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No home, no justice? The legal needs of homeless people in NSW  

, 2005 This report into the legal needs of homeless people explores the capacity of homeless people in NSW to obtain legal assistance; to participate effectively in the legal system; and to obtain assistance in legal processes from non-legal advocacy and support agencies. It also examines the role of non-legal support workers and agencies in assisting homeless people to identify and address their legal issues. It is based on a review of existing literature and consultations with legal and non-legal service providers and homeless people themselves.

Executive Summary


Legal needs of homeless people (Chapters 1 and 2)

The Law and Justice Foundation of NSW (the Foundation) has undertaken a study on the legal needs of homeless people in New South Wales (NSW) as part of its Access to Justice and Legal Needs research program.1 This report on the study explores the capacity of homeless people in NSW to:


This study also examines the role of non-legal support workers and agencies in assisting homeless people to identify and address their legal issues.

‘Homelessness’ defined

While there is considerable debate about how ‘homelessness’ should be defined, this study uses a definition articulated by Chamberlain and Mackenzie and used by the Australian Bureau of Statistics (ABS).2 It describes three categories of homelessness:


One group of people not enumerated as ‘homeless’ by the ABS, but who are covered by this report, are those described by Chamberlain and Mackenzie as ‘marginal residents of caravan parks’. These are “people who were renting their caravan, but no one at the dwelling had full-time employment and all persons were at their ‘usual address’”.3 We include marginal residents of caravan parks as part of the homeless population because caravan parks are used as alternatives to boarding houses outside capital cities (see Chapter 1 for more detail). Regional and rural service providers may also send people to caravan parks when there is no emergency accommodation in their area.

Methodology

Because this study is exploratory in nature, qualitative methods of data collection have been employed. Focus groups and semi-structured face-to-face and telephone interviews were used to gather the insights of more than 100 service providers and other stakeholders. Semi-structured face-to-face interviews were also used to gather the insights of 30 homeless people. Information was also drawn from recent and relevant literature, policy documents and statistical data on homelessness and service provision to homeless people (i.e. Supported Accommodation Assistance Program (SAAP4 and Census data)). Case studies were also taken from the literature and provided by service providers and stakeholders. The sources of information presented in this summary may be found in the relevant chapters of the report.

Homelessness on NSW (Chapter 3)

Census data indicate that, in August 2001, there were an estimated 33 557 homeless people in NSW. These people included men, women, teenagers and younger children living temporarily with family and friends, in boarding houses, in caravan parks, in SAAP accommodation and on the street. Approximately half of these people were living in the Greater Sydney area. While the ‘city core’ of Sydney (the ABS statistical subdivision of Inner Sydney5) had one of the highest rates of homelessness in NSW, only 14% of the homeless in NSW were living in this area. A further 13% were living in the ‘inner city ring’ (which includes the ABS statistical subdivisions of Lower Northern Sydney, Eastern Suburbs, Inner Western Sydney and Central Western Sydney). There were also pockets of very high rates of homelessness in coastal NSW, particularly in the north of the State. Census data further indicated:


Consultations undertaken for this study, together with studies into homelessness in Australia, also indicate:
It is difficult to separate legal issues from these complex needs and issues.

Legal issues facing homeless people (Chapter 4)

Homeless people tend to have a range of legal issues that, when unaddressed, can prolong homelessness. The types of legal issues faced vary within the homeless population, as well as for individuals as they move through homelessness. As people become homeless common legal issues are family law and domestic violence, together with general debt- and housing-related legal issues. Housing issues include eviction and debt arising from rent arrears and damage to property. Discrimination in housing and employment were also identified in this study as problems for homeless people, particularly Aboriginal people and transgender people.

Once people have become entrenched in homelessness and are more visible to law enforcement agencies, crime and fines become more prominent issues. People living at primary levels of homelessness are also particularly vulnerable to being victims of crime. Together with people who are transient, this group also has difficulties complying with social security requirements because of chaotic lives and lack of a permanent address.

Laws, policies and legal processes that directly impact on homeless people in NSW include:


Barriers to accessing legal assistance (Chapter 4)

On a day to day basis, homeless people have many immediate needs: finding accommodation, getting food or money, caring for family. These needs tend to take precedence over their legal issues. In addition, legal issues can remain unaddressed because people have limited resources, feelings of despair or hopelessness, mental health or addiction issues, poor literacy or minimal education and a fear of disclosing this, a lack of knowledge of legal options, and a feeling that the law would never work in their interests. Services report that when homeless people finally do contact a legal service (if at all), the issue has usually already reached crisis point: the eviction is imminent; their benefits have been cut off; the court case is tomorrow. In some cases it may be too late to resolve the issue (e.g. the limitation period may have expired) or the issue has become more complex and difficult to address.

The multiple, urgent and interrelated legal problems of homeless people, together with the barriers they face in addressing these issues, have significant implications for the nature and type of legal service delivery that is appropriate for homeless people in NSW.

Legal assistance for homeless people (Chapter 6)

Legal assistance includes the provision of plain language legal information, legal advice, initial legal assistance by a lawyer, and legal representation. The primary legal assistance services for disadvantaged people in NSW, including homeless people, are the Legal Aid Commission of NSW (Legal Aid NSW), community legal centres and Aboriginal and Torres Strait Islander Legal Services. It is argued in this report that, given the diversity within the homeless population, the NSW telephone advice and referral service, LawAccess, also has a significant role to play in providing legal information and advice and connecting homeless people with face-to-face legal assistance services.

In addition to these general legal services are several specialist legal services and clinics for homeless people, all of which are pro-bono or volunteer services. These include the Shopfront Youth Legal Centre, the Legal Counselling Referral Centre, the legal clinics at Exodus and Lou’s Place and the NSW Public Interest Advocacy Centre/Public Interest Law Clearing House Homeless Person’s Legal Service. All of these services are located in metropolitan Sydney, mostly in inner-city areas.

Features of legal assistance services that increase the capacity of the services to support homeless clients include:


Homeless people also benefit when legal assistance is provided as soon as possible after the legal issue has arisen, before it has reached crisis point and affected other areas of their lives.

To varying degrees, the homeless person’s legal services share many of the above characteristics. However, while they offer a very valuable model of legal service delivery, they should not be considered as the main source of legal assistance to homeless people living throughout NSW. First, each of these services support a fairly defined client group (e.g. users of a particular service, young people). Second, pro bono services such as these can only operate where there is the private sector capacity in the geographical areas where there is need. Thus, these services tend not to reach homeless people living in rural and regional areas. Third, nearly all are pro bono part-time or sessional services.6 Finally, the level of assistance that can be offered by any one service tends to be limited by its resources or the type of law that it has expertise in (e.g. civil law).

A structural feature of legal service delivery in NSW that presents difficulties for homeless and other disadvantaged people is that different legal issues tend to be separately dealt with by different legal services or practitioners. For instance, a duty lawyer may assist in a criminal matter, a grant of legal aid may be provided for a family law issue, a community legal centre may assist with a debt matter and the Chamber Magistrate, the police or the Women’s Domestic Violence Court Assistance Scheme may assist with an apprehended violence order. This separation of legal service delivery is in contrast to the multiple and interrelated nature of the legal and other issues faced by homeless clients. Not only must a homeless person potentially access a number of different legal assistance services, but the legal services provided are not likely to be coordinated to address the complex situations they are facing. Thus, a system that offers discrete legal services for different issues, and lacks coordination between these services, presents a number of barriers for homeless people trying to effectively address their legal needs.

In addition, legal services traditionally work outside the networks of other human services such as community services, housing and welfare agencies. As stated above, the legal and social issues of homeless people are usually intertwined. The separation of legal services from other human services, and the partitioning of legal matters within the legal aid sector, makes it difficult to take a holistic ‘case management’ approach to clients. A ‘case management’ approach involves addressing a client’s many complex needs as a package. To facilitate this, closer links need to be made within and between different legal services providers and with other human services in local areas throughout NSW.

Non-legal assistance in legal processes (Chapter 7)

A few of the homeless participants in this study said that if they had a legal problem, they would go directly to Legal Aid or to another legal service with which they were familiar. However, many homeless people have indicated in this and other studies that they turn to non-legal services or workers as a first point of contact when they have a legal problem.

Homeless person’s services, particularly SAAP services, are a key link between people experiencing homelessness and legal assistance. As well as providing food, shelter and medical attention, some of these agencies provide advocacy, legal information, advice and referral services. The data collected for this report suggests that caseworkers and social service providers play a vital role in assisting homeless clients to identify their legal issues, obtain legal assistance, engage in legal processes and manage their legal outcomes.

However, some homeless people are isolated from these services. In recognition of this, this report covers:


To adequately support homeless clients with legal problems, non-legal service providers and caseworkers need access to timely legal information, legal advice and relevant legal ‘education’. The aim is not to equip caseworkers to ‘advise’ clients, but to support clients into and through legal processes. Workers also stressed the significant benefits of interagency collaboration for legal service providers, non-legal service providers and, most importantly, their homeless clients. While there are significant resource implications, this is consistent with directions highlighted in current policy and research.

Participation in the legal system (Chapter 8)

Homeless people face many barriers that prevent them from initiating and participating effectively in the legal process. Stakeholders and interviewees reported that even when homeless people are compelled to participate in a legal process (such as in a criminal matter), there are obstacles preventing them from making it to court and achieving the best possible outcome. These barriers and the reasons that homeless people find them an obstacle include:


Non-legal workers and advocates, together with the legal assistance services detailed above, all assist homeless people to overcome these barriers. In addition, some legal processes, such as those of the Social Security Appeals Tribunal, the Housing Appeals Committee and the NSW Ombudsman, provide more flexible methods of service delivery, which may increase the accessibility of their processes to homeless people.

In many instances, by the time a homeless person gets to court or a tribunal, they have reached a point of crisis. Strategies based upon notions of therapeutic jurisprudence appear to recognise this, and try to use the law and legal process as a point of intervention to address the social and legal issues which exacerbate homelessness. The Red Hook Community Justice Center (New York), the California Homeless Courts, the NSW Drug Courts and the Magistrates Early Referral into Treatment program are all examples of the therapeutic jurisprudence approach. Another example, which has a more direct focus on homeless people in Australia, is the Special Circumstances List at the Magistrates Court of Victoria. This program links people appearing before the court back to social services, in order to address their legal and social needs at the one time. This is factored into the court outcome for the defendant.

Conclusion (Chapter 9)

Homelessness is often indicative of complex legal and other needs. Things have gone astray, safety nets have failed. People have lost their accommodation or are caught in marginal accommodation; they commonly have debts, are dealing with family law issues, been victims of crime, accumulated fines and/or are facing criminal charges. The legal system does not always work in their favour.

When homeless, people are commonly too preoccupied coping with immediate issues, such as getting accommodation, to deal with their complex legal problems. Mental health and other disabilities, cynicism about the law, poor literacy and limited resources also contribute to a situation where legal issues are left to compound, spiralling people into or further entrenching them in homelessness. Ideally, legal service provision to homeless people needs to recognise this situation and be accessible to people from the diverse places that they frequent, have the time and skills to assess the total legal needs of the clients, and form part of a coordinated response to those needs.

As legal service delivery is currently structured in NSW, a challenge is to move from single problem focused approaches to more client focused approaches. A second issue is for legal services to be included and coordinated with other human services, such as housing, health and community services, in both the planning and delivery of services to address homelessness in NSW.



Ch 1. Introduction


This study on the legal needs of homeless people in New South Wales (NSW) has been undertaken by the Law and Justice Foundation of NSW (the Foundation) as part of its Access to Justice and Legal Needs research program.1


Aim of this project


This project aims to explore the capacity of homeless people in NSW to:
It also examines the role of non-legal support workers and agencies in assisting homeless people to identify and address their legal issues. A separate study will examine the capacity of homeless and other disadvantaged groups to participate in law reform processes. Before considering these issues in more detail, it is important to discuss how ‘homelessness’ has been defined in this study.


What is 'homelessness'?



Definitions of ‘homelessness’ are the subject of ongoing debate. While some focus on the standard or nature of a person’s accommodation,3 others focus on issues of safety and security. Different definitions reflect cultural perspectives and experiences of homelessness (e.g. notions of spiritual homelessness experienced by Indigenous Australians). Noting the subjectivity of people’s different experiences, Memmott et al refers to homelessness as:
Other definitions take into account broader risks than merely being unhoused. For example, the Victorian Council to Homeless Persons describes a homeless person as one whom:
The definition provided in the Supported Accommodation Assistance Act 1994 (Cth) states: “… a person is homeless if, and only if, he or she has inadequate access to safe and secure housing”.6 ‘Inadequate access to safe and secure housing’ includes situations that might damage health, threaten safety, marginalise the person from amenities and the economic and social support the home normally offers, or adversely affect the adequacy, safety, security and affordability of housing. People living in accommodation provided under the Supported Accommodation Assistance Program (SAAP) are also considered ‘homeless’ by this definition.7

Before establishing the working definition to be used in this study, we will briefly elaborate on the aspects of homelessness that go beyond the question of merely being housed or not.

Homelessness within the home

Some definitions of homelessness (including that used in SAAP) focus not on the style or standard of accommodation but on the person’s level of safety, security and privacy.8 It may be argued, for example, that significant violence at home can render people ‘homeless within their home’.9 The ‘housed homeless’ include young people who are victims of abuse or neglect, and partners who are victims of domestic violence.10 It is difficult to assess the number of people living in such situations in NSW. As Chung et al reported:


However, a report on the costs of domestic violence in Australia, drawing on data from the Australian Bureau of Statistics (ABS) Woman’s Safety Survey, estimate that a total of 327 500 women in Australia experienced some form of domestic violence in 2002–03. This represented 4.6% of women aged 18 or over.12

While clearly very disadvantaged, the ‘housed homeless’ will not be included within the working definition of homelessness for this project, provided later in this chapter. However, as a group at risk of homelessness, issues relevant to this group are discussed in this report.

Indigenous homelessness

In a study commissioned by the Commonwealth on homelessness in Aboriginal and Torres Strait Islander (ATSI) communities, Keys Young noted “that certain aspects of homelessness may be qualitatively different for ATSI people compared to other Australians who are homeless”.13 Drawing on Keys Young, Memmott et al identify the following five ‘working categories’ of homelessness experienced by Indigenous people.


Towards a working definition

As described above, homelessness is not just the lack of bricks and mortar. Some people may feel ‘housed’ living in public space while others are homeless within their homes. For others, homelessness is characterised by constant movement in and out of different housing. Coleman perhaps provides the most inclusive view of homelessness, describing it as “having no legitimacy or control over the spaces in which one lives”.25

This report recognises the value of this encompassing definition and the hardship experienced by those who fall within it. However, the definition of homelessness used in this project is one articulated by Chamberlain and McKenzie and used by the ABS.26 Recognising that ‘homelessness’ is a socially constructed concept that only makes sense in a given place and time, Chamberlain and McKenzie form a definition that takes account of the ‘minimum community standard’ of expected accommodation.27 With this ‘standard’ in mind they identify three categories of homelessness:


A fourth group of people not counted as ‘homeless’ by the ABS, but who are included in this report, are ‘marginal residents of caravan parks’. These are “people who were renting their caravan, but no one at the dwelling had full-time employment and all persons were at their ‘usual address’”.29 Like boarding house residents, marginal residents of caravan parks (including families) rent a single space for eating, sleeping and cooking, and share communal bathroom facilities. Indeed, Chamberlain and Mackenzie observe, on the basis of data that they collated, that caravan parks are used as alternatives to boarding houses outside the capital cities.30 Like boarding houses, caravan parks may be used as emergency accommodation for some people as well as longer term housing for people unable to enter, or excluded from, public housing or the private rental market. For this reason, Chamberlain and Mackenzie suggest that “for some policy purposes, marginal residents of caravan [parks] might be thought of as a part of the tertiary population”.31 Note that this definition generally excludes older retirees or ‘sea changers’ who have chosen to live in residential parks.

While the neat categorisation of people into these groupings enables us to provide some picture of the extent of homelessness in NSW, it masks the mobility of homeless people between these groups (e.g. from primary to secondary homelessness). For many, homelessness is characterised by constant movement between different types of accommodation: the street, homeless shelters, boarding houses. Alternatively, it may be from home to a refuge, a family member, or a caravan park.

However, the Chamberlain and MacKenzie definition has been selected for two reasons. First, there are comprehensive ABS statistics available on the basis of this definition. This enables us to report estimates of the extent of homelessness in NSW and provides some boundaries to the scope of this project. Second, this definition is utilised among service providers and those writing about homelessness in this State.



Homelessness and the law


There are valuable data available about the extent and nature of homelessness in NSW.32 These are discussed in detail in Chapter 3. In addition, there has been a small but growing body of work in Australia examining the legal needs and rights of homeless people (particularly street-based homeless people). However, there is less information available about the access to justice issues faced by people living at primary, secondary and tertiary levels of homelessness in NSW, and about legal service provision to this diverse group. To understand the historical context of the current perspectives, it is useful to undertake a brief summary of the developments in legal approaches to homelessness in key reports, the broader literature and in consequent strategies to meet the (legal) needs of homeless people.

The Sackville report

Professor (now Justice) Robert Sackville’s seminal 1976 report to the Commission of Inquiry into Poverty, Homeless People and the Law, marked a significant progression in the level of understanding of the impact of the law on the lives of homeless people in Australia.33

Sackville documented the social isolation, low levels of income and low levels of education among homeless people. He also extended the common understanding of homelessness beyond street homelessness to that highly mobile part of the population who were engaged in seasonal, casual and itinerant work. He further substantiated indications from research at the time: namely, most homeless people were men, aged 35 to 50, alcoholic and had poor physical health.34

Sackville focused on the laws of vagrancy and public drunkenness, highlighting the deficiencies of the criminal law as a tool for addressing homelessness. He criticised the prevailing view of homeless people as representing a physical danger to the community,35 and argued that the laws of vagrancy and public drunkenness—as well as the laws authorising compulsory commitment into institutions that administered long-term ‘treatment’ for ‘alcoholics’—marginalised, stigmatised, and discriminated against those from lower socio-economic backgrounds.36 He asserted that, far from serving any rehabilitating or deterring function, these laws actually entrenched the behaviours they were attempting to address.37

Sackville argued in his report that the laws pertaining to homelessness should be replaced with a consent-based welfare approach, in the form of short-term accommodation where care and legal assistance could be provided.38 As a more pragmatic alternative, he advocated for significant reforms to long-term treatment institutions to make their committal proceedings more open, impartial and evidence-based; to restrict compulsory commitment to people in danger of causing serious harm; and to make ‘treatment’ approaches more innovative, independent and flexible.39

A changing homeless population

In 1985, SAAP was introduced as an attempt to streamline governments’ responses to what Sackville and others had found: specifically, that the number of homeless people in Australia was growing, and the homeless population was becoming increasingly diverse. In particular, there were a growing number of women and children escaping domestic violence, as well as young people becoming homeless.40 SAAP is a joint program of the Commonwealth and the States that funds non-government organisations to provide ‘a safety net’ of services to people who are homeless or at risk of homelessness. SAAP services include homeless person’s hostels, women’s refuges and youth crisis accommodation.41

It was within this context that in 1989, HREOC commissioned the Our Homeless Children: Report of the National Inquiry into Homeless Children. Called the ‘Burdekin report’ after the inquiry’s chair Brian Burdekin, it highlighted the need for a preventative approach to homelessness, and outlined a comprehensive early intervention agenda aimed at supporting young people who are at risk of homelessness.42 This approach was later reflected by the 1994 reforms of SAAP. Section 4 of the Supported Accommodation Assistance Act (Cth) 1994 widened the definition of ‘homeless’ to include circumstances where a person has housing, but it is not adequate, safe, secure, or affordable.43

Chamberlain and MacKenzie, whose definition of homelessness is used in this report, have also made significant contributions to our understanding of pathways into homelessness. In contrast to the common belief at the time of the Sackville report that homelessness was a permanent state with distinct causes, Chamberlain and Mackenzie conceptualise homelessness as a process of people entering and exiting the homeless population.44

Developing a ‘rights-based’ approach

Recent developments in approaches to homelessness and the law have led to the development of a ‘rights-based’ approach to homelessness. This approach to homelessness and the law is used in three different contexts:


International human rights and homelessness

Apart from illustrating a more sophisticated understanding of homelessness, the Burdekin report also adopted a human rights framework. It linked the experiences of young homeless people with ‘rights’ under international human rights law, and stressed the need for the federal government to recognise and uphold these rights. This approach considers clients’ problems in relation to rights under international human rights law, and this has formed the basis of rights-based lobbying and advocacy for homeless people.45

While legal rights are enforceable under Australian law, ‘human rights’ as outlined in international law are not enforceable unless they are implemented into domestic law.46 Otto connects the present shortcomings of Australian substantive law in protecting the ‘human rights’ of homeless people to the fact that international human rights law has not yet been domestically implemented in this country.47 She asserts that this stems from Australian governments’ traditional preference for more indirect methods of safeguarding individual rights, such as through the institution of responsible government, the establishment of HREOC, and the national SAAP. She highlights that despite these indirect means, the full range of rights that are covered by the International Covenant on Economic, Social and Cultural Rights (including housing-related rights) have not yet been implemented.48 Hence, a rights-based approach to homelessness calls for the recognition of international human rights, such as those under the covenant.

Implementation of a rights-based approach in legal service provision

In recent years, a number of legal services for homeless people have been established in Victoria, Queensland and NSW. These services have adopted a “rights-based approach’ both in terms of advocacy (for recognition of international human ‘rights’) and to service delivery. Goldie defines a rights-based approach to legal service provision for homeless people as a process that “involves homeless people being at the centre of the processes that develop solutions and in control of decision making that affects them”.49 Thus, recognising that homelessness is linked to legal need, the aim of these clinics is to advocate for and assist homeless people in upholding their legal rights. For example, the earliest of these services, Victoria’s Homeless Persons’ Legal Clinic (HPLC), was established in Melbourne in October 2001 to provide free legal assistance to, and advocacy on behalf of, people who are homeless or at risk of homelessness. It is a joint project of the Public Interest Law Clearing House (PILCH) in Victoria and the Victorian Council to Homeless Persons, and is known as ‘VPILCH HPLC’. The clinic provides civil, administrative and some summary criminal legal services at crisis accommodation centres and welfare agencies in Melbourne so as to encourage direct engagement with clients. It also attempts to influence law reform processes, so as to reduce the degree and extent to which homeless people are disadvantaged and marginalised by the law. Legal services are provided by volunteer lawyers from PILCH law firms and legal departments. At the time of writing, the VPILCH HPLC was funded by the Victorian Department of Justice through the Victoria Legal Aid Community Legal Sector Program Fund.50 Similar clinics have subsequently been initiated in other States. Queensland PILCH’s (QPILCH) HPLC commenced operation in Brisbane in December 2002. In May 2004, the NSW Homeless Person’s Legal Service (HPLS) was established in Sydney by PILCH and the Public Interest Advocacy Centre (PIAC) (see Chapter 6).

This approach is similar to the model for community legal centres (CLCs) outlined by the National Association of Community Legal Centres , which facilitates participation by community members in the management of legal services, making the lawyer–client exchange an empowering one for the client, and capacity building and skills transfer.51

Involving homeless people in law reform

As indicated above, Goldie and others52 assert that a ‘rights-based’ approach to addressing homelessness must involve the participation of homeless people. This involves homelessness agencies providing support for homeless people to take control of developing (legal and non-legal) solutions to their problems.53

In relation to legal reforms, both Goldie and Lynch advocate for the participation of homeless people in these law-based processes.54 Lynch stresses that homeless people must be “empowered and enabled to … have a say in the formulation of laws that affect them”. Accordingly, he argues for the establishment of community councils, through which law-makers, service providers, homeless people and business groups can work towards political consensus through dialogue.55

Access to justice and legal needs of homeless people

A key aim of this study is to examine factors that may affect the capacity of homeless people to access legal services and participate in legal processes. There has been some literature that focuses specifically on these issues, much of which has arisen from the legal activism discussed above. Much of the literature in this area has been written by the convenor of the VPILCH HPLS, Phil Lynch.

Barriers to justice

Barriers identified as preventing homeless people from addressing their legal needs are commonly divided into two categories. Procedural barriers refer to obstacles (such as the geographical location of legal services) that restrict people’s ability to access the support of the law. Substantive barriers, on the other hand, refer to specific laws and law enforcement practices that impact in a discriminatory way on homeless people.56

Procedural barriers

Lynch and Klease have documented some of the procedural barriers homeless people face in accessing justice. These include:


Procedural barriers raised by other commentators include:
Substantive barriers

Substantive barriers are laws and law enforcement practices that are formulated and applied seemingly without regard to the impact on homeless people or homelessness.61 By way of example, Lynch62 and Mundell63 highlight Commonwealth electoral laws that impinge upon the right of homeless people to vote, by requiring people to have been resident in an electoral subdivision for a month before they can register to vote. Alternatively they have to register as an ‘itinerant voter’. However, the process for registering as such has been described as “administratively burdensome” for homeless people.64 The impact of social security policy and practice on homeless people has also been considered in this regard.65 Immigration laws that restrict rights to services and social security may also leave some new arrivals vulnerable to homelessness.66

Lynch also argues that laws are formulated that effectively criminalise homelessness, by “render[ing] unlawful behaviours that would be lawful if conducted in a private dwelling”.67 In NSW examples include laws that prohibit drinking in alcohol-free zones and that enable police to ‘move on’ people whose presence or behaviour “is causing or likely to cause fear to another person or persons … of reasonable firmness”.68 Other authors emphasise discriminatory laws that particularly affect those experiencing secondary or tertiary homelessness. For example, in NSW the protection afforded by residential tenancy legislation does not extend to residents of boarding houses.69

Continuing the focus on the discrimination suffered by homeless people, Lynch draws attention to the role of arbitrary, selective or targeted law enforcement practices, and makes a number of recommendations to address these.70 He also stresses the existence of widespread discrimination against homeless people by individuals and organisations that are acting “with relative impunity”.71 This includes discrimination by landlords and hostel, caravan park and boarding house operators. Slatter supports Lynch’s contention, reporting the existence of discrimination by property managers against tenants who present with security bonds provided by a State housing authority.72

Thus, commentators suggest that homeless people are affected by discriminatory laws, discriminatory law enforcement practices and discriminatory behaviour by private organisations and individuals. Many of these substantive barriers, as they apply in NSW, were raised in consultations for the current study and are discussed further in this report.

To address these issues, Lynch recommends programs aimed at educating and empowering homeless people to address their legal rights through access to legal representation, the courts and targeted regulatory and dispute resolution bodies.73 He also calls for substantive reform to the current anti-discrimination legislation regime.74 Lynch elaborates on this in an article with Stagoll, where they argue for amendments to State and Commonwealth anti-discrimination legislation so that it prohibits discrimination on the ground of ‘social status’, which should be taken to mean status as a homeless person, an unemployed person, or a social security recipient.75 They contend that such reform is consistent with international human rights law,76 and reflects similar protections in other jurisdictions such as New Zealand and Canada.77

Other literature on access to justice issues for homeless people

As described, there is a small but growing body of writing on the legal needs and rights of homeless people, particularly those at primary levels of homelessness, and the procedural and substantive barriers they face to address these problems. However, there is also a lot of additional material from a broader range of disciplines, which touch upon the legal and access to justice issues facing the diverse group of people who constitute the homeless population in NSW. For instance, much can be drawn from the literature concerning women in domestic violence situations, whom, as demonstrated in Chapter 3, are vulnerable to forming part of the homeless population. Rather than summarising this literature here, relevant studies and project reports have been cited where relevant throughout the report. In this way, our study will build on a solid foundation of existing literature to explore the legal needs of people experiencing primary, secondary and tertiary homelessness, including marginal residents of caravan parks in NSW. The report will also identify existing and potential pathways to homeless people gaining legal support, and the significant role of non-legal services in facilitating the access of homeless people to legal remedies. In doing so, we also discuss the barriers homeless people face in seeking and securing legal assistance and in negotiating the legal system.



Structure of this report


This chapter has presented the context and rationale for the current study. It has outlined the evolving body of knowledge about the nature of homelessness in Australia and the legal and access to justice issues facing people when homeless. Building on this, the current study presents a picture of the particular legal needs of homeless people in NSW, the relevant legal and non-legal services available in this State, and the barriers faced by homeless people in recognising and pursuing their rights.

Chapter 2 of this report outlines the methodology used in this study.

Chapter 3 discusses the numbers of people experiencing homelessness in NSW, together with their geographic distribution, circumstances and characteristics.

Chapter 4 discusses the legal issues facing people as they enter and become entrenched in homelessness.

Chapter 5 explores the barriers faced by homeless people in identifying and seeking support for their legal issues.

Chapter 6 discusses the different types of legal assistance available to homeless people in NSW, the challenges services face in helping homeless clients, and the features of legal assistance services that increase their accessibilty and utility to homeless people.

Chapter 7 examines the role played by non-legal service providers in linking homeless people with legal assistance services and in assisting them to engage in legal processes.

Chapter 8 examines the barriers faced by homeless people to accessing and participating in legal processes relevant to their needs.

Chapter 9 draws together themes from the each of the chapters to present a summary of the legal needs and access justice issues facing homeless people in NSW.



