Recording: UnChartered

VERITY FIRTH:  Hello, everyone who is joining us.  We're just waiting for the webinar to fill up, so we'll probably start in about a minute, so bear with us, but thank you very much for joining us today.  We're looking forward to this event. Alright.  I'm going to begin.  There's some people still coming into the event but I think if we begin, it's always good to start on time and people will join us soon.  So hello, everybody.  Thank you very much and welcome to today's event. 

 

Before I begin, I want to acknowledge that wherever we are in Australia, we are all on the land of the First Nations peoples, and one of the nice things we've got people to do at other webinars is if you want to acknowledge the land where you are today, please type it in the chat.  Make that special acknowledgment to Elders past, present and emerging in the area where you are.  I'm on Gadigal land ‑ Gadigal of the Eora Nation.  Both my house and the university UTS is on Gadigal land, and I want to pay particular tribute to the Gadigal people, as the traditional custodians of knowledge that our university stands on, and that's really important when you consider that we are a university.  So please put your acknowledgments in the chat as we go along.

 

My name's Verity Firth.  I'm the Executive Director of Social Justice at the University of Technology in Sydney and I also lead up our Centre for Social Justice and Inclusion.  Today's event is called Uncharted: Health, Housing, Human Rights and COVID 19, and we're presenting this webinar today in partnership with the Human Rights Law Centre.  So it's my big pleasure to be joined by the Executive Director of the Human Rights Law Centre, Hugh de Kretser, alongside our distinguished panelists Kate Colvin and Annie Butler, and I'll have an opportunity to introduce them all properly with their bios and everything shortly.

 

Before we do that, a little housekeeping. So firstly, the event is being live captioned. So if you'd like to view the captions, click on the link that is in the chat panel.  So you'll find it at the bottom of your screen in the Zoom control panel.  Click on the chat and the captions will open in a separate window.  If you have any questions at all during today's event, you can type them into the Q&A box and there will be an opportunity to ask questions in this event.  However, I'll be asking them because that will make it more easy, so type your questions into the Q&A box.  There's also an upvote function so you can actually vote other people's questions up, and on the whole, I tend to ask the questions that have the most votes because they obviously tend to be the questions that people are most interested in having answers.  So if you have any questions, please start typing them into the Q&A box as we go along.

 

So today's event is aptly titled Uncharted: Health, Housing, Human Rights and COVID 19.  The recent pandemic ‑ I don't need to tell this audience this ‑ but the recent pandemic has brought a raft of social justice issues to the surface in Australia and, of course, internationally ‑ significantly, housing and health.  It has also created a lot of us to question whether or not we have enough protection for basic human rights in Australia, and I ask this in the light of the fact that Australia is the only liberal democracy without a charter of rights or a Human Rights Act.  So we're going to be discussing all of that today in the context of COVID but specifically also in the context of rights to housing and health.  So it is my pleasure, of course, to introduce our panelists. 

 

First up, Kate Colvin.  Kate Colvin is the National Spokesperson for the housing and homelessness campaign Everybody's Home.  Everybody's Home launched in 2018 to campaign for a fairer housing system in Australia and has grown to become an alliance of over 300 partner organisations and more than 28,000 community supporters.  Kate is also the Deputy CEO of the Council to Homeless Persons, the peak body for the homelessness sector in Victoria.  So welcome, Kate.

 

Annie Butler is the Federal Secretary of the Australian Nursing and Midwifery Federation.  She is a registered nurse with more than a decade's experience working in public hospitals, the community and on health education projects, and a further decade working in research and education.  Annie believes that we must fight to maintain the professions of nursing and midwifery in Australia and ensure their advancement.  She is passionate about improving Australia's system of health and aged care and the critical role that nurses and midwives have to play in the future of our health system.  Annie is particularly keen to see nurses drive change for improvement in Australia's aged care sector, which we'll be talking about further today.  Welcome, Annie.

 

And Hugh.  Hugh de Kretser is at the Human Rights Law Centre ‑ he began at the Human Rights Law Centre as a Board member when it was established in 2006 and became the Executive Director in 2013.  Hugh started his legal career at the law firm Mallesons and then began working to protect and promote human rights as the Manager of the Brimbank Melton Community Legal Centre and the Executive Officer of the Victorian Federation of Community Legal Centres.  Hugh currently serves as a Director of the Victorian Sentencing Advisory Council and a member of the Advisory Board of the University of Melbourne Law School.  He has previously served as Commissioner of the Victorian Law Reform Commission, a Board member of the National Association of Community Legal Centres and a governance committee member for Knowmore, the national service that provided legal help for people navigating the Royal Commission into Institutional Responses to Child Sexual Abuse.  So welcome, Hugh.

 

And I should say actually that before we were live today, we were talking to the panelists, and all three panelists are based in Melbourne, so all three panelists have just emerged from lockdown and are feeling very happy about that.  So I am sure we will also be talking a bit about that later on as well.

