Right to an adequate standard of living, including food, water and housing

Public sector guidance sheet

Disclaimer
This material is provided to persons who have a role in Commonwealth legislation, policy and programs as general guidance only and is not to be relied upon as legal advice. Commonwealth agencies subject to the Legal Services Directions 2005 requiring legal advice in relation to matters raised in this Guidance Sheet must seek that advice in accordance with the Directions.

What is the right to an adequate standard of living?

Everyone has the right to an adequate standard of living including adequate food, water and housing and to the continuous improvement of living conditions.

Where does the right to an adequate standard of living come from?

Australia is a party to seven core international human rights treaties. The right to an adequate standard of living is contained in article 11(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

See also articles 5(e)(iii) and 7 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) , article 14(2)(h) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) , articles 24(2)(c) and 27 of the Convention on the Rights of the Child (CRC) and article 28 of the Convention on the Rights of Persons with Disabilities (CRPD).

The CRC requires countries to take appropriate measures to provide adequate nutritious foods and clean drinking-water to combat disease and malnutrition, and to assist parents and others responsible for the child with regard to nutrition, clothing and housing.

The CRPD requires countries to take appropriate measures to ensure clean water services and public housing programs for people with disability.

CEDAW requires measures to be taken to ensure that women in rural areas enjoy adequate living conditions, particularly in relation to housing, sanitation, electricity and water supply.

CERD requires countries to guarantee the right of everyone to housing, without distinction as to race, colour, or national or ethnic origin.

When do I need to consider the right to an adequate standard of living?

You will need to consider the right to an adequate standard of living if you are working on legislation, a policy or a program that:

  • could be relevant to the availability and sustainability of an adequate supply of nutritious food
  • could be relevant to the supply of water for personal and domestic uses
  • relates to access to water supplies for agricultural purposes
  • could be relevant to any aspect of the supply of housing
  • institutes measures to combat homelessness
  • establishes standards to be met in the construction of houses
  • provides for subsidies or other forms of assistance to improve housing affordability
  • provides for protection for tenants against unfair eviction
  • regulates rents that can be charged for tenanted housing
  • could be relevant to the availability of adequate food, water and housing for particular classes of persons, such as Indigenous persons or people with disability, or
  • provides for any social security benefit, including family assistance payment.

This list should not be regarded as exhaustive.

In addition, you will need to consider the right to an adequate standard of living if you are working on legislation, a policy or a program dealing with economic and resource issues that could have an impact on the realisation of the right to an adequate standard of living. Legislation governing the entitlement to social security benefits is an example.

What is the scope of the right to an adequate standard of living?

The UN Committee on Economic Social and Cultural Rights has issued guidance on a number of aspects of the right to an adequate standard of living, namely on food, water and housing. The key obligations are that countries must ensure the availability and accessibility of the resources that are essential to the realisation of the right.

Food

The UN Committee has stated that in the context of food, the concept of adequacy is to a large extent determined by prevailing social, economic, cultural, climatic, ecological and other conditions, and is linked to the notion of sustainability, which implies food security, namely that food should be accessible for both present and future generations.

The Committee has also stated that, as part of their obligations to protect people's resource base for food, countries should take appropriate steps to ensure that activities of the private business sector are in conformity with the right to food.

Water

The UN Committee has stated that the human right to water entitles everyone to sufficient, safe, acceptable, physically accessible and affordable water for personal and domestic uses, including consumption, cooking, personal and domestic hygienic requirements. Water, and water facilities and services, must be affordable for all.

The Committee has noted the importance of ensuring sustainable access to water resources for agriculture to realise the right to adequate food. Attention should be given to ensuring that farmers have equitable access to water and water management systems, including sustainable rain harvesting and irrigation technology. In order to ensure that there is sufficient and safe water for present and future generations, countries should adopt programs that reduce depletion of water resources through unsustainable extraction, diversion and damming.

The Committee has stated that Indigenous peoples' access to water resources on their ancestral lands should be protected from encroachment and unlawful pollution, and that countries should provide resources for Indigenous peoples to design, deliver and control their access to water.

Housing

The UN Committee has stated that housing must provide adequate shelter, which means adequate privacy, space, security, lighting and ventilation, basic infrastructure and location with regard to work and basic facilities, all at a reasonable cost. Everyone should have sustainable access to natural and common resources, safe drinking water, energy for cooking, heating and lighting, sanitation and washing facilities, means of food storage, refuse disposal, site drainage and emergency services.

Countries should establish housing subsidies for those unable to obtain affordable housing, as well as forms and levels of housing finance which adequately reflect housing needs.