Ch 2. Methodology


As discussed in Chapter 1, the purpose of this study is to explore the legal needs and access to justice issues facing people who are homeless in NSW. In order to do this, we have sought the views of homeless people, their advocates and legal and non-legal service providers to homeless people. Information was also drawn from recent and relevant literature and policy documents, legislation and statistical data collected on homelessness and service provision to homeless people.

Because the aims of this study are exploratory in nature, qualitative methods of data collection were employed. Focus groups and semi-structured interviews were used to gather the insights of service providers and other stakeholders. Semi-structured interviews were used to gather the insights of homeless people themselves. Case studies provided by service providers, stakeholders and drawn from the literature were also used.



Data collection


The literature

Information has been drawn from a range of disciplines and fields of study that have considered the issue of homelessness. These include law, social justice, sociology, criminology, and social work, housing and family studies. While some of the literature used in this report has addressed ‘homelessness’ specifically, other material has focused on the accessibility of the legal system more broadly, and been applied to the homeless context.

To ensure relevance, in general only Australian literature from the late 1990s onwards has been used. The exceptions to this are seminal pieces of work that demonstrate shifts in thinking on homelessness in Australia since the 1970s (see Chapter 1) and material describing overseas models of legal service delivery to homeless people, pertinent to the Australian environment.

Use of existing quantitative data

In this project we have drawn heavily on two comprehensive ongoing data collections concerning homeless people in Australia: census-based data on homelessness and SAAP data. In addition, we have drawn on data provided by service providers consulted for this study and the findings of relevant research studies identified in the literature review. These sources will be briefly described below.

Census data

In a series of reports based on the 2001 Census and other data, Chamberlain and Mackenzie have provided a comprehensive overview of the nature and extent of homelessness in Australia.1 Their most recent report, on the estimated numbers of homeless people in NSW, is entitled Counting the Homeless 2001, NSW. It should be noted that estimates rather than actual numbers are used because of difficulties in identifying, defining and counting this highly mobile population.2

SAAP data

Comprehensive data are also collected by SAAP services.3 The Australian Institute of Health and Welfare (AIHW) collates the data collected by SAAP services regarding the characteristics and circumstances of their clients, and the services provided to those clients. Data are reported annually within 12 months of the reference period. The Homeless People in SAAP, National Data Collection annual report series provides national data and statistics for each State and Territory.4

Law and Justice Foundation of NSW data

This report also refers to preliminary analyses of data from the Legal Needs Survey,5 conducted by the Law and Justice Foundation of NSW in late 2003. This was a quantitative telephone survey of more than 2400 people living in six localities in NSW identified as socially and economically disadvantaged. One hundred and twenty respondents to this survey indicated they had been homeless in the last 12 months. This small but important sample reported the numbers and types of legal issues they had faced in the previous 12 months. A separate report based on the Legal Needs Survey will be available from the Law and Justice Foundation of NSW in 2005.

Other data

Several legal services consulted in this study provided statistics reflecting the demographic characteristics of their client group and/or the types of legal matters the service dealt with in a given period. No information that could identify individual clients was provided. These services include the Legal Counselling and Referral Centre (LCRC), Women’s Legal Services (WLS), Shopfront Youth Legal Centre (Shopfront) and the Blake Dawson Waldron (BDW) legal clinics at Lou’s Place and Exodus. These data have been incorporated, where appropriate, in the report.

Consultations with service providers, advocates and other stakeholders

Agencies, organisations and individuals who provide services to and/or advocate for homeless people were consulted for this study. These agencies included:


These organisations are listed in Appendix 2.

Focus groups

Consultations for this project commenced in August 2003, with two ‘roundtable’ focus groups held at the Law and Justice Foundation’s premises with legal service providers and non-legal service providers. Each focus group consisted of approximately 12 participants and lasted for approximately four hours. The questions used to prompt discussion are listed in Appendix 3.

Further focus groups were conducted at the annual forum of the Newcastle Hunter Homeless Interagency Network (NHHIN) held in February 2004. The topic of the forum was ‘the legal needs of homeless people’. Approximately 40 agencies (as well as different offices of the same agency) were represented at the forum. They included State and local government organisations and non-government agencies supporting homeless people in the Hunter region (see Appendix 4). Following presentations, the project team conducted four focus groups with the NHHIN members. Each group consisted of approximately 12 people, and sessions ran for 75 minutes. Each group addressed a different set of questions covering the four following areas:


Stakeholder consultations

Sixty semi-structured interviews with stakeholders were conducted, most between September 2003 and March 2004. Twenty-two of those interviewed were from legal services, 19 were non-legal services, 14 were from government departments and five were from the courts. Interviews were conducted both with individual workers and in groups. The majority of interviews were conducted face-to-face and at the person’s workplace. A small number were conducted by telephone. Interviews lasted between 30 and 90 minutes.

The rationale for conducting semi-structured interviews with open-ended questions was to facilitate in-depth discussion with stakeholders. This approach allowed researchers to cover a set of pre-determined issues, while still being able to tailor questions to the particular expertise of the stakeholder, and to explore particular issues raised by the interviewees in greater detail. The broad areas covered in the interviews were:


Non-legal service providers were also asked about:
Consultations with homeless people

Thirty semi-structured interviews were conducted with people who were currently homeless, had recently been homeless or were facing imminent homelessness. Interviewees (also described as ‘participants’ in this report) were contacted through a range of organisations providing services to homeless people or people facing homelessness in Sydney, Newcastle and Walgett (see Appendix 2).

Individual interviews were conducted by five Law and Justice Foundation researchers at, or near, the contact organisation or at the participant’s accommodation, between October 2003 and April 2004. To ensure the sensitive and appropriate conduct of the interviews, all of the interviewers received additional training from St Vincent de Paul Learning Services in interviewing people with complex needs.

In terms of procedure, arrangements were made for the researchers to meet with participants through the agencies. In some cases Law and Justice Foundation interviewers spoke to clients who were at the agency at the time the researchers were present, and who agreed to an interview. In other cases, appointments were made ahead of time, to meet with interested participants.

All interviews were undertaken with the informed consent of the participant. Prior to gaining consent, participants were told that their participation was anonymous and voluntary, that they could choose not to answer any questions, and they could stop the interview at any time. The interviews were recorded with the permission of the participants, with the understanding that the tape and transcribed material would be kept securely, and the tape erased once transcribed. All participants were reimbursed $20 for their time.

Of the 30 people who were interviewed, 16 were men, and 14 were women (including three transgender). Four participants were Indigenous and five were living in rural or regional NSW at the time of the interview. Four young people under the age of 25 were interviewed. Efforts were made to recruit more young people, but two and three potential interviewees did not turn up at each of the two of the contact agencies (supporting young people) as arranged.

In terms of accommodation, 14 participants were currently living on the street and/or in crisis accommodation. Four participants were living in boarding house accommodation, two were staying with family or friends, one did not want to disclose where he was living and another was ‘moving around’. One participant was about to be evicted from a Department of Housing (DOH) property. Six participants had been homeless, but were now living, alone or with friends, in private rental or DOH accommodation.

The interview schedule was semi-structured, using open-ended questions (see Appendix 5). This allowed researchers to explore issues raised by participants in greater detail.

The interview schedule was informed by initial roundtable consultation with stakeholders in August 2003. Briefly, participants were first asked if they had a recent legal problem or issue in their life. They were then asked a range of questions covering different areas of the law that had been identified by stakeholders as being particularly relevant to homeless people in NSW. These included housing, income and employment, debt, fines, family issues, crime and victim of crime issues, relationships with police and health issues.

If the interviewee indicated that they had a ‘legal issue’ (either identified as such by themselves or according to the list provided by the interviewer), participants were then asked what they had done about it, who they had sought help from if they hadn’t done anything about it, why this was the case, and what happened in the end. This order of questions was adopted so a distinction could be drawn between matters identified by interviewees as ‘legal’ issues and issues that have a legal solution but were not identified as such by the participant.

Limitations of the methodology

A range of homeless people (in terms of age, gender, Indigenousness, accommodation and location) were consulted in this study. However, this group of participants cannot be considered as representative of the homeless population as a whole. Furthermore, due to the relatively small number of homeless people who were interviewed for this study, the types of legal issues and experiences should not be treated as definitive of the entire NSW homeless population. Rather, the insights and views of these participants, and the other stakeholders consulted, were used to gain a deeper understanding of the legal issues homeless people face and the challenges they encounter in engaging with legal processes.

A second issue to bear in mind when reading this report is that qualitative research relies heavily on the reported (subjective) experiences of those interviewed. The experiences or perception of legal services and processes reported by interviewees (homeless participants and other stakeholders) may differ from the law or processes as described in documents or policies. For instance, interviewees may not fully understand or be aware of laws, legal and bureaucratic processes or legal services. Generally, the research team has reported people’s views in the belief that they reflect the reality for those participants. However, where possible we have sought to verify some of the statements made by interviewees (e.g. by examining possible fines for particular offences, when somebody speaks of a penalty received for that offence).

It is also important to bear in mind that the law and legal processes may be applied differently, depending upon the circumstances surrounding an event and the characteristics of the person, office or officer responsible for enforcing that law. This may account for differences between what the reader knows about the law or a legal process and how interviewees have experienced its impact.



Data analysis


The transcribed interviews with homeless participants and stakeholders, focus groups, literature and administrative documentation were analysed using QSR NUD*IST Vivo (NVivo). NVivo is a qualitative analysis software program that facilitates the organisation and coding of textual data for thematic analysis. Information is categorised under particular ‘nodes’ (or themes) that can be developed prior to coding or as the analysis progresses. In this case, most nodes were developed before data was entered into the NVivo database. Nodes were grouped by research question and based on themes identified in earlier research, particularly as part of the A2J research program (e.g. areas of law/legal issue, types of barriers to accessing legal assistance). New nodes were added where required.


Ch 3. Homelessness in NSW



Homeless people in NSW are not a single homogenous group. They include men, women, young people and children, living in a variety of circumstances in locations across NSW. Individual characteristics, circumstances and location can all impact on the range of legal issues homeless people face, the barriers to addressing these legal issues and the pathways for providing legal information and assistance to this diverse group of disadvantaged people. Therefore, an overview of the main characteristics of the NSW homeless population is appropriate. This chapter discusses:
Data sources used in this chapter were detailed in Chapter 2.


Numbers of homeless people in NSW


On Census night 2001, there were an estimated 26 676 homeless people in NSW. This equates to 42.2 homeless people per 10 000 in the NSW population.2 NSW has the highest number of homeless people, but one of the lowest rates of homelessness in the nine States and Territories in Australia.3

Table 3.1: Number of persons in different sectors of the homeless population, Australia and NSW, Census night 2001

Australia
NSW
N
%
N
%
Boarding houses
22 877
23
7815
29
SAAP accommodation
14 251
14
3918
15
Friends/relatives
48 614
49
12 123
45
Improvised dwellings, sleepers out
14 158
14
2 820
11
TOTAL
99 900
100
26 676
100

Source: Chamberlain & MacKenzie, Counting the Homeless 2001: NSW, Table 1, p. 6.

As indicated in Table 3.1, on Census night 2001, more than 12 100 people in NSW were living temporarily with friends or relatives.4 This represents about 45% of the homeless population. On the same night, over 7800 people were living in boarding houses in NSW, while approximately half this number (3918) were staying in SAAP accommodation.5 More than 2800 people (11% of the homeless on Census night) were living in ‘improvised dwellings’, including parks, cars, trains and derelict buildings.

As a ‘snapshot’ of the situation on Census night, these data do not convey the high levels of mobility that are typical of the homeless population.6 For instance, a woman who was counted as staying in SAAP accommodation on Census night may have been staying with friends prior to staying at a SAAP service, and then slept rough for the rest of the week.

Marginal residents of caravan parks

In addition to the nearly 26 700 people counted by the ABS as homeless, Chamberlain and Mackenzie have identified a further 6881 people as ‘marginal residents of caravan parks’. ‘Marginal residents of caravan parks’ are households who live permanently in residential parks, where no member of the household is in full-time employment and their accommodation is rented.7 When marginal residents of caravan parks are included in the figures, the total number of homeless people in NSW on Census night 2001 rises to 33 557 (see Table 3.2).

Table 3.2: Homeless people in different sectors of the NSW population, including marginal residents of caravan parks, 2001

NSW
%
N
ABS-defined ‘homeless’ in NSW (see Table 3.1)
79.5
26 676
Marginal residents of caravan parks
20.5
6881
TOTAL
100
33 557

Source: Chamberlain & Mackenzie, Counting the Homeless 2001, Table 10, p. 11, Table 6.3, p. 45.

As discussed in Chapter 1, marginal residents of caravan parks together with boarding house residents make up the tertiary homeless population. Chamberlain and Mackenzie found that while 77% of boarding house residents live in the Greater Sydney area, 78% of ‘marginal residents’ of caravan parks reside in regional centres and country towns outside of Sydney.8 On the basis of these figures, they made a key observation that caravan parks are used as alternatives to boarding houses outside the capital cities. They also observed that in areas where no SAAP services are available, welfare agencies may send clients to caravan parks for accommodation. Finally, it should be noted that marginal residents of caravan parks only made up about 15% of all people staying in caravan parks on Census night 2001.9

Clients of SAAP services in NSW

There are currently 397 SAAP services in NSW, 177 (45%) of which target youth and 89 (22%) that target women escaping domestic violence. One hundred and sixty-six SAAP agencies (42%) are located in Sydney.10

In 2002–03, NSW SAAP services provided 47 900 ‘support periods’ to

25 450 different clients.11 In addition, 12 400 support periods were provided to 9900 children under the age of 18 who accompanied their parents.12 Support may include accommodation, referrals, meals, counselling, washing facilities and/or other services.13

While the number of SAAP support periods provided in NSW has steadily declined since 1996–97, the number of SAAP clients has remained relatively stable.14 It is estimated that there were 10 750 requests for support that could not be met in the 2002–03 year.15



Where do homeless people live in NSW


Census and SAAP data indicate that people become and remain homeless throughout NSW, with pockets of high homelessness rates in city, suburban, regional, coastal and rural locations. The distribution of homeless people in NSW has significant implications for potential models of legal service delivery to this group of clients. As Chamberlain and MacKenzie note:
Homelessness in Sydney

Sixty-three per cent of the NSW population live in Greater Sydney.17 However 58% of those designated as homeless in the 2001 Census live in Greater Sydney. When marginal residents of caravan parks are included as part of the homeless population, only 51% of the homeless in NSW live in the Greater Sydney area (see Table 3.3).

Table 3.3: Number of homeless people and rate per 10 000 of population, excluding and including marginal caravan park residents, NSW, 2001

Sydney
Hunter & Illawarra
Rural & remote
Coastal
NSW
total*
Homeless
15 456
3527
3365
4085
26 676
Rate per 10 000
39
37
46
61
42
Caravan park residents
1541
1516
1108
2716
6881
TOTAL
16 997
5043
4473
6801
33 557
Rate per 10 000 incl. caravan park residents
43
53
61
102
53
% OF TOTAL
50.7
15
13.3
20.3
100

* No geographical information on 243 people

Source: Chamberlain & MacKenzie, Counting the Homeless 2001: NSW, Table 7.9, p. 57.

Census data indicate that there is a very high rate of homelessness in the city core (164 per 10 000). However, about 70% of homeless people in Greater Sydney (more than 10 775 people) are living in suburban Sydney, but outside the central and inner-city area. When marginal residents in caravan parks are included in the picture, 72% of the homeless in Greater Sydney live in suburban areas (see Table 3.4).

In contrast to the city core, approximately half of the homeless people (including marginal residents of caravan parks) in the outer city and growth corridor areas are living with family or friends. A sizeable minority remain in boarding houses or SAAP accommodation in these areas.

Table 3.4: Geographic distribution of homeless people and marginal residents of caravan parks in Greater Sydney, by accommodation type, 2001

Core N=4681
Ring N=4475
Ring N=4904
Corridor N=2937
Sydney N=16 997
%
%
%
%
%
Boarding house
56
51
17
11
36
SAAP
21
10
10
12
13
Friends/relatives
16
36
52
44
37
Improvised dwelling/rough sleepers
17
3
5
8
6
Caravan park
0
0
16
26
9
Total
100
100
100
100
100
Rate per 10 000
164
47
26
36
43

City Core = City of Sydney, Botany Bay, Leichhardt, Marrickville, South Sydney

Inner City Ring = Lower Northern Sydney, Eastern Suburbs, Inner Western and Central Western Sydney (Auburn, Holroyd and Parramatta)

Outer City Ring = St George–Sutherland; Blacktown; Canterbury–Bankstown; Fairfield–Liverpool; Central Northern Sydney; Northern Beaches

Growth corridors: Outer Western Sydney (Penrith, Blue Mountains); Outer South Western Sydney (incl. Campbelltown); Gosford Wyong Growth Corridor.

Source: Chamberlain & MacKenzie, Counting the Homeless 2001: NSW, Tables 4.3 and 4.5, pp. 42–3.

The figures also indicate that there are many people sleeping rough in outer suburban areas. While they are dispersed over a greater geographic area, there are similar numbers of people sleeping rough in outer suburban and growth corridor areas (475 people) than in the city core and inner city (454 people).18

Finally, there are more than 1500 people living as marginal residents of caravan parks in the Greater Sydney area—slightly more than are accommodated in SAAP services in these areas.

Homelessness in regional and rural NSW

While there are more homeless people in Sydney than in other regions of the State, the rate of homelessness per head of population is very high in some rural and regional locations. The homeless rate for coastal NSW19 (excluding marginal caravan park residents) is 61 per 10 000 (see Table 3.3), compared with 39 per 10 000 in Greater Sydney. However, the distribution and accommodation of the homeless population within these areas vary considerably. For instance, in Tweed Heads 80% of the homeless were with family or friends, but in Lismore only 45% were accommodated in this way. In Coffs Harbour 27% were living in improvised dwellings or sleeping rough.20

When marginal residents of caravan parks are included, the rate of homelessness for coastal NSW rises to 102 per 10 000. This is perhaps not surprising as 40% of all marginal caravan park residents were living in coastal NSW.21 Tweed Heads had the highest number of marginal residents of caravan parks in this area (452 people), while a further 200 were living in each of Coffs Harbour and Port Macquarie. Following is a description of residential parks in the Tweed area:


While the above overview describes different rates and types of homelessness in NSW, it has not described homelessness in each part of the State. This information is available in Chamberlain and Mackenzie’s report, Counting the Homeless 2001: NSW.23 The purpose of describing a portion of these data has been to demonstrate that homelessness is a statewide issue, and that the way homeless people are accommodated may vary from area to area. This heterogeneity should be taken into account when considering the legal needs of homeless people in this State.

The transient homeless population

As stated earlier, mobility in and out of housing and other accommodation is a feature of homelessness. However, in addition to people moving from place to place within one area, people move in and out of Sydney and between other locations within NSW and interstate. Shelter NSW described young people in particular moving between country locations, where there is cheap accommodation but no work (e.g. the North Coast), to inner suburban parts of Sydney where there is work, but accommodation is very expensive.24 This is consistent with the experience of the Northern Rivers Legal Centre, which describes a similar pattern, particularly among people with mental illnesses or alcohol and other drug issues.25 Unfortunately, there are no reliable statistics available on the numbers of transient homeless people in NSW.



Who is homeless in NSW


As the following data show, the homeless population in NSW is relatively young, has an increasing proportion of women, an over-representation of Indigenous people, and a high proportion of people with complex needs. Note that the main sources of data for the following discussion are the 2001 Census data as reported by Chamberlain and Mackenzie, and AIHW statistics regarding SAAP clients.

Age

As shown in Table 3.5, an estimated 43% of the NSW homeless population in 2001—nearly 11 500 people—were aged less than 25 years. Yet according to the census data, only 34% of the general population is younger than 25 years.26 Nine per cent of homeless people were children under 12 years of age who were homeless with at least one adult, and another 35% were people aged between 12 and 24 years of age.

Table 3.5: Number and percentage of homeless people (excluding marginal caravan park residents) by age, and percentage female in each age group, NSW 2001

N
% of homeless population
% who are female
Under 12
2357
9
48
12–18
6242
23
52
19–24
2895
11
47
25–34
4880
18
38
35–44
3783
14
29
45–54
2879
11
27
55–64
1977
8
28
65 or older
1663
6
27
Total
26 676
100
39

Source: Chamberlain and Mackenzie, Counting the Homeless 2001: NSW, extracted from Tables 3.5 and 3.6, pp. 27–8.

Comparing data from the first national census of youth homelessness in 1994 and 2001 Census data examined by the same criteria, Chamberlain and Mackenzie estimate that the number of homeless teenagers in Australia increased by 8.4% between 1994 and 2001.27

Where homeless young people are accommodated

In 2002–03, SAAP supported 9990 children who were homeless with their parents. Eighty-eight per cent of these children were aged 12 years or younger.28 In addition, SAAP supported a further 5550 clients under the age of 20. Unaccompanied people aged between 18 and 20 made up 22% of the total adult population of SAAP clients. A further 15% of all SAAP clients were aged between 20 and 24 years.29

Relevant literature and consultations for the current study suggest that many homeless teenagers are accommodated, at least in the early stages of homelessness, with family members and friends.30 For instance, in their study of youth homelessness, Mackenzie and Chamberlain estimated that 80% of homeless school and TAFE students in NSW were staying temporarily with other households or moving around. A further 18% were in SAAP accommodation, such as refuges, hostels, transitional housing or community placements. Two per cent were ‘on the streets’.31 Students make up 42% of an estimated 6242 homeless youth (aged 12–18 years) in NSW.32 Chamberlain and Mackenzie observe that:


It appears that as young people become more entrenched in homelessness, accommodation status changes. For instance, Project i, a five-year study conducted in Melbourne, reports on the living arrangements of 403 homeless young people aged 12–20 years, only 8% of whom had been out of home for less than one month. Forty-two per cent had been away from home for 4–6 months and 31% for longer than 12 months. The study has found:
Perhaps most telling was the fact that 57% had been living at the same place for less than a month.35

In consultations, Shelter NSW described young people seeking backpacker accommodation, in preference to staying in boarding houses.36 However, inner-city homelessness workers said that backpacker accommodation in Inner Sydney tend to refuse entry to people with identification indicating they are Sydney residents.37

Gender

On Census night 2001, women and girls made up nearly 40% of the homeless in NSW.38 However, the proportion of homeless females in each age group decreases until the 35–44 age group, and then plateaus out. Thus, while there were roughly equal numbers of homeless males and females under the age of 25, approximately 70% of those aged 35 and over are male (see Table 3.5).

Other data support this observation. In 2002–03, nearly 70% of female SAAP clients and 56% of male SAAP clients in NSW were aged 34 years or less.39 Similarly, in 2002–03, the Homeless Person’s Information Centre (HPIC) (a statewide information and referral service for homeless people) received more calls from male clients (56%) than female clients (44%). However, approximately half (49%) the calls from clients aged under 18 were from girls, whereas over 70% of the calls from people over the age of 50 were from men.40

Where men and women are accommodated

The spread across different forms of accommodation appears to differ slightly for women and men when they are homeless. On Census night 2001 in NSW, 50 % of homeless women and nearly 40% of homeless men were found to be staying temporarily with family and friends (see Table 3.6). Seventeen per cent of homeless women and 13% of men were accommodated in SAAP accommodation. Approximately 10% of homeless men and women were living in improvised dwellings.41

Table 3.6: Where homeless men and women were

Males (N=16 272)
Females (N=10 404)
%
%
Boarding house
36
20
Friends/relatives
39
50
SAAP
13
17
Improvised dwellings
11
10
Total NSW
100
100

Source: Chamberlain & MacKenzie, Counting the Homeless, 2001: NSW, p. 29.

During 2002, an estimated 13 boarding houses in the then South Sydney Council area closed down (particularly smaller places with up to six rooms), with approximately 137 beds lost. This pattern appears set to continue.42 Unfortunately, there is no available data on where people who were accommodated in boarding houses have moved to since the 2001 census, but Table 3.6 appears to suggest that these closures would have affected more homeless men than women.

Gay, lesbian, bisexual and transgender people

There are no current reliable data on the numbers of gay, lesbian, bisexual or transgender homeless people in NSW. Census and SAAP data do not separately identify people by these criteria. However, there are some Australian studies that examine the link between homelessness and sexual identity, particularly among young people.

A 1995 report for TwentyTen Youth Service estimated that there were between 5000 and 6250 homeless gay, lesbian and bisexual youth in Australia. However, this estimate was calculated using research undertaken in the United States, which found that one in four gay and lesbian young people stated they were forced to leave home because of their sexuality.43

A more recent study of homeless youth in Melbourne found that few of the 399 respondents self-identified as gay (1%) or lesbian (1%). However, 14% thought of themselves as bisexual or were undecided about their sexuality. Eighty per cent of respondents indicated that they were attracted to the opposite sex only. After comparing these figures to studies of ‘housed’ youth, Rossiter et al. report “these data indicate that young people attracted to the same sex and/or both sexes are over-represented among the homeless population”.44

Studies on homelessness among gay, lesbian and bisexual youth suggest that sexuality is one of the issues that prompts gay, lesbian, bisexual and transgender youth to leave home. Other factors include family violence, alcohol and drug use within the family, sexual assault and/or poverty.45 Consultations for the current study also indicate that transgender people face particular social and legal issues that draw them into and sustain homelessness.46

Families


Family homelessness has been described as an ‘emerging’ issue in Australia,48 with one study noting that “families with children are the fastest growing group among Australia’s homeless”.49 Families include couples with children, women with children and, less commonly, men with children.

Excluding marginal residents of caravan parks, families made up 9% of all homeless households50 in Australia on Census night 2001, but nearly one-quarter (23%) of the entire homeless population in this country.51 In NSW, 2357 children under the age of 12 were identified as homeless in the company of at least one adult.52

Where homeless families are accommodated

According to the 2001 Census data, one in five homeless families in Australia were living in improvised dwellings or sleeping rough (including in cars). Just over 40% were in SAAP accommodation and a further 28% were doubling up with other family or friends. Eleven per cent were living in boarding houses.53 Given the similarities in the distribution of the homeless population in Australia and in NSW (see Table 3.1), the distribution of homeless families across accommodation types in NSW may reflect this nationwide pattern.

There are no available data on the numbers of families living as marginal residents of caravan parks in NSW. The Parks and Village Service (PAVS) reports that, anecdotally the number varies considerably from park to park.54 A report on child care for families in caravan parks stated that:


In NSW in 2002–03, approximately 17% of all SAAP support periods to adults were to adults (usually mothers) with accompanying children.56 In some rural areas, approximately one-third of support periods provided by SAAP were to adults with children (predominately women with children).57 However, these figures do not represent all families seeking SAAP assistance. AIHW reports that couples with or without children and single adults with children seeking immediate accommodation through SAAP were more likely than single people to be turned away from SAAP services in Australia. The most likely reason for this was reported to be that there was insufficient accommodation at the SAAP agency where the request was made.58

Indigenous Australians

The rate of homelessness among Indigenous Australians59 in NSW is 110 per 10 000 compared to 40 per 10 000 for the non-Indigenous population. Five per cent of homeless people in NSW on Census night 2001 identified as Indigenous Australians, compared with 2% of the general NSW population. Indigenous people were over-represented in all sectors of the homeless population, but most prominently in SAAP (10% of people in SAAP) and among those living in improvised dwellings (8%).60

Chamberlain and Mackenzie warn that these figures may underestimate Indigenous homelessness. This is because the figures are based on the census question about ‘usual address’. However, as Indigenous people more commonly move between homes within their extended family network, ‘home’ and ‘usual address’ have a broader cultural meaning.61

Where Indigenous homeless people are living

Excluding marginal caravan park residents, 42% of homeless Indigenous people in NSW were living in Greater Sydney (compared to 59% of non-Indigenous homeless people). Nine per cent of Indigenous homeless people are in North Western NSW (compared to 2% of Non-Indigenous homeless people), a further 9% in the Mid-North Coast (6% non-Indigenous), 8% in the Hunter (7% of non-Indigenous) and 7% in Northern NSW (3% non-Indigenous).62

When marginal residents of caravan parks are included, the proportion of Indigenous homeless people living in Sydney (compared to outside Sydney) drops to one-third. Of the 554 Indigenous marginal residents of caravan parks, 41% are living in the Mid-North Coast or Richmond Tweed areas.

In 2002–03, 17% of SAAP clients in NSW identified as Indigenous. It is noteworthy that nearly two-thirds of this client group were women. Yet less than half (approximately 46%) of non-Indigenous SAAP clients are female.63 Australia-wide, Indigenous Australians represented 22% of all SAAP clients with accompanying children, and were more likely than other cultural groups to be accompanied by four or more children.64

Refugees and other recent immigrants

Eighty-five per cent of clients in NSW SAAP services in 2002–03 were born in Australia.65 As a point of comparison, 71% of the general population in NSW is Australian born.66 The smaller proportion of overseas-born clients in SAAP than overseas persons in the general population may indicate that fewer overseas-born people are homeless and/or overseas-born homeless people do not access SAAP services and are accommodated differently while homeless (e.g. with family and friends or on the street).

