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Barrriers to participation in the legal process

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

Cost

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

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

Lack of awareness

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

In the refusal letters that you get from Centrelink or Department of Housing or wherever there is a paragraph towards the end of the letter, ‘If you are dissatisfied with this decision within a certain timeframe you can apply for a review’, etc. But it’s not particularly well highlighted and not very well explained to anybody so taking into account the issues that our client group have got, you can imagine that very, very few of them can understand that, and even if they did understand that they had a right to appeal, they don’t know how to go about it.⁶

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

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

Lack of confidence in and fear of the legal system

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

One specialist CLC observed:

It is often very difficult for homeless people to identify that a legal right is being infringed, or even that there are options available to them to remedy this. This is a huge issue, as for most homeless people, contact with the law usually has been negative, and they therefore would not have the awareness that the legal system can actually intervene and help to enforce their rights.¹¹

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

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

Before the clients coming to the LCRC will participate in the legal system, they will need to feel confidence in that legal system, confidence that their rights will be recognised and respected. To these clients being homeless and out of work equate with a lack of respect for them and for their legal rights.¹⁴

A caseworker working with homeless men noted in relation to family law:

People feel that they are second-class citizens. They expect the worst. They do not expect to be treated fairly and in my experience, in 90 per cent of cases, they are right.¹⁵

In some matters, negative perceptions of the legal system led to several participants deciding to plead guilty rather than defend themselves. Several interviewees reported that they pleaded guilty, despite wanting to plead not guilty and defend the matter.¹⁶ For instance, one interviewee who pleaded guilty to assault said:

I decided to plead guilty and received a 12-month good behaviour bond. It was the only option I could do. I was angry because I knew I wasn’t guilty, but what can you do, you can’t beat the police when you’ve got a record. The way the magistrate put it to me was that if I didn’t plead guilty I would be looking at heaps of time, so I thought, why should I go to jail for something that I didn’t do. Sometimes you have to do that, be humble, or your pride will destroy you.¹⁷

Another example is in the area of victim’s compensation. In most circumstances, when people want to make a claim for victim’s compensation, the applicant has to have reported the crime to the police.¹⁸ However, a couple of caseworkers reported that homeless people are sometimes reluctant to approach the police to report or disclose a crime because they have had past negative experiences with police and perceive that police will not take them seriously.¹⁹

And particularly when you’re used to having negative interactions with the police. You know you need to be very, very well supported, etc. to feel comfortable pressing charges when you’ve had previous interactions with the same police who are probably going to start off with a negative view of you and are not used to dealing with you as a complainant.²⁰

Young people in general are particularly reluctant to approach the police, due to a general distrust of authority.²¹ Stakeholders interviewed for this study reported that if young homeless people were assaulted on the streets, they preferred to deal with it in their own way.

Especially with young people who’ve been involved in violence … young people are getting rolled all the time on the trains. That sort of stuff. Quite often … young people will come into us and say … this kid has bashed me and stolen my wallet and done this and this and this is like, well, you know, you can charge them. Charge them? No, I’ll just get my mate to go round and bash them.²²

Mental Illness or other cognitive impairment

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

I was living in private rented accommodation. But it was three-bedroom and so was too expensive, and I had other people move in and not pay rent and I ended up really far in debt. I wasn’t well enough at the time to keep going through the system and get the money that they owed me.²³

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

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

No stable contact

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

We’ve got a client who we’re working with at the moment. She’s about 22, she’s got an intellectual disability as well as suspected mental health issues and she’s had a small baby, who is in DoCS care and is in foster care. But she’s been ringing regularly but not regularly enough for them in terms of making contact, and the DoCS worker who has been working with her was kind of putting all the requirements on her. If you want to see this baby you must ring us once a week and tell us where you are. Now this woman is not only homeless, she’s street homeless, she’s not living in emergency accommodation. She’s actually street living and she’s only periodically able to get access to phones to call DoCS. And I don’t know if you’ve ever tried to call DoCS workers, but how often are they in their offices or able to be accessed. And so she keeps breaching these requirements that DoCS are putting on her and the more she does that the more she comes up against these kinds of threats of ‘you will never see your baby again because you’re not complying with what we consider is appropriate’.²⁷

