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Ch 4. Legal issues facing homeless people in NSW
Legal problems are among the many complex issues facing people who are homeless. The purpose of this chapter is to identify the different types of legal issues facing homeless people in NSW.
People tend to face different legal issues as they move through a ‘homeless career’.1 For example, people becoming homeless as a result of family breakdown usually face family law and domestic violence-related issues. On the other hand, people becoming homeless as a result of financial crisis tend to face debt- and housing-related legal issues. Different again, when people have become entrenched in homelessness they tend to face legal issues related to fines and other criminal activities. This chapter will discuss the legal issues commonly encountered by the homeless, which are as follows:
- family law
- care and protection
- domestic violence
- victim of crime
- housing (including SAAP Services, boarding houses, caravan parks and villages)
- discrimination
- debt
- social security
- crime (including fines).
When describing the legal issues associated with people who are homeless, there are two important qualifications that should be kept in mind. First, identifying the legal issues facing people as they become homeless and once they have become homeless is useful for determining appropriate sites of intervention to address their issues. However, distinguishing between legal issues that lead into homelessness and the legal issues that maintain homelessness is more problematic. For example, a family that becomes homeless as a result of family breakdown and domestic violence may also have a housing-related legal issue.
Secondly, many homeless people have more than one legal issue affecting them at any one time. For instance, more than three-quarters of the homeless participants interviewed for the current study had experienced three or more legal issues. To illustrate further, in 2003 the Law and Justice Foundation of NSW conducted a telephone survey of legal need among more than 2400 people living in ‘disadvantaged’ areas of NSW (South Sydney, Fairfield, Campbelltown, Newcastle, Nambucca and Walgett).2 One hundred and twenty respondents indicated that they were or had been homeless during the last 12 months.3 Preliminary analysis of the survey data suggest that homeless respondents faced more legal events than respondents who were not homeless.4 Thus, at any one time a homeless person may have several legal issues and/ or their homelessness may place them at further risk of legal problems.
Family law
Family breakdown has been identified in the literature as a major contributing factor to homelessness for many women and men.5 As a result, people becoming homeless as a result of family breakdown may experience family law-related legal issues. This is supported by preliminary analysis of the Law and Justice Foundation’s Legal Needs Survey 2003, which suggests that a higher percentage of the homeless respondents surveyed had a family law issue compared with those who were not homeless.6 Family law-related issues, in particular child contact and residency, comprised more than half of the activities undertaken by the Women’s Legal Resource Centre for ‘homeless’ clients in the 2002–03.7 A number of homeless participants for this study reported experiencing family law-related legal issues.8
Issues to do with property settlement were reported as contributing to people’s financial disadvantage, which may exacerbate the experience and risk of homelessness for men, women and their families. In relation to her financial circumstances after her separation from her partner, one homeless participant stated:
I guess after my separation it was a bit difficult. And I didn’t get anything out of the separation. My ex just walked off with practically all my assets … His [new] partner made my life really difficult.9
A caseworker supporting homeless men reported that he had clients who had been financially disadvantaged by property settlements and were under financial pressure from child support commitments (particularly if they are on income support themselves).10
A number of homeless people in our study also reported problems with parenting orders, resulting in loss of custody to the other parent or reduced access to their children.
It’s playing with my head that kids, one day, you play with them, the next day you can never see them. They’re not dead, but you’ve just got no access to them. Originally I’m from WA. I’m married with two children (10 and 7). I’ve got a consent order for access to my children, but I am yet to see them for the first time. We are at war: I signed over the house in order to get access to the children, but because it was open-worded on the consent order, her access could be once every 60 years for 5 seconds, and that’s legal, ’cause there’s no time on it.11
Difficulties with parenting orders were reported to be compounded by a lack of appropriate housing. For instance, one caseworker spoke of a ‘catch-22’ situation, in which to get appropriate housing the parent needs to have residency of children, but in order to be granted residency of children, they must have appropriate housing. This caseworker was of the view that DOH would only give a single man a bedsit or a one-bedroom flat, even if he was seeking residency of his children. However, he added that not having appropriate housing can cause problems for men (and women) who are seeking residency of their children.12 This was also reported by Chamberlain and MacKenzie:
Colin, 34, lost his job and was subsequently evicted. He lived in his car for some weeks, before moving to a boarding house. He has one son from a previous relationship. Five-year-old son, the heart and soul of his life, is not permitted to stay at the rooming house with him. Custody hearing only now allows him daytime access. They go to parks, beaches, swimming pools, and films, all at higher cost than their home. He is currently behind with his rent and at risk of losing his single room.13
Care and protection
Parents
Interviews for this study indicated that care and protection issues were a problem for many homeless people. Care and protection matters concern the intervention of the State government through the Department of Community Services (DoCS) into the lives of children who are at risk of abuse or neglect.14 Some families who are homeless were reported to be afraid that DoCS would remove their child if they admit that they are homeless.15 Furthermore, due to mandatory reporting obligations for DoCS, parents also reported being afraid of approaching services (including SAAP services) with their children, for fear that their children will be removed by DoCS. A single mother told researchers in one study:
I’ve already been involved with Family Services and was frightened to admit I was homeless. They might separate us, and send my son to a shelter, or take the younger children into care. I didnt know what to do. It was terrible. I felt like such a failure to my kids.16
This type of fear was reported to be exacerbated in small towns where refuge or SAAP workers and DoCS workers know each other.17
A number of homeless people consulted in this study had children who were already in the care of DoCS. One participant described the difficulties she encountered in trying to set up suitable accommodation so she could have her children returned to her:
I had DoCS involved. I had family services involved. We had a meeting and they all, Department of Housing and everything, they all put references in to have me priority-housed. This went on for about six months. Then they told me there was nothing available. At that time, I told them that I’d take anything. One room even, just so that I had somewhere for me and the kids to sleep. They told me that there was nothing available.18
Children and young people
While this study did not examine care and protection issues in detail, in the literature, homeless children and young people are reported to often have a history of interaction with DoCS. Young people may have already been in care prior to becoming homeless, or they might come into contact with DoCS after they become homelessness.19 The prevalence of care and protection issues was raised in the 1989 Burdekin report: a study commissioned for the report, which documented the experiences of 100 homeless children in Queensland and NSW, found that 29 per cent of children interviewed had been the subjects of a child welfare report.20 The report also found that Aboriginal children nationally are over-represented in child welfare.21
Two young people interviewed for this study also had children who were in the care of DoCS. One had also been under DoCS care herself when she found out that she was pregnant:
He’s with DoCS because I had him when I was 16. I was underneath DoCS at the time … I ended up having a mental breakdown. There was only three choices I had—give my son to my mother, give my son to my uncle or hand him over to DoCS. I wasn’t going to give him to my mum because she was an alcoholic and was abusive. My uncle was the father. So, the only other choice I had was to give him to DoCS. I signed the papers and that.22
Legal issues arise when parents or young people wish to challenge the care orders made about them.23
Domestic violence
Victims
The literature indicates that domestic violence contributes to homelessness for women and their families when women have to leave their homes in order to escape the violence.24 When this is coupled with the financial disadvantage they may experience as a result of leaving their partners, homelessness can become a reality for these women. In 2002–03 an estimated 94 400 people in Australia were homeless due to domestic violence.25 In the same period, the estimated temporary accommodation costs due to domestic violence was $88.1 million.26
Early indications from the Law and Justice Foundation’s Legal Needs Survey are that a higher percentage of homeless respondents had a legal issue arising from domestic violence compared with other respondents.27 Further, domestic violence-related issues accounted for the second largest group of legal activities undertaken by the WLS for ‘homeless’ clients in 2002–03, after family law (including child contact and residency issues).28
Women who experience domestic violence may leave and return to their homes many times before leaving permanently.29 The path into homelessness for women who experience domestic violence appears to start often after they have experienced the violence for a sustained period of time, and are consequently forced to leave home to stay with friends or family, or at a refuge or other SAAP service.
