Right to adequate housing

Right to adequate housing

From 1 January 2027, the Human Rights Act 2004 includes section 27D. Section 27D says that:

  • (1) Everyone has the right to adequate housing.
  • (2) The immediately realisable aspects of this right are the following:
    • (a)  everyone is entitled to enjoy this right without discrimination;
    • (b) no-one may be unlawfully or arbitrarily evicted from their home;
    • (c)  no-one may have an essential utility service to their home unlawfully or arbitrarily withdrawn.

On 1 January 2029, the first line of section 27D(2) will change to “Immediately realisable aspects of this right include the following”. As explained below, this change will widen the scope of section 27D(2), making it a non-exhaustive (open-ended) list of aspects of this right that the ACT must guarantee immediately.

Section 27D is based on article 11(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), a human rights treaty to which Australia is a party.

Scope of the right

Overview

The human right to adequate housing recognises that everyone should have somewhere to live in safety, peace and dignity. It is one of several rights that together make up the broader human right to an adequate standard of living, set out in article 11(1) of the ICESCR. The others include the rights to adequate food and adequate clothing.

As a party to the ICESCR, Australia is legally required to give effect to all of the rights that make up the right to an adequate standard of living. The right to adequate housing is the first and, so far, the only one of them included in the ACT’s Human Rights Act. By including it, the ACT has become the first place in Australia to protect this right in a human rights act or charter.

Whether housing is adequate depends on a variety of factors. The United Nations (UN) Committee on Economic, Social and Cultural Rights has said in its General Comment on No. 14: The right to adequate housing that the minimum requirements for a person’s housing to be adequate include:

  1. Legal security of tenure – there should be laws to protect everyone against forced eviction, harassment and other threats to tenure, regardless of whether they own their home, rent it, or occupy it on a less formal basis.
  2. Availability of services, materials, facilities and infrastructure – in particular, the services, materials, facilities and infrastructure that must be available include those needed for safe drinking water; energy for cooking, heating and lighting; sanitation; washing; food storage; rubbish disposal; and site drainage.
  3. Affordability – the cost of a person’s housing should not be so high that it threatens or compromises their ability to meet their other basic needs (for example, food).
  4. Habitability – a person’s housing must give them enough space and protect them from cold, heat, rain, sources of disease and other threats to health and safety.
  5. Accessibility – a country’s housing resources must be fully accessible to everyone, including people with disadvantages and special housing needs (for example, people with disabilities or who are victims of natural disasters). This means that when governments allocate those resources and make housing laws and policies, they must take those people’s needs into account and give them some degree of priority.
  6. Location – in particular, the Committee has said, a person’s housing must be in a place that gives them access to employment, healthcare services, schools, childcare and other social facilities, and is not close to pollution that is a threat to health.
  7. Cultural adequacy – the way in which housing is built, including the materials used, and government policies on this, must allow to an appropriate extent for people to express their cultural identity and for there to be diverse types of housing.

Some aspects of the right may be realised progressively

Unlike most other rights in the Human Rights Act, the ACT is allowed to give effect to (or “realise”) some aspects of the right to adequate housing progressively or gradually over time. This approach is based on article 2(1) of the ICESCR. Article 2(1) requires Australia and each other party to that treaty to:

“take steps, individually and through international assistance and cooperation, 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 treaty] by all appropriate means, including particularly the adoption of legislative measures.”

The obligation of progressive realisation recognises that resource limitations and other challenges may stop governments from meeting standards for adequate housing, and other economic, social and cultural rights, in full, and for all people, right away. It lets governments work towards this goal over time instead. However, it still requires them to do this as fast as possible, and to avoid taking backward steps.

Other aspects of the right to adequate housing have immediate effect. This means that the ACT must guarantee them right away, rather than achieving them progressively over time.

What are the immediately realisable aspects of the right?

Restriction of scope in the Human Rights Act until 1 January 2029

Since section 27D of the Human Rights Act only applies from 1 January 2027, it will not place any obligations on government agencies or other public authorities in the ACT until that date.