Lack of a postal address can result in people not receiving notification to appear before a court or tribunal. Further, without an appropriate contact, legal service providers can also have difficulty in contacting people about their need to attend court, or to keep them informed about how their matter is progressing:

People will come in and go, “I think I’m meant to be in court today”. And they don’t know which court. They’re very unclear about it, you know, the paperwork has gotten lost along the way.²⁸

For example, a woman who had fled domestic violence and was living in a refuge with her children did not receive notification that her husband had filed an application in the family court requesting access to the children. Because she did not receive notice she did not turn up to court. As a result an ex parte order was made in favour of her husband.²⁹

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

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

• To be granted bail, defendants usually require accommodation. As a result, magistrates are reluctant to grant bail to homeless clients. Sandland noted that those clients with drug and/or alcohol issues (who thus had more problems accessing accommodation) were the most likely to breach their bail.
• Because many homeless people appearing on criminal matters have a history of ‘fail to appears’, bail is less likely to be granted to these clients.

The disadvantage encountered by homeless people in relation to being granted bail was also identified by HREOC as an issue for homeless children.

Their lack of a stable address or family support means they are likely to be refused bail and remanded in custody before and during trial, even for the relatively minor offences typically committed by children.³³

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

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

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

• A condition of bail may be to not reside in the city. However, it may be that the only emergency beds available are in the city. Limited availablity of accommodation may result in a person staying in the city and needing to commute to the outer suburbs to report to the police. People can have difficulties complying with their bail conditions if they have to travel so far every day to report to the police.
• A person may be bailed to a particular SAAP agency. If there are no beds at this agency, the person is in breach of their bail conditions. This also puts an obligation on the service to accommodation, even when there are no beds available.
• Bail conditions for sex offenders to not reside within a specified distance of a park. However, the only available beds may be at an accommodation service near a park.

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

Literacy

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

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

• signing documents without being fully aware of what they were agreeing to
• being unaware of their right to appeal particular decisions (where information is provided with a letter from, for example, Centrelink)
• failing to respond to requirements detailed in letters or documents provided to them
• not being able to fill out application forms (e.g. fine repayments, victim’s compensation)
• missing their court dates because they cannot read the notice informing them to attend court. This was identified as a particular issue for Aboriginal young people.⁴²

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

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

Rural and regional issues

The location and accessibility of courts and tribunals is also an important factor in determining whether people experiencing homelessness can access justice.⁴⁵

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

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

Kids know that they need to get to court, [they] just have no way of getting in there.⁴⁹

Length and complexity of process

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

The legal process is so long that people are gone or are busy dealing with another issue.⁵⁰

In its submission to this report, the LCRC reported that court or tribunal matters that involved a number of hearings (e.g. due to adjournments), can cause particular problems for homeless people, who in facing a number of barriers preventing them from getting to the process in the first place, are even less likely to turn up to subsequent court or tribunal dates.

Steps must be taken to reduce the delays experienced in having matters finalised in the local courts. The clients have difficulty understanding and accepting the failure of the police to have their briefs of evidence finalised, leading inevitably to numerous adjournments. The stress on the clients on having matters unresolved, of having to turn up again in four weeks’ time increases the likelihood of these clients not turning up at all.⁵¹

Brian Sandland also referred to the issue of delays at court. He noted that when matters are stood down in the morning and people have to wait around all day for matters to be heard, this can be a problem for clients with complex needs (e.g. people with mental illness, intellectual disability, drug and alcohol issues), who can become frustrated and leave before the matter is heard.⁵² This can have serious consequences for the person’s eligibility for bail. Given that some homeless people have complex needs (particularly street-based homeless people), delays at court may also lead to homeless people leaving court before their matter is heard.

