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Ch 1. Introduction
This study on the legal needs of homeless people in New South Wales (NSW) has been undertaken by the Law and Justice Foundation of NSW (the Foundation) as part of its Access to Justice and Legal Needs research program.1
Aim of this project
This project aims to explore the capacity of homeless people in NSW to:
- obtain legal assistance (including legal information, basic legal advice, initial legal assistance and legal representation)
- participate effectively in the legal system (including courts and tribunals)
- obtain assistance in legal processes from non-legal advocacy and support agencies (including non-legal early intervention).
It also examines the role of non-legal support workers and agencies in assisting homeless people to identify and address their legal issues. A separate study will examine the capacity of homeless and other disadvantaged groups to participate in law reform processes. Before considering these issues in more detail, it is important to discuss how ‘homelessness’ has been defined in this study.
What is 'homelessness'?
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Homelessness may represent a single acute episode in a person’s life, or it may be a state entered and exited intermittently.2
Definitions of ‘homelessness’ are the subject of ongoing debate. While some focus on the standard or nature of a person’s accommodation,3 others focus on issues of safety and security. Different definitions reflect cultural perspectives and experiences of homelessness (e.g. notions of spiritual homelessness experienced by Indigenous Australians). Noting the subjectivity of people’s different experiences, Memmott et al refers to homelessness as:
a continuum of experience that incorporates the literal state of being ‘roofless’, as well as those states in which people are ‘at risk’ of becoming homeless. Central to where a person, group or family may exist along this continuum is the somewhat elusive concept of ‘home’.4
Other definitions take into account broader risks than merely being unhoused. For example, the Victorian Council to Homeless Persons describes a homeless person as one whom:
is without a conventional home and lacks the economic and social supports that a home normally affords. She/he is often cut off from the support of relatives and friends, she/he has few independent resources and often has no immediate means and, in some cases, little prospect of self-support.5
The definition provided in the Supported Accommodation Assistance Act 1994 (Cth) states: “… a person is homeless if, and only if, he or she has inadequate access to safe and secure housing”.6 ‘Inadequate access to safe and secure housing’ includes situations that might damage health, threaten safety, marginalise the person from amenities and the economic and social support the home normally offers, or adversely affect the adequacy, safety, security and affordability of housing. People living in accommodation provided under the Supported Accommodation Assistance Program (SAAP) are also considered ‘homeless’ by this definition.7
Before establishing the working definition to be used in this study, we will briefly elaborate on the aspects of homelessness that go beyond the question of merely being housed or not.
Homelessness within the home
Some definitions of homelessness (including that used in SAAP) focus not on the style or standard of accommodation but on the person’s level of safety, security and privacy.8 It may be argued, for example, that significant violence at home can render people ‘homeless within their home’.9 The ‘housed homeless’ include young people who are victims of abuse or neglect, and partners who are victims of domestic violence.10 It is difficult to assess the number of people living in such situations in NSW. As Chung et al reported:
87% of women who experience violence do not approach a crisis service for assistance; they stay at home or other accommodation (Keys Young, 1998). National SAAP data has shown that of the women who have left the family home after experiencing violence, approximately 30% (31.9%) return, and in remote areas, almost 60% (58.5%).11
However, a report on the costs of domestic violence in Australia, drawing on data from the Australian Bureau of Statistics (ABS) Woman’s Safety Survey, estimate that a total of 327 500 women in Australia experienced some form of domestic violence in 2002–03. This represented 4.6% of women aged 18 or over.12
While clearly very disadvantaged, the ‘housed homeless’ will not be included within the working definition of homelessness for this project, provided later in this chapter. However, as a group at risk of homelessness, issues relevant to this group are discussed in this report.
Indigenous homelessness
In a study commissioned by the Commonwealth on homelessness in Aboriginal and Torres Strait Islander (ATSI) communities, Keys Young noted “that certain aspects of homelessness may be qualitatively different for ATSI people compared to other Australians who are homeless”.13 Drawing on Keys Young, Memmott et al identify the following five ‘working categories’ of homelessness experienced by Indigenous people.