I lived in Canberra with my ex. He was too violent so I came back home here with my kids. And I have been living with mum ever since.30
Chamberlain and MacKenzie note that intervention at this point is difficult because many women do not seek assistance.31 Relevant legal processes at this point may include securing an apprehended violence order (AVO), with or without an exclusion order, family law matters, including child residency and contact, child support and property settlements (e.g. shared debts).
One caseworker from the Hunter region commented that if a woman leaves her partner because of domestic violence, the stress of the relationship breakdown is compounded by having to find safe accommodation and deal with the legal issues arising from the relationship breakdown. In this caseworker’s experience, women may find life more out of control and difficult when they leave the domestic violence situation than when they were in it.32
Exclusion orders
An apprehended violence order (AVO) is one option for people experiencing domestic violence. AVOs can impose a number of conditions on the defendant, namely, the prohibition of the defendant from assaulting, threatening or interfering with the person in need of protection.33 In addition, a Magistrate can also make an ‘exclusion order’ under s 562D of the Crimes Act 1900 (NSW). This prohibits the defendant from staying at or entering the family home, regardless of their legal interest in the property.34 Addressing domestic violence through AVOs and exclusion orders can alleviate homelessness for women in some circumstances, because:
For women and children victims of domestic violence, exclusion orders provide an opportunity to leave a situation of domestic violence but remain in their own homes.35
The reality is, however, that exclusion orders are used infrequently in the justice system and women are still leaving home following domestic violence. Edwards conducted a study into the granting of exclusion orders in NSW at local courts in Waverley and Sutherland.36 The study found that exclusion orders are often not attached to AVOs. For example, 32 exclusion orders between both courts were made over a six-month period compared to approximately 30 AVOs at Waverley Local Court and 50 AVOs at Sutherland Local Court per week.37
In granting exclusion orders, Magistrates must consider the accommodation needs of the parties involved and any effects on the children.38 Edwards found that the accommodation needs of the defendant were being considered over the accommodation needs and general interests of women and children; a lack of available accommodation for the defendant was often cited by Magistrates as a reason for not granting exclusion orders.39
Edwards also highlights the role of the police in granting exclusion orders through the use of Telephone Interim orders. These are orders made in situations where it is not possible to have an AVO made straightaway in court, but where the police believe that a domestic violence offence has occurred.40 Edwards found that it was easier to have an exclusion order granted as part of a telephone interim order and to have it continued than at a hearing.41
In summary, exclusion orders can play a significant role in preventing women and children from becoming homeless. Edwards provides strong argument for the need for police and magistrates to be better informed of the existence of exclusion orders and their relevance in preventing homelessness for women and families. As one victim asked:
Why do we women live in refuges when the perpetrators live in the comfort to which they are accustomed? Why must we three eke out a living on a pension of $330 per week of which $130 goes in rent while my husband lives on his salary of $750 per week of which $85 goes on the mortgage and lives alone in a four-bedroom, two-bathroom house.42
Defendants
Perpetrators also face legal issues arising out of domestic violence. Defendants may be rendered homeless by the enforcement of exclusion orders43 that contain ‘do not approach’ and ‘not to contact’ provisions.44 A lack of alternative accommodation can push defendants into homelessness. This not only affects men, but women and young people who are defendants to AVOs. One woman who was interviewed stated:
I had my own Housing Commission place, and two children. The father and I separated and the kids find it very hard, they are very nasty to me. So my daughter (17 years old) was in a gang so I slapped her, and because I hurt her she reported it to the police … She put an AVO on me. I had to leave my own house and have the father move in with her, so I pay the rent there and I can’t even live there.45
Another stakeholder spoke about young people as defendants to AVOs:
One thing that has been coming up recently is often breach of AVOs, where they’ve had to leave their parents house, or their mother’s house, fathers had to leave and when there’s been police involved, the police have encouraged the family to take an AVO on a young person, then maybe after a week or two the young people has again gone to approach them, the family or whatever, and it may not necessarily be for any sort of violence, it’s just the young kid wants to go home again and he ends up getting his AVO breached again like that.46
One rural solicitor said that it was fairly common for people to be breached for going home when they weren’t allowed to, particularly if they were intoxicated.47
Victim of crime
Many homeless people (women, men and young people) have been victims of crime. A lack of secure housing means that many homeless people are vulnerable to acts of violence while homeless. In the Law and Justice Foundation’s Legal Needs Survey 2003, preliminary analyses of the data suggest that a higher percentage of homeless respondents said they had been a victim of assault in the previous year compared with other respondents.48 In a 1998 study of homeless people living in inner-city Sydney, 58% of the 157 respondents had been seriously physically attacked or assaulted, 46% had been threatened with a weapon, held captive or kidnapped, and 55% had witnessed a serious crime while homeless. Among the 38 women who were surveyed, two thirds had been indecently assaulted and half had been raped while homeless.49
Twenty of the 30 homeless people interviewed in the current study reported that they had experienced crimes such as assault, stalking and sexual assault, being ‘conned’, being mugged and having their property stolen while homeless.
A manager in a SAAP service for men referred to the dangers of living on the streets for homeless people and the threats to safety that they face. He said that many of their clients come in during the day to sleep, having kept ‘one eye open’ to ensure their safety while sleeping rough during the night.50 One participant stated:
When you’re living out on the street, you’ve gotta be careful and you’ve gotta watch where you go down, where you go to sleep, because you don’t know whose gonna come up after you. And if they find out that you’ve been paid, then they’re a threat. They want to come up and rob you, because they know you’ve got a pension.51
Another participant reported having been the victim of crime on three separate occasions:
I got threatened by a guy with a syringe. That was in Redfern … I also got hit on the head with a big heavy frypan and got concussion. I was also robbed at knifepoint at the Cross but that was a few years ago. I reported it as I was a bit scared and really pissed off. He took me gear and me money.52
A few of the homeless participants in this study also reported being the victim of a crime while they were staying at a boarding house or refuge.
I was in a very unfortunate situation where I was socially and in company with some people and this gentleman stalked me and he came into the place where I was staying (a boarding house in inner-city Sydney) and he accused me of stealing a laptop computer and he went to the police and told them that I stole the laptop computer, and of course I had no knowledge and it transpired that he was a con artist and as a result I had to leave my hotel where I was staying.53
I won three meat trays. I had them all in the fridge frozen and put them into small sections … I came home that night and found they had just got a knife and had cut the bags open.54
Consistent with experiences cited in the literature,55 women living on the street reported being vulnerable to assault, including sexual assault.
