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No home, no justice? The legal needs of homeless people  

, 2005 This report into the legal needs of homeless people explores the capacity of homeless people in NSW to obtain legal assistance; to participate effectively in the legal system; and to obtain assistance in legal processes from non-legal advocacy and support agencies. It also examines the role of non-legal support workers and agencies in assisting homeless people to identify and address their legal issues. It is based on a review of existing literature and consultations with legal and non-legal service providers and homeless people themselves....

Ch 8. Barriers to participating in the legal system



Chapter 4 of this report indicated that homeless people often face multiple legal issues, sequentially and concurrently, in areas including family law, housing, debt, crime and social security. However, as also described in previous chapters, homeless people face a range of barriers to identifying and seeking assistance for their legal issues. This chapter discusses the specific challenges facing homeless people in participating in the legal processes relevant to their needs.

Homeless people face barriers throughout the whole legal process. For example, they may encounter difficulties initiating legal processes that involve lodging written applications (e.g. due to literacy problems), or they may have trouble physically attending court (or other legal arenas including tribunals). If they make it to court, homeless people face further hurdles to participating effectively in the process and in the outcome as a result of not understanding the legal process, mental illness and other cognitive impairment and lack of legal representation. As a result, the legal needs of homeless people may remain unresolved, thereby exacerbating the disadvantage they experience and or resulting in further legal problems. For example, not challenging a decision by Centrelink to suspend a payment could result in a person being without income for an extended amount of time, which may lead to a person committing criminal offences.

For those processes that homeless people are required to participate in, such as the criminal legal process, barriers that prevent them from participating can also have serious consequences. For example, in criminal matters, not turning up at court can result in a warrant being issued for the person’s arrest, or receiving a record for failing to appear, making it more difficult for them to be released on bail for subsequent charges. In tenancy matters it may result in eviction orders being made in the person’s absence, and their being removed from or losing their only accommodation. Hence, not only is it important that homeless people can access legal advice and representation, but also that they are able to participate in the legal process.

For the purposes of this chapter, ‘participation in the legal system’ includes participation in courts and tribunals, internal appeal processes of government departments (e.g. Centrelink), alternative dispute resolution, and other complaints processes (e.g. NSW Ombudsman). Homeless people may be involved in the legal system willingly as applicants, or unwillingly as defendants, respondents or victims. This chapter will specifically examine two broad issues:



Barrriers to participation in the legal process


Homeless people may encounter significant barriers in participating in the legal system. From the data collected for the current study, these barriers tend to fall into two groups: individual barriers (mental illness and other cognitive impairment; lack of awareness; lack of confidence in and fear of the legal system; no stable contact; low literacy; poor understanding of the process) and systemic barriers (cost; rural and regional issues; length and complexity; formality; lack of legal representation) arising from the nature of the legal system, which particularly disadvantage homeless people. For the purposes of this section, participation includes initiating and getting to the legal process (e.g. lodging an appeal, getting to court) and being involved in the process (e.g. during the court or tribunal process).

Cost

A few homeless participants interviewed for this study reported that the cost of initiating legal proceedings (including the cost of legal representation) was prohibitive. For example, one homeless woman who had been in a de facto relationship reported that she could not afford to take her partner to the Family Court for a financial settlement as she had been extremely financially disadvantaged by the break-up.2 A caseworker also commented that in family law matters, homeless people on very low incomes may be ineligible for legal aid but also unable to afford to pursue a matter through other means.3

One caseworker was of the opinion that homeless men were being financially disadvantaged by child support payments and unable to afford an appeal to the Child Support Agency. Low-income earners are not always eligible for legal aid to lodge an appeal and if they do lodge an appeal, they have to pay the set amount of child support until the appeal is heard.4 He noted that this can also push men into homelessness.5

Lack of awareness

Stakeholders reported that homeless people, like many others in the community, have a limited awareness of available legal processes. Information about these processes may not be well communicated to homeless people. For example, people may not be aware of their rights to appeal a Centrelink or DOH decision:


Another example was given in relation to victim’s compensation. As noted in Chapter 4, a very high proportion of homeless people have been the victim of a crime. Stakeholders commented that homeless people who have been the victim of a crime are often unaware that they may have a right to victim’s compensation, or that there are services (e.g. Legal Aid, CLCs, homeless person’s clinics) that can assist them with a victim’s compensation claim.7

Lack of awareness of legal processes may also be compounded by literacy problems experienced by many homeless people (see below).