- Living in public places: Indigenous ‘public place dwellers’ include people who live in public spaces and consider these places to be their home.14 For some, this is a relatively permanent arrangement while others may join this group from time to time. Some (but certainly not all) people may prefer living in the public space to housing alternatives. Memmott et al. observed that “this group may see recognition of their rights to public space and access to storage and ablution facilities as higher priorities than conventional accommodation”.15
- Transient homelessness: the transient homeless are those people who “experience temporary, intermittent and often cyclical patterns of homelessness due to transient and mobile lifestyles, living in temporary arrangements without secure tenure”.16 Memmott et al. argue that there is a degree of mobility within and between Indigenous communities that is “an expression of individual autonomy and reflects enduring social and cultural practices and values” and that this mobility should not be considered as ‘homeless’. However, they still consider mobility that “is problematic and expressive of instability and lack of support” as homelessness.17
- Spiritual homelessness: spiritual forms of homelessness may derive from: (a) separation from traditional land; (b) separation from family and kinship networks; or (c) a crisis of personal identity wherein one’s understanding or knowledge of how one relates to country, family and Indigenous identity systems is confused.18 In the Human Rights and Equal Opportunity Commission’s (HREOC) Bringing Them Home report, members of the ‘Stolen Generation’ described the loss of cultural links with their Indigenous community; a strong sense of not belonging in either the Indigenous or non-Indigenous communities; and the inability to establish the links necessary to prove ownership of native title as a result of being separated from their traditional lands.19 While issues relating to spiritual homelessness are acknowledged, they are not the subject of this report.
- Overcrowding: overcrowding has been a recurring theme in studies of Indigenous homelessness.20 In comparison to the national trend, Indigenous households tend to be larger and more complex, often made up of a number of family sub-groups.21 Memmott argues that the point at which an Indigenous household is considered ‘overcrowded’ may differ from other community standards, making it difficult to use definitions of homelessness that draw on “community standards for housing, residential mobility, household stress or insecurity”.22
- Escaping unsafe or unstable family circumstances: while domestic violence is by no means unique to Indigenous communities, this has been a key trigger in particular for Indigenous women and young people leaving the home. For some the move is temporary or cyclical, with the literature and consultations for the current study noting a pattern for some people of moving back and forth from a violent family home.23 Family breakdown and domestic violence has been identified as a key pathway to homelessness for Indigenous and non-Indigenous people,24 and as such is discussed extensively in the current study.
Towards a working definition
As described above, homelessness is not just the lack of bricks and mortar. Some people may feel ‘housed’ living in public space while others are homeless within their homes. For others, homelessness is characterised by constant movement in and out of different housing. Coleman perhaps provides the most inclusive view of homelessness, describing it as “having no legitimacy or control over the spaces in which one lives”.25
This report recognises the value of this encompassing definition and the hardship experienced by those who fall within it. However, the definition of homelessness used in this project is one articulated by Chamberlain and McKenzie and used by the ABS.26 Recognising that ‘homelessness’ is a socially constructed concept that only makes sense in a given place and time, Chamberlain and McKenzie form a definition that takes account of the ‘minimum community standard’ of expected accommodation.27 With this ‘standard’ in mind they identify three categories of homelessness:
- primary homelessness—people without conventional accommodation, such as those living on the streets, sleeping in parks, sheds or humpies, squatting in derelict buildings, or using cars or railway carriages for temporary shelter
- secondary homelessness—people who move frequently from one
- form of temporary shelter to another, including people using emergency accommodation (such as hostels for the homeless or night shelters); teenagers staying in youth refuges; women and children escaping domestic violence (staying in women’s refuges); people residing temporarily with other families (because they have no accommodation of their own) and those using boarding houses on an occasional or intermittent basis
- tertiary homelessness—people who live in boarding houses on a medium- to long-term basis. Residents of private boarding houses do not have a separate bedroom and living room; they do not have kitchen and bathroom facilities of their own; their accommodation is not self-contained; and they do not have security of tenure provided by a lease.28
A fourth group of people not counted as ‘homeless’ by the ABS, but who are included in this report, are ‘marginal residents of caravan parks’. These are “people who were renting their caravan, but no one at the dwelling had full-time employment and all persons were at their ‘usual address’”.29 Like boarding house residents, marginal residents of caravan parks (including families) rent a single space for eating, sleeping and cooking, and share communal bathroom facilities. Indeed, Chamberlain and Mackenzie observe, on the basis of data that they collated, that caravan parks are used as alternatives to boarding houses outside the capital cities.30 Like boarding houses, caravan parks may be used as emergency accommodation for some people as well as longer term housing for people unable to enter, or excluded from, public housing or the private rental market. For this reason, Chamberlain and Mackenzie suggest that “for some policy purposes, marginal residents of caravan [parks] might be thought of as a part of the tertiary population”.31 Note that this definition generally excludes older retirees or ‘sea changers’ who have chosen to live in residential parks.
