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PHILIP LYNCH[*]
[This article examines the impact of law and law enforcement on people who are homeless or at risk of homelessness. It argues that many homeless people are discriminated against by the formulation and application of law without regard to socio-economic status; that homelessness can render unlawful behaviours that would be lawful if conducted in a private dwelling; that many homeless people are detrimentally affected by the arbitrary, selective or targeted enforcement of law; and that inadequate protective legislation and a lack of access to resources and remedies mean that the rights of many homeless people are violated by individuals and organisations who can act with relative impunity. The article proposes legal, social and economic responses aimed at constructing sustainable pathways out of homelessness.]
CONTENTS
The law, in its majestic equality, forbids the rich as well as the poor from sleeping under bridges, begging in the streets and stealing bread.[1]
The disproportionate impact of formally equal laws on ‘unequals’ was identified over 100 years ago by Anatole France, writer, critic, communist and winner of the 1921 Nobel Prize for Literature. The counterview that ‘[w]here you live and your social standing is a non-issue’[2] (as recently expressed by the Police Chief Inspector for Melbourne) fails to account for the social context of law.
In this article, I examine the impact and effect of law and law enforcement on one of society’s most ‘unequal’ groups — people who are homeless or at risk of becoming homeless. I argue that homeless people are disproportionately affected by the application of law without regard to status and are especially subject to the criminalisation of behaviour that would be lawful if conducted in a private dwelling. I further argue that homeless people are sometimes targeted for arbitrary or selective enforcement of laws, and often have their rights usurped by individuals and organisations that can act with relative impunity. I conclude that any meaningful notion of justice requires that the formulation and application of the law account for social context. Legal, social and economic responses that reduce inequality, promote dignity and address underlying causes of disenfranchisement are crucial to the construction of sustainable pathways out of homelessness.
Definitions of ‘homelessness’ are diverse and culturally contingent but central to identifying underlying causes and developing appropriate responses. In ‘Home’ by Spearhead, African-American hip-hop vocalist Michael Franti sings:
If the key don’t work/knock on the door
no matter how far away you seem I am always
here at home.[3]
Similarly, poet Robert Frost wrote, ‘[h]ome is the place where, when you have to go there, they have to take you in.’[4] Seen this way, being ‘without a home’ or ‘homeless’ means being without a conventional home and the attendant ‘economic and social supports that a home normally affords’.[5] Such a definition assists in ‘understanding the lived experience of being homeless’[6] or at risk of homelessness. It is an experience that Ian Charles, himself formerly homeless and now a cook at an open lunch program for Melbourne’s marginalised and disadvantaged, understands well:
Just because you have a roof over your head doesn’t mean that you have a home. I thought my life had ended, when, for reasons I won’t go into here, I found myself homeless and out on the streets.
Where should I go from here?
After a couple of months moving from beach to park around Melbourne, I thought it was time to get some stability in my life. I thought a rooming house might provide shelter and a base to repair my fragile emotional state. How wrong I was![7]
In Australia, there is an emerging consensus around the definition of homelessness developed by Chamberlain and MacKenzie[8] and endorsed by the Australian Bureau of Statistics.[9] Chamberlain and MacKenzie argue that homelessness is best defined in relation to common community standards regarding the minimum accommodation necessary to live according to the conventions of community life. In Australia, the accepted community standard is taken to be a small rented flat with a bedroom and such basic amenities as a bathroom and kitchen. Using this standard, Chamberlain and MacKenzie identify three categories of homeless persons: ‘primary’ (meaning people without conventional accommodation, such as those living on the streets, in cars or in squats); ‘secondary’ (people in temporary accommodation such as a boarding house, refuge or crisis accommodation facility); and ‘tertiary’ (people who live in boarding houses on a medium to long-term basis).[10]
For the sake of simplicity, I will adopt Chamberlain and MacKenzie’s widely used definition in this article.
Little has changed since Anatole France critiqued the impact of the application of formally equal laws on ‘unequals’ over 100 years ago: the law still forbids the rich as well as the poor from sleeping under bridges, begging in the streets and stealing bread. Homeless people continue to be disproportionately and adversely affected by inherently discriminatory laws, such as laws that criminalise begging.
The criminalisation of begging provides perhaps the starkest example of a law that effectively discriminates against people on the basis of their socioeconomic status.
In most Australian States, begging is a criminal offence punishable by imprisonment or fine.[11] For example, s 6(1)(d) of the Vagrancy Act 1966 (Vic) provides that ‘[a]ny person who begs or gathers alms or procures or encourages a child to beg or gather alms shall be guilty of an offence.’ The prescribed penalty for a first offence is one year’s imprisonment while for a second or subsequent offence it is two years’ imprisonment.