I’ve been homeless for about six weeks and for the first four weeks I stayed at a place a friend was staying and they were all alcoholics and it got to the stage where the men expected sex from me to stay there. So I said no and I left and I fell asleep in the park, and I was almost raped.56
Other groups such as gay and lesbian and transgender people who are homeless are also at great risk of violence on the streets. A social worker from the Gender Centre stated that there are many examples of homeless transgender people suffering violent assault, abuse and murder.57 One young transgender woman working as a prostitute reported:
I’ve been raped and bashed. And the guy got off with a fucking speed charge, because I was a sex worker and it’s what you should expect.58
Consultations with stakeholders and participants in the current and other studies suggest that many homeless people were victims of crime as children.59 One caseworker commented:
A lot of our clients present with a past history of having been say in institutional care in their younger years and you know there’s allegations of physical sexual abuse and so on that have contributed to their psychological damage and some of these people want to pursue civil action to recover compensation.60
One participant stated:
I was sexually abused by my father as a child. There was one stage about four years ago when I thought I should do something about it. I went to the police and they said it is a long time ago and you would have a hard time proving it … and don’t waste our time basically. And so that was pretty hard.61
People who have been the victim of a violent crime current and past and suffered an injury as a result can apply to the Victim’s Compensation Tribunal under the Victims Support and Rehabilitation Act 1996 (NSW).62 A number of the legal clinics that provide services to homeless people in Sydney assist clients to complete applications for victim’s compensation.63 Applications to the Victim’s Compensation Tribunal will be discussed in further detail in Chapter 8.
Housing
As defined in Chapter 1, people who are homeless may be living on the street, in SAAP accommodation or a refuge, with family or friends, or in a boarding house or caravan park. People at risk of homelessness might be living in private rental accommodation or public housing. Housing-related legal issues vary with accommodation type.
Preliminary analysis of the Law and Justice Foundation’s Legal Needs Survey 2003 indicated that an overwhelming number of homeless people reported that they had had a housing-related legal issue in the twelve months prior to the survey.64 These data may reflect Chamberlain and MacKenzie’s notion of the ‘housing crisis career’, in which adults begin to move into homelessness as a result of financial and housing problems, which lead to them losing their accommodation and becoming homeless.65
Legal issues relating to housing may essentially be divided between those issues that contribute to a loss of accommodation, and those issues that lead to people having problems regaining stable accommodation once they are homeless. Ideally, legal intervention should occur before people lose their accommodation. However, people may also need legal assistance to regain accommodation.
Housing-related debt
Consultations with stakeholder groups and homeless people for the current study indicated that housing-related debt can contribute to people losing their accommodation and prevent them from regaining it. Debts can arise from rent arrears or from damage to a property, with the accumulation of debt potentially leading to eviction. This can occur in the private rental market, public housing, boarding houses and caravan parks. However, most of the following examples refer to tenants’ relationships with the DOH, perhaps reflecting the experience of those interviewed for this study.
Rent arrears
Some participants reported falling into arrears with their rent as a result of financial disadvantage or loss of income.
When Social Security cut me off the dole, I was made homeless. No money to pay rent. That was it. So luckily for me I went and saw the Housing people and they said … tough luck, bugger off and come back in 12 years’ time.66
An older Indigenous woman living in public housing said that she faced eviction because she had fallen behind in rent due when in hospital for a month.
I went down to Sydney for hospital for a while …so I got so far behind. They want me to put $1000 in on Friday and I haven’t got it. So they are going to kick me out.67
Damage
Debt arising from damage to a property caused by tenants themselves or by others (including family or friends) is another source of housing-related debt. WLS staff, including domestic violence support workers, commented that they had many female clients with DOH debt arising from damage caused by their partners to the property in domestic violence situations.68 The following case study exemplifies this problem. The woman from rural NSW described below was homeless with her three children under the age of seven.
She had left her de facto (who was father of children) two weeks before the baby was born. She was living out of her car staying at several friends’ houses. He had a history of violence to her. One year previously they were living together with their children in a Department of Housing house in another town. He violently assaulted her causing her physical injuries and causing extensive damage to several walls in the house and the door. She fled the home and notified the Department of Housing that she was handing in the keys. At the date of relinquishing her tenancy she had several hundred dollars in arrears. The Department of Housing tenancy agreement listed her and de facto jointly as tenants. She accrued a further one week’s rental debt as she handed her keys in at the beginning of the rental period (and so was liable for the full two weeks’ rental). The Department of Housing assessed the damage to her home at $2000. She had a debt to the Department of Housing of about $3000 (rental arrears and damages/repairs).
She began paying small amounts of this debt during the year. She did not make regular payments but did make lump sums when she had the money—$50 amounts here and there and several $200 one off payments.
After leaving her de facto she approached the Department of Housing for emergency/priority housing. She was advised by the Department of Housing that she could not go back onto the Priority Housing Waiting List until she had substantially repaid her debt to the department. She approached two real estate agents in town to inquire about homes for private rental. They said there were no properties available. The Department of Housing had sent her an ‘Acknowledgement of debt’ form to sign, stating that she accepted the debt and nominating a suitable repayment regime.69
Problems arise when people do not notify DOH when another person causes damage to their property, or if they leave their property without notifying the department and other people continue to inhabit the property.
He [teenage son] got straight into the house after I moved out and it was just trashed. So I got a bill there. I just wasn’t thinking straight. I never notified them. I never told them I was moving out.70
Damage by others was identified by one caseworker as a particular issue for people going to prison who do not want to lose their DOH property, so they allow their friends or family to live in the property. The tenant is subsequently responsible for any damage done to the property or rent not paid while they were in prison.71
Outstanding debt
As well as contributing to homelessness, outstanding housing debt was identified as a barrier for people trying to re-access DOH accommodation. To be eligible for public housing a tenant has to “repay, or undertake a formal agreement to repay, any outstanding debts owed to the Department [i.e. DOH]”.72 Some housing debts were said by caseworkers to be as high as $6000.73 DOH will negotiate arrangements with tenants to repay rental arrears, which may include paying by instalments. However, one caseworker stated that more recently this had become much harder to do.
But they’re not allowed to access housing again until such time as that debt is paid off. So they can’t live anywhere. They can’t generally work because they can’t present themselves properly to work so how do they end up getting back into the system? So how do we have these laws that allow these things to happen?
Public housing plays a crucial role in the provision of stable accommodation to many financially and socially disadvantaged people. Hence, exclusion from public housing prohibits people from accessing stable accommodation, putting them at direct risk of homelessness.74
Renewable tenancy agreements
The NSW Government recently passed the Residential Tenancies Amendment (Public Housing) Act 2004 (NSW) to target ‘anti-social behaviour’ in public housing.75
Under the Act, ‘acceptable behaviour agreements’ (ABAs) may be used by DOH to regulate the behaviour of those tenants that it believes are responsible for anti-social behaviour.76 Where any other ‘lawful occupant’ of the premises breaches the ABA, the tenant who has signed an ABA is treated as having breached the ABA themselves.77 DOH plans to implement these powers once it has drafted its related policy, and trialled ABAs in two geographic areas.78
The new laws require that, following an application from DOH, the Consumer, Trader and Tenancy Tribunal (CTTT) must order that the tenancy be terminated in either of two situations:
- a tenant refuses the DOH’s request to sign an ABA79
- a tenant cannot prove that a member of the household, or any lawful occupant of the premises, did not seriously or persistently breach the ABA.80
Further, even where no ABA applies, the new laws provide extra grounds for the CTTT to grant an application from DOH for immediate termination of the tenancy, such as where the tenant has intentionally engaged in conduct that would be reasonably likely to cause a member of staff to be intimidated or harassed.81
These laws have the potential to put public housing tenants at greater risk of homelessness. They present particular problems for tenants (and their families) with mental illnesses, acquired brain injuries or intellectual disabilities.82 The government envisages that the particular difficulties faced by such tenants will be addressed through support from interagency specialist response teams.83 However the decision not to provide extra funding to staff this initiative has been criticised by one service provider.84
Residential tenancy databases (RTDs)
There are several RTDs operating in NSW.85 Each are privately owned electronic databases that purport to act as ‘risk minimisation’ services for property managers (including landlords, real estate agents, caravan park owners and boarding house operators). For a fee, property managers can use them to gain access to adverse information about prospective tenants.86
RTDs were identified by a number of caseworkers and tenancy workers in this study as a significant barrier to homeless people re-entering the private rental market.87 Landlords or real estate agents can place people on these lists and essentially ‘blacklist’ them, whereby other landlords will not rent out properties to listed tenants.