Multi-tiered processes

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

DOH appeals process

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

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

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

• the complexity of DOH forms (both applications for appeal and for housing). Caseworkers have indicated that forms are very difficult for clients to correctly fill out without assistance. This deters people from appealing a decision⁵⁸
• the process of applying for housing or appealing a decision made by the Department can be lengthy.⁵⁹ As noted above, many homeless people have competing priorities that are far more immediate
• a concern with the HAC process raised in consultations was that the HAC can only make ‘recommendations’, which are not binding on DOH. Tenancy workers believed that DOH quite often declines to follow the HAC’s recommendation.⁶⁰

Centrelink processes

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

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

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

Substantial weaknesses exist … in relation to internal Centrelink reviews. The greatest problem is that a general practice has developed within Centrelink of requiring jobseekers to return to the original decision-maker for reconsideration of the decision before being allowed to approach an authorised review officer. This practice has no statutory justification; indeed, it is clearly inconsistent with the statutory right to proceed directly to the authorised review officer.⁶⁴

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

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

In general, reviews by the SSAT and subsequent reviews operate satisfactorily for those jobseekers who have the determination and resources to access them.⁶⁹

Fines

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

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

One client told us that she got a fine for putting her feet on the seat. She rang IPB to see if they would accept payments by instalment. They said, no, she had to wait until she had received a reminder notice from IPB and then it had gone to the SDRO. The debt has to reach the SDRO before a repayment plan can be considered. By the time it gets to the SDRO an additional penalty is included.⁷³

Furthermore, once the fine has been referred to the SDRO, it is not possible for a person to dispute their liability for the fine itself. However, the person can apply to the SDRO for any of the following:

• waiver of the fine
• annulment of the penalty notice enforcement order
• extension of time to pay
• permission to enter into a ‘pay by instalment’ agreement
• a stay on collection and enforcement procedures.⁷⁴

While the fines system makes some provision for the particular circumstances of disadvantaged people, it is difficult to negotiate the system effectively without competent assistance.⁷⁵ For example, all of the applications referred to above must be in writing, and many require detailed supporting documentation, such as doctor’s certificates, affidavits of financial circumstances, and bank statements.⁷⁶ As described earlier, maintaining good paper records is particularly challenging for homeless people. Even where the applicant has access to the assistance of an advocate, the success of an application for waiver of a fine based on hardship is hampered by the fact that there is no public access to the guidelines as to how the SDRO should determine such applications.⁷⁷

Formality and understanding the process

I mean me meself I have had a pretty good education but there are words that I don’t understand. They were putting it over me by using words I never understood … I think, where’s me thesaurus when I need it!! That’s where I seem to think they get ya. Speaking over ya. To me it seems to be a way of belittling you also when they are doing it … and that’s a big disadvantage.⁷⁸

Given the educational and literacy levels of the homeless population (as described in Chapter 3), the formality of language and jargon used in legal and bureaucratic processes can be intimidating and can significantly reduce the capacity of homeless people to understand what is going on in the courtroom or tribunal. As stated by one stakeholder:

On the day of court, they are scared. They’re not ready to listen and they’re not taking anything in.⁷⁹

Like many people who are not legally trained, homeless people possess little understanding of what actually goes on in a court or tribunal, what the role of the magistrate is, what they have to bring, what they need to say and what is likely to happen on the day. A roundtable participant stated:

And I suppose basically even down to the legal language. Sometimes I’ve had to read through an order. Clients come in to us all the time with something they’ve been given and say like, ‘What does this mean? What’s going to happen to me?’ So this is just down to even understanding, you know, they might not even realise what they’ve been charged for.⁸⁰

Jane Sanders of Shopfront highlighted some of the issues facing her clients.⁸¹ These included:

• ignorance of the courtroom process (e.g. not knowing the role of the magistrate)
• not knowing how to behave in court
• finding the courtroom setting alienating and frightening.⁸²

Another caseworker stated:

Not understanding how to behave in the court … often they end up in [a] worse struggle having gone into court … because they’ve gone off. They need to have someone to go into court with them and explain to them.⁸³

This view has also been expressed in previous research.⁸⁴ For example, a recent report investigating the link between domestic violence and homelessness noted:

It was commonly agreed that women had little information about what they could do legally when experiencing domestic and family violence and that the court experience when orders were applied for was often very lonely, frightening and bewildering. Language difficulties faced by many women from non-English speaking backgrounds and Indigenous women compounded their problems.⁸⁵

Legal representation

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

And we’re sure that some of our clients get worse outcomes than they would have had if they had someone with them, just because clients with limited education, clients with mental health issues, the whole court process, a lot of them are unfamiliar with even the real basics of how it works and appropriate behaviour for the courtroom, things like that.⁸⁷

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

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

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

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.⁹²

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