Shelter - Hot Topics 57 - Legal Information Access Centre - NSW ...

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Homelessnessthe word ‘homeless’ can describe a rangeof situations, from being absolutely withoutshelter, to having shelter but only of an insecure,incomplete kind (see p 2). the law relates tohomelessness in a number of aspects. Mostimportantly, homelessness exposes a person toall sort of legal interferences, not least beingcriminal laws. homelessness can be seen as akind of reverse image to housing as a ‘castle’,which defends against interferences. also, thelaw relates to the forms of shelter that ahomeless person might resort to – in particular,the emergency accommodation provided bysupported accommodation assistance program(saap) services, and squatting.vagraNcy, pOOr laWS aNd THepOliciNg Of HOmeleSS perSONSThe law has applied in a range of specific ways tohomeless persons for centuries, particularly through lawsrelating to vagrancy and the English ‘poor laws’. NewSouth Wales never had a poor law, and abolished theoffences of vagrancy in 1979, but the history of each isan important part of the respective histories of welfareprovision and public order policing.Vagrancy legislation originated in 14th century England.The early laws of vagrancy were directed at ‘idleness’and the concern that wanderers should not be supportedby the towns through which they passed. Under a 1496Act 25 , for example, a wandering person who could notshow means of maintaining themselves was liable to beplaced in the stocks as a vagrant, and ordered to avoidtown. In the 16th century, the law began to regard thevagrant not merely as ‘idle’, but a criminal menace.Around this time a person was liable, on their firstconviction for vagrancy, to be whipped; for a secondoffence, to have the top of their right ear cut off; for athird, to be executed 26 .Alongside the vagrancy laws operated the poor law.The Poor Law Act 1601 established, at the level of thelocal parishes, a system of relief for unemployed, agedand infirm persons, or ‘parish paupers.’ Funded by a‘poor rate’ on parish properties, able-bodied pauperswere given ‘indoor relief’ – that is, work, food andshelter in the parish workhouse – and the infirm wereaccommodated in poorhouses. Some parishes developedforms of ‘outdoor relief’, including allowances and wagesupplements. Further legislation, such as the SettlementAct 1662, empowered the parish overseers to turnaway and remove potential paupers back to their homeparishes.After the colony of New South Wales was established,colonial administrators adopted England’s vagrancy lawsbut not the poor law. The English Vagrancy Act 1824,which the colonial administration adapted to NSWin 1835, restated the different categories of vagrants,prescribed considerably less harsh penalties than the16th century legislation, but proscribed a very widerange of behaviours. Offences under this legislationand subsequent Vagrancy Acts included in the offenceof ‘being without visible means of support’, conductsuch as drunkenness, betting, collecting alms underfalse pretences, offensive language and lodging withAborigines. For the rest of the 19th century, NSWvagrancy laws were used as a ‘catch-all’ for dealingwith perceived problems of public order and disorderlyconduct, including monitoring ex-convicts and excludingAboriginal persons from towns.As for the poor law, the English Poor Law Act 1834restructured the old parish-based system of relief bymerging workhouses, abolishing supplementaryallowances, and insisting upon the principle of ‘lesseligibility’: that the conditions of life in the workhouseshould be less comfortable than those obtained fromany kind of paid employment. In early NSW, where theworkforce was largely comprised of convicts, the penalsystem, rather than a poor law, regulated the workforce.For destitute ex-convicts and other settlers, charities likethe Benevolent Society operated a marginal system ofrelief, including the Benevolent Asylum.The institutions of the poor law and charitable reliefwere influential precursors to the twentieth centurywelfare state, which tended to view poverty and homelessas social problems, rather than individual legal problems.For most of the twentieth century, however, vagrancyoffences remained on the statute books. The SummaryOffences Act 1970 narrowed the definition of vagrancy to‘having no visible means of support or insufficient lawfulmeans of support’ (section 22), but many of the widerrange of public order offences previously prosecuted asvagrancy were enacted as offences in their own right.25. 11 H 7, c 2 (1496).26.22 H VIII c 12 and 27 H VIIII c 25.homelessness 21
