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This article examines discrimination faced by people who are homeless, unemployed or recipients of social security payments in Victoria. Evidence from community and welfare organisations suggests that discrimination against these groups is widespread, particularly in the areas of accommodation and the provision of goods and services.
The Equal Opportunity Act 1995 (Vic) (and equivalent legislation in other Australian states) does not provide any protection from, or redress in relation to, discriminatory treatment on the ground of social status. Discrimination on the basis of a person’s social status is currently lawful in Victoria. This article therefore recommends that the Act be amended to prohibit discrimination on the basis of social status, including status as a homeless person, an unemployed person or a social security recipient. Such reform is imperative to protect some of the most marginalised and vulnerable members of our community from unfair, unjust or less favourable treatment. The article argues that the homeless, the unemployed and social security recipients should enjoy the same freedom from unwarranted discrimination as people with homes, jobs and means. They should be afforded equality before and under the law. It further argues that legislative amendment is necessary to ensure compliance with international human rights norms, anti-discrimination developments overseas and progressive public policy.
The conclusions and recommendations of this article are based, in large part, on the experiences and consultations of the Homeless Persons’ Legal Clinic. The Clinic is a joint pilot project of the Public Interest Law Clearing House (Vic) Inc and the Council to Homeless Persons. It was established in October 2001 to provide free legal assistance to, and advocacy on behalf of, people who are homeless or at risk of homelessness. The fundamental objectives of the Clinic are to reduce the degree to which homeless people are marginalised and to provide a viable and sustainable pathway out of homelessness. The Clinic provides civil legal services at crisis accommodation centres and welfare agencies so as to encourage direct access by clients.[1] This is important because, given the range of pressures and issues confronting many homeless people (including financial, familial, social, psychological, medical and health issues), legal problems often remain unaddressed unless services are provided at locations already frequented by homeless people. The Clinic is staffed by pro bono lawyers from participating law firms and legal departments, including Blake Dawson Waldron, Clayton Utz, Hunt & Hunt, Mallesons Stephen Jaques, Minter Ellison and the National Australia Bank Legal Department.
Definitions of ‘homelessness’ are diverse and culturally contingent. Poet Robert Frost wrote: ‘Home is the place where, when you have to go there, they have to take you in.’[2] Seen this way, being without a ‘home’ or ‘homeless’ means being without a conventional home with basic amenities and the attendant economic and social supports that such a home normally affords.[3] Such a definition assists in understanding the lived experience of being homeless or at risk of homelessness.[4] It is an experience that Ian Charles, himself formerly homeless and now a cook at an open lunch program for Melbourne’s marginalised and disadvantaged, understands well:
Just because you have a roof over your head doesn’t mean you have a home. I thought my life had ended when I found myself homeless and out on the streets. Where should I go from here? After a couple of months moving from beach to park around Melbourne, I thought it was time to get some stability in my life. I thought a rooming house might provide shelter and a base to repair my fragile emotional state. How wrong I was![5]
In Australia, there is an emerging consensus around the definition of homelessness developed by Chamberlain and MacKenzie[6] and endorsed by the Australian Bureau of Statistics.[7] Chamberlain and MacKenzie argue that homelessness is best defined in relation to common community standards regarding the minimum accommodation necessary to live according to the conventions of community life.[8] In Australia, the accepted minimum community standard is a small, rented flat with basic amenities such as a bedroom, bathroom and kitchen.[9] Having regard to this standard, Chamberlain and MacKenzie identify three categories of homeless persons:
Primary homelessness
People without conventional accommodation, such as people living on the streets, sleeping in parks, squatting in derelict buildings, or using cars or railway carriages for temporary shelter.
Secondary homelessness
People who move frequently from one form of temporary shelter to another. It includes people using emergency accommodation (such as hostels for the homeless or night shelters); teenagers staying in youth refuges; women and children escaping domestic violence (staying in women's refuges); people residing temporarily with other families (because they have no accommodation of their own); and those using boarding houses on an occasional or intermittent basis.
Tertiary homelessness
People who live in boarding houses on a medium to long-term basis. Residents of private boarding houses do not have a separate bedroom and living room; they do not have kitchen and bathroom facilities of their own; their accommodation is not self-contained; they do not have security of tenure provided by a lease.[10]
The categories of person defined as homeless in Chamberlain and MacKenzie’s widely used definition are captured in the legislative definition of homelessness contained in section 4 of the Supported Accommodation Assistance Act 1994 (Cth) which relevantly provides that:
A person is taken to be ‘homeless’ if he or she has inadequate access to safe and secure housing.
A person is taken to have inadequate access to safe and secure housing if the only housing to which a person has access:
(a) damages, or is likely to damage, the person’s health; or
(b) threatens the person’s safety; or
(c) marginalises the person through failing to provide access to:
(i) adequate personal amenities; or(d) places the person in circumstances which threaten or adversely affect the adequacy, safety, security and affordability of that housing.
(ii) the economic or social supports that a home normally affords; or
This is consistent with the international law definition of ‘homelessness’ developed by the United Nations Committee on Economic, Social and Cultural Rights which provides, in effect, that a person is homeless unless he or she has adequate housing that affords the right to live in security, peace and dignity.[11] This article adopts the Supported Accommodation Assistance Act 1994 (Cth) definition of homelessness.
In 1996, there were over 17 800 homeless persons in Victoria and over 105 000 homeless persons across Australia.[12]
The Equal Opportunity Act 1995 (Vic) (‘Equal Opportunity Act’) makes it unlawful to treat anyone less favourably on the basis of particular attributes or personal characteristics (such as sex, race, disability or age) in certain areas of public life (such as accommodation, education, employment or the provision of goods or services).
Not all acts of unfair, unjust or less favourable treatment are unlawful. Discrimination is not unlawful unless it occurs on the basis of one (or more) of the attributes set out in section 6 of the Equal Opportunity Act, and in respect of an area of activity set out in Part 3 of the Equal Opportunity Act.
Prohibited Grounds of Discrimination under section 6 of the Equal Opportunity Act 1995 (Vic)
(a) age;
(ab) breastfeeding;
(ac) gender identity;
(b) impairment;
(c) industrial activity;
(d) lawful sexual activity;
(e) marital status;
(ea) parental status or status as a carer;
(f) physical features;
(g) political belief or activity;
(h) pregnancy;
(i) race;
(j) religious belief or activity;
(k) sex;
(l) sexual orientation;
(m) personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the above attributes.
Notwithstanding the coverage of the grounds in the Equal Opportunity Act, many persons are subject to discriminatory treatment on the basis of their social status, in particular their status as:
(a) a homeless person; or(b) an unemployed person; or
(c) a recipient of social security payments.
