Legal Discrimination Faced by Homeless People in Australia

This essay delves into the complex issue of homelessness in Australia, examining its definition, causes, and the significant impact it has on affected individuals and society. It highlights the structural injustice faced by homeless people, particularly concerning discriminatory laws and their enforcement, such as public offense laws. The essay analyzes how these laws, intended for public order, disproportionately affect homeless individuals, often punishing them for basic survival activities. It explores the legal framework, including the Summary Offences Act 1988 (NSW), and its implications. The essay proposes potential solutions, including law reforms that consider the circumstances of homeless individuals, offering alternatives to punitive measures like fines, such as community work, education, and rehabilitation programs. The goal is to address the root causes of homelessness and promote a more just and equitable legal approach.

Essay

INTRODUCTION
Homelessness refers to the problem in which people are not having housing facilities. It
is considered as one of the biggest national issue for the citizen of Australia. Under this situation,
homeless people are not provided with sufficient aid to maintain their fundamental living. The
traditional approach of the law, involves the notion of ‘equality’ in law which eradicate
discrimination by pursuing equal treatment for everyone under the law. However, formal
equality failed in addressing the underlying issue of those who are in disadvantage. Therefore,
application of certain laws may be recognised as discriminatory law as it discriminates a certain
group of people in the society. The focus of considering this essay is to determine the structural
injustice faced by people affected by homelessness.
This essay will examine the structural injustice faced by homeless people through
defining homelessness, analysing several major causes of homelessness, evaluating some
established laws in different levels of government which unequally affect homeless people in
comparison to the public highlighting the Public offence law and provide a possible solution to
tackle homelessness.
Definition of homelessness
Chamberlain and McKenzie’s 1purposed definition of homelessness is divided into three
major segments: primary, secondary and tertiary homelessness. Primary homelessness is
identified by the characteristic of individuals who do not have access to conventional household,
for example the people who are living on the streets. Secondary homelessness is those who
reside in a short-term or ‘crisis’ household, victims of domestic violence are often categorized in
this classification. Tertiary homelessness refers to the people who cannot afford stable
accommodation and live in shared houses in a long period of time. They are typically identified
as low-income earners and have a seasonal occupation. In this essay, primary homelessness is the
target audience of the solution.
Being homeless can create large impact on the affected individual’s lifestyle, health, and
safety which ultimately, impact the society. Campaign and protests are made to protect the
homeless people’s right, as it is their fundamental human right 2.
1 ? Chamberlain and McKenzie, above n 1.
2 ? Dowse, L., Wiese, M. and Smith, L., 2016. Workforce issues in the Australian National Disability
Insurance Scheme: Complex support needs ready?. Research and Practice in Intellectual and Developmental
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Causes of homelessness
There were various causes that contributed to the growing number of homelessness such
as poverty, low income sources, long-term and short-term unemployment. Along with external
pressures such as high rental cost, low real estate development growth and essential living
expenses.
Impact of homelessness
According to the records of Census, in 2001 Approx. 100, 000 people were homeless in
Australia, 10% were under 12 years, 36% belongs to the age group of 12 to 14, 30% from 25 to
44 years and 24% were greater than 45 years.3
Another most affected group is identified as Australian women. According to the report ABS,
out of total population of Australia 42% percentage are considered as homeless female.4 This has
created a major impact on the safety and security of these women resulting in cases like rape and
violence. The major factor of female homelessness is domestic violence, family duress and
sexual assault, due to these reason, they had no choice but to leave their home to guarantee their
safety. 5
Discriminatory impact of laws on homeless people
As mentioned in the introduction, the foundation of law is on the basis on equality –
everyone under the law is treated equality regardless of race, sex and background.6 However, it
often put the interest of the majority public interest before the special disadvantaged group,
hence the disadvantaged population are subject to burden, but not the benefits, of the law.7
Different levels of governments in Australia have various law that is against homeless people.
Disabilities.3(1). Pp.54-64.
3 ?Australian Bureau of Statistics, Counting the Homeless 2001,2003,p4.
<http://www.ausstats.abs.gov.au/ausstats/free.nsf/0/5AD852F13620FFDCCA256DE2007D81FE/$File/
20500_2001.pdf>
4 ? Ibid
5 ? Orr, G. and Gauja, A., 2014. Third-Party Campaigning and Issue-Advertising in Australia. Australian
Journal of Politics & History. 60(1). Pp.73-92
