For well over a century now, successive New Zealand governments have been faced with the need to deal with the poor state of housing, and the unaffordability of decent accommodation in the major cities, and their attendant health and political risks.
Legal and policy attitudes toward state housing have ebbed and flowed in the ensuing decades but what has remained constant is the failure to recognise housing as a human right.
The most recent legislative initiative, the Kāinga Ora–Homes and Communities Act 2019 makes a number of references to rights, the rights of Kāinga Ora itself, whilst the Urban Development Act 2020 provides Kāinga Ora with additional rights.
The right to housing is not included in the New Zealand Bill of Rights Act 1990, although the Waitangi Tribunal Housing Policy and Services Kaupapa Inquiry (Wai 2750) does draw from claims of breaches of Article 2 of Te Tiriti o Waitangi.
In some ways, this state of affairs is curious, as it is largely due to the efforts of New Zealand's Prime Minister Peter Fraser that the right to an adequate standard of living, of which housing is an aspect – was included in the Universal Declaration of Human Rights 1948.
Since then, the right to housing has been contained in core human rights documents generally, as well as those relating to race, women, children, persons with disabilities, and the rights of indigenous peoples. New Zealand has agreed to protect and respect the rights contained in each of these documents.
Despite Aotearoa New Zealand's historical and legal commitment to the right to housing, the view persists that housing is not a human right. A few reasons have been put forward for such an approach.
One argument is that housing falls into a highly complex basket of socio-economic law and policy so that any decision-making with its huge budgetary implications, is a matter for the Government and its specialist advisors, and not the judiciary, who might be less well versed in the intricacies of such legal and policy decision-making.
Another argument is that this country's commitment to the provision of housing by way of policies and programmes means that such a right is already being protected and that there is no need to enshrine it in law. This reasoning is less than credible as a brief scan of the news media tends to show on a regular basis.
Last year, the UN Special Rapporteur on the Right to Housing described New Zealand's housing situation as a "human rights crisis" caused by successive governments having promoted homeownership as an investment and discontinued the provision of social housing and inadequate tenant protection.
A further argument is that the right is so vague that it is impossible to determine what its legal meaning is. But guidance is available here both from the UN, as well as the New Zealand Human Rights Commission.
To start with, "housing" is not to be regarded as an economic commodity. The right to housing does not mean that the Government must provide a roof over everyone's head but it does mean the right to live somewhere in security, peace, and dignity.
These views are informed by some key concepts such as legal protection against forced eviction, harassment and other threats.
An adequate house is one that has access to safe drinking water, sanitation and washing facilities, energy for cooking, heating and lighting and the means to store food, and dispose of refuse. It is a house that is of adequate space and which provides protection from cold, damp, heat, rain, wind and/or disease.
Inadequate and deficient housing and living conditions tend to be closely related to higher mortality and morbidity rates.
Location is important and should allow access to employment options, healthcare services, schools, childcare centres and other social facilities. Houses should be accessible to emergency services and should not be located on polluted land.
Housing must also allow the expression of cultural identity, such as in the way that it is built, the materials used, and housing policies should reflect such needs and the diversity of housing that may be required.
Both housing law and policy should take fully into account the special housing needs of disadvantaged groups.
Housing affordability is a key concept. Affordability means that the cost of housing should not prevent other basic needs, such as food or healthcare, from being met.
It also means that percentage-wise, income levels should be commensurate with housing-related costs.
Housing subsidies and/or differing forms or levels of finance should be made available to adequately reflect housing needs; tenants should be protected by appropriate means against unreasonable rent levels or rent increases.
Undeniably, housing is a complex issue. The benefit of recognising housing as a human right is that it empowers the individual who can lay a complaint before the courts, a
move that facilitates lawyers and judges to develop arguments around what the right to housing might entail in Aotearoa New Zealand.
Ultimately, such judicial scrutiny can help New Zealanders to hold their government increasingly accountable for the state of housing in New Zealand.
• Claire Breen is a professor with Te Piringa Faculty of Law at Waikato University.