While the neat categorisation of people into these groupings enables us to provide some picture of the extent of homelessness in NSW, it masks the mobility of homeless people between these groups (e.g. from primary to secondary homelessness). For many, homelessness is characterised by constant movement between different types of accommodation: the street, homeless shelters, boarding houses. Alternatively, it may be from home to a refuge, a family member, or a caravan park.
However, the Chamberlain and MacKenzie definition has been selected for two reasons. First, there are comprehensive ABS statistics available on the basis of this definition. This enables us to report estimates of the extent of homelessness in NSW and provides some boundaries to the scope of this project. Second, this definition is utilised among service providers and those writing about homelessness in this State.
Homelessness and the law
There are valuable data available about the extent and nature of homelessness in NSW.32 These are discussed in detail in Chapter 3. In addition, there has been a small but growing body of work in Australia examining the legal needs and rights of homeless people (particularly street-based homeless people). However, there is less information available about the access to justice issues faced by people living at primary, secondary and tertiary levels of homelessness in NSW, and about legal service provision to this diverse group. To understand the historical context of the current perspectives, it is useful to undertake a brief summary of the developments in legal approaches to homelessness in key reports, the broader literature and in consequent strategies to meet the (legal) needs of homeless people.
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:
- lobbying for the implementation of ‘human rights’ as defined in international law
- a rights-based approach to legal service provision
- involving homeless people in law reform.
International human rights and homelessness
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:
- lack of civil, administrative and summary criminal law assistance
- location and accessibility of legal services, courts, tribunals and court services
- lack of awareness of the law and their rights
- lack of confidence and empowerment required to seek legal assistance.57
Procedural barriers raised by other commentators include:
- lack of advocacy and support within bureaucratic and legal institutions58
- lack of face-to-face legal aid services in regional, rural and remote areas59
- lack of funding for youth legal services.60
Substantive barriers
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.
Structure of this report
This chapter has presented the context and rationale for the current study. It has outlined the evolving body of knowledge about the nature of homelessness in Australia and the legal and access to justice issues facing people when homeless. Building on this, the current study presents a picture of the particular legal needs of homeless people in NSW, the relevant legal and non-legal services available in this State, and the barriers faced by homeless people in recognising and pursuing their rights.
Chapter 2 of this report outlines the methodology used in this study.
Chapter 3 discusses the numbers of people experiencing homelessness in NSW, together with their geographic distribution, circumstances and characteristics.
Chapter 4 discusses the legal issues facing people as they enter and become entrenched in homelessness.
Chapter 5 explores the barriers faced by homeless people in identifying and seeking support for their legal issues.
Chapter 6 discusses the different types of legal assistance available to homeless people in NSW, the challenges services face in helping homeless clients, and the features of legal assistance services that increase their accessibilty and utility to homeless people.
Chapter 7 examines the role played by non-legal service providers in linking homeless people with legal assistance services and in assisting them to engage in legal processes.
Chapter 8 examines the barriers faced by homeless people to accessing and participating in legal processes relevant to their needs.
Chapter 9 draws together themes from the each of the chapters to present a summary of the legal needs and access justice issues facing homeless people in NSW.