For example, the St Vincent de Paul Society reports that:
Our extensive experience in the [homelessness] sector leads us to believe that there is a significant issue in relation to discrimination against this particular group in the community who have very complex needs and are very vulnerable.[13]
Examples of the sort of discrimination suffered by homeless and unemployed people are described below. The effects of such discrimination are deleterious to the individuals who are subject to the unfair, unjust or less favourable treatment, and to the community as a whole. As St Mary’s House of Welcome states:
Our service users include homeless people, people in financial crisis, people who are suffering hardship, people with alcohol, drug and gambling addictions, mentally ill people and others of low social status. They experience discrimination because of their social status, their appearance, and the results of their lack of access to amenities and services. The effect of this discrimination can be detrimental to health and well-being, result in further financial hardship, and impact negatively on ability to cope.[14]
The prohibited grounds of discrimination set out in section 6 of the Equal Opportunity Act are exhaustive. The Equal Opportunity Act is the only piece of Victorian legislation which prohibits the Crown and private individuals from engaging in discriminatory conduct against others (although victims of discrimination in Victoria may also have the ability to make a complaint under the Commonwealth legislative scheme).[15] Discrimination against a person on the basis of his or her status as a homeless person, an unemployed person or a recipient of social security payments is not enforcibly prohibited by either Victorian or Commonwealth anti-discrimination legislation and is therefore currently lawful in Victoria. Without a statutory prohibition on discrimination on the grounds of social status, these people are left without any legal remedy and often find themselves powerless and further marginalised in the face of unfair, unjust or less favourable treatment. As the Jesuit Social Services have recognised:
Discrimination, especially in the areas of private housing, room and caravan rental, and also in health, is both widespread and can result in significant psychological deterioration as well as material deprivation of the recipient. Indeed, consistent discrimination of this nature results in deepening of identification with the marginalised condition so as to make negotiation through their issues more difficult.[16]
Although discrimination against, and unfair and unjust treatment of, the homeless, the unemployed and social security recipients is rife in many areas of public and private life, the comments and case studies below focus on these grounds in the areas where discrimination most commonly occurs, namely the provision of:
(a) accommodation; and(b) goods and services.
The most common examples of discriminatory treatment on the ground of social status occur in the provision of accommodation. The chronic shortage of affordable, appropriate housing, together with the obvious fact that homeless persons need housing, creates a situation that is often exploited by landlords and proprietors. And, while most acute in the case of the homeless, such discrimination affects the non-homeless unemployed or social security recipients as well. As Bernie Durkin of Eastern Access Community Health identifies:
I have witnessed first-hand hundreds of episodes of subtle and overt discrimination towards people who are homeless, or in housing crisis. When people ask why, the answer is simple; ‘because they can!’.[17]
Through its consultations with community and welfare organisations, the Homeless Persons’ Legal Clinic was provided with numerous case studies regarding discrimination against homeless persons, unemployed persons and social security recipients – including women, children and families – in the provision of accommodation. In some cases, the discrimination was direct, meaning that the person was treated less favourably in the circumstances than a person who was not homeless, unemployed or a social security recipient would have been treated. In other cases, the discrimination was indirect, meaning that unreasonable requirements or conditions were placed upon the attainment of certain benefits or services which the homeless, the unemployed or social security recipients are less likely to be able to satisfy.
Jan Kenny of Hamilton Accommodation Program reports:
We come across so many examples of discrimination.
Two local accommodation providers will not take any clients that are associated with our [homelessness] program. Other accommodation providers ask if our clients are black or white – they are very reluctant to take Kooris.
Real estate agents demand higher bonds from social security recipients. No real estate agents accept a full Office of Housing bond – tenants must put in at least one week’s cash themselves. [18]
The underlying causes of homelessness are complex and varied and may include domestic violence, mental illness, substance or alcohol abuse, family fragmentation and poverty. Although the Act may prohibit discrimination on certain of these grounds (such as mental illness through the prohibition on discrimination on the ground of impairment), it is a person’s status as homeless, jobless or a social security recipient that is often the basis of discriminatory treatment. This is demonstrated by the following examples.
It is this organisation’s general experience that single women with children – whether they be victim’s of domestic violence or young homeless women who are pregnant or parenting – have great difficulty in obtaining private rental regardless of whether it is housing or caravan park accommodation. One particular central caravan park in Bendigo advised a client that they had accommodation available. As soon as the client mentioned that Emergency Accommodation Support Enterprise were working with her, they realised that she was homeless and a victim of domestic violence and advised her that they had made an error and had no vacancies. (Case Worker, Emergency Accommodation Support Enterprise, Loddon Campaspe Region)
Evan is a seasonal fruit picker. He receives a Disability Support Pension in connection with his mental illness. After returning to Melbourne from his seasonal employment, Evan obtained accommodation at a rooming house in Fitzroy. The Society of St Vincent de Paul undertook to pay rental amounts to the rooming house proprietor, upon invoice, until Evan obtained stable accommodation. About a week later, the rooming house proprietor bodily evicted Evan from the premises for ‘failure to pay rent’. St Vincent de Paul had never been invoiced. The proprietor refused to grant Evan access to his belongings, including compact discs and a leather jacket, which remained locked in his room. When Evan’s caseworker contacted the rooming house to formally complain, the proprietor apologised for the ‘mistake’ but stated that, unfortunately, Evan could not return as there were no longer any vacancies. He denied the existence of Evan’s belongings. (Philip Lynch, Coordinator, Homeless Persons’ Legal Clinic, Melbourne)
Many welfare agencies and community organisations report that the mere association of a person with certain support services can be a ground of discriminatory treatment.
A middle aged man approached a local backpacker accommodation facility in Warrnambool and enquired whether they had any vacancies. He was told yes, so he went to The Salvation Army Social Housing Service for financial assistance. He went back to the backpackers and handed over a Salvation Army cheque for his accommodation. When the proprietor saw the cheque he said to the man, ‘Sorry. We’ve just had a busload arrive and no longer have any vacancies.’ (Lindsay Stow, The Salvation Army Social Housing Service, Warrnambool)
Sometimes the discriminatory treatment suffered is not direct, but involves the imposition of conditions or requirement on access to accommodation which have a disproportionate impact on homeless persons.
The majority of my clients, living in transitional housing, are single parents with children. In the past six months, not one (out of 26) of these has been able to access a private rental.
Residential tenancy application forms, which require that a person provide a minimum 100 points made up of items such as past rent receipts, current car registration papers, references from previous landlords and the like explain why homeless persons do not obtain private rentals here.
Discrimination is rife here, but difficult to prove. Agents say it is the landlords who choose the tenants, but of course we know who produces the shortlist for the landlord to ‘choose’ from. (Harrison McIlroy, Family Support Worker, Family Support Services, Warrnambool)
The homeless, the unemployed and social security recipients are also subject to discriminatory treatment in the provision of goods and services. As the following case studies disclose, discriminatory treatment is widespread in relation to access to and use of public spaces and amenities; the behaviour of law enforcement officers; and treatment by traders.