If you end up on a tenant black-list, then you cannot gain accommodation, and then you get back into that problem of falsifying documents to regain some sort of accommodation.88
During the course of this research, tenancy workers and other caseworkers commented that there was no legislation governing the use of RTDs, nor were there mechanisms for appealing a decision to place a tenant on a database.89 They felt that people were being put on such databases arbitrarily and, “even if an issue was resolved, it was very difficult to get off a database, making it very difficult to secure accommodation”.90 Tenancy workers also felt that people were being put on the databases for making complaints to the CTTT, or for personality clashes with real estate agents.91 In the late 1990s, Boswell and Warren estimated that about 7500 tenants in NSW may be adversely affected by RTDs per year. They also suggest that this number is likely to have significantly increased with the growth of RTDs over the past decade.92
Until recently, residential tenancy databases operated largely unchecked by government regulation.93 However, legislation introduced on 15 September 2004 established a new Rule of Conduct for real estate agents, aimed at making the listing procedures of RTDs fairer.94 The legislation limits the reasons for which a real estate agent may list a tenant to situations including where debts are owed by the tenant to the landlord, or where the CTTT has terminated the tenancy because of the tenant’s behaviour.95 The new reforms have also set time limits for listings to be retained and improved the process for dealing with disputes about listings. Finally, tenants will no longer be charged up to $4.50 a minute to check whether they are listed on a database.96
While the new regulations in NSW fail to prohibit RTDs, they represent improved protection from RTD abuse for many tenants. However, they have been criticised for not going far enough, since they fail to provide tenants with rights which they can seek to have enforced by the CTTT. Further, they do not apply to database users who are not real estate agents, such as private landlords and boarding house or caravan park operators.97
Finally, the new restrictions purport to apply only to listings made after 15 September 2004,98 leaving the thousands of people who were listed before this date without the protection afforded by this new legislation. However, since the legislation is somewhat ambiguous on this point, there may be grounds for arguing that some of the provisions of the new Regulation also apply to pre-September 15 listings, such as the requirement that tenants have free access to listed information about themselves. It is uncertain how the Regulation will eventually be interpreted.
Boarding houses
Many homeless people, particularly in inner-city Sydney, live in boarding houses on a medium- to long-term basis.99 Because boarders and lodgers are excluded from the protection of the Residential Tenancies Act 1987 (NSW) (by s 6(1)(d) of that Act), boarding house residents lack legislative protection against arbitrary eviction, disputes over payment and other unfair treatment from boarding house landlords.100 This means that there is no regulation of living conditions, penalties for rent arrears or unfair and arbitrary evictions for people using this type of accommodation. Unsanitary and dangerous conditions, unsatisfactory lock systems on doors, people’s belongings being stolen, exorbitant rent and people’s reluctance to complain about these conditions for fear of being evicted were problems mentioned by participants and tenancy workers interviewed for this study. One participant noted:
The place where I was staying before I moved into this other place, they were charging $120 a week and it was just a pest-infested dive. You know, the place was filthy, the kitchen was filthy … no one was looking after the place so I just moved out. And things got taken out of me room too.101
Another participant had this to say:
It’s a dive. The toilet doesn’t flush, and when it does flush the water runs downstairs into the power box and a roof with a big hole in it. They’ve got smoke alarms that have got nothing in them. $230 a week, it’s disgusting. I felt safe there because I’ve got a partner. I didn’t felt safe there, you know. At night, you can’t lock the door. From the inside you can, from the outside it just unlocks. You pay $230 a week for this two-room nothing. You might as well be living on the street.102
One tenancy worker commented:
Repairs are another issue for boarders and lodgers. In fact, repairs are a big issue to them. A lot of boarders and lodgers are too scared to approach boarding house operators about repairs. Since boarders and lodgers do not have tenure, they want to maintain friendly relations with boarding house operators. Also, the physical presence of boarding house operators in the boarding house is relevant. The operators often live on the boarding house premises and collect rent from the boarders and lodgers. To the tenants, the boarding house operators are, therefore, scary figures. Thus, the tenants are too scared to approach the boarding house operators about repairs.103
A recent fire audit conducted by South Sydney City Council in 2002 reported dangerous conditions in boarding houses. This audit found that of the 100 boarding houses that underwent a fire inspection, over 95% of these required some degree of upgrading to meet current safety standards.104
Currently, there is no legislative protection against eviction or the use of penalties for boarding house residents who are late with rent.
Some people pay week-to-week. If they fall behind in their rent, some landlords may be lenient but others will evict them straight away.105
We stayed in a boarding house on ‘x’ Street. That was about May last year … [partner] went to Housing because he was on the dole at the time and he got three weeks’ rent [assistance] and that got us a room. But the second week he just got sick and we had to spend some of that bond cheque because he could not go up to work and by the third week he got a couple of days’ work and paid our rent but we were still behind because the policy was that for every day you are late with the rent you have to pay an extra $20. So we only lasted there not even a month.106
Furthermore, bonds required by boarding house operators are not held by the Office of Fair Trading or by any other rental bond board. Hence, landlords can retain bonds without a good reason.
One participant indicated that they would leave if a problem arose to avoid confrontation:
I am usually pretty well alright with landlords. Mainly with rooming houses—I’ve stayed with rooming houses—there’s just been problems, I don’t get along with someone, I’ll complain to management and this fellow’s been there longer than me so management will take his side. Just little things like that. To save confrontation I just move out and start again. It’s just easier to move on. In 22 years I couldn’t count all the addresses I’ve had. I’ve lived in four capital cities. Three capital cities in the last four months alone.107
The NSW Boarders and Lodgers Action Group (BLAG) has been conducting a long-term campaign for legislative reform to provide protection to people living in private boarding houses. A Boarders Bill has been drafted by BLAG, covering the legal process for eviction, a process for getting back possession of goods, a process for repairs and maintenance and a process for recovery of bond.108 However, at this stage, the bill has not been adopted.
