Homelessness and the Law

General Discussions

If you are facing homelessness, you may be able to use the law to improve your situation. However, more commonly, the law may also be used against you.

Laws that impact on people by reason of your homeless condition may be passed by:

Commonwealth Parliament, for example the Supported Accommodation Assistance Act 1994
State and Territory Parliaments, for example, renting, vagrancy and trespass laws
Local Councils, for example, anti-sleeping and anti-camping by-laws.

This network of legislation and delegated legislation operates to affect people experiencing homelessness in a range of areas of life.

Historically, the law has typically added to the disadvantage of people experiencing homelessness. For example, people who are homeless have few public space rights, with laws commonly prohibiting a range of essential human activities if carried out in public. Examples of such laws include vagrancy, loitering, trespass, public drinking, anti-begging, anti-sleeping and anti-camping laws .

There has been a growing discussion on the ways in which the law can be used to support homeless people to gain more legitimacy and control over your life, and to improve your situation.

Examples of laws that may be used by homeless people include:

anti-discrimination laws (Equality Rights)
renting, boarding house, and crisis accommodation regulations (Accommodation Rights)
social security laws (Standard of Living Rights)

There have also been efforts to increase the participation rights of people experiencing homelessness, particularly through reform of voting laws.

The reality is that the law continues to ensure that many people experiencing homelessness face a range of criminal justice issues, many of which may be directly related to your homeless condition.

Australian writing about homelessness and the law has tended to focus on the negative impact that the law has on you when you are homeless. More contemporary discussions explore ways that the law can be used by homeless people for benefit or to highlight how the law needs to be changed in order to adequately protect people’s basis rights. The following sets out articles about the general relationship between homelessness and the law.

ABC The Law Report, ‘Homelessness and the Law’ Radio Broadcast, 8 October 2002

ABC The Law Report, ‘Homelessness and the Law – Part 2’ Radio Broadcast, 5 February 2002

Sam Biondo, ‘Homelessness and the Law’ (2000) 13(6) Parity 5

Cassandra Goldie, 'Rights versus Welfare: Fostering community and legal activism in support of people facing homelessness' (2003) 28(3) Alternative Law Journal 132

Philip Lynch, 'From Cause to Solution: Homelessness and the Law' (2003) 28(3) Alternative Law Journal 127

Philip Lynch, Justice for All: Achieving Access to Justice and Substantive Justice for the Homeless (Paper delivered to the Commonwealth Law Conference, Melbourne, Australia, 13-17 April 2003)

Jelena Popovic, ‘Homelessness and the Law: A View from the Bench’ (Paper delivered at the PILCH and Sir Zelman Cowen Centre for Legal Education, Melbourne, Australia, 15 October 2002)

Ronald Sackville, 'Opinion: Homeless People and the Law' (2000) 13(6) Parity 24

Ronald Sackville, 'Homeless People and the Law' (Commission of Inquiry into Poverty, 1975)

Jane Sanders, 'Youth Homelessness: 10 Years on from the Burdekin Report' (1999) 8 Human Rights Defender 12

Public Space Rights (Vagrancy, loitering, trespass, public drinking, anti-begging, anti-sleeping and anti-camping laws)

Laws that regulate essential human behaviour (such as sleeping) can make you a criminal simply because you live in a public place like a park or on the edges of town.

In 1975, the seminal report by Justice Ronald Sackville (formally Commissioner of Law and Poverty), ‘Homeless People and the Law’ investigated the effects of vagrancy and public drinking laws - both laws that make you a criminal for doing something that would be legal if done in a private house. Justice Sackville concluded that:

There is almost universal acknowledgment that penalties imposed on vagrants and drunks serve neither a deterrent nor a rehabilitative function. In fact, the criminal sanctions tend to perpetuate the very lifestyles there are designed to check.

Ronald Sackville, ‘Homeless People and the Law’ (Commission of Inquiry into Poverty: 1975), 81

In 1976, Elizabeth Eggleston, in her acclaimed text on Aboriginal people and the law, ‘Fear, Favour or Affection’ also highlighted the punitive impact of vagrancy and public drinking laws on Indigenous people:

Police often appear to lay these charges against those they regard as the ‘undeserving poor’; Aborigines who have little money and are not trying to find work…

My main objection to the vagrancy legislation is that in practice it does punish poverty.’

Elizabeth Eggleston, ‘Fear, Favour or Affection’ (Australian University Press, 1976), 241

However, almost 40 years later, laws that criminalise homelessness by regulating essential human behaviour in public spaces remain in place and, in some urban centres, are being increased.