Yet, as discussed below, experience and research demonstrate that begging is most often a manifestation of chronic poverty, need and disadvantage — a last resort activity engaged in for the purpose of supplementing income, satisfying addictions, and fulfilling subsistence needs such as food, accommodation and health. Clients of the Homeless Persons’ Legal Clinic (‘the Clinic’) who beg report it to be a harsh necessity that is humiliating, demeaning, frustrating and time-consuming.[12] A study conducted by Hanover Welfare Services investigated the extent and nature of begging within Melbourne’s central business district by questioning 14 persons using Hanover Outreach Services who were also observed to engage in begging behaviours, over a four month period in 2000. Ninety-three per cent of these people were long-term unemployed, 71 per cent were sleeping rough or in squats, 93 per cent were receiving social security payments (although in 28 per cent of these cases the payments had been reduced or terminated due to breaches) and 71 per cent suffered from alcohol, substance or gambling addictions.[13] Three main reasons were given by people for engaging in begging behaviour. Firstly, the inadequacy of social security payments given the costs of housing, clothing, food and medical treatment; secondly, psychiatric and intellectual disabilities and illnesses; and thirdly, substance, alcohol or gambling addictions.[14] For many, begging is a more acceptable means of satisfying immediate needs than resorting to other criminal activity such as theft, drug dealing or prostitution. The experiences of the Clinic and the findings of Hanover Welfare Services are supported by extensive studies in the United States, the United Kingdom and Europe that demonstrate clear associations between begging, substance abuse, homelessness, mental health, unemployment and poverty.[15]
Although equal on their face, the reality of anti-begging laws is that they impact on society’s most marginalised, disadvantaged and vulnerable people. As discussed above, begging is usually a last resort to supplement income and satisfy subsistence needs — it is the poor, the wretched and the hungry who beg. Fining people for such activity exacerbates the causes that underlie it and may encourage people to engage in other illegal income supplementation activities. Incarcerating people for such activity fails to address underlying causes and may further jeopardise often tenuous relationships between the individual, her or his family and friends, and society generally.[16] As Arthur Schafer contends:
When society silences a panhandler or banishes the panhandler from places which have traditionally been public places, such banishment comes close to being a denial of recognition. Each of us has a fundamental need to be recognized by our fellow citizens as a person with needs and views. The criminalization of panhandling is not only an attack upon the income of beggars, it is an assault on their dignity and self-respect, on their right to seek self-
realisation through public interaction with their fellow citizens.[17]
It is imperative that begging be conceived of as a social and economic issue rather than a criminal activity. Responses to begging must account for inequality and context. They must address underlying causes and conditions and promote human dignity and agency.
While anti-begging provisions may provide the paradigmatic example of laws that, although equal on their face, disproportionately and detrimentally affect people on the basis of their socioeconomic status, many such laws exist. I now consider the right to vote and eligibility for unemployment benefits as further examples.
The right to vote is a human right central to notions of participatory democracy, societal engagement, and a sense of community belonging and control.[18] It is a right denied to many homeless people. Of the 88 000 homeless people who are eligible voters in Australia,[19] it is estimated that between 33 and 90 per cent are not registered to vote.[20] This suggests that between 29 000 and 80 000, and possibly more, homeless people did not vote in the 2001 federal election.
Impediments to homeless people registering and exercising their right to vote include the following aspects of the Commonwealth Electoral Act 1918 (Cth). Section 99 requires that a person must have lived in an electoral subdivision for at least one month in order to vote in that subdivision. Many homeless people live in temporary or transient accommodation and will not satisfy this requirement if they move outside of the subdivision. This transience also means that many homeless people do not have a recognised residential address and therefore find it difficult to satisfy s 98 which requires that a person must provide a ‘residential address’ to be included on the electoral roll. Section 101 further provides that it is an offence for an elector to fail to give notice of a change of address within 21 days. The monetary penalties associated with this offence are a significant disincentive to homeless persons registering as electors. Some appreciation of the difficulties caused to homeless persons is shown in s 96 which entitles certain persons with no ‘real place of living’ to enrol as itinerant electors. However, enrolment as an itinerant elector is administratively burdensome and is not possible if the person has resided in an electoral subdivision for a month or longer.
In my view, enfranchisement of the homeless requires amendments to the Commonwealth Electoral Act 1918 (Cth). Firstly, homeless people should be able to register to vote in a subdivision with which they have a ‘close connection’. Furthermore, homeless persons should be exempted from the monetary penalties associated with failure to notify a change of address. Finally, the itinerant voter provisions should be simplified and streamlined. Importantly, the Australian Electoral Commission must also devote greater time and resources to educate and assist homeless persons regarding their right to vote. This should include locating polling booths and providing administrative assistance at crisis accommodation centres and homelessness agencies.[21]
The Social Security Act 1991 (Cth) is another example of a law that discriminates on the basis of housing status. Many homeless persons face significant systemic difficulties in complying with qualification requirements for social security payments. Moreover, once they have been approved for payment, many homeless people are disproportionately susceptible to, and affected by, social security penalties. Take Newstart, an unemployment benefit, as an example.
Eligibility for payment of Newstart (or ‘the dole’ as it is often and pejoratively termed) under the Social Security Act 1991 (Cth) is generally contingent upon the claimant complying with a ‘Preparing for Work Agreement’.[22] The Agreements often impose conditions — such as regularly attending job interviews or promptly responding to Centrelink correspondence[23] — compliance with which homeless persons find very difficult or impossible.[24] Many homeless people have more pressing concerns than attending a job interview — like finding somewhere safe to sleep and something to eat. Many homeless people, especially those with no fixed address, do not receive Centrelink correspondence. When correspondence is received, lack of access to education and concomitant rates of illiteracy may mean that a homeless person is unable to comprehend it. Failure to comply with the requirements of a Preparing for Work Agreement usually results in a person being ‘breached’, meaning that the payment of the unemployment ‘benefit’ (or unemployment ‘right’, as I prefer to call it) is reduced or terminated.[25]
While breaches represent a ‘saving’ to government, they occasion significant financial and psychological hardship to the people penalised and result in a transfer of costs and responsibilities to welfare agencies and service providers during non-payment periods.[26] Breaches often result in a vicious cycle of poverty and homelessness as an individual’s energies and resources are directed towards surviving rather then securing employment.[27]
The Social Security Act 1991 (Cth) should be amended to explicitly exempt homeless persons from the requirement to enter into a Preparing for Work Agreement.[28] Homeless persons specifically, and the community generally, would be better served if significant workforce barriers were properly assessed for all unemployed persons at the outset. Where such barriers are identified, referrals should be made to the Personal Support Program, the Community Support Program or such other service providers as is necessary.[29]
Injustices resulting from inherently discriminatory laws, such as those discussed above, will subsist for as long as the law is formulated and applied without adequately accounting for socioeconomic context. I propose a two-pronged strategy to address these injustices.