 

So we're here today to consider how we can create better outcomes for society by putting human rights at the core of decision making.  What would it look like if every member of our community had the right to essentials like quality health care, dignified aged care and a secure roof over our heads in the good times and the bad?

 

So, we're going to begin with today's discussion with some short opening statements from each of our guests, and I think we will begin with you, Kate.  Would you like to start us off?

 

KATE COLVIN:  Thank you.  Can I start by acknowledging that I'm joining the conversation from Wurundjeri country, and pay respects to Elders past and present.  And I want to start by taking us back to that time before the crisis and before the COVID crisis, of course, we were just coming out of the bushfire crisis then, but talk about how homelessness services and the housing system kind of works in ordinary times so that I can reflect on how things worked when COVID kind of happened.  So in Australia on any given night, we've got 116,000 people who don't have a home.  Not all are sleeping rough, so only about 5% of those are sleeping rough.  Others are in real overcrowded accommodation or in a rooming house or in other forms of accommodation that are not considered a proper home.

 

We've got almost 200,000 Australians on wait lists for social housing, either public housing or community housing or indigenous housing, and for many years, we've had declining Federal Government investment in social housing.  So we've got this kind of background context of increasing homelessness need, a great level of need and an increasing need, people not being able to get into the lowest cost forms of housing, which are social housing, and a government whose kind of not providing the resources that are needed.  So then along comes March 2020 and we have this massive health crisis, and I think one of the things, just to bring home the cold, hard reality of how homeless services work, is that it's not like schools or even emergency rooms in hospitals where if there's a large flood of new people coming in, then the resources generally ‑ Annie might dispute this in relation to hospitals ‑ but generally the resources are expanded to provide service to the people who are needing it.  The way that homeless services are funded is that a certain amount of money is provided to provide hotel accommodation and support to people, and if those resources are not adequate to meet the level of need, then there's no extra.  So what happens in practice is that people get turned away.  So in Australia, in ordinary times, 253 people are turned away from homeless services each day, which basically means they've come knocking on the door of a service and they've run out of money to provide hotel accommodation.  And the other ‑ so turn away is one way that services manage that demand, which is far in excess of the resources available to provide support to people, and the other is by providing time‑limited periods of temporary accommodation.  So someone might be provided with two weeks accommodation in a rooming house but, after that, they'll need to find their own options, and obviously in a situation where it takes many years to get into social housing on wait lists, a couple of weeks doesn't help people.

 

So then we end up in March and we've got this COVID crisis, and a lot of State Governments stepped up and provided increased resources to get people into hotel accommodation, and I think often that's been interpreted as in a really cynical way as, "Oh, well, homeless people are going to become spreaders of disease", but I actually think in terms of the public imagination and what was happening in those early days of COVID, there was a great outpouring of concern and I think, from decision makers to all of us in the community, everyone was much equally staring down the barrel of a pandemic that everyone could see was going to be very dangerous and there were responses that were created to deliver what was needed to people who were really vulnerable.  So I think that there was some real positivity about the fact that State Governments were like, "This group of people, particularly rough sleepers, many of whom have chronic health conditions, will be hugely at risk if the pandemic is allowed to run crazy through that population.  So people were put into hotel accommodation.  So that was ‑ that's a really good point but it's not a perfect solution.  So I think one of the things that gets confused when we talk about homelessness is the distinction between having a roof over your head and having a home, and being in a hotel room is not a home.  Particularly during lockdown, when you can't leave the room, other than for the four allowable reasons that people are allowed to leave the room ‑ so it's not like it was just a couple of weeks.  People were in, in many cases, hotel rooms for a couple of months, and that was really very challenging for people who were in that environment and often times meant that sometimes people would leave into other forms of accommodation because it wasn't meeting their needs.

 

But the other problem is I think sometimes we feel like, "Oh, the problem of homelessness is being solved because State Governments have put people in hotel accommodation", but a lot of people who were in hotel accommodation were single people on the JobSeeker payment, and even though that payment was increased for a short period of time, the base level of JobSeeker, which will be the level after December 31st, is so low that people on that payment can't afford housing in the private rental market.  And so basically they have nowhere to go from the hotel accommodation.  So there's no ‑ they couldn't get into public housing because the wait lists are too long.  They couldn't get into private rental because they wouldn't be able to sustain it past December, so the number of people, particularly in Victoria, in hotels kind of grew and grew without people being able to kind of get out into a longer term option.

 

The other thing that's happened is that the resources available for that hotel accommodation ‑ so you have more people coming through the doors and into those hotels each day ‑ didn't keep expanding to meet that need.  So we're back at the circumstance where homeless services are having to manage a limited amount of resources with a large amount of people needing those resources, and so limitations on length of stay and triaging of people into that form of accommodation have been reinstated, both in Victoria and in, I think, people in Sydney would have seen there has been a growth in rough sleeping, and that's basically because there's not the resources for hotel accommodation and there hasn't been housing options for other than a small number of people who are in those hotels.