Lack of confidence in and fear of the legal system

Many homeless people have had negative experiences with the legal system.8 As a result, people are frightened of or cynical about what the legal system can deliver and are therefore reluctant to participate in it. For example, fear of being jailed can lead to a fear of the court process in general.9 People are in many circumstances unaware that the legal system can be used to protect their rights.10

One specialist CLC observed:


Negative perceptions of the justice system can result in their refusal to access the legal system at all.12 For example, caseworkers reported that even where they have been advised of an avenue of appeal (e.g. against a DOH or Centrelink decision), some homeless people are reluctant to appeal because they don’t believe that it will make any difference to their situation.13

In its submission to the Foundation during Stage 1 of the Access to Justice and Legal Need program, the LCRC stated that lack of confidence in the legal system and a belief that their rights will not be recognised present major barriers to homeless people participating effectively in the legal system.


A caseworker working with homeless men noted in relation to family law:
In some matters, negative perceptions of the legal system led to several participants deciding to plead guilty rather than defend themselves. Several interviewees reported that they pleaded guilty, despite wanting to plead not guilty and defend the matter.16 For instance, one interviewee who pleaded guilty to assault said:
Another example is in the area of victim’s compensation. In most circumstances, when people want to make a claim for victim’s compensation, the applicant has to have reported the crime to the police.18 However, a couple of caseworkers reported that homeless people are sometimes reluctant to approach the police to report or disclose a crime because they have had past negative experiences with police and perceive that police will not take them seriously.19
Young people in general are particularly reluctant to approach the police, due to a general distrust of authority.21 Stakeholders interviewed for this study reported that if young homeless people were assaulted on the streets, they preferred to deal with it in their own way.
Mental Illness or other cognitive impairment

As noted in Chapters 3 and 5, many homeless people (particularly street-based homeless people) have mental health and drug and alcohol issues. This can impact on a person’s capacity to engage in legal processes, particularly when they are complex and lengthy.


Mental illness and other cognitive impairment including memory loss and drug and alcohol use were also identified by stakeholders in this study as significant barriers to attending court or a tribunal. These disabilities can lead to people having difficulties in organising their lives and thus remembering and making necessary arrangements for their court dates.24

A study by McConnell et al. on parents who have a disability and their experience of the NSW Children’s Court suggests that parents with a mental illness do not cope particularly well in care proceedings. This study concludes that parents, particularly those with a disability, experience a great degree of tension and stress during Care proceedings held at the Children’s Court and, once stressed and angry, may exhibit these behaviours in court.25 Several of the participants in the current study who had had their children removed from their care had a mental illness.

No stable contact

A number of examples were given by participants in the current study where not having a stable contact address or telephone number created difficulties for them in actively participating in the legal process. For example, consultations with homeless people who had had their children removed by DoCS revealed that difficulties in contacting DoCS are exacerbated by not having a telephone number or address from which to call.26 One caseworker stated:


Lack of a postal address can result in people not receiving notification to appear before a court or tribunal. Further, without an appropriate contact, legal service providers can also have difficulty in contacting people about their need to attend court, or to keep them informed about how their matter is progressing:
For example, a woman who had fled domestic violence and was living in a refuge with her children did not receive notification that her husband had filed an application in the family court requesting access to the children. Because she did not receive notice she did not turn up to court. As a result an ex parte order was made in favour of her husband.29

In the CTTT, tenancy workers report that many tenants fail to turn up to hearings.30 In some cases, tenants fail to turn up because they have not been informed by DOH or their landlord that they have had an application made against them. The CTTT will send them a notice informing them of hearing dates but people may not receive this if they are homeless and do not have a postal address. According to tenancy workers, the CTTT very rarely grants a re-hearing if a person does not turn up. An example given by a legal service provider was that for hearings in the CTTT, if a tenant does not turn up, the hearing may proceed in the absence of the person, which can result in a decision in favour of the landlord and/or an eviction order being made.31

Brian Sandland of Legal Aid NSW summarised the particular difficulties homeless people have in getting bail as a result of not having a stable contact or address as follows:32


The disadvantage encountered by homeless people in relation to being granted bail was also identified by HREOC as an issue for homeless children.
In July 2002, the Bail Amendment (Repeat Offenders) Act 2002 (NSW) amended the Bail Act 1976 (NSW). These amendments, including the removal of the presumption in favour of bail for ‘repeat offenders’, appear to make it even harder for homeless people to be granted bail.34 Repeat offenders includes those “persons accused of an offence who have a previous conviction for failing to appear before a court in accordance with the person’s bail undertaking” (s 51). Because of their criminal histories, homeless people are particularly affected by the amendments.

One aim of the Act was to increase access to bail by providing supervised bail accommodation in bail hostels.35 Supervised bail accommodation offers an alternative to remand imprisonment and has particular relevance to homeless people.36 However, at the time of the Act’s commencement, there were no bail hostels for adults in NSW, and only one bail hostel for Aboriginal juveniles, which held only six to eight beds.37 This means courts are restricted to referring defendants to SAAP services or not to grant bail at all.