Caravan parks and villages
-
I moved into a caravan. Now that is accommodation which does not require references, can be a week-to-week arrangement rather than a 3-month, 6-month or 12-month lease. A lot of us find ourselves in accommodation which is less than favourable. The kind of accommodation which you wouldn’t even consider as a dog kennel. In my caravan, the walls seeped water. But that’s where we find ourselves, because we can’t rent through the mainstream rental market.109
Caravan parks vary in type of clientele and standard. Some caravan parks cater only to tourists or elderly people while other parks may provide general accommodation in addition to holiday accommodation. Parks also vary in the amenities, services and standard of accommodation they offer. Our interviews indicate that the legal issues facing marginal residents of caravan parks110 and villages are similar to the legal issues facing people living in (inner-city) boarding houses. According to a solicitor working with park residents, like boarding houses, marginal residents may experience arbitrary eviction and in some residential parks conditions are unsanitary and unsafe.111 Another solicitor commented that there were often restrictions on the length of time people could stay in a park, since many parks evict people at the beginning of holiday seasons.112
Residential park residents who sign an agreement to rent are governed immediately by the following NSW legislation: Residential Parks Act 1998, Residential Parks Regulation 1999, Landlord and Tenant (Rental Bonds) Act 1977 and Consumer, Trader and Tenancy Tribunal Act 2001. Under these Acts they are assigned certain rights and can bring matters before the CTTT.113 However, park residents who have not entered into formal agreements with park owners have less protection from arbitrary eviction, and limited redress when conditions are unsanitary or they are treated unfairly. Consultations with tenancy workers suggest that many marginal residents of caravan parks fail to enter into formal agreements with park owners.114 Tenancy workers also report that like residents of boarding houses, people are often afraid to complain about conditions, for fear of being evicted.115 The story of one male caravan park resident illustrates this well.
He has been living in the park for 17 months. He has no written agreement. The tenant’s home is a van with a framed vinyl annex and wooden door with an inadequate lock. The van itself has no door. The annex’s door can be easily forced open, even when locked. The tenant has been burgled twice. He has been complaining to the park owner for the past 12 months about this and other problems but is fearful of eviction because he doesn’t have a written agreement.
There are urgent repairs needed: attached to van is a gas bottle which is leaking—the valve is faulty. The hot-water system sits adjacent to this bottle and has an open flame and only a thin piece of metal separates the flame from the gas bottle. Additionally, the electrical outlet in the kitchenette is buzzing and shorting out. Appliances continuously cut out and only through wiggling plugs can the tenant make them work.
Further, the van is infested with fleas (he has no pet), cockroaches, and rats; there is rat faeces all through his belongings. Vermin enter through a hole in the floor and, presumably because there is no door to the van.
Despite numerous requests by the tenant the park owner does not respond. Rather, he has told the tenant that he is planning to redevelop the park for under 55 year olds, the implication being that the tenant will be evicted at the owner’s whim. The tenant has therefore felt unable to take his complaints further for fear of eviction. He was raised in this area and has nowhere else to go.116
Thus, fear of eviction further limits the capacity of park residents to take action if they face arbitrary eviction or unsafe or unsanitary living conditions. This fear is compounded by the increase in the number of park closures due to development117 across NSW which has limited the availability of alternative accommodation once people are evicted.
Discrimination
Illegal discrimination has been identified as a factor that not only affects people while they are homeless but may also contribute to their becoming homeless. For example, discrimination against people trying to gain access to accommodation may contribute to them becoming homeless. Discrimination against people in relation to employment may contribute to general financial disadvantage, which in turn may compound the risk of homelessness.
Discrimination against certain groups of people trying to access accommodation in the private rental market has been raised as an issue in consultations for the current study and in the literature, racial discrimination being a particular issue for Aboriginal people.
Discrimination for our Aboriginal clients is huge in terms of …quite well-demonstrated cases of people being told …that places have been let when they haven’t actually been let … particularly around tenancy and things like boarding houses and private rental market. We get lots of complaints of people being refused accommodation …and finding that … one of their mates came around half an hour later and got offered the place.118
Age discrimination was also raised as a particular problem for young people:
Young people often have trouble accessing private rental, because real estate agents will not let them sign leases. Sometimes the youth services will sign a lease on their behalf, but this can lead to problems.119
Chung et al. in their study on domestic violence and homelessness also refer to marital status discrimination against ‘single mothers’ by some landlords and real estate agents who are reluctant to let premises to ‘single mothers’ receiving income support.120 Chamberlain and MacKenzie also identified this group as facing discrimination when seeking housing:
Louise is a single mother with three children. She was employed as a secretary at a local school, but left her job when she was diagnosed with a serious illness. Then her landlord issued a notice to quit. To her surprise she encountered considerable discrimination. Real estates were reluctant to rent a property to a single parent who was not employed. She has been moving from place to place, trying not to outstay her welcome.121
One transgender participant and one caseworker working with transgender clients who was interviewed for this study reported experiencing discrimination in both finding accommodation and in the job market:
When you’re talking about things that have led to homelessness, we’ve got quite a few transgender clients who have lost jobs, have been refused accommodation, have you know been discriminated against in a range of different ways that have contributed to them becoming homeless.122
Trying to rent a property, they want to know your financial history, your employment history. If you’re a transgender and you’ve been a street worker for eight or nine years, where am I going to find a reference for a house? Where am I going to find a financial history? I’m not. No one’s going to give a transsexual prostitute a loan. No one’s going to give a transsexual prostitute a job. No one’ s going to give a transsexual prostitute a roof over his or her head. If you try and take these issues up you find you get a black mark against your name.123
People with complex needs such as drug and alcohol abuse and mental illness, who are over-represented in the homeless population, are reported to routinely be discriminated against in accessing employment and housing.124 This further exacerbates their risk and experience of homelessness. Discrimination on the basis of psychiatric disability will be investigated further in the Law and Justice Foundation’s Access to Justice and Legal Needs of People with a Mental Illness report.
Finally, people who are homeless appear also to be discriminated against on the basis of their homelessness: in employment and in accessing employment, transport and goods and services. According to Lynch, people who are homeless are turned away from restaurants, refused bus entry and rejected by landlords. Lynch concludes that while there continues to be no legal protection from discrimination against a person on the basis of their socio-economic status, homeless people will continue to be discriminated against.125 Thus, people rendered homeless perhaps from being discriminated against on the grounds of their race, gender and marriage status attract further discrimination and added barriers to redressing their situation as a consequence.