 

So I just want to go back to that sort of mid‑point of COVID, when we had a large number of people in hotels around the country, perhaps around 33,000 have been in hotels across the pandemic, and think about what government could have done at that moment when all of these people, many of whom were highly vulnerable, were there in hotels and they could have been housed.  So there was options put up to the Federal Government, a model called the SHARP proposal, which I always have to remember the acronym, Social Housing Acceleration and Renovation Program, which was about doing four things in succession, so putting money into renovating social housing that's offline because it's damaged; bringing those properties back online; buying distressed assets in the private market because there was a lot of almost‑built homes that developers had gone bust because of COVID that could have been purchased and quickly finished and brought into use; shovel‑ready social housing projects that would have kept construction workers working and it also delivered a social outcome and others; as well as options that if the Federal Government, in particular, had invested like head leasing, which is when the state goes and rents properties and then rents them on to people who could have moved into them from the hotels.  So there was a whole lot of options that would have provided a secure housing pathway into long‑term housing and which didn't happen.

 

So some states, including Victoria and New South Wales, and to a lesser extent some of the others, have provided small amounts of long‑term housing, and that will mean that some people will have had the experience of going into hotels and then into long‑term housing, and that's a really good outcome.  Others, the majority, will have had the experience of a short time, sometimes a bit of an extended short time, in hotels, which is a good thing in terms of preserving people's health during that period, but they are not housed, and they will not be, unless the Government turn around that declining investment in Federal money for social housing and actually start to do what's needed to build our social housing stock up so that everyone can have a home.

 

So maybe I'll stop there so you can ‑ I am not sure if I have gone to five minutes or over or less, sorry. 

 

VERITY FIRTH:  Thank you, Kate.  That's a really good introduction to the issues facing housing in this time and beyond this time.  Annie, can we hear from you?

 

ANNIE BUTLER:  Yes, thank you very much. Thank you for the invitation and to my fellow panelists today.  I would also just like the acknowledge that I'm joining this meeting from the lands of the Wurundjeri people and I pay my respects also to Elders past, present and emerging and to any Aboriginal people who are joining us today.

 

I'm the Federal Secretary of the Australian Nursing and Midwifery Federation, which for those of you who may not know is the union and professional organisation for nurses, midwives and care workers across the country.  We are now also Australia's largest trade union, with almost 300,000 members, and members who have been at the heart of Australia's response to COVID 19 on virtually every front, and have witnessed our successes and our failures.

 

It's fair to say that COVID 19 has shaken us all and in fact is continuing to shape many parts of the world, but while recognising that the second wave in Victoria has been extremely challenging and, as Verity said, I now have the grin of a cheshire cat as a Melburnian on the first day of release from lockdown, but even with the second wave, Australia has been fortunate with regard to the COVID 19 outbreak compared to many other countries around the world.  And while Australia has a number of natural advantages, the pragmatic action taken by governments in their engagement with and responsiveness to health and other experts and their advice has led to what is regarded globally as successful containment of the pandemic's outbreak.

 

That said, our management of the COVID outbreak has revealed much about us.  It's not only highlighted but also deepened our existing inequities and shown us that our systems favour some Australians over others.  It has shown us our strengths and our weaknesses, our health response from an adaptable, universally accessible system, staffed by highly skilled clinicians and structured to support the delivery of quality care has been our great strength.

 

This system is also underpinned by a public health approach that is reasonably equipped to manage the challenges involved in balancing competing rights, interests and values in the midst of a public health crisis and recognises that restrictions to individual liberty may be necessary to protect the public from serious harm.

 

An approach supported by a community that over the last few months has largely committed to a united response of shared responsibilities and interests, and this week's outcome we're seeing in Victoria is testament to this commitment.  Despite this, our weaknesses have been several, and from my union's perspective, our aged care response has been one of our greatest weaknesses.  A fragmented, immature system, poorly staffed by a lowly paid, often lower skilled, predominantly female work force without structures that support the delivery of quality care and which consequently, although tasked with protecting and caring for some of our country's most vulnerable, has been shamefully inadequate in its response to the pandemic, and so tragically demonstrated by the situation seen here in Victoria.

 

It is significant that almost three‑quarters of all deaths from COVID 19 in Australia occurred in aged care, and when considered in the context of Australia's overall success in managing the pandemic, it should be regarded as all the more shameful. Put quite simply, the rights of older Australians living in residential aged care were not recognised.  Older Australians were not afforded the same opportunities, the same care or the same chance as everyone else in the community to deal with COVID 19.

 

While this disparity existed well before the pandemic, the outbreak over the last few months has truly exposed our country's poor treatment of its older citizens.  In considering whether a rights‑based approach should result in better handling of the consequences of COVID 19, I would say: yes, of course, but we need much more than an articulation of human rights.  We need to make sure that we build the systems and structures that ensure everyone's rights are equally recognised.  Systems and structures that guarantee an Australian society that provides for all Australians equally.  Thanks, Verity.