Consultation with homeless agencies in Sydney for the current study revealed that even if homeless people are granted bail, lack of a stable address can still impact on homeless people’s ability to comply with their bail conditions.38 For example:


All of the above examples demonstrate that homeless people may be particularly disadvantaged in meeting bail requirements because of their extremely limited options for accommodation.

Literacy

The relatively low levels of literacy and education among homeless people can act as a significant barrier to this group participating in a system that rests heavily on the written word.39 In addition, people tend not to disclose difficulties they face in reading or understanding written material, which can inhibit recognition of their literacy problems.40 The consultations also indicated that some clients had difficulty understanding legal information and advice given orally: it was not just an issue of literacy, but comprehension.41

In the consultations for this study, examples were given of homeless people:


In public consultations conducted during Stage 1 of the Foundation’s

Access to Justice Program, community legal centre roundtable participants stated that many tribunal procedures, particularly those of HREOC and the Anti-Discrimination Board, require written applications and correspondence, which is problematic for people with low levels of literacy and education.43 Given their relatively low levels of literacy and education, this is an issue for homeless people. Some tribunals also discourage or prohibit the presence of an advocate or support person. For example, at the CTTT, where a disputed amount is under $10 000, a party is not entitled to legal representation except in special circumstances.44 This is problematic for homeless people who benefit from advocacy and support.

Rural and regional issues


As discussed in Chapter 3, a large number of homeless people live in rural and regional areas of NSW. Stage 1 of the Access to Justice Program found that lack of access to courts was the most common barrier to participating in the legal process reported for disadvantaged people in general living in rural and regional areas. Although local courts in NSW are found in most regional areas, other courts and tribunals (such as the Family Court and the CTTT), are only found in capital cities or larger regional centres. The Family Court conducts ‘circuits’ (where the court travels to regional and rural areas), although in Stage 1 of the Access to Justice Program it was reported that these circuits had been reduced in recent years. Concern was also expressed about infrequent visits by tribunals to regional and rural areas.46 Not only does this reduce access to such tribunals, but also the lack of visibility may serve to entrench ignorance about the existence of these processes.

Workers in Newcastle also raised the issue that many homeless people in rural and regional areas do not have ready access to transport to get to courts and tribunals.47 This may be because they are unable to afford public transport or there is no public transport in their area and they do not have access to private transport.48 The issue of accessibility and location of courts and tribunals in rural and regional areas is also a particular concern for young people as they are not able to legally drive.


Length and complexity of process

The length and complexity of a legal process can significantly deter people from participating in the process or make it harder for people to continue through to completion.


In its submission to this report, the LCRC reported that court or tribunal matters that involved a number of hearings (e.g. due to adjournments), can cause particular problems for homeless people, who in facing a number of barriers preventing them from getting to the process in the first place, are even less likely to turn up to subsequent court or tribunal dates.
Brian Sandland also referred to the issue of delays at court. He noted that when matters are stood down in the morning and people have to wait around all day for matters to be heard, this can be a problem for clients with complex needs (e.g. people with mental illness, intellectual disability, drug and alcohol issues), who can become frustrated and leave before the matter is heard.52 This can have serious consequences for the person’s eligibility for bail. Given that some homeless people have complex needs (particularly street-based homeless people), delays at court may also lead to homeless people leaving court before their matter is heard.

Multi-tiered processes

Some legal processes are multi-tiered and complex and may involve several legal forums (e.g. a government department or a court or tribunal). For example, to appeal a decision made by Centrelink, the first level of appeal is to Centrelink itself, the second to the Social Security Appeals Tribunal and the third to the Administrative Appeals Tribunal. While multi-tiered processes promote accountability and review, their lengthiness and complexity make it more difficult for homeless people to see such a legal process through to completion. In addition to the social security appeals process, the DOH appeals process and the process of appealing against a fine were also identified by stakeholders as difficult processes for homeless people to engage in.

DOH appeals process

DOH officers can be asked to review decisions relating to housing eligibility and priority housing applications by lodging an appeal within three months of the original decision being made. The decision is reviewed by an officer senior to the person who originally made the decision. The tenant or applicant is informed of the outcome by post.53 A person not satisfied with the decision made by the reviewing officer can make a second appeal to the Housing Appeals Committee (HAC) within three months of the internal review decision being made. The HAC is an independent agency that reviews decisions made by DOH relating to public housing eligibility, eligibility for emergency temporary accommodation and removal from the waiting list.54 Clients must have already had an internal review before they can apply for a decision to be reviewed by the HAC.55

The HAC can recommend to DOH that a decision be overturned. However they are not binding recommendations.56 If a recommendation made by the HAC is not implemented by DOH, the next level of appeal is to the Administrative Law list in the Supreme Court. There is no capacity to take an administrative decision made by DOH to the Administrative Decisions Tribunal, a far more cost-effective process.57 This is a significant barrier to homeless people appealing DOH decisions as they are unlikely to have the capacity to take an appeal to the Supreme Court. Although legal aid is available to appellants who are at a special disadvantage, the formality of procedure at the Supreme Court could act as a deterrent to people who are homeless appealing at this level.