In addition, the ACT’s law-making body, the Legislative Assembly, has decided to restrict the scope of section 27D(2) temporarily, for two years. They have done this by using the words “The immediately realisable aspects of this right are the following”. They intended this to mean that the only aspects of the right to adequate housing that ACT public authorities must guarantee immediately from 1 January 2027 onwards are the three aspects listed in section 27D(2)(a), (b) and (c). In other words, that list is exhaustive (closed).

Important things to understand about this temporary restriction of scope are:

  • It only concerns the aspects of the right to adequate housing that must be guaranteed or “realised” immediately, not the aspects of this right that can be achieved progressively over time.
  • It also only affects the scope of ACT public authorities’ obligations under the Human Rights Act, not the scope of the human rights relating to housing that people in the ACT have under international human rights law, such as the ICESCR. There is no such restriction in international human rights law on the immediately realisable aspects of the right to adequate housing.
  • It will end on 1 January 2029, when section 27(2) changes to say that immediately realisable aspects of the right “include” the three listed in the section. Using “include” instead of “are” will change section 27(2) into a non-exhaustive (open-ended) list – meaning that there may be more aspects of the right that ACT public authorities must guarantee immediately, in addition to the three listed aspects.

In the Commission’s view, from 1 January 2029 onwards, all aspects of the right to adequate housing in section 27D should be interpreted to have at least as broad a scope as they have under article 11(1) of the ICESCR. We list at (v) below some additional aspects of the right under article 11(1) that are widely accepted to be immediately realisable.

Entitlement to enjoy the right to adequate housing without discrimination

Section 27D(2)(a) of the Human Rights Act lists “everyone is entitled to enjoy [the right to adequate housing] without discrimination” as an “immediately realisable aspect” of that right.

How does this relate to the right protected by section 8(2)?

Everyone in the ACT has the right to enjoy their human rights without distinction or discrimination of any kind. Section 8(2) of the Human Rights Act protects this right. More details on section 8 are in our recognition, equality and non-discrimination rights page.

Article 2(2) of the ICESCR contains essentially the same right, regarding the enjoyment of the human rights set out in that Covenant, including the right to adequate housing. Specifically, it requires public authorities to ensure that people can exercise all of those rights without discrimination based on: race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. A note to section 8 of the Human Rights Act lists all of these, plus sexual orientation and disability, as examples of prohibited grounds of discrimination.

The Human Rights Act does not define “discrimination”. However, the UN Committee on Economic, Social and Cultural Rights has explained that in article 2(2) of the ICESCR, “discrimination” means “any distinction, exclusion, restriction or preference or other differential treatment that is directly or indirectly based on the prohibited grounds of discrimination and which has the intention or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of Covenant rights.” (UN Committee on Economic, Social and Cultural Rights, General Comment No. 20:  non-discrimination in economic, social and cultural rights.)

In effect, section 27D(2)(a) of the Human Rights Act recognises that the right to non-discrimination set out in article 2(2), which is already protected by section 8(2) of the Human Rights Act, will apply immediately to the right to adequate housing as soon as section 27D enters into force on 1 January 2027.

What does this mean in the context of housing?

Among other important consequences, the fact that non-discrimination is an immediately, not progressively, realisable aspect of the right to adequate housing affects how the ACT may allocate relevant resources. It means that, although ACT public authorities will not necessarily breach the Human Rights Act if they do not currently have enough resources to ensure that everyone in the ACT is adequately housed, they must not discriminate against people, at any time, in allocating the resources they do have.

Those resources include public and social housing. They would also include utility services, infrastructure and housing finance (such as loans) when these are administered or controlled by public authorities.

Not discriminating does not mean that ACT public authorities must never treat different groups of people differently when they take actions concerning housing. On the contrary, they can and should adopt measures specifically to help or protect groups who are disadvantaged or otherwise have special needs.

These groups include people in the ACT who are homeless or living in poverty; victim survivors of family violence, most of whom are women; young people exiting care; people with disabilities; and older people.

They could also include people in the ACT who are from non-English speaking backgrounds, people with low literacy, or people who lack access to the Internet. Publishing information on housing in languages besides English, and offering assistance to fill out housing application forms, are examples of special measures ACT government agencies and other public authorities may need to take to ensure that those people can enjoy their right to adequate housing without discrimination.