Discrimination in SAAP services
Stakeholders consulted for the current study reported that certain groups of homeless people are being denied access to some SAAP services on the basis of mental illness, substance abuse or a history of violent behaviour.126 Some stakeholders felt that people with complex needs were being denied access because SAAP services are not equipped (with funding and appropriately trained staff) to assist people with mental health and/or substance abuse issues.127 Comments were also made that eviction (usually on the basis of breaking service rules such as bringing alcohol onto the premises) in some circumstances was wrongful; that sometimes the decision to evict was left to the discretion of the worker;128 and that there had been in the past reports of an ‘unofficial blacklist’ preventing some people from accessing particular hostels for behaviour infractions.129
The NSW Ombudsman recently reported on the issue of exclusion and eviction of people with complex needs from SAAP services.130 It found that many SAAP services had specific policies to exclude people with a mental illness, drug and alcohol problems, people with disabilities, people who exhibited challenging behaviour, pregnant women or people unable to pay for accommodation. The NSW Ombudsman recommended that SAAP services should move away from a “presumption of risk to considered assessment and risk management”, whereby “policies, procedures and practices are inclusive, and that any exclusions be based on considered assessment of the presenting circumstances of individual clients and fair and transparent exiting procedures”.131
Consultation with the Gender Centre also suggested that some SAAP services are reluctant to provide services to people who are transgender, and described incidents where a person’s identity was not recognised and they were placed with people from the opposite gender.132 Reflecting on her experience in accessing supported accommodation, one transgender participant said:
They wouldn’t let me stay in the women’s section and made me stay on a men’s floor. I felt really unsafe. I had to leave. I didn’t think I could complain to the Anti-Discrimination Board because I thought that the (service) had an exemption on the basis of religious grounds.133
This may act as a barrier to people accessing services. For example, one stakeholder working with gay and lesbian young people consulted for the current study said that gay and lesbian young people reported fear of discrimination deterred them from accessing SAAP services.134
Debt
Debt is experienced as both a precursor to homelessness and as a feature of people’s lives once they are homeless. Consistent with Chamberlain and MacKenzie’ ‘housing crisis career’, the accumulation of debt when people are already financially disadvantaged can result in people losing their accommodation.135 This can be made worse by gambling and drug and alcohol issues.136 Preliminary analysis of the Law and Justice Foundation’s Legal Needs Survey 2003 suggests that nearly three times the number of homeless people had experienced credit or debt problems compared with other respondents.137 The Interim Evaluation Report of the FHPP found that two-thirds of the 242 families assisted in the project had debts, while only 5% had sufficient funds to cover bonds or emergencies.138
Debt also figures in people’s lives once they have become homeless. All the legal clinics supporting homeless people consulted for this study indicated that they commonly assisted homeless clients with debt matters.139 For instance, debt was one of the three most common legal problems dealt with by the PIAC/PILCH HPLS in its first six months of operation. When fine matters are added to general debt, then these constituted 15% of the 267 legal problems dealt with in this period.140 The LCRC submission to the Law and Justice Foundation for the current study noted:
The accumulation of fines, arrears on contract repayments, Centrelink repayments and repayments to pawn brokers mean these clients need someone to advocate on their behalf [to] (i) negotiate and implement a system of payment by instalments or (ii) to reduce amounts being unfairly claimed by creditors.141
Consultations with caseworkers, other stakeholders and homeless people themselves indicated that some of the debts that tipped people into homelessness (e.g. rent arrears), continued to impact on their lives once they have become homeless. Indeed, debt to government agencies including fines, Centrelink-related debt and housing debt were major issues for those consulted. The nature and impact of these types of debt are discussed in greater detail in the relevant sections of this chapter.
Mobile phone debt also was identified as a problem for homeless people by a couple of stakeholders.142 The LCRC reported that the biggest consumer problem facing its clients related to the charges levied by mobile phone companies when contracts are ended prematurely by customers.143
I just stopped the contract, and told them where to put it, and their phone literally. They reckon I owed them $600, but the phone hadn’t been working anyway. They chased me for a while, sent me some letters, but then they stopped. It would cost them more to go to court and get the money out of me anyway.144
The LCRC submission to this project stated that “many of the clients coming to the LCRC are easy targets for people selling ‘attractive’ ways of life, the mobile phone companies take advantage of those who can least afford contracts”.145 A caseworker from Newcastle commented that for many people who are homeless, mobile phones provide the only stable point of contact available to them. This is particularly important when people are searching for employment or housing. The mobile phone takes on greater significance when a person’s accommodation may be changing rapidly. This same caseworker observed that homeless people may enter into contracts even if they are aware that they will not be able to make repayments.146
Debt to banks, particularly from overdrawn accounts, was also raised as an issue of concern. One caseworker referred in particular to difficulties with direct debit facilities. Where a person has arranged to have bills directly debited from their account, and it happens that there are insufficient funds to pay a certain bill, the bank may choose to process the direct debit anyway. If this happens, the bank may charge the person a dishonour fee, an account overdrawn fee, and interest on the overdrawn amount.147 The total sum of the fees can have a considerable impact.
How the banks let them overdraw I’ve got no idea. They then get charges on their debits which puts them more in debit, and then they get more charges. They never get ahead. I try and tell people to at least leave $5 in their account every month. It’s a big problem with people who are alcoholics.148
Thus, a common feature of debt and debt repayment for the homeless, irrespective of its source, is that it often compounds, not only making the debt harder to repay but also leaving less funds available for adequate housing.
Social security
As noted in Chapter 3, the majority of homeless people are unemployed and dependent on social security benefits administered through Centrelink. Twenty-four homeless participants consulted for this study were currently receiving social security benefits from Centrelink. Eleven participants reported that they had had some sort of problem with Centrelink.149 These problems related to eligibility, breaches, debt and getting ‘cut off’, or late payments. These issues and their relationship to homeless people are discussed below.
Eligibility
For people at risk of or experiencing homelessness, ineligibility for social security benefits can exacerbate the risk or experience of homelessness. In the current study, stakeholders reported instances of homeless clients experiencing problems proving or meeting the eligibility criteria for social security benefits. Clients included young homeless people, ex-prisoners and people on Temporary Protection Visas.
In addition, two homeless participants interviewed for this study who were from New Zealand also reported having experienced problems with eligibility for social security benefits.150 New Zealand citizens are permitted to work in Australia. However, since February 2001, they are not permitted to apply for social security payments unless they obtain permanent residence.151 Both of these participants said they were not aware of these changes before they came to Australia. Both referred to the cost of applying for permanent residence as a barrier to actually obtaining permanent residence, which would allow them to receive social security benefits.
The immigration thing. I was wondering why it costs so much. I thought we were supposed to be the same country.152
I am a bit confused … I started casual work early in October and I have [not got work now] and I have been two times to see if I am entitled to anything while I am out of work and they said no because … well I understood that after I had been here for two years I would be entitled to benefits. But obviously they have since changed the laws and now I have to be a permanent resident.153
Similarly, people on Temporary Protection Visas are entitled to work and have access to Medicare but they are not entitled to income support (Newstart, Youth Allowance or the disability support pension).154 Without adequate financial support, this puts people on Temporary Protection Visas at risk of homelessness.
It is also possible that homelessness may exacerbate problems in meeting eligibility requirements for social security benefits. Lynch argues that Centrelink’s proof of identity requirements discriminate against people who are homeless and therefore unlikely to possess identity documents such as birth certificates or drivers licences.155 One stakeholder working with young homeless people reported that this may include young people leaving home after family breakdown or disagreement who can have great difficulty in providing proof of identity and proof of their independence in order to be eligible for income support from Centrelink.156
Young people can, in such circumstances still be eligible for income support if they can establish that it is ‘unreasonable’ for them to return home. However, one caseworker interviewed in this study reported that as part of their assessment, Centrelink officers sometimes ring the applicant’s parents. The parents may state that the young person is able to return home, thereby undermining the child’s assertion that it is ‘unreasonable’ for them to do so.157
People coming out of prison who are estranged from their families were also identified by stakeholders consulted for this study as having problems as they may not be able to obtain identification (such as birth certificates) held by family they are estranged from.158 Thus, such people’s efforts to ensure financial security are stymied at a crucial point in their lives. This may increase the risk of homelessness for people exiting prison.
Breaching
Breaching was the main problem relating to social security benefits reported by both caseworkers and participants in the current study. ‘Breaching’ (the reduction in or termination of payment) occurs when a social security recipient fails to comply with either the ‘administrative’ or ‘activity test’ requirements of their allowance. Administrative requirements include attendance at Centrelink interviews and the provision of certain personal information to Centrelink (e.g. change of address, notification of any income). ‘Activity test’ requirements refer to ‘looking for work’ requirements, which include participating in training or a Work for the Dole program.159 ‘Activity test’ requirements only apply to Newstart and Youth Allowance.
