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Walsh, Tamara --- "'Waltzing Matilda' One Hundred Years Later: Interactions Between Homeless Persons and the Criminal Justice System in Queensland" [2003] SydLawRw 5; (2003) 25(1) Sydney Law Review 75

‘Waltzing Matilda’ One Hundred Years Later: Interactions Between Homeless Persons and the Criminal Justice System in Queensland

TAMARA WALSH[*]


1. Introduction

‘Waltzing Matilda’, written by Banjo Patterson in the late nineteenth century, is one of the most widely recognised Australian songs throughout the world. Indeed, there have been calls for it to be made Australia’s national anthem as it is generally considered to celebrate freedom and adventure. What few Australians realise is that this song tells the tale of a homeless man who commits suicide to prevent being arrested for stealing a sheep, an offence that he presumably committed as a means of providing himself with sustenance.

‘Matilda’ is nineteenth century slang for a swag, that is, a cloth or blanket in which a ‘swagman’, or wanderer, carried his belongings. Thus, ‘waltzing matilda’ means to travel the open road with a swag on your back, thereby denoting that the man described in the song is homeless, with few possessions and no reliable source of food. Further evidence of his poverty is provided by the fact that he stuffs the sheep (‘jumbuck’) he steals into his ‘tuckerbag’, that is, a bag in which food is kept. The fact that the swagman preferred to die rather than be caught by the police (‘troopers’) implies that the penalty for theft of a sheep at the time the song was written involved the curtailment of an offender’s freedom, presumably by virtue of a lengthy prison sentence, or perhaps worse.

One hundred years later, homeless persons are still amongst the most criminalised of all population groups in Australia, and they are still mostly arrested and imprisoned for minor property offences and summary offences.[1]

Queensland is one of the only jurisdictions in Australia to retain offences that are directly and specifically targeted at homeless persons. ‘Vagrancy’ is still an offence in Queensland under s4 of the Vagrants, Gaming and Other Offences Act 1931 (Qld) (hereinafter the Vagrants Act), and it is punishable by a penalty of $100 or six months’ imprisonment. Offences that amount to vagrancy include having no visible lawful means of support, begging and habitual drunkenness. Such behaviour is generally associated with poor and homeless people, and thus the offence of vagrancy effectively criminalises homelessness.

While it has been claimed by Queensland Police that it is against departmental policy for these provisions to be used,[2] the statistics demonstrate that many people are still being arrested for and charged with vagrancy. In 2000–2001, 943 people were charged with these three forms of vagrancy alone.[3] Of these, 430 (46 per cent) were convicted but not punished.[4] The remainder were penalised, with 13 going directly to gaol.[5]

The offence of vagrancy is a source of grave injustice. As will be seen, the provisions target already disadvantaged members of society, and they are viewed with contempt by the higher courts. They also place significant pressure on the public purse, both through the diversion of police resources and their contribution to the prison population.

This paper will provide an overview of the commonly cited reasons for the retention of the offence of vagrancy on modern statute books. It will be recommended that the offence of vagrancy be repealed in Queensland, and that offences akin to it throughout Australia be repealed also.

2. The History of the Offence of Vagrancy

Queensland’s vagrancy provisions originate from the English Poor Law which was first enacted in the twelfth century to deal with social conditions subsequent to the Black Death.[6] The first Act criminalising vagrancy was passed in 1349. A consolidating Vagrancy Act was passed in England in 1824 and it is this legislation that formed the basis for similar legislation in the Australian colonies.[7]

Initially, the main form of punishment for vagrancy was corporal; however penalties became increasingly punitive and by 1530 a vagrant could lose an ear, be tied to a cart and whipped, or even executed.[8] By the mid nineteenth century, imprisonment had become the most likely outcome of a vagrancy conviction; in 1858, 42 per cent of women in prison were serving sentences for vagrancy.[9]

The crime of vagrancy stemmed from the social perception of homelessness as a form of deliberate deviance, linked to both idleness and crime. As the Protestant work ethic became secularised and internalised, poverty and homelessness were increasingly seen as symptomatic of individual moral failing.[10] Vagrancy was viewed as a choice in favour of idleness at the expense of honest hard work, and it was generally believed that ‘by far the greatest number come to want and wretchedness through their own immoralities’.[11]

