The Law and Justice Foundation of NSW (the Foundation) has undertaken a study on the legal needs of homeless people in New South Wales (NSW) as part of its Access to Justice and Legal Needs research program.1 This report on the study explores the capacity of homeless people in NSW to:
While there is considerable debate about how ‘homelessness’ should be defined, this study uses a definition articulated by Chamberlain and Mackenzie and used by the Australian Bureau of Statistics (ABS).2 It describes three categories of homelessness:
Because this study is exploratory in nature, qualitative methods of data collection have been employed. Focus groups and semi-structured face-to-face and telephone interviews were used to gather the insights of more than 100 service providers and other stakeholders. Semi-structured face-to-face interviews were also used to gather the insights of 30 homeless people. Information was also drawn from recent and relevant literature, policy documents and statistical data on homelessness and service provision to homeless people (i.e. Supported Accommodation Assistance Program (SAAP4 and Census data)). Case studies were also taken from the literature and provided by service providers and stakeholders. The sources of information presented in this summary may be found in the relevant chapters of the report.
Homelessness on NSW (Chapter 3)
Census data indicate that, in August 2001, there were an estimated 33 557 homeless people in NSW. These people included men, women, teenagers and younger children living temporarily with family and friends, in boarding houses, in caravan parks, in SAAP accommodation and on the street. Approximately half of these people were living in the Greater Sydney area. While the ‘city core’ of Sydney (the ABS statistical subdivision of Inner Sydney5) had one of the highest rates of homelessness in NSW, only 14% of the homeless in NSW were living in this area. A further 13% were living in the ‘inner city ring’ (which includes the ABS statistical subdivisions of Lower Northern Sydney, Eastern Suburbs, Inner Western Sydney and Central Western Sydney). There were also pockets of very high rates of homelessness in coastal NSW, particularly in the north of the State. Census data further indicated:
Legal issues facing homeless people (Chapter 4)
Homeless people tend to have a range of legal issues that, when unaddressed, can prolong homelessness. The types of legal issues faced vary within the homeless population, as well as for individuals as they move through homelessness. As people become homeless common legal issues are family law and domestic violence, together with general debt- and housing-related legal issues. Housing issues include eviction and debt arising from rent arrears and damage to property. Discrimination in housing and employment were also identified in this study as problems for homeless people, particularly Aboriginal people and transgender people.
Once people have become entrenched in homelessness and are more visible to law enforcement agencies, crime and fines become more prominent issues. People living at primary levels of homelessness are also particularly vulnerable to being victims of crime. Together with people who are transient, this group also has difficulties complying with social security requirements because of chaotic lives and lack of a permanent address.
Laws, policies and legal processes that directly impact on homeless people in NSW include:
On a day to day basis, homeless people have many immediate needs: finding accommodation, getting food or money, caring for family. These needs tend to take precedence over their legal issues. In addition, legal issues can remain unaddressed because people have limited resources, feelings of despair or hopelessness, mental health or addiction issues, poor literacy or minimal education and a fear of disclosing this, a lack of knowledge of legal options, and a feeling that the law would never work in their interests. Services report that when homeless people finally do contact a legal service (if at all), the issue has usually already reached crisis point: the eviction is imminent; their benefits have been cut off; the court case is tomorrow. In some cases it may be too late to resolve the issue (e.g. the limitation period may have expired) or the issue has become more complex and difficult to address.
The multiple, urgent and interrelated legal problems of homeless people, together with the barriers they face in addressing these issues, have significant implications for the nature and type of legal service delivery that is appropriate for homeless people in NSW.
Legal assistance for homeless people (Chapter 6)
Legal assistance includes the provision of plain language legal information, legal advice, initial legal assistance by a lawyer, and legal representation. The primary legal assistance services for disadvantaged people in NSW, including homeless people, are the Legal Aid Commission of NSW (Legal Aid NSW), community legal centres and Aboriginal and Torres Strait Islander Legal Services. It is argued in this report that, given the diversity within the homeless population, the NSW telephone advice and referral service, LawAccess, also has a significant role to play in providing legal information and advice and connecting homeless people with face-to-face legal assistance services.
In addition to these general legal services are several specialist legal services and clinics for homeless people, all of which are pro-bono or volunteer services. These include the Shopfront Youth Legal Centre, the Legal Counselling Referral Centre, the legal clinics at Exodus and Lou’s Place and the NSW Public Interest Advocacy Centre/Public Interest Law Clearing House Homeless Person’s Legal Service. All of these services are located in metropolitan Sydney, mostly in inner-city areas.