Relevant obligations in other laws

There are also relevant non-discrimination obligations in laws other than the Human Rights Act that apply not only to public authorities, but also to various other people and entities, including real estate agents. They include obligations in the Discrimination Act 1991 (ACT) not to discriminate against a person based on their accommodation status, such as homelessness (section 7(1)(a)), and not to discriminate against people, on either that or other grounds, in deciding applications for accommodation (section 21(1)). For more information, see our discrimination page.

Prohibition of unlawful or arbitrary evictions

Section 27D(2)(b) of the Human Rights Act lists “no-one may be unlawfully or arbitrarily evicted from their home” as another “immediately realisable aspect” of the right to adequate housing.

As outlined in the Overview above, all people are entitled to be legally protected against threats to their tenure of their home, including forced eviction, as part of their right to adequate housing. The UN Committee on Economic, Social and Cultural Rights calls this dimension of the right “legal security of tenure”.

“Forced eviction” is the term which that Committee and other international human rights bodies usually use for an eviction that is against a person’s will and breaches human rights. In its General Comment No. 7 on forced evictions, the Committee explained that such an eviction:

  • is “the permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection”; but
  • does not include an eviction that is carried out both:
    • in accordance with the law; and
    • in conformity with the provisions of the two human rights treaties that are the main source of the rights in the Human Rights Act: the International Covenant on Civil and Political Rights (ICCPR)and the ICESCR.

Section 27D(2)(b) of the Human Rights Act confirms that forced eviction is prohibited as part of the right to adequate housing in the ACT, and that ACT public authorities must respect and guarantee this prohibition immediately. Although section 27D(2)(b) uses the words “unlawfully or arbitrarily evicted”, not “forced eviction”, the Commission considers that the two phrases should be interpreted to have the same meaning.

Section 27D(2)(b) requires ACT public authorities not to unlawfully or arbitrarily evict a person themselves. It also imposes a range of other obligations on them, including:

  • Ensuring that there are laws against anyone, not just public authorities, carrying out unlawful or arbitrary evictions. The ACT law regulating this issue is the Residential Tenancies Act 1997.
  • Ensuring that those laws are enforced, including, where appropriate, punishing people who breach them.
  • Notifying and consulting affected people to explore all feasible alternatives before carrying out evictions.
  • Where those affected are unable to provide for themselves – taking all appropriate measures, to the maximum of available resources, to ensure that adequate alternative housing is available.

The UN Committee on Economic, Social and Cultural Rights’s General Comment on forced evictions describes these and other relevant obligations of public authorities in more detail.

A different section of the Human Rights Act, section 12, sets out a person’s right not to have their privacy, family, home or correspondence interfered with unlawfully or arbitrarily. This right overlaps with the right to adequate housing, and reinforces the prohibition of unlawful and arbitrary evictions in section 27D(2)(b). It prohibits both interferences with a person’s home that are not authorised by a law, and ones that are authorised by a law but are not in accordance with the ICCPR and reasonable in the circumstances. For more information, see our privacy and reputation page

Prohibition of unlawfully or arbitrarily withdrawing an essential utility service

Section 27D(2)(c) of the Human Rights Act specifies, as a further aspect of the right to adequate housing that the ACT must immediately guarantee that an “essential utility service” to a home cannot be unlawfully or arbitrarily withdrawn.

Like section 27D(2)(b), this section does not just mean that public authorities themselves must not take the prohibited action – in this case, unlawfully or arbitrarily withdrawing an essential utility service from a home. It also requires public authorities to take other steps. Those steps include ensuring that there are adequate laws to stop the unlawful or arbitrary withdrawal of such a service, and enforcing those laws.

Neither the Human Rights Act nor international human rights law defines either a “utility service” or an “essential utility service”. Nonetheless, given how the word “utility” is commonly used, “utility service” in section 27D(2)(c) should be understood to include at least services necessary to provide a home with energy and water. An ACT law on utilities, the Utilities Act 2000, also defines “utility services” to include sewerage services. Section 149A of the same law includes a definition of an “essential service” which relates to electricity, gas and water.

Energy, water and sewerage services clearly are among the “services, materials, facilities and infrastructure” required to meet such needs as safe drinking water, cooking, heating, lighting, sanitation and washing, which the UN Committee on Economic, Social and Cultural Rights has said must be available for housing to be adequate (see Overview above).