 

VERITY FIRTH:  Thank you for that, Annie, and I am sure there will be some questions.  That's a really good headline too.  Hugh, you're next. 

 

HUGH DE KRETSER:  Thanks, and thanks, everyone, and I'm coming from Boon Wurrung land and I would just like to acknowledge the particular importance of the rights to health and housing to Aboriginal and Torres Strait Islander people and the shameful failures of Australia in protecting those rights and the legacy of dispossession and injustice that has fuelled the lack of access to those rights on an equal basis for Aboriginal and Torres Strait Islander people in this country.                         

 

So I'd just like to start by saying: well, what are human rights? Human rights are the essential things that we all need to live a decent, dignified life. Governments around the world have promised to uphold human rights.  There are human rights treaties at the international level where these rights are set out in international law, but the problem in Australia is they haven't been translated fully into our domestic law.  So those rights that exist and that Australia has promised to comply with are often very hard to enforce and hard to realise here in Australia as a practical and as a legal issue.

 

So we have no national Charter of Human Rights that translates those international human rights that the Australian Government has promised to comply with into ‑ comprehensively into Australian law, but we do have charters at the state level in Victoria, recently Queensland adopted its human rights charter and ACT was the first jurisdiction in Australia to have a charter, and those charters are what we might call modest versions of a human rights charter, but they are important; they have power; and they are making a difference.

 

I think when you look at the COVID 19 pandemic, it is a global human rights crisis.  There's no doubt about that.  It's a crisis in terms of the impact on people's right to life and health but also on the impact on other human rights as a result of government responses to the COVID 19 pandemic.  And governments here and around the world are often having to making agonisingly hard decisions about health and what measures to put in place to protect life and health and necessarily restricting other rights in the process of that. 

 

Human rights law provides an incredibly useful compass, if you like, to help governments make these decisions, to get them right, and that is really about a process of balancing human rights, and so very few rights are absolute and so, as Annie said, rights can be limited.  So we can limit our freedom of movement to protect people's right to life and health, and in Victoria we have experienced that acutely.

 

My family and I returned from the US.  We were put in hotel quarantine.  Quarantine program is a necessary element of protecting life and health in this pandemic, limiting people's right to liberty in order to protect people's right to life and health, and particularly the most vulnerable members of our community.  So a charter says you can limit human rights if you have a good reason to limit that human right and you do so in the least restrictive way, the lowest level of restriction to get the job done, and that test is really powerful in helping governments to get the right decisions in this pandemic and helping the community to assess where the Government's not doing enough to protect our life and health, getting it right or going too far, and we have seen a number of cases here and around the world using human rights law to test that, and in Victoria we've got a case around the curfew at the moment.  So whether it's about masks, curfew, quarantine, border closures, human rights law provides that really useful compass or guide to get this right.

 

A charter at the national level would help in terms of protecting human rights in this pandemic.  It would help in terms of governments making the right decisions.  A charter basically would do two things: it would require governments and public servants to think about ‑ act compatibly and properly consider human rights is the language in charter.  So think about human rights and make sure you comply with them in your actions in delivering services and developing laws and policies, and it would give people the power to take action if their human rights are breached.

 

So the impact in Victoria and I think we will see in Queensland and ACT, and in other jurisdictions like Canada, UK and New Zealand shows that the biggest impact of a charter is as a preventative tool, so working properly, a charter will help governments to make those decisions and get laws and policies and services right, and that preventative role is critical.  But where governments get it wrong, it is important that there is access to remedy, and that's where you need to have an access and power for people to take action if rights are breached.

 

So, a charter will help in this pandemic.  It will help to build a fairer, more compassionate society.  It will give us a framework that will mean that the values we all care about, like freedom, equality, dignity, respect, that we hold on to these in these dark times, these tough times, and it will complement the existing laws that we have around workplace health and safety, around negligence, around public health and wellbeing laws. So that's something that we have a campaign to try to get and achieve a national charter.  And charterofrights.org.au ‑ people who care about this issue, I encourage you to look at that website and support the campaign. 

 

VERITY FIRTH:  Thanks, Hugh.  So I'm just going to ask a question of each of the panelists and then I'm going to throw it open to the floor.  We've already got some questions coming up in the Q&A, so thank you to people for putting in your questions.  Remember, you can vote up the questions you particularly like as well, and we will make sure we get to the most popular ones.  So I might come to you first, Annie.  I thought that your framing around the crisis in aged care really being about the rights of older Australians not being respected was a really powerful one and in some ways strikes to the heart about culture really, about why is it that we don't respect the basic human rights of our older peoples.  I just want to put that out there a little bit, if you have any views on that.  And also but more pointedly, how do we get decision makers to respect those basic human rights of our older people, and why has not enough been done, considering the litany of tragedies that you outlined in your opening?

