: Homelessness and the law

Homelessness and the law

Chris Povey

Homelessness and the Law - Tamara WalshTamara Walsh; The Federation Press, 2011; 291pp; $49.95 (paperback)

What is the impact of the law on homelessness? Or more bluntly, why worry about the law at all when people are sleeping in cars or begging on the street? Surely we should be far more concerned about pressing questions such as access to housing and services.

Tamara Walsh answers these questions unequivocally in her book Homelessness and the Law. The law has an integral role to play in the lives of people who are homeless. Walsh addresses the way in which the law can have a disproportionate impact on this group of people who are often extremely disadvantaged. She pays particular attention to failures to sustain tenancies and prevent evictions, punitive social security systems and public space offences which unfairly affect people with nowhere else to go.

On their own, Walsh’s clear analyses of key areas of law, legal processes and homelessness legislation and policy throughout Australia are extremely helpful. But when the components of her research are taken together, this book provides a concise illustration of the failure of government to adopt a range of complementary and integrated reforms required to prevent and address homelessness.

It is worth pausing to consider the scale of the problem. Over 20 000 people in Victoria and over 100 000 people Australia wide are classified as homeless.1 In Victoria, for example, we have some of the most expensive housing in the world and many parts of the state have almost no premises to rent. Further, approximately 38 000 people are on the public housing waiting list2 for a public housing system that the Auditor-General says is on the verge of collapse.3

A common response to homelessness is to invoke the ‘prevention’ mantra. It is generally agreed that we need to prevent homelessness from happening in the first place for the simple reason that it can be difficult to resolve. But how do we prevent homelessness? The Victorian government has said we need to approach this issue ‘together’ and has wisely allocated funds to a range of projects which investigate models of early intervention and prevention.4 A key initiative will be projects that demonstrate integrated service delivery across sectors.

The Victorian government would do well to read Homelessness and the Law. This book does an excellent job of highlighting a range of disparate areas in which government responses either fail to prevent homelessness or arguably work to punish people for their disadvantage.

An obvious example is public space and infringement laws. On this issue, Walsh has amassed a range of resources and evidence to make her argument. Throughout her consideration of begging, move on powers, drugs, police and offensive behaviour, Walsh often quotes people at the receiving end of enforcement. On the issue of public nuisance, one person comments, ‘I feel devalued every day’ and another person reflects that homelessness feels like an infection, ‘that’s what it feels like, “don’t go near him”’ (p 82).

In addition to her ability to coordinate a range of sources, Walsh brings compelling insight to the material under consideration. She notes that many public space offences fail to distinguish between policing of nightclub districts during peak times and policing of public spaces used by people experiencing homelessness with nowhere else to go in off-peak times, noting ‘[t]he tacit assumption seems to be that both groups pose a identical threat to community safety’ (p 73).

This insight also serves Walsh well when digesting jurisprudence. For example, she considers the South Australian case of Begg v Dare5 which establishes a range of arguably arbitrary considerations in deciding whether the offence of begging has been established. In that case, the court held that begging is unlikely to exist in circumstances of emergency or commonly shared experience. Essentially, people are not begging if they ask for help after a car accident or request a cup of flour from their neighbour. This finding means that people who ask strangers for money or assistance and are not in a situation of ‘temporary emergency’ are likely to be found guilty of begging. On this finding, Walsh comments,

[a]pparently finding oneself in a state of destitution and in need of support is something that is not regarded as a genuine emergency or a situation creating a ‘social obligation to be of assistance’ (p 79).

There are a number of observations in Homelessness and the Law which give cause for concern. Walsh notes research which demonstrates the perhaps obvious correlation between housing and mental health and observes that people with impaired capacity are overrepresented amongst homeless populations. She notes the fact that people experiencing homelessness are amongst the most criminalised of all population groups in Australia. Further, in considering the ways in which social security systems cause problems for this group, she notes the likelihood that people experiencing homelessness are particularly vulnerable to child protection interventions.

This damning assessment of the regulatory and policy framework surrounding homelessness highlights numerous opportunities for reform. One such opportunity is to encourage reform through empowering people to rely on their human rights. On this issue, Walsh continues a theme that threads through the book: the limited ability of people who are homeless to challenge their circumstances in court. She notes the lack of case law involving claims by people who are homeless and the limited involvement of higher courts considering issues of poverty, homelessness and social exclusion. Her consideration of the wins achieved in other jurisdictions shows the ability of human rights to improve outcomes and highlights the scope for improvement in Australia.

Another opportunity for reform is the need to strengthen tenant rights. It is perhaps obvious that a connection exists between eviction and homelessness. Numerous people who require emergency housing assistance report that they have been evicted from private rental. Further, a significant percentage of these clients report that they have been housed in public or community housing prior to eviction. In Victoria, people can be evicted for ‘no reason’. Further, in deciding whether to evict, Tribunal members at the Victorian Civil and Administrative Tribunal have extremely limited ability to consider the circumstances of individual tenants in decision-making processes. These issues must all be addressed in order to create an emphasis on sustaining tenancies and preventing homelessness.

Walsh also demonstrates that one of the gaping holes in our legal response to homelessness is discrimination law. In Australia, it is legal to discriminate against someone on the grounds that they are homeless. Further, it is also legal to discriminate against someone on the associated grounds of being in receipt of social security or drug dependent. Walsh cites a range of research and examples to support her contention that homelessness does translate into differential treatment in employment, access to housing, voting, law enforcement and public space offences.

What is the effect of discrimination? To answer this question it is worth repeating remarks quoted in the book by one person on the receiving end of discrimination: ‘You feel hard done by, like you haven’t had a chance to show the other person who you are before you’re already judged. It makes it difficult to have the confidence to go out and do what you need to do’ (p 171). It feels intuitively correct when Walsh asserts that discrimination can work to increase ‘identification with the marginalised condition’ (p 171) and make escaping homelessness seem impossible. It can also strip people of access to services needed to improve their circumstances. Discrimination must be addressed if we are to include disadvantaged people in our society and offer them an escape from homelessness.

The idea that the law applies to all without distinction is a concept that causes problems for the resolution of homelessness. Specific consideration must be given to a range of laws, jurisdictions and legal processes which impact and penalise the individual circumstances of people experiencing extreme hardship if we are to prevent and resolve homelessness. My copy of Homelessness and the Law is already dog-eared and underlined and has been handed around between numerous lawyers and workers. Aside from being an essential resource for people interested in homelessness, it is full of observations and insights about the engagement of disadvantaged groups with the justice system and makes for a highly engaging read.

CHRIS POVEY is Manager/Principal Lawyer at the PILCH Homeless Persons’ Legal Clinic.


1. Chris Chamberlain and David MacKenzie, Australian Bureau of Statistics, Australian Census Analytic Program: Counting the Homeless (2006) (www.abs.gov.au); Chris Chamberlain and David MacKenzie, Australian Institute of Health and Welfare, Counting the Homeless 2006: Victoria (2006).
2. Minister Wendy Lovell, Victoria’s Public Housing Waiting List Falls (Media release, 3 February 2012).
3. See Victorian Auditor-General, Access to Public Housing (March 2012).
4. Department of Human Services, Victorian Homelessness Action Plan 2011–2015 (2011) 2.
5. (1986) 40 SASR 375.

(2012) 37(2) AltLJ 143
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