ACOSS defines poverty as:
a relative concept used to describe the people in a society that cannot afford the essentials that most people take for granted. While many Australians juggle payments of bills, people living in poverty have to make difficult choices – such as skipping a meal to pay for a child’s textbooks.
In Australia, the term ‘poverty’ refers to people living in relative poverty: those whose living standards fall below an overall community standard. People living in poverty not only have low levels of income; they also miss out on opportunities and resources that most take for granted, such as adequate health and dental care, housing, education, employment opportunities, food and recreation.3
Similarly, the Office of the United Nations High Commissioner for Human Rights adopts a ‘capability approach’ to define poverty, essentially considering the wellbeing of an individual and their ability to ‘do or be’ certain things.4 In addition to the concept of an ‘inadequate command over economic resources’, this approach identifies ‘basic capabilities that would be common to all – for example, being adequately nourished, being adequately clothed and sheltered, preventable morbidity, taking part in the life of a community, and being able to appear in public with dignity.’5
Any understanding of poverty should not be restricted to income.6 ‘[P]overty erodes or nullifies economic and social rights such as the right to health, adequate housing, food and safe water, and the right to education. The same is true of civil and political rights such as the right to a fair trial, political participation and security of the person.’7 In other words, being poor affects everything.
This was reiterated by the Law and Justice Foundation of NSW’s Legal Australia-Wide Survey: Legal need in Australia,8 the largest ever study of legal need in the world. It shows that legal problems in Australia are widespread, with many disadvantaged people particularly vulnerable to multiple and substantial legal problems. Access to justice is a cornerstone issue for the entire community.
The most common legal problems reported were consumer (21 per cent of respondents), crime (14 per cent), housing (12 per cent) and government (11 per cent). Their impacts are significant, with financial strain associated with 29 per cent of problems, stress-related illness 20 per cent, physical ill health 19 per cent, relationship breakdown 10 per cent and having to move home 5 per cent. The law causes, and extends, poverty — and poverty causes, and extends, legal problems.
The chairperson of National Legal Aid, Bevan Warner, said the survey demonstrated that ‘legal problems are a hidden epidemic’.9
In this issue of the Alternative Law Journal, we uncover elements of this ‘hidden epidemic’. Adam Fletcher discusses the need for robust systems to monitor human rights breaches in places of detention. Michelle McDonnell critiques the electioneering and politicisation of law and order initiatives by Victoria’s new government. Tahlia Dwyer, Patricia Easteal and Anthony Hopkins examine the failure of new laws in NSW to improve community understanding of intoxication, consent and sexual assault. Articles, by George Raitt and Anne Hewitt, consider how to best equip law graduates in an ever-changing legal landscape. Others discuss a range of difficulties and challenges in our legal system and structures, many of which disproportionately and deleteriously impact on the poor, the marginalised and the disadvantaged.
In another noteworthy report in October, the United Nations’ Special Rapporteur on extreme poverty and human rights, Magdalena Sepúlveda Carmona, highlighted obstacles to justice faced by people living in poverty.10 She noted that people living in poverty encountering the criminal justice system are deprived of the means to challenge the conditions of their arrest, remand, trial, conviction, detention and release. In civil and administrative matters, where legal aid is not available, people living in poverty are often denied access to justice in matters involving property, welfare payments, social housing and evictions, and family matters such as child custody.
Strong action — from government, the legal assistance sector, business and the community — is needed to make access to justice real and meaningful in Australia.
1. Poverty in Australia: ACOSS Paper 194 (Australian Council of Social Service, 2012).
2. See Cassandra Goldie, ‘Living in Public Space: A human rights wasteland?’ (2002) 27(6) Alternative Law Journal 277; Cassandra Goldie, ‘Rights versus Welfare: Fostering community and legal activism in support of people facing homelessness’ (2003) 28(3) Alternative Law Journal 132.
3. ACOSS, Poverty Report (October 2010) 1.
4. OHCHR, Human Rights and Poverty: A conceptual framework, 6.
5. Ibid 7.
6. See James Farrell and Chris Povey, We want change! Calling for the abolition of the criminal offence of begging (PILCH Homeless Persons’ Legal Clinic, November 2010) 2.
7. OHCHR, Human rights dimension of poverty, http://www2.ohchr.org/english/issues/poverty/.
8. Christine Coumarelos et al, Legal Australia-Wide Survey: Legal need in Australia (Law and Justice Foundation of NSW, 2012)
9. Bevan Warner, ‘National launch of Legal Australia-Wide Survey’ (Speech delivered at the launch of the Legal Australia-Wide Survey, Parliament House Canberra, 11 October 2012).
10. Report of the Special Rapporteur on extreme poverty and human rights, UN Doc A/67/278. (31 October 2012).