In consultations for this project, concerns were raised about homelessness among people residing in Australia without permanent residency status or citizenship. This includes people on Temporary Protection Visas and people recently arrived from New Zealand who are unemployed or unable to work.

Foley and Beer’s recent study on housing and homelessness among newly arrived Australian residents reported that young refugees are six times more likely to be homeless than other young people in Australia.67 Foley and Beer also found that discrimination by property managers and overcrowding in poor quality private rental accommodation is the common experience of many recently arrived refugees, with anecdotal evidence suggesting that many refugees end up homeless, or at risk of homelessness, after facing housing difficulties.68

People with a history of substitute care as children

There appears to be some evidence indicating an increased risk of homelessness in adulthood for people who have experienced substitute care in childhood. For example, the 1989 HREOC Inquiry into Homeless Children (issuing the Burdekin report), on the basis of previous studies together with evidence presented to the inquiry, found:


More recently, a 2004 Senate committee inquiry about people who experienced institutional or out of home care as children reported that “evidence to this Committee [regarding homelessness among care leavers] … told very similar stories to those reported by Burdekin”.70 However, while there is strong anecdotal evidence of the over-representation of care leavers in the homeless population, there is no statistical information available about what happens to people when they leave state care or about the proportion of homeless people who have a history of substitute care as children.71

People recently released from prison

Some research suggests a strong association between homelessness and re-incarceration. In a recent study Baldry et al. followed the post-release experiences of 194 ex-prisoners in NSW and 145 ex-prisoners in Victoria. The incidence of homelessness among the NSW sample increased from 20% at the pre-incarceration stage to 38% at six months post-release. At nine months post-release it decreased again to 28%, as people moved in and out of homelessness. Interestingly, the homelessness rate of the Victorian participants reduced from 12 to 8% in the same nine-month period. Based on the data collected, Baldry et al. estimated that up to half of the NSW participants experienced episodes of homelessness in that nine-month period.72

It should be noted that Baldry et al. used Chamberlain and Mackenzie’s primary level as their definition of homelessness. The researchers commented that if all three levels had been included in the definition, “most of the sample, especially in NSW, would be homeless”.73 Indeed, the study found high levels of involuntary transience were the common experience of most participants, and that this was the factor most predictive of re-incarceration.74 The study also identified Indigenous female ex-prisoners and sole parents as the most disadvantaged of the study’s participants.75 The Law and Justice Foundation of NSW will shortly be conducting a separate study into the legal needs of prisoners and people recently released from prisons in NSW.



Complex needs and histories of homeless people


Available data, existing literature and the consultations for this current study suggest a higher than average prevalence of psychiatric disorders, substance use issues and trauma (including being a victim of crime) among people experiencing homelessness, particularly among those entrenched in homelessness.

Mental Illness

A high prevalence of psychiatric disorders among those in the homeless population has been reported in the literature and anecdotally by people working in the field.76 However, actual estimates vary considerably with the definitions and methodologies employed to collect the data, and particularly with the population of homeless people from which the study sample was drawn.

A 1998 study by Hodder, Teeson and Buhrich reported that about 75% of homeless people contacted through inner-city hostels in Sydney had at least one significant mental disorder (as defined by formal diagnostic tests). The prevalence was higher for women (81%) than men (73%).77 The expected prevalence rate of at least one mental disorder in the Australian population is 18%.78 It should be noted that these estimates are drawn from a group of people entrenched in homelessness and cannot necessarily be generalised to other groups of homeless people (e.g. women escaping domestic violence and living with other family members, young people living temporarily with friends, people renting in caravan parks because they are poor).

In the Project i study, of a sample of 403 homeless people aged 12–20 years, 26% reported a level of psychological distress indicative of a psychiatric disorder. Fourteen per cent reported clinical levels of depression, 12% had clinical levels of anxiety, 12% had clinical levels of psychosis, and nearly 35% of the sample had attempted suicide, 11% in the past three months.79 Thirty-one per cent of the sample group had been out of home for more than 12 months, and 42% for 4–6 months.80

Different mental illnesses tend to be more prevalent among different demographic groups. As Parker et al. observe:


This may be reflected in the different types of mental health issues reported in different demographic groups in the homeless population as well. Parker et al. observe that while affective and non-psychotic disorders are seen as less severe than ‘major’ mental illnesses, “their incidence in the homeless population far exceeds that in other groups”.82

Turning to another sector of the homeless population, the Select Committee on Mental Health reported that an estimated 40% of people in licensed boarding houses have a mental illness.83 In a submission to the committee, the NSW Office of the Public Guardian observed that boarding houses were often the only option for people with a mental illness who could not be placed within the very limited number of community-based options for people with special needs.84

Finally, HPIC85 statistics indicated that the most commonly self-reported client characteristic recorded for 2002–03 was ‘mental/psychiatric illness’. This characteristic was recorded for 30% of all the 43 962 calls (rather than individual callers).86

Alcohol and other drug use

Alcohol and other drug dependency are also reported as highly prevalent disorders among some groups of homeless people.87 In their study of 201 homeless people in inner-city Sydney, Hodder et al. found:


The Project i study reported “high levels of substance use among the homeless young people interviewed”, noting the level of injecting drug use as ‘alarming’. Twenty-eight per cent of participants self-reported injecting drugs in the past three months (including heroin, amphetamines, crack/cocaine and sedatives). In contrast, 0.6% of young people (14–19 years of age) in the general population were reported to inject an illicit drug in the previous 12 months.91

Another issue reported in the literature and in the consultations with stakeholders in the current study, was the extent of ‘dual diagnosis’ where people have both substance abuse and other mental health issues. Again, these issues were most commonly reported among people entrenched in homelessness.92

However, the relationship between alcohol and other drug dependency and/or mental health on the one hand and homelessness on the other does not appear to be straightforward or ‘causal’. For instance, MacKenzie and Chamberlain point out that some young people in particular may leave home to escape the mental health and substance abuse issues of family members and that some people may develop substance use or mental illness issues after becoming homeless.93 Indeed, housing crisis, family breakdown and the experience of being homeless may, of themselves, trigger or exacerbate mental health or substance use issues. Parker et al. observe:


Thus, rather than necessarily causing homelessness, it has been argued that drug and alcohol dependency and mental illness can put people at greater risk of ‘chronic homelessness’.95 It is also reasonable to expect that the prevalence of mental health and alcohol and other drug issues will vary within the homeless population (e.g. among SAAP residents compared to those living with family and friends).

Histories of trauma

Hodder et al. found that 93% of their sample of 210 homeless people in inner-city Sydney reported at least one experience of major trauma in their lives. Trauma could include sexual or physical assault, witnessing someone being badly injured or killed, life-threatening accidents or disasters, war, torture or terrorism. Trauma was reported by 100% of women and 91% of men, with multiple experiences of extreme trauma reported as ‘common’.96 The traumatic events may have pre-dated their homelessness (e.g. through family violence).

The vulnerability of homeless young people to being a victim of sexual assault is discussed in Rossiter et al,97 and the vulnerability of homeless people to being a victim of any crime is discussed in Chapter 4 of this report.



'Causes' of homelessness


A number of reports discuss ‘causes’ of homelessness.98 Causes identified include:
While opinion differs as to the relative impact of each of these factors, none can be considered in isolation from the other. The literature and consultations suggest that the experience of homelessness, while differing from person to person, usually involves multiple causes, which cannot be easily separated. While the relative impact of any of these factors will vary from case to case, the chronic shortage of affordable long-term accommodation and the shortage of crisis accommodation for people who are homeless were consistently raised in the literature and our consultations as contributing to and sustaining homelessness.99

Lack of affordable housing in NSW


Public housing is a key source of longer term accommodation for people who are homeless or inadequately housed. However, as the following figures indicate, the demand for public housing in NSW far outstrips its supply. The 2002–03 DOH annual report indicated:
These figures suggest that approximately one tenant for every eight households on the waiting list were housed by DOH in the 2002–03 year. ‘Homelessness’ is one factor that enables a person or family to be placed on the priority housing list. Thirty-seven per cent of the tenants allocated housing in 2002–03 were priority housing applicants.102

Lack of employment/low income


Mackenzie and Chamberlain suggest that the “increase in the number of households below the poverty line is the structural factor underpinning the increase in homelessness over the past two decades”. They state that “some poor households can survive financial crises, because they have relatives or friends who assist them, but a minority tip over into the homeless population”.104 These authors also observe that the contraction of the youth labour market and the increasing dependence of youth on families for financial support has been a significant factor in the emergence of youth homelessness. They note:
The vast majority of homeless people are not in the workforce or are on a very low income. Australia wide, Chamberlain and Mackenzie found that 60% of those aged 16 or older living as marginal residents of caravan parks or in boarding houses were not in the labour force (e.g. on a pension, home duties). A further 25% of marginal residents of caravan parks and 14% of boarding house residents were unemployed (seeking employment). Forty-three per cent of homeless people (aged 16 or older) living with family and friends were also not in the labour market, with a further 16% unemployed.106

In terms of income, Chamberlain and Mackenzie showed that 50% of homeless households living with family and friends in Australia and 74% of households living as marginal residents of caravan parks had a household income of less than $400 per week. More than 70% per cent of those living in boarding houses had a personal income of less than $300 a week.107

The relationship between homelessness and unemployment and low income is also reflected by other data. For example, the three most common primary sources of income recorded by HPIC in 2002–03 were the Newstart Allowance (30% of all calls), the disability support pension (27% of all calls) and the sole parent’s pension (11%).108

Further, administrative data provided by three legal service providers to homeless people in NSW indicated that on average, at least three-quarters of their homeless clients received government benefits, with a significant proportion receiving the disability pension.109 Between 4–11% of the clients of these services had no income. Homeless people without any income include refugees on Temporary Protection Visas, people without visas, recent arrivals from New Zealand, and people who could not comply with Centrelink requirements.110



Pathways to homelessness


While various causes of homelessness have been identified, the following observation remains pertinent:
Rather than looking for ‘causes’ of homeless, MacKenzie and Chamberlain explored common pathways into homelessness. They identified three homeless ‘careers’: a ‘youth career’ and two adult careers: one precipitated by a housing crisis, the other by family breakdown. The authors also note that some adults enter homelessness as a young person and remain in this situation up into adulthood. The types of legal issues facing people as they move though each of these ‘career’ trajectories have implications for the type and timing of intervention and support that may be needed. Below is a discussion of these trajectories.

‘Youth career’ pathway

The ‘youth career’ pathway focuses on young people leaving home before they have the capacity to live independently. The move out of home tends to be precipitated by family conflict. This may involve conflict between the young person and the parent(s) about behavioural boundaries or particular issues (e.g. the young person’s sexuality) or arise from family violence, abuse or neglect. Hoogland observed:


In the current study one participant commented:
MacKenzie and Chamberlain note that there is often a period when the young person is in and out of home and still at school. The young person may initially stay with other family or friends, with some moving onto crisis or SAAP accommodation.

The reasons given by young people for seeking SAAP assistance are consistent with this pathway. During 2002–03, ‘relationship/family breakdown’ was cited as the main reason for seeking SAAP support in nearly 17% of support periods given to young men and 21% of those to young women aged under 25. Other main reasons for seeking support given by men and women under age 25 were:


Physical, emotional or sexual abuse was cited as a reason for seeking support in 5% of support periods to young women. This may be underreported in SAAP figures as some young women do not want to disclose the abuse.115

Adult pathways: housing crisis career

The housing crisis pathway acknowledges the fundamental role of poverty and escalating debt in causing homelessness.116 In the households from which these homeless people come, the main income earner tends to be either outside the labour market or long-term unemployed.117 The shift to homelessness may be very sudden, facilitated, for instance, by illness or injury, family breakdown, unmanaged debt, loss of employment and no resources to accommodate this situation. As Mackenzie and Chamberlain note, “once adults lose their accommodation there is a sharp break and their problems usually get worse. Many move into the homeless population for a sustained period of time and some adapt to homelessness as a ‘way of life’”.118

MacKenzie and Chamberlain suggest that this pathway probably accounts for the largest proportion of the homeless population. This contention is supported by SAAP data.

The following reasons were prominent among the most commonly cited ‘main reasons’ clients sought support from NSW SAAP services in 2002–03:


Adult pathways: family breakdown

When people leave home due to family breakdown, Mackenzie and Chamberlain report that there is commonly a period when people move in and out of their family home a number of times, particularly when domestic violence is involved.120 Support agencies are often not notified of the problems until the situation is very serious.121 By this stage, crisis responses to find accommodation become the priority.

Again this pathway is reflected in the ‘main reasons’ provided by clients for seeking SAAP accommodation. In 2002–03, domestic violence was the most frequently cited ‘main reason’ for seeking SAAP support in NSW (18% of all support periods), with ‘relationship/ family breakdown’ accounting for a further 11% of support periods and ‘time out from family/other situation’ cited as the main reason in a further 5% of support periods. However, domestic violence was the main reason for seeking assistance in 39% of support periods to women alone aged over 25 and in 51% of support periods to women with children.122 While these figures are high, they may still underestimate the extent of domestic violence among women leaving home.


The Commonwealth Family Homelessness Prevention Pilot (FHPP), a federal project involving partnership between Centrelink and other community service providers to prevent homelessness among families, also revealed a high incidence of family violence and family conflict among the 242 families assisted.124

Transition from youth to adult homelessness

A third point of entry to adult homelessness is the transition from youth homelessness. While there is some evidence that early intervention to get young people to return home or to find appropriate alternative accommodation may be working,125 some young homeless people remain homeless into their adult lives. Mackenzie and Chamberlain found that by the time these young people make the transition to adult homelessness, many have issues with drugs, alcohol or mental health, have had contact with Juvenile Justice, are unemployed, and are extremely poor and marginalised. Thus, at this point, they require intensive support. However, intervention at this late stage is less likely to be successful.126

Finally, it should be noted that there is considerable overlap between each of the different ‘pathways’. For instance, for many people the experience of family breakdown will be tied up with financial hardship and the loss of accommodation. Generally, however, the consultations with service providers and homeless people in the current study, as well as the published data and academic literature, support the type of framework identified by MacKenzie and Chamberlain.



Summary



On Census night 2001, there were an estimated 33 557 people living in homeless conditions in NSW. These people included men, women, young people and children living temporarily with family and friends, in boarding houses, in caravan parks, in SAAP accommodation and on the street. Approximately half of these people were living in the Greater Sydney area. Only 14% of the homeless in NSW were living in the city core of Sydney. A further 13% were living in the Inner City Ring (see Table 3.4).

Excluding marginal caravan park residents, 43% of the homeless in NSW are under the age of 25 years. This includes young people who are homeless as part of a family group and young people who are homeless alone. Among the younger groups of homeless people, there are equal proportions of young men and women. However, the proportion of homeless men in each age category increases with age. Also represented in the homeless population are Indigenous Australians, families, people who have left prison or state care, gay, lesbian, bisexual and transgender people, refugees and a relatively high proportion of people living with mental illnesses, alcohol and other drug abuse issues and histories of trauma and abuse. Overwhelmingly, homeless people are very poor, usually unemployed and may struggle to maintain an income. It is difficult to separate legal issues from these other complex needs and issues.

While acknowledging the considerable structural factors that impact on homelessness, including diminishing available accommodation and employment, we have not sought to identify a ‘cause’ of homelessness. Rather, following the lead of Chamberlain and Mackenzie, we have acknowledged common ‘pathways’ into homeless. These recognise the impact of family breakdown and domestic violence, along with poverty-related ‘housing crisis, as a pathway to homelessness.’ The loss of connection with family in particular is a key factor in youth homelessness. It is in the context of these pathways that we can begin to discuss the legal needs of homeless people in NSW.



Ch 4. Legal issues facing homeless people in NSW


Legal problems are among the many complex issues facing people who are homeless. The purpose of this chapter is to identify the different types of legal issues facing homeless people in NSW.

People tend to face different legal issues as they move through a ‘homeless career’.1 For example, people becoming homeless as a result of family breakdown usually face family law and domestic violence-related issues. On the other hand, people becoming homeless as a result of financial crisis tend to face debt- and housing-related legal issues. Different again, when people have become entrenched in homelessness they tend to face legal issues related to fines and other criminal activities. This chapter will discuss the legal issues commonly encountered by the homeless, which are as follows:


When describing the legal issues associated with people who are homeless, there are two important qualifications that should be kept in mind. First, identifying the legal issues facing people as they become homeless and once they have become homeless is useful for determining appropriate sites of intervention to address their issues. However, distinguishing between legal issues that lead into homelessness and the legal issues that maintain homelessness is more problematic. For example, a family that becomes homeless as a result of family breakdown and domestic violence may also have a housing-related legal issue.

Secondly, many homeless people have more than one legal issue affecting them at any one time. For instance, more than three-quarters of the homeless participants interviewed for the current study had experienced three or more legal issues. To illustrate further, in 2003 the Law and Justice Foundation of NSW conducted a telephone survey of legal need among more than 2400 people living in ‘disadvantaged’ areas of NSW (South Sydney, Fairfield, Campbelltown, Newcastle, Nambucca and Walgett).2 One hundred and twenty respondents indicated that they were or had been homeless during the last 12 months.3 Preliminary analysis of the survey data suggest that homeless respondents faced more legal events than respondents who were not homeless.4 Thus, at any one time a homeless person may have several legal issues and/ or their homelessness may place them at further risk of legal problems.



Family law


Family breakdown has been identified in the literature as a major contributing factor to homelessness for many women and men.5 As a result, people becoming homeless as a result of family breakdown may experience family law-related legal issues. This is supported by preliminary analysis of the Law and Justice Foundation’s Legal Needs Survey 2003, which suggests that a higher percentage of the homeless respondents surveyed had a family law issue compared with those who were not homeless.6 Family law-related issues, in particular child contact and residency, comprised more than half of the activities undertaken by the Women’s Legal Resource Centre for ‘homeless’ clients in the 2002–03.7 A number of homeless participants for this study reported experiencing family law-related legal issues.8

Issues to do with property settlement were reported as contributing to people’s financial disadvantage, which may exacerbate the experience and risk of homelessness for men, women and their families. In relation to her financial circumstances after her separation from her partner, one homeless participant stated:


A caseworker supporting homeless men reported that he had clients who had been financially disadvantaged by property settlements and were under financial pressure from child support commitments (particularly if they are on income support themselves).10

A number of homeless people in our study also reported problems with parenting orders, resulting in loss of custody to the other parent or reduced access to their children.


Difficulties with parenting orders were reported to be compounded by a lack of appropriate housing. For instance, one caseworker spoke of a ‘catch-22’ situation, in which to get appropriate housing the parent needs to have residency of children, but in order to be granted residency of children, they must have appropriate housing. This caseworker was of the view that DOH would only give a single man a bedsit or a one-bedroom flat, even if he was seeking residency of his children. However, he added that not having appropriate housing can cause problems for men (and women) who are seeking residency of their children.12 This was also reported by Chamberlain and MacKenzie:


Care and protection


Parents

Interviews for this study indicated that care and protection issues were a problem for many homeless people. Care and protection matters concern the intervention of the State government through the Department of Community Services (DoCS) into the lives of children who are at risk of abuse or neglect.14 Some families who are homeless were reported to be afraid that DoCS would remove their child if they admit that they are homeless.15 Furthermore, due to mandatory reporting obligations for DoCS, parents also reported being afraid of approaching services (including SAAP services) with their children, for fear that their children will be removed by DoCS. A single mother told researchers in one study:


This type of fear was reported to be exacerbated in small towns where refuge or SAAP workers and DoCS workers know each other.17

A number of homeless people consulted in this study had children who were already in the care of DoCS. One participant described the difficulties she encountered in trying to set up suitable accommodation so she could have her children returned to her:


Children and young people

While this study did not examine care and protection issues in detail, in the literature, homeless children and young people are reported to often have a history of interaction with DoCS. Young people may have already been in care prior to becoming homeless, or they might come into contact with DoCS after they become homelessness.19 The prevalence of care and protection issues was raised in the 1989 Burdekin report: a study commissioned for the report, which documented the experiences of 100 homeless children in Queensland and NSW, found that 29 per cent of children interviewed had been the subjects of a child welfare report.20 The report also found that Aboriginal children nationally are over-represented in child welfare.21

Two young people interviewed for this study also had children who were in the care of DoCS. One had also been under DoCS care herself when she found out that she was pregnant:


Legal issues arise when parents or young people wish to challenge the care orders made about them.23


Domestic violence


Victims

The literature indicates that domestic violence contributes to homelessness for women and their families when women have to leave their homes in order to escape the violence.24 When this is coupled with the financial disadvantage they may experience as a result of leaving their partners, homelessness can become a reality for these women. In 2002–03 an estimated 94 400 people in Australia were homeless due to domestic violence.25 In the same period, the estimated temporary accommodation costs due to domestic violence was $88.1 million.26

Early indications from the Law and Justice Foundation’s Legal Needs Survey are that a higher percentage of homeless respondents had a legal issue arising from domestic violence compared with other respondents.27 Further, domestic violence-related issues accounted for the second largest group of legal activities undertaken by the WLS for ‘homeless’ clients in 2002–03, after family law (including child contact and residency issues).28

Women who experience domestic violence may leave and return to their homes many times before leaving permanently.29 The path into homelessness for women who experience domestic violence appears to start often after they have experienced the violence for a sustained period of time, and are consequently forced to leave home to stay with friends or family, or at a refuge or other SAAP service.


Chamberlain and MacKenzie note that intervention at this point is difficult because many women do not seek assistance.31 Relevant legal processes at this point may include securing an apprehended violence order (AVO), with or without an exclusion order, family law matters, including child residency and contact, child support and property settlements (e.g. shared debts).

One caseworker from the Hunter region commented that if a woman leaves her partner because of domestic violence, the stress of the relationship breakdown is compounded by having to find safe accommodation and deal with the legal issues arising from the relationship breakdown. In this caseworker’s experience, women may find life more out of control and difficult when they leave the domestic violence situation than when they were in it.32

Exclusion orders

An apprehended violence order (AVO) is one option for people experiencing domestic violence. AVOs can impose a number of conditions on the defendant, namely, the prohibition of the defendant from assaulting, threatening or interfering with the person in need of protection.33 In addition, a Magistrate can also make an ‘exclusion order’ under s 562D of the Crimes Act 1900 (NSW). This prohibits the defendant from staying at or entering the family home, regardless of their legal interest in the property.34 Addressing domestic violence through AVOs and exclusion orders can alleviate homelessness for women in some circumstances, because:


The reality is, however, that exclusion orders are used infrequently in the justice system and women are still leaving home following domestic violence. Edwards conducted a study into the granting of exclusion orders in NSW at local courts in Waverley and Sutherland.36 The study found that exclusion orders are often not attached to AVOs. For example, 32 exclusion orders between both courts were made over a six-month period compared to approximately 30 AVOs at Waverley Local Court and 50 AVOs at Sutherland Local Court per week.37

In granting exclusion orders, Magistrates must consider the accommodation needs of the parties involved and any effects on the children.38 Edwards found that the accommodation needs of the defendant were being considered over the accommodation needs and general interests of women and children; a lack of available accommodation for the defendant was often cited by Magistrates as a reason for not granting exclusion orders.39

Edwards also highlights the role of the police in granting exclusion orders through the use of Telephone Interim orders. These are orders made in situations where it is not possible to have an AVO made straightaway in court, but where the police believe that a domestic violence offence has occurred.40 Edwards found that it was easier to have an exclusion order granted as part of a telephone interim order and to have it continued than at a hearing.41

In summary, exclusion orders can play a significant role in preventing women and children from becoming homeless. Edwards provides strong argument for the need for police and magistrates to be better informed of the existence of exclusion orders and their relevance in preventing homelessness for women and families. As one victim asked:


Defendants

Perpetrators also face legal issues arising out of domestic violence. Defendants may be rendered homeless by the enforcement of exclusion orders43 that contain ‘do not approach’ and ‘not to contact’ provisions.44 A lack of alternative accommodation can push defendants into homelessness. This not only affects men, but women and young people who are defendants to AVOs. One woman who was interviewed stated:


Another stakeholder spoke about young people as defendants to AVOs:
One rural solicitor said that it was fairly common for people to be breached for going home when they weren’t allowed to, particularly if they were intoxicated.47


Victim of crime


Many homeless people (women, men and young people) have been victims of crime. A lack of secure housing means that many homeless people are vulnerable to acts of violence while homeless. In the Law and Justice Foundation’s Legal Needs Survey 2003, preliminary analyses of the data suggest that a higher percentage of homeless respondents said they had been a victim of assault in the previous year compared with other respondents.48 In a 1998 study of homeless people living in inner-city Sydney, 58% of the 157 respondents had been seriously physically attacked or assaulted, 46% had been threatened with a weapon, held captive or kidnapped, and 55% had witnessed a serious crime while homeless. Among the 38 women who were surveyed, two thirds had been indecently assaulted and half had been raped while homeless.49

Twenty of the 30 homeless people interviewed in the current study reported that they had experienced crimes such as assault, stalking and sexual assault, being ‘conned’, being mugged and having their property stolen while homeless.

A manager in a SAAP service for men referred to the dangers of living on the streets for homeless people and the threats to safety that they face. He said that many of their clients come in during the day to sleep, having kept ‘one eye open’ to ensure their safety while sleeping rough during the night.50 One participant stated:


Another participant reported having been the victim of crime on three separate occasions:
A few of the homeless participants in this study also reported being the victim of a crime while they were staying at a boarding house or refuge.
Consistent with experiences cited in the literature,55 women living on the street reported being vulnerable to assault, including sexual assault.
Other groups such as gay and lesbian and transgender people who are homeless are also at great risk of violence on the streets. A social worker from the Gender Centre stated that there are many examples of homeless transgender people suffering violent assault, abuse and murder.57 One young transgender woman working as a prostitute reported:
Consultations with stakeholders and participants in the current and other studies suggest that many homeless people were victims of crime as children.59 One caseworker commented:
One participant stated:
People who have been the victim of a violent crime current and past and suffered an injury as a result can apply to the Victim’s Compensation Tribunal under the Victims Support and Rehabilitation Act 1996 (NSW).62 A number of the legal clinics that provide services to homeless people in Sydney assist clients to complete applications for victim’s compensation.63 Applications to the Victim’s Compensation Tribunal will be discussed in further detail in Chapter 8.


Housing


As defined in Chapter 1, people who are homeless may be living on the street, in SAAP accommodation or a refuge, with family or friends, or in a boarding house or caravan park. People at risk of homelessness might be living in private rental accommodation or public housing. Housing-related legal issues vary with accommodation type.

Preliminary analysis of the Law and Justice Foundation’s Legal Needs Survey 2003 indicated that an overwhelming number of homeless people reported that they had had a housing-related legal issue in the twelve months prior to the survey.64 These data may reflect Chamberlain and MacKenzie’s notion of the ‘housing crisis career’, in which adults begin to move into homelessness as a result of financial and housing problems, which lead to them losing their accommodation and becoming homeless.65

Legal issues relating to housing may essentially be divided between those issues that contribute to a loss of accommodation, and those issues that lead to people having problems regaining stable accommodation once they are homeless. Ideally, legal intervention should occur before people lose their accommodation. However, people may also need legal assistance to regain accommodation.

Housing-related debt

Consultations with stakeholder groups and homeless people for the current study indicated that housing-related debt can contribute to people losing their accommodation and prevent them from regaining it. Debts can arise from rent arrears or from damage to a property, with the accumulation of debt potentially leading to eviction. This can occur in the private rental market, public housing, boarding houses and caravan parks. However, most of the following examples refer to tenants’ relationships with the DOH, perhaps reflecting the experience of those interviewed for this study.

Rent arrears

Some participants reported falling into arrears with their rent as a result of financial disadvantage or loss of income.


An older Indigenous woman living in public housing said that she faced eviction because she had fallen behind in rent due when in hospital for a month.
Damage

Debt arising from damage to a property caused by tenants themselves or by others (including family or friends) is another source of housing-related debt. WLS staff, including domestic violence support workers, commented that they had many female clients with DOH debt arising from damage caused by their partners to the property in domestic violence situations.68 The following case study exemplifies this problem. The woman from rural NSW described below was homeless with her three children under the age of seven.


Problems arise when people do not notify DOH when another person causes damage to their property, or if they leave their property without notifying the department and other people continue to inhabit the property.
Damage by others was identified by one caseworker as a particular issue for people going to prison who do not want to lose their DOH property, so they allow their friends or family to live in the property. The tenant is subsequently responsible for any damage done to the property or rent not paid while they were in prison.71

Outstanding debt

As well as contributing to homelessness, outstanding housing debt was identified as a barrier for people trying to re-access DOH accommodation. To be eligible for public housing a tenant has to “repay, or undertake a formal agreement to repay, any outstanding debts owed to the Department [i.e. DOH]”.72 Some housing debts were said by caseworkers to be as high as $6000.73 DOH will negotiate arrangements with tenants to repay rental arrears, which may include paying by instalments. However, one caseworker stated that more recently this had become much harder to do.

