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Features of existing legal processes which increase participation of homeless people

A number of legal processes and programs exist with features that increase accessibility for homeless people. These will be described in the following section.

Flexible service delivery

There are a number of existing legal processes that attend to the legal needs of homeless people in a more flexible and accessible manner than those processes described in the previous section. These include the HAC, the SSAT and the NSW Ombudsman. These bodies are aware of and cater to the particular needs of the people who use them, for example, by providing services over the telephone, adopting more flexible and less formal procedures, and providing outreach services to remote and rural communities. Despite this, it is important to note that these facilities were seldom referred to either by workers or homeless people consulted for the current study. It is not clear, however, why this is the case. Nonetheless, below is a description of the way in which people may seek legal redress that avoids some of the problems identified in the previous section.

Housing Appeals Committee (HAC)

As noted above, the HAC is an independent agency that reviews decisions made by DOH and Community Housing relating to public housing eligibility, eligibility for emergency temporary accommodation and removal from the waiting list.⁹⁶ A client may appeal to the HAC after an internal review decision has been made by DOH or Community Housing. The HAC will then apply to the service provider for the client’s file and, once received, set a date for appeal (usually within four weeks of receipt of the file). Appeal hearings can be conducted by telephone interview or face-to-face interview and usually take under an hour. Hearings are informal and the housing service provider is not present. If information is needed from the provider they will be contacted prior to or after the meeting. Clients may, without applying for special leave, bring an advocate but not a lawyer.

Social Security Appeals Tribunal (SSAT)

The SSAT hears appeals relating to decisions made by Centrelink about social security payments. Appeals may be lodged to the SSAT in person, in writing or by telephone.⁹⁷ The first step in the process after lodgment involves the client attending a hearing. This is a meeting between the customer and the SSAT members and no one from Centrelink is present at the hearing. The client can bring a friend or advocate. The SSAT will have a copy of the client’s file, which means that there is less pressure on complainants to bring all the necessary documents with them. The SSAT conducts hearings in rural areas, and will pay all the complainant’s reasonable travel expenses. Hearings may also be conducted over the phone as well. One stakeholder that had had experience of SSAT proceedings commented:

The tribunal has been very fair, and I have only been brought in where I’ve done a lot of the probation work, you know, the chronology, etc. The client does most of the talking, which is great, even though the client initially might have been very anxious about doing it and desperately taking me along to do all the talking. The tribunal member has always insisted the client present their case and the client will get over their nervousness. It’s very soft, caring, certainly not threatening in any way.⁹⁸

NSW Ombudsman (Community Service Division)

The NSW Ombudsman’s Community Service Division (CSD) receives complaints regarding treatment by DoCS. The division also takes complaints about SAAP services, and is therefore particularly relevant to homeless people.

The division appears to have developed processes that increase its accessibility to clients with complex needs. For instance, complaints about DoCS or a SAAP service may be made by a free telephone call or orally to a complaints officer. This is in contrast to the usual procedure whereby complaints are made to the Ombudsman in writing (although Ombudsman staff will assist people in doing so). The customer service officer assigned to a complainant will provide advice on what action needs to be taken (such as an investigation or encouraging the person to make a direct complaint to DoCS). Priority is given to those complaints made by children and people with disabilities.⁹⁹

Problem-solving courts and lists

In the last 10 years, a concept that has gained momentum in the United States is the ‘problem-solving court’. These courts rely heavily on the theory of ‘therapeutic jurisprudence’, a school of social inquiry that has emerged from the study of mental health law and seeks “to reshape law and legal processes in ways that can improve the psychological functioning and emotional well-being of those affected”.¹⁰⁰

This type of court encourages partnership with local communities, government, and non-government service providers to develop new solutions to criminal and community legal matters. The California Homeless Court and the Red Hook Community Justice Center are examples of this type of court. There are a number of programs in Australia that appear to be modelled on the ‘therapeutic jurisprudence model’.¹⁰¹ These include:

• the NSW Drug and Youth Drug Courts
• the Magistrates Early Referral into Treatment (MERIT) Program (in NSW)
• the Enforcement Review Pilot Program (Special Circumstances List) (in Victoria).¹⁰²

While not all of these programs are specifically focused on homeless people, they are good examples of the ways in which the criminal legal process can support and better involve people with complex needs in the legal process. The features of these programs are that they can be less formal, more interventionist and they attempt to better involve the offender in the process. Each of the programs are discussed below.