 

ANNIE BUTLER:  Thank you very much, Verity.  I think the two are connected.  So perhaps just to start in the rights of older Australians, astonishingly, to me, a charter of aged care rights exists.  It actually came into effect on 1 July 2019, but ‑ and it goes to points that you mentioned of enforceability.  So it exists, there are words on paper that say that every older Australian has a right to safe and high‑quality care and services, be treated with dignity and respect, live without abuse and neglect.  When we see that the Royal Commission into aged care, their interim report was titled Neglect", clearly the words on the paper don't mean much at the moment.  So then going back to: well ‑ I personally and my union, we have known about this for at least two decades, and can I just quantify how many times we've tried, from 2009, my union has participated in, given evidence to, written submissions to 29 separate inquiries into aged care, and the aged care system.  Now, to the Royal Commission, in a couple of weeks we will make our 28th submission just to the Royal Commission.  So it's not as if we haven't been able to articulate the problems and put that forward.  But the pivotal question that you asked is why aren't we listened to? It goes to not just the rights or the lack of rights of older Australians but also to those who care for them who are predominantly female.  I think the key problem here is underpinned by our culture of ageism and our culture of sexism.  The advocates largely for those who are in aged care are our predominantly female work force, our predominantly female union and often the daughters and the wives, other relatives as well, but it's often a female voice that is not given ‑ not empowered, not heard, and not responded to.

 

I think that the system continues to privilege one set of rights and interests over another set of rights and interests, and those interests rest with providers and governments and they don't rest with the individuals, the recipients of care, and very much they do not rest with the worker.  The workers' rights in this sector are completely ignored, themselves largely female, as I said in my opening, lower skilled, often from a migrant background and they are positioned to be at the beck and call, so‑called ‑ there's a movement in aged care of individual consumer choice and consumer rights have to be protected.  I mean, again, in our view, that doesn't afford equal rights or choice to everybody.  It's a very middle class concept.  If you're a homeless person, what sort of capacity do you have to exercise those rights?

 

So it's very much an unequal system and that unlike the health system, which is well equipped and well prepared, it does not have the structures and supports to allow those voices to be heard and those rights to be recognised. 

 

VERITY FIRTH:  A lot to do in the area of aged care.  Kate, similarly ‑ so the Universal Declaration of Human Rights states that one of a number of the human rights is that there is a human right to adequate housing.  So a bit like Annie was saying: it exists there, it's written down.  How feasible is that in Australia? And I ask that also with the understanding that 70% of Australians actually own ‑ well, own or are buying their own home through mortgages.  We've got a high private ownership of housing in Australia compared to other areas.  Is that one of the reasons? Why is the right to housing not seen as something more fundamental in a country that calls itself the great egalitarian nation?

 

KATE COLVIN:  When you say there is this huge preponderance of people in the community who own their own home and there's also a very large investor population ‑ and I think over the past few decades, there's been a changing understanding of what housing means in the Australian national idea of things.

 

So we've gone from housing being very much about home to housing being about wealth creation, and there's a whole very popular narrative about investing in housing and getting wealthy, and I think that that seeps into people's thinking, even as home owners and so, consequently, we don't generally think of home in the same way that we think of health.  Like, I think in Australia there's a very strongly held feeling that if you go into a public hospital, then you'll be triaged and treated according to who has the most need and that you'll be provided with the service that you need until you've been made well and then you'll be dispatched from the hospital.  But in the housing system, it's really about ‑ the understanding is different; it's about wealth, and I think that's what we need ‑ we need to change that narrative so that the home function of housing is put first and foremost.  The Government could very easily make sure that everybody has a home.  It's not at all beyond the bounds of what is realistic or possible.  It wouldn't even really be that difficult.  It would take about $6 billion a year for admittedly a good number of years, but that is not ‑ whilst it sounds like a lot of money, it is not more than what is spent on other areas which are arguably less important.  And that's about ‑ investing in social housing is about providing a housing solution to people who can't afford housing in the private market but there's also ‑ fixing Australia's housing system is also about fixing how the private market works because currently the private market is not a wholly free market kind of thing.  There's all sorts of government investment into the private market that skews it in ways that benefit investors rather than benefitting people who need a home.  So $11 billion a year goes into government subsidies to investors in the forms of capital gains tax exemptions and negative gearing.  $11 billion a year ‑ I am saying it would take $6 billion over a number of years to provide the social housing that we need.  So it's about how government has made choices about how it intervenes in the housing market and those choices can be changed but I guess only if we work collectively to change that narrative and to put pressure on government to change the way the housing system works.

 

VERITY FIRTH:  I really like what you have to say about that ‑ other areas seen as fundamental and resourced according to need, and you're spot‑on around like education and health, that housing hasn't been given that status in either the Government's imagination or the public's imagination, and what's interesting about that, of course, is if you've got stable housing, you're more likely to do better at school, you're more likely to be able to find secure employment, and have better health outcomes.  So it's something that's so fundamental yet hasn't been given that status.  And it leads on really nicely to my question to Hugh, because my question to Hugh is around the Human Rights Law Centre, Hugh's law centre, did some research which shows that people's standout human right is the right to health, and the right to health care was listed as a top concern amongst people who both strongly support a charter of human rights as well as those that oppose it.  So everyone just said: that is a fundamental human right.  Interestingly on your point, Kate, they don't list housing, like they talk about equality, free speech, environment, free speech, health, health, safety, privacy ‑ you know what I mean? So it is definitely something we have to work on in terms of housing.