Renewable tenancy agreements

The NSW Government recently passed the Residential Tenancies Amendment (Public Housing) Act 2004 (NSW) to target ‘anti-social behaviour’ in public housing.75

Under the Act, ‘acceptable behaviour agreements’ (ABAs) may be used by DOH to regulate the behaviour of those tenants that it believes are responsible for anti-social behaviour.76 Where any other ‘lawful occupant’ of the premises breaches the ABA, the tenant who has signed an ABA is treated as having breached the ABA themselves.77 DOH plans to implement these powers once it has drafted its related policy, and trialled ABAs in two geographic areas.78

The new laws require that, following an application from DOH, the Consumer, Trader and Tenancy Tribunal (CTTT) must order that the tenancy be terminated in either of two situations:


Further, even where no ABA applies, the new laws provide extra grounds for the CTTT to grant an application from DOH for immediate termination of the tenancy, such as where the tenant has intentionally engaged in conduct that would be reasonably likely to cause a member of staff to be intimidated or harassed.81

These laws have the potential to put public housing tenants at greater risk of homelessness. They present particular problems for tenants (and their families) with mental illnesses, acquired brain injuries or intellectual disabilities.82 The government envisages that the particular difficulties faced by such tenants will be addressed through support from interagency specialist response teams.83 However the decision not to provide extra funding to staff this initiative has been criticised by one service provider.84

Residential tenancy databases (RTDs)

There are several RTDs operating in NSW.85 Each are privately owned electronic databases that purport to act as ‘risk minimisation’ services for property managers (including landlords, real estate agents, caravan park owners and boarding house operators). For a fee, property managers can use them to gain access to adverse information about prospective tenants.86

RTDs were identified by a number of caseworkers and tenancy workers in this study as a significant barrier to homeless people re-entering the private rental market.87 Landlords or real estate agents can place people on these lists and essentially ‘blacklist’ them, whereby other landlords will not rent out properties to listed tenants.


During the course of this research, tenancy workers and other caseworkers commented that there was no legislation governing the use of RTDs, nor were there mechanisms for appealing a decision to place a tenant on a database.89 They felt that people were being put on such databases arbitrarily and, “even if an issue was resolved, it was very difficult to get off a database, making it very difficult to secure accommodation”.90 Tenancy workers also felt that people were being put on the databases for making complaints to the CTTT, or for personality clashes with real estate agents.91 In the late 1990s, Boswell and Warren estimated that about 7500 tenants in NSW may be adversely affected by RTDs per year. They also suggest that this number is likely to have significantly increased with the growth of RTDs over the past decade.92

Until recently, residential tenancy databases operated largely unchecked by government regulation.93 However, legislation introduced on 15 September 2004 established a new Rule of Conduct for real estate agents, aimed at making the listing procedures of RTDs fairer.94 The legislation limits the reasons for which a real estate agent may list a tenant to situations including where debts are owed by the tenant to the landlord, or where the CTTT has terminated the tenancy because of the tenant’s behaviour.95 The new reforms have also set time limits for listings to be retained and improved the process for dealing with disputes about listings. Finally, tenants will no longer be charged up to $4.50 a minute to check whether they are listed on a database.96

While the new regulations in NSW fail to prohibit RTDs, they represent improved protection from RTD abuse for many tenants. However, they have been criticised for not going far enough, since they fail to provide tenants with rights which they can seek to have enforced by the CTTT. Further, they do not apply to database users who are not real estate agents, such as private landlords and boarding house or caravan park operators.97

Finally, the new restrictions purport to apply only to listings made after 15 September 2004,98 leaving the thousands of people who were listed before this date without the protection afforded by this new legislation. However, since the legislation is somewhat ambiguous on this point, there may be grounds for arguing that some of the provisions of the new Regulation also apply to pre-September 15 listings, such as the requirement that tenants have free access to listed information about themselves. It is uncertain how the Regulation will eventually be interpreted.

Boarding houses

Many homeless people, particularly in inner-city Sydney, live in boarding houses on a medium- to long-term basis.99 Because boarders and lodgers are excluded from the protection of the Residential Tenancies Act 1987 (NSW) (by s 6(1)(d) of that Act), boarding house residents lack legislative protection against arbitrary eviction, disputes over payment and other unfair treatment from boarding house landlords.100 This means that there is no regulation of living conditions, penalties for rent arrears or unfair and arbitrary evictions for people using this type of accommodation. Unsanitary and dangerous conditions, unsatisfactory lock systems on doors, people’s belongings being stolen, exorbitant rent and people’s reluctance to complain about these conditions for fear of being evicted were problems mentioned by participants and tenancy workers interviewed for this study. One participant noted:


Another participant had this to say:
One tenancy worker commented:
A recent fire audit conducted by South Sydney City Council in 2002 reported dangerous conditions in boarding houses. This audit found that of the 100 boarding houses that underwent a fire inspection, over 95% of these required some degree of upgrading to meet current safety standards.104

Currently, there is no legislative protection against eviction or the use of penalties for boarding house residents who are late with rent.


Furthermore, bonds required by boarding house operators are not held by the Office of Fair Trading or by any other rental bond board. Hence, landlords can retain bonds without a good reason.

One participant indicated that they would leave if a problem arose to avoid confrontation:


The NSW Boarders and Lodgers Action Group (BLAG) has been conducting a long-term campaign for legislative reform to provide protection to people living in private boarding houses. A Boarders Bill has been drafted by BLAG, covering the legal process for eviction, a process for getting back possession of goods, a process for repairs and maintenance and a process for recovery of bond.108 However, at this stage, the bill has not been adopted.


Caravan parks and villages



Caravan parks vary in type of clientele and standard. Some caravan parks cater only to tourists or elderly people while other parks may provide general accommodation in addition to holiday accommodation. Parks also vary in the amenities, services and standard of accommodation they offer. Our interviews indicate that the legal issues facing marginal residents of caravan parks110 and villages are similar to the legal issues facing people living in (inner-city) boarding houses. According to a solicitor working with park residents, like boarding houses, marginal residents may experience arbitrary eviction and in some residential parks conditions are unsanitary and unsafe.111 Another solicitor commented that there were often restrictions on the length of time people could stay in a park, since many parks evict people at the beginning of holiday seasons.112

Residential park residents who sign an agreement to rent are governed immediately by the following NSW legislation: Residential Parks Act 1998, Residential Parks Regulation 1999, Landlord and Tenant (Rental Bonds) Act 1977 and Consumer, Trader and Tenancy Tribunal Act 2001. Under these Acts they are assigned certain rights and can bring matters before the CTTT.113 However, park residents who have not entered into formal agreements with park owners have less protection from arbitrary eviction, and limited redress when conditions are unsanitary or they are treated unfairly. Consultations with tenancy workers suggest that many marginal residents of caravan parks fail to enter into formal agreements with park owners.114 Tenancy workers also report that like residents of boarding houses, people are often afraid to complain about conditions, for fear of being evicted.115 The story of one male caravan park resident illustrates this well.


Thus, fear of eviction further limits the capacity of park residents to take action if they face arbitrary eviction or unsafe or unsanitary living conditions. This fear is compounded by the increase in the number of park closures due to development117 across NSW which has limited the availability of alternative accommodation once people are evicted.


Discrimination


Illegal discrimination has been identified as a factor that not only affects people while they are homeless but may also contribute to their becoming homeless. For example, discrimination against people trying to gain access to accommodation may contribute to them becoming homeless. Discrimination against people in relation to employment may contribute to general financial disadvantage, which in turn may compound the risk of homelessness.

Discrimination against certain groups of people trying to access accommodation in the private rental market has been raised as an issue in consultations for the current study and in the literature, racial discrimination being a particular issue for Aboriginal people.


Age discrimination was also raised as a particular problem for young people:
Chung et al. in their study on domestic violence and homelessness also refer to marital status discrimination against ‘single mothers’ by some landlords and real estate agents who are reluctant to let premises to ‘single mothers’ receiving income support.120 Chamberlain and MacKenzie also identified this group as facing discrimination when seeking housing:
One transgender participant and one caseworker working with transgender clients who was interviewed for this study reported experiencing discrimination in both finding accommodation and in the job market:

People with complex needs such as drug and alcohol abuse and mental illness, who are over-represented in the homeless population, are reported to routinely be discriminated against in accessing employment and housing.124 This further exacerbates their risk and experience of homelessness. Discrimination on the basis of psychiatric disability will be investigated further in the Law and Justice Foundation’s Access to Justice and Legal Needs of People with a Mental Illness report.

Finally, people who are homeless appear also to be discriminated against on the basis of their homelessness: in employment and in accessing employment, transport and goods and services. According to Lynch, people who are homeless are turned away from restaurants, refused bus entry and rejected by landlords. Lynch concludes that while there continues to be no legal protection from discrimination against a person on the basis of their socio-economic status, homeless people will continue to be discriminated against.125 Thus, people rendered homeless perhaps from being discriminated against on the grounds of their race, gender and marriage status attract further discrimination and added barriers to redressing their situation as a consequence.

Discrimination in SAAP services

Stakeholders consulted for the current study reported that certain groups of homeless people are being denied access to some SAAP services on the basis of mental illness, substance abuse or a history of violent behaviour.126 Some stakeholders felt that people with complex needs were being denied access because SAAP services are not equipped (with funding and appropriately trained staff) to assist people with mental health and/or substance abuse issues.127 Comments were also made that eviction (usually on the basis of breaking service rules such as bringing alcohol onto the premises) in some circumstances was wrongful; that sometimes the decision to evict was left to the discretion of the worker;128 and that there had been in the past reports of an ‘unofficial blacklist’ preventing some people from accessing particular hostels for behaviour infractions.129

The NSW Ombudsman recently reported on the issue of exclusion and eviction of people with complex needs from SAAP services.130 It found that many SAAP services had specific policies to exclude people with a mental illness, drug and alcohol problems, people with disabilities, people who exhibited challenging behaviour, pregnant women or people unable to pay for accommodation. The NSW Ombudsman recommended that SAAP services should move away from a “presumption of risk to considered assessment and risk management”, whereby “policies, procedures and practices are inclusive, and that any exclusions be based on considered assessment of the presenting circumstances of individual clients and fair and transparent exiting procedures”.131

Consultation with the Gender Centre also suggested that some SAAP services are reluctant to provide services to people who are transgender, and described incidents where a person’s identity was not recognised and they were placed with people from the opposite gender.132 Reflecting on her experience in accessing supported accommodation, one transgender participant said:


This may act as a barrier to people accessing services. For example, one stakeholder working with gay and lesbian young people consulted for the current study said that gay and lesbian young people reported fear of discrimination deterred them from accessing SAAP services.134


Debt


Debt is experienced as both a precursor to homelessness and as a feature of people’s lives once they are homeless. Consistent with Chamberlain and MacKenzie’ ‘housing crisis career’, the accumulation of debt when people are already financially disadvantaged can result in people losing their accommodation.135 This can be made worse by gambling and drug and alcohol issues.136 Preliminary analysis of the Law and Justice Foundation’s Legal Needs Survey 2003 suggests that nearly three times the number of homeless people had experienced credit or debt problems compared with other respondents.137 The Interim Evaluation Report of the FHPP found that two-thirds of the 242 families assisted in the project had debts, while only 5% had sufficient funds to cover bonds or emergencies.138

Debt also figures in people’s lives once they have become homeless. All the legal clinics supporting homeless people consulted for this study indicated that they commonly assisted homeless clients with debt matters.139 For instance, debt was one of the three most common legal problems dealt with by the PIAC/PILCH HPLS in its first six months of operation. When fine matters are added to general debt, then these constituted 15% of the 267 legal problems dealt with in this period.140 The LCRC submission to the Law and Justice Foundation for the current study noted:


Consultations with caseworkers, other stakeholders and homeless people themselves indicated that some of the debts that tipped people into homelessness (e.g. rent arrears), continued to impact on their lives once they have become homeless. Indeed, debt to government agencies including fines, Centrelink-related debt and housing debt were major issues for those consulted. The nature and impact of these types of debt are discussed in greater detail in the relevant sections of this chapter.

Mobile phone debt also was identified as a problem for homeless people by a couple of stakeholders.142 The LCRC reported that the biggest consumer problem facing its clients related to the charges levied by mobile phone companies when contracts are ended prematurely by customers.143


The LCRC submission to this project stated that “many of the clients coming to the LCRC are easy targets for people selling ‘attractive’ ways of life, the mobile phone companies take advantage of those who can least afford contracts”.145 A caseworker from Newcastle commented that for many people who are homeless, mobile phones provide the only stable point of contact available to them. This is particularly important when people are searching for employment or housing. The mobile phone takes on greater significance when a person’s accommodation may be changing rapidly. This same caseworker observed that homeless people may enter into contracts even if they are aware that they will not be able to make repayments.146

Debt to banks, particularly from overdrawn accounts, was also raised as an issue of concern. One caseworker referred in particular to difficulties with direct debit facilities. Where a person has arranged to have bills directly debited from their account, and it happens that there are insufficient funds to pay a certain bill, the bank may choose to process the direct debit anyway. If this happens, the bank may charge the person a dishonour fee, an account overdrawn fee, and interest on the overdrawn amount.147 The total sum of the fees can have a considerable impact.


Thus, a common feature of debt and debt repayment for the homeless, irrespective of its source, is that it often compounds, not only making the debt harder to repay but also leaving less funds available for adequate housing.


Social security


As noted in Chapter 3, the majority of homeless people are unemployed and dependent on social security benefits administered through Centrelink. Twenty-four homeless participants consulted for this study were currently receiving social security benefits from Centrelink. Eleven participants reported that they had had some sort of problem with Centrelink.149 These problems related to eligibility, breaches, debt and getting ‘cut off’, or late payments. These issues and their relationship to homeless people are discussed below.

Eligibility

For people at risk of or experiencing homelessness, ineligibility for social security benefits can exacerbate the risk or experience of homelessness. In the current study, stakeholders reported instances of homeless clients experiencing problems proving or meeting the eligibility criteria for social security benefits. Clients included young homeless people, ex-prisoners and people on Temporary Protection Visas.

In addition, two homeless participants interviewed for this study who were from New Zealand also reported having experienced problems with eligibility for social security benefits.150 New Zealand citizens are permitted to work in Australia. However, since February 2001, they are not permitted to apply for social security payments unless they obtain permanent residence.151 Both of these participants said they were not aware of these changes before they came to Australia. Both referred to the cost of applying for permanent residence as a barrier to actually obtaining permanent residence, which would allow them to receive social security benefits.

Similarly, people on Temporary Protection Visas are entitled to work and have access to Medicare but they are not entitled to income support (Newstart, Youth Allowance or the disability support pension).154 Without adequate financial support, this puts people on Temporary Protection Visas at risk of homelessness.

It is also possible that homelessness may exacerbate problems in meeting eligibility requirements for social security benefits. Lynch argues that Centrelink’s proof of identity requirements discriminate against people who are homeless and therefore unlikely to possess identity documents such as birth certificates or drivers licences.155 One stakeholder working with young homeless people reported that this may include young people leaving home after family breakdown or disagreement who can have great difficulty in providing proof of identity and proof of their independence in order to be eligible for income support from Centrelink.156

Young people can, in such circumstances still be eligible for income support if they can establish that it is ‘unreasonable’ for them to return home. However, one caseworker interviewed in this study reported that as part of their assessment, Centrelink officers sometimes ring the applicant’s parents. The parents may state that the young person is able to return home, thereby undermining the child’s assertion that it is ‘unreasonable’ for them to do so.157

People coming out of prison who are estranged from their families were also identified by stakeholders consulted for this study as having problems as they may not be able to obtain identification (such as birth certificates) held by family they are estranged from.158 Thus, such people’s efforts to ensure financial security are stymied at a crucial point in their lives. This may increase the risk of homelessness for people exiting prison.

Breaching

Breaching was the main problem relating to social security benefits reported by both caseworkers and participants in the current study. ‘Breaching’ (the reduction in or termination of payment) occurs when a social security recipient fails to comply with either the ‘administrative’ or ‘activity test’ requirements of their allowance. Administrative requirements include attendance at Centrelink interviews and the provision of certain personal information to Centrelink (e.g. change of address, notification of any income). ‘Activity test’ requirements refer to ‘looking for work’ requirements, which include participating in training or a Work for the Dole program.159 ‘Activity test’ requirements only apply to Newstart and Youth Allowance.

Several homeless participants in this study reported that they had been breached at some point.160 Examples of these include:

Caseworkers interviewed for this study reported that homeless people can often have great difficulty in complying with administrative and activity test requirements. One caseworker from Walgett suggested that homeless people have difficulty in complying with social security requirements because they do not fully understand what is expected of them:
This is evident by the fact that homeless people may be breached as a result of not declaring their earnings to Centrelink. Social security recipients are allowed to earn a certain amount of additional income, but they must declare the gross amount of income they earn to Centrelink each payment period. One caseworker noted recipients are required to disclose the ‘gross amount’ of income they receive, but that many of this person’s homeless clients did not know the exact gross amount they earned in a particular week because their pay period did not correspond to the Centrelink pay period or they may have been paid cash in hand.
One participant reported:
Another reason why homeless people have difficulty in complying with Centrelink requirements is that they lack a fixed address at which to receive correspondence from Centrelink. Examples were given of homeless people being breached or their payment being cut off because they had failed to receive a letter that had required them to do something (such as attend a job interview or a Centrelink interview).166
A caseworker working with young homeless people stated that private job network agencies can recommend that clients be breached for not showing up for an appointment or job interview with them, even when, as is often the case for homeless people without addresses, the client did not receive the letter from Centrelink that notified them that they had to go to the interview.169

Debt and issues related to breaching could be avoided with appropriate intervention before they occur. It should be recognised that Centrelink outreach workers and social workers (such as those attending SAAP services described in the previous example) can and do intervene before people are breached or before they incur large debts. Their role is discussed in greater detail in Chapter 7.

Centrelink debt

The other legal issue relating to social security that was raised in this study was debt to Centrelink. People usually accrue Centrelink debt in situations where they have received payments from Centrelink that they were not entitled to. For example, they may have not declared their earnings and earned too much in a particular period, or they may be ineligible for a particular payment because their circumstances have changed (e.g. they may not have informed Centrelink of the fact that they had stopped studying).


One caseworker referred to a situation where a client had gone to prison and Centrelink had not been informed. As a consequence, the client accumulated a debt of $7000 to Centrelink.171 Another participant who had been overseas for sometime had a nervous breakdown, found himself homeless, and was faced with an old Austudy debt on his return to Australia.
The usual procedure for debt repayment to Centrelink involves money being deducted from a recipient’s payment each fortnight until the debt is cleared. In the above case the participant had $53 taken out of each Newstart payment until the debt was cleared. The Newstart allowance for a single adult is $394.60 a fortnight.173 Given this, it is easy to see that homeless people on social security payments who either accidentally or otherwise incur Centrelink debt are left financially vulnerable.


Crime


Criminal law issues feature prominently in the lives of people who are homeless. Preliminary analysis of the Law and Justice Foundation’s Legal Needs Survey 2003 suggests that nearly twice the number of homeless people who responded to the survey had experienced a criminal legal problem compared with housed respondents.174 At Shopfront, a legal service for homeless and disadvantaged young people under the age of 25, 64% of matters dealt with related to criminal court matters and criminal advice, while a further 6% related to fines.175

Shopfront is situated in inner-city Sydney. Young homeless people in this region are likely to have been homeless for longer periods of time, moving between sleeping rough, boarding houses and emergency accommodation in a state of chronic homelessness. People at this stage, whether they are young or older people, are highly marginalised from society, may have drug and alcohol and mental health issues and are more likely to have had interactions with the police and the justice system.176

The criminal law issues they face reflect their living situation: public transport fines and street offences are a result of them being particularly visible to police and other enforcement officers responsible for regulating the use of public space; drug and alcohol-related crime, assault, and theft. Their interaction with the criminal law should be viewed within its context of serious homelessness. It is the last point on the spectrum of legal issues facing homeless people, spanning issues affecting them as they enter into homelessness to those affecting them once they have become entrenched in homelessness.

Fines

Participants and stakeholder consultations for the current study indicated that fines177 were a major problem for many homeless people who, because of their lack of private housing and economic disadvantage, were more likely to be publicly visible. They consequently accrue multiple fines for street offences such as drinking in public spaces and public transport fines.


Consultations suggested that young homeless people are particularly susceptible to receiving fines.179 Sanders notes that while young people aged 15 to 24 years constitute only 14% of the population in NSW, in 2002 14 to 24 year olds received approximately 35% of fines.180 One homeless young woman recounted her experience:
Further, homeless people may be unable to afford to pay the original fine, or, without a regular address, they may not receive notification of the fine. As penalties and interest are added to the original fines, homeless people accumulate fine-related debt.
The accumulation of fine-related debt may compound people’s financial disadvantage while homeless. This in turn, makes it harder for homeless people to pay off their fines. Furthermore, failure to pay a fine can lead to further legal problems. For example, once a fine is issued it is referred to the Infringement Processing Bureau. If it remains unpaid it is then referred to the State Debt Recovery Office (SDRO), which issues a fine enforcement order. If, after 28 days following the issue of a fine enforcement order no arrangements have been made to pay the fine, the SDRO may direct the Roads and Traffic Authority (RTA) to suspend a person’s licence, prevent a person from re-applying for their licence, or cancel the person’s licence after six months has passed.183 Given their financial disadvantage, homeless people who have incurred fines may be at risk of having their licence cancelled as a result of not paying a fine. This was identified as an issue by a homeless participant:
Suspension of a licence is a particular problem for homeless people living in rural and regional areas with limited access to public transportation. Furthermore, if people continue to drive while they do not have a licence, this may place them at risk of being charged with an offence and/or accumulating more fines. In turn, this may place people at risk of going to jail. Because of their greater public visibility and economic disadvantage, homeless people are vulnerable to incurring fines. Their financial disadvantage makes it difficult for them to pay off their fines, resulting in the accumulation of penalties and interest to the original fine. This in turn makes it harder for homeless people to pay off the original fine, which can have serious consequences such as cancellation of a person’s licence. Thus, not only does homelessness increase the risk of incurring a fine, it may also lead to a person being more vulnerable to the consequences of not paying a fine.

‘Move on’ powers

Under s 28F of the Summary Offences Act 1988 (NSW), police have the power to ask a person to ‘move on’ in certain situations, for instance if a person is seen to be ‘intimidating or obstructing another person’.187 Because homeless people, particularly at primary levels of homelessness, spend much of their time in the public space, they are highly visible to police. Homeless participants, particularly those who sleep rough in parks, bus stops and other public spaces, commonly report being asked to ‘move on’ by police:


As a result, a couple of people commented on the need to ‘travel around’ to avoid the police moving them on:
It was also suggested by one stakeholder that homeless people are vulnerable to being told to move not only by police, but also security guards and council rangers.192 However, few of the homeless people we consulted reported much contact with either group.

Another stakeholder stated that homeless people are also more likely to be the targets of rigorous policing practices, getting checked for outstanding warrants and searched for drugs.193 This is further corroborated by the following comments by two homeless participants interviewed for this study:


And as one caseworker describes it, what starts as being moved on may progress to being searched for drugs. If a person has had a number of charges, the situation can become quite serious.
Relationships with police are discussed in further detail in Chapter 7.

Drug-related criminal activity

Perhaps reflecting the high rates of drug and other alcohol abuse among people who have been chronically homeless (see Chapter 3), stakeholders and participants indicated that a small number of homeless people commit drug-related crimes.197 Offences range from possession of and selling drugs to offences arising from the need to obtain income to buy drugs, such as prostitution, theft, break and enter and assault.


Thus, homeless people as a group are more likely to encounter the law than other groups because of their greater involvement in illicit drug-taking. Further, their lack of financial resources may also mean that homeless people use illegal means to get sufficient money to support their addiction.


Conclusion


Homeless people in NSW face a variety of legal issues. Legal issues faced by people at the point of entering into homelessness usually differ from the types of issues faced by people who have been homeless for some time. First, as people become homeless they tend to face legal issues which are closely tied to the incidents leading to their homelessness. These include:
Secondly, homeless people face the following legal issues, arising as a consequence of being homeless:
Consultations with participants and stakeholders also indicate that homeless people tend to experience multiple legal issues at any one time. When unresolved, these legal issues can lead to and compound homelessness. As will be discussed in Chapter 5, homeless people face a range of barriers in seeking legal assistance for these issues, resulting in many issues remaining unresolved.


Ch 5. Barriers to accessing legal assistance



As illustrated in Chapter 4, homeless people in NSW tend to face multiple legal issues as they move through homelessness. Prominent among these are eviction, housing debt and blacklisting, family law, domestic violence issues and other crime, debt and income related issues. For many homeless people, legal problems are intertwined with social issues.

Homeless people face a variety of barriers in accessing legal assistance. Some barriers relate to their circumstances, such as limited resources to spend pursuing a legal issue and competing immediate priorities. More systemic barriers include the complexity and formality of the law and the limited resources available to support the range and extent of legal need among disadvantaged people in NSW.

This chapter discusses the barriers homeless people face in identifying and seeking support for their legal issues.



The barriers to homeless people seeking legal assistance


The homeless people consulted for this project described the efforts they make to address issues that arise in their lives. These included going to the Centrelink office to sort out a payment problem, finding accommodation or visiting Legal Aid to get legal advice or assistance.

However, people experiencing homelessness are confronted by a range of barriers to resolving legal issues and finding pathways out of their homelessness. As one legal service provider stated some clients might have their accommodation sorted but find everything else has fallen apart (e.g. the electricity has been cut off, they can’t afford clothing or food, etc.).2 While the barriers faced and the capacity to deal with these obstacles vary considerably from person to person, some prevailing themes have been identified.

Having other priorities

A point consistently raised in this study was that unless there was a legal crisis (e.g. imminent eviction, an acute episode of domestic violence or arrest by police), legal needs were simply less of a priority for people when homeless than other immediate needs. For men, women, young people and families experiencing homelessness, other priorities included getting accommodation, earning an income, looking after family, satisfying an addiction or getting medical attention.3 Caseworkers observed:


Tenancy workers described clients who were too preoccupied with finding alternative accommodation to fight eviction.7 As a result of being preoccupied with other priorities legal issues do not get dealt with, and may accumulate and compound.

Feeling overwhelmed by the issues

A homeless lifestyle not only reduces the amount of time people have to address complex legal needs, but also people’s emotional capacity to do so. As one woman stated:


An experienced SAAP manager described this as leading to a ‘paralysis of indecision’, where, faced with the need to take actions, the person can become too frightened or overwhelmed to do anything at all.9

Inner-city outreach services talked about a number of homeless people who ‘keep running away from the issues’, even when there were solutions available.10 Homeless participants expressed sentiments such as “I was under a bit of stress and I thought that I didn’t want to add to that and I just wanted to put the whole thing behind me.”11 Another said:


Consultations suggest that some homeless people ‘resolved’ issues by simply ‘moving on’. In the words of one participant:
Again, legal issues tend to remain unaddressed in such circumstances.

Reluctance to ‘complicate’ issues

Some participants in this study also felt reluctant to further ‘complicate the situation’. This was particularly apparent in family law and domestic violence matters. One young man who wanted contact with his two-year-old daughter, had not spoken to a lawyer. He said:


A young woman in a regional location spoke about a man who had been making threatening phone calls and following her. She said:
Previous research into domestic violence and homelessness has also noted a fear of further ‘worsening’ situations by acting on legal advice to leave violent situations or have an AVO taken out.16

Cost of legal services

While some solicitors provide legal advice in the first consultation for free, the costs of engaging a private solicitor are generally well beyond the means of homeless people. Even in personal injury matters, where a lawyer may work on a ‘no-win, no-fees’ basis, the client may have to pay disbursements (e.g. filing fees, photocopying, expert reports). The client also risks paying the other side’s legal fees if they lose the case.

Realistically, because of their very limited or non-existent financial capacity, homeless people are reliant upon subsidised or free legal assistance services, such as legal aid, LawAccess, CLCs, pro-bono legal clinics and services or Aboriginal and Torres Strait Islander Legal Services (commonly known in NSW as Aboriginal Legal Services (ALSs). However, as discussed below, homeless people may even face barriers accessing these services.

Isolation from services

Legal Aid offices, CLCs and ALSs are located in city, suburban and regional centres in NSW, while most specialist legal services for homeless people are located in inner-city Sydney.17 However, for homeless people, access to these services is made more difficult by a lack of access to transport, particularly in rural and regional NSW.18 In some areas there is no public transport at all. In other areas, public transport may be available, but people cannot afford to use it. As one rural CLC lawyer observed:


Further, as mentioned in Chapter 4, homeless people using public transport without tickets risk being fined, and going (further) into debt.