Stakeholders raised a number of concerns about the DOH review process. These included:


Centrelink processes

Nearly all homeless participants in this study were on Centrelink benefits and most had experienced problems with Centrelink. Customers who are unhappy about a decision made by a Centrelink officer (e.g. a decision to breach a customer) have the right to appeal the decision. Again, this is a multi-tiered process. If a person wishes to appeal an actual decision made against them, in practice they must first appeal to the original decision-maker.61 Following this they can then appeal to an Authorised Review Officer (ARO). This is a free service and may be initiated in writing, by telephone or, in some circumstances, in person. However, if a customer is seeking back pay, they must challenge within three months of the original decision being made. The customer’s payment will continue until the appeal is decided.62 The decision made by the Authorised Review Officer will be sent by mail.63

If a Centrelink customer is still not happy with a decision made by the Authorised Review Officer, they can appeal for free to the Social Security Appeals Tribunal (SSAT) and then to the Administrative Appeals Tribunal (AAT).

The first problem with this process is that people may be deterred from making an appeal if they are required to appeal to the original decision-maker. Pearce et al. have observed:


Young people in particular are more inclined to accept a decision than appeal it.65 People under the age of 30 account for nearly 71% of all activity test breaches and 76% of all administrative breaches, but they are the least likely to make a complaint or appeal a decision made by Centrelink.66

The second barrier is the length of the appeal process.67 Each review can take up to 8 weeks. Consequently, a matter can take up to 24 weeks before reaching the SSAT, with another 8 weeks before reaching the AAT.68 This process is not conducive to the needs of homeless people who may not possess the capacity to participate in such a lengthy process. As Pearce et al. have observed:


Fines

The imposition and payment of fines is a significant issue for homeless people. The complex process of enforcing fines and the number of discrete agencies involved contribute to these difficulties. While a fine or penalty notice is issued by the ‘issuing authority’ (such as the council or police), the Infringements Processing Bureau (IPB) has the responsibility for processing and collecting the payment.70 If a person does not pay the fine within the specified time and they do not elect to have the matter heard at Court, a penalty reminder notice will be issued by the IPB. If, 28 days later, the fine remains unpaid, it will be referred by the IPB to the State Debt Recovery Office (SDRO) for enforcement.

Importantly, the IPB does not have the power to allow payment by instalments or extensions of time to pay. The person fined must wait until the fine is referred to the SDRO before they can make an application to pay by instalments.71 However, unpaid fines referred to the SDRO attract an additional processing fee of $50.72 This issue was raised in the consultations.


Furthermore, once the fine has been referred to the SDRO, it is not possible for a person to dispute their liability for the fine itself. However, the person can apply to the SDRO for any of the following:
While the fines system makes some provision for the particular circumstances of disadvantaged people, it is difficult to negotiate the system effectively without competent assistance.75 For example, all of the applications referred to above must be in writing, and many require detailed supporting documentation, such as doctor’s certificates, affidavits of financial circumstances, and bank statements.76 As described earlier, maintaining good paper records is particularly challenging for homeless people. Even where the applicant has access to the assistance of an advocate, the success of an application for waiver of a fine based on hardship is hampered by the fact that there is no public access to the guidelines as to how the SDRO should determine such applications.77

Formality and understanding the process


Given the educational and literacy levels of the homeless population (as described in Chapter 3), the formality of language and jargon used in legal and bureaucratic processes can be intimidating and can significantly reduce the capacity of homeless people to understand what is going on in the courtroom or tribunal. As stated by one stakeholder:
Like many people who are not legally trained, homeless people possess little understanding of what actually goes on in a court or tribunal, what the role of the magistrate is, what they have to bring, what they need to say and what is likely to happen on the day. A roundtable participant stated:
Jane Sanders of Shopfront highlighted some of the issues facing her clients.81 These included:
Another caseworker stated:
This view has also been expressed in previous research.84 For example, a recent report investigating the link between domestic violence and homelessness noted:
Legal representation

The impact of not being familiar with nor understanding the legal process is compounded when people are unrepresented through the legal process. The Australian Law Reform Commission’s report into the federal civil justice system found that self-represented litigants find court processes confusing and intimidating.86 As reported in Chapters 5–7, homeless people can benefit greatly from both legal and non-legal advocacy and representation. In the current study, caseworkers report that homeless people are particularly vulnerable to poor outcomes in the legal process without legal representation.