“Unlawfully or arbitrarily” in section 27D(2)(c) is likely to – and, in the Commission’s view, should – be interpreted to have a meaning consistent with the meaning that the same words have in sections 27D(2)(b) and 12, as summarised at (iii) above and in our privacy and reputation page. Accordingly, among other situations, “arbitrarily” withdrawing an essential utility service to a home would likely cover a situation in which there is an ACT law that permits the withdrawal of that service, but the withdrawal is nonetheless unreasonable in the circumstances.

Other immediately realisable aspects of the right to adequate housing

The three aspects listed in section 27D(2)(a)-(c) are not the only aspects of the right to adequate housing that international human rights law requires public authorities to guarantee, or “realise”, immediately. It is widely accepted that immediately realisable aspects of the right to adequate housing under article 11(1) of the ICESCRalso include, for example:

  • The entitlement of every person to legal security of tenure beyond protection from forced evictions – meaning public authorities should immediately ensure that there are effective laws to protect people not just against such evictions, but also against other threats to tenure as well.
  • The entitlement of every person to an effective remedy if their right to adequate housing is breached.
  • Obligations of public authorities to:
    • Effectively monitor the housing situation in their jurisdiction (which in this case would be the ACT). This includes determining the full extent of homelessness and inadequate housing.
    • To the maximum extent possible, using all available resources – guarantee that the minimum essential levels of the right to adequate housing are met. The UN Committee on Economic, Social and Cultural Rights calls this satisfying the “minimum core obligation”, or obligations, concerning a human right. It has also said that “prima facie” (meaning at first appearance, or as a starting assumption), if a significant number of people in a country is homeless, the country is not satisfying its minimum core obligations. (UN Committee on Economic, Social and Cultural Rights, general comment 3, on the nature of obligations under the ICESCR.)
    • Take concrete steps towards the full “realisation”, or achievement, of the right, in the shortest possible time. Ordinarily the necessary concrete steps include adopting a national housing strategy. The UN Committee on Economic, Social and Cultural Rights has also recommended taking steps to coordinate between agencies and different levels of government, to make sure that economic, agricultural, environmental, energy and other relevant policies reflect public authorities’ obligations regarding the right to adequate housing.

As explained at above, from 2029, the right in section 27D can be interpreted to include all immediately realisable aspects of the right to adequate housing under article 11(1) of the ICESCR. The Commission supports this interpretation, to align section 27D with the right under international law on which that section is based.

When could this right be relevant?

The actions of government agencies and other public authorities can both promote and limit human rights. Section 27D may be relevant to many different matters. Examples include:

  • making, amending or reviewing laws on public housing; residential tenancies; urban planning; infrastructure; utilities; financial support or allowances to help people buy homes, or pay their mortgages; pollution or other environmental matters; or acquisition of land or property by public authorities
  • making, amending or reviewing policies or plans on any of those issues, including strategic plans or budgets to allocate funds or other resources for housing of different types, such as “missing middle” housing or public housing
  • the eviction of any tenant, whether or not the landlord is a public authority
  • measures to combat homelessness
  • measures to support people leaving situations of family or personal violence;
  • laws and procedures regulating how people can challenge decisions, by either public authorities or others, about any housing-related issue, including the time-frames for bringing legal proceedings and the remedies that can be ordered, such as compensation
  • preparing and distributing accessible information for the public, about all of the above issues
  • creating, regulating and funding community housing organisations
  • collecting or reviewing data on all of the above issues, including specifically on the experiences of disadvantaged groups, to identify and monitor needs and progress.

Cases

Australian cases

Since the right to adequate housing will not enter into force in the ACT until 2027, and no other Australian human rights act or charter includes this right, there have not yet been any Australian court or tribunal cases on this right.

Instead, until now, Australian cases about human rights and housing have focused on other rights, such as a person’s right not to have their privacy, family, home or correspondence interfered with unlawfully or arbitrarily (set out in section 12 of the Human Rights Act).