Lack of access to transport (which is independent of the violent partner) has also been identified as an issue for women, particularly in rural or regional areas, seeking to leave or address domestic violence.20

Lack of stable accommodation


A lack of stable housing usually involves a lack of or limited access to private telephone use, no consistent telephone number for people to return calls to, limited internet access,22 no one place to safely keep documents, including documents establishing identity, no fixed address to receive mail23 and a reduced likelihood of being granted bail.24 Some homeless people use mobile phones to keep in contact with others. However, as reported in Chapter 4, this can lead to people accumulating debt they cannot service. Homeless people living in rural areas may not even have the option of using a mobile phone because there is no signal coverage.25

For street-based homeless people, a lack of accommodation may extend to having no place to regularly shower and wash clothes. Service providers reported that some people avoided legal services, as they felt ashamed of the visible state of their homelessness. They had not washed and did not have clothing which they felt was appropriate to wear to a legal service or to go to court.26 One participant reflected:


Lack of alternative accommodation

A key barrier to people in marginal accommodation (particularly boarders and lodgers and marginal residents of caravan parks) accessing legal or tenancy support is the fear of losing the only accommodation available to them. There appears to be legitimate grounds for such fears. As discussed in Chapter 4, boarders and lodgers do not have the legal protection of being a ‘tenant’. The legal protection afforded to the marginal residents of caravan parks can be equally dubious. In both cases, people are reported to take no action when they have legitimate complaints about their accommodation (e.g. necessary repairs are not made), as they have literally nowhere else to go if they are evicted. As the following case study indicates, eviction following a complaint is a risk, irrespective of whether the complaint being made is justified.


The reluctance of caravan park residents to make complaints about conditions to park owners was compounded in rural areas. Here, residents felt that being branded as a ‘troublemaker’ would not only jeopardise their accommodation, but their capacity to gain employment in the area. As PAVS observed, networks in rural towns are tight. Residents realise this and are hesitant to take action about substandard accommodation or unjustified eviction.29

Lack of alternative and appropriate accommodation was also described as a significant barrier to women wanting to leave domestic violence situations and obtain legal protection. Both emergency accommodation and/or alternative long term housing for women and children are in short supply, particularly in rural and regional areas.30 The accessibility of families to some refuges is further limited by rules which mean that male children aged over 12 years cannot be accommodated.31

Transience/lack of networks

As discussed in Chapter 3, a common feature of homelessness is mobility, that is, mobility between different accommodation, in and out of local areas and between states. A barrier to transient homeless people accessing legal services is their being unfamiliar with local services and having little opportunity to establish support networks in each location. Having examined the needs of families living in residential parks, Eddy described the impact of transience on families:


Feeling intimidated by the legal system

The legal environment is, and is perceived to be, formal and complex. A consistent theme in the consultations for this study was that many felt intimidated by the legal system, including some legal assistance services.33 The LCRC noted that “clients will often delay coming to seek advice generally because of a fear of the system and how it operates”.34 One participant observed:


A service provider noted:
It is not just courts and other legal processes that homeless people can find formal and intimidating, but also legal services. Workers reported that homeless people were less likely to visit legal offices in formal business districts, and can feel intimidated by the premises, the language used and the requirements to provide and complete documentation.37 Homeless people can also have difficulties keeping an appointment to see a lawyer in their office. It is noteworthy that these structural barriers to homeless people accessing legal services are similar to those reported to keep Aboriginal people from accessing legal assistance.38

Low literacy and education

The heavy reliance of the legal system on documentation and the complexity of legal language were noted as barriers to homeless people accessing legal services. This is particularly problematic, given the relatively low levels of literacy and education among homeless people39 and the tendency of people to want to conceal their difficulties in reading or understanding written material. One service provider indicated:


The consultations also indicated that some clients had difficulty understanding legal information and advice given orally: it was not just an issue of literacy, but comprehension.41 Some workers spoke of clients coming from meetings with solicitors to seek clarification about what they had just been told:
Disability, poor health and addiction

Mental health, alcohol and drug issues, dual diagnosis (mental health and alcohol and drug issues), poor physical health and other complex needs are prevalent among the homeless population, particularly among those entrenched in homelessness.43 As discussed in Chapter 3, people with these complex needs experience a range of symptoms that can impair their capacity to identify their legal issues, obtain assistance and to comprehend verbal and written information provided.44 For instance, speaking of poor mental health, Parker et al. suggest:


Some participants in this project spoke of the numbing effect of depression on their capacity to seek assistance. One interviewee said:
Another interviewee commented:
The capacity of some homeless people to address legal issues may also be reduced by intellectual disability, intoxication or acquired brain injury. A manager in an inner-city hostel noted:
Alcohol and other drug dependence raise a number of barriers for homeless people with legal issues. For instance, one interviewee described how the need to satisfy an addiction can override all other priorities:
Once intoxicated, a person’s motivation is generally further reduced:
A group of service providers in regional NSW described the impact of memory loss among their homeless clients with a dual diagnosis, with clients forgetting appointments, court dates and the like.51 One homeless participant with mental health issues talked about the role of alcohol and other drugs in his day-to-day life:
In the public consultations for the first stage of the Law and Justice Foundation’s Access to Justice Program, the comment was made that people who are both drug-dependent and suffering a mental illness often fall through the ‘gaps’ between specialist health services because drug assistance services cannot support people with mental health issues and vice versa.53 People who cannot get support to address their mental health and/or alcohol and drug issues risk remaining isolated from legal support by the symptoms of their illness and dependence.

Lack of awareness of rights

Consultations with homeless people and service providers for this study suggested that many homeless people are not aware of their legal rights. While it could be argued that many in the general population are also unaware of their legal rights, this can be exacerbated for homeless people due to their marginalisation and isolation. A rural service provider observed:


The impact of this as a barrier to justice was described by the VPILCH HPLC:
One interviewee more succinctly said:
A specific example was given in relation to victim’s compensation. Stakeholders commented that homeless people who have been the victim of a crime are often unaware that they may have a right to victim’s compensation, or that some legal assistance services can help them with a victim’s compensation claim.57

Accepting legal problems as ‘the norm’


A concerning theme that arose in discussions about barriers to accessing legal assistance was that many of the difficulties faced by people when homeless were simply accepted as ‘part of life’. This attitude was raised frequently, and in relation to different types of legal issues, including social security, crime and employment.
This ‘normalisation’ acts as a barrier for homeless people to access legal services, as they simply do not see problems they may encounter as legal issues or as a possible infringement of their rights.62

Beliefs about the legal system

In consultations undertaken with homeless people and their advocates in this study, the view was expressed that the legal system could not, or would not, be used in their interest, nor would it find in their favour.63 For instance:


A belief that the legal system cannot or will not assist them (whether accurate or otherwise) was reported to discourage homeless people from accessing legal services, for criminal, civil and/or family law matters. For instance, a number of interviewees were estranged from their partners and children.65 While most indicated that they would like contact with their children, they assumed that, given their current circumstances, they would have little hope of a successful legal outcome, and that consequently there was no point in approaching a legal service. The following discussion with a woman recently arrived from New Zealand illustrates the point. She could not afford the $1400 cost of applying for permanent residency and therefore was not entitled to social security. She had casual work in a factory and was living in an inner-city hostel.
While this woman may have been granted contact with her daughter, she acknowledged that to have some chance of gaining residence of her daughter, she would need to have appropriate accommodation and a means of supporting her child.

A study on domestic violence and homelessness reported a ‘recurring theme’ among participants “of [a] lack of confidence in the ability of the legal system to ensure the safety of women and children” in domestic violence situations.67

It should be noted that, in some cases, people may be correct in their assessment that the legal system cannot assist them in certain situations.

Negative experiences and perceptions of legal processes

Pessimistic views about the law may be a consequence of negative experiences with legal services or authorities in the past, and/or poor outcomes in previous legal matters. For instance, a legal service may not have been able to assist them, they were unhappy with a legal service that was provided (see Chapter 6), or may have had what they perceived to be a poor legal outcome. By way of example, one worker stated:


As suggested here, negative perceptions of legal services such as legal aid or pro bono services can also arise from a stigma that a ‘free’ service is a ‘second rate’ service (see Chapter 6).

Previous experiences and perceptions of police

As will be discussed in Chapter 7, police are a key point of contact between homeless people and the legal system. Street-based homeless people in particular come to the attention of police due to their visibility and occupation of public space.69 Therefore, the types of interaction homeless people have with police can impact upon homeless people’s expectations of the justice system as a whole, and on the actions they take in pursuing their rights.


An Indigenous interviewee described a particular situation, and the impact of this: His caseworker added:
Thus, these types of encounters appear to engender a belief that police and, by association, the legal system work against rather than serve homeless people such as themselves.
Some of the positive interactions between homeless people and police are discussed in Chapter 7.

Not knowing where to go for legal assistance

Related to a lack of awareness of their rights was that people simply did not know where to go when things went wrong. As one participant said:


Reluctance to approach services

Even in situations where a homeless person knows they have a legal problem and is aware of what services are available, they may still be reluctant to access the appropriate service. As Wesley Mission observed:


In keeping with this, a few of the homeless participants in this study commented that they preferred to handle matters themselves:
One homeless participant reported being suspicious about the intentions of the service provider:
A rural service provider said:
Actively avoiding services

Another concern raised in the consultations for this study was that some homeless people actively avoided using support services, unless there was an urgent need to do so. Parents were reported to fear that their children would be removed from their care if authorities discovered they were homeless or facing other crises (e.g. family breakdown, financial hardship, alcohol- and drug-related issues).80 In addition, some young homeless people were reported to fear being placed with DoCS. Among the specific examples given at a roundtable discussion were:

A fear of children being removed from their care is also reported to be one of a number of barriers to seeking help faced by some women escaping domestic violence:


There may be grounds for women to be concerned about the possibility of DoCS involvement following a report to police about domestic violence. While NSW police are not always legally required to report to DoCS about children who are present at a domestic violence situation they attend, as a matter of policy they do so. This is done in the interests of the children’s safety.83

One inner-city outreach worker also noted a concern among his clients about privacy when giving personal details to agencies. He cited examples of people avoiding DOH services out of concern that they would be chased for debts and fines if they provided their name and contact details. Supporting this suspicion are requests on DOH forms for people to allow the department to share their personal details with other agencies.84

PAVS also noted that some marginal residents of caravan parks ‘do not want to be noticed’ for fear of being identified by other agencies (e.g. DoCS regarding their children, Centrelink or Housing regarding unpaid debts, police regarding outstanding warrants). They were suspicious of any offers of support, even from tenancy workers.85



Conclusion


The experiences of homeless people, and the observations of their advocates and service providers in this study, indicate that homeless people face multiple and substantial barriers in the following:
From the evidence gathered in this study, people who are homeless tend to focus on addressing their immediate needs, such as finding safe accommodation, meeting social security requirements and/or caring for their family. Coupled with limited resources, a fear or lack of knowledge of the legal system, a perception that the law would never work in their interests, and limited capacity to address issues (e.g. due to limited literacy or education, mental health issues or addiction), legal issues are likely to remain unaddressed.

Services report that when homeless people finally do contact a legal service (if at all), often the issue has usually already reached crisis point. For example, the eviction is imminent, their benefits have been cut off or their court case is tomorrow.86 One caseworker observed that in some cases it may well be too late to resolve the issue (e.g. the limitation period may have expired) or the issue has become more complex and difficult to address.87

The multiple, urgent and interrelated legal problems homeless people have, together with the barriers they face in addressing these issues, have significant implications for the nature and type of legal service delivery that is appropriate for homeless people in NSW.

The following chapter discusses different forms of legal assistance available in NSW and the features of those services that either hinder or facilitate the provision of legal assistance to homeless people.



Ch 6. Legal assistance services in NSW


The discussion to this point has indicated that homeless people in NSW:
These observations have significant implications for the nature and type of legal assistance which is appropriate for homeless people in this State. Accordingly, this chapter discusses three broad topics:


What is legal assistance?


Legal assistance describes a range of legal services, from the provision of generic legal information and advice, to representation by a legal professional in court. The definitions and descriptions of different types of legal assistance used in this report are given below. We acknowledge that, in practice, it can be difficult to differentiate between these different forms of legal assistance.

Plain language legal information

Plain language legal information is generic material presented in non-legal language about legal issues that people might face. It may be information about specific laws, legal problems or legal processes, or about where to get legal advice or representation. It is usually made available in the form of pamphlets, comics,1 multi-media (e.g. videos, DVDs, audio), by telephone (person-to-person or via recorded information) or on the internet. Legal information may be distributed directly to clients or passed on verbally through support workers. In this report, ‘legal information’ refers only to the plain language legal information described above, not that found in text books, case law and legislation.

Legal advice

Legal advice involves the application of legal information to the individual circumstances a person is facing. Legal advice may be given face-to face, by telephone or, in some cases, by email. An example of legal advice is when a solicitor advises a client about a particular course of action, after she has received a letter of demand to pay a debt.

Initial legal assistance

Initial legal assistance is when a lawyer advocates or negotiates a matter for a client, without having to lodge formal court proceedings or commence litigation. An example of legal assistance is when a solicitor writes a letter on the client’s behalf in response to a demand to pay a debt. The vast majority of legal problems are resolved through initial legal assistance avenues, by direct negotiations or correspondence from a legal professional to the other party or their representative.2

Legal representation

Legal representation covers services provided by legal professionals that go beyond initial legal assistance. These services may include drafting documents (e.g. wills, contracts) and representing a person in a legal matter (e.g. negotiating child residency and contact agreements). Legal representation also includes preparing documents for court appearances (e.g. statements of claim, affidavits) and representing people in court and tribunal processes.



Legal assistance in NSW


The level of legal assistance available to homeless people in NSW depends upon the area of law for which they require assistance, their location, their special needs and/or characteristics (e.g. youth, gender, Aboriginality) and their capacity to overcome the barriers discussed in Chapter 5. This section will discuss the accessibility of different types of legal assistance to homeless people in NSW, and the major legal services providing these forms of assistance. It should be noted that most legal assistance services provide more than one type of assistance (e.g. information and advice, or advice, initial legal assistance and representation). In addition, a great deal of legal information and ‘advice’ may be provided to homeless people by non-legal workers and agencies. Some of these workers have specialist knowledge (e.g. tenancy workers, financial counsellors, government workers). Others are generalist workers (e.g. caseworkers) and support agencies. Legal assistance provided by these groups is discussed in detail in Chapter 7.

Plain language legal information

As a form of legal assistance available to homeless people, plain language legal information has a number of benefits. It may, for little or no cost to the user:


In consultations for this study, a youth service provider stressed the need for information to let his clients know “they can do things legally, without taking the law into their own hands”.3

Legal information is most valuable if it is provided when and where it is pertinent, and in a form that is accessible to clients. One example of the provision of timely legal information that may help prevent homelessness for victims of domestic violence, is when police provide them with information about AVOs, and exclusion orders (see Chapter 4).4

Challenges to homeless people using generic legal information

There are a number of factors that reduce the value of plain language legal information as a form of legal assistance to homeless people. First, the legal information provided may be too general to be applied in an individual case, without interpretation or support.5 This is particularly so for homeless people facing multiple or complex legal issues, or who may have a limited capacity to ‘interpret’ and apply the information to their own situation.

Secondly, accessibility to written legal information by much of this population is limited by poor literacy levels, limited education and lack of access to internet and private telephone services.6 The LCRC observed among its clients:


It should be noted, however, that the LCRC tends to have older clients who, generally speaking, use the internet less than younger people.8 Also of note is that there are several projects sponsored by welfare and commercial organisations that aim to increase the access of disadvantaged people, including homeless people, to free or low-cost internet services.9

Finally, consultations for this study suggest that, at least in the first instance, homeless people may seek advice about legal problems from a range of sources, including friends and families, welfare agencies and other non-legal services.10 The quality of the legal information they receive will vary with the capacity of the support person or organisation to provide the information. The role of non-legal agencies, workers and friends in providing legal information to homeless people is discussed in Chapter 7.

Given the complex needs of homeless people, it is reasonable to conclude that they often need more active support than can be provided by generic written legal information alone to recognise and pursue their legal issues.

Major statewide sources of legal information in NSW include Legal Information Access Centres and Chamber Magistrates and other court staff. LawAccess NSW provides both legal information and advice. These are discussed below.

Legal Information Access Centre (LIAC)

LIAC is run by the State Library of NSW and operates through public libraries throughout NSW. While all public libraries have plain language legal information, 76 libraries (‘public library LIACs’) have additional legal information and staff trained to assist people in accessing legal information. Staff do not provide legal advice.11

LIAC can provide information from published works and/or refer clients to particular legal texts or websites or to other experts (e.g. Legal Aid NSW or CLCs).12 One of the homeless people consulted in the current study spontaneously indicated that he had gone to the library for legal information.13

Given their geographic distribution throughout NSW, libraries are valuable sites for written legal information and assistance. However, LIAC is best suited to library users who have the time, capacity and literacy skills to actively address their legal issue. As mentioned in Chapter 5, homeless people are less likely to have these characteristics and therefore to use LIAC services.

Chamber magistrates and other court staff

Chamber magistrates in NSW local courts are another source of legal information for the community. Chamber magistrates provide a free, non-means tested legal information and assistance service in all full-time local courts, as well as outreach services to more than 50 locations. The service provides:


Chamber magistrates must also remain independent, and are not permitted to provide legal advice or represent people in court.

It would appear from the current study and a previous Foundation study on pathways to legal support15 that chamber magistrates and other court staff are an important point of contact between the court and court users. In the consultations for the current study, staff from one rural court described how some people with poor literacy in their area would ring or call into the court after receiving a letter with the court’s letterhead on it, to ask what the letter was about. The local court Aboriginal Client Service Specialist also told of people stopping him in the street to ask whether their matter was coming up in court in the next few days.16

Challenges to homeless people accessing chamber magistrates

Homeless people, like other disadvantaged people may face some barriers in accessing chamber magistrates. For example, barriers that Aboriginal people are reported to face in accessing chamber magistrates include lack of community awareness of the service, the formality of language used, their location in court houses and lack of access to transport to reach the court house.17 These are similar to the barriers identified in Chapter 5 as facing homeless people accessing legal services.

A court staff member consulted for this project also highlighted the issue of being able to identify a person as homeless. Unless a person self-identifies as homeless, or cannot provide an address for a form, court staff may not be aware that the person has no fixed address.18

LawAccess NSW

LawAccess NSW is a legal information, advice and referral service.19 LawAccess provides legal information by telephone, through LawAccess Online and through LawTalks. LawAccess Online is a web-based search facility that draws together legal information from a range of sources by topic.20 LawTalks can be accessed through the main telephone number at any time, and is a series of pre-recorded legal information sessions on more than 30 topics, including family law, crime, debt, wills, problems with lawyers and information for young people.21

However, LawAccess also has qualified solicitors, including crime and family law specialists, who provide free telephone legal advice to anybody with a legal problem in NSW. LawAccess is of particular interest as a potential link to legal support for people at imminent risk of homelessness, homeless people who have no contact with support agencies, and those who are simply unable to reach legal services, through lack of transport, disability or family responsibilities.

LawAccess has a number of features that increase its accessibility and utility to homeless people, including those isolated from legal and other services. First, callers can ring LawAccess with any legal issue. LawAccess notes that callers often have more than one issue, and the staff will assist the person to identify the most urgent legal issue that needs to be addressed.22 If LawAccess is not the most appropriate service to provide advice, they can ‘warm refer’ callers to appropriate services. That is, they can contact the appropriate legal service, introduce the client and transfer the call directly.23

Secondly, because LawAccess maintains information and databases that are updated with changes to the law, legal processes and legal services, they have the capacity to provide the most up-to-date information, and to make appropriate referrals. For instance, they can transfer a call from a client to a service that has the capacity to assist the client, has the relevant expertise and (where possible) is close to where the client lives. Recognising the limited resources of different services, LawAccess ‘filter’ clients referred to CLCs, referring only those clients who cannot be supported though alternative legal services (e.g. private solicitors, Legal Aid NSW or other government services). Clients will be told if there is no legal support available for their particular issue.24

Thirdly, if callers who require legal advice ring from a public telephone box or do not have a return telephone number, they will be put straight through to a solicitor, rather than having the solicitor call them back at a later time.

As will be discussed in Chapter 7, homeless people may rely on the support of their caseworkers to address legal issues. While LawAccess prefers to speak with the client directly, with the client’s permission they will speak with a caseworker or support worker about the client’s legal issue.

Finally, another significant benefit of LawAccess is that it operates from a single telephone number. As such, it is easier to communicate the contact details to homeless people and to the diverse range of people and agencies that support them (see Chapter 7), increasing the potential for a client to reach appropriate legal support more efficiently.

Barriers to homeless people accessing LawAccess

Given the features of LawAccess described above, LawAccess has the potential to link isolated homeless people in NSW with legal assistance. However, homeless people do face some barriers in accessing and using this service. First, LawAccess was not well known among the homeless people and service providers consulted for this project. In order to be a source of legal assistance and referral for this group, LawAccess would need to increase its profile among those supporting homeless people as well as the community generally. Recognising the need to do this, LawAccess staff attend community events and provide information sessions to workers statewide.25

Other barriers homeless people face in using LawAccess and telephone-based services in general, as identified by people interviewed in this study were:


Thus, while LawAccess is a key part of legal assistance services that may be used by homeless people in NSW, some barriers remain to homeless people using this service.

Community Legal Centres (CLCs)


CLCs are independent, non-profit community organisations that provide free community legal education, information, advice, referrals and, in some cases, legal representation. At a broader level, they also undertake preventative and capacity building work, including community development, strategic litigation, law reform and policy advocacy. CLCs are staffed by paid and voluntary legal, community education and administrative workers. CLCs assist socially and economically disadvantaged people, some of whom may not be eligible for legal aid for the legal problem they face.

There are 38 CLCs in NSW, including 19 CLCs providing generalist legal support in defined geographic areas (e.g. Marrickville CLC, Northern Rivers CLC). Eleven CLCs are in regional or rural areas and 8 are in metropolitan Sydney. In addition, there are 19 CLCs with expertise in particular areas of law (e.g. NSW Consumer Credit Legal Centre, Tenants Union of NSW) or in the legal needs of particular groups (e.g. WLS, Intellectual Disability Rights Service (IDRS)) .29 Recognising that clients may face multiple legal and non-legal issues, CLCs may also refer clients to other legal and non-legal services for assistance, when the issues cannot be addressed by the service itself.30

While no CLCs in NSW specifically target the needs of homeless people, all the CLCs consulted in this study had clients who fall within the broad definition of homelessness outlined in Chapter 1. For example, the Inner City Legal Centre estimates that 10–20% of their ongoing casework relates to the legal needs of homeless people. Indeed, homelessness is one of the factors they consider in the decision whether to take-on a person requesting legal assistance.31 The Northern Rivers CLC also reported supporting homeless clients with a range of other complex needs, including mental health, alcohol and drug issues.32

In discussing CLCs as a source of legal support for homeless people, we have to return to the definition of homelessness. It became very clear in the consultations that many people experiencing homelessness did not see themselves as homeless, even when they fell well within the definition provided in Chapter 1. Those not identifying as homeless included people living temporarily with family and friends, long-term boarding house residents, people in medium-term SAAP accommodation and some people working as prostitutes.33

The term ‘homeless’ is often reserved for clients ‘sleeping rough’. For instance, in 2002–03, the WLS counted only 26 ‘activities’ (services) carried out for women who were described as ‘homeless’. However, if ‘activities’ for this period are counted using the broader Chamberlain and MacKenzie definition of ‘homelessness’, then nearly 3000 ‘activities’ were for ‘homeless’ clients (18% of the total, where accommodation was recorded). The vast majority of this group were women living with family and friends—sometimes described as the ‘hidden homeless’. The remaining homeless women were living in boarding houses, women’s refuges, and a small number in residential parks.34

Thus, while CLCs are an important source of legal assistance to homeless people in NSW, the number of homeless clients currently being assisted by CLCs is not routinely counted and may be underestimated. Accordingly, funding provision is not necessarily made for the level of legal support required by this group of clients. CLCs are now implementing a new national data collection system known as the Community Legal Services Information System. It would be valuable if this system had the capacity for CLCs to record whether clients are ‘homeless’ within the broader Chamberlain and Mackenzie definition.

Barriers to homeless people using CLCs

Given their geographic distribution, local knowledge and specialist skills in delivering legal services to disadvantaged people, CLCs appear well placed to deliver legal services to people who are homeless and at risk of homelessness throughout NSW. However, CLCs are reported to be ‘chronically under-funded’,35 reducing their capacity to provide services, particularly in rural areas.


Limited resources affect the number of services that can be established statewide and, therefore, the distance that people must travel to access face-to-face legal assistance. Insufficient funding can also affect the level of legal support which can be provided by existing CLCs. In a roundtable discussion for this study, a non-legal service provider suggested:
Chronic underfunding may also mean that experienced staff burnout and are not retained by CLCs. The report of the Senate Legal and Constitutional Committee Inquiry into Legal Aid and Access to Justice noted from a submission by Legal Aid NSW:
The decline of funding for legal aid, including CLCs, and the need to redress this was recognised by the Senate Committee.39

Related to this is the CLCs’ reliance on students and other volunteers. Some experienced solicitors do voluntary work in CLCs. However, student volunteers are often relatively inexperienced in both legal practice and in communicating with and recognising the complex needs of homeless clients. With the movement of volunteers through CLCs, the quality and continuity of service provided may be variable. As one CLC observed:


Some non-legal workers consulted for this study, who had referred clients to CLCs, described delays in their clients getting an appointment. One CLC also raised this delay as an issue and noted that some homeless clients had giving up on seeking advice while waiting for the appointment. If people have an urgent matter, which, as highlighted in this report, is often the case with homeless people, the delay in getting appointments with a legal service may mean that assistance will simply come too late.41

Aboriginal and Torres Strait Islander Legal Services

As indicated in Chapter 3, Aboriginal people in NSW are over-represented in the homeless population, particularly among those in SAAP accommodation and those living in improvised dwellings. In addition, Aboriginal people in NSW may move more commonly between homes within their extended family network.42 However, as discussed in Chapter 1, living temporarily with family and friends is not necessarily considered ‘homeless’ in this cultural context.43 Aboriginal people, homeless or otherwise, can access Aboriginal and Torres Strait Islander Legal Services (commonly known in NSW as Aboriginal Legal Services (ALSs)) for legal assistance.

There are six ALSs in NSW, each with a number of offices. ALSs in rural areas also have outreach services to courts throughout their regions. ALSs are staffed by solicitors, field officers and administrative staff. Field officers are usually local Aboriginal people, who, among other tasks, support Aboriginal clients through legal processes.44 This may include picking up people and driving them to court when their matters are on45 and supporting people at court.

ALSs mainly provide assistance in criminal matters. Most ALSs also provide at least initial advice and assistance in some family law matters, including child protection applications (though contested family law matters are usually referred to Legal Aid). The Western Aboriginal Legal Service (WALS) also does some debt recovery, bankruptcy, discrimination claims, consumer claims advice and tenancy advice.46

Challenges facing ALSs in supporting homeless people

A rural ALS was consulted for this study. Some of the challenges the solicitor reported in providing legal support to his clients included:


It should be noted that some of these challenges relate to providing legal services in remote areas and are not particular to ‘homelessness’.

Pro bono services

Pro bono legal services are provided by private solicitors, legal firms and barristers free or at a reduced fee to clients who cannot afford the legal assistance that they need. Services can include legal advice, court representation and other legal work, including drafting documents. It may also include community legal education and legal assistance to non-profit organisations.48 Pro bono services may be provided on a relatively ad hoc basis by individual lawyers or law firms, or in a more coordinated way through the Law Society Pro Bono Scheme, or projects such as the Homeless Persons’ Legal Clinics. To be assisted by the Law Society Pro Bono Scheme:


Limitations of pro bono services

Speaking of pro bono services generally, one service provider in this study noted:


In its submission to the Senate Inquiry into Legal Aid and Access to Justice, Legal Aid NSW recognised the value of properly administered quality pro bono services, but indicated a concern that pro bono work by lawyers tends to reflect individual solicitors’ or firms’ priorities and interests, rather than any formal assessment of legal need in the community.51

There may be greater scope for pro bono resources to more systematically address the legal needs of disadvantaged people when pro bono services are coordinated to address an identified need, and the impact of these services are evaluated against the needs of the clients. Legal Aid NSW suggests that this involves firms engaging in cooperative planning, delivery and evaluation of services with the government and community sector.52 Most of the specialist homeless person’s legal services discussed below are examples of the coordinated delivery of pro bono services.

Specialist homeless person’s legal services and clinics

There are a number of volunteer or pro bono legal services in Sydney specifically established to meet the legal needs of homeless and other disadvantaged people. Most of these services operate on a part-time basis, mainly providing legal advice and initial legal assistance (see Table 6.1). Where appropriate, clinic staff will refer clients to other services, such as Legal Aid NSW. Only Shopfront is permanently staffed with full-time solicitors and other volunteer staff.

Table 6.1: Specialist legal assistance services for homeless people in NSW

Legal Counselling and Referral Centre (LCRC)

The LCRC is one of a number of social services offered by the St John’s Church, Darlinghurst, to homeless and disadvantaged people.

Staffed by volunteer solicitors it runs two legal advice sessions a week. The clinic does some casework but also refers matters to the Inner City Legal Centre. The LCRC has been operating since March 1995, initially as a referral agency only.53 It can provide legal information, advice, assistance and/or referral for criminal, civil and family law matters. It has also established outreach legal services in the Campbelltown area.