Homeless people do not necessarily fare better in non-adversarial jurisdictions. For example, at the CTTT, people have to get leave to allow another person or tenant advocate to represent them in proceedings. Despite this, tenancy workers report that real estate agents are allowed to represent landlords at the tribunal,88 while DOH has its own representatives who appear before the tribunal. Hence although landlords and DOH appear legally ‘unrepresented’, their agents are likely to possess a much higher level of expertise than unrepresented tenants, who have little or no experience of appearing before the CTTT.89 It is no surprise then that tenancy workers from the Tenants Union of NSW, Redfern Legal Centre and BLAG report that tenants do not fare well in the tribunal.90

It would also appear that even in negotiation with other parties, without support, homeless people may be at a disadvantage. For example, in care and protection matters, many parents are intimidated by their interaction with DoCS, which can affect their ability to negotiate effectively with DoCS. One caseworker interviewed for this study observed that the presence of a caseworker or social worker at a ‘case conference’, where parents are required to negotiate a ‘care plan’ for their children, can greatly assist in redressing this imbalance.91

People who have high levels of debt can also benefit greatly from assistance in negotiating with creditors. In its submission to the Foundation, the LCRC stated:


Lack of suitable and effective legal representation can also act as a barrier to homeless people participating effectively in legal processes. The effectiveness of legal representation depends on the availability and quality of legal service and its suitability for homeless people.93 Consultations with stakeholders and participants indicate that there is a distinct shortage of appropriate legal representation for all disadvantaged people, including homeless people.94 For example, Commonwealth reductions in the level of funding to Legal Aid NSW since 1997, restrictions imposed by Commonwealth guidelines on the availability of legal aid in Commonwealth matters and the restrictive nature of the means test have impacted upon the ability of Legal Aid NSW to maintain its programs and address emerging legal needs. Further, as described in Chapter 6, duty lawyers have limited time to take instructions from clients who have complex needs.95 CLCs, pro bono lawyers and legal clinics that provide services specifically to homeless people are not always able to provide legal representation to people for the range of legal issues they face.


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:


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:


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:


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:


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:


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:


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:


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:



Summary


There are a number of barriers preventing homeless people from participating effectively in the legal system. These include:
Homeless people are assisted greatly during the legal process by effective and appropriate legal representation. It is also suggested that homeless people perform more effectively in legal processes that are more accessible and that offer more flexible service delivery, such as the SSAT, the NSW Ombudsman (Community Service Division) and the HAC. However, getting to these arenas can be a problem, particularly when the process is lengthy and multi-levelled. It appears from our investigations that often homeless people simply do not last the distance. Furthermore, court and bureaucratic appeal forms are too complicated for people who, in many instances, have comprehension and literacy problems.

Special courts, special lists and programs, although not specifically focused at homeless people, attempt to address legal need in a more flexible and supportive environment. Examples discussed here include the Red Hook Community Justice Center (New York), the California Homeless Court, the NSW Drug Courts, the MERIT program and the Victorian Special Circumstances List. The features of these which increase participation for homeless people include:


However, even when processes are simplified, the complexity of homeless people’s legal issues, the inevitable power imbalance between them and those they face in courts and tribunals, and the multiple barriers they face in accessing these arenas highlight the importance of ongoing advocacy and support for this client group.



