Lynch, Philip --- "Begging For Change: Homelessness And The Law" [2002] MelbULawRw 35; (2002) 26(3) Melbourne University Law Review 690
[*] LLB (Hons) (Melb); Solicitor, Allens Arthur Robinson; Coordinator, Homeless Persons’ Legal Clinic (‘the Clinic’). The case studies, conclusions and recommendations of this article are largely based on the author’s experiences while working at the Clinic. The views expressed are those of the author and are not necessarily views held by either the Clinic or Allens Arthur Robinson. All names in this article have been changed to protect privacy.
[1] Anatole France, The Red Lily (1894).
[2] Meg Mundell, ‘Drunk, Begging, No Ticket: $100 000’, The Age (Melbourne), 19 January 2002, News Extra 4.
[3] Michael Franti, ‘Home’ on Spearhead, Home (1994) [CD] track 7.
[4] Robert Frost, ‘The Death of the Hired Man’ in Edward Connery Latham (ed), The Poetry of Robert Frost (1969) 34, 38.
[5] See, eg, Supported Accommodation and Assistance Act 1994 (Cth) s 4.
[6] Sue Casey, ‘Single Women and Homelessness: Which Way Is Home?’ (Occasional Paper No 11, Catholic Commission for Justice Development and Peace, School of Social Work, University of Melbourne, 2002) 8.
[7] Ian Charles, ‘A Roof over Your Head Doesn’t Guarantee the Safety of a Home’ (2002) 2 Urban Seed 2, 2.
[8] Chris Chamberlain and David McKenzie, ‘Understanding Contemporary Homelessness: Issues of Definition and Meaning’ (1992) 27 Australian Journal of Social Issues 274.
[9] Chris Chamberlain, Counting the Homeless: Implications for Policy Development (Occasional Paper No 2041.0, Australian Bureau of Statistics, 1999).
[10] Ibid 1, 9–11; see generally Chamberlain and McKenzie, ‘Understanding Contemporary Homelessness’, above n 8.
[11] See, eg, Vagrancy Act 1966 (Vic) s 6(1)(d); Transport (Passengers and Rail Freight) Regulations 1994 (Vic) reg 325(d); Police Offences Act 1935 (Tas) s 8(1)(a); Police Act 1892 (WA) s 65(3); Summary Offences Act 1953 (SA) s 12; Summary Offences Act (NT) s 56(1)(c). The Australian position can be contrasted with that of the United States where anti-begging provisions in many jurisdictions have been struck down on the basis that they infract fundamental constitutional and human rights: see, eg, Loper v New York City Police Department, [1993] USCA2 815; 999 F 2d 699 (2nd Cir, 1993); Blair v Shanahan, 775 F Supp 1315, 1325 (N D Cal, 1991).
[12] Carol, a 17 year old homeless girl, told the Clinic, ‘I don’t like it ’cos it feels wrong’. See also Hartley Dean and Margaret Melrose, ‘Easy Pickings or Hard Profession? Begging As an Economic Activity’ in Hartley Dean (ed), Begging Questions: Street-Level Economic Activity and Social Policy Failure (1999) 83, 90.
[13] Michael Horn and Michelle Cooke, A Question of Begging: A Study of the Extent and Nature of Begging in the City of Melbourne (Research Paper, Hanover Welfare Services, 2001) 14–15.
[14] Ibid 21–2.
[15] See, eg, Peter Kemp, ‘The Characteristics of Single Homeless People in England’ in Roger Burrows, Nicholas Pleace and Deborah Quilgars (eds), Homelessness and Social Policy (1997) 69, 75–9. See generally Hartley Dean (ed), Begging Questions: Street Level Economic Activity and Social Policy Failure (2000). See also K Driscoll and L Wood, A Public Life: Disadvantage and Homelessness in the Capital City (1998).
[16] See generally Maria Foscarinis, ‘Downward Spiral: Homelessness and Its Criminalization’ (1996) 14 Yale Law and Policy Review 1, 60.
[17] Arthur Schafer, Down and Out in Winnipeg and Toronto: The Ethics of Legislating against Panhandling (1998) Caledon Institute of Social Policy 11 <http://www.caledoninst.org/
panhndle.pdf> at 26 September 2002.
[18] See, eg, International Covenant on Civil and Political Rights, opened for signature
19 December 1966, 999 UNTS 171, art 25 (entered into force 23 March 1976).
[19] Michael Horn, Social and Democratic Exclusion: Giving Voice to the Homeless (Research Paper, Hanover Welfare Services, 2001).
[20] Hanover Welfare Services estimates that one third of homeless people are not registered to vote: ibid; while the Australian Federation of Homelessness Organisations (AFHO) estimates that at least 90 per cent of homeless people are not registered to vote: AFHO, ‘Proposals Threaten Voting Opportunities for Homeless and Young Australians’ (Press Release, 27 June 2001) <http://www.afho.org.au> at 26 September 2002.
[21] Submission to Joint Standing Committee on Electoral Matters, Parliament of Australia, Inquiry into the 2001 Federal Election (2002) (Brianna Harrison and Philip Lynch, Homeless
Persons’ Legal Clinic) <http://www.aph.gov.au/house/committee/em/elect01/subs/sub145.pdf>
at 26 September 2002.
[22] Social Security Act 1991 (Cth) ss 593–607B.
[23] Social Security Act 1991 (Cth) s 606.
[24] See generally Australian Council of Social Services, Breaching the Safety Net: The Harsh Impact of Social Security Penalties (2002) <http://www.acoss.org.au/info/2001/305x.doc>
at 1 October 2002. For a discussion of this issue in the United States context, see Foscarinis, above n 16, 15.