For example, the ACT Supreme Court recently decided that the Commissioner for Social Housing breached the Human Rights Act by not properly considering the right of three tenants not to have their homes interfered with unlawfully or arbitrarily, under section 12, nor the cultural rights of one of those tenants under section 27, when deciding to relocate them. For more details, see the 2026 case of Hubzin v The Commissioner for Social Housing; Van Loo v The Commissioner for Social Housing; Irwin v The Commissioner for Social Housing [2026] ACTSC 11 and our statement summarising that decision.

Our privacy and reputation page summarises more ACT cases on housing and the right set out in section 12.

Other cases

The UN Committee on Economic, Social and Cultural Rights has provided guidance on the right to adequate housing under article 11(1) of the ICESCR in cases concerning several different countries.

For example:

  • In a series of cases, the UN Committee decided that the way evictions had been carried out in Spain breached the right to adequate housing. The Committee recently reiterated the principles it followed in these cases, in El Korrichi v Spain (Communication No. 188/2020), Views adopted 2024. That case concerned various breaches of the right to adequate housing in relation to the eviction of a Moroccan woman and her children from social housing in Spain, when they had no adequate alternative accommodation. In its decision, among other principles, the Committee described a range of specific procedural protections that public authorities should provide and comply with regarding evictions. They include:
    • giving all affected people information about a proposed eviction “in reasonable time”
    • not carrying out that eviction in particularly bad weather or at night, unless the affected person or people consent
    • if possible, when needed, providing legal aid to the affected person/people so that they can go to court to seek redress (that is, a way of setting right, or compensating for, what happened).
  • In Walters v Belgium (Communication No. 61/2018), Views adopted 2021, the UN Committee decided that Belgian public authorities had breached the right to adequate housing of a man in his 70s with a low income. The man had no family in Belgium, but had lived in the same apartment there for 25 years and had strong social ties in his neighbourhood. His landlord (who was not a public authority) notified him that they would evict him in 6 months and compensate him for this. About 14 months later, after he unsuccessfully challenged this in court, he was evicted. The Committee decided that Belgium’s courts and social services did not sufficiently take into account the disproportionate impact that being forced to move could have on an older person living in a precarious economic situation. It also said that Belgium should change its laws on terminating tenancies without cause, by introducing flexibility and special measures, to avoid those laws having such a disproportionate impact on vulnerable and disadvantaged people.

Another international human rights body, the European Committee of Social Rights, has decided cases on a human right similar to the right to adequate housing in the Human Rights Act: the right to housing under the European Social Charter (a European treaty).

An example of a case on the right to housing under the European Social Charter is International Movement ATD Fourth World v France (Collective Complaint 33/2006, Merits Decision, 5 December 2007). In that case, the European Committee decided that even though there were many relevant protections in French laws, and France had taken a variety of steps to give effect to them, France had breached that right to housing in a number of ways. They included not guaranteeing, in law or practice, that an evicted person would be re-housed; not having a clear policy mechanism to make sure that the most deprived members of the community received due priority when allocating social housing; and not making the procedure for allocating that housing sufficiently transparent.

The European Committee also emphasised how important it is for governments to collect information on housing, and allocate resources based on that information:

“[they] must [...] maintain meaningful statistics on needs, resources and results [...] The requirement to maintain statistics is particularly important in the case of the right to housing because of the range of policy responses involved, the interaction between them and the unwanted side-effects that may occur as a result of this complexity. However, statistics are only useful if resources are made available and results achieved or progress made can be compared with identified needs.” (Merits Decision, paragraphs 60, 63.)

There have also been cases on human rights to housing in the courts of a variety of countries. South African courts in particular have repeatedly considered the right to housing set out in that country’s Constitution.

That right and the right to adequate housing in the ACT’s Human Rights Act are worded in different ways, and some principles the South African courts apply may not apply in the ACT. Nonetheless, their decisions have provided valuable guidance on many questions concerning housing. A recent example was Adonisi and Others v Minister for Transport and Public Works, Western Cape and Others; Minister of Human Settlements and Another v Minister for Transport and Public Works, Western Cape and Others [2026] ZACC 29, in which South Africa’s Constitutional Court decided that public authorities had breached citizens’ right to housing, and the obligation to “redress the spatial injustice inherited from apartheid”, by failing to provide affordable housing in the centre of the city of Cape Town.

Note: this information is not intended to be a substitute for legal advice. Last updated September 2026.