1  MacKenzie & Chamberlain, Homeless Careers, p 37.
2  Interview no. 17.
3  Caseworker 2. It should be noted that a duty lawyer scheme is in operation at Parramatta, Sydney and Newcastle Family Courts, with a view to being extended to other courts statewide.
4  They might not have passed the means or merit test applied to legal aid eligibility.
5  Caseworker 2.
6  Roundtable Consultation, 27 August, 2003.
7  Consultations with Phil Lynch, VPILCH HPLC, October 2003, Grace Abrams, The Gender Centre, January 2004.
8  Consultation with Phil Lynch, VPILCH HPLC, October 2003.
9  Consultation with Jane Sanders, Shopfront, September 2003.
10  Consultation with IDRS, October 2003.
11  Consultation with IDRS, October 2003, NHHIN Forum.
12  NHHIN Forum, Working Group 2.
13  NHHIN Forum, Working Group 3.
14  Law and Justice Foundation of NSW, Access to Justice and Legal Needs. Stage 1: Public Consultations, p.173.
15  Caseworker 1.
16  Interview nos. 6, 7, 8, 13 & 28. See also Law Council of Australia, Erosion of Legal Representation in the Australian Justice System, Law Council of Australia, 2004.
17  Interview no. 8.
18  Victims need to have reported a crime to the police within a reasonable amount of time. However, late applications may be accepted by the tribunal if the matter was not reported to the police within a reasonable time, in some circumstances. A number of factors such as the age and mental health of the victim, the nature of the injury and whether the victim felt discouraged from reporting to the police will be taken into account in determining whether an application should proceed. The Law Handbook pp. 108283.
19  Consultation with Grace Abrams, Gender Centre, January 2004, Roundtable Consultation, 27 August 2003.
20  Roundtable Consultation, 27 August 2003.
21  A Neame & M Heenan, What Lies Behind the Hidden Figure of Sexual Assault? Issues of Prevalence and Disclosure, Briefing Paper 1, Australian Centre for the Study of Sexual Assault, Australian Institute of Family Studies, 2003, <http://www.aifs.gov.au/acssa/pubs/briefing/acssa_briefing1.pdf> (accessed February 2004), p. 11.
22  Roundtable Consultation, 27 August. 2003.
23  Interview no. 29, young woman with a mental illness.
24  NHHIN Forum, Working Group 1.
25  D McConnell, G Llewellyn and L Ferronato, Parents with a Disability and the NSW Childrens Court, Family Support and Services Project, University of Sydney, Sydney, 2000, p. 54.
26  Interviews nos. 22 & 28.
27  Roundtable Consultation, 27 August 2003.
28  Roundtable Consultation, 27 August 2003.
29  NHHIN Forum, Working Group 1.
30  Consultation with Tenants Union, tenancy workers and BLAG, January 2004.
31  Consultations with Paul Robinson, North & North West Community Legal Service, December 2003, Tenants Union, tenancy workers and BLAG, January 2004. See also CTTT, Chairpersons Directions on Adjournment Requests, 2004, <http://www.fairtrading.nsw.gov.au/corporate/cttt/hearinginformation.html> (accessed April 2005).
32  Consultation with Brian Sandland, Criminal Law Division, Legal Aid NSW, October 2003. See also Burdekin report, p. 261, J Popovich, Homelessness and the Law A View from the Bench, Parity, vol. 17, no. 1, 2004, p. 56. (See Chapter 7 for definition of bail.)
33  Burdekin report, p. 261.
34  J Fitzgerald & D Weatherburn, The Impact of the Bail Amendment (Repeat Offenders) Act 2002, Crime and Justice Bulletin, no. 83, 2004, <http://www.lawlink.nsw.gov.au/lawlink/bocsar/ll_bocsar.nsf/vwFiles/CJB83.pdf/$file/CJB83.pdf> (accessed November 2004).
35  Bail Act 1978 (NSW), s. 36(2B).
36  Johns, Bail Law and Practice.
37  The Hon. Dr Arthur Chesterfield-Evans, Bail Amendment (Repeat Offenders) Act 2002 (NSW), Second Reading Speech, Hansard, 2004, p. 1888, NSW Legislative Council Select Committee on the Increase in Prisoner Population, Interim Report: Issues Relating to Women, Sydney, 2000, para. 6.16.
38  Consultations with Felicity Reynolds, Senior Project Coordinator, Homelessness, City of Sydney, Kaylean Smith, HPIC, Keiran Booth, City Street Outreach Service, Independent Community Living Association, and Carole Basile, Homeless Brokerage Program, YWCA, January 2004.
39  Consultations with Felicity Reynolds, Senior Project Coordinator, Homelessness, City of Sydney, Kaylean Smith, HPIC, Keiran Booth, City Street Outreach Service, Independent Community Living Association, and Carol Basile, Coordinator, Homelessness Brokerage Program, YWCA, January 2004, Sybille Kacorek, Community Development & Research Worker, San Miguel Family Centre, November, 2003, Drew Roberts, AHO, December 2003, Richard Ikaafu, WALS, Walgett, May 2004, Deb Gardam, Walgett SAAP, February 2004, Jane Sanders, Shopfront, September 2003, NHHIN Forum, Working Group 1, Chung et al, Submission from Prue Gregory on behalf of the LCRC.
40  See Chapter 5.