First, homeless people and their advocates must be empowered and enabled to participate in the legislative process: to have a say in the formulation of laws that affect them. As the Council to Homeless Persons in Australia and the National Law Center on Homelessness and Poverty in the United States argue, establishing community councils that bring together law-makers, business groups, service providers and homeless people ‘can create dialogue and help forge political consensus.’[30] This is echoed by Larissa Behrendt, the Aboriginal activist, academic and author: ‘A community must always decide for itself what is best for its members. Only the community knows what is best for the community.’[31] People experiencing homelessness should not be obstructed in exercising their right to be involved in public policy-making and must be afforded the resources to allow this to happen.
Second, further care, resources and energy must be committed to constructing sustainable pathways out of homelessness and to blocking definitively those that lead to homelessness. This was best put by Alice Walker, author of The Colour Purple and winner of the Pulitzer Prize, when she averred that ‘empowerment of the poor — literacy, good health, adequate housing, freedom from ignorance — is the work of everyone of conscience’.[32]
I discuss below in greater detail the materials necessary for the construction of sustainable pathways out of homelessness.
In addition to being adversely affected by laws that are formally equal but substantively discriminatory, homeless people are affected by laws that specifically ‘target behaviours associated with the state of being homeless’.[33]
The state of homelessness can render unlawful behaviour that would not be so if conducted in a home. Laws that criminalise behaviour such as sleeping, bathing, lying, drinking or storing belongings in public space impact on homeless people on the grounds of their housing status and the necessary location of their conduct, not on the basis that the behaviour itself is criminal.[34]
Andy, a client of the Clinic, used to sleep rough on the numerous nights that crisis accommodation facilities and shelters were full. He suffers from an acquired brain injury and an intellectual disability. He also suffers from chronic alcoholism, a legacy of trying to cope with life on the street. Between 1996 and 2001, Andy received more than $100 000 in fines for offences such as drinking in a public place, swearing, urinating and littering. Most of the fines were issued around Flinders Street railway station — the location of his community, his support network and his ‘home’. Non-payment of such fines can result in imprisonment for up to one day per $100. In each case, it was the location rather than the nature of Andy’s conduct that rendered his behaviour unlawful. Andy would not (and could not) have been charged had he been drinking, swearing, urinating or littering in a conventional home. This reality has been recognised in the United States, where courts have determined that the criminalisation of essential acts performed in public by consequence of homelessness is a violation of fundamental human and constitutional rights, including the right to freedom of movement, the right to be free from cruel and unusual punishment, and the right to due process or natural justice.[35] It is a reality that was also implicitly acknowledged by the Melbourne Magistrates’ Court, which, on 14 December 2001, dismissed all the fines against Andy. The Court imposed a condition that Andy comply with a case management plan prepared by St Vincent de Paul Support Services, stating that ‘the community should accept responsibility for people in the offender’s position’.[36] The plan is designed to enable Andy to obtain stable accommodation and aged care support — that is, to address the causes underlying Andy’s homelessness and his need to perform essentially private acts in public.
The decision in Andy’s case (and in several cases in the United States) recognises that any meaningful notion of justice requires that the regulation of public space account for inequality and context. As critical social theorist and lawyer Jeremy Waldron opines:
Fairness demands that public spaces be regulated in light of the recognition that large numbers of people have no alternative but to be and remain and live all their lives in public. ... If not as a constitutional matter, then certainly as a matter of justice, those who have the power to regulate public spaces must pay special attention to the difference between the impact of a given regulation on a person who has a home and its impact on someone who is homeless. In the case of a person who has a home, compliance with an ordinance prohibiting, for example, sleeping in public places is simply a matter of relocation. For someone who has no home ... compliance means that he must not sleep.[37]
I acknowledge that there is a clear public interest in promoting community health, safety, aesthetics and amenity through the regulation of public spaces. However, those interests ‘should be given appropriate weight; they cannot, for example, outweigh a homeless person’s need to eat, sleep, and live.’[38] Moreover, responses that address legitimate concerns (such as sanitation in the case of a person who urinates in public) through constructive measures (such as the adequate provision of accessible public restrooms) are far more appropriate than the prevailing punitive responses to behaviour that is ‘offensive’ in public.[39] This is the point that Waldron makes when he analogises that the smartest way to fix a broken window is not to knock down the whole building or move it to just outside the edge of town.[40]
I also accept that the purpose of restricting the use of public space is not to ‘oppress the homeless or diminish their liberty,’ but to ‘reduce annoyance’ and promote the public interest by ensuring all members of our community are able to enjoy the use of public spaces.[41] However, as long as members of our community exist in a condition of homelessness, our normative definitions of ‘public interest’ and our concomitant regulation of public space must accommodate the stake that homeless persons — as community members — have in public space.[42] Maria Foscarinis, Executive Director of the National Law Centre on Homelessness and Poverty, in the United States, writes:
Everyone has an interest in pleasant public space ... no one has an interest in living on the street. Activism and debate should focus on addressing the conditions that require people to live on the street, by defining and implementing solutions to homelessness.[43]
As long as members of our community are homeless, our annoyance and distress at seeing people sleep, swear, urinate and drink in public space must be harnessed to alleviate and address the causes underlying homelessness.
