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Participation in the legal system

The last step in addressing legal need involves facilitating effective participation in the legal system, with the aim of improving the prospect of better legal outcomes for homeless people. This project found that, in spite of their many legal needs, there was relatively little evidence of the participation of homeless people in legal processes. Given the range of barriers they face, it appears that homeless people simply do not get this far into the process. Indeed, it appears that many homeless people resolve (or do not resolve) their legal issues in other ways. For example, people reported simply moving elsewhere when evicted rather than challenging the eviction, not seeking access to their children, or accepting a decision even if they did not agree with it.

Even when homeless people are compelled to participate (e.g. in a criminal procedure), they may fail to participate effectively or fail to do so at all (leading to further legal consequences). Stakeholders and interviewees reported that homeless people face particular difficulties in doing what is required of them in legal processes (e.g. attending court, providing documentation) to obtain the best possible outcome. Factors which were identified as contributing to these difficulties included:

• limited motivation to pursue their legal issues, together with a fear of or lack of confidence in the legal system. Many homeless people lack faith that the legal system can deliver favourable outcomes to people in their situation
• a lack of awareness of their legal rights, options for legal redress and which legal process to follow. This extends to people not being aware of the right or process to appeal decisions made by government departments such as Centrelink and DOH. This can be exacerbated by mental illness or other cognitive impairment
• not having a stable address or contact details at which to receive notification of hearing dates. This is a particular issue in relation to criminal matters. Not having a stable address can also impact on the ability of people to be granted bail
• the complexity of legal processes, which can be multi-tiered and lengthy (e.g. the fine enforcement system and the social security appeals process)
• the formality of legal proceedings, which people report finding intimidating
• the reliance in legal processes on written documentation and applications, which presents difficulties for people with poor literacy or comprehension
• the cost and limited availability of legal representation for some legal matters.

Non-legal workers and advocates, together with the legal assistance services detailed above, all assist homeless people to overcome these barriers. In addition, some legal processes, such as the SSAT, the HAC and the NSW Ombudsman, provide a much more flexible service delivery, which may increase accessibility of their processes to homeless people.

In many instances, by the time a homeless person gets to court or a tribunal, they have reached a point of crisis and have multiple legal and social needs. Unlike the traditional justice model approach, a therapeutic jurisprudence approach uses the law to address the social and legal needs of people that can contribute to their homelessness. The Red Hook Community Justice Center (New York), the California Homeless Courts, the NSW Drug Courts and the MERIT program are all examples of attempts to apply a therapeutic jurisprudence approach to the legal process. These are examples of the way in which courts and tribunals can be used as a point of intervention and referral to other services to address the non-legal needs of homeless people. Another example of a program that has a more direct focus on homeless people is the Special Circumstances List at the Magistrates Court of Victoria. This program links people appearing before the court back to social services, addressing their legal and social needs at the one time. This is factored into the court outcome for the defendant.