Homeless people are discriminated against because of their status and appearance. Anthony is homeless and has a mental illness. He is often asked to leave services due to his appearance, which is perceived to be threatening and upsetting to other service users. Services that discriminate against people because of their appearance include Centrelink, hospitals, police, schools, banks and boarding houses.[19] (Anne Emery, Community Development Worker, St Mary’s House of Welcome, Melbourne)
In November 2001, David, an elderly homeless man, was issued with an infringement notice for drinking intoxicating liquor at St Paul’s Cathedral in Melbourne. He had previously been denied entry to Young & Jackson’s on the basis of his dishevelled appearance. ‘We already have enough trouble with the black cunts in the city and don’t need any more trouble from people like you,’ he was told by the police officer. David was with some Aboriginal friends at the time. He was directed by the officer to get into a Police Divisional Van. Although he was not placed under arrest, David feared the use of force and so complied with the officer’s instructions. The officer did not, at any stage, explain the basis on which David was being detained or the purpose of his detention. David was not told where he was to be taken. The doors of the Divisional Van were locked behind him. He was detained for approximately 40 minutes. The Divisional Van was moving for most of this time. When the Divisional Van stopped and the doors were unlocked, David disembarked and realised that he was in Fitzroy. ‘You’d better not come back into the city,’ the police officer threatened. David felt intimidated and scared by this statement. As a Big Issue vendor, he relies on a part-time job in the city to supplement income received from a Disability Support Pension. As a result of the actions of the police, David suffered deprivation of liberty, injury to feelings, emotional distress and, perhaps most importantly, a loss of dignity. He decided not to pursue legal action against the police for fear of victimisation. (Philip Lynch, Coordinator, Homeless Persons’ Legal Clinic, Melbourne)
As disclosed by the case studies, discrimination experienced by the homeless, the unemployed and social security recipients further marginalises and disenfranchises already vulnerable and disadvantaged individuals and groups. Yet, notwithstanding the prevalence of such discrimination and the impacts thereof, such behaviour is lawful in Victoria. This article proposes that the Equal Opportunity Act be amended to include ‘social status’ as an attribute on the basis of which discrimination is prohibited.
Social status should be defined in the Equal Opportunity Act to include a person's status of being:
(a) homeless;(b) unemployed; or
(c) a recipient of social security payments.[20]
As discussed above, the definition of ‘homeless’ utilised in Commonwealth legislation should be included in the Equal Opportunity Act. That is,
[a] person is taken to be ‘homeless’ if he or she has inadequate access to safe and secure housing. A person is taken to have inadequate access to safe and secure housing if the only housing to which a person has access:
(a) damages, or is likely to damage, the person’s health; or
(b) threatens the person’s safety; or
(c) marginalises the person through failing to provide access to:
(i) adequate personal amenities; or(d) places the person in circumstances which threaten or adversely affect the adequacy, safety, security and affordability of that housing.[21]
(ii) the economic or social supports that a home normally affords; or
‘Unemployed’ should be defined in the Equal Opportunity Act to mean, in relation to a person, not having a job or being unable to earn a sufficient livelihood.
‘Recipient of social security payments’ should be defined to mean ‘being a recipient of a payment, benefit, pension or allowance under the Social Security Act 1991 (Cth).’
As discussed below, the proposed amendments and reforms are consistent with:
(a) public policy;(b) international human rights law; and
(c) domestic anti-discrimination laws in progressive jurisdictions such as Canada and New Zealand.
Such amendments and reforms would also serve important educative and deterrent functions. They reflect respect for human dignity and fundamental human rights. The marginalised, the less ‘successful’ and less ‘able’ members of our community are those most in need of the protection of anti-discrimination laws in order to secure their right to enjoyment of basic human rights. As Brennan J recognised in Waters v Public Transport Corporation:
A measure of the civilisation of a society is the extent to which it provides for the needs of the disabled (and of other minorities) and protects them from adverse and unjust discrimination which offends their human dignity.[22]
As discussed below, public policy, international human rights norms and domestic anti-discrimination legislation in progressive common law jurisdictions prohibit discrimination on the basis of ‘social status’.
The commonality of experience and of discriminations of homeless persons makes homeless persons a ‘social group’ and ‘homelessness’ a ‘social status’.[23]
The experience of homelessness produces a specific and pervasive set of discriminations, including stigmatisation, socio-economic marginalisation, violations of rights, negative stereotyping, lack of mobility and the denial of autonomy or authority.[24] As the Canadian Bar Association has argued:
People who live in poverty are subject to widespread discrimination. These people are routinely denied housing and access to services and they are reviled in popular culture as being morally inferior. People who live in poverty are not even on the political agenda. They are marginalised to the point of invisibility. This is precisely the kind of social disadvantage that human rights legislation is meant to alleviate.[25]
Discriminatory treatment of homeless persons is rarely recognised or acknowledged by the media, lobby groups, politicians or policy-makers. Homeless people generally lack the level of socio-economic enfranchisement necessary to command attention in the political arena, or even to shape definitions or understandings of themselves or their experiences.[26]
Homelessness has many causes. A number of those causes are themselves attributes within the meaning of section 6 of the Act. So, a homeless person suffering mental illness may be unlawfully discriminated against on the basis of that mental illness. However, the discrimination experienced by homeless persons is referable not only to the characteristics of component groups of the homeless population (such as the mental health of persons suffering from mental illness, the disability of persons suffering from drug or alcohol addictions, the gender and age of women and children fleeing domestic violence, or the unemployed status and reliance on social security payments of many homeless people), but to the very status of those persons as ‘homeless’.
Like homelessness, ‘unemployment’ is a condition affecting a discrete and identifiable group of people.
According to the Australian Bureau of Statistics, in November 2001 there were 161 800 unemployed people in Victoria.[27] However, this estimate only takes into account those persons aged 15 years and over who were not employed and were actively looking for and available for work.
As the New Zealand Human Rights Commission has identified, the unemployed constitute a broader range of people than those who are unable to find, but are seeking, paid work. It includes people who are unable to earn a sufficient livelihood.[28] In addition, the category of ‘unemployed persons’ includes persons not employed in paid work for various reasons, including illness, disability, family responsibilities, retirement or study.
There is enormous value and importance placed on work in Australian society. Employment imparts a sense of identity, self worth and social connection. Conversely, the personal and social costs of unemployment include severe financial hardship and poverty, debt, homelessness and housing stress, family fragmentation and breakdown, boredom, alienation, shame and stigma, increased social isolation, crime, erosion of confidence and self-esteem, and the atrophying of work skills and ill health.[29]
The social stigma and prejudice associated with unemployment is linked to the emphasis in our society on the importance of paid work and leads to negative stereotyping and discrimination against unemployed people. Such discrimination is evidenced in the case studies in this submission. The recognition of unemployment as an attribute under section 6 of the Act would help to work against such discrimination.