The interference of the voluntary sector, police and magistrates into the lives of the poor and homeless was justified as being necessary to save them from themselves. ‘Asylums’[12] were built to house and provide work to those unable to support themselves, the result being that such persons were both patronised and stigmatised. Police were known to arrest homeless persons ‘for their own good’, and magistrates would send the homeless to gaol and their children to orphanages in an attempt to discipline them.[13]

Institutionalisation and imprisonment of homeless people were also justified by concerns for public welfare.[14] The upper classes called for such ‘undesirables’ to be removed from public view in order that their delicate sensibilities might be protected, and so young people and servants might be prevented from following their example.[15] There was also a concern amongst the upper echelon of colonial society that vagrants and beggars reduced a town’s aesthetic appeal – a desire to impress visiting notables required that such persons be swept from the streets.[16] In addition, it was widely believed that ‘idle hands’ were certain to turn to crime, so the arrest and conviction of beggars and vagrants were considered to be necessary to nip serious crime in the bud.[17] Punitive approaches to vagrancy resulted in homeless people being frequently brought before the courts, leading to the perception that these ‘sinners’ were also criminals.[18]

Thus, the arrest and detention of homeless people were traditionally justified in terms of both social and public welfare, and prisons and ‘asylums’ were considered to have the twin functions of public order and remoralisation.[19]

3. Homeless People and the Criminal Justice System in Australia Today

Homeless persons are still particularly vulnerable to police contact, arrest and imprisonment in our modern society. In NSW, approximately 10 per cent of prisoners report being homeless or at risk of homelessness prior to their incarceration.[20] In a study conducted in Brisbane, over 50 per cent of a sample of 70 intellectually disabled homeless people had been charged with an offence in the past and a further 31 per cent described themselves as ‘known to police’.[21] In a study conducted in Melbourne, 29 per cent of a sample of 383 homeless persons reported a history of incarceration.[22]

A. Vagrancy in Queensland

In Queensland, homeless persons are directly targeted by the Vagrants Act, which lists a number of offences that are considered to amount to vagrancy, including where a person:

has no visible lawful means of support, or insufficient lawful means, where he/she cannot give to the court’s satisfaction a good account of his/her means of support (s 4(1)(a)), except where that person is bona fide out of work and bona fide in search of employment (s 4(1A));
being an habitual drunkard, behaves in a riotous, disorderly or indecent manner in any public place (s 4(1)(c)); and
loiters or places himself/herself in a public place to beg or gather alms (s  4(1)(k)).

The retention of vagrancy as an offence in Queensland amounts to the criminalisation of homelessness. The offence of begging criminalises conduct that is unequivocally indicative of extreme poverty and/or homelessness, and the offence of having no visible lawful means of support has been used by police to arrest homeless persons who sleep in public places and/or eat out of garbage bins.[23] Section 4(1A) states that those who are bona fide unemployed and in search of employment are exempt from the offence under s4(1)(a); however this does not assist homeless persons who are unable to compete in the labour market due to their impoverished state, and want of a fixed address. The offence of being an habitual drunkard under the Vagrants Act also contributes to the criminalisation of homelessness. Alcoholism is extremely prevalent amongst homeless persons,[24] so this offence also leads to the over-policing and over-imprisonment of the homeless.

In 1999–2000, 2460 people were arrested for trespass/vagrancy in Queensland.[25] Of these, 282 were charged with begging, and 15 were charged with having no visible lawful means of support.[26] Eighty three of the 297 people charged with begging or insufficient lawful means of support were imprisoned, and a further 112 received a fine whereby default would lead directly to imprisonment.[27] Only one received a conviction without penalty, and only 12 received a community service order.[28] In addition, 347 people were convicted of drunkenness, four of whom were imprisoned.[29] A further 135 received a fine whereby default would lead directly to imprisonment.[30] Only one person received a community service order for drunkenness.[31] (See Tables 1 and 2) Thus, the offence of vagrancy is a significant pathway into the prison system for the poor and homeless.