The pathways into homelessness are complex and varied. They include a ‘lack of affordable housing, substance abuse and the lack of needed services, mental illness, domestic violence, family crisis, and poverty or insufficient income.’[44] It is these pathways that must be closed if we are to prevent people from becoming homeless and address the needs of those who are currently homeless.
I therefore offer the following recommendations. Firstly, the performance of basic acts — such as sleeping, bathing, lying, swearing, urinating, storing belongings or drinking — in public space should not constitute an offence if there is a nexus between the conduct and the would-be offender’s housing status or ‘special circumstances’.[45] ‘Special circumstances’ should include: homelessness; psychiatric illness; disability or disorder; chronic alcohol, substance or gambling addiction; and any other severe social dysfunction. Law enforcement officers should be required to inquire as to (and document) the housing status and ‘special circumstances’ of any person who is alleged to have committed a ‘public order’ offence. If the person is homeless or has special circumstances that diminish her or his responsibility for the alleged offence, law enforcement officers should be required, having regard to the person’s circumstances and needs, to contact an outreach worker or refer the person to an appropriate welfare organisation or service provider. Training programs for law enforcement officers are discussed further below.
Secondly, as discussed above, further care, commitment, resources and energy must be dedicated to addressing the underlying causes of homelessness. The Algerian anti-colonialist and revolutionary, Franz Fanon, was correct when he implored that ‘[t]he battle-line against hunger, against ignorance, against poverty and against unawareness ought to be ever present in the muscles and intelligences of men and women.’[46]
I recommend several practical measures to address the underlying causes of homelessness. Firstly, funding to, and the availability of, services for the benefit of homeless persons or persons at risk of becoming homeless must be increased. Such services include the provision of safe, secure, appropriate and affordable accommodation and targeted employment, education and training options. Support options, including targeted public health care, gambling and alcohol and other drug addiction facilities that offer both crisis and long-term counselling, support and rehabilitative services must be provided since there is a significant correlation between homelessness and physical and psychiatric illnesses, disabilities and disorders. Further, since women comprised almost 40 per cent of persons identified as homeless in the 1996 census,[47] — and presently it is estimated that more than 50 per cent of homeless people in Australia are women or children[48] — refuges and support services for victims of domestic violence and family fragmentation must be established. To complement these services a minimum living allowance must be guaranteed and access to information and referral networks for homeless people in relation to all of these housing and support services must be developed.
The cost of these measures is significant but incommensurable with the cost of doing nothing. This is not just because, as activist rock band Rage Against the Machine warns, ‘hungry people don’t stay hungry for long’,[49] but because, in our quest to become more fully human, we must ensure that conditions are such that others are able to do the same. To accept homelessness, to refuse to be moved by homelessness (or, worse still, to remove the homeless), to accept the distortion of
the humanity of others, is to fail to observe our own humanity.[50] As the African-American cultural theorist and critic bell hooks so powerfully asserts:
We can never ensure the safety of our freedom to self-actualize if we do not wish to claim those rights for everyone, [for all] our brothers and sisters.[51]
In addition to being detrimentally affected by the formulation and application of laws without regard to socioeconomic status and to being subject to the criminalisation of behaviours that would be lawful if conducted in a home, homeless people may be affected by the arbitrary, selective or targeted enforcement of laws.[52] I will illustrate this by way of a case study.
Kylie, a client of the Clinic, was a heroin addict for three years. During that time she slept rough at Flinders Street and Spencer Street stations. She begged in order to support her addiction, refusing to engage in drug dealing or prostitution. Over time, Kylie became an accomplished beggar, often netting as much as $60 in a day. Kylie also became well known to police. She presented to lawyers of the Clinic with more than $5000 worth of fines incurred over a six month period. Many of the fines were issued in spates — one police officer would issue Kylie with an initial fine for begging, then subsequent fines for threatening behaviour and littering when, invariably, she screwed up the initial infringement notice and threw it to the ground. The same scenario would be repeated with another police officer five minutes later.
Kylie’s case is not unusual. Andy, the elderly homeless man with over $100 000 worth of fines, received as many as 13 infringement notices in one hour from three different issuing officers. It is difficult to resist the conclusion that Kylie and Andy were targeted.