Service statistics for 2003 indicate that two-thirds of the LCRC’s 127 clients were male, with most clients aged over 30. Three in four clients were on social security benefits, with nearly 40% on the disability support pension. About 11% of clients were sleeping rough, 13% were living in boarding houses or backpacker hostels and 3% in SAAP accommodation.54

Shopfront Youth Legal Centre

Shopfront (assisting young people aged 25 and under) in Darlinghurst is the only full-time legal service specifically established to meet the legal needs of young homeless people in NSW. Started in 1993 in response to the Burdekin report (see Chapter 1), Shopfront “assist[s] clients to see the legal problem in its wider context and to use a legal crisis as a catalyst for change”.55 Shopfront is staffed by the law firm Freehills and run with the Sydney City Mission and the Salvation Army. Shopfront uses its interagency base to address the issues facing young people in a holistic way.

The bulk of Shopfront’s practice is criminal work, including both summary and indictable matters. One-third of new matters in 2002–03 involved representing clients in court for criminal matters. A further 30% concerned advice on criminal matters. Shopfront also acts for applicants and respondents in AVO applications and some family law and care proceedings (usually where the parents are young adults). In 2002–03, Shopfront dealt with approximately 600 matters on behalf of its clients.56

Pro Bono Clinics at Exodus and Lou’s Place

Law firm Blake Dawson Waldron (BDW) funds and operates pro bono legal clinics at two services for homeless and disadvantaged people in Sydney—the Exodus Foundation (Exodus) in Ashfield, a service predominately used by older male clients, and Lou’s Place, a drop in service for women in Kings Cross. BDW’s solicitors are seconded to these services for six months, for an afternoon (Lou’s Place) or a day (Exodus) a week. Some of the matters require ongoing work that can be taken on by BDW.57

In 2003–04, BDW saw 99 clients at Exodus in 312 visits. The legal matters most commonly dealt with at this clinic in this period were crime (29%), family (20%), government and other debt (20%), housing (16%) and personal injury compensation (10%). Approximately 20% of clinic clients were ‘homeless’ as defined in Chapter 1 and a further 26% were renting public housing. 87% were on social security or had no income.

In 2003–04, BDW saw 49 clients at Lou’s Place in 191 visits. Of the 74 matters dealt with for these clients, family law was the single largest area of law dealt with (28%), followed by crime (12%), AVOs (12%) and personal injury compensation (8%). Eight per cent of the matters concerned debt and 6% housing issues. More than 40% of clients seen at Lou’s Place were staying in refuges or emergency accommodation.

Homeless Person’s Legal Service (HPLS)

In May 2004, the Public Interest Advocacy Centre/Public Interest Law Clearing House NSW (PIAC/PILCH) established the HPLS, with legal clinics in five crisis accommodation and welfare agencies—four in inner-city Sydney and one in Parramatta. At least two lawyers visit each of the five services weekly. The HPLS is staffed on a pro bono basis by lawyers from Henry Davis York, Ebsworth & Ebsworth, Gilbert + Tobin, Clayton Utz, Allens Arthur Robinson and Minter Ellison. The clinics are staffed by a number of PIAC/PILCH member law firms and are modelled on similar services in Victoria and Queensland.

In its first six months of operation, the HPLS assisted 189 clients with 267 legal problems. In this time, 10% of the problems dealt with were criminal law issues, 9% were housing/tenancy issues, 8% were credit/debt matters and a further 8% were family law matters. Seven per cent of matters were fine-related, 6% were civil law matters (including commercial and tax issues) and 5% were each of personal injury matters and social security issues. In this period, 27% of the HPLS’s clients were in crisis accommodation, 16% were sleeping rough or squatting, 12% were in a boarding house or private hotel/backpacker hostel and 4% were living with family and friends.58 Eighty per cent of the clients were male and 60% (of those who stated their age) were between 36 and 55 years old.

The HPLS provides legal assistance for civil, administrative and some summary criminal legal matters.

The types of legal matters dealt with by these specialist services vary. For instance, the bulk of Shopfront’s practice is crime, with one-third of new matters in 2002–03 involving their representing young people in court for criminal matters. In contrast, the work of the HPLS has been described as follows:


The types of matters dealt with are likely to reflect a range of influences. These include the needs of the clients or the expertise of the legal staff (e.g. if they are civil law specialists, not family lawyers) and the types of legal assistance already available. For instance, specialist services may not take on a matter for which a client could get a grant of legal aid.

Homeless person’s legal services have been specifically designed to meet the needs of this client group. By way of example, PIAC describes the model on which the HPLS are based in the following terms:


Thus, these services address the particular needs of homeless people by providing face-to-face legal assistance in or near SAAP or other welfare services accessed by this client group (allowing longer appointment times) and by considering the legal issues together with the other issues faced by the client. Services and their lawyers also develop expertise in providing assistance to people with complex needs, and in dealing with the types of legal problems that they commonly face.

Armed with the expertise about the particular legal issues facing homeless people, some specialist homeless person’s legal services also play a lobbying role in advocating for the rights of homeless people. This involves lobbying government decision-makers to implement certain human rights as defined in international law into domestic law, as well as lobbying for change to existing Australian law that may adversely or disproportionately affect homeless people.

The coordinator of the NSW HPLS indicated that, given the high level of fear and lack of trust homeless people have of the legal system, another of the lawyers’ tasks is to engage in a ‘legal dialogue’ with clients, to address their fears and misconceptions about legal processes. This may occur informally, while solicitors are at the host welfare agencies, and may be before clients are given any formal legal advice.61

A list of features that make legal services more accessible to homeless people is provided later in this chapter. These specialist services demonstrate many of these features.

Limitations of specialist homeless person’s legal services and clinics

While presenting a valuable model of legal service delivery to homeless people, specialist homeless person’s legal clinics tend to be relatively small-scale services, and may not be able to deal with all the legal matters facing a client. Clients may still need to be referred elsewhere.

Further, most of the specialist homeless person’s services in NSW are in the inner-city areas of Sydney, where there are relatively high rates of homelessness, appropriate host agencies and close proximity to law firms with the capacity to provide pro bono assistance on this scale. Hence, due to the size and location of these specialist clinics and services, there are groups of homeless people who are unlikely to use these services. These include:


This is not to imply that it is the responsibility of pro bono services to address the needs of those homeless people who cannot access these specialist services. As suggested by some commentators, pro bono services should not be seen as an alternative to properly funded legal aid services:
Finally, while pro bono legal services were appreciated, some clients and workers also felt that some of the lawyers placed in legal clinics were junior and/or ‘inexperienced’ in the types of legal issues faced by homeless clients, and in communicating with these clients.65

Legal Aid Commission of NSW

The Legal Aid Commission of NSW (also known as Legal Aid NSW) provides legal representation, legal advice, legal information services and community education to disadvantaged people across NSW. Services are provided through a Sydney head office, 21 regional offices and private practitioners.66 While the Commission does not collate information specifically on the housing status of their clients, consultations for this study suggest that Legal Aid NSW is a major source of legal assistance, advice and particularly legal representation for homeless people in this State.

This section will focus particularly on the role of Legal Aid NSW in providing legal representation to homeless clients. Representation may be provided through two avenues:


These avenues of gaining legal representation and their accessibility to homeless people are discussed below.

Grants of legal aid


A grant of legal aid is when Legal Aid NSW pays a private lawyer or provides a Legal Aid lawyer to help a person with their case. Basically, Legal Aid NSW uses four tests to decide whether a person should be granted legal aid:

Jurisdiction test: Looks at the type of case and the area of law of the matter for which aid is sought and whether it falls within Legal Aid NSW guidelines.

Merit test: Looks at whether the case will succeed and other issues.

Means test: Looks at the income and assets of the person applying for legal aid and usually also the means of any persons providing financial support to them (these are called ‘financially associated persons’)

Availability of funds test: Legal aid will only be granted if the Commission determines that sufficient funds are available.69

Table 6.2 provides information about the types of matters for which legal aid assistance may be granted. It indicates that legal aid is generally available for criminal matters (mainly through the duty lawyer scheme), family law matters relating to children (divorce in certain circumstances and some property matters), and a range of Commonwealth and State civil law matters, including social security, veteran’s pensions, migration, consumer protection, discrimination, civil liberties and cases where there is a likelihood that the person will lose their home.

To be eligible for a grant of legal aid in most personal injury, employment law, small debt (less than $3000) and guardianship matters, clients need to meet the criteria for “an unusual or special disadvantage”. An applicant at special disadvantage is defined as “a child; or a person having substantial difficulty in dealing with the legal system by reason of a substantial psychiatric condition, developmental disability, intellectual impairment, or physical disability”.70 Thus, homelessness is not of itself an “unusual or special disadvantage” by this definition.

In earlier consultations for the Foundation’s Access to Justice and Legal Need research program, Legal Aid NSW reported that there were areas of law where there is a lot of demand for assistance, which it cannot meet either because of Commonwealth restrictions on its funding or because of resource limitations. These areas of law included migration law (particularly refugee matters), employment, motor vehicle accident and property dispute matters and small debts under $3000, particularly arising from credit card payments, utilities debts, mobile and other telephone services.71

Table 6.2: Availability of legal aid assistance in NSW by type of legal matter

Type of matter Availability of NSW legal aid assistance

Merit and means tests apply below unless otherwise stated

CIVIL

Personal Injury: Available where questions of civil liberties are raised, or for people at a special disadvantage72 in exceptional circumstances.

Debt: Only available where the size of the claim is $3000 or more, unless proceedings are taken by or for the benefit of applicants at a special disadvantage in exceptional circumstances.

Tenancy: Not available for applications to determine fair rental where no point of law is involved.

Employment: Available to applicants at a special disadvantage in limited circumstances.

Discrimination: Available in all State law matters, and in Commonwealth law matters where there are strong prospects of substantial public benefit.

Police Practices: Only available in matters involving breach of civil liberties.

Other civil: Available under State law in matters where there is a likelihood that the person will lose their home as a direct result of proceedings; in civil liberties matters; and in certain consumer protection matters.

Guardianship and Available for proceedings in the Guardianship Tribunal only where applicants are at a special disadvantage (merit and means tests do not apply).

administration:

Mental health: Available in magistrates’ inquiries under the Mental Health Act 1990 (NSW); most proceedings before the Mental Health Review Tribunal; representation of forensic patients; Guardianship Act 1987 (NSW) matters and Protected Estates Act 1983 (NSW) matters. In some instances, merit test and means test do not apply.

Administrative Appeals Representation available if the applicant may incriminate himself or herself; the case is complicated; the applicant cannot adequately prepare or present the case without legal Tribunal, including assistance; or the appeal raises important or complex questions of law.

social security matters: Legal aid may be granted to obtain instructions and necessary reports, and prepare submissions for appeals to Administrative Appeals Tribunal if: the case concerns an overpayment over $5000 by Centrelink; the applicant is at significant risk of prosecution; the applicant cannot afford to pay for medical reports; the appeal is about the health of the applicant or of someone for whom the applicant has parental responsibility; the applicant, because of a disability or disadvantage, cannot adequately prepare or present the case without legal assistance; the appeal raises important or complex questions of law.

CRIMINAL: Available for most criminal matters commenced by a police charge: committal proceedings, Drug Court matters (not subject to means test) and applications for an ADVO in most circumstances. Merit test does not apply to criminal law matters (except appeals and Supreme Court bail applications.) Means test does not apply in first appearance bail applications.

FAMILY

Family law and de Available in most areas of family law, including parenting plans and orders, separate representation of children (merit test does not apply), other orders relating to children and facto relationships: injunctions relating to family violence.

Children: Available in children’s criminal matters, including proceedings in the Children’s Court (merit and means tests do not apply), all committal proceedings, and children’s care matters.

Source: Legal Aid website, particularly section on Legal Aid policies: <http://www.legalaid.nsw.gov.au/asp/index.asp?pgid=242> (accessed July 2004).

Barriers to homeless people accessing grants of legal aid

A number of the homeless people interviewed for this study spoke about the difficulties they had experienced in accessing grants of legal aid. One interviewee who had recently been released from prison and was living in supported accommodation wanted to address discrepancies in the child support he was paying. However, he found he was ineligible for a grant of legal aid under the means test. He stated:


A community-based worker noted:
In a submission to the Foundation early in the Access to Justice and Legal Need research program, the Law Society of NSW indicated:
A number of the homeless participants we consulted for this project had been granted legal aid for various matters. On the whole, these people appreciated both the support they were given and the challenges facing the lawyers assisting them. For example:
To be granted legal aid, homeless (and other) people need to meet a range of criteria, relating to the type and merit of their matter, their capacity to pay and whether or not they face any ‘unusual or special disadvantage’ that would increase their need for legal assistance. While homelessness is not, of itself, an ‘unusual or special disadvantage’, some homeless people may meet the criteria for this classification due to their other complex needs (e.g. substantial psychiatric condition, intellectual impairment, or youth).

Criminal and family law duty lawyer schemes

A number of the homeless people interviewed had used Legal Aid duty lawyer services.77 Duty lawyers are available at 157 local courts throughout NSW to represent clients in criminal cases.78 Clients may be directed to the duty lawyer on the day of their matter by a support worker or a court officer, or they may seek out the duty lawyer themselves. According to Legal Aid NSW, most of their contact with street-based homeless clients and some people who live in boarding houses is through this service, when people come to court on the first day that their matter is listed. Initial contact with homeless clients may also occur when the clients are in police custody at the court.79 For some of the people interviewed in this study, duty lawyers provided the only legal assistance they had received.

Family law duty lawyer services are also available in some family courts and federal magistrates courts to assist clients on list days. The scheme currently operates in the Federal Magistrates Court and Family Courts at Sydney, Parramatta and Newcastle, and will be expanded in 2005 to include four regional centres (Dubbo, Wollongong, Lismore and Coffs Harbour).80 Family law duty solicitors provide legal advice, assist in negotiating settlements, appear in court to obtain adjournments and other orders, and deal with urgent applications on behalf of self-represented litigants and clients who have not been aware of or able to access legal aid assistance prior to coming to court.

Barriers to using the duty lawyer schemes

In a consultation with Criminal Law Division of Legal Aid NSW, a number of challenges faced by duty lawyers in addressing the multiple legal and other needs of homeless clients were raised. First, duty lawyers have a high volume of clients, particularly on list days. This limits the amount of time they have to spend with each client. This is problematic for homeless clients, who often present with multi-layered legal and other problems, in addition to the criminal or family law issue they are facing in court that day. Given this workload, duty solicitors necessarily have to focus on the legal matter that the client is in court for that day, with little or no opportunity to identify or address other legal issues that may be contributing to a client’s homelessness. Furthermore, there is little opportunity to link homeless clients to support for their non-legal needs, which often affect their legal issue.81

Secondly, given the prevalence of mental health and other disorders among homeless people, duty lawyers need advanced communication skills to take comprehensive instructions from these clients. It was also reported that because it can take a long time to take instructions from these clients, their matters may be deferred until later on in the day when the solicitor has more time to assist them. This is reported to be frustrating for clients, some of whom will simply leave, rather than waiting all day until they can see the solicitor and have their matter heard.82

Finally, homeless people and workers consulted in this study reported having to instruct different solicitors each time they came to court.


One worker described a client who had had a different legal aid solicitor on each of the five occasions he went to court. Furthermore, “each time, the solicitor was unprepared”, only being briefed by the client immediately before entering court. Based on her long experience working with ex-prisoners, she believed that “people are going to jail because of the process”.84

Legal Aid NSW is a key legal assistance service to homeless and other disadvantaged people in NSW. However, faced with the types of barriers described above, some clients become cynical about the level of service they can expect from Legal Aid:


A major factor affecting the level of service that Legal Aid NSW can provide is funding. Observations made in this study indicated that the demands for legal aid services were greater than its resource capacity.86 Highlighting the vital role of legal aid, one worker noted:
In its submission to the Senate Inquiry into Legal Aid and Access to Justice, Legal Aid NSW directly linked the need for increased funding to the complex needs of their client groups. It recommended as follows:
Issues related to the decline in real terms of public funding for legal aid were raised in a keynote address by Justice Sackville to a Foundation Access to Justice and Legal Needs workshop, together with submissions to the Foundation and reported in the first stage of the Access to Justice and Legal Needs research program.89


Features of accessible legal assistance services


A major focus of this project was on the attributes of legal assistance services that increase accessibility for homeless people. These can be summarised as:
Below is a discussion of each of these features and how they may enhance the delivery of legal services for homeless people.

Accessible location of services/outreach services

The coordinator of the VPILCH HPLS argues:


The specialist homeless person’s legal services and clinics in NSW are located in, or have very close links with, generalist welfare services. Administrative data provided by the existing homeless person’s legal services indicate that homeless clients will access these legal services in these locations.92 Issues related to the co-location of legal and other services are discussed in Chapter 7.

However, the needs of homeless people who do not or cannot access homeless person’s services must also be considered. Legal Aid NSW, CLCs, the Chamber Magistrates Service and LawAccess all have a role in reaching homeless and other disadvantaged people statewide. CLCs such as the WLS conduct outreach to health clinics in disadvantaged areas of Sydney as well as outreach in rural areas.93 Legal Aid NSW also provides a statewide outreach program of legal advice and education to neighbourhood centres, court houses, and some Aboriginal legal services.94 In 2004, the LCRC started providing a legal clinic through two Community Technology Centres in Western Sydney.95 Given the numbers of homeless people living with family and friends, in boarding houses and caravan parks around the State, the value of providing legal assistance to homeless people in places that they can comfortably access cannot be underestimated.

Less formality


Some service providers interviewed for this project noted the need for legal services to be ‘less formal’, so that homeless people are not intimidated and deterred from using these services.97 To this end, a number of legal services for different disadvantaged clients (e.g. homeless people, women, Aboriginal people) aim to provide a less formal atmosphere, in areas and/or services their client groups already visit. For example, the Violence Prevention Service (VPS) in Walgett is a legal and support service for local Aboriginal women, which is provided in a less formal atmosphere. The VPS is under the auspices of the WLS, and staffed by solicitors and court support workers. While the service does not specifically target the homeless, it serves a group of women who are vulnerable to homelessness—that is, women living with, and/or escaping from domestic violence.

One feature of the VPS is that clients can access the service for assistance other than legal advice. For example, the VPS is also an agent for Chrisco98 and The Smith Family. Women can also simply come in for a chat and a cup of tea. This latter feature is considered particularly important by the service, for women who may be reticent to approach, or be seen to approach, a legal service. As the manager stated:


Time to see clients

A number of legal service providers indicated in consultations for this study that homeless clients with complex needs require longer appointment times with their lawyer. They need time to tell their stories at their own pace and for the lawyer to talk them through their legal options. The LCRC observed:


The need for more time to spend with clients was also raised as an issue for Legal Aid duty lawyers and for ALS solicitors, who represent a list of clients on a court day.101

Lawyers with good communication skills

Consultations for this study also suggested that lawyers working with homeless clients require both high-level communication skills and an appreciation of the complex needs of their clients. One SAAP worker suggested that lawyers need to be straight forward with clients and to avoid patronising tones.102 Lawyers also need to be able to provide advice in language the clients can understand.


Thus, the skill of a lawyer is not just in communicating with clients, but in appreciating the clients other needs and limitations.
Continuity of service

Together with legal staff skilled in communication is the need for continuity of legal staff—where a client sees one solicitor on an ongoing basis. This issue was raised in the Burdekin Report and, as consultations indicated, remains a need today.105 The impact of having a different solicitor each time the client went to court was noted in particular, in relation to the duty lawyer scheme for criminal matters. Recognising the need for continuity of staff, the pro bono homeless person’s legal services second solicitors to the clinics for six-month blocks of time.

Provision of timely advice

A number of participants in this study have indicated that, in many cases, homeless people may not seek assistance for a legal issue until their matters are at crisis point (if at all).106 When legal advice is sought, action is often required promptly to avoid harsh consequences or compounding problems. Legal services for homeless people need the capacity to respond accordingly.107 However, making legal services more accessible to begin with may also encourage clients to access the service before issues compound. Early intervention is discussed in Chapter 7.

A legal case management approach

In consultations for this study, an experienced solicitor working with homeless youth noted: “because of their chaotic lifestyle [homeless people] need an intense legal case management strategy which is client based rather than matter based” (emphasis added).108 Legal case management involves considering all the legal issues facing one particular person and providing a coordinated legal response to those needs. However, based on consultations for this study, the reality is that legal service provision to disadvantaged people in NSW, particularly at the stage of legal assistance and representation, tends to be ‘siloed’ by matter type. For instance, a Legal Aid duty lawyer will assist with a person’s criminal matter; a grant of legal aid may be provided to a private solicitor for a family court matter; a tenancy advice service may support the client with a housing issue and their debt may remain unaddressed. Not only is a person’s legal assistance drawn from multiple agencies (or different sections of the same agency), it appears that often there is no communication between, or coordination of, the services provided.

Given that homeless people’s problems tends to involve multiple and often interrelated legal and other issues, their needs may not be best served by such a fragmented system. Furthermore, considering the barriers they face in seeking assistance for these problems, ideally contact with a legal assistance service for any one of these issues should lead to assistance for their other legal needs.

Another legal case management issue is that homeless clients may also require ongoing support. This is the type of support provided by Shopfront. As its Principal Solicitor remarked:


The development of individual case plans for homeless clients may require increased communication and coordination between legal agencies about the needs of individual clients.

Holistic service delivery: coordinating legal and other needs

As discussed above, homeless people and their service providers may benefit from a coordinated approach to legal assistance. However, given their complex lives, homeless people may also benefit from having their legal and other needs addressed in an integrated and holistic manner. As the IDRS noted:


In its submission to the Foundation during its public consultations in the early stages of the Access to Justice and Legal Need research program, Legal Aid NSW noted:
While the individual needs of homeless people vary considerably, we found that, generally, this group of people has compounding legal and social issues. Some people will need intensive support for a short time (e.g. to clear debt, find stable accommodation, separate from a partner and/or gain employment), while others, particularly those with disabilities may require longer term support to manage their lives (e.g. to maintain a tenancy, receive alcohol and drug treatment). It would seem from the views expressed by participants in this study that the overall outcome both legally and socially may be enhanced by coordination between legal and other support services. Hence, ‘one-stop shop’ type models, where people can be assisted with different legal problems, as well as with access to crisis accommodation, Centrelink, health and other services, may best meet the needs of homeless people. The role of non-legal services in supporting homeless people through legal services is discussed further in Chapter 7.

Empowering the client

As described in Chapter 1, services such as the HPLS place their work within a ‘rights-based approach’. In terms of legal service delivery, Goldie described this approach as one that places “homeless people at the centre of the processes that develop solutions and in control of decision-making that affects them”.112 With an emphasis on capacity building and skills transfer, the National Association of Community Legal Centres also suggests the participation of community members in the management of legal services and making the lawyer–client ‘exchange’ an empowering one for the client.113



Summary


Legal assistance may take the form of plain language legal information, legal advice, initial legal assistance (such as drafting a letter in response to a claim) and representation in a court or tribunal. In NSW, legal assistance is provided to homeless people by a number of different agencies.

It has been argued in this chapter that Legal Aid NSW, CLCs and ALSs are the primary legal service providers to homeless people throughout NSW, even though legal service provision to homeless people (as defined in this report) by these agencies is not separately identified or specifically resourced. LawAccess also appears to have a major role in providing legal assistance to this client group, and in linking isolated homeless people to other legal services.

In addition to these generalist agencies are the specialist legal services and clinics for homeless people: the LCRC, Shopfront, the legal clinics at Lou’s Place and Exodus and the PIAC/PILCH HPLS. The model offered by specialist homeless person’s legal clinics specifically addresses barriers faced by homeless people in accessing legal services (see list of features below). However, most of these services are pro bono services, which are most viable in city locations where there are high rates of homelessness and where there are law firms with the pro bono capacity to service these clinics. For these reasons, specialist services are best examined for the model of legal service delivery they provide, rather than as a primary source of legal support to homeless people in NSW.

Given the particular legal needs of homeless people and the barriers they face in seeking assistance for those matters, it appears that homeless people benefit from legal services that:


Homeless people also benefit from legal assistance provided as soon as possible after the legal issue has arisen and before it has reached crisis point and affected other areas of their lives. Scope for ‘early intervention’ is further discussed in Chapter 7.

A final but important point is that, at present, legal service delivery in NSW tends to reflect the separate jurisdictions of the courts and tribunals, and be ‘siloed’ by the type of legal matter. Thus, one person may see a pro bono service about a debt, get a grant of legal aid for a family law issue and see a Legal Aid duty lawyer for a criminal matter. This partitioning of legal support contrasts to the experience of homeless people, where legal (and social) issues are often intertwined. Recognising these multiple and related needs, we now turn to the key role of community agencies in linking homeless people with legal assistance, and supporting them through the legal process.



Ch 7. Assistance by non-legal agencies



The current and other studies indicate that homeless people are more likely to seek legal assistance from people or services that they are familiar with and already see in their day-to-day life.2 There are an array of agencies and organisations that specifically assist homeless people, providing food, shelter, medical attention and drug and alcohol treatment. Some of these organisations also provide advocacy, legal information, advice and referral services. There are also many general services accessed by people while homeless (e.g. health services, schools, community centres).

In the current study, nearly half of the homeless participants said that they would go to or had gone to a legal service (usually Legal Aid) if and when they had a legal problem.3 However, as will be argued in this chapter, many homeless people also turn, at least initially, to non-legal services or workers for advice if facing a legal issue.

This chapter looks at the role that non-legal services play in assisting homeless people with their legal problems or in linking them with legal support. It will examine:



Non-legal services accessed by homeless people


The types of services and support networks used by homeless people may differ considerably, depending upon their location, needs, demographic characteristics and how long they have been homeless. For example, Chamberlain and Mackenzie and others report that people at risk of homelessness tend to be in contact with and/or supported by a range of people and agencies: family members, friends, schools, doctors, community health workers, GPs, youth workers, tenancy workers, welfare workers, domestic violence workers, refuge staff, police and housing workers and Centrelink staff. Once people become entrenched in homelessness, their support networks may change. People may lose contact with family, leave school or move away from the local community networks that previously supported them. They may have more contact with police and SAAP services, and maintain contact with Centrelink.4 These services are considered in this chapter as possible points of intervention for legal support or referral to legal support.

In their work on pathways to homelessness, Chamberlain and Mackenzie concluded that early intervention, that is, providing assistance to people before or as they first become homeless, is easier and is more likely to result in better outcomes. As they observe: “once people lose their home, their problems always get worse”.5 The value of early intervention was also stressed as a key message arising out of the 2003 Beyond the Divide national conference on homelessness.6

Since the mid-90s there has been increasing emphasis by governments on ‘early intervention’ to reduce homelessness. Two major early intervention programs have attracted Commonwealth and State funding:7 the FHPP and the Reconnect program.8 In an interim evaluation report, the FHPP identified so-called ‘first to know’ agencies:


Thus, there appears to be an increasing focus on early intervention and the range of people and agencies that may be in a position to provide a point of intervention or referral to people as they become homeless.

In this chapter, consideration is not only given to possible sites for early legal intervention, but also to those services that reach people already entrenched in different forms of homelessness. Table 7.1 provides a summary of the types of non-legal support services identified in this study as being accessed by people who are homeless across different circumstances. Services accessed have been divided into those that people at risk of or entering homelessness tend to be in contact with and those that people entrenched in homelessness are more likely to access.

Table 7.1: Support and services accessed by homeless people

Potential links to people at risk of or entering homelessnessPotential links to people entrenched in homelessness
Young peopleFamily and friendsOutreach services
SchoolsSAAP and other homeless
Local youth servicesperson’s services
Kids Help LinePolice
Adults – homelessFamily and friendsCentrelink
through housing crisisTenancy workersCourt/court support
CentrelinkHealth services, including:
Early childhood services/schools -mental health services
Neighbourhood centres -alcohol and drug services
Telephone services (e.g. Lifeline) -GPs.
Adults – homelessAs above; also:
through familyDomestic violence support workers
breakdownSAAP services (e.g. refuges)
Community health services/GPs
Counselling services
(e.g. Relationships Australia)
Court
Source: Drawn from consultations and relevant literature.

Note that Table 7.1 is only indicative. It provides a framework for discussing the various support services accessed by people experiencing different levels of homelessness, rather than an exhaustive list of support people and agencies. Furthermore, there will be considerable variation in the services accessed by different people at different stages of homelessness. For instance, some people will access SAAP services as they become homeless (e.g. a woman’s refuge). Others who are entrenched in homelessness might be supported by or living with family and friends.

These possible points of intervention for legal assistance are discussed below. Some services, particularly those that are not specific to homeless people, may only be potential sites for referring homeless people to legal advice (e.g. with a referral telephone number). Others, such as SAAP services, may provide more comprehensive support. However, all are relevant in some way to helping homeless people address their legal needs.

Family and friends


Although some homeless people are estranged from family members, for many others, family and friends are a key source of support.
Not only are a sizable proportion of the homeless in NSW staying temporarily with family and friends (see Chapter 3), but family and friends are also reported to be a primary source of support for victims of domestic violence and young people, particularly in the early ‘in and out’ stage of homelessness.12 This is consistent with a study by Dimopoulas et al. on service provision to people experiencing family violence, which reported: “trusted friends and close family members were often a first point of contact for women [in family violence situations] seeking support”.13

However, while family and friends may be a key source of support, it cannot be assumed that they are any better informed about legal processes or services than the homeless people they are supporting. They may be best reached by increasing general community awareness of legal assistance services and sites for legal information.