Receipt of social security payments is an attribute that is connected to, but distinct from, homelessness and unemployment.
While many people are discriminated against, directly or indirectly, for not having a ‘real job’ (including homemakers and students) there is also a significant amount of negative stereotyping specifically related to ‘dole bludgers’ and those perceived to live off ‘government handouts’. This is so despite the fact that the right to receive welfare assistance is recognised under the International Covenant on Economic, Social and Cultural Rights, and that Australia has a long history of providing a strong welfare safety-net for citizens.
Discrimination against people who rely on social security payments manifests itself in the public arena most commonly in the provision of accommodation, and in the provision of goods and services, particularly banking services. Negative stereotypes regarding the ability of social security recipients to meet rent or loan repayments are often relied upon to deny people the opportunity to secure a home or finance. Such denials of service are not always based on relevant financial information, but on preconceived or imputed notions about the ability to pay, and general trustworthiness of people in receipt of social security payments. The recognition of receipt of social security payments under section 6 of the Act would help to work against such discrimination.
There is a frequent intersection between homelessness, unemployment, receipt of social security payments and other attributes protected from discriminatory conduct under the Act. For example, many homeless people also experience discrimination on the basis of race, disability, gender, sexual orientation and family status. The recognition of social status as a ground of discrimination would not lessen or invalidate claims based on other forms of discrimination. Instead, it would advance and enrich the principle of non-discrimination by recognising the complex nature of the experiences of homeless and unemployed people.[30]
Without protection on the basis of social status, anti-discrimination legislation is unable to truly address the complex experiences of these profoundly disadvantaged groups. The evidence of welfare organisations suggests that the existing grounds in the Act do not provide sufficient or consistent protection for homeless or unemployed people. In Canada, it has been recognised that the inclusion of social status as a prohibited ground of discrimination advances a more sophisticated intersectional approach to discrimination.[31]
It is for this reason that this article recommends that three additional grounds, namely homelessness, unemployment, and being a recipient of social security payments be included in the Act under an umbrella attribute of ‘social status’.
As discussed in this article, receipt of social security payments and unemployment are common elements of homelessness, but do not of themselves adequately encapsulate the experiences of the treatment afforded to many homeless persons. Similarly, the proposed income-source related grounds need to include references both to employment status and to status as a recipient of social security payments. The inclusion of only, for example, ‘being a recipient of social security payments’ as a prohibited ground under the Act could make protection capricious – available one week, but not the next, depending on the income source of the individual at the time of suffering the discrimination. Many people would only be protected temporarily while receiving social security payments, and would lose that protection if their source of income changed, notwithstanding that the disadvantages and discriminatory treatment they suffer might remain the same.
In our view, the introduction of the ground of ‘social status’, incorporating homelessness, unemployment and receipt of social security payments would provide the broad protection required.
In addition to providing protection from discriminatory and unfair treatment, reform of the Act in the manner proposed would have the further effect of empowering a disadvantaged group in our society and also increasing recognition and understanding of the plight of homeless and unemployed people. This broader educative objective of reform accords with the overriding objective of the Act ‘to promote recognition and acceptance of everyone's right to equality of opportunity.’[32] In addition, the educative function of the proposed amendments would assist in realising other measures undertaken by both governmental and private institutions and organisations. As the Canadian Human Rights Act Review Panel stated in relation to the introduction of the ground of ‘social condition’:
At the very least, the addition of this ground would ensure there is a means to challenge stereotypes about the poor in the policies of private and public institutions. We feel that this ground would perform an important educational function. It sends out a signal about assumptions and stereotypes to be taken into account by policy makers. ... Perhaps the addition of this ground will spark more ... activity. We hope so.[33]
The Chief Commissioner of the Canadian Human Rights Commission, Falardeau-Ramsay, took this idea further, noting that,
...it would give recognition to the idea that differences in economic status are as much a source of inequality in our society as race, gender or disability...[P]oor Canadians live daily with social stigma and negative stereotypes and face prejudice similar to those who are discriminated against on other grounds enumerated in the Canadian Human Rights Act...adding ‘social condition’ to the CHRA would send the message to Canadians that prejudice against people who are poor is as unacceptable in our society as prejudice against people who are black or aboriginal or disabled or female.[34]
The anticipated educative effects of the proposed amendments are of central importance to the many individuals and organisations consulted for the purpose of this article. As the Support and Accommodation Rights Services states:
Prohibiting discrimination and harassment on the basis of social status would send a clear message to the community about unacceptable attitudes and behaviour in this regard. By legislating social status as a protected attribute under the Act it is also hoped that homelessness will be more recognised as a community issue requiring a community response.[35]
Recognition of social status as a ground of discrimination would have a powerful educative effect and would function as a deterrent to discriminatory treatment. It would enable unjust treatment of many disadvantaged persons – much of which is not identified as discriminatory – to be recognised, named and addressed. It would, moreover, create a more complex understanding of the common experiential framework of homelessness and joblessness and the need for measures to address the underlying causes of such experiences. In this respect, it is important to note that the introduction of new prohibited grounds into the Act in the manner proposed is only one element in a broader strategy necessary to eliminate discrimination against, and improve the living standards of and prospects for, Victoria's homeless and unemployed populations. Litigation on the ground of ‘social status’ should not displace other important measures to combat poverty through activity aimed at improving conditions of the socially and economically disadvantaged. The organisations consulted for this article are involved in many and various programs and projects in this regard.
The inclusion of ‘social status’ as a prohibited ground of discrimination is not intended to, and would not have the effect of, vesting persons of a designated social status with additional rights. The reforms are intended to rectify existing injustices and to protect the exercise of rights from discriminatory behaviours rather than to create additional rights. They are intended to ensure that all persons are subject to the equal protection of the law and that homeless persons, unemployed persons and recipients of social security payments can compete on a rational basis in the market for goods, services and accommodation.
In this respect, it is important to differentiate between a valid justification for the refusal of a loan or the rejection of a tenancy application and a denial based on stereotypes about the homeless or unemployed.
It is acknowledged that people and businesses providing accommodation or other goods or services are concerned to retain the right to differentiate between customers in order to ensure the continued viability of their business. For example, it is acknowledged that a bank has a legitimate right to perform a credit check on a potential customer before issuing a credit card, or that a landlord can require a prospective tenant to pay a bond before entering into a lease.
However, too often stereotypes about a person's social status are relied upon to unjustly discriminate. Preconceived notions based on a person's social status are not legitimate grounds for making judgments about financial capacity. The proposed amendments would not inhibit the right of Victorian businesses to make legitimate decisions on the basis of objective, unbiased information about a person's financial situation. However, where such decisions were taken, for example, on the basis of prejudices against, or imputations in respect of, people in receipt of social security payments, or against homeless or unemployed people, the Act would provide a basis for redress.