Several homeless participants in this study reported that they had been breached at some point.160 Examples of these include:
I keep worrying about the banks and Centrelink, if the money is going in, because if you do a little fault, they will just lock you out and don’t pay you.161
You always get some hassles but it’s pretty run of the mill. They’ve cut me off and stuff, but they always put me back on. It’s happened a few times. One time they said I didn’t give them my tax file number, but they already had it, and another time they said I didn’t put my form in, and I was cut off. They said I had to go see someone. That means you’ve got to wait and see if you get it sorted out.162
Clients of Walgett SAAP services are most usually from the lower socio-economic strata of society and have been bewildered by rules and expectations of government departments, agencies and lifestyle choices.163
This is evident by the fact that homeless people may be breached as a result of not declaring their earnings to Centrelink. Social security recipients are allowed to earn a certain amount of additional income, but they must declare the gross amount of income they earn to Centrelink each payment period. One caseworker noted recipients are required to disclose the ‘gross amount’ of income they receive, but that many of this person’s homeless clients did not know the exact gross amount they earned in a particular week because their pay period did not correspond to the Centrelink pay period or they may have been paid cash in hand.
A lot of this casual[isation] … of the workforce has brought with it a lot of strange arrangements designed to avoid tax and clients sometimes get themselves into bother in the sense of sometimes honestly under-disclosing their income. Sometimes they’re not even informed what the gross amount is. They’re just given an amount in cash and God knows what the employer is doing, whether the employer is actually remitting to the Tax Department at all and they end up getting into bother and getting breached for that and getting cut off benefits for quite lengthy periods.164
One participant reported:
I notified them. I told them I was doing it. But because the job’s pay week and the Social Security’s pay week didn’t match up I had to let Social Security know in advance what I thought I might be earning. So if I knew I was going to be working I would have put down more on the form so they wouldn’t [breach me] … But I didn’t know how much I was going to get until I actually got paid. So, that was fine except that Social Security took me to court. They said I had been cheating.165
Another reason why homeless people have difficulty in complying with Centrelink requirements is that they lack a fixed address at which to receive correspondence from Centrelink. Examples were given of homeless people being breached or their payment being cut off because they had failed to receive a letter that had required them to do something (such as attend a job interview or a Centrelink interview).166
Not replying to correspondence is common. You know, ‘We sent you three letters and you didn’t respond so you’re cut off until further notice.’167
You know you always have trouble with Social Security. They keep chopping and changing the rules and don’t inform you or nothing else, but you just go do and see them … to sort it out. I went down once, they cut me off. They got their letters sent back and, well, no address, so we’ll just cut him off. You know I went down there and they paid it up …168
A caseworker working with young homeless people stated that private job network agencies can recommend that clients be breached for not showing up for an appointment or job interview with them, even when, as is often the case for homeless people without addresses, the client did not receive the letter from Centrelink that notified them that they had to go to the interview.169
Debt and issues related to breaching could be avoided with appropriate intervention before they occur. It should be recognised that Centrelink outreach workers and social workers (such as those attending SAAP services described in the previous example) can and do intervene before people are breached or before they incur large debts. Their role is discussed in greater detail in Chapter 7.
Centrelink debt
The other legal issue relating to social security that was raised in this study was debt to Centrelink. People usually accrue Centrelink debt in situations where they have received payments from Centrelink that they were not entitled to. For example, they may have not declared their earnings and earned too much in a particular period, or they may be ineligible for a particular payment because their circumstances have changed (e.g. they may not have informed Centrelink of the fact that they had stopped studying).
Yes, I have already been breached for not declaring my earnings, but I did the wrong thing. But I only did three days’ work and I had to pay over a thousand dollars.170
One caseworker referred to a situation where a client had gone to prison and Centrelink had not been informed. As a consequence, the client accumulated a debt of $7000 to Centrelink.171 Another participant who had been overseas for sometime had a nervous breakdown, found himself homeless, and was faced with an old Austudy debt on his return to Australia.
I had a debt with Austudy from [10 years ago] that I was unaware of. It was a debt of $800 which I never knew was there as far as I was concerned and that had gone with interest and penalties to about $3500 … And I was saying, ‘Even if I owe it this is the first that I am aware of it … I was not here, I can show you my passport, I was not even in the country.’ They said, ‘That is irrelevant.’ Anyway, I got a letter a couple of weeks ago saying they have decided to wipe the penalties and the interest and I just have to pay the original debt.172
The usual procedure for debt repayment to Centrelink involves money being deducted from a recipient’s payment each fortnight until the debt is cleared. In the above case the participant had $53 taken out of each Newstart payment until the debt was cleared. The Newstart allowance for a single adult is $394.60 a fortnight.173 Given this, it is easy to see that homeless people on social security payments who either accidentally or otherwise incur Centrelink debt are left financially vulnerable.
Crime
Criminal law issues feature prominently in the lives of people who are homeless. Preliminary analysis of the Law and Justice Foundation’s Legal Needs Survey 2003 suggests that nearly twice the number of homeless people who responded to the survey had experienced a criminal legal problem compared with housed respondents.174 At Shopfront, a legal service for homeless and disadvantaged young people under the age of 25, 64% of matters dealt with related to criminal court matters and criminal advice, while a further 6% related to fines.175
Shopfront is situated in inner-city Sydney. Young homeless people in this region are likely to have been homeless for longer periods of time, moving between sleeping rough, boarding houses and emergency accommodation in a state of chronic homelessness. People at this stage, whether they are young or older people, are highly marginalised from society, may have drug and alcohol and mental health issues and are more likely to have had interactions with the police and the justice system.176
The criminal law issues they face reflect their living situation: public transport fines and street offences are a result of them being particularly visible to police and other enforcement officers responsible for regulating the use of public space; drug and alcohol-related crime, assault, and theft. Their interaction with the criminal law should be viewed within its context of serious homelessness. It is the last point on the spectrum of legal issues facing homeless people, spanning issues affecting them as they enter into homelessness to those affecting them once they have become entrenched in homelessness.
Fines
Participants and stakeholder consultations for the current study indicated that fines177 were a major problem for many homeless people who, because of their lack of private housing and economic disadvantage, were more likely to be publicly visible. They consequently accrue multiple fines for street offences such as drinking in public spaces and public transport fines.
Train tickets now only go till 4 am the next morning. People sleeping on the train can then get fined for having an invalid ticket (caseworker).178
Consultations suggested that young homeless people are particularly susceptible to receiving fines.179 Sanders notes that while young people aged 15 to 24 years constitute only 14% of the population in NSW, in 2002 14 to 24 year olds received approximately 35% of fines.180 One homeless young woman recounted her experience:
One of them [a fine] was issued when I was mentally unstable at the time, and I ran across the train tracks without using the train bridge, so they issued me a fine … Well, after the first fine when I ran across the train tracks, I got another one, for smoking on the platform.181
Further, homeless people may be unable to afford to pay the original fine, or, without a regular address, they may not receive notification of the fine. As penalties and interest are added to the original fines, homeless people accumulate fine-related debt.