Indigenous People and Public Space

There is extensive social research to indicate the ongoing significance of public spaces and places to Indigenous people.

The Aboriginal and Torres Strait Islander Commissioner of the Australian Human Rights and Equal Opportunity Commission, Dr Jonas, has recently expressed his concern that the trend of increasing regulation of public spaces is ‘a return to the old segregation days’ and that such laws ‘come close to violating the citizenship rights of Aboriginal people.’ The Commissioner has issued media releases about developments in Townsville and Adelaide.

There is a growing collection of web-accessible articles about laws that regulate public places, their impact on people living in those places, and the extent to which people who are ‘homeless’ have any public space rights.

Cassandra Goldie, 'Why government is treating us like animals? Legal and Human Rights Perspectives on Living in Public Space' (2003) 16(9) Parity 16

Cassandra Goldie, 'Living in Public Space: a human rights wasteland?' (2002) 27(6) Alternative Law Journal 277

Mary-Lynn Griffith 'By the By!' (1999) 24(5) Alternative Law Journal 245

Chris Howse, 'A Katherine Christmas Card' (2002) 15(1) Parity 21.

Danae Harvey, 'No Loitering Laws in Port Kembla, New South Wales' (2000) 13(6) Parity 15

Chris Howse, 'Towards a Dealing Just and Kind' (2000) 25(3) Alternative Law Journal 108

Beth Jewell, 'One Year after the Olympic Games' (2001) 26(6) Alternative Law Journal 299

Beth Jewell, 'Sydney 2000 and the Criminalisation of the Homeless' (2000) 13(6) Parity 20

Beth Jewell and Kylie Kilgour 'Sharing the Spirit: The Impact of the Sydney 2000 Olympics on Human Rights in Australia' (1999) 22(3) UNSW Law Journal 813

Philip Lynch, 'Begging for Change: Homelessness and the Law' (2002) 26(3) Melbourne University Law Review 690

Stephanie Smith, 'The Olympics, Homelessness and Local Government' (2000) 13(6) Parity 19

Tamara Walsh, '"Waltzing Matilda" One Hundred Years Later: Interactions Between Homeless Persons and the Criminal Justice System in Queensland' (2003) 25 Sydney Law Review 75

Equality Rights (Anti-Discrimination Laws)

There are laws in all states and territories to prohibit discrimination on some grounds, such as race, gender and disability, in relation to the provision of goods and services, including some forms of accommodation.

Racial Discrimination and Public Housing

Some work has been done to use racial discrimination laws to support Indigenous people to achieve greater justice in the provision of public housing services, for example to seek more culturally appropriate models of accommodation. See:

Equal Opportunity Commission (WA), 'Investigation into the Provision of Public Housing to Aboriginal People in Western Australia: Consultation Paper' (2002)

Cassandra Goldie, ‘Homelessness, ‘Public Housing and Racial Discrimination in the Northern Territory’ (2002)

Tenants Advice Service (WA), 'Journey to Justice: Submission to the Equal Opportunity Commission's Investigation into the Provision of Public Housing to Aboriginal and Torres Strait Islander People in Western Australia' (2003)

Racial Discrimination and Public Space

There have also been some efforts to use racial discrimination laws to advocate against the regulation of public space and the discriminatory impact of such laws on Indigenous people.

Human Rights and Equal Opportunity Commission, Allegations of Discrimination in Townsville Press Release, 1 May 2003

Human Rights and Equal Opportunity Commission, Adelaide City Dry Area Press Release, 30 September 2002

Disability Discrimination and Homelessness

Discrimination laws in Australia currently make it unlawful in most cases for you to be refused accommodation help, or take on a tenancy on the basis that you have a drug addiction. However, the Federal Government is attempting to amend the law to allow discrimination against people who have a drug addiction. For more information on how that amendment may impact on people who are homeless, see Disability Discrimination Act 1992 (Cth) and Drug Use Campaign.

Discrimination on the Grounds of Social Status

If you are homeless, you may experience discrimination because of your social situation (for example, because you do not have a fixed address).

Currently, there are no laws in Australia that make it unlawful to discriminate against you because of your ‘social status’ as a ‘homeless person’.

There has recently been an effort to achieve reform of the discrimination laws in Victoria to include ‘social status’ as a prohibited ground of discrimination.

See Philip Lynch and Bella Stagoll, ‘Promoting Equality: Homelessness and Discrimination' (2002) Deakin Law Review 15.