Features of legal assistance services that increase the capacity of the services to support homeless clients include:
To varying degrees, the homeless person’s legal services share many of the above characteristics. However, while they offer a very valuable model of legal service delivery, they should not be considered as the main source of legal assistance to homeless people living throughout NSW. First, each of these services support a fairly defined client group (e.g. users of a particular service, young people). Second, pro bono services such as these can only operate where there is the private sector capacity in the geographical areas where there is need. Thus, these services tend not to reach homeless people living in rural and regional areas. Third, nearly all are pro bono part-time or sessional services.6 Finally, the level of assistance that can be offered by any one service tends to be limited by its resources or the type of law that it has expertise in (e.g. civil law).
A structural feature of legal service delivery in NSW that presents difficulties for homeless and other disadvantaged people is that different legal issues tend to be separately dealt with by different legal services or practitioners. For instance, a duty lawyer may assist in a criminal matter, a grant of legal aid may be provided for a family law issue, a community legal centre may assist with a debt matter and the Chamber Magistrate, the police or the Women’s Domestic Violence Court Assistance Scheme may assist with an apprehended violence order. This separation of legal service delivery is in contrast to the multiple and interrelated nature of the legal and other issues faced by homeless clients. Not only must a homeless person potentially access a number of different legal assistance services, but the legal services provided are not likely to be coordinated to address the complex situations they are facing. Thus, a system that offers discrete legal services for different issues, and lacks coordination between these services, presents a number of barriers for homeless people trying to effectively address their legal needs.
In addition, legal services traditionally work outside the networks of other human services such as community services, housing and welfare agencies. As stated above, the legal and social issues of homeless people are usually intertwined. The separation of legal services from other human services, and the partitioning of legal matters within the legal aid sector, makes it difficult to take a holistic ‘case management’ approach to clients. A ‘case management’ approach involves addressing a client’s many complex needs as a package. To facilitate this, closer links need to be made within and between different legal services providers and with other human services in local areas throughout NSW.
Non-legal assistance in legal processes (Chapter 7)
A few of the homeless participants in this study said that if they had a legal problem, they would go directly to Legal Aid or to another legal service with which they were familiar. However, many homeless people have indicated in this and other studies that they turn to non-legal services or workers as a first point of contact when they have a legal problem.
Homeless person’s services, particularly SAAP services, are a key link between people experiencing homelessness and legal assistance. As well as providing food, shelter and medical attention, some of these agencies provide advocacy, legal information, advice and referral services. The data collected for this report suggests that caseworkers and social service providers play a vital role in assisting homeless clients to identify their legal issues, obtain legal assistance, engage in legal processes and manage their legal outcomes.
However, some homeless people are isolated from these services. In recognition of this, this report covers:
Participation in the legal system (Chapter 8)
Homeless people face many barriers that prevent them from initiating and participating effectively in the legal process. Stakeholders and interviewees reported that even when homeless people are compelled to participate in a legal process (such as in a criminal matter), there are obstacles preventing them from making it to court and achieving the best possible outcome. These barriers and the reasons that homeless people find them an obstacle include:
In many instances, by the time a homeless person gets to court or a tribunal, they have reached a point of crisis. Strategies based upon notions of therapeutic jurisprudence appear to recognise this, and try to use the law and legal process as a point of intervention to address the social and legal issues which exacerbate homelessness. The Red Hook Community Justice Center (New York), the California Homeless Courts, the NSW Drug Courts and the Magistrates Early Referral into Treatment program are all examples of the therapeutic jurisprudence approach. Another example, which has a more direct focus on homeless people in Australia, is the Special Circumstances List at the Magistrates Court of Victoria. This program links people appearing before the court back to social services, in order to address their legal and social needs at the one time. This is factored into the court outcome for the defendant.
Conclusion (Chapter 9)
Homelessness is often indicative of complex legal and other needs. Things have gone astray, safety nets have failed. People have lost their accommodation or are caught in marginal accommodation; they commonly have debts, are dealing with family law issues, been victims of crime, accumulated fines and/or are facing criminal charges. The legal system does not always work in their favour.
When homeless, people are commonly too preoccupied coping with immediate issues, such as getting accommodation, to deal with their complex legal problems. Mental health and other disabilities, cynicism about the law, poor literacy and limited resources also contribute to a situation where legal issues are left to compound, spiralling people into or further entrenching them in homelessness. Ideally, legal service provision to homeless people needs to recognise this situation and be accessible to people from the diverse places that they frequent, have the time and skills to assess the total legal needs of the clients, and form part of a coordinated response to those needs.
As legal service delivery is currently structured in NSW, a challenge is to move from single problem focused approaches to more client focused approaches. A second issue is for legal services to be included and coordinated with other human services, such as housing, health and community services, in both the planning and delivery of services to address homelessness in NSW.