That homeless persons are targeted for (or at least are unusually susceptible to) law enforcement is not surprising. Homeless people constitute a visible, vulnerable, yet voiceless group. Jonathon Mott, a former Chairperson of Victoria Legal Aid, contends just this:
Once a person is homeless, ‘visibility’ problems occur. The homeless person is often on the street or in a public place in company with others. They become exposed to complaint and to scrutiny from police and council officers ... Often the initial contact by police results in a person being questioned, searched, and moved on. A person would not need to be exposed to these situations if he or she had a home.[53]
In November 2001, David, another client of the Clinic, was issued with an infringement notice for drinking intoxicating liquor, at St Paul’s Cathedral in Melbourne. ‘We already have enough trouble with the black cunts in the city and don’t need any more trouble from people like you’, he claims to have been told by one officer. David was with some Aboriginal friends at the time. He was directed by the police officer to get into a police divisional van. Although he was not placed under arrest, David feared the use of force and so complied with the officer’s instructions. The officer did not, at any stage, explain the basis on which David was being detained or the purpose of his detention. David was not told where he was to be taken. The doors of the divisional van were locked behind him. He was detained for approximately 40 minutes. The van was moving for most of this time. When the van stopped and the doors were unlocked, David disembarked and discovered that he was in Fitzroy. ‘You’d better not come back into the city’, the police officer threatened. David felt intimidated and scared by this statement. He relies on a part-time job in the city to supplement income received from a Disability Support Pension. As a result of the actions of the police, David suffered a deprivation of liberty, emotional distress and, perhaps most important, a loss of dignity. He decided not to pursue legal action against the police for fear of victimisation.
Best police practice requires transparency and accountability. It is, therefore, desirable that details of all charges laid against homeless people or people with special circumstances be provided to a state entity responsible for monitoring police practices and behaviour. This entity could also ensure that, where charges against a homeless person are prosecuted, she or he is legally represented.
I would like to think that the experiences of Andy, Kylie and David are isolated and unusual. Many law enforcement officers are sensitive to issues of disadvantage and disenfranchisement. Often, their actions are responses to significant pressures exerted by the public, particularly central business district traders.[54] But law enforcement officers could do more to address the discriminatory impact of the law on people who are homeless or at risk of homelessness. Certainly, they are well placed to do so. As Waldron argues, the closeness to the ground of law enforcement officers means that they should be ‘much more sensitive (than, say, legislatures) to the detailed predicaments of various persons in a given situation and to others’ awareness of those predicaments.’[55] He further contends that, with education, this awareness should manifest itself in the exercise of ordinary discretion by law enforcement officers. It is perhaps reasonable that ‘someone urinating into the fountain in Lincoln Plaza is arrested; someone who has been seen behind a bush in Central Park [should] not be.’[56]
The important role of law enforcement officers in softening the often harsh impact of the law on homeless people should be recognised and encouraged. All police officers should be required to undergo training on homelessness and on civil and human rights associated with homelessness. Rigorous and responsive training programs and procedures should be developed and implemented in conjunction with welfare agencies and people experiencing homelessness. These training programs could sensitise law enforcement officers to issues associated with homelessness, while procedures could empower and equip law enforcement officers with the ability to make appropriate referrals or engage the assistance of outreach workers where necessary.
If law enforcement officers sometimes exercise their discretion in respect of homeless people unreasonably or harshly, they are not alone. A report produced in September 2002 by the Homeless Persons’ Legal Clinic in conjunction with the Council to Homeless Persons found that discrimination against people who are homeless, unemployed or social security recipients is widespread in Victoria.[57] The report found that this discriminatory treatment has a damaging and costly impact ‘on the individuals concerned and the community as a whole.’[58] The links between poverty and discrimination are well documented.[59]
Homeless people, like all of us, have human rights. Unlike many of us, however, they may not be apprised of those rights or have the resources to seek redress for their violation. This is exacerbated by the inadequacy of protective or anti-discrimination legislation. In Victoria, for example, discrimination on the ground of homelessness, joblessness or being a social security recipient is not prohibited by the Equal Opportunity Act 1995 (Vic). Accordingly, the rights of many homeless people are violated by people and organisations exercising power with relative impunity.
Not surprisingly, examples of this are most common in the private rental and accommodation markets. The chronic shortage of affordable, appropriate accommodation, together with the obvious fact that homeless people need housing, creates a situation that is often exploited by unscrupulous landlords. It is not unusual, for example, for hostels and backpackers’ inns to charge different rates for international travellers and itinerants. The Council to Homeless Persons reports that it is common for caravan park and boarding house operators to demand hefty (and illegal) bonds from people on social security payments.[60] As
Mott asseverates:
Vigilant and socially well equipped tenants can seek to defend their position, but the vulnerable and the marginalised often passively accept eviction, or react in a violent or in an inappropriate manner so the landlord can use the assistance of the police to gain possession.[61]
Evan is a seasonal fruitpicker. He receives a Disability Support Pension as a result of his mental illness. After returning to Melbourne from his seasonal employment, Evan found accommodation at a rooming house in Fitzroy. The Society of St Vincent de Paul undertook to pay rental amounts to the rooming house proprietor, upon invoice, until Evan obtained stable accommodation. About a week later, the rooming house proprietor forcibly evicted Evan from the premises for ‘failure to pay rent’. St Vincent de Paul had never been invoiced. The proprietor refused to grant Evan access to his belongings, which remained locked in his room. When Evan’s caseworker contacted the rooming house to complain formally the proprietor apologised for the ‘mistake’ but stated that, unfortunately, Evan could not return as there were no vacancies. He denied the presence of Evan’s belongings in the room. Happily, the Clinic was able to negotiate an apology and monetary compensation for Evan’s illegal eviction. Unfortunately, the practice of evicting ‘undesirable borders’ when a rooming house is full, or of adhering to a policy that only ‘international travellers’ be afforded accommodation during peak times, remains widespread.[62]
