Homelessness and the Law in Australia: Legal Insights, Trends, and the Role of Legal Professionals
By Nitish Mathias
Homelessness is not a choice, nor is it merely caused by a shortage of affordable housing. Domestic violence, unemployment, mental illness, family breakdown and drug and alcohol abuse all contribute to the level of homelessness in Australia. Approximately 123,000 people were estimated to be homeless during the 2021 Census – a number that is likely underestimated and steadily increasing. This is not just a social problem, nor is there just one solution. Research indicates times where the law has contributed to the problem. Reform may therefore require the law to ‘step back’ for the root causes of homelessness to be addressed. Nonetheless, law, legal practitioners and even law students have a part to play. Present and future legal professionals, by navigating these challenges and using their skills to advocate for more effective policies, can help create meaningful change.
Image source: http://www.homelessnessaustralia.org.au/
Current state of homelessness law
Homelessness is fundamentally considered by the Australian Human Rights Commission to be a violation of several of the most basic human rights. Adequate housing, personal safety and privacy are considered fundamental human rights under international treaties to which Australia is party to. There is no domestic right to housing, but each state and territory jurisdiction have Housing Acts, with the Commonwealth Housing Act as an overarching framework to ensure social housing. More recent initiatives such as the federal government’s “Housing Australia Future Fund” and the National Agreement on Social Housing and Homelessness (NASHH) also aim to build more affordable housing.
Nonetheless, homelessness is not just a housing issue, nor is it currently being treated with a rights-based approach. Other areas of law have tackled the myriad causes of homelessness, with differing intentions and mixed effects. Family violence is currently a leading cause of homelessness, especially for women and children. The Family Law Act 1975 (Cth) contains several provisions to mitigate the fallout, especially Sections 68B and 114 which empower Courts to make orders over accommodation considering the best interests of the child. Family law professionals and the Courts provide for tailored solutions, but coordination between various family services and the complexities of the issues themselves pose challenges.
These initiatives make it clear that law now targets homeless peoples’ welfare, but that has not always been so. Historically, criminal law was the state’s vehicle of choice in handling homelessness as a social disorder. Stemming from ‘vagrancy laws’ which continued to exist in some Australian jurisdictions into the 21st century, criminal law was coercive and even punitive in marginalising homeless to maintain an ‘clean’, ordered’ society. This traditional approach has changed, but criminal offences like begging, trespass, unlawful camping, loitering and ‘public nuisance’ continue targeting activities many homeless people perform to survive. Resultingly, while homelessness itself is not a crime, homeless people arguably remain criminalised.
Future Trends
As stated earlier, the traditionally punitive approach of law towards homelessness has changed in principle to a welfare-oriented approach. Even with crimes traditionally associated with homeless people, there is general agreement that prevention through support rather than punishment should be the focus. However, the Australian Human Rights Commission criticises viewing homeless people as ‘mere objects of charity’. It advocates for a human-rights approach that handles the many varied causes of homelessness to fully realise the rights of homeless people as human beings, not charity cases.
While there is little legislation holistically tackling these issues underpinning homelessness, a more comprehensive and integrated approach is currently being developed. Victoria is currently considering establishing a ‘right to housing’ and amending the Housing Act 1983 (Vic) to set a target of ‘ending homelessness by 2030’. The Federal Parliament is debating the National Housing and Homelessness Plan Bill 2024 that would be partially directed to preventing homelessness. Both initiatives are in the ‘second reading’ stage as of this writing.
How the legal profession can address homelessness
A recent study led by Professor Tamara Walsh found an interesting dichotomy between the views of surveyed homeless individuals and criminal law practitioners on how the law should respond to homelessness. Where legal practitioners see an opportunity to connect homeless people with beneficial services and rehabilitative sentencing, those surveyed largely believed legal intervention was criminalising them. ‘Even well-meaning intrusion into their lives can be experienced as criminalisation’ since it brings them before the criminal justice system for actions many of them view as essential for survival. Therefore, despite the legal profession’s tendency to find solutions within its own institutions, there is a strong argument that the system contributes to the problem. “Backing off” could result in legitimate reform.
Nevertheless, legal professionals have an important role to play. Since people become homeless for many different reasons, lawyers can help their clients find the tailored services they need. Judicial officers can address the underlying causes with rehabilitation programs rather than criminal penalties. ‘Compassionate policing’ can identify those in need and bring them to the attention of services that can assist them. However, there are limits in the legal profession’s power to solve this problem. It lacks the tools and training to solve a variety of complex welfare problems, which social service providers and other fields are better placed and qualified to address. Despite this, legal professionals can achieve much in applying the law as a vehicle to aid the homeless.
Law students can make a significant impact by volunteering with organisations that provide legal assistance to homeless individuals. Becoming informed and involved not only provide much-needed assistance to those in need, but gives us the knowledge we need to raise awareness and advocate for reform. For any law students who are interested, the SJE ‘Volunteering in the Law Handbook’ is an excellent resource that will help you find a volunteering opportunity and ideally make the impact you desire. The law cannot solve this problem alone, but it can make a big difference.
If you are experiencing, at risk of homelessness or escaping family violence, call 1800 825 955 for 24-hour statewide support.
Please refer to this link for other support services: https://services.dffh.vic.gov.au/getting-help
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