 

But in relation to health, Hugh, this has been really interesting during COVID, as you said in your first speech.  When people have talked about rights, most of what's grabbed the media's attention during COVID has been focussing on freedom of movement issues like curfews and state borders and the issues around the lockout, and less focus has been on the fundamental human right respecting to health and, of course, to aged care and housing as we're talking about today.  Why is this? Why is this preoccupation, despite your own research saying that people do prioritise health, the media's preoccupation and often the political preoccupation is around the rights to freedom of movement and state borders and so forth.

 

HUGH DE KRETSER:  Yes. You can go back also to the 2009 National Human Rights Consultation where they looked at Australian attitudes to human rights as well, and often there is a disconnect between what is put in human rights charters in Victoria and ACT and Queensland, and what Australians say are the most important human rights to them.  Obviously, there's no ‑ in human rights law, there's no ranking of human rights.  All human rights are important and there are means to properly balance human rights where they come into conflict, and means to, where there is conflict, give each right the maximise possible realisation within that balancing test, and that's the beauty of human rights law.  It helps governments to get those difficult decisions right.

 

But when you ask Australians about human rights, the first rights that come to their mind typically are things like education and health and I think housing as well, a roof over your head, food, water, things like that, what human rights lawyers call "economic and social rights".  Yet when we see human rights charters drawn up, we tend to see the civil and political rights protected, things like our right to vote, our right not to be locked up unfairly, freedom of movement and the like, and so it was important this year when the Queensland charter came into force that, for the first time, we have a limited version but still a version of the right to health which is protected in law in a human rights charter in Australia, and it's very significant.  It's not a right to health in the broader sense at international law.  It's a right to access health services without discrimination and a right to access emergency health services if there's a serious threat to your life.

 

I read the Royal Commission's interim report into COVID in aged care and I thought about that right to health in Queensland, and you look at the inability of people in aged care settings to access acute health care and you look at the failures around PPE and infection control, and if that was happening in Queensland, people in those aged care centres and their families would have stronger legal protection than in any other jurisdictions in Australia, and it would be interesting to see what kind of legal angles could be used to ensure those things are fixed, hopefully in a preventive sense so you get it right at the start, but where things are not done properly, where there's individual cases, having a mechanism to allow people to protect their right to health in those circumstances.

 

VERITY FIRTH:  I've got one last question but I'm not going to ask it yet because the question that has got the most votes in the Q&A actually ties in very nicely with what you've just said, Hugh.  So I might go to you first on this question and maybe, Kate, you'll want to comment too, which is Leo Paterson Ross has asked: how will a human rights charter resolve government's refusal to ensure a genuinely affordable housing supply?  How does the human rights charter help, Hugh? 

 

HUGH DE KRETSER:  Well, it depends on the version of the charter and it depends on what rights are protected.  So our campaign is calling for a legislative human rights charter.  In some countries, the human rights are put into the Constitution.  We say as a first step we should go for a legislative human rights charter that has increased role for Parliament, for courts and for government in protecting rights, and that's kind of like a dialogue model of a charter.  And we want a charter that protects not only civil and political but also those fundamental economic and social rights like the right to health, the right to education, the right to food and water and the right to housing. 

 

And so what that charter would do at the Federal level is force public servants when they're developing policies and services to think human rights.  So it would put them at the absolute forefront of ‑ if it's working properly, by the way, so there needs to be remedies to make sure that governments take human rights seriously, and Annie's example of the aged care charter is a good one.  You can write these words down and they're meaningless if you can't enforce those words. 

 

So in South Africa, for example, there is a constitutional protection of the right to health and right to housing, and that has been used, for example, in the treatment action campaign case.  The South African government ‑ the President at the time had a particular completely irrational hostile view around AIDS treatment and it meant that through the public health system in South Africa, there was anti‑retroviral treatment that would have saved lives but the South African government was not enabling the provision of that treatment. So a case was brought on behalf of pregnant mothers who were at risk of giving HIV AIDs in utero to their kids when the government wasn't providing those services, and using that right to health in the Constitution in South Africa, they were able to compel the government to set up a process and services to provide accessible health care, which has saved hundreds of thousands, if not millions, of lives because of that.  And so there are examples around the world of where a right to housing and a right to health and a right to education has been used in concrete terms to deliver improvements to people's lives in those areas.

 

VERITY FIRTH:  That's really interesting.  Kate, is there anything you want to add to that specifically around a human rights charter and its capacity to ensure affordable housing?