The New Zealand case of V v M & C,[36] involving discrimination on the basis of employment status, highlights the difference between decision making on valid, objective grounds and decision making on the basis of preconceived notions and stereotypes. In that case, a woman made a complaint to the New Zealand Human Rights Commission that she had been discriminated against by a bank because of her employment status. The woman was receiving accident compensation payments as her main source of income. She was refused a home loan from her bank unless she could provide a letter from the Accident Rehabilitation and Compensation Insurance Corporation detailing medical information about the woman's condition and stating that her disability was ‘permanent’ and ‘non-reviewable’. The bank told the woman that without proof that the complainant had a permanent disability, it could not be satisfied that her income was permanent and guaranteed.
The Human Rights Commission found that the complainant was being directly discriminated against by the bank. It noted that the bank had already established that the woman met the required income threshold, and it was not until the bank manager discovered that the complainant was in receipt of Accident Compensation Corporation weekly compensation that he asked her for evidence of the permanence of her disability, and therefore her income. There was no evidence to indicate that other home loan applicants were required to show proof of permanency of income, and the Commission acknowledged that, in a time where there is no guarantee of lifetime employment, many people would be unable to satisfy such a requirement.
This case is an example of a decision made on the basis of prejudice, not on the basis of an unbiased assessment about the customer's financial capacity and the bank's potential exposure.
The case studies provided by community and welfare organisations consulted for this article indicate that discriminatory treatment such as that referred to above is rife in Victoria. It is these cases which would be caught by the proposed reforms to the Act. The purpose of this article’s recommendations is to ensure that all persons are equal before and under the law and have the same chance to benefit when subject to the same policies.
The norm of non-discrimination on the ground of social origin or status is entrenched in international treaty law. It may well constitute a non-derogable principle of customary international law.[37]
The obligation of all Australian governments to guarantee, by law, equal and effective protection against discrimination, including on the ground of social origin or status, is set out in article 26 of the International Covenant on Civil and Political Rights (ICCPR):
All persons are equal before the law and are entitled without discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.[38]
This article is a free-standing non-discrimination provision that is not confined to the enjoyment of rights in the ICCPR, but extends to all human rights and fundamental freedoms, including economic and social rights such as the right to an adequate standard of living and social security.[39]
Although ‘discrimination’ is not defined in the ICCPR, the United Nations Human Rights Committee has defined it as:
... any distinction, exclusion, restriction or preference ... which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.[40]
Following ratification, the ICCPR entered into force for Australia on 13 August 1980. Australia’s obligation to protect and promote the norm of non-discrimination is set out in article 2(1) of the ICCPR:
Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Where domestic law does not already provide for the prohibition of, and effective remedies against, discriminatory behaviour, articles 2(2) and 2(3) of the ICCPR require State Parties to take all necessary steps to adopt such legislative measures as may be required to give effect to the rights enunciated under the ICCPR and to ensure that affected individuals have their rights determined by a competent judicial, administrative or legislative authority empowered to enforce effective remedies.[41] That is, the obligations under both article 2(2) and article 26 are immediately applicable and every State Party is expected to have fully implemented them.
Australia is also a party to the International Covenant on Economic, Social and Cultural Rights (ICESCR).[42] The ICESCR promotes recognition of people's cultural, economic and social rights. Article 9 of the ICESCR recognises the right of everyone to receive social security. Article 11 recognises the right to an adequate standard of living, which includes adequate housing. Article 2 of the ICESCR provides:
(1) Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.(2) The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
The United Nations Committee on Economic, Social and Cultural Rights has recommended to several States Parties to the ICESCR that these rights be protected by including social and economic rights in domestic human rights legislation to prevent discrimination against homeless and impoverished people.[43] Although the implementation obligations under article 2(1) of the ICESCR are progressive, rather than immediate as in the ICCPR, the United Nations Committee on Economic, Social and Cultural Rights has emphasised that many aspects of the rights enumerated in the ICESCR are to be immediately realised, foremost among them being the right to enjoy ICESCR rights without discrimination.[44] The Committee has also stressed that the ICESCR will not be fully implemented in the absence of ‘effective remedies’, and has noted that in relation to guaranteeing the non-discriminatory enjoyment of ICESCR right, ‘the provision of some form of judicial remedy would seem indispensible’.[45]
The United Nations Committee on Economic, Social and Cultural Rights has been critical of Australia’s failure to fully implement the ICESCR and has said:
The Committee strongly recommends that the State party incorporate the Covenant in its legislation, in order to ensure the applicability of the provisions of the Covenant in the domestic courts.[46]
The norm of non-discrimination on the ground of social origin or status may also constitute a peremptory principle of customary international law.[47] In the Namibia Case, Ammoun J of the International Court of Justice stated:
One right which must be considered a pre-existing binding customary norm which the Universal Declaration of Human Rights codified is the right to equality.[48]
Under the terms of international treaty law and customary international law, Australia has an obligation to prohibit, and provide effective remedies for, any discriminatory or less favourable treatment on the ground of social origin or other status. Moreover, although Australia has not implemented the ICCPR or the ICESCR as a part of its domestic law or incorporated customary international law as justiciable in domestic courts,[49] international human rights law is a legitimate and important influence on the development, interpretation and application of domestic law.[50]
Victoria has a role to play in discharging Australia’s obligations under international human rights law to prohibit discrimination on the ground of social status. It could do so by adding ‘social status’ as a prohibited ground of discrimination under the Equal Opportunity Act.
The reforms proposed in this article are reflective of similar protections currently available in a number of overseas jurisdictions. These overseas protections highlight the positive effect that the prohibition of discrimination against the homeless, unemployed and recipients of social security benefits can have in ensuring equal access to legal protection and promoting social awareness.
In New Zealand, the Human Rights Act 1993 (NZ) includes ‘employment status’ as a prohibited ground of discrimination.
‘Employment status’ is defined in the Act as ‘being unemployed, receiving an income support benefit or receiving accident compensation payments.’ The term ‘being unemployed’ is not defined further. However, in a report by the Human Rights Commission to the New Zealand Minister of Justice, the Commission stated that it preferred a broad interpretation of ‘unemployment’ as having no occupation, disengaged, at leisure or temporarily out of work. The report states:
There seems little doubt that ‘being unemployed’ should be broadly interpreted to refer to not just those who are temporarily unable to find paid work, but to those who are not gainfully employed for a raft of reasons including illness, disability, family responsibilities, retirement and more.[51]
Discrimination on the basis of employment status is unlawful in any of the areas of public life, including the provision of accommodation, goods or services and employment.
