The Sackville report
Professor (now Justice) Robert Sackville’s seminal 1976 report to the Commission of Inquiry into Poverty, Homeless People and the Law, marked a significant progression in the level of understanding of the impact of the law on the lives of homeless people in Australia.33
Sackville documented the social isolation, low levels of income and low levels of education among homeless people. He also extended the common understanding of homelessness beyond street homelessness to that highly mobile part of the population who were engaged in seasonal, casual and itinerant work. He further substantiated indications from research at the time: namely, most homeless people were men, aged 35 to 50, alcoholic and had poor physical health.34
Sackville focused on the laws of vagrancy and public drunkenness, highlighting the deficiencies of the criminal law as a tool for addressing homelessness. He criticised the prevailing view of homeless people as representing a physical danger to the community,35 and argued that the laws of vagrancy and public drunkenness—as well as the laws authorising compulsory commitment into institutions that administered long-term ‘treatment’ for ‘alcoholics’—marginalised, stigmatised, and discriminated against those from lower socio-economic backgrounds.36 He asserted that, far from serving any rehabilitating or deterring function, these laws actually entrenched the behaviours they were attempting to address.37
Sackville argued in his report that the laws pertaining to homelessness should be replaced with a consent-based welfare approach, in the form of short-term accommodation where care and legal assistance could be provided.38 As a more pragmatic alternative, he advocated for significant reforms to long-term treatment institutions to make their committal proceedings more open, impartial and evidence-based; to restrict compulsory commitment to people in danger of causing serious harm; and to make ‘treatment’ approaches more innovative, independent and flexible.39
A changing homeless population
In 1985, SAAP was introduced as an attempt to streamline governments’ responses to what Sackville and others had found: specifically, that the number of homeless people in Australia was growing, and the homeless population was becoming increasingly diverse. In particular, there were a growing number of women and children escaping domestic violence, as well as young people becoming homeless.40 SAAP is a joint program of the Commonwealth and the States that funds non-government organisations to provide ‘a safety net’ of services to people who are homeless or at risk of homelessness. SAAP services include homeless person’s hostels, women’s refuges and youth crisis accommodation.41
It was within this context that in 1989, HREOC commissioned the Our Homeless Children: Report of the National Inquiry into Homeless Children. Called the ‘Burdekin report’ after the inquiry’s chair Brian Burdekin, it highlighted the need for a preventative approach to homelessness, and outlined a comprehensive early intervention agenda aimed at supporting young people who are at risk of homelessness.42 This approach was later reflected by the 1994 reforms of SAAP. Section 4 of the Supported Accommodation Assistance Act (Cth) 1994 widened the definition of ‘homeless’ to include circumstances where a person has housing, but it is not adequate, safe, secure, or affordable.43
Chamberlain and MacKenzie, whose definition of homelessness is used in this report, have also made significant contributions to our understanding of pathways into homelessness. In contrast to the common belief at the time of the Sackville report that homelessness was a permanent state with distinct causes, Chamberlain and Mackenzie conceptualise homelessness as a process of people entering and exiting the homeless population.44
Developing a ‘rights-based’ approach
Recent developments in approaches to homelessness and the law have led to the development of a ‘rights-based’ approach to homelessness. This approach to homelessness and the law is used in three different contexts:
Apart from illustrating a more sophisticated understanding of homelessness, the Burdekin report also adopted a human rights framework. It linked the experiences of young homeless people with ‘rights’ under international human rights law, and stressed the need for the federal government to recognise and uphold these rights. This approach considers clients’ problems in relation to rights under international human rights law, and this has formed the basis of rights-based lobbying and advocacy for homeless people.45
While legal rights are enforceable under Australian law, ‘human rights’ as outlined in international law are not enforceable unless they are implemented into domestic law.46 Otto connects the present shortcomings of Australian substantive law in protecting the ‘human rights’ of homeless people to the fact that international human rights law has not yet been domestically implemented in this country.47 She asserts that this stems from Australian governments’ traditional preference for more indirect methods of safeguarding individual rights, such as through the institution of responsible government, the establishment of HREOC, and the national SAAP. She highlights that despite these indirect means, the full range of rights that are covered by the International Covenant on Economic, Social and Cultural Rights (including housing-related rights) have not yet been implemented.48 Hence, a rights-based approach to homelessness calls for the recognition of international human rights, such as those under the covenant.
Implementation of a rights-based approach in legal service provision
In recent years, a number of legal services for homeless people have been established in Victoria, Queensland and NSW. These services have adopted a “rights-based approach’ both in terms of advocacy (for recognition of international human ‘rights’) and to service delivery. Goldie defines a rights-based approach to legal service provision for homeless people as a process that “involves homeless people being at the centre of the processes that develop solutions and in control of decision making that affects them”.49 Thus, recognising that homelessness is linked to legal need, the aim of these clinics is to advocate for and assist homeless people in upholding their legal rights. For example, the earliest of these services, Victoria’s Homeless Persons’ Legal Clinic (HPLC), was established in Melbourne in October 2001 to provide free legal assistance to, and advocacy on behalf of, people who are homeless or at risk of homelessness. It is a joint project of the Public Interest Law Clearing House (PILCH) in Victoria and the Victorian Council to Homeless Persons, and is known as ‘VPILCH HPLC’. The clinic provides civil, administrative and some summary criminal legal services at crisis accommodation centres and welfare agencies in Melbourne so as to encourage direct engagement with clients. It also attempts to influence law reform processes, so as to reduce the degree and extent to which homeless people are disadvantaged and marginalised by the law. Legal services are provided by volunteer lawyers from PILCH law firms and legal departments. At the time of writing, the VPILCH HPLC was funded by the Victorian Department of Justice through the Victoria Legal Aid Community Legal Sector Program Fund.50 Similar clinics have subsequently been initiated in other States. Queensland PILCH’s (QPILCH) HPLC commenced operation in Brisbane in December 2002. In May 2004, the NSW Homeless Person’s Legal Service (HPLS) was established in Sydney by PILCH and the Public Interest Advocacy Centre (PIAC) (see Chapter 6).