 

KATE COLVIN:  Look, I just reiterate what Hugh said.  I think if it's not enforceable, I don't know that it helps that much.  People debate "Do we have a human right to housing?" .  I mean, it's right there in the ‑ I'll get the acronym wrong ‑ the ICE ‑ and continue on, but ‑‑

 

HUGH DE KRETSER:  ICESCR for short. 

 

KATE COLVIN:  That one!  We do have a human right to housing.  It's not enforceable so it doesn't really help.  So if we have an enforceable right to housing and can then involve lawyers in challenging governments for lack of investment, then that would be enormously helpful. 

 

VERITY FIRTH:  Yes.  And I think it would have an impact on the public servants themselves because, as you are drawing the bill together, as you are putting together the regulations in policy, you are wanting to make sure it complies.  I think that is where you would hopefully see some real impact. Heidi has a question which is ‑ tangentially related but it has a lot of votes, so I'm going to ask it.  She says: should Australia consider the idea of a universal basic income, and is that something I suppose that's a human right? Does anyone want to have a first stab at this? Annie, do you want to have a first stab?

 

ANNIE BUTLER:  We just don't have a definitive answer on that particular question.  I guess there are pros and cons. Would it help ‑ I just actually am not equipped to answer that question with any kind of clarity. 

 

VERITY FIRTH:  That is totally fine. 

 

KATE COLVIN:  I am happy to jump in.  I think that ‑ I don't have a clear view about the sort of whole policy of a universal basic income but, at the same time, I think we can't under‑estimate how enormously important the doubling of the JobSeeker payment was in terms of people's housing stability, in terms of their food security and health over this period, so it's only ‑ it's a part of the picture in terms of housing security: having the income to pay for housing, and it's not the whole picture without investment in social housing to complement it.  It wouldn't solve all of our housing problem.  But it certainly ‑ without that doubling of JobSeeker, we would have had a huge surge of homelessness and, as it was, we just had a small surge of homelessness. 

 

VERITY FIRTH:  Yes. Hugh, do you have any thoughts around universal basic income?

 

HUGH DE KRETSER:  Only that it's worth considering and just to reinforce what Kate said, obviously in human rights law internationally, there is a right to social security and essentially an adequate standard of living, and whether that's done through some kind of universal basic income or the more traditional way that social safety nets have been done, we can have that debate.  And I should have added to my previous question, just on what Kate said, of course there's limited resources and so when you're developing a public health system or a housing system or an education system, you have limits to what ‑ how much you can spend on those things, and courts in Australia and around the world are incredibly reluctant to second‑guess policy decisions by government around where they spend their money, but human rights law has developed a concept, when we talk about economic and social rights, around progressive realisation of human rights, and there are well‑developed tests looking at making sure that these services are delivered on an equitable basis across the community to make sure we have equal access to health care and housing so you don't have ‑ you're not disadvantaged from seeing a doctor or going to a good school because of your postcode.  And that's where human rights charters have an important role to play, and they also have an important role to play about testing the rationality and efficiency of these types of services to make sure that there are good policy considerations going into how those services are delivered.

 

KATE COLVIN:  Can I just add one thing? Just thinking about Leo's question, that we're focused very much on the question of funding of housing, but rights can also be really important in terms of the balance between a tenant's interests and a landlord's interests, and in almost all states in Australia or territories, if a tenant asks for repairs and the landlord is not inclined to undertake those repairs and refuses to, they can issue a no reason notice to vacate and get rid of that tenant.  There's really nothing that the tenant can do.  It's very difficult to prove that it was a retaliatory eviction.  So rights are better framework for rights in terms of framing up tenant protections.  That would also be really important in making people able to secure their home and have security in that situation of being tenants. 

 

VERITY FIRTH:  Yes, that's interesting.  Annie, Heidi has a question around private aged care.  She says: do you think private aged care is more of a problem because it's not managed by government, or what is your views around that?

 

ANNIE BUTLER:  Absolutely, unequivocally, yes.  Absolutely much more of a problem.  So one of the things is that when we refer to private aged care, what we mean is we refer to all for profit and not for profit aged care that is not run by a State Government.  There's hardly any aged care left that's run by a State Government, and the greatest proportion is here in Victoria.  There's also some ‑ I think it's like 16 or 18 actual facilities in Queensland are run by the State Government, and it's something like three in New South Wales.  The vast ‑ and the for profit share is increasing over time.  So what we have then is we have ‑ and that entire system is a Federal Government responsibility and the States run their small portion, with access to similar sort of Federal Government pockets of funding.

 

But the biggest issue is that then they don't have ‑ they don't have the same State laws applying to private aged care across the country, so specifically for ours, that's nurse‑to‑patient ratios; they don't have the same level of standards that they have to meet in terms of other things like just even work health safety, those basic sort of situations; but also they don't have the same conditions for workers.  Now, I mentioned workers' rights earlier but there's a big connection between if you actually have a safe and satisfied worker, there's a very big connection between having a safe and satisfied care recipient, and so private aged care just does not have the same standards both in terms of pay, conditions and, of course, staffing ratios, and, consequently, if you want to examine the situation in Victoria, you can see the difference in the number of cases, COVID cases, in publicly run aged care here and privately run, and the number of deaths.  The difference is just ‑ it's astronomical.  Like, it's huge in numbers, the difference.  So it's a massive problem.  That's why we're fighting so hard to change the Commonwealth Aged Care Act. 