The ground of ‘employment status’ has been successfully relied on by many applicants to the New Zealand Human Rights Commission.[52] For example, in S v B Ltd & E Ltd[53] the complainant, who received social security payments, purchased a mobile phone. In order to be connected to the cellular telephone network run by E Ltd, customers with income under $18,000 were required to provide a guarantor. B Ltd was a retailer of the mobile phone network. The complainant had an income of slightly more than the threshold, but was still asked to provide a guarantee by an employee of B Ltd, because she received a social security benefit. Her complaint of discrimination was upheld against B Ltd, as they were found to have treated her differently because she was in receipt of social security payments.
In addition to ensuring equal access to goods and services, the provisions in New Zealand have been used to ensure effective and equal access to essential health care. Thus, in K v J[54] the complainant, a social security beneficiary, made a complaint that her dentist refused to treat her when he was told that payment would be met by the Department of Social Welfare. The evidence was that the dentist refused treatment because he believed that the Department of Social Welfare should not have to pay for what he considered to be non-urgent dental work. K subsequently went to another dentist, who noted that she had evidence of acute toothache. The Human Rights Commission found that the dentist had discriminated against K because of her beneficiary status, and had treated her rudely and dismissively.
Article 15(1) of the Canadian Charter of Rights and Freedoms provides that:
Every individual is equal before and under the law and has the right to the equal protection of the law without discrimination.[55]
Article 15(1) of the Charter lists a number of prohibited grounds of discrimination, but such grounds are not exhaustive. Thus, at a federal level, there is a guarantee of freedom from discrimination in Canada.
The provinces in Canada provide varying degrees of protection for people who are in receipt of social security assistance, unemployed, homeless or poor.
Discrimination on the basis of ‘source of income’ is prohibited in the legislation of Nova Scotia, Alberta, British Columbia, Manitoba, Prince Edward Island and the Yukon. Ontario and Saskatchewan use the term ‘receipt of public assistance’.[56] These grounds do not always apply to all areas covered by the legislation. For example, in British Columbia and Ontario, the prohibition only applies to housing and accommodation.
The province of Québec has enacted human rights legislation prohibiting discrimination on the ground of ‘social condition’. Article 10 of the Québec Charter of Human Rights and Freedoms provides that:
Every person has a right to full and equal recognition and exercise of his [sic] human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.[57]
There is no statutory definition of ‘social condition’ in the Québec Charter. The Québec Human Rights Tribunal defined the term in the Gauthier Case as follows:
The definition of ‘social condition’ contains an objective component. A person's standing in society is often determined by his or her occupation, income or education level, or family background. It also has a subjective component, associated with the perceptions that are drawn from these various objective points of reference. A plaintiff need not prove that all of these factors influenced the decision to exclude. It will, however, be necessary to show that, as a result of one of more of these factors, the plaintiff can be regarded as part of a socially identifiable group and that it is in this context that the discrimination occurred.[58]
In the Gauthier Case, a landlord was found to have denied accommodation to a welfare recipient irrespective of his ability to pay the monthly rent. The Tribunal ruled that the landlord, in presuming that the complainant would not be a dependable tenant capable of paying the rent monthly, discriminated against him on the basis of social condition.
In another case, a credit union was found to have discriminated against the complainant on the basis of social condition when it failed to consider her loan application. The complainant, a single mother of two children, was a recipient of social security payments. Evidence showed that the complainant had sufficient means to obtain a mortgage, but was refused when the institution found out she was a welfare recipient. The Tribunal held that a person's social condition could be temporary. The Tribunal further held that the fact that the complainant was only temporarily receiving public assistance was sufficient to constitute ‘social condition’.[59]
There has been considerable public discussion in Canada about the introduction of the ground of ‘social condition’ into other provincial and federal anti-discrimination legislation, and in particular into the Canadian Human Rights Act.[60]
In June 1998, the Canadian Senate passed a bill to add ‘social condition’ as a prohibited ground of discrimination in sections 2 and 3(1) of the Canadian Human Rights Act. The bill received its first reading in the House of Commons on 19 October 1998, but was subsequently defeated. In April 1999, the Canadian Justice Minister announced the appointment of an independent panel, the Canadian Human Rights Act Review Panel, to consider, among other things, whether ‘social condition’ should be added to the Canadian Human Rights Act as a prohibited ground of discrimination.
The Canadian Human Rights Act Review Panel recommended that ‘social condition’ be added to the federal legislation. The Panel recommended that the ground be defined in the Act in a manner similar to the Québec definition. The Panel's Report stated that ‘we believe it is essential to protect the most destitute in Canadian society against discrimination.’[61]
In December 1998, the United Nations Committee on Economic, Social and Cultural Rights made a number of recommendations to the Canadian Government as to how it could better comply with its obligations under the ICESCR. Recommendation 51 states:
The Committee again urges federal, provincial and territorial governments to expand protection in human rights legislation to include social and economic rights and to protect poor people in all jurisdictions from discrimination because of social or economic status.[62]
The recommended reforms to the Canadian Human Rights Act have yet to be introduced.
Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms[63] contains a prohibition on discrimination, including discrimination on the grounds of property or other status. It provides that:
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
All Member States of the European Union are signatories to the ECHR.
The 12th Protocol to the ECHR, contains a more general prohibition of discrimination in article 1 in the following terms:
The enjoyment of any rights set forth by law shall be secured without discrimination on any grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. [64]
This Protocol was opened for signature in April 2000 and has been signed by 27 Member States and ratified by two Member States. Ten ratifications are required before it enters into force. The Protocol was drafted to respond to the fact that Article 14 of the ECHR does not contain an independent prohibition on discrimination in the application of legal rights (that is, it prohibits discrimination only with regard to the ‘enjoyment to the rights and freedoms’ set forth in the Convention).
The lists of grounds of non-discrimination in Article 14 of the ECHR and Article 1 of the 12th Protocol are non-exhaustive.
In the United Kingdom, parliament enacted the Human Rights Act 1998 (UK) to give legislative effect to Articles 2 to 12 and, most relevantly, Article 14 of the ECHR.
Section 2 of the Human Rights Act incorporates Article 14 of the ECHR which, as discussed above, guarantees a right to freedom from discrimination on any ground, including social status, in the enjoyment of certain rights and freedoms.
Discrimination against people on the ground of their social status as a homeless person, an unemployed person or a recipient of social security payments is widespread in Victoria in many areas of public and private life, particularly in relation to accommodation and the provision of goods and services.
Such discrimination has a deleterious impact on the individuals concerned and the community as a whole. In many cases, discriminatory treatment exacerbates underlying causes of marginalisation and disadvantage.