41  See Chapter 6.
42  Examples given in NHHIN, Working Groups 1 & 3, Consultations with Deb Gardam, Walgett SAAP, February 2004 and Jane Sanders, Shopfront, September 2003.
43  Law and Justice Foundation of New South Wales, Access to Justice Research Program. Stage 1 Public Consultations, p. 144.
44  Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s. 36(3).
45  Lynch & Klease, p. 34.
46  Law and Justice Foundation of NSW, Access to Justice Research Program. Stage 1 Public Consultations, p.1657.
47  NHHIN Forum, Working Group 4.
48  NHHIN Forum, Working Group 1 & 4. See also Law and Justice Foundation of NSW Access to Justice Research Program. Stage 1 Public Consultations, p. 166.
49  Consultation with Bernard Kelly-Edwards, Hebersham Aboriginal Youth Service, March 2004.
50  Consultation with Drew Roberts, AHO, December 2003.
51  Submission by Prue Gregory on behalf of LCRC, 21 September 2002. See also Law and Justice Foundation of NSW, Access to Justice Research Program. Stage 1 Public Consultations, pp. 1357.
52  Consultation with Brian Sandland, Criminal Law Division, Legal Aid NSW, October 2003.
53  See <http://www.housing.nsw.gov.au/> (accessed 2 September 2004).
54  HAC, Decisions That Can Be Appealed, <www.hac.nsw.gov.au/appeal/appealable.html> (accessed November 2004).
55  See <www.hac.nsw.gov.au> (accessed March 2004).
56  See <www.hac.nsw.gov.au> (accessed March 2004).
57  Consultation with Emma Golledge, Coordinator, PIAC/PILCH HPLS, August 2004.
58  NHHIN Forum, Working Group 1.
59  Consultation with Emma Golledge, Coordinator, PIAC/PILCH HPLS, August 2004.
60  Consultation with Tenants Union, tenancy workers and BLAG, January 2004.
61  Pearce et al.paras 8.68.8.
62  This excludes where the customer has failed to enter into a preparing for work agreement.
63  National Welfare Rights Network, Appeals How to Appeal Against a Centrelink Decision, 2004, <http://www.welfarerights.org.au/factsheets/fs_appeal.doc> (accessed November 2004).
64  Pearce et al., para. 8.8.
65  Rossiter & Sutton, p.27.
66  AFHO, Preventing Centrelink Applied Breaches Among Young People (and Others) Utilising SAAP and Other Non-Government Services, Parity, vol. 14, no. 7, 2001, p. 17.
67  Interview no. 2, Consultation with Emma Golledge, Coordinator, PIAC/PILCH HPLS, August 2004. See also P Horbury, Social Security Law and Homelessness, Parity, vol. 17, no. 1, 2004, pp. 468
68  Horbury, p. 46.
69  Pearce et al., para 8.8.
70  ICLC & Redfern Legal Centre, Fined Out, 2004, p. 4, <http://www.iclc.org.au/fined_out/> (accessed November 2004).
71  V Ford, Penalties and Fines on CityRail Trains and Property, Youth Action Policy Association fact sheet, 2003, p.3, <http://www.yapa.org.au/facts/trainfines.pdf> (accessed November 2004).
72  See Fines Act 1996 (NSW), s. 63(2), Fines Regulation 1997 (NSW), r 13.
73  Caseworker 4.
74  Fines Act 1996 (NSW), ss. 48, 49, 100, 101.
75  Sanders, Fines and Young People, p.1.
76  See ICLC & Redfern Legal Centre, Fined Out, pp. 205.
77  Fines Act 1996 (NSW), s. 120(2).
78  Interview no. 14.
79  Consultation with Deb Gardam, Walgett SAAP, February 2004.
80  Roundtable Consultation, 27 August 2003.
81  Consultation with Jane Sanders, Shopfront, September 2003.
82  See Law and Justice Foundation of NSW, Access to Justice Research Program. Stage 1 Public Consultations, pp. 1356.
83  Roundtable Consultation, 27 August, 2003
84  Law Council of Australia, Australian Law Reform Commission (ALRC), Managing Justice A Review of the Federal Civil Justice System, Report No. 89, ALRC, 2000, <http://www.austlii.edu.au/au/other/alrc/publications/reports/89/>. Studies focusing specifically on young people include: NSW Parliament Legislative Council Standing Committee on Social Issues, Inquiry into Childrens Advocacy, NSW Parliament, Sydney, 1996, <http://www.parliament.nsw.gov.au/prod/parlment/committee.nsf/c91ccf757cb06189ca256e500038888d/01da900109670cd5ca256f27000afb95!OpenDocument>, NSW Parliament Legislative Committee on Social Issues, Juvenile Justice in NSW, Final Report, No. 4, NSW Parliament, Sydney, 1992 <http://www.parliament.nsw.gov.au/prod/parlment/committee.nsf/c91ccf757cb06189ca256e500038888d/3e98b5a8616d0640ca256f2b00088473!OpenDocument> (accessed February 2005), ALRC & HREOC, Seen and Heard: Priority for Children in the Legal Process, 84, AGPS, Sydney, 1997, Youth Justice Coalition (NSW), Kids in Justice: A Blueprint for the Nineties. Overview and Full Reports of the Youth Justice Project, Youth Justice Coalition, Sydney, 1990.
85  Chung et al., p. 3.
86  ALRC, para. 5.209.
87  Roundtable Consultation, 27 August 2003.
88  Tenants Union, Tenants Rights Fact Sheet No. 11: Consumer, Trader and Tenancy Union, 2004, <http://www.tenants.org.au/factsheet/28.html> (accessed November 2004).
89  Consultation with Tenants Union, tenancy workers and BLAG, January 2004.