I’ve had one fine that was really ironic actually. I went to jail in March, but I was supposed to be at jury duty on the 16th, and I didn’t know about it. And I got fined. I said, ‘How come I get picked for jury duty with my criminal background?’ We’re still arguing about that at the moment. I’m doing it directly with them, just arguing at the moment. It was a small fine at the time, but I was in jail for almost four years, and the interest added up. It was $1600 when I got out of jail.182
The accumulation of fine-related debt may compound people’s financial disadvantage while homeless. This in turn, makes it harder for homeless people to pay off their fines. Furthermore, failure to pay a fine can lead to further legal problems. For example, once a fine is issued it is referred to the Infringement Processing Bureau. If it remains unpaid it is then referred to the State Debt Recovery Office (SDRO), which issues a fine enforcement order. If, after 28 days following the issue of a fine enforcement order no arrangements have been made to pay the fine, the SDRO may direct the Roads and Traffic Authority (RTA) to suspend a person’s licence, prevent a person from re-applying for their licence, or cancel the person’s licence after six months has passed.183 Given their financial disadvantage, homeless people who have incurred fines may be at risk of having their licence cancelled as a result of not paying a fine. This was identified as an issue by a homeless participant:
I was in Byron and I got a littering fine. And I didn’t even litter. I don’t think so. We were camping. And so I owe money to them and it keeps going up and I can’t afford to pay it and they cancelled my licence.184
Suspension of a licence is a particular problem for homeless people living in rural and regional areas with limited access to public transportation. Furthermore, if people continue to drive while they do not have a licence, this may place them at risk of being charged with an offence and/or accumulating more fines. In turn, this may place people at risk of going to jail.
We do quite a lot of work with fines and … the problem … is that it’s not just the amount of the fines which escalate but the consequences of those. It goes off to State Debt Recovery Office and they whack on another 50 bucks on the fine towards costs. Can’t pay that. A little bit down the track the driving licence gets suspended and … and then they still can’t pay it but they just drive anyway. [He] inevitably gets picked up for driving while suspended. He’d cop another fine for that and then you know again you’re disqualified and you know we certainly get clients where jail suddenly becomes a prospect very quickly because they just keep driving and often for rational reasons that they can’t pay.185
One of the issues then was that the client was being banned from driving and they were from different states as well. She wanted to try and clear them all and start working on it so that she could clear her name so the process of getting them all into you know into NSW so they could be dealt with here, that couldn’t be done. She couldn’t pay the fines in NSW for Victoria and then also they wouldn’t accept small payments. I mean she’s on welfare so if she was willing to say ‘I can pay x amount a fortnight until I’ve paid it off’… But they said no you’ve got to pay it all. So she’s constantly running. She’s trying to do the right thing. It’s impossible for her and at the end of the day it will be a jail sentence when we looked into it and then often people go into jail for a minor thing like that and come out more traumatised because of incidents in the inside which is then, they come out going, well either way I’ve got no hope, so they lose faith in the whole system if they ever had any.186
‘Move on’ powers
Under s 28F of the Summary Offences Act 1988 (NSW), police have the power to ask a person to ‘move on’ in certain situations, for instance if a person is seen to be ‘intimidating or obstructing another person’.187 Because homeless people, particularly at primary levels of homelessness, spend much of their time in the public space, they are highly visible to police. Homeless participants, particularly those who sleep rough in parks, bus stops and other public spaces, commonly report being asked to ‘move on’ by police:
The other day police approached me, told me I had to move, said I was taking up too much space. First time [this happened]. ‘How am I taking up too much space?’ He said, ‘You’re fine to stand there, you just can’t sit there.’ I just left, I just couldn’t handle it. I went and sat in Hyde Park for a couple of hours to try and make sense of it.188
Sometimes when we would be waiting for a food van, the coppers would get a bit narky and ask us to move on.189
As a result, a couple of people commented on the need to ‘travel around’ to avoid the police moving them on:
Sometimes when you sleep out the police will come and move us on and there are just not enough places to sleep around the area and when they move you on you either have to stay up all night or you find somewhere else to sleep or if it is raining you can’t sleep in the laneway or down in x Park down over there. They sleep over there. Or down the back behind the wine cellar. Or we sleep down in the x carpark. So we travel around a bit at night if we get moved on by the police.190
I don’t get asked to move on—I do a lot of walking.191
It was also suggested by one stakeholder that homeless people are vulnerable to being told to move not only by police, but also security guards and council rangers.192 However, few of the homeless people we consulted reported much contact with either group.
Another stakeholder stated that homeless people are also more likely to be the targets of rigorous policing practices, getting checked for outstanding warrants and searched for drugs.193 This is further corroborated by the following comments by two homeless participants interviewed for this study:
The only other problem I had was when I was in Melbourne. I was living on the streets. The police would often hassle me and check my history or do warrant checks. When I threatened to put them up for harassment they got more narky and tried to intimidate me. If anything, it made me more determined. It wasn’t just me, it was others on the street as well that they were harassing. I just had the balls to take them on.194
No, the police have this thing about harassing homeless people on the street, like I will be walking and I had my bags with me and they pulled me up and searched me, just because I looked like a hobo, like a drug addict and I found that really insulting.195
And as one caseworker describes it, what starts as being moved on may progress to being searched for drugs. If a person has had a number of charges, the situation can become quite serious.
And so something that started from just trying to I suppose move people on from the neighbourhood because they’re loitering is turning into like clients being charged for really minor, minor charges. But you usually find that they probably had a string of them over the last couple of months which actually turns into more serious charges. It might be going from possession to not paying fines to things like that. And going into being incarcerated over just a build up of simple issues like that.196
Relationships with police are discussed in further detail in Chapter 7.
Drug-related criminal activity
Perhaps reflecting the high rates of drug and other alcohol abuse among people who have been chronically homeless (see Chapter 3), stakeholders and participants indicated that a small number of homeless people commit drug-related crimes.197 Offences range from possession of and selling drugs to offences arising from the need to obtain income to buy drugs, such as prostitution, theft, break and enter and assault.
Yeah, I got charged a while back [in 2000]. I got charged for car [theft], assault and GBH and that. I was in for two and a half months. And then rehab for three months.198
Thus, homeless people as a group are more likely to encounter the law than other groups because of their greater involvement in illicit drug-taking. Further, their lack of financial resources may also mean that homeless people use illegal means to get sufficient money to support their addiction.
Conclusion
Homeless people in NSW face a variety of legal issues. Legal issues faced by people at the point of entering into homelessness usually differ from the types of issues faced by people who have been homeless for some time. First, as people become homeless they tend to face legal issues which are closely tied to the incidents leading to their homelessness. These include:
- family-law- and domestic-violence-related legal issues reflecting family breakdown and violence
- housing-related legal issues, including housing debt, problems with residential tenancy databases and eviction reflecting the person’s loss of housing
- debt-related legal issues reflecting financial disadvantage
- unlawful discrimination preventing people maintaining financial and accommodation security.
Secondly, homeless people face the following legal issues, arising as a consequence of being homeless:
- problems with complying with social security requirements as a result of being homeless
- vulnerability to crime as a result of a lack of secure housing
- legal issues related to boarding house and caravan park accommodation
- fines and being moved on as a result of homeless people’s greater visibility and occupation of public space
- criminal law problems relating to alcohol and other drug abuse.
Consultations with participants and stakeholders also indicate that homeless people tend to experience multiple legal issues at any one time. When unresolved, these legal issues can lead to and compound homelessness. As will be discussed in Chapter 5, homeless people face a range of barriers in seeking legal assistance for these issues, resulting in many issues remaining unresolved.