 

VERITY FIRTH:  Yes.  It's interesting.  We have allowed both our early childhood education and our aged care to splinter off and enter the private sector in a way that we haven't in other parts of the education continuum.  It's so strange. 

 

ANNIE BUTLER:  Well, I think it goes so much to: what do we value in society? And we don't value care work.  We don't value care work for children.  We value it a little bit better because we value children a little bit better, and we certainly don't value care work for older Australians.  What do we do? We lock them away, we silence them, we disempower them so we don't have to think about it or confront it or deal with our own responsibility to those people until it is revealed to us in such a crisis.  But it is definitely connected to female work, female voice. 

 

VERITY FIRTH:  So we have four minutes left.  I'm going to ask one quick question that Ally French has asked because I think it's a good question around good examples of overseas jurisdictions who have successful programs for housing and human rights that we could look to for guidance.  So we don't have very long.  Is there just some good examples around housing and human rights? Do you know?

 

KATE COLVIN:  I couldn't go past Finland, who, after the global financial crisis, started building state‑owned or state‑funded housing, and so they basically have eradicated homelessness in Finland.  People have access to housing they can afford and wrap around health services if that is what they need.  And so they've shown that the problem can be fixed. 

 

VERITY FIRTH:  That's good.  So look to Finland, Ally.  Last question from me, and again I was looking at some of the research that the Human Rights Law Centre had done before this webinar today, and some of their research shows that the support base for an Australian charter of human rights and freedoms features ‑ whilst it's mainly made up of people who identify themselves as left or far left, it also features a large chunk of people who identify themselves as far right, which I thought was really interesting, and it's interesting partly because I'm so obsessed with the American election at the moment, but it's also interesting in a world of increased political polarisation, and does a charter for human rights and freedoms provide a unifying framework for some of society's more contentious debates? Is this something that can bring us together a bit? I might start with you, Kate, and I'll end with you, Hugh, because I think probably you'll have the most to say on this.  Kate?

 

KATE COLVIN:  I'm not sure that it is unifying because I do think that some people just pick and choose when they want to use a rights framework to pursue their own agenda, which is really not really about rights at all.  It tends to be more about squashing other people's rights.  So I'm going to say I don't think it is unifying. 

 

VERITY FIRTH:  Good.  Annie, what do you reckon?

 

ANNIE BUTLER:  I think I'd probably agree with Kate.  It's exactly that thing, because people think, "Oh, human rights", but it's all about what their own individual ‑ too often their own individual human right.  Unless from our perspective it achieves ‑ I think I said what I said in my opening statement, where everybody's rights are recognised equally and our society is structured to provide what we consider the basic human rights equally, it won't really be meaningful. 

 

VERITY FIRTH:  And thank you, Annie.  Hugh, you get the last word?

 

HUGH DE KRETSER:  I could talk a lot about this issue.  I have about a minute, so I'll be brief.  I think it can be unifying and I think one of the benefits ‑ one of the silver linings if you like of this awful pandemic has been a better appreciation of the importance of human rights to all people across the community and that too many Australians think about human rights as affecting other people in other places, particularly overseas, and that what this pandemic is showing is that human rights protections matter to all of us, whether it's because you're in an aged care centre or because you can't travel or you can't see your work, you can't run your business, you can't worship, you can't protest.  These are all the things that have been at stake in this pandemic and obviously people's right to life and health, and so it has been welcome that you are seeing people from the right of politics speaking about human rights and raising freedom of movement and looking at the charter of rights and saying, "This actually has a role the play in protecting our rights".  What we need to do, as Kate and Annie said, is go beyond that and say: this has a role to play in protecting all of our rights and that our society, that Australia, will be stronger and better and healthier if all of our human rights are protected across the board, no matter who you are or where you live. 

 

VERITY FIRTH:  Well, that's a good place to end it on.  So I want to thank our panelists very much for today.  Thank you.  That was a really interesting webinar.  I'm very happy for all three of you that you can now go out into the sunny day and walk the streets. 

 

HUGH DE KRETSER:  The kids are back at school.  That's the big one. 

 

VERITY FIRTH:  Which is absolutely easily the best bit about the end of lockdown.  So congratulations.  Thank you to all of you for doing that work on behalf of all of us.  And thank you also for being a part of the webinar today.  And thank you also to everyone who joined us today.  It was a really great discussion and stay in touch and we'll also be able to share a recording of this webinar once we've organised that, and we'll do so with participants.  So thanks again,everyone. 

 

ANNIE BUTLER:  Thanks very much, thanks, everyone. 

 

KATE COLVIN:  Thanks very much, Verity.  Thanks, everyone.