The Equal Opportunity Act 1995 (Vic) does not provide any protection from, or redress in relation to, discriminatory treatment on the ground of social status. Reform of the Equal Opportunity Act by adding ‘social status’ as a prohibited ground of discrimination is imperative to ensure that some of the most vulnerable members of our community are protected from unfair and unjust treatment. Reform is also necessary to ensure compliance with international human rights law, overseas developments and progressive public policy.
There is an urgent need for greater protection from discrimination for the homeless and disadvantaged in our community. As Bernie Durkin of Eastern Access Community Health writes:
We cannot legislate to make people ‘good’, but we can afford the vulnerable the maximum legal protection that our community allows. This reform is well overdue, and it is my belief that the whole community, if aware, would demand its redress. I cannot think of a defensible reason for avoiding it.[65]
Amendment of the Equal Opportunity Act to include ‘social status’ as a protected attribute is imperative to ensure recognition of the right of all Victorians, including the homeless, the jobless and recipients of social security payments, to live free from discrimination.
[∗] LLB (Hons) (Melb). Philip Lynch is the Coordinator of the Homeless Persons’ Legal Clinic run by the Public Interest Law Clearing House and a part-time lawyer with Allens Arthur Robinson in Melbourne.
[1] Services are currently provided at Melbourne Citymission Western, Flagstaff Crisis Accommodation (a crisis accommodation facility operated by The Salvation Army), Ozanam House (a crisis accommodation facility operated by the St Vincent de Paul Society), Credo Café (an open lunch program operated by Urban Seed), St Peter’s Eastern Hill (an open breakfast program operated by Anglicare) and the offices of The Big Issue (an independent current affairs magazine sold on the streets by people who are homeless or long-term unemployed).
[2] Robert Frost, ‘The Death of the Hired Man’ (1914).
[3] See, for example, Supported Accommodation and Assistance Act 1994 (Cth) s 4.
[4] Sue Casey, ‘Single Women and Homelessness: Which Way is Home?’ (2002) Catholic Commission for Justice Development and Peace Occasional Paper No 11, 8.
[5] Ian Charles, ‘A Roof Over Your Head Doesn’t Guarantee the Safety of a Home’ (2002) 2 Urban Seed 2.
[6] Chris Chamberlain and David McKenzie, ‘Understanding Contemporary Homelessness: Issues of Definition and Meaning’ (1992) 27 Australian Journal of Social Issues 274.
[7] Chris Chamberlain, Counting the Homeless: Implications for Policy Development (Australian Bureau of Statistics: Canberra, 1999).
[8] Chris Chamberlain, Counting the Homeless: Implications for Policy Development (Australian Bureau of Statistics: Canberra, 1999) 9-11, 49.
[9] Chris Chamberlain, Counting the Homeless: Implications for Policy Development (Australian Bureau of Statistics: Canberra, 1999) 9-11, 49.
[10] Chris Chamberlain, Counting the Homeless: Implications for Policy Development (Australian Bureau of Statistics: Canberra, 1999) 1, 9-11, 13, 49.
[11] United Nations Committee on Economic, Social and Cultural Rights, General Comment No 4 in Relation to the Right to Adequate Housing, UN Doc E/CN4/1991/4 (12 December 1991).
[12] Chris Chamberlain, Counting the Homeless: Implications for Policy Development (Australian Bureau of Statistics: Canberra, 1999).
[13] Letter from St Vincent de Paul Society to the Homeless Persons’ Legal Clinic dated 12 August 2002.
[14] Letter from St Mary’s House of Welcome to the Homeless Persons’ Legal Clinic dated 20 August 2002.
[15] See, for example, Racial Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth), Disability Discrimination Act 1992 (Cth) and the Human Rights and Equal Opportunity Commission Act 1986 (Cth). Of particular note are section 11(1)(f) and Division 3, Part 2 of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), which give the Commonwealth Human Rights and Equal Opportunity Commission the power to ‘inquire into any act or practice that may be inconsistent with or contrary to any human right’. ‘Human rights’ is defined in section 3 to mean ‘the rights and freedoms recognised in the Covenant, declared by the Declarations or recognised or declared by any relevant international instrument.’ However, the Commission is not given the power to hand down a legally-binding determination in these matters, and there is no provision for parties to bring legal proceedings. There is a strong argument for legislative reform of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) to provide broader protection against acts or practice contrary to human rights. A detailed examination of this issue is beyond the scope of this article.
[16] Letter from the Jesuit Social Services to the Homeless Persons’ Legal Clinic dated 22 August 2002.
[17] Letter from Eastern Access Community Health to the Homeless Persons’ Legal Clinic dated 12 August 2002.
[18] It is recognised that race is already included as a prohibited ground of discrimination in the Act. However, adopting ‘social status’ as a prohibited ground of discrimination would provide a broader basis for a person to make a discrimination complaint, and would increase the likelihood of satisfying the evidentiary burden that prohibited discrimination has occurred.
[19] Although ‘impairment’ is a prohibited ground of discrimination under section 6 of the Act, this does not often effectively prevent discrimination against persons such as Anthony given the difficulties of establishing a nexus between the less favourable treatment and the mental illness. In cases such as Anthony’s, social status is likely to be both a more evident attribute than mental illness and the attribute on which the less favourable treatment is predicated.
[20] The authors recognise that much unwarranted discrimination occurs on the basis of other aspects of ‘social status’ such as class, employment as professional or non-professional, domicile or accent. However, the recommendations in this article are intended to provide a framework for reform that is both politically expedient and possible, and that reflects the approach taken in the Act to expressly identify and define each attribute upon which discrimination is attributed.
[21] Supported Accommodation Assistance Act 1994 (Cth) s 4.
[22] [1991] HCA 49; (1992) 173 CLR 349. It is acknowledged that anti-discrimination law does not operate to eliminate discriminatory conduct. However, as discussed below, the educative and symbolic importance of such legislation is significant.
[23] The classification of homeless persons as a ‘social group’ and of ‘homelessness’ as a social status has been recognised in the United States: see, for example, Pottinger v City of Miami, 810 F Supp 1551, 1578 (SD Fla 1992).
[24] ‘Finding a Place for the Jobless in Discrimination Theory’ (1997) 110 Harvard Law Review 1609, 1616.
[25] Canadian Bar Association (British Columbia Branch), Human Rights for the Next Millennium (1998).
[26] ‘Finding a Place for the Jobless in Discrimination Theory’ (1997) 110 Harvard Law Review 1609, 1618.
[27] Australian Bureau of Statistics, Labour Force, Victoria (November 2001) 6202.2. For the purpose of this survey, ‘unemployed’ was defined to mean persons over 15 years who were not employed in the reference week and who were actively looking for full-time or part-time work.
[28] The definition of ‘unemployed’ for the purpose of the proposed reforms includes ‘a person who is unable to earn a sufficient livelihood.’ This would include people who are underemployed.
