on compliance with human rights obligations like the obligation to consult with, and seek the consent of, people affected by large-scale redevelopment projects.
Core obligations of immediate effect
While governments can progressively realise the right to adequate housing, certain ‘minimum core obligations’ 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’ 25 to people who need it, which includes the obligation to provide temporary emergency housing when needed. In this way, significant homelessness (as it exists in Australia) is a violation of the right to housing. 26
Prohibition of forced eviction is a core obligation of immediate effect which is not dependent upon the availability of resources. Governments must not evict people from public housing without just cause and then only by law and according to due process. The specific application of these aspects of the right to adequate housing (and home) are discussed below.
Obligations to respect, protect and fulfill human rights
The UN has developed principles in relation to the different kinds of obligation that all governments have when applying human rights. 27 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. The principles are supported by a significant body of jurisprudence and scholarship.
There are three elements to the obligation of governments to give effect to human rights including the right to housing and to be free of unlawful and arbitrary interference with one’s home: the obligation to respect, protect and fulfill.
The obligation to respect
This obligation places a responsibility on governments to refrain from unjustifiably interfering directly or indirectly with the enjoyment of a right. For example, governments 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. This obligation applies in relation to large-scale projects such as the redevelopment of the towers.
The obligation to protect
This obligation places a responsibility on governments to prevent third parties from interfering with the enjoyment of a right. For example, governments 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 governments a responsibility to put in place a legislative and administrative framework that guarantees these aspects of the right. Jurisdictions still exist in Australia where no such framework has been put in place to guarantee the right to security of tenure for tenants and to protection from eviction without cause.
The obligation to fulfill
This obligation requires governments to take all necessary and appropriate measures to ensure the full realisation of a right. These include legislative, administrative and public finance measures. For example, governments must create a housing system which enables all people to have access to an affordable home taking into account the decency principles. This will require a legislative framework, departments of state, public finance and inter-governmental arrangements which reflect divisions of responsibility within the political system in the country concerned. In Australia, the endemic problems in the housing system involve many failures by governments to fulfill the right to housing (and home). It is a legitimate purpose of the government to give effect to this obligation through large-scale redevelopment projects as in the case of the towers, consistently with its other human rights obligations.
The right to housing (and to home) in large-scale redevelopment projects
Human rights issues arise about the redevelopment of the towers because, as formulated and implemented by the government, the project involves the displacement of over 10,000 tenants – who include families and children – involuntarily if necessary. This directly involves their right to have secure housing free of arbitrary interference (even if lawful). Unless justified according to strict criteria, the involuntary displacement and relocation of public housing tenants as part of a redevelopment project is a forced eviction. In such a situation, the tenants are considered under international human rights law to be internally displaced persons who have a right to a domestic legal remedy for a breach of their human rights.
Involuntary displacement and relocation of people is considered a gross violation of human rights because of the immediate effects on the individuals and their families as to their right to housing, and because of the flow-on effects as to their other human rights. These might include the right to be free of homelessness, the right to life, the right to be free of cruel, inhuman and degrading treatment, the right to security of the person, the right to be free of arbitrary interference with family and home, the right to work, the rights of the child, the right to health and the right to an effective remedy in cases of alleged breach of human rights. These other rights are very likely to be involved in cases of involuntary displacement and relocation of people because adequate housing is the foundation for the enjoyment of virtually all human rights.
As I have acknowledged, it may be a legitimate purpose of the government to redevelop existing housing (including public rental housing). It may wish to ensure that the housing is safe and habitable, or to increase the quantity of housing where existing housing inefficiently utilises the land concerned. The Victorian government contends that the redevelopment of the towers is for these legitimate public purposes.
It is not unusual for sponsors of large-scale redevelopment projects involving the displacement of thousands of people to claim that the project is for legitimate purposes. Claims like this are made in such situations all over the world. Even where this is the claim, the redevelopment project must be open to examination against human rights standards. As a leading UN publication notes: Development-based evictions are often planned or carried out to serve the ‘public good’ or ‘public interest’, but do not provide protection for the most vulnerable, procedural guarantees or due process. This is the case of many developments and infrastructure projects, such as large dams or mining and other extractive industries, large-scale land acquisitions, urban renewal, city beautification, or major international business or sporting events.
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These observations are applicable to the redevelopment of the towers. It is the function of human rights to provide this protection and those procedural guarantees.
Human rights standards and procedures to be followed
Because involuntary displacement and relocation of people arising from development and like projects raise profound human rights issues, UN scrutiny and monitoring authorities have published authoritative guidance on the standards and procedures to be followed if human rights are not to be violated. The primary source of this guidance are landmark principles that were developed by the first Special Rapporteur on adequate housing. 29
Under international human rights law as explained in that and other authoritative sources, 30 displacement and involuntary resettlement of people in redevelopment projects like the towers can only be justified when strict criteria are met. In summary, these criteria are that: (1) the government substantiates that the project is in the public interest; (2) the government establishes that the harm done to the human rights of residents is proportionate and unavoidable having regard to the public purposes of the project, which requires that there are no other reasonable means of achieving those purposes; (3) there is an open consultation and accountability process in which all people who have human rights interests at stake can effectively participate, including sharing of information, access to legal advice and an ability to challenge the decision, as well as seeking their free, prior and informed consent; and (4) affected people are not worse off overall or fully compensated if they are worse off. 31
The government has not sought to justify the displacement of the tower tenants by reference to these criteria and has plainly not satisfied (2), (3) and (4).
The UN advises that, to avoid the kinds of problems which have arisen in relation to the redevelopment of the towers, a ‘human-rights based approach’ should be adopted. There is a substantial literature on this subject. 32 The Australian Human Rights Commission (which is Australia’s national human rights institution at the UN) explains the human-rights based approach by reference to the ‘PANEL’ principles – participation, accountability, non-discrimination and equality, empowerment, and legality. 33 Among other things, these require that gender and other sources of discrimination and inequality be taken into account in such projects. The current UN Special Rapporteur on the right to adequate housing advocates the adoption of this approach when resettling people, including in the context of public interest redevelopment projects involving land. 34 The Victorian government should have adopted this approach in relation to the redevelopment of the public rental housing towers. Doing so would have enabled it to achieve its legitimate purpose of increasing housing (including public housing) without violating Australia’s international human rights obligations towards the thousands of people affected by the redevelopment.
Conclusion
The Victorian government is demolishing and redeveloping over 44 public housing towers which are home to over 10,000 people, including families and children. The purpose of this large-scale redevelopment is to increase overall housing including social housing. What should be the proper frame of reference for the Victorian government when carrying out this redevelopment? I contend that the frame of reference should (indeed must) be the right to housing (and to home) under international human rights law because Australia has ratified and become a party to the treaties which specify these rights. This means the tenants of the towers have the right to live in their homes and be free of any interference, unless such is legally authorised and soundly justified according to a transparent process through which they are fully consulted and their free, prior and informed consent is sought.
This is not the frame of reference which the government is applying. In the way that it has formulated, implemented and sought to justify the redevelopment of the towers, it has not recognised that, under international law, the tenants have fundamentally important human rights at stake in respect of which the government has corresponding legal obligations. The government has acted more like a private developer with unlimited power of ownership to be exercised as it sees fit without regard to those rights and obligations. It has treated the tenants as people who are entitled only to notice of the decision to redevelop the towers after the fact, despite many having established long-settled homes there. It has treated them as people who can be required to relocate into housing that may be far from their present family and social supports and community services without a written guarantee of return. And in doing this, the government has disrespected their human dignity and violated their international human rights.
Footnotes
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
