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Chapter 8. Barriers to participating in the legal system

A minority become disillusioned with the complexity of the process and drop out. Others do not complete and submit their application form because they are preoccupied with immediate issues, such as where to stay each night. Another group do not receive official communications because they have moved on.¹

Chapter 4 of this report indicated that homeless people often face multiple legal issues, sequentially and concurrently, in areas including family law, housing, debt, crime and social security. However, as also described in previous chapters, homeless people face a range of barriers to identifying and seeking assistance for their legal issues. This chapter discusses the specific challenges facing homeless people in participating in the legal processes relevant to their needs.

Homeless people face barriers throughout the whole legal process. For example, they may encounter difficulties initiating legal processes that involve lodging written applications (e.g. due to literacy problems), or they may have trouble physically attending court (or other legal arenas including tribunals). If they make it to court, homeless people face further hurdles to participating effectively in the process and in the outcome as a result of not understanding the legal process, mental illness and other cognitive impairment and lack of legal representation. As a result, the legal needs of homeless people may remain unresolved, thereby exacerbating the disadvantage they experience and or resulting in further legal problems. For example, not challenging a decision by Centrelink to suspend a payment could result in a person being without income for an extended amount of time, which may lead to a person committing criminal offences.

For those processes that homeless people are required to participate in, such as the criminal legal process, barriers that prevent them from participating can also have serious consequences. For example, in criminal matters, not turning up at court can result in a warrant being issued for the person’s arrest, or receiving a record for failing to appear, making it more difficult for them to be released on bail for subsequent charges. In tenancy matters it may result in eviction orders being made in the person’s absence, and their being removed from or losing their only accommodation. Hence, not only is it important that homeless people can access legal advice and representation, but also that they are able to participate in the legal process.

For the purposes of this chapter, ‘participation in the legal system’ includes participation in courts and tribunals, internal appeal processes of government departments (e.g. Centrelink), alternative dispute resolution, and other complaints processes (e.g. NSW Ombudsman). Homeless people may be involved in the legal system willingly as applicants, or unwillingly as defendants, respondents or victims. This chapter will specifically examine two broad issues:

• barriers impacting on a homeless person’s ability to participate in legal processes
• initiatives and features of existing legal processes that can facilitate the active participation of homeless people.