In my view, it is ignorance (or at least a lack of understanding) of the rights of homeless persons and of the complex causes of homelessness that allow conduct such as that discussed above to occur. Rights violations are most often perpetrated against those who do not have the means to enforce their rights, by people who do not recognise that homeless people actually have rights. To overcome this, we must commit resources and energies to educating homeless people about their political and social rights. Homeless people must be empowered so that they can enforce their rights through access to legal representation, the courts and targeted regulatory and dispute resolution bodies. Reform of anti-discrimination legislation to prohibit unfair, unjust or less favourable treatment on the ground of homelessness is also crucial.[63] We must similarly apply ourselves to educating the broader public about the causes of homelessness and issues associated with it. Education is the foundation of the formation of social norms. Waldron gives a simple example:
if it is well known that there are no public restrooms in a given vicinity, and that homeless people have access to shelter facilities only at night, then social norms are unlikely to spring up enforcing absolute prohibitions on public urination.[64]
For too long, homelessness and poverty have been regarded as some kind of weakness or depravity of an individual’s spirit, rather than as a manifestation of societal and structural inequities and inadequacies. We need a comprehensive, far-reaching education campaign that engages traders, councils, legislatures, students, teachers, business people, law enforcement officers, service providers and the general public alike about the causes of, and issues regarding, homelessness. As Dominic Fox, Chief Executive Officer of the National Homeless Alliance in the United Kingdom, has stated:
We have to ensure that these people who are some of the most damaged in our society, are not demonised and seen as undeserving ... but are offered adequate support, quickly when they need it, to help them.[65]
In this article, I have examined the impact of law and law enforcement on people who are homeless or at risk of homelessness. I have argued that homeless people are detrimentally affected by laws that are formulated and applied without regard to socioeconomic status, including laws relating to begging, voting and social security payments. I have further argued that homelessness can render essential behaviours unlawful — such as sleeping, bathing and drinking — which would be lawful if conducted in a home. The case studies that I have discussed demonstrate that homeless people are sometimes targeted for the arbitrary or selective enforcement of laws, and are often subject to rights violations by individuals and organisations acting with impunity. Throughout the article I have maintained that any meaningful notion of justice requires that the formulation and application of the law account for context. In this regard, I have made recommendations as to legal, social and economic responses that aim to eliminate inequality, promote human dignity and agency, and address underlying causes of homelessness.
It is this last issue that is the most crucial. Law and law enforcement can, and should, be more sensitive and responsive to homeless persons and the conditions of homelessness. What is more important, however, is that we work to build a community in which far fewer people are homeless. In 1996, our community included over 105 300 people who were homeless.[66] Many more were at risk of homelessness. Why do we accept this? One answer is that, as homeless people are a largely powerless and perforce voiceless sector of society, many people do not realise the extent of the problem. Another more troubling response is that we do not engage with homelessness. As a professional woman in her twenties reports, ‘I often cross the street to avoid someone begging, to stop me feeling bad when I walk past.’[67] We think that we will never be homeless, that our friends and family will never be homeless, and so we avert our gaze. And when we cannot avert our gaze, we become indignant, misleading ourselves into thinking that in such an affluent society, it is the fault of the individual that she or he is homeless.
It is time to make the choice to look homelessness in the eye. It is time to stop pretending that homelessness does not (or, but for individual failings, should not) exist in our community. We must transform our indignation into action. As Waldron avers: ‘If the situation of some in society is distressing, then it is important that others be distressed by it; if the situation of some in society is discomforting, then it is important that others be discomforted.’[68]
bell hooks has written that the ‘real deal’ is for all people to learn ‘to live and love in community.’[69] Celie, the often homeless, but always strong, black woman in Alice Walker’s novel, The Colour Purple, recognised this when she reflected, ‘one day when I was sitting quiet and feeling like a motherless child, which I was, it came to me: that feeling of being part of everything, not separate at all.’[70]
We must accept that homelessness exists in our community. We must acknowledge the stake that homeless people have in our community. We must accept and embrace homeless people as part of our community rather than viewing them as some kind of aberration. We must then enable and empower homeless people to pursue the pathways out of homelessness that we construct with them.
Alice Walker is partly correct when she says:
The world, I believe, is easier to change than we think. And harder. Because the change begins with each one of us saying to ourselves, and meaning it: I will not harm anyone or anything in this moment. Until, like recovering alcoholics, we can look back on an hour, a day, a week, a year, of comparative harmlessness.[71]
Harmlessness is a start. But positive intervention in the form of care, commitment, responsibility, respect, understanding, knowledge and most critically, love of community, is also required if we are to get real about homelessness. In the sage words of bell hooks:
Love is profoundly political. Our deepest revolution will come when we understand this truth. Only love can give us the strength to go forward in the midst of heartbreak and misery. Only love can give us the power to reconcile, to redeem, the power to renew weary spirits and save lost souls. The transformative power of love is the foundation of all meaningful social change.[72]
[*] LLB (Hons) (Melb); Solicitor, Allens Arthur Robinson; Coordinator, Homeless Persons’ Legal Clinic (‘the Clinic’). The case studies, conclusions and recommendations of this article are largely based on the author’s experiences while working at the Clinic. The views expressed are those of the author and are not necessarily views held by either the Clinic or Allens Arthur Robinson. All names in this article have been changed to protect privacy.
[1] Anatole France, The Red Lily (1894).