Australian initiatives

NSW Drug Court

Drug courts are specialist courts that deal with offenders who are dependent on drugs. They emerged as a result of growing disenchantment with the ability of traditional criminal justice approaches to provide long-term solutions to the cycle of drug use and crime. Drug courts aim to assist drug-dependent offenders to overcome both their drug dependence and their criminal offending.¹⁰³

The New South Wales Drug Court is a pilot program which commenced in 1999. Currently, it is restricted to people living in Western Sydney. The aim of the program is to reduce drug dependency, promote re-integration of drug-dependent people into the community and reduce the need for drug-dependent persons to resort to criminal activity.¹⁰⁴ If an offender is eligible, they will be remanded for detoxification and assessment at the Drug Court clinic. Their sentence will be suspended on condition that they adhere to the requirements under their treatment plan. This plan will require participants to enter a residential rehabilitation centre or live in accommodation approved by the court.¹⁰⁵

The court uses conventional physical court settings; however, the proceedings are more informal, with the judge engaging directly with the offender (in a less formal manner) rather than solely through a barrister or solicitor.¹⁰⁶

To be eligible for the Drug Court a person must:

• have indicated their guilt
• be highly likely to be sentenced to full time imprisonment
• live in the Western Sydney area
• be willing to participate.

Finally, because there is usually more demand than places for the program, a weekly random selection process occurs to determine which applicant is assigned to each available place.¹⁰⁷

The following issues are associated with homeless people using the Drug Court:

• Eligibility requires that applicants must reside in appropriate accommodation. The accommodation is not deemed suitable if it is occupied, or frequented, by people who appear to abuse drugs and alcohol or who reasonably appear to engage in criminal activity and who are not prepared to cooperate with the Drug Court team.¹⁰⁸ By definition, homeless people do not reside in stable accommodation, which may affect their eligibility for the program. For example, boarding house accommodation may not be considered appropriate for this reason.
• To be eligible for the program, homeless people would have to be in appropriate supported accommodation or reside with a family member who lives in the area.¹⁰⁹

In response to the need for participants to have access to housing, the Victorian Drug Court Pilot set up the Drug Court Homelessness Assistance Program, which offers transitional housing accommodation and support to Drug Court participants.¹¹⁰

NSW Youth Drug Court (YDC)

The YDC was implemented after a recommendation following the NSW Drug Summit in 1999, which recommended that the current adult drug court trial be extended to include the establishment of a Youth Drug Court. The YDC pilot program began operating on 31 July 2000 in two children’s courts in Western and South Western Sydney (Cobham Children’s Court on Monday and Campbelltown Children’s Court on Thursday). The pilot program was to originally run for two years, but has now been extended for a further two years.¹¹¹

To be eligible for the Youth Drug Court a young person must:

• be charged with an offence that is normally dealt with by the Children’s Court
• plead guilty
• reside in the areas that feed into the relevant children’s courts (however, this is quite flexible and the scope of the boundaries will be extended in the near future).

Once the young person is accepted to the program, their needs are assessed and an individual treatment plan covering education, life skills, housing, employment, health and other social needs is developed.¹¹²

Although the court has operational guidelines, there are no legislative provisions per se that govern the formal running of the court as there are for the adult Drug Court. Hence, the court is more flexible than the adult Drug Court. Legal Aid NSW reports that the court process itself is very informal and relaxed with everyone sitting at the same table, in casual clothes.¹¹³ The young person is well supported by Legal Aid NSW and representatives from DoCS, NSW Health, the Department of Juvenile Justice and the Department of Education and Training.¹¹⁴

Being homeless is not a barrier to a young person being eligible for the Youth Drug Court. In fact, the court can resolve homelessness for the young person, by ordering that the young person reside in a place specified by the court for the duration of the program. Upon completion of the program, the young person will be assisted into finding independent accommodation. The program also aims to rehabilitate young people into education and employment.¹¹⁵

One problem identified with the Youth Drug Court is that there is a shortage of suitable accommodation available in NSW for young people participating in the program. As a result, a young person may be placed in custody until appropriate accommodation is found.¹¹⁶ This may be a particular problem for homeless young people, who by definition do not have suitable accommodation. Furthermore, the program is not available in rural areas and in many parts of Sydney.

Magistrates Early Referral into Treatment (MERIT) Program

The MERIT program is a NSW local court-based diversion program for adult offenders with substance abuse problems. The aim of the program is to address people’s substance abuse that is associated with criminal behaviour. Whereas the NSW Drug Court targets offenders who have committed more serious offences, the MERIT program is aimed at those offenders who are eligible for bail. Indeed, the program may be undertaken as part of a person’s bail conditions, and an admission of guilt is not required. The program may involve counselling, detoxification, methadone treatment, residential rehabilitation and case management, depending on the needs of the defendant. The person’s matter will be adjourned until the defendant has completed the program. It is only then that the outstanding matter is heard and sentencing occurs. Offenders who have committed an offence of a sexual or violent nature are not eligible for the program.¹¹⁷

Unlike the NSW Drug Court, homelessness does not appear to be a barrier to eligibility for the MERIT program. However the 2002 MERIT annual review reported that there was a relationship between accommodation type and completion status. Completers were more likely to be living in privately owned accommodation with their parents.¹¹⁸ Thus, while homeless people are not prevented from participating, there would appear to be something about their status that compromises their outcomes on the program.