The Committee has also stated all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats. Tenants should be protected by appropriate means against unreasonable rent levels or rent increases.

The UN Special Rapporteur on Adequate Housing is an independent expert appointed by the UN Human Rights Council to examine and report back to the council on adequate housing as a component of the right to an adequate standard of living. The Special Rapporteur visited Australia in 2006 and compiled a report following the visit. A link to the report is contained below under 'Where can I read more about the right to an adequate standard of living?'.

Declaration on the Rights of Indigenous Peoples

The Declaration on the Rights of Indigenous Peoples contains provisions relevant to the right of Indigenous peoples to an adequate standard of living. The Declaration does not create legally binding obligations, but informs the way governments engage with and protect the rights of Indigenous peoples.

What is the obligation under ICESCR?

Obligations of progressive realisation

Under article 2(1) of ICESCR, a country is obliged to take steps 'to the maximum of its available resources, with a view to achieving progressively the full realisation' of the rights recognised in ICESCR. The UN Committee on Economic Social and Cultural Rights has stated that this provision is 'a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of economic, social and cultural rights'. However, the Committee has also stated that 'the phrase must be read in the light of the overall objective of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question', and that 'it thus imposes an obligation to move as expeditiously and effectively as possible towards that goal'.

Obligations of immediate effect

The Committee has stated that, notwithstanding the progressive realisation provision, there are two obligations that are of immediate effect. They are the guarantee in article 2(2) of ICESCR that the rights under the Covenant will be exercised without discrimination of any kind and the obligation under article 2(1) to 'take steps'. This means that steps towards realisation of the rights under the Covenant must be taken within a reasonably short time after the country becomes party to the Covenant and that the steps should be deliberate, concrete and targeted as clearly as possible towards meeting the obligations under the Covenant.

Can the right to an adequate standard of living be limited?

Article 4 of ICESCR provides that countries may subject economic social and cultural rights only to such limitations 'as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society'. The UN Committee has stated that such limitations must be proportional, and must be the least restrictive alternative where several types of limitations are available, and that even where such limitations are permitted, they should be of limited duration and subject to review. Measures that are retrogressive to the realisation of economic, social and cultural rights must also be properly justified. A retrogressive measure is one that reduces the extent to which an economic, social and cultural right is guaranteed.

Which domestic laws relate to the right to an adequate standard of living?

The state and territory governments are responsible for many aspects of the living conditions that are dealt with in article 11 of ICESCR. There is no Commonwealth legislation explicitly enshrining the right to an adequate standard of living. The following laws deal with aspects of the right to an adequate standard of living relevant to the Commonwealth's responsibilities.

The Water Act 2007 enables the Commonwealth, in conjunction with NSW, Victoria, SA, QLD and the ACT, to manage the water resources of the Murray-Darling Basin.

The Housing Assistance Act 1996 provides financial assistance to the states to ensure that people can obtain affordable, secure and appropriate housing. The division of responsibilities between the Commonwealth and the States and Territories in housing is recognised in agreements such the National Affordable Housing Agreement and the National Partnership Agreement on Social Housing (see the links below).

Legislation governing the entitlement to social security benefits is also relevant to the realisation of the right to an adequate standard of living. This legislation is described in the guidance sheet on the Right to social security.

Under the Disability Discrimination Act 1992, the Attorney-General may make disability standards to specify rights and responsibilities about equal access and opportunity for people with disability, in more detail and with more certainty than the Act itself provides. A standard has been made under the Act in relation to access to premises, which provides minimum national standards for accessibility requirements to ensure dignified access to, and use of, buildings for people with disability.

What other rights and freedoms relate to the right to an adequate standard of living?

The UN Committee has stated that the right to an adequate standard of living, and in particular to adequate food and water is necessary to ensure environmental hygiene (the right to health - article 12 ICESCR). Water is essential for securing livelihoods (right to gain a living by work - article 6 ICESCR) and enjoying certain cultural practices (right to take part in cultural life - article 15 ICESCR).

The right to adequate housing is relevant to the right not to be subjected to arbitrary or unlawful interference with one's privacy, family, home or correspondence, in article 17 of the International Covenant on Civil and Political Rights.

Articles from relevant Conventions

International Covenant on Economic, Social and Cultural Rights

Article 11(1)

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. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.

See also: CERD article 5(e)(iii), 7; CRC articles 24(2)(c), 27; CRPD article 28; CEDAW article 14(2)(h).

Where can I read more about the right to an adequate standard of living? Other materials