[2] Meg Mundell, ‘Drunk, Begging, No Ticket: $100 000’, The Age (Melbourne), 19 January 2002, News Extra 4.
[3] Michael Franti, ‘Home’ on Spearhead, Home (1994) [CD] track 7.
[4] Robert Frost, ‘The Death of the Hired Man’ in Edward Connery Latham (ed), The Poetry of Robert Frost (1969) 34, 38.
[5] See, eg, Supported Accommodation and Assistance Act 1994 (Cth) s 4.
[6] Sue Casey, ‘Single Women and Homelessness: Which Way Is Home?’ (Occasional Paper No 11, Catholic Commission for Justice Development and Peace, School of Social Work, University of Melbourne, 2002) 8.
[7] Ian Charles, ‘A Roof over Your Head Doesn’t Guarantee the Safety of a Home’ (2002) 2 Urban Seed 2, 2.
[8] Chris Chamberlain and David McKenzie, ‘Understanding Contemporary Homelessness: Issues of Definition and Meaning’ (1992) 27 Australian Journal of Social Issues 274.
[9] Chris Chamberlain, Counting the Homeless: Implications for Policy Development (Occasional Paper No 2041.0, Australian Bureau of Statistics, 1999).
[10] Ibid 1, 9–11; see generally Chamberlain and McKenzie, ‘Understanding Contemporary Homelessness’, above n 8.
[11] See, eg, Vagrancy Act 1966 (Vic) s 6(1)(d); Transport (Passengers and Rail Freight) Regulations 1994 (Vic) reg 325(d); Police Offences Act 1935 (Tas) s 8(1)(a); Police Act 1892 (WA) s 65(3); Summary Offences Act 1953 (SA) s 12; Summary Offences Act (NT) s 56(1)(c). The Australian position can be contrasted with that of the United States where anti-begging provisions in many jurisdictions have been struck down on the basis that they infract fundamental constitutional and human rights: see, eg, Loper v New York City Police Department, [1993] USCA2 815; 999 F 2d 699 (2nd Cir, 1993); Blair v Shanahan, 775 F Supp 1315, 1325 (N D Cal, 1991).
[12] Carol, a 17 year old homeless girl, told the Clinic, ‘I don’t like it ’cos it feels wrong’. See also Hartley Dean and Margaret Melrose, ‘Easy Pickings or Hard Profession? Begging As an Economic Activity’ in Hartley Dean (ed), Begging Questions: Street-Level Economic Activity and Social Policy Failure (1999) 83, 90.
[13] Michael Horn and Michelle Cooke, A Question of Begging: A Study of the Extent and Nature of Begging in the City of Melbourne (Research Paper, Hanover Welfare Services, 2001) 14–15.
[14] Ibid 21–2.
[15] See, eg, Peter Kemp, ‘The Characteristics of Single Homeless People in England’ in Roger Burrows, Nicholas Pleace and Deborah Quilgars (eds), Homelessness and Social Policy (1997) 69, 75–9. See generally Hartley Dean (ed), Begging Questions: Street Level Economic Activity and Social Policy Failure (2000). See also K Driscoll and L Wood, A Public Life: Disadvantage and Homelessness in the Capital City (1998).
[16] See generally Maria Foscarinis, ‘Downward Spiral: Homelessness and Its Criminalization’ (1996) 14 Yale Law and Policy Review 1, 60.
[17] Arthur Schafer, Down and Out in Winnipeg and Toronto: The Ethics of Legislating against Panhandling (1998) Caledon Institute of Social Policy 11 <http://www.caledoninst.org/
panhndle.pdf> at 26 September 2002.
[18] See, eg, International Covenant on Civil and Political Rights, opened for signature
19 December 1966, 999 UNTS 171, art 25 (entered into force 23 March 1976).
[19] Michael Horn, Social and Democratic Exclusion: Giving Voice to the Homeless (Research Paper, Hanover Welfare Services, 2001).
[20] Hanover Welfare Services estimates that one third of homeless people are not registered to vote: ibid; while the Australian Federation of Homelessness Organisations (AFHO) estimates that at least 90 per cent of homeless people are not registered to vote: AFHO, ‘Proposals Threaten Voting Opportunities for Homeless and Young Australians’ (Press Release, 27 June 2001) <http://www.afho.org.au> at 26 September 2002.
[21] Submission to Joint Standing Committee on Electoral Matters, Parliament of Australia, Inquiry into the 2001 Federal Election (2002) (Brianna Harrison and Philip Lynch, Homeless
Persons’ Legal Clinic) <http://www.aph.gov.au/house/committee/em/elect01/subs/sub145.pdf>
at 26 September 2002.
[22] Social Security Act 1991 (Cth) ss 593–607B.
[23] Social Security Act 1991 (Cth) s 606.
[24] See generally Australian Council of Social Services, Breaching the Safety Net: The Harsh Impact of Social Security Penalties (2002) <http://www.acoss.org.au/info/2001/305x.doc>
at 1 October 2002. For a discussion of this issue in the United States context, see Foscarinis, above n 16, 15.
[25] Social Security Act 1991 (Cth) ss 624–630BD.
[26] Australian Council of Social Services, above n 24, 22–3.
[27] See, eg, the story of Aron: ibid 20.
[28] See also ibid 21.
[29] Ibid.
[30] Foscarinis, above n 16, 63.