Enforcement Review Pilot Program (Special Circumstances List)

The Special Circumstances List was established in June 2002, at the Magistrates Court of Victoria. Its role is to assist people with ‘special circumstances’ who have incurred multiple fines that are at the enforcement stage. ‘Special circumstances’ include diagnosed mental illness, acquired brain injury, intellectual disability and physical disability.¹¹⁹ Homelessness alone is not considered a ‘special circumstance’, although many homeless people qualify to appear based on the criteria mentioned above.¹²⁰

In order to have a matter listed, a social worker, case manager, legal representative or the client themselves identifies that a person with multiple fines has a ‘special circumstance’ and submits an application to the court. The application, plus any medical evidence, is forwarded to the Penalty Enforcement Registration of Infringement Notices Court for determination by a registrar. The registrar may refer the matter back to the magistrates court on the list days if they are satisfied that the matter would be more appropriately dealt with by the court.¹²¹ The magistrate will take into account the special circumstances of the client and tailor a sentencing order to their needs. For example:

A magistrate presiding on the list recently ordered that a homeless alcoholic man who had accrued more than $50 000 of fines for drinking intoxicating liquor in public attend a residential rehabilitation unit for two months. At the completion of the residency the magistrate dismissed all of the fines.¹²²

Defendants may also be referred to other support services (e.g. mental health services, accommodation services) at this point. However, the Special Circumstances List is not without its limitations in that it only applies to fines, it only applies post-plea, and it still operates within a formal court setting.¹²³ Despite this, the Special Circumstances List is an example of the way in which the criminal courts can assist offenders in addressing the underlying behaviour and circumstances contributing to their offence.

Other initiatives of the Victorian Magistrates Court

The Victorian Magistrates Court has implemented a number of other programs adopting a therapeutic approach that might alleviate some of the problems homeless people encounter in the mainstream legal system.¹²⁴ These include:

• the Bail Advocacy Program. This program provides appropriate accommodation, supervision and access to medical treatment to ensure that people are more likely to successfully complete their bail period
• the Street Sex Worker Court Attendance Program. Under the program, charges of prostitution and associated offences are listed for hearing at the Melbourne Magistrates Court once a month. Legal Aid Victoria and St Kilda Legal Service are in attendance to represent the defendants. Organisations that provide support to street sex workers are also in attendance to offer services
• the Mental Impairment List. This is the court diversion list, where a defendant identified as having a mental impairment is incorporated. Matters are dealt with by diversion or in open court utilising existing sentencing options such as deferred sentencing.

International initiatives

As already mentioned, international examples of legal processes that incorporate therapeutic jurisprudence into their processes include two initiatives in the United States, the Red Hook Community Justice Center and the California Homeless Court.

Red Hook Community Justice Center

The Red Hook Community Justice Center in Brooklyn, New York, is a problem-solving court that responds to the way homeless people and other severely disadvantaged people experience legal and other problems. The Justice Center grew out of community consultation and development over an eight-year period, and “seeks to solve neighbourhood problems like drugs, crime, domestic violence and landlord–tenant disputes”.¹²⁵ An important feature of the Justice Center is that a single judge handles cases that under ordinary circumstances would be handled by three different courts: civil, family and criminal. This is particularly applicable to homeless people who typically experience multiple legal issues. Further, the judge can choose from a range of sentencing and diversionary options, including “community restitution projects, on-site job training, drug treatment and mental health counselling”.¹²⁶

The Red Hook Community Justice Center appears to utilise more informal approaches and maintains strong links with the community. For example, it operates out of what was previously the local school building, and hosts a number of other services, such as mediation, community service projects and a youth court. The Justice Center also offers on-site domestic violence counselling, health care and job training. These services are also accessible to the wider community—that is, individuals do not have to be charged or processed through the court to get access to the services. In this sense, the Justice Center is not necessarily limited to crisis intervention, but also has an early intervention component.

California Homeless Courts

Special homeless court sessions were first established in San Diego in 1997 and are now operating in various counties throughout California. Sessions are held in local homeless shelters or other community sites for homeless citizens to resolve ‘misdemeanour criminal warrants’ such as disorderly conduct, public drunkenness and sleeping on the sidewalk. Clearly, such an approach addresses homeless people’s fears and difficulties regarding the formality and inaccessibility of mainstream legal processes. Outstanding warrants may also be processed in these courts, which, if left unaddressed, can have an impact on people being able to apply for jobs, apply for drivers’ licences and enter into rental agreements.¹²⁷

Phillip Lynch and Carla Klease, of the VPILCH and QPILCH HPLCs respectively, have summarised the advantages and benefits of the Homeless Person’s Court model as follows:

… seeks to identify and address the causes of a homeless person’s ‘offending behaviour’ by linking misdemeanour adjudication with social service intervention. A person who is homeless and pleads guilty to an offence may be referred to the court for ‘sentencing’. The focus of sentencing is rehabilitation and restoration. Only persons who make the commitment to taking the long road to putting their lives back on track are eligible for referral to the court. Thus, rather than fining or incarcerating homeless offenders, the court refers them to an appropriate service provider to obtain vocational training, health care, housing, drug and alcohol treatment, family counselling or gambling support as necessary.¹²⁸