Table 1: Disposal of begging and no visible lawful means of support charges in Queensland Courts 1999/2000[32]

Fine (with default imprisonment)
112
Imprisonment
83
Suspended sentence
40
Probation
24
Good behaviour bond
14
Community service order
12
Conviction no penalty
1
Other
11
Total
297

Table 2: Disposal of habitual drunkenness charges in Queensland Courts 1999/2000[33]

Conviction no penalty
137
Fine (with default imprisonment)
135
Reprimand
56
Probation
7
Good behaviour bond
7
Imprisonment
4
Community service order
1
Total
347

B. Vagrancy Throughout Australia

Vagrancy offences have been abolished in most Australian states. However, a number of other offences and provisions have sprung up in their place, many of which have the same substantive effect as the vagrancy provisions they replaced.

Queensland is one of only two Australian jurisdictions to have failed to repeal the offence of having no visible lawful means of support. The offence has also been retained in Western Australia under s 65(1) of the Police Act 1892 (WA). Also, Queensland is one of six Australian jurisdictions to retain begging as an offence. Begging is still a crime in Western Australia (Police Act 1892 (WA) s 65(3)), South Australia (Summary Offences Act 1953 (SA) s 12), Tasmania (Police Offences Act 1935 (Tas) s 8(1)(a)) and the Northern Territory (Summary Offences Act 1923 (NT) s 56(1)(c)). In Victoria, the separate offences of begging and soliciting alms under false pretences remain in the Vagrancy Act 1966 (Vic) (ss 6(1)(d), 7); however the ‘false pretences’ requirement in the latter offence may prevent its use against homeless persons in genuine need of support. Regardless, it seems almost certain that the Victorian provisions will be repealed in the very near future.[34] Further, Queensland is one of only two Australian states to have failed to decriminalise public drunkenness. In Victoria the offence of habitual drunkenness was repealed in 1997, but public drunkenness is still an offence (Summary Offences Act 1966 (Vic), ss 13, 14 and 16).

In addition, many other Australian jurisdictions have laws in place that achieve the same results as these provisions. For example, in the Northern Territory, being found without lawful means of support ceased to be an offence in 1973.[35] However by-law 103 of the Darwin City Council By-Laws makes it an offence to sleep in a public place at any time between sunrise and sunset.[36] One hundred and eight people were issued with infringement notices for this offence between January and June 1999, 62 of whom were gaoled.[37]

Similarly, in New South Wales, the offences of having insufficient lawful means of support and begging were repealed in 1979.[38] However under s 28F of the Summary Offences Act 1988 (NSW), police have the power to ‘give a direction’ to a person in a public place if that person’s presence is likely to cause fear to another person. Notably, there is no requirement that another person be present at the time the direction is given. Failure to move on as directed may attract a fine of up to $220.[39] It is well established that these powers are disproportionately used against homeless people.[40] In addition, during the Sydney Olympics, there were a number of legislative enactments increasing police powers and outlawing activities associated with poverty and homelessness. For example, s 4 of the Sydney Harbour Foreshore Authority Regulation 1999 (NSW) made it an offence to (inter alia) collect money, busk or sleep out. Such actions were punishable by a fine of up to $2200.[41] Police and other officials were also given extensive powers to remove from a public area anyone causing an ‘annoyance or inconvenience’ to other persons.[42]

In NSW, Tasmania and ACT, while intoxicated persons cannot be charged with drunkenness, they can be detained in prescribed places for the duration of the period of their intoxication.[43] While on its face this appears to be a positive step, intoxicated persons are more often than not still detained in police cells.[44] Indeed, the NSW Intoxicated Persons Act 1979 was amended in 2000 to restrict authorised places of detention to police cells and detention centres.[45] Prior to this, intoxicated persons could be detained in a variety of other ‘proclaimed places’ including hostels and other supported accommodation facilities.

Thus, most Australian jurisdictions have recognised the social injustice and cost ineffectiveness of vagrancy offences, and have repealed them. However, some of these jurisdictions have laws in place that achieve the same results. Ironically, such modern street-sweeping offences may have a broader application than the original criminal offences. As argued below (see Section V, Part B), the retention of these provisions on statute books throughout