6 ? Leiboff, M. & Thomas, M. 2014, Legal theories: contexts and practices, 2nd ed., Thomas Reuters,
Rozelle, N.S.W., PP.486-488
7 ? Leiboff, M. & Thomas, M. 2014, Legal theories: contexts and practices, 2nd ed., Thomas Reuters,
Rozelle, N.S.W., PP.486
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For example, the state and territory government have the vagrancy and trespassing laws, the local
council have anti-sleeping and anti-camping by laws. NSW’s current governing law in the
related area is the Summary Offence Act 1988.8
Homeless people are impacted as the laws prohibit a range of essential areas in life for
them in the public space. Therefore, when police officers enforce these laws, homeless people
are directly affected as it is recognised as a criminal offence. 9Public space offences for example,
is linked to homelessness as well as drinking in public, begging, offensive languages10 and
littering. Consequently, homeless people are unfairly punished for carrying out their basic daily
routine in the public. Despite the public safety being a priority, punitive methodology to public
law infringement of the homeless people is ignoring the underlying causes of their offence.
Compounding with the heavy fines and infringements, it has caused overwhelming distress on
the already struggling victim of homelessness which ultimately, fails to direct them to
appropriate services.
The punitive approach is punishing instead of aiding those who are in needs, which
consequently forms the structural injustice of the homeless population in our society. The failure
to differentiate circumstances of certain disadvantaged population have led to homeless
individuals being punished because of the limited access to shelter and resort to unlawful
occupation of public space.11
Possible solution of homelessness
Law reforms of the public offence laws across different levels of government is
suggested such as giving special considerations to the homeless people by differentiating people
who have a private dwelling and people who do not. Therefore, guidelines can be established to
support law enforcement officers to differentiate and limit the fines given to the homeless
population.
The government bodies should also focus on approaches such as facilitation and
education instead of punitive in relation to homelessness induced public offences. Therefore, the
8 ? Summary Offences Act 1988 (NSW)
9 ? Emily McCarron and Suzie Forell ‘No home, no justice? The legal needs of homeless people is NSW
(2005) 19(2) Law and Justice Foundation of NSW 18,18.
10 ? Summary Offences Act 1988 (NSW) s4A
11 ? Jeremy Waldron ‘Homelessness and Community’ (2000) 50 University of Toronto Law Journal 371, 397.
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following approaches are suggested as a part of law reform: The government should seek to help
homeless people with their existing fines and infringements. As inability to access education,
training and learning facilities is a major factor contributing to homelessness, instead of
monetary punishments, the government can establish a system which allow homeless people to
address their fine by participating in community work, training and education courses or
rehabilitation of their drug and alcohol abuse. A ‘discounted’ fine may also be introduced for the
people who are homeless and suffer from mental illnesses by categorizing the underlying
condition of their homeless situation.
CONCLUSION
This essay has examined the major causations of homelessness and the discriminatory
impact of laws on the people experiencing homelessness. As the law put the interest of the
majority public interest before the special disadvantaged group, the disadvantaged population are
often subject to burden, but not the benefits, of the law. It forms a structural injustice for the
homeless people in our society who are essentially discriminated by a few areas of the law. It is
evident that more consideration should be given upon disadvantage circumstances of a minority
group and search for the underlying condition to seek sustainable solution. Amendment of
current legislations is also recommended along with development of facilitation system that is
aimed to assist instead of punishing to ensure the structural injustice to be resolved as homeless
people, are also a part of our society and should be treated with justice.
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REFERENCES
Legislation
Summary Offences Act 1988 (NSW)
Journals
Chris Chamberlain and David McKenzie ‘Understanding Contemporary Homelessness: Issues of
Definition and Meaning’, (1992) 27 Australian Journal of Social Issues 276.
Dowse, L., Wiese, M. and Smith, L., 2016. Workforce issues in the Australian National
Disability Insurance Scheme: Complex support needs ready?. Research and Practice in
Intellectual and Developmental Disabilities.3(1). Pp.54-64.
Emily McCarron and Suzie Forell ‘No home, no justice? The legal needs of homeless people is
NSW (2005) 19(2) Law and Justice Foundation of NSW 18,18.
Jeremy Waldron ‘Homelessness and Community’ (2000) 50 University of Toronto Law Journal
371, 397.
Orr, G. and Gauja, A., 2014. Third-Party Campaigning and Issue-Advertising in Australia.
Australian Journal of Politics & History. 60(1). Pp.73-92
Online
Australian Bureau of Statistics, Counting the Homeless. 2001,2003, p4.
<
http://www.ausstats.abs.gov.au/ausstats/free.nsf/0/5AD852F13620FFDCCA256DE2007D81FE/
File/20500_2001.pdf> [Accessed On : 30th August 2017].
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