[25] Social Security Act 1991 (Cth) ss 624–630BD.
[26] Australian Council of Social Services, above n 24, 22–3.
[27] See, eg, the story of Aron: ibid 20.
[28] See also ibid 21.
[29] Ibid.
[30] Foscarinis, above n 16, 63.
[31] Larissa Behrendt, Aboriginal Dispute Resolution (1995) 108.
[32] Alice Walker, Anything We Love Can Be Saved: A Writer’s Activism (1997) 189.
[33] See, eg, National Coalition for the Homeless, Illegal to Be Homeless: The Criminalization of Homelessness in the United States (2002) 7 <http://www.nationalhomeless.org/crimreport/
CrimMaster.pdf> at 1 October 2002.
[34] Examples of such laws in Victoria include the Summary Offences Act 1966 (Vic); the Vagrancy Act 1966 (Vic) and numerous local laws (such as the City of Melbourne’s Activities Local Law 1999). See also Police Offences Act 1935 (Tas) pt II; Police Act 1892 (WA) pts VI, VII; Summary Offences Act 1953 (SA); Summary Offences Act (NT) pt VIA; Summary Offences Act
1988 (NSW) pt 2; Vagrants, Gaming and Other Offences Act 1931 (Qld); Criminal Code Act 1899 (Qld) pt 2.
[35] See, eg, Justin v City of Los Angeles (Unreported, C D Cal, 5 December 2000, No CV-00-12352 LGB (AIJx)); Pottinger v Miami, 810 F Supp 1551 (SD Fla, 1992); Streetwatch v National R R Passenger Corporation, 875 F Supp 1055 (SDNY, 1995); State of Nevada v Father Richard, 836 P 2d 622 (Nev, 1992); Johnson v City of Dallas, 860 F Supp 344 (ND Tex, 1994).
[36] Homeless Person’s Legal Clinic, ‘Press Release — 14 December 2001’ (Press Release, 14 December 2001) 1.
[37] Jeremy Waldron, ‘Homelessness and Community’ (2000) 50 University of Toronto Law Journal 371, 395–7 (emphasis in original) (citations omitted).
[38] Foscarinis, above n 16, 56.
[39] Caitlin English, ‘Legal Services to Homeless People in the United States’ (Paper presented at the Homelessness and the Law: Papers and Reports from the Council to Homeless Persons Forum, Melbourne, 18 July 2000) 12. See also ibid 58.
[40] Waldron, above n 37, 387.
[41] Ibid 373.
[42] Ibid 406.
[43] Foscarinis, above n 16, 3.
[44] Ibid 8 (citations omitted).
[45] The District Court in Pottinger v Miami, 810 F Supp 1551 (SD Fla, 1992) suggested a three-part test for conducting this inquiry. First, is the offender homeless? Second, does the offender have available suitable non-public places to carry out the activities? Third, are the activities being punished essential or involuntary?
[46] Franz Fanon, The Wretched of the Earth (Constance Farrington trans, 1967 ed) 164 [trans of: Les Damnés de la Terre].
[47] Chamberlain, Counting the Homeless, above n 9, 35.
[48] Australian Institute of Health and Welfare, Supported Accommodation and Assistance Program National Data Collection: Annual Report 1999–2000 (2000) 8.
[49] Rage Against the Machine, ‘New Millennium Homes’ on Rage Against the Machine, The Battle of Los Angeles (1999) [CD] track 10.
[50] Paulo Freire, Pedagogy of the Oppressed (Robert Barr trans, 1994 ed) 25–6 [trans of: Pedagogía da Esperança].
[51] bell hooks, Salvation: Black People and Love (2001) 205.
[52] For a discussion of this issue in the United States context, see Foscarinis, above n 16, 19.
[53] Jonathon Mott, ‘Homelessness and the Law: Confronting the Issues and Providing Assistance’ (Paper presented at the Homelessness and the Law: Papers and Reports from the Council to Homeless Persons Forum, Melbourne, 18 July 2000) 6.
[54] See, eg, Dean and Melrose, above n 12, 87.
[55] Waldron, above n 37, 403.
[56] Ibid.
[57] Bella Stagoll and Philip Lynch, Promoting Equality: Homeless Persons and Discrimination (2002) 4, 10–18.
[58] Ibid 4.
[59] Poverty and the International Covenant on Economic, Social and Cultural Rights, UN ESCOR, 4th Comm, 25th sess, Agenda Item 5, UN Doc E/C.12/2001/10 (2001).
[60] Interview with Netty Horton, Chief Executive Officer, Council to Homeless Persons (Melbourne, 17 July 2002).
[62] See generally Stagoll and Lynch, above n 57, 15.
[63] See generally ibid 4–6, 19–35.
[64] Waldron, above n 37, 403.
[65] National Homelessness Alliance, ‘Begging Debate Must Address Wider Issues of Poverty, Addiction and Access to Services’ (Press Release, 3 November 2000) <http://
www.homeless.org.uk/db/20001010095345> at 26 September 2002.
[66] Chamberlain, above n 9, 2–3.
[67] Quoted in Ian McIntosh and Angus Erskine, ‘“I Feel Rotten. I Do, I Feel Rotten”: Exploring the Begging Encounter’ in Hartley Dean (ed), Begging Questions: Street Level Economic Activity and Social Policy Failure (2000) 183, 192.
[68] Waldron, above n 37, 383.
[69] bell hooks, Sisters of the Yam: Black Women and Self-Recovery (1993) 150 (emphasis in original).
[70] Alice Walker, The Colour Purple (1982) 203.
[71] Alice Walker, Anything We Love Can Be Saved, above n 32, 214 (emphasis in original).