90  Consultation with Tenants Union, tenancy workers and BLAG, January 2004.
91  Roundtable Consultation, 29 August 2003.
92  Submission from Prue Gregory on behalf of the LCRC.
93  Burdekin report, section 21.14.
94  Interview nos. 10 & 15, Roundtable Consultation, 27 August 2003, Roundtable Consultation, 29 August 2003, NHHIN Forum, Working Group 1.
95  Consultation with Brian Sandland, Criminal Law Division, Legal Aid NSW, October 2003.
96  HAC, Decisions That Can Be Appealed.
97  National Welfare Rights Network, Appeals How to Appeal Against a Centrelink Decision.
98  Roundtable Consultation, 29 August 2003.
99  NSW Ombudsman, Complaints and Investigations, <http://www.ombo.nsw.gov.au/complaints/index.html> (accessed November 2004).
100  BJ Winick, Therapeutic Jurisprudence Defined, undated, <http://www.brucewinick.com/Therapeutic%20Jurisprudence.htm> (accessed January 2005).
101  M Shanahan et al., Cost-Effectiveness Analysis of the NSW Adult Drug Court Program, Evaluation Review, vol. 28, no. 1, 2004.
102  The Enforcement Review Pilot Program is a specialist list in the Victorian Magistrates Court. Specialist lists are lists of specific matters heard within one court. The Victorian Deputy Chief Magistrate, Jelena Popovic, has argued that specialist lists such as these are more effective than specialist courts, usually geographically limited usually to inner-city or metropolitan locations: Consultation with Jelena Popovic, Magistrates Court of Victoria, November 2003. The program has been included in this report because of its particular relevance to homeless people and because there is no current NSW equivalent.
103  Consultation with Chris Grant, NSW Drug Court, October 2003.
104  Drug Court Act 1998 (NSW), s. 3, Consultation with Chris Grant, NSW Drug Court, October 2003.
105  Consultation with Chris Grant, NSW Drug Court, October 2003.
106  Consultation with Chris Grant, NSW Drug Court, October 2003.
107  Consultation with Chris Grant, NSW Drug Court, October 2003.
108  S Taplin, Process Evaluation of the NSW Drug Court: A Qualitative Study, NSW Bureau of Crime Statistics and Research, Sydney, 2001, p. 30.
109  Consultation with Chris Grant, NSW Drug Court, October 2003.
110  M Schirmer & J Riddle, Department of Justice Purchased SAAP Services: Drug Court Homelessness Assistance Program, in Beyond the Divide, <http://www.afho.org.au/4_publications/conference_papers/Mackenzie.pdf> (accessed November 2004), p. 4.
111  Consultation with Matthew Greenaway, Legal Aid NSW, Youth Drug Court, October 2003.
112  Consultation with Matthew Greenaway, Legal Aid NSW, Youth Drug Court, October 2003.
113  Consultation with Matthew Greenaway, Legal Aid NSW, Youth Drug Court, October 2003.
114  Consultation with Matthew Greenaway, Legal Aid NSW, Youth Drug Court, October 2003.
115  Consultation with Matthew Greenaway, Legal Aid NSW, Youth Drug Court, October 2003.
116  K Wong, The Youth Drug Court: Diverting and Rehabilitating. Do Practice and Theory Reflect the Principles of the Childrens Court?, University of NSW, Sydney, 2004, p. 25.
117  NSW Attorney Generals Department, Magistrates Early Referral into Treatment Program, <http://www.lawlink.nsw.gov.au/cpd/merit.nsf/pages/index> (accessed September 2004).
118  NSW Attorney Generals Department, Magistrates Early Referral into Treatment Program, Annual Report 2002, NSW Attorney Generals Department, Crime Prevention Division, 2003, http://www.lawlink.nsw.gov.au/cpd%5Cmerit.nsf/pages/Annual%20Report (accessed September 2004).
119  Consultation with Jelena Popovic, Magistrates Court of Victoria, November 2003.
120  Lynch & Klease, p.36.
121  Consultation with Jelena Popovic, Magistrates Court of Victoria, November 2003.
122  Lynch & Klease, p. 35.
123  In Victoria, the processing and enforcement of fines is managed entirely by the Penalty Enforcement Registration of Infringement Notices Court. In comparison, the NSW fines system involves three separate agencies (the IPB, the SDRO and the local court). To implement a special circumstances list in NSW changes would need to be made to the Fines Act. Changes should enable an application to be made to the SDRO for the unpaid fine/penalty notice to be referred back to the local court, to be heard in a special circumstances list.
124  Consultation with Jelena Popovic, Magistrates Court of Victoria, November 2003.
125  Centre for Court Innovation, Red Hook Community Justice Centre New York, http://www.courtinnovation.org/demo_09rhcjc.html (Accessed 23 November 2004).
126  Centre for Court Innovation, Red Hook Community Justice Centre New York.
127  Collaborative Justice Courts Advisory Committee, Homeless Courts, http://www.courtinfo.ca.gov/programs/collab/homeless.htm (Accessed 26 November 2004).
128  Lynch & Klease, pp. 345.