The right to a ‘castle’
This year marks the 20th anniversary of one of Australia’s iconic feature films: ‘The Castle’. It‘s a comedy with a message. The government attempts to compulsorily acquire the house of the working class Kerrigan family to make way for an airport extension but the Kerrigans fight the decision all the way to the High Court.
The Kerrigans’ house is much more than just a place of shelter; it is a real home, based on bonds of affection, love and generosity – and idiosyncrasies. To the Kerrigans, it is, indeed, a castle.
The film’s message is two-fold: a home is something precious, the basis for security, neighbourliness and social reciprocity, not just real estate. The other message is that an individual, or group, should always be willing to stand up to authority when they feel they are being treated unjustly. If you don’t fight, you lose.
‘The Castle’ promotes the Great Australian Dream of home ownership. But as the film demonstrates, no-one has an absolute right to their property. Peoples’ homes can be compulsorily acquired by governments to make way for major projects that serve the wider social good, such as freeways, hospitals, railways and, yes, airports.
Section 51 (xxxi) of the Australian Constitution stipulates that any seizure of property must be on ‘just terms’. When the Kerrigans’ bumbling lawyer appears before the Federal Court, the judge asks him to specify which section of the Constitution has been breached. In one of the funniest and most memorable lines in the film, he replies: ‘Section … what section? There is no one section … it’s just the vibe of the thing’.
The ‘vibe’ can be traced back to the Magna Carta of the thirteenth century. Magna Carta set parameters on how far the monarch – the state – can intrude into our lives. Chapter 39 provides that no freeman will be seized, dispossessed of his property, or harmed except ‘by the law of the land’. The various State laws that cover compulsory acquisition of property take ‘just terms’ to mean fair compensation, including payment for the inconvenience of relocation.
The question arises as to whether there is a right to housing anyway. Is it a human right, like the right to free speech, the vote, religious belief, and assembly?
In terms of various international treaties and conventions to which Australia is signatory, the answer is: yes. The Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities recognise the right to housing as part of the right to an adequate standard of living.
If housing is a human right, then that right is denied to more than 105,000 Australians who are homeless.
The Australian Human Rights Commission regards the right to housing as more than just a right to shelter. Other factors include legal security of tenure, availability of services, materials, facilities and infrastructure, affordability, accessibility, habitability, location and cultural adequacy.
Affordability is a major issue, with house prices soaring in the major cities. It is unlikely the low-income Kerrigans could have purchased their Melbourne house so easily, if at all, today.