By this time, vagrancy and drunkenness offences, inparticular, had begun to be criticised for punishingpersons who really needed social support and medicaltreatment – criticisms highlighted by the Commission ofInquiry into Poverty 27 ). In NSW, vagrancy, drunkennessand a number of related offences were abolished with thepassage of the Summary Offences (Repeal) Act 1979.Nonetheless, homeless persons remain highly visibleto police and are particularly likely to be the subjectof criminal proceedings. The NSW Law and JusticeFoundation’s ‘Legal Needs Survey 2003’ found thathomeless persons were more than twice as likely aspersons with housing to have experienced a criminal lawproblem. 28 The offence of vagrancy remains repealed,but some related offences, such as offensive conductand offensive language, have been revived under theSummary Offences Act 1988. In 1998, ahead of theSydney Olympics, amendments to the Summary OffencesAct 1988 gave police the power to ‘move on’ persons(section 28F). Drunkenness remains decriminalised, butthe Intoxicated Persons Act 1979, which was intended tobe legislation on a ‘social welfare’ rather than ‘criminal’model, is nonetheless coercive and brings homelesspersons into contact with the criminal justice system.Under the Intoxicated Persons Act 1979, police still havepowers to ‘detain’ persons who are found ‘intoxicated in apublic place… behaving in a disorderly manner’ (section5(1)), and detained persons are held in ‘proclaimedplaces’, including certain welfare services – and policestations.Additionally, some varieties of ‘public’ space are subjectto specific legal regimes that can disproportionatelyaffect homeless persons. The spaces of public transportare governed by the Rail Safety Act 2002 and the RailSafety (General) Regulation 2003, which contains 27separate offences relating to conduct, including:> offensive behaviour and language and spitting (clause13);> wearing soiled clothing (clause 14);> smoking (clause 15);> eating and drinking (clause 16);> consuming alcohol (clause 17);> being intoxicated (clause 18); and> ‘unauthorised commercial activities’, including begging(clause 19);not to mention offences relating to tickets.Offences and fines relating to car parking, registrationand licensing are significant issues for homeless peoplewho rely on a car for shelter.Another issue is that increasingly large parts of whatlooks like the public spaces of towns and cities areactually ‘mass private property’. 29 These spaces, suchas shopping malls and car parks, are generally open toeveryone, but are heavily regulated aesthetically as towhat sorts of persons and activities fit in – and thosewho do not fit in are liable to be refused entry or evictedthrough selective enforcement of the owner’s right topossession.SquaTTiNgSquatting is the occupation of property without a legalright to do so. Buildings that are regularly occupied bysquatters often come to be known as ‘squats.’ In someinstances, squats are more or less organised, with thesquatters co-operating to provide some level of amenityand comfort in the building – and sometimes to makea political point about housing. More often, though,squats are uncomfortable, insecure and even dangerousplaces.Being without a legal right to occupy premises, squattersare trespassers, and can be evicted by a person entitled topossession of the property. The police also have powersunder the provisions of the Inclosed Lands Protection Act1901 (NSW) to evict and charge trespassers who refuseto leave premises.SuppOrTed accOmmOdaTiONaSSiSTaNce prOgram (Saap)The Supported Accommodation Assistance Program(SAAP) funds non-government organisations to provideaccommodation and other support to homeless personsand persons at risk of becoming homeless. SAAP isfunded by Commonwealth and States governmentsunder the provisions of the Supported AccommodationAssistance Program Act 1985 (Cth).In terms of housing, the legal relationship betweenSAAP services and their clients is usually that of landlordand lodger. Depending on the circumstances, however,a resident of a SAAP service may be a tenant under theResidential Tenancies Act 1987: see, for example, Ellis vCity Women’s Hostel 30 .27. Homeless people and the law: report of the Commission of Inquiry into Poverty, R Sackville, AGPS, Canberra, 1976.28. No home, no justice: the legal needs of homeless people in NSW, Law and Justice Foundation of NSW, Sydney, 2005; http://www.lawfoundation.net.au/report/homeless.29. ‘Modern private security: its growth and implications’, C Shearing & P Stenning, in Crime and justice: an annual review of research, vol 3, MTonry & N Morris (eds) University of Chicago Press, 1981.30. (1997) RTT 97/022789 ; available at www.austlii.edu.au/au/cases/nsw/NSWRT/1997/258.html.22HOT TOPICS 57 > Shelter
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