[31] Larissa Behrendt, Aboriginal Dispute Resolution (1995) 108.
[32] Alice Walker, Anything We Love Can Be Saved: A Writer’s Activism (1997) 189.
[33] See, eg, National Coalition for the Homeless, Illegal to Be Homeless: The Criminalization of Homelessness in the United States (2002) 7 <http://www.nationalhomeless.org/crimreport/
CrimMaster.pdf> at 1 October 2002.
[34] Examples of such laws in Victoria include the Summary Offences Act 1966 (Vic); the Vagrancy Act 1966 (Vic) and numerous local laws (such as the City of Melbourne’s Activities Local Law 1999). See also Police Offences Act 1935 (Tas) pt II; Police Act 1892 (WA) pts VI, VII; Summary Offences Act 1953 (SA); Summary Offences Act (NT) pt VIA; Summary Offences Act
1988 (NSW) pt 2; Vagrants, Gaming and Other Offences Act 1931 (Qld); Criminal Code Act 1899 (Qld) pt 2.
[35] See, eg, Justin v City of Los Angeles (Unreported, C D Cal, 5 December 2000, No CV-00-12352 LGB (AIJx)); Pottinger v Miami, 810 F Supp 1551 (SD Fla, 1992); Streetwatch v National R R Passenger Corporation, 875 F Supp 1055 (SDNY, 1995); State of Nevada v Father Richard, 836 P 2d 622 (Nev, 1992); Johnson v City of Dallas, 860 F Supp 344 (ND Tex, 1994).
[36] Homeless Person’s Legal Clinic, ‘Press Release — 14 December 2001’ (Press Release, 14 December 2001) 1.
[37] Jeremy Waldron, ‘Homelessness and Community’ (2000) 50 University of Toronto Law Journal 371, 395–7 (emphasis in original) (citations omitted).
[38] Foscarinis, above n 16, 56.
[39] Caitlin English, ‘Legal Services to Homeless People in the United States’ (Paper presented at the Homelessness and the Law: Papers and Reports from the Council to Homeless Persons Forum, Melbourne, 18 July 2000) 12. See also ibid 58.
[40] Waldron, above n 37, 387.
[41] Ibid 373.
[42] Ibid 406.
[43] Foscarinis, above n 16, 3.
[44] Ibid 8 (citations omitted).
[45] The District Court in Pottinger v Miami, 810 F Supp 1551 (SD Fla, 1992) suggested a three-part test for conducting this inquiry. First, is the offender homeless? Second, does the offender have available suitable non-public places to carry out the activities? Third, are the activities being punished essential or involuntary?
[46] Franz Fanon, The Wretched of the Earth (Constance Farrington trans, 1967 ed) 164 [trans of: Les Damnés de la Terre].
[47] Chamberlain, Counting the Homeless, above n 9, 35.
[48] Australian Institute of Health and Welfare, Supported Accommodation and Assistance Program National Data Collection: Annual Report 1999–2000 (2000) 8.
[49] Rage Against the Machine, ‘New Millennium Homes’ on Rage Against the Machine, The Battle of Los Angeles (1999) [CD] track 10.
[50] Paulo Freire, Pedagogy of the Oppressed (Robert Barr trans, 1994 ed) 25–6 [trans of: Pedagogía da Esperança].
[51] bell hooks, Salvation: Black People and Love (2001) 205.
[52] For a discussion of this issue in the United States context, see Foscarinis, above n 16, 19.
[53] Jonathon Mott, ‘Homelessness and the Law: Confronting the Issues and Providing Assistance’ (Paper presented at the Homelessness and the Law: Papers and Reports from the Council to Homeless Persons Forum, Melbourne, 18 July 2000) 6.
[54] See, eg, Dean and Melrose, above n 12, 87.
[55] Waldron, above n 37, 403.
[56] Ibid.
[57] Bella Stagoll and Philip Lynch, Promoting Equality: Homeless Persons and Discrimination (2002) 4, 10–18.
[58] Ibid 4.
[59] Poverty and the International Covenant on Economic, Social and Cultural Rights, UN ESCOR, 4th Comm, 25th sess, Agenda Item 5, UN Doc E/C.12/2001/10 (2001).
[60] Interview with Netty Horton, Chief Executive Officer, Council to Homeless Persons (Melbourne, 17 July 2002).
[62] See generally Stagoll and Lynch, above n 57, 15.
[63] See generally ibid 4–6, 19–35.
[64] Waldron, above n 37, 403.
[65] National Homelessness Alliance, ‘Begging Debate Must Address Wider Issues of Poverty, Addiction and Access to Services’ (Press Release, 3 November 2000) <http://
www.homeless.org.uk/db/20001010095345> at 26 September 2002.
[66] Chamberlain, above n 9, 2–3.
[67] Quoted in Ian McIntosh and Angus Erskine, ‘“I Feel Rotten. I Do, I Feel Rotten”: Exploring the Begging Encounter’ in Hartley Dean (ed), Begging Questions: Street Level Economic Activity and Social Policy Failure (2000) 183, 192.
[68] Waldron, above n 37, 383.
[69] bell hooks, Sisters of the Yam: Black Women and Self-Recovery (1993) 150 (emphasis in original).
[70] Alice Walker, The Colour Purple (1982) 203.
[71] Alice Walker, Anything We Love Can Be Saved, above n 32, 214 (emphasis in original).
[72] bell hooks, Salvation, above n 51, 16–17.
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