Accommodation Rights: Renting, Boarding Houses and Crisis Services

People who are homeless may be able to assert legal rights to secure accommodation through the laws that are in place to regulate certain kinds of accommodation.

There are some laws in place that set out some rights and responsibilities when people are renting private accommodation, living in boarding houses or staying in short to medium term accommodation, such as refuges, that are funded under the SAAP program.

Your rights to get accommodation - and to stay in it - vary depending on the kind of accommodation it is, and in some cases, the state or territory where you are living

Standard of Living Rights (Social Security Laws)

For discussions about the need for reform of social security laws, policy and practice to better meet the needs of people who are homeless, see:

Philip Lynch ‘Homelessness and the Right to Social Security’ (2003) 150 Lawyers Weekly 10

Tamara Walsh, ‘Submission to the Department of Family and Community Services regarding welfare reform’ (Faculty of Law, Queensland University of Technology, June 2003)

Tamara Walsh, ‘Breaching the right to social security’ (2003) 12(1) Griffith Law Review 43

Participation Rights: Voting Laws, Administrative Law and Government Decision, Policy and Programs

People who are homeless are entitled to participate in decision-making processes that are going to directly affect you. Law has a role to play in seeking to protect this moral right.

Voting Laws

There have been specific efforts in Australia to reform the voting laws and policies at Federal level, and in Victoria. See:

Homeless Persons' Legal Clinic, 'Giving Voice to the Voiceless: Submission to the Inquiry into the 2001 Federal Election' (Public Interest Law Clearing House, 2002)

Homeless Persons Legal Clinic, ‘Votes for the Homeless: Submission to the Victorian Government regarding Homelessness and the Right to Vote’ (Public Interest Law Clearing House, 2003)

Meg Mundell, ‘Giving Voice to the Voiceless: Young People, Homelessness and Democracy’ (Paper delivered at the Victorian Council of Social Services Conference, Melbourne, Australian, 14 August 2003).

Administrative Law and Government Decisions

There have also been some efforts to use administrative law to argue for people who are homeless to have a greater say in decision-making which may affect you, for example, a decision by the public housing authority to issue an eviction notice.

For an unsuccessful attempt to challenge the issuing of an eviction notice by a public housing authority, see the decision of the Full Court of the Supreme Court of the Northern Territory in Shepherd & Anor v Chief Executive Officer (Housing) [1999] NTSCCA 128.

Policy and Practice: A Rights-Based Approach

A number of writings stress the importance of including people who are homeless in decision-making processes that are going to affect them. More powerfully, there is advocacy for homeless people to be in direct control of their own problem-solving and development of solutions. This importantly applies in the field of the law. See:

Anne Gosley et al, ‘Stop and Listen…Don’t Assume: Why the Homeless People’s Association was Formed’ (Paper delivered to the 2003 National Homelessness Conference, Brisbane, 6-8 April 2003

Kenneth Fernandes, ‘Why Not Involve the Homeless? Housing Rights and Community Building’ (Paper delivered to the 2003 National Homelessness Conference, Brisbane, 6-8 April 2003)

Livia Carusi, ‘Rights Rhetoric to Rights Culture: Transforming the Dream into Reality’ (Paper delivered to the 2003 National Homelessness Conference, Brisbane, 6-8 April 2003)

Criminal Justice Issues

People experiencing homelessness are more likely to come into contact with the criminal justice system particularly for committing ‘public order’ offences such as vandalism, littering and disturbing the peace. See, for example, Patrick Mullins, John Western and Bridget Broadbent, 'The Links between Housing and Nine Key Socio Cultural Factors: A review of the evidence positioning paper' (Australian Housing and Urban Research Institute, 2001) 15.

See also the earlier discussion about public space rights and the extent to which people who are ‘homeless’ are criminalized by laws that proscribe behaviour such as sleeping or drinking in public.

Some authors propose however that people who are homeless are more often the victims of crime as perpetrators of it.

Some recent web-based articles about the interaction between homelessness and the criminal justice system include:

Eileen Baldry & Peter Maplestone, ‘Homelessness & Criminal Justice’ (Paper presented at Homelessness Summit, Parliament of New South Wales, Sydney 15 May 2001)

John Hughes, 'Homelessness & Crime: Community housing issues and the criminal justice system' (Paper presented at the Garma Festival 2001, Yirrkala, Northern Territory, 2001)

Annie Marinakis, 'The Melbourne Magistrates Court of Victoria: The Enforcement Review Project' (2002) 15(7) Parity 11