[29]Alison McClelland and Fiona Macdonald, ‘The Social Consequences of Unemployment’ (Business Council of Australia, July 1998) <http://www.bsl.org.au/pdfs/social.pdf> .
[30] ‘Finding a Place for the Jobless in Discrimination Theory’ (1997) 110 Harvard Law Review 1609, 1623.
[31] A Wayne Mackay, Tina Piper and Natasha Kim, ‘Social Condition as a Prohibited Ground of Discrimination under the Canadian Human Rights Act’ <http://canada.justice.gc.ca/chra/en/socond2.html> .
[32] Equal Opportunity Act 1995 (Vic) s 3(a).
[33] Canadian Human Rights Act Review Panel, Promoting Equality: A New Vision (23 June 2000) <http://canada.justice.gc.ca/chra/en/index.htm> 113.
[34] Michelle Falardeau-Ramsay, Chief Commissioner, Canadian Human Rights Commission, Proceedings of the Standing Committee on Legal and Constitutional Affairs, 1st Session, Parliament (27 May 1998).
[35] Letter from Support and Accommodation Rights Services to the Homeless Persons’ Legal Clinic dated 19 August 2002.
[36] C384/97.
[37] See generally, Peter Bailey and Annemarie Devereux, ‘The Operation of Anti-Discrimination Laws in Australia’ in David Kinley (ed), Human Rights in Australian Law: Principles, Practice and Potential (The Federation Press: Sydney, 1998) 292-318.
[38] International Covenant on Civil and Political Rights, 19 December 1966, (1980) ATS 23 (entered into force generally 23 March 1976 and for Australia 13 August 1980). See also article 7 of the Universal Declaration of Human Rights (entered into force generally and for Australia 10 December 1948).
[39] See, for example, Broeks v The Netherlands (172/84) and Zwaan de Vries v The Netherlands (182/84), in which the United Nations Human Rights Committee found article 26 to be applicable to complaints concerning discrimination in the field of social security.
[40] Human Rights Committee, General Comment No 18: Non-Discrimination, HRI/GEN/1/25 (1989). This definition is based on the definitions contained in article 1 of the Convention on the Elimination of All Forms of Racial Discrimination (1965) and article 1 of the Convention on the Elimination of All Forms of Discrimination Against Women (1975).
[41] See also article 2(2) of the International Covenant on Economic, Social and Cultural Rights, 19 December 1966, (1976) ATS 5 (entered into force generally 3 January 1976 and for Australia 10 March 1976).
[42] International Covenant on Economic Social and Cultural Political Rights, 19 December 1966, (1976) ATS 5 (entered into force generally 3 January 1976 and for Australia 10 March 1976).
[43] See for example, Committee on Economic, Social and Cultural Rights, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Canada (10 December 1998) paragraph 51. See also Committee on Economic, Social and Cultural Rights, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Ireland (14 May 1999) paragraph 22, in which the Committee recommended that: ‘the State Party incorporate justiciable economic, social and cultural rights in the proposed amendment to the Constitution.’
[44] Committee on Economic, Social and Cultural Rights, General Comment No 3, paragraph 5.
[45] Committee on Economic, Social and Cultural Rights, General Comment No 9, paragraph 9. See further Dianne Otto and David Wiseman, ‘In Search of “Effective Remedies”: Applying the International Covenant on Economic, Social and Cultural Rights in Australia’ [2001] AUJlHRights 2; (2001) 7 Australian Journal of Human Rights 5.
[46] Committee on Economic, Social and Cultural Rights, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Australia (1 September 2000) paragraph 24.
[47] See, for example, K Parker and L B Neylon, ‘Jus Cogens: Compelling the Law of Human Rights’ (1989) 12 Hastings International and Comparative Law Review 411, 441-2.
[48] Namibia Case (1971) ICJ Rep 16. See also Barcelona Traction, Light and Power Company Limited Case (Belgium v Spain) Second Phase (1970) ICJ Rep 3, 34.
[49] Excepting the limited powers granted to the Human Rights and Equal Opportunity Commission to inquire into acts of practices inconsistent with any human right, as discussed above.
[50] See generally, Mabo v Commonwealth [1992] HCA 23; (1992) 175 CLR 1, 42 (Mason CJ, Brennan and McHugh JJ). See also Kartinyeri v Commonwealth [1998] HCA 22 (1 April 1998) [166-7] (Kirby J).
[51] Human Rights Commission, Consistency 2000 Report (2000) Part C, 2.
[52] See generally, Karen Davis, Discrimination on the Grounds of Employment Status- A Report Prepared for the Human Rights Commission (July 2000).
[53] C279/66
[54] 11/12/97
[55] Canadian Charter of Rights and Freedoms, being Schedule B to the Canadian Act 1982 (UK) 1982, c 11.
[56] Canadian Human Rights Act Review Panel, Promoting Equality: A New Vision (23 June 2000) <http://canada.justice.gc.ca/chra/en/index.html> .
[57] Québec Charter of Human Rights and Freedoms article 10.
[58] Commission Des Droits De La Personne Du Quebec v Gauthier, (1993-11-15) QCTDP 500-53-000024-925.
[59] D'Aoust v Vallieres (1993) 19 CHRR D/322.
[60] See, for example, Bruce Porter, ‘ReWriting the Charter at 20 or Reading it Right: The Challenge of Poverty and Homelessness in Canada’ (Plenary Presentation, Ottawa Bar Association, April 2001); A Wayne Mackay, Tina Piper and Natasha Kim, 'Social Condition as a Prohibited Ground of Discrimination Under the Canadian Human Rights Act’ <http://canada.justice.gc.ca/chra/en/research.html> Richard Shillington, ‘Adding Social Condition to the Canadian Human Rights Act: Some Issues’ <http://canada.justice.gc.ca/chra/en/research.html> Lucie Lamarche, ‘Social Condition as a Prohibited Ground of Discrimination in Human Rights Legislation: Review of the Quebec Charter of Human Rights and Freedoms’ (November 1999) <http://canada.justice.gc.ca/chra/en/research.html> Ontario Human Rights Commission, ‘Social Condition - An Option for Human Rights Commissions’ <http://www.ohrc.on.ca/english/publications/index.shtml> .
[61] Canadian Human Rights Act Review Panel, Promoting Equality: A New Vision (23 June 2000) <http://canada.justice.gc.ca/chra/en/index.html> 113.
[62] Committee on Economic, Social and Cultural Rights, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Canada (10 December 1998) paragraph 51.
[63] European Convention for the Protection of Human Rights and Fundamental Freedoms, Council of Europe - ETS Number 005 (‘ECHR’).
[64] European Convention on the Protection of Human Rights (Protocol Number 12) 4.XI.2000.
[65] Letter from Eastern Access Community Health to the Homeless Persons’ Legal Clinic dated 12 August 2002.
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