This approach is similar to the model for community legal centres (CLCs) outlined by the National Association of Community Legal Centres , which facilitates participation by community members in the management of legal services, making the lawyer–client exchange an empowering one for the client, and capacity building and skills transfer.51
Involving homeless people in law reform
As indicated above, Goldie and others52 assert that a ‘rights-based’ approach to addressing homelessness must involve the participation of homeless people. This involves homelessness agencies providing support for homeless people to take control of developing (legal and non-legal) solutions to their problems.53
In relation to legal reforms, both Goldie and Lynch advocate for the participation of homeless people in these law-based processes.54 Lynch stresses that homeless people must be “empowered and enabled to … have a say in the formulation of laws that affect them”. Accordingly, he argues for the establishment of community councils, through which law-makers, service providers, homeless people and business groups can work towards political consensus through dialogue.55
Access to justice and legal needs of homeless people
A key aim of this study is to examine factors that may affect the capacity of homeless people to access legal services and participate in legal processes. There has been some literature that focuses specifically on these issues, much of which has arisen from the legal activism discussed above. Much of the literature in this area has been written by the convenor of the VPILCH HPLS, Phil Lynch.
Barriers to justice
Barriers identified as preventing homeless people from addressing their legal needs are commonly divided into two categories. Procedural barriers refer to obstacles (such as the geographical location of legal services) that restrict people’s ability to access the support of the law. Substantive barriers, on the other hand, refer to specific laws and law enforcement practices that impact in a discriminatory way on homeless people.56
Procedural barriers
Lynch and Klease have documented some of the procedural barriers homeless people face in accessing justice. These include:
Substantive barriers are laws and law enforcement practices that are formulated and applied seemingly without regard to the impact on homeless people or homelessness.61 By way of example, Lynch62 and Mundell63 highlight Commonwealth electoral laws that impinge upon the right of homeless people to vote, by requiring people to have been resident in an electoral subdivision for a month before they can register to vote. Alternatively they have to register as an ‘itinerant voter’. However, the process for registering as such has been described as “administratively burdensome” for homeless people.64 The impact of social security policy and practice on homeless people has also been considered in this regard.65 Immigration laws that restrict rights to services and social security may also leave some new arrivals vulnerable to homelessness.66
Lynch also argues that laws are formulated that effectively criminalise homelessness, by “render[ing] unlawful behaviours that would be lawful if conducted in a private dwelling”.67 In NSW examples include laws that prohibit drinking in alcohol-free zones and that enable police to ‘move on’ people whose presence or behaviour “is causing or likely to cause fear to another person or persons … of reasonable firmness”.68 Other authors emphasise discriminatory laws that particularly affect those experiencing secondary or tertiary homelessness. For example, in NSW the protection afforded by residential tenancy legislation does not extend to residents of boarding houses.69
Continuing the focus on the discrimination suffered by homeless people, Lynch draws attention to the role of arbitrary, selective or targeted law enforcement practices, and makes a number of recommendations to address these.70 He also stresses the existence of widespread discrimination against homeless people by individuals and organisations that are acting “with relative impunity”.71 This includes discrimination by landlords and hostel, caravan park and boarding house operators. Slatter supports Lynch’s contention, reporting the existence of discrimination by property managers against tenants who present with security bonds provided by a State housing authority.72
Thus, commentators suggest that homeless people are affected by discriminatory laws, discriminatory law enforcement practices and discriminatory behaviour by private organisations and individuals. Many of these substantive barriers, as they apply in NSW, were raised in consultations for the current study and are discussed further in this report.
To address these issues, Lynch recommends programs aimed at educating and empowering homeless people to address their legal rights through access to legal representation, the courts and targeted regulatory and dispute resolution bodies.73 He also calls for substantive reform to the current anti-discrimination legislation regime.74 Lynch elaborates on this in an article with Stagoll, where they argue for amendments to State and Commonwealth anti-discrimination legislation so that it prohibits discrimination on the ground of ‘social status’, which should be taken to mean status as a homeless person, an unemployed person, or a social security recipient.75 They contend that such reform is consistent with international human rights law,76 and reflects similar protections in other jurisdictions such as New Zealand and Canada.77
Other literature on access to justice issues for homeless people
As described, there is a small but growing body of writing on the legal needs and rights of homeless people, particularly those at primary levels of homelessness, and the procedural and substantive barriers they face to address these problems. However, there is also a lot of additional material from a broader range of disciplines, which touch upon the legal and access to justice issues facing the diverse group of people who constitute the homeless population in NSW. For instance, much can be drawn from the literature concerning women in domestic violence situations, whom, as demonstrated in Chapter 3, are vulnerable to forming part of the homeless population. Rather than summarising this literature here, relevant studies and project reports have been cited where relevant throughout the report. In this way, our study will build on a solid foundation of existing literature to explore the legal needs of people experiencing primary, secondary and tertiary homelessness, including marginal residents of caravan parks in NSW. The report will also identify existing and potential pathways to homeless people gaining legal support, and the significant role of non-legal services in facilitating the access of homeless people to legal remedies. In doing so, we also discuss the barriers homeless people face in seeking and securing legal assistance and in negotiating the legal system.
Executive Summary
Ch 1. Introduction
Ch 2. Methodology
Print chapter
Order report