Schools

In 2001, it was estimated that 42% of homeless youth (aged 12–18 years) in NSW were still at school or TAFE.14 Furthermore, a nationwide study of homelessness among school students also found that 37% of homeless students had been homeless for six months or more.15 The following story illustrates the situation of young homeless school students.


Thus, schools and school counsellors in particular are sites for early intervention to young people (and potentially their families) as they become homeless.17 Chamberlain and MacKenzie state:
Successful intervention is harder to achieve once young people become chronically homeless, and the pathways to providing legal support change. Young people in this situation are more likely to be in contact with police, government agencies and youth and other SAAP services.

Health and community services

General practitioners, alcohol and drug services, mental health services, early childhood centres, neighbourhood centres and generic welfare services may all be accessed by people facing or experiencing homelessness.19 For example, one interviewee who was not in contact with a SAAP service said:


A community project coordinator, spoke of his role as a link to other services:
Of note is an increasing focus among health services, particularly in inner-city Sydney on conducting outreach to homeless people in the area, and on linking these initiatives with related services (e.g. Centrelink).22 While it is not appropriate or feasible to expect health and other workers to take on the task of ‘legal assistance’ or case management beyond their usual role, there may be benefits to homeless clients if there is scope for referral to local legal services or access to legal outreach from these sites.

Telephone counselling services

Another potential point of contact for homeless people are telephone-based counselling services, such as Lifeline, Relationships Australia, Parent’s line and Kids Help Line. While homeless people face restricted access to internet and telephone services, data from Kids Help Line indicate that some young people facing homelessness do use internet and telephone support services.23


In 2003, Kids Help Line answered nearly 193 500 calls from people 18 years and under in NSW, 45% of whom were from rural areas. Calls most commonly concerned family relationships (16% of all calls), but 4% of calls concerned leaving home or homelessness.25 The latter group called about issues such as the legal age at which they could leave home, and how to access social security and employment.26

Information websites

As reported in Chapter 3, more than one-third of the homeless people in NSW are aged between 12 and 24 years. While a proportion of homeless young people will not have access to or the capacity to use the internet,27 websites accessed by homeless young people still may be considered as potential avenues to legal information.28 Some of the limitations of web-based information services for homeless people have already been discussed in Chapter 6.

Tenancy and housing workers

People who become homeless after losing public housing or private rental accommodation29 may be in contact with housing workers and tenancy advice and advocacy services (TAAS). In their study of pathways to homelessness, Chamberlain and Mackenzie observed:


TAAS are independent services providing advice and advocacy in dealing with housing issues. They also issue fact sheets and other publications to tenants and assist with the preparation of submissions to the CTTT.31 Most are responsible for geographical areas, while others are specialist statewide services such as PAVS, which supports people in residential parks.32

Residential park owners

Residential (caravan) park owners are another link to support for residents of their parks. A review of family support programs being run in caravan parks reported:


Thus, on the basis of this observation, park owners may have a role in allowing and indeed facilitating the access of support services to residents of their parks. This is particularly important if residential parks are located away from support services and residents lack access to transport.

Consumer and advocacy bodies

The consultations undertaken for this study indicate that consumer and advocacy groups are another important source of support to homeless people. Relevant groups include BLAG, Homelessness NSW/ACT, Youth Accommodation Association and Shelter NSW. Advocacy services such as PAVS also set up consumer networks among their clients (e.g. within residential parks).

Other groups with members who experience homelessness include the Community Restorative Centre (CRC), Justice Support (supporting prisoners, their families and friends), Sex Worker Outreach Project, NSW Users and Aids Association and The Gender Centre (supporting transgender people). CRC workers, for example, assist people leaving prison to “find housing, address debt, return to work, deal with health issues, and develop the skills they need to live independently”.34 One homeless participant commented:


Court support schemes

Court support workers are available in some NSW courts to assist people affected by the court system, including offenders, families of participants and witnesses. Broadly speaking, there are two types of court support schemes: specialist and generalist.

The Women’s Domestic Violence Court Assistance Scheme (WDVCAS), administered by Legal Aid NSW, is a specialist court support scheme. There are 33 WDVCASs operating at 55 local courts throughout NSW. WDVCASs provide women and their children with support, advocacy, referral and information and facilitate their access to appropriate legal representation. They assist women to obtain legal protection from domestic violence and obtain assistance for their other needs such as finding housing and obtaining social security.36

Generalist court support workers are generally voluntary, not necessarily legally trained and may work for non-legal agencies, including welfare organisations (e.g. Salvation Army) and specialist support groups37 (e.g. CRC).38 To provide an example, CRC provides a network of ‘court support’ volunteers in local courts throughout metropolitan Sydney and the Family Court at Parramatta. The court support workers are trained to provide information, referral to Legal Aid NSW, and personal support, on a confidential basis.

Centrelink

Centrelink is the Commonwealth agency that administers social security payments in Australia. As such, Centrelink is a key point of contact with homeless people, especially those who have little or no contact with SAAP or other services.39

There is some evidence that Centrelink may be the only point of contact that some homeless people have with formal support agencies or government bureaucracy.40 For example, a project examining the needs of families in caravan parks found that “families had little knowledge of and were not accessing services, apart from meeting immediate needs, for example Centrelink”.41 Mackenzie and Chamberlain identify Centrelink as an important site of early intervention for people at risk of homelessness through housing crisis (see Chapter 3), because they are usually in receipt of a government pension, even when they are isolated from other services.42 Finally, Dimopoulas et al. noted Centrelink as “a significant source of referrals to services which provide assistance to those experiencing family violence”.43 In this context it is notable that Centrelink describes itself as “an entry point or ‘gateway’ for customers to a wide range of other services in the community”.44 This may be particularly true of rural areas, where other support services are in short supply.


Many of the homeless people we consulted reported mixed success in dealing with Centrelink customer service officers (see Chapter 8). However, Centrelink also employ a range of specialist support officers (e.g. social workers, Indigenous specialist officers, and specialist Youth Servicing Units).46 One respondent who was supported by a Centrelink social worker found this assistance useful.47 Others indicated that they had been assisted by Centrelink officers who did outreach to the SAAP services they used.48

Among other duties, Centrelink social workers “provide counselling, support and referral services to Centrelink customers who are experiencing major changes in their lives or a crisis such as family breakdown or domestic and family violence”.49 As such, these workers would appear well placed to assist homeless clients in addressing their issues with Centrelink in particular, as well as to appropriately refer homeless clients to legal support services. However, the ease or otherwise of accessing these specialist workers is not explored in this study.

While a number of participants reported problems dealing with social security issues, Centrelink could be further explored as a point of referral to legal services for people facing homelessness, who are otherwise out of touch with support services.

Recognising that only a proportion of Centrelink clients will access specialist workers, the Centrelink office could also be considered as a potential site for legal information, making available at least the telephone number for LawAccess and/or local legal advice services. Another option, which to our knowledge has not been explored, might be to provide a ‘telephone booth’ with direct access to LawAccess and/or other relevant advice services in Centrelink waiting areas. It should be noted that the capacity of Centrelink to assist clients in a proactive way may be more limited when clients are supported by Centrelink agents rather than offices (e.g. in remote locations).

Law enforcement officers

Police are usually the first point of contact homeless people have with ‘the law’ if they are charged with an offence, if they are the victim of a crime, or if they are asked to move on in public space.50 Police are also often called to deal with people who are violent or exhibiting other difficult behaviour arising from mental health or alcohol and other drug issues.51 Transit police and local council enforcement officers may also interact with homeless people in similar ways during the course of their duties. Finally, police may be a key source of support in domestic violence situations, significant as family breakdown is a common pathway to homelessness.52 Thus, police officers in particular have multiple roles in dealing with homeless people: charging and arresting people and providing protection as well as information, advice and referral.

The data collected for the current study indicate that people entrenched in homelessness frequently interact with police, and use police as a source of information about the legal process. One participant who had worked as a prostitute noted:


Another participant also reported seeking advice from the police:
Another said:
However, the consultations also revealed a complex relationship between police and homeless people, where police are viewed and experienced as both adversaries and as protectors.
Some homeless participants in this study reported negative interactions with police, which, in contrast to those quoted above, acted as a barrier to them pursuing legal issues through this avenue (see Chapter 5).

The police perspective

According to those consulted for this study, police identify different groups of people within the homeless population: the regular ‘street livers’ who they may be quite familiar with, transient people who they may not have seen before (or at least for a while) and drug user/dealers (who may be regular or transient). Police were also very conscious of the vulnerability of people sleeping in public spaces to becoming the victims of crime.58

The official policy approach of NSW Police to homeless people is outlined within the Protocol for Homeless People, a State government interagency agreement.59 The protocol states that homeless people should be ‘left alone’ unless they request assistance, they appear to be distressed or in need of assistance, their behaviour threatens their safety or the safety and security of people around them, or their behaviour is likely to result in damage to property or the environment.60

A number of other services in the inner city noted the collaboration between police, other service providers and street outreach workers.61 For instance, police in one area distribute cards with the contact details for outreach services to homeless people. They have also used their radios to find out if beds are available at SAAP services.62 The officer responsible for liaising with homeless services in this area commented: “when police take the time to work out the person’s circumstances, they can do more for the person”.63

In summary, police interact with homeless people in a range of circumstances: they issue fines; they move people on in public spaces; they assist people who are victims of crime, including domestic violence; they arrest and charge people for criminal offences; and they take or refer people to other services. While, in some instances, these interactions can be negative for the homeless person, police remain a potential pathway to legal information and assistance.

Homeless person’s services

The support networks and agencies described above support but do not specifically target homeless people. In contrast, the following services are aimed at the homeless population, providing accommodation, referral and other support services.

Drop in and street outreach

Drop in centres and outreach services generally help homeless people to access accommodation, food services, health care (including mental health care) or assistance with finding longer term housing. In inner-city Sydney there are two major outreach services to homeless people: the City Street Outreach Service, which is provided by the Independent Community Living Association under contract to the City of Sydney, and the NSW government Homelessness Action Team Support and Outreach Services.

Street outreach workers generally support clients who are entrenched in homelessness and have very complex needs, particularly mental health and/or addiction issues. They have a particular role in linking this group of homeless people with services to address these complex needs. In this role, workers report being asked for advice on a range of legal issues. The challenges faced by outreach workers in meeting these advice needs are discussed in greater detail later in this chapter.

Homeless Persons Information Centre (HPIC)

HPIC, run by City of Sydney Council, is a telephone information and referral service for people who are homeless, or at risk of homelessness in NSW. It provides professional assessments and referrals for clients seeking accommodation and support services throughout the State.64 In 2002–03, HPIC received nearly 44 000 calls. Of these, approximately 27 000 calls were for accommodation required that night.65

SAAP services

As discussed in Chapter 1, nearly 400 SAAP agencies in NSW provide accommodation and other services to homeless people. Nearly half of these agencies target youth (177 agencies) and a further 89 target women escaping domestic violence. Only 25 agencies are specifically for homeless families.

A number of homeless participants in this study described how they used SAAP services as a link to legal and/or advocacy support.


The level of assistance SAAP services provide clients with legal problems is evident in their service statistics, displayed in Table 7.2, below.

Table 7.2: SAAP support periods: advocacy and selected other services provided to selected clients, NSW, 2002–0367

Male alone
Female alone
Females with
Total support
25+
25+
children
periods
N=19 950
N=4900
N=6350
N=44 300
Type of service
%*
%*
%*
%*
Assistance with legal issues/court support
1.8
14.1
23.7
8.2
Advocacy/liaison on behalf of client
15.4
35.5
50.3
29
Assistance to obtain/maintain independent housing
7
16
32.9
15.3
Assistance to obtain/maintain government payment
3.5
9.5
17.3
8.7
Advice/information
46.7
58.3
70.3
55.9
Assistance with immigration issues
0.1
1.6
1.9
0.6

* Clients can receive multiple services, so percentages do not add up to 100%. Only 3 of 8 subgroups are detailed in this table. See full cited in footnote for information on other groups.

Source: AIHW, SAAP 2002–03 NSW Tables. Table 6.3 p. 24.

Table 7.2 shows that 8% of all SAAP ‘support periods’68 completed in the 2002–03 year involved ‘assistance with legal issues or court support’. Another 30% of support periods involved ‘advocacy or liaison on behalf of the client’. A further 15% of support periods involved ‘assistance to obtain or maintain housing’, and 9% involved ‘assistance to obtain or remain on government benefits’.

As may also be seen on Table 7.2, different groups of clients relied more heavily on SAAP services as a link to legal assistance than others. For example, approximately 24% of support periods to ‘females with children’, but only 2% of support periods to men over the age of 25, involved assistance with a legal issue/court support. This particular discrepancy may in part reflect the proportion of SAAP services that are women’s refuges.

Table 7.3 shows the number of requests made to NSW SAAP services for legal or advocacy related services during 2002–03, and how these requests were responded to.

Table 7.3: Legal- or advocacy-related SAAP services requested by clients in closed support periods, by provision, NSW, 2002–03

Type of service
Not provided
Referred
Provided by SAAP only
Provided and referred
Total
Number
%
%
%
%
%
Assist with legal issues/court
9.1
10.8
56
24.1
100
3500
support
Advocacy/liaison on behalf of
2.1
0.9
86.7
10.3
100
10 700
client
Assist to obtain/maintain
16.1
14.7
49.3
19.9
100
7450
independent housing
Assist to obtain/maintain
9
12.3
56.1
22.7
100
3650
government payment
Advice/information
1.1
0.1
92.8
5.9
100
21 750
Assist with immigration issues
5.8
10.9
51.4
30.9
100
250

Source: Drawn from AIHW, SAAP 2002–03 NSW Tables. Table 7.1, p. 26.

As may be seen in Table 7.3, in 2002–03, NSW SAAP services received 3500 requests for legal assistance or court support from clients and 10 700

requests for advocacy or liaison on behalf of clients. This is in addition to more than 11 000 requests for assistance to obtain or maintain housing and/or government payments. Fifty-six per cent of requests for legal assistance resulted in court support or assistance with legal issues being provided solely by the agency, and 35% of such requests involving a referral to another agency. Assistance with legal issues or court support was not provided in 9% of all ‘closed support periods’ in which it was requested. Generally, ‘advocacy support or liaison’ and requests for ‘advice or information’ were handled by the SAAP agencies themselves.

Thus, SAAP services play a key role in providing assistance with legal issues (e.g. information, liaison/advocacy) and in linking their homeless clients with legal assistance services. The specific ways that SAAP and other workers assist their clients with legal problems are outlined in the next section.

It should be noted that, while SAAP services are a key source of support to homeless people in NSW, some homeless people do not access services until well entrenched in homelessness, if at all.

There are also homeless people who cannot access SAAP services. In some cases there are no appropriate SAAP services in their area—there may be a local service for men but not for women or young people. In other cases, as reported by the NSW Ombudsman in a report on SAAP services, some groups of homeless people may be routinely excluded from relevant SAAP services (e.g. if they are using alcohol or drugs, or have a condition the service cannot manage).69 Finally, some people may not access SAAP services that have a philosophy or practice inconsistent with their beliefs or needs (e.g. a dependent drug user may not approach a service where abstinence is required).



Legal assistance provided by non-legal services


This section explores in more detail the support provided by non-legal workers and agencies to homeless people with legal problems. Support may be in the form of:
Included in the discussion are the challenges faced by non-legal services in providing these types of support to homeless clients. The subsequent section discusses options to address these difficulties.

Legal information and advice

As indicated in the SAAP data referred to above, homeless clients often ask caseworkers for ‘information and advice’ about ‘legal’ issues. As well as asking ‘What shall I do?’, homeless clients ask how particular legal processes work, what sort of things they should expect to happen, what documents they need and how to dress if they have to appear in court.70 A worker’s capacity to answer these questions will depend significantly on their role and area of expertise (e.g. housing workers, financial counsellors, youth workers, general welfare workers).71 The following section details the challenges reported by non-legal support workers when their homeless clients appeal to them for advice and information about legal issues.

Challenges in providing and ‘interpreting’ legal information

In consultations for this study, outreach and other workers providing front line support to homeless people reported feeling quite stressed about providing legal information or ‘advice’ to clients. Some workers felt they were ‘running blind’ giving advice to people about what to do. They prefered being able to assist their clients directly into legal support.72 Some described the situation as ‘the blind leading the blind’.73 A few caseworkers reported difficulties in even finding legal information to assist their clients. One stated:


Similarly, a report on domestic violence and homelessness noted:
One factor which appears to fuel workers’ concerns about providing legal information to clients is an inability to delineate between what is ‘legal information’, ‘legal advice’ and ‘referral’: distinctions that are often unclear. Scott and Sage report:
Anxiety and a lack of information about the actual responsibilities of non-legal support workers under legislation and agency guidelines (e.g, by privacy legislation, agency procedures and guidelines, insurance issues) were also reported to affect the willingness of some workers to provide ‘legal’ information.77 Thus, consultations suggest that the capacity of workers to provide accurate plain language legal information depends on:
The value of ‘legal information’ to the client depends upon their capacity to understand the information provided and to act on that information. For the many reasons discussed in Chapter 5, homeless people may not be able apply non-specific legal information effectively to their own situations. For instance, in this study, a tenancy worker reported that the tenancy laws are often too complicated to explain to tenants over the telephone, particularly when the caller is preoccupied with other issues, such as finding somewhere else to live.78 In these circumstances, clients require a higher level of support to actively address the legal issue they are facing. This is consistent with previous research that shows generic legal information is of limited value of its own to disadvantaged people, but may be useful when provided in conjunction with other forms of assistance.79

Assessment and referral

A key role of homeless person’s services is to assess clients’ legal and other needs, provide the assistance required or refer them to specialist support. Referral is “the provision of information about another agency, including contacting or negotiating with another agency on the client’s behalf”.80 A ‘supported referral’ involves the referring caseworker or agency preparing information about the client’s circumstances for the agency the client is being referred to.

The importance of generalist welfare and support services as a source of referral to legal services is reflected in the referral statistics provided by the homeless person’s legal services consulted for this study. Between 75% and 90% of their clients had been referred by the host service or other community organisations.81

One worker interviewed for the current study stated: “our role is primarily talking to the client, finding out what the problem is, and making the appropriate referral”.82 Another commented:


Caseworkers we consulted reported often having to actively support clients to follow through a referral. Support included making appointments for clients, actually accompanying people to appointments with their solicitors and assisting clients to obtain documents and complete forms. One homeless participant described this support as follows:
Challenges in providing assessment and referral for legal issues

Successful referral depends upon caseworkers having the capacity to identify legal need and knowing where and how to appropriately refer the client. Consultations suggest that the level of referral to CLCs and Legal Aid by caseworkers and community organisations varies considerably, with some workers and organisations having limited knowledge about who they could refer clients to.85

According to Scott and Sage’s study,86 knowledge about who to call for legal information or who to refer a client to seems to depend upon the role, experience and networks of the agency or worker.87 For instance, two caseworkers interviewed for the current study remarked:


However, when referrals are based on personal knowledge and relationships, clients may not get referred to relevant services that are outside the agency or caseworker’s usual networks. For example:
Another issue faced by non-legal services when referring clients is delay in the availability of legal support. This is particularly stressful when the client’s legal issue is urgent.
If homeless people are referred to legal services that cannot assist the referred client because they lack resources or expertise, the client may remain without legal support. Equally, if clients end up on a ‘referral treadmill’, where they are referred to one agency only to be referred onto another, they potentially lose interest in pursuing the matter at some point. A study by Pleasence et al. for the British Legal Services Commission describes a phenomenon called ‘referral fatigue’, where the likelihood of clients obtaining advice from an advisor they have been referred to sharply declined as the number of advisors they visited increased.92 The authors conclude that there is “a degree of exhaustion among members of the public as a result of being pushed from adviser to adviser”.93

Facilitating appropriate referrals

The NSW Legal Referral Forum describes ‘effective legal referral’ as practice that:


Pleasence et al. also stress:
One way to increase the appropriate referral of homeless people to legal support, is to provide simple, clear community-wide information about where to get legal assistance. This can happen on a local basis (see discussion on local networks later in this chapter) or statewide. One option for consideration is the wide distribution of the LawAccess contact number, to increase the potential for people at risk of and in the early stages of homelessness to be linked with legal information and advice. LawAccess can provide legal information and advice by telephone, and link people with local face-to-face legal services (see Chapter 6). While there are issues with homeless people accessing telephone based services, some non-legal workers suggested:
In summary, evidence from this study suggests that many homeless people initially seek advice or assistance from non-legal services or workers. SAAP services in particular already play a key role in referring clients to legal support. However, there are some difficulties with this process due to the lack of knowledge of legal services among some non-legal service providers and the risk of fatiguing clients with frequent and/or inappropriate referrals. Providing referral information (such as the LawAccess telephone number) to other services accessed by homeless people may increase the referral of homeless people in diverse circumstances to appropriate legal assistance.

Non-legal advocacy

As shown in Tables 7.2 and 7.3, another significant role for generalist caseworkers is advocating on behalf of their clients to government agencies and other services. Advocacy involves the caseworker directly engaging with other service providers on the client’s behalf. Some participants felt that the presence of an advocate made a crucial difference to the way they were treated, and consequently helped to resolve issues.


This participant’s caseworker also observed:
In some cases, the support of the caseworker was reported to be the only thing that keeps the client engaged in the process.
Challenges in providing advocacy for homeless clients

In a roundtable discussion with non-legal workers for the current study, participants discussed the balance between self-determination and the autonomy of clients, and intervention by caseworkers to assist clients in resolving issues.


However, the complexity of the legislation, regulations and policies that surround the provision of government services (e.g. Centrelink requirements and DOH policies) can also present a challenge to workers trying to advocate for their clients. Informants in this study suggest that workers benefit from having detailed knowledge of bureaucratic processes to successfully negotiate these services, and to identify when their clients may not have been dealt with appropriately. At one of the roundtable discussions, a group of non-legal workers remarked:
Thus, although advocacy by non-legal workers is sometimes pivotal to a homeless client gaining a satisfactory outcome to a legal or bureaucratic problem, the success of such help is quite dependent on the extent of the individual worker’s knowledge of the processes in question.

Supporting clients with the legal process

Once a referral has been made to a legal service, a caseworker’s involvement may still continue.


One homeless participant described the value of this support to him:
In the current study, caseworkers and non-legal agencies reported supporting clients through the legal process by:
Consultations for this study suggest that the support offered by caseworkers and non-legal agencies can mean the difference between positive or negative legal outcomes for clients, if for no other reason than the worker can ensure the person attends court. The implications of not attending court are discussed in Chapter 8. Noting that the capacity of a service to provide court support depends upon resources, another welfare agency added:
Supporting homeless clients with bail

Bail is an agreement to attend court to answer a criminal charge. As discussed in Chapter 8, homeless people can have difficulty being granted bail and adhering to bail conditions if bail has been granted. It appears that non-legal support services may assist people to stay out of prison pending a court hearing by providing appropriate accommodation to people on bail. For instance, Legal Aid NSW reported in this study using HPIC to find appropriate accommodation for homeless clients, in order to facilitate bail being granted.108 Welfare services also provide supervision and assessment and assist clients to comply with other bail conditions such as attending rehabilitation programs.109

Case management

The types of support described above have been presented as discrete activities undertaken by non-legal services. However, another valuable role played by non-legal services in supporting homeless clients is that of case management—that is, where the client’s legal needs are addressed as part of an holistic program that includes other related support issues. Such processes involve the caseworker assessing the client’s legal and other needs, referring clients to legal and other specialist services, coordinating the support of different service providers (e.g. housing, financial counselling, court support, AVOs) and providing advocacy and personal support as required.110 Research in Queensland highlighted the benefits of ‘continually engaging’ with homeless young people, rather than providing a series of short one-off periods of support as a young person drifts in and out of homelessness.111

Challenges to supporting clients through legal processes


The high level of support required by homeless clients to participate effectively in the legal process, may be beyond the resource capacity of some services to provide. Comments made at one of the roundtable discussions included:
In addition to the legal issues confronting their clients, workers themselves potentially face a number of legal issues relating to the provision of services to homeless people. One manager commented:
Workers interviewed for this study report facing a range of legal obligations, which they do not always fully understand and which affects their capacity to assist clients with legal issues. In the words of one worker interviewed:
In some cases, workers’ concerns may be based on misunderstanding about legislation. For example, a government officer described misunderstandings about privacy legislation as follows:
Other legal issues that workers consulted for this study said that they were unsure about included:
Thus, while non-legal workers carry out a range of tasks that assist their homeless clients into and through legal processes, they reported a range of challenges in undertaking these duties. These difficulties may arise from a lack of adequate resources to undertake these tasks, as well as the workers need for more information about legal processes, services and options. This role becomes more complex when their clients face multiple and interrelated legal issues and if their clients have problems that effect their ability to make decisions about their legal issues. We now turn to strategies raised in consultations to address these concerns.


Supporting non-legal workers to assist homeless clients in legal processes


As indicated above, some caseworkers report feeling overstretched, vulnerable and poorly informed when supporting clients to address their legal needs. In consultations we asked caseworkers what would help them to support their homeless clients to address their legal issues. The following suggestions were offered.

Priority access to legal support

Some workers consulted for this study said that a legal advice ‘hotline’ would assist them in promptly assisting clients with urgent legal needs.118 As indicated below, there are some legal advice services available to caseworkers and other community workers. However, in this study we have not examined what proportion of community workers are aware of these services or how useful they find these services.

While CLCs often support non-legal agencies, the NSW Consumer Credit Legal Centre (CCLC) operates a dedicated telephone legal advice line for community workers, financial counsellors and government and community lawyers. Through this service community workers may obtain legal advice on behalf of their clients or guidance so that they can handle a client’s matter through their own service. The centre will also discuss referral options with workers.119

The Consumer Credit Legal Centre also provides a fairly formal process of ‘cooperative legal assistance to caseworkers’. CCLC:


For general legal issues caseworkers can also call LawAccess, the statewide telephone legal advice and referral service described in Chapter 6. LawAccess can advise caseworkers on legal issues they face in dealing with their clients and, in certain circumstances, the actual legal issues of their clients. While the LawAccess policy is to speak directly to the client with the legal problem, in situations where the client lacks the capacity to speak directly or understand the advice, LawAccess will, with the permission of the client, talk to their caseworker. A limitation for caseworkers using LawAccess for urgent legal advice is that it operates in business hours only.

One caseworker was not in favour of telephone helplines, as he found the people giving advice over the telephone tended to be non-committal, providing only qualified advice.121 Workers in a regional area were also not in favour of central advice lines, as they felt that these services could not substitute local networking, and that the complexity of issues facing homeless clients means that issues are better addressed by information sharing though interagency forums.122

Other workers interviewed for this project preferred to rely on written legal resources such as The Law Handbook to guide the information and ‘advice’ they give. Citing the example of a kit produced by the Protective Commissioner’s Office, one worker suggested:


‘Law for non-lawyers’: Training for caseworkers

Noting a lack of familiarity among caseworkers about legal processes and avenues of legal support, several agencies suggested that education and training seminars may be very beneficial.124 At one of the roundtable discussions, workers stated what they wanted.

Workers also wanted more information about the bureaucratic processes they support clients through (e.g. dealing with Housing, Centrelink and DoCS), finding previous training very useful.
An example of the type of training that non-legal workers appear to be requesting is that provided by Shopfront to youth workers in their area. The Principal Solicitor at Shopfront stated:
Most CLCs, ALSs and Legal Aid NSW also undertake community legal education, with some providing specialised training for community workers and agencies working with disadvantaged people.128 Government agencies such as Centrelink also provide information to community groups and workers.129 However, the level of awareness among workers about the availability of different training and community legal education programs and the accessibility and utility of these education programs to community workers were not specifically examined this study.

Conclusion

Non-legal workers can significantly enhance the capacity of homeless clients to identify and address their legal issues. However, workers indicated in this study that they require support in the form of legal information, access to legal advice and further training to perform this role. Legal issues of particular interest to their roles as caseworkers/community workers include various statutory reporting requirements, the impact of privacy legislation on communication about clients with other agencies, and the limitations and responsibilities on advice given by non-legal practitioners on legal issues. It appears that there are some legal advice services available to caseworkers. However, it also seems, on the basis of our consultations, that the level of awareness of these services among workers is variable.

Another strategy that workers report as highly beneficial to legal and non-legal agencies, staff and homeless clients is increased communication and coordination between legal and non-legal service providers, particularly at the local level. The need to include homeless people and local communities in these networks to ensure that services devised actually respond to the clients needs was also stressed.130 This involves including homeless people in the planning and ongoing review of services. Coordinating legal and non-legal services is discussed in detail below.



Bringing legal and non-legal workers to assist homeless clients in legal processes


A key message of the 2003 Beyond the Divide national conference on homelessness was:
Further, the summary report of the conference stated in support of this conclusion:
The data presented up to this point have demonstrated that legal and other issues homeless people face are often intertwined and not easily resolved by a single agency. As such, the current and other studies suggest that the issues may be best dealt with in a holistic manner, and that this is more feasible if agencies are working in coordination to support the clients. One worker commented:
This is consistent with Scott and Sage, who reported: “working with other agencies emerged as an important factor assisting participants to deliver services to clients with legal problems”.134 However, coordination between agencies is not without its challenges, particularly with groups with multiple needs such as the homeless.135

However, that said, several interagency projects and programs have had positive outcomes for homeless people.136 In the current study, the following suggestions were provided to increase communication and coordination between legal and non-legal services.

Networking between legal and non-legal agencies


It was clear from caseworkers and agencies consulted in this project that networking between agencies, particularly at the local level, was highly valued.138 Suggestions to improve coordination and cooperation between agencies included:
Newcastle was one area visited as part of this project where homeless services had formed a network, namely, the Newcastle Hunter Homeless Interagency Network (NHHIN). The network includes accommodation services, welfare agencies, DOH offices, the tenancy service, Centrelink offices, Hunter Community Justice Centre, local councils and mental health and family and community services, among others and since 2004, the Hunter Community Legal Centre. The NHHIN is currently coordinated by the McKenzie Centre, run by Mission Australia.140 The network has been developing a model that provides outreach to homeless clients and then coordinates service delivery to meet the diverse needs of those clients.141

At a broader level, the NSW government’s Better Service Delivery Program is another project that aims to improve communication and coordination and facilitate more effective referrals between human service agencies in this State. It includes an online directory of human services, as well as electronic systems and other mechanisms to facilitate and streamline referrals between agencies. The program involves both government and non-government agencies.142

Networking and formal liaisons between agencies both at the local level and the State level may facilitate better coordination between legal and non-legal services. At the State level, it appears, however, that legal services in particular are not always included in networks with other human services. For instance, at this stage the BSDP does not appear to involve legal services (such as Legal Aid NSW, the local courts, Chamber Magistrates Service, LawAccess). Further, the Partnership against Homelessness, a partnership of state government agencies to address homelessness in NSW, does not include the Attorney General’s Department or its relevant sections (e.g. local courts, LawAccess).

Co-location and coordination of services

A key feature of the specialised homeless persons legal services described in Chapter 6 (e.g. LCRC, HPLS, Shopfront and the legal clinics at Lou’s Place and Exodus) is that they are located in or near generalist homeless or other welfare/community services. In addition, Legal Aid and some CLCs provide advice clinics at neighbourhood centres and other outreach locations. Chapter 6 argued that this co-location of legal and other support services improved accessibility to legal assistance for certain sectors of the homeless population. Thus, this model provides another means for improving the coordination of legal and non-legal service delivery.

The evaluation report of the VPILCH HPLC has described the relationship between their legal and the generalist services as follows:

The Clinic model relies on collaboration with a number of agencies that work with people affected by homelessness. The vast majority of initial contact by clients with the Clinic is on referral from the agencies, and the agencies host the lawyers at their premises. With variations, agency roles identified during the evaluation included:


The Clinic could not operate without the agencies.143

According to that report, the non-legal agencies that hosted the VPILCH HPLC also considered it a sustainable arrangement and useful means by which they could be involved in law reform processes. They also appreciated the opportunity to facilitate direct contact between their clients and the lawyers. The development of trust and rapport between all parties concerned was also cited as an important benefit. Finally, the fact that the clinic was relatively self-sufficient (and thus not a drain on the agencies’ resources) was also cited as a crucial aspect to the success of the collaboration.144 One limitation raised in the roundtable discussions of placing legal services in welfare services was the potential perception that the legal service may lack independence from the sponsoring welfare agency and concerns about confidentiality arising from this. One worker stated:


A perceived lack of independence may also be problematic if the client has a legal issue concerning the host agency. On this point, the evaluation report of the VPILCH HPLC also cautioned:
Thus, in summary, this ‘one-stop shop’ model of legal and non-legal services for homeless people addresses a number of the barriers they face in accessing legal and other support. It allows homeless people to access a range of services at one physical location and provides legal service that specifically caters for the complex needs of the client. Co-location also provides scope for a holistic approach to the client’s needs, where the legal and non-legal services can work together to address the client’s legal and other needs. The early experiences of the HPLSs in Sydney, Melbourne and Brisbane suggest that there may be real benefits to clients of this one-stop shop approach to supporting homeless clients.


Conclusion


Recognising that homeless people live in diverse circumstances and may not approach legal services when they have a legal problem, this chapter has examined the non-legal support and services that are accessed by homeless people in NSW. These services may be viewed as possible sites for legal assistance or referral.

The study found that non-legal service providers, particularly SAAP services, are a key link between people experiencing homelessness and legal assistance services. However, some people who become and remain homeless are isolated from SAAP and other homeless person’s services. This group of homeless people may only turn to family and friends or more general services such as Centrelink, doctors or health services or schools for advice. In this context, it was recognised that if these general services are to refer clients to appropriate legal assistance, the message given to these agencies must be made as direct and simple as possible. One option for consideration is the wide distribution of the LawAccess contact number. This involves increasing general community awareness of the service as well as directing information to the types of agencies and services discussed earlier in this chapter. Another option is to consider telephone access points to LawAccess, in places such as Centrelink waiting areas. LawAccess can provide legal information and advice by telephone, and link people with local face-to-face legal services (see Chapter 6). An added benefit in using LawAccess as a referral point to legal services is that it may cut down the number of times a person is referred from place to place, reducing the prospect of referral fatigue.

This chapter has also highlighted the vital but often overlooked role that non-legal service providers, particularly those in the homeless service sector, often play in assisting homeless clients through legal processes. Non-legal workers may provide legal information and advice about legal processes, assist homeless clients to obtain or complete relevant documentation, refer clients to legal assistance and, when necessary, accompany clients to appointments, explain legal processes or legal advice provided, support clients in court, and assist clients with legal outcomes, such as obtaining and staying on bail. Specialist services such as tenancy services and court support workers also provide skilled, specific advocacy and support services.

As indicated in Chapter 5 and in Chapter 8 following, homeless people require significant support to engage in legal processes and manage the outcomes. Homeless people and other stakeholders consulted in this study reported the benefits of receiving support though legal process from non-legal workers. However, non-legal workers and services need to be resourced and supported to provide this support in a sustainable way. In this study, workers identified a need for access to timely legal information, legal advice and relevant legal ‘education’. Workers also stress the significant benefits of interagency collaboration for legal service providers, non-legal service providers and, most importantly, their homeless clients. This is consistent both with the views of legal service providers as found in Chapter 6 as well as directions highlighted in current policy and research: in short, that homeless people benefit from legal and non-legal services that are coordinated, with a focus on clients’ total needs.



Ch 8. Barriers to participating in the legal system



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:



Barrriers to participation in the legal process


Homeless people may encounter significant barriers in participating in the legal system. From the data collected for the current study, these barriers tend to fall into two groups: individual barriers (mental illness and other cognitive impairment; lack of awareness; lack of confidence in and fear of the legal system; no stable contact; low literacy; poor understanding of the process) and systemic barriers (cost; rural and regional issues; length and complexity; formality; lack of legal representation) arising from the nature of the legal system, which particularly disadvantage homeless people. For the purposes of this section, participation includes initiating and getting to the legal process (e.g. lodging an appeal, getting to court) and being involved in the process (e.g. during the court or tribunal process).

Cost

A few homeless participants interviewed for this study reported that the cost of initiating legal proceedings (including the cost of legal representation) was prohibitive. For example, one homeless woman who had been in a de facto relationship reported that she could not afford to take her partner to the Family Court for a financial settlement as she had been extremely financially disadvantaged by the break-up.2 A caseworker also commented that in family law matters, homeless people on very low incomes may be ineligible for legal aid but also unable to afford to pursue a matter through other means.3

One caseworker was of the opinion that homeless men were being financially disadvantaged by child support payments and unable to afford an appeal to the Child Support Agency. Low-income earners are not always eligible for legal aid to lodge an appeal and if they do lodge an appeal, they have to pay the set amount of child support until the appeal is heard.4 He noted that this can also push men into homelessness.5

Lack of awareness

Stakeholders reported that homeless people, like many others in the community, have a limited awareness of available legal processes. Information about these processes may not be well communicated to homeless people. For example, people may not be aware of their rights to appeal a Centrelink or DOH decision:


Another example was given in relation to victim’s compensation. As noted in Chapter 4, a very high proportion of homeless people have been the victim of a crime. Stakeholders commented that homeless people who have been the victim of a crime are often unaware that they may have a right to victim’s compensation, or that there are services (e.g. Legal Aid, CLCs, homeless person’s clinics) that can assist them with a victim’s compensation claim.7

Lack of awareness of legal processes may also be compounded by literacy problems experienced by many homeless people (see below).

Lack of confidence in and fear of the legal system

Many homeless people have had negative experiences with the legal system.8 As a result, people are frightened of or cynical about what the legal system can deliver and are therefore reluctant to participate in it. For example, fear of being jailed can lead to a fear of the court process in general.9 People are in many circumstances unaware that the legal system can be used to protect their rights.10

One specialist CLC observed:


Negative perceptions of the justice system can result in their refusal to access the legal system at all.12 For example, caseworkers reported that even where they have been advised of an avenue of appeal (e.g. against a DOH or Centrelink decision), some homeless people are reluctant to appeal because they don’t believe that it will make any difference to their situation.13

In its submission to the Foundation during Stage 1 of the Access to Justice and Legal Need program, the LCRC stated that lack of confidence in the legal system and a belief that their rights will not be recognised present major barriers to homeless people participating effectively in the legal system.


A caseworker working with homeless men noted in relation to family law:
In some matters, negative perceptions of the legal system led to several participants deciding to plead guilty rather than defend themselves. Several interviewees reported that they pleaded guilty, despite wanting to plead not guilty and defend the matter.16 For instance, one interviewee who pleaded guilty to assault said:
Another example is in the area of victim’s compensation. In most circumstances, when people want to make a claim for victim’s compensation, the applicant has to have reported the crime to the police.18 However, a couple of caseworkers reported that homeless people are sometimes reluctant to approach the police to report or disclose a crime because they have had past negative experiences with police and perceive that police will not take them seriously.19
Young people in general are particularly reluctant to approach the police, due to a general distrust of authority.21 Stakeholders interviewed for this study reported that if young homeless people were assaulted on the streets, they preferred to deal with it in their own way.
Mental Illness or other cognitive impairment

As noted in Chapters 3 and 5, many homeless people (particularly street-based homeless people) have mental health and drug and alcohol issues. This can impact on a person’s capacity to engage in legal processes, particularly when they are complex and lengthy.


Mental illness and other cognitive impairment including memory loss and drug and alcohol use were also identified by stakeholders in this study as significant barriers to attending court or a tribunal. These disabilities can lead to people having difficulties in organising their lives and thus remembering and making necessary arrangements for their court dates.24

A study by McConnell et al. on parents who have a disability and their experience of the NSW Children’s Court suggests that parents with a mental illness do not cope particularly well in care proceedings. This study concludes that parents, particularly those with a disability, experience a great degree of tension and stress during Care proceedings held at the Children’s Court and, once stressed and angry, may exhibit these behaviours in court.25 Several of the participants in the current study who had had their children removed from their care had a mental illness.

No stable contact

A number of examples were given by participants in the current study where not having a stable contact address or telephone number created difficulties for them in actively participating in the legal process. For example, consultations with homeless people who had had their children removed by DoCS revealed that difficulties in contacting DoCS are exacerbated by not having a telephone number or address from which to call.26 One caseworker stated:


Lack of a postal address can result in people not receiving notification to appear before a court or tribunal. Further, without an appropriate contact, legal service providers can also have difficulty in contacting people about their need to attend court, or to keep them informed about how their matter is progressing:
For example, a woman who had fled domestic violence and was living in a refuge with her children did not receive notification that her husband had filed an application in the family court requesting access to the children. Because she did not receive notice she did not turn up to court. As a result an ex parte order was made in favour of her husband.29

In the CTTT, tenancy workers report that many tenants fail to turn up to hearings.30 In some cases, tenants fail to turn up because they have not been informed by DOH or their landlord that they have had an application made against them. The CTTT will send them a notice informing them of hearing dates but people may not receive this if they are homeless and do not have a postal address. According to tenancy workers, the CTTT very rarely grants a re-hearing if a person does not turn up. An example given by a legal service provider was that for hearings in the CTTT, if a tenant does not turn up, the hearing may proceed in the absence of the person, which can result in a decision in favour of the landlord and/or an eviction order being made.31

Brian Sandland of Legal Aid NSW summarised the particular difficulties homeless people have in getting bail as a result of not having a stable contact or address as follows:32


The disadvantage encountered by homeless people in relation to being granted bail was also identified by HREOC as an issue for homeless children.
In July 2002, the Bail Amendment (Repeat Offenders) Act 2002 (NSW) amended the Bail Act 1976 (NSW). These amendments, including the removal of the presumption in favour of bail for ‘repeat offenders’, appear to make it even harder for homeless people to be granted bail.34 Repeat offenders includes those “persons accused of an offence who have a previous conviction for failing to appear before a court in accordance with the person’s bail undertaking” (s 51). Because of their criminal histories, homeless people are particularly affected by the amendments.

One aim of the Act was to increase access to bail by providing supervised bail accommodation in bail hostels.35 Supervised bail accommodation offers an alternative to remand imprisonment and has particular relevance to homeless people.36 However, at the time of the Act’s commencement, there were no bail hostels for adults in NSW, and only one bail hostel for Aboriginal juveniles, which held only six to eight beds.37 This means courts are restricted to referring defendants to SAAP services or not to grant bail at all.

Consultation with homeless agencies in Sydney for the current study revealed that even if homeless people are granted bail, lack of a stable address can still impact on homeless people’s ability to comply with their bail conditions.38 For example:


All of the above examples demonstrate that homeless people may be particularly disadvantaged in meeting bail requirements because of their extremely limited options for accommodation.

Literacy

The relatively low levels of literacy and education among homeless people can act as a significant barrier to this group participating in a system that rests heavily on the written word.39 In addition, people tend not to disclose difficulties they face in reading or understanding written material, which can inhibit recognition of their literacy problems.40 The consultations also indicated that some clients had difficulty understanding legal information and advice given orally: it was not just an issue of literacy, but comprehension.41

In the consultations for this study, examples were given of homeless people:


In public consultations conducted during Stage 1 of the Foundation’s

Access to Justice Program, community legal centre roundtable participants stated that many tribunal procedures, particularly those of HREOC and the Anti-Discrimination Board, require written applications and correspondence, which is problematic for people with low levels of literacy and education.43 Given their relatively low levels of literacy and education, this is an issue for homeless people. Some tribunals also discourage or prohibit the presence of an advocate or support person. For example, at the CTTT, where a disputed amount is under $10 000, a party is not entitled to legal representation except in special circumstances.44 This is problematic for homeless people who benefit from advocacy and support.

Rural and regional issues


As discussed in Chapter 3, a large number of homeless people live in rural and regional areas of NSW. Stage 1 of the Access to Justice Program found that lack of access to courts was the most common barrier to participating in the legal process reported for disadvantaged people in general living in rural and regional areas. Although local courts in NSW are found in most regional areas, other courts and tribunals (such as the Family Court and the CTTT), are only found in capital cities or larger regional centres. The Family Court conducts ‘circuits’ (where the court travels to regional and rural areas), although in Stage 1 of the Access to Justice Program it was reported that these circuits had been reduced in recent years. Concern was also expressed about infrequent visits by tribunals to regional and rural areas.46 Not only does this reduce access to such tribunals, but also the lack of visibility may serve to entrench ignorance about the existence of these processes.

Workers in Newcastle also raised the issue that many homeless people in rural and regional areas do not have ready access to transport to get to courts and tribunals.47 This may be because they are unable to afford public transport or there is no public transport in their area and they do not have access to private transport.48 The issue of accessibility and location of courts and tribunals in rural and regional areas is also a particular concern for young people as they are not able to legally drive.


Length and complexity of process

The length and complexity of a legal process can significantly deter people from participating in the process or make it harder for people to continue through to completion.


In its submission to this report, the LCRC reported that court or tribunal matters that involved a number of hearings (e.g. due to adjournments), can cause particular problems for homeless people, who in facing a number of barriers preventing them from getting to the process in the first place, are even less likely to turn up to subsequent court or tribunal dates.
Brian Sandland also referred to the issue of delays at court. He noted that when matters are stood down in the morning and people have to wait around all day for matters to be heard, this can be a problem for clients with complex needs (e.g. people with mental illness, intellectual disability, drug and alcohol issues), who can become frustrated and leave before the matter is heard.52 This can have serious consequences for the person’s eligibility for bail. Given that some homeless people have complex needs (particularly street-based homeless people), delays at court may also lead to homeless people leaving court before their matter is heard.

Multi-tiered processes

Some legal processes are multi-tiered and complex and may involve several legal forums (e.g. a government department or a court or tribunal). For example, to appeal a decision made by Centrelink, the first level of appeal is to Centrelink itself, the second to the Social Security Appeals Tribunal and the third to the Administrative Appeals Tribunal. While multi-tiered processes promote accountability and review, their lengthiness and complexity make it more difficult for homeless people to see such a legal process through to completion. In addition to the social security appeals process, the DOH appeals process and the process of appealing against a fine were also identified by stakeholders as difficult processes for homeless people to engage in.

DOH appeals process

DOH officers can be asked to review decisions relating to housing eligibility and priority housing applications by lodging an appeal within three months of the original decision being made. The decision is reviewed by an officer senior to the person who originally made the decision. The tenant or applicant is informed of the outcome by post.53 A person not satisfied with the decision made by the reviewing officer can make a second appeal to the Housing Appeals Committee (HAC) within three months of the internal review decision being made. The HAC is an independent agency that reviews decisions made by DOH relating to public housing eligibility, eligibility for emergency temporary accommodation and removal from the waiting list.54 Clients must have already had an internal review before they can apply for a decision to be reviewed by the HAC.55

The HAC can recommend to DOH that a decision be overturned. However they are not binding recommendations.56 If a recommendation made by the HAC is not implemented by DOH, the next level of appeal is to the Administrative Law list in the Supreme Court. There is no capacity to take an administrative decision made by DOH to the Administrative Decisions Tribunal, a far more cost-effective process.57 This is a significant barrier to homeless people appealing DOH decisions as they are unlikely to have the capacity to take an appeal to the Supreme Court. Although legal aid is available to appellants who are at a special disadvantage, the formality of procedure at the Supreme Court could act as a deterrent to people who are homeless appealing at this level.

Stakeholders raised a number of concerns about the DOH review process. These included:


Centrelink processes

Nearly all homeless participants in this study were on Centrelink benefits and most had experienced problems with Centrelink. Customers who are unhappy about a decision made by a Centrelink officer (e.g. a decision to breach a customer) have the right to appeal the decision. Again, this is a multi-tiered process. If a person wishes to appeal an actual decision made against them, in practice they must first appeal to the original decision-maker.61 Following this they can then appeal to an Authorised Review Officer (ARO). This is a free service and may be initiated in writing, by telephone or, in some circumstances, in person. However, if a customer is seeking back pay, they must challenge within three months of the original decision being made. The customer’s payment will continue until the appeal is decided.62 The decision made by the Authorised Review Officer will be sent by mail.63

If a Centrelink customer is still not happy with a decision made by the Authorised Review Officer, they can appeal for free to the Social Security Appeals Tribunal (SSAT) and then to the Administrative Appeals Tribunal (AAT).

The first problem with this process is that people may be deterred from making an appeal if they are required to appeal to the original decision-maker. Pearce et al. have observed:


Young people in particular are more inclined to accept a decision than appeal it.65 People under the age of 30 account for nearly 71% of all activity test breaches and 76% of all administrative breaches, but they are the least likely to make a complaint or appeal a decision made by Centrelink.66

The second barrier is the length of the appeal process.67 Each review can take up to 8 weeks. Consequently, a matter can take up to 24 weeks before reaching the SSAT, with another 8 weeks before reaching the AAT.68 This process is not conducive to the needs of homeless people who may not possess the capacity to participate in such a lengthy process. As Pearce et al. have observed:


Fines

The imposition and payment of fines is a significant issue for homeless people. The complex process of enforcing fines and the number of discrete agencies involved contribute to these difficulties. While a fine or penalty notice is issued by the ‘issuing authority’ (such as the council or police), the Infringements Processing Bureau (IPB) has the responsibility for processing and collecting the payment.70 If a person does not pay the fine within the specified time and they do not elect to have the matter heard at Court, a penalty reminder notice will be issued by the IPB. If, 28 days later, the fine remains unpaid, it will be referred by the IPB to the State Debt Recovery Office (SDRO) for enforcement.

Importantly, the IPB does not have the power to allow payment by instalments or extensions of time to pay. The person fined must wait until the fine is referred to the SDRO before they can make an application to pay by instalments.71 However, unpaid fines referred to the SDRO attract an additional processing fee of $50.72 This issue was raised in the consultations.


Furthermore, once the fine has been referred to the SDRO, it is not possible for a person to dispute their liability for the fine itself. However, the person can apply to the SDRO for any of the following:
While the fines system makes some provision for the particular circumstances of disadvantaged people, it is difficult to negotiate the system effectively without competent assistance.75 For example, all of the applications referred to above must be in writing, and many require detailed supporting documentation, such as doctor’s certificates, affidavits of financial circumstances, and bank statements.76 As described earlier, maintaining good paper records is particularly challenging for homeless people. Even where the applicant has access to the assistance of an advocate, the success of an application for waiver of a fine based on hardship is hampered by the fact that there is no public access to the guidelines as to how the SDRO should determine such applications.77

Formality and understanding the process


Given the educational and literacy levels of the homeless population (as described in Chapter 3), the formality of language and jargon used in legal and bureaucratic processes can be intimidating and can significantly reduce the capacity of homeless people to understand what is going on in the courtroom or tribunal. As stated by one stakeholder:
Like many people who are not legally trained, homeless people possess little understanding of what actually goes on in a court or tribunal, what the role of the magistrate is, what they have to bring, what they need to say and what is likely to happen on the day. A roundtable participant stated:
Jane Sanders of Shopfront highlighted some of the issues facing her clients.81 These included:
Another caseworker stated:
This view has also been expressed in previous research.84 For example, a recent report investigating the link between domestic violence and homelessness noted:
Legal representation

The impact of not being familiar with nor understanding the legal process is compounded when people are unrepresented through the legal process. The Australian Law Reform Commission’s report into the federal civil justice system found that self-represented litigants find court processes confusing and intimidating.86 As reported in Chapters 5–7, homeless people can benefit greatly from both legal and non-legal advocacy and representation. In the current study, caseworkers report that homeless people are particularly vulnerable to poor outcomes in the legal process without legal representation.


Homeless people do not necessarily fare better in non-adversarial jurisdictions. For example, at the CTTT, people have to get leave to allow another person or tenant advocate to represent them in proceedings. Despite this, tenancy workers report that real estate agents are allowed to represent landlords at the tribunal,88 while DOH has its own representatives who appear before the tribunal. Hence although landlords and DOH appear legally ‘unrepresented’, their agents are likely to possess a much higher level of expertise than unrepresented tenants, who have little or no experience of appearing before the CTTT.89 It is no surprise then that tenancy workers from the Tenants Union of NSW, Redfern Legal Centre and BLAG report that tenants do not fare well in the tribunal.90

It would also appear that even in negotiation with other parties, without support, homeless people may be at a disadvantage. For example, in care and protection matters, many parents are intimidated by their interaction with DoCS, which can affect their ability to negotiate effectively with DoCS. One caseworker interviewed for this study observed that the presence of a caseworker or social worker at a ‘case conference’, where parents are required to negotiate a ‘care plan’ for their children, can greatly assist in redressing this imbalance.91

People who have high levels of debt can also benefit greatly from assistance in negotiating with creditors. In its submission to the Foundation, the LCRC stated:


Lack of suitable and effective legal representation can also act as a barrier to homeless people participating effectively in legal processes. The effectiveness of legal representation depends on the availability and quality of legal service and its suitability for homeless people.93 Consultations with stakeholders and participants indicate that there is a distinct shortage of appropriate legal representation for all disadvantaged people, including homeless people.94 For example, Commonwealth reductions in the level of funding to Legal Aid NSW since 1997, restrictions imposed by Commonwealth guidelines on the availability of legal aid in Commonwealth matters and the restrictive nature of the means test have impacted upon the ability of Legal Aid NSW to maintain its programs and address emerging legal needs. Further, as described in Chapter 6, duty lawyers have limited time to take instructions from clients who have complex needs.95 CLCs, pro bono lawyers and legal clinics that provide services specifically to homeless people are not always able to provide legal representation to people for the range of legal issues they face.


Features of existing legal processes which increase participation of homeless people


A number of legal processes and programs exist with features that increase accessibility for homeless people. These will be described in the following section.

Flexible service delivery

There are a number of existing legal processes that attend to the legal needs of homeless people in a more flexible and accessible manner than those processes described in the previous section. These include the HAC, the SSAT and the NSW Ombudsman. These bodies are aware of and cater to the particular needs of the people who use them, for example, by providing services over the telephone, adopting more flexible and less formal procedures, and providing outreach services to remote and rural communities. Despite this, it is important to note that these facilities were seldom referred to either by workers or homeless people consulted for the current study. It is not clear, however, why this is the case. Nonetheless, below is a description of the way in which people may seek legal redress that avoids some of the problems identified in the previous section.

Housing Appeals Committee (HAC)

As noted above, the HAC is an independent agency that reviews decisions made by DOH and Community Housing relating to public housing eligibility, eligibility for emergency temporary accommodation and removal from the waiting list.96 A client may appeal to the HAC after an internal review decision has been made by DOH or Community Housing. The HAC will then apply to the service provider for the client’s file and, once received, set a date for appeal (usually within four weeks of receipt of the file). Appeal hearings can be conducted by telephone interview or face-to-face interview and usually take under an hour. Hearings are informal and the housing service provider is not present. If information is needed from the provider they will be contacted prior to or after the meeting. Clients may, without applying for special leave, bring an advocate but not a lawyer.

Social Security Appeals Tribunal (SSAT)

The SSAT hears appeals relating to decisions made by Centrelink about social security payments. Appeals may be lodged to the SSAT in person, in writing or by telephone.97 The first step in the process after lodgment involves the client attending a hearing. This is a meeting between the customer and the SSAT members and no one from Centrelink is present at the hearing. The client can bring a friend or advocate. The SSAT will have a copy of the client’s file, which means that there is less pressure on complainants to bring all the necessary documents with them. The SSAT conducts hearings in rural areas, and will pay all the complainant’s reasonable travel expenses. Hearings may also be conducted over the phone as well. One stakeholder that had had experience of SSAT proceedings commented:


NSW Ombudsman (Community Service Division)

The NSW Ombudsman’s Community Service Division (CSD) receives complaints regarding treatment by DoCS. The division also takes complaints about SAAP services, and is therefore particularly relevant to homeless people.

The division appears to have developed processes that increase its accessibility to clients with complex needs. For instance, complaints about DoCS or a SAAP service may be made by a free telephone call or orally to a complaints officer. This is in contrast to the usual procedure whereby complaints are made to the Ombudsman in writing (although Ombudsman staff will assist people in doing so). The customer service officer assigned to a complainant will provide advice on what action needs to be taken (such as an investigation or encouraging the person to make a direct complaint to DoCS). Priority is given to those complaints made by children and people with disabilities.99

Problem-solving courts and lists

In the last 10 years, a concept that has gained momentum in the United States is the ‘problem-solving court’. These courts rely heavily on the theory of ‘therapeutic jurisprudence’, a school of social inquiry that has emerged from the study of mental health law and seeks “to reshape law and legal processes in ways that can improve the psychological functioning and emotional well-being of those affected”.100

This type of court encourages partnership with local communities, government, and non-government service providers to develop new solutions to criminal and community legal matters. The California Homeless Court and the Red Hook Community Justice Center are examples of this type of court. There are a number of programs in Australia that appear to be modelled on the ‘therapeutic jurisprudence model’.101 These include:


While not all of these programs are specifically focused on homeless people, they are good examples of the ways in which the criminal legal process can support and better involve people with complex needs in the legal process. The features of these programs are that they can be less formal, more interventionist and they attempt to better involve the offender in the process. Each of the programs are discussed below.

Australian initiatives

NSW Drug Court

Drug courts are specialist courts that deal with offenders who are dependent on drugs. They emerged as a result of growing disenchantment with the ability of traditional criminal justice approaches to provide long-term solutions to the cycle of drug use and crime. Drug courts aim to assist drug-dependent offenders to overcome both their drug dependence and their criminal offending.103

The New South Wales Drug Court is a pilot program which commenced in 1999. Currently, it is restricted to people living in Western Sydney. The aim of the program is to reduce drug dependency, promote re-integration of drug-dependent people into the community and reduce the need for drug-dependent persons to resort to criminal activity.104 If an offender is eligible, they will be remanded for detoxification and assessment at the Drug Court clinic. Their sentence will be suspended on condition that they adhere to the requirements under their treatment plan. This plan will require participants to enter a residential rehabilitation centre or live in accommodation approved by the court.105

The court uses conventional physical court settings; however, the proceedings are more informal, with the judge engaging directly with the offender (in a less formal manner) rather than solely through a barrister or solicitor.106

To be eligible for the Drug Court a person must:


Finally, because there is usually more demand than places for the program, a weekly random selection process occurs to determine which applicant is assigned to each available place.107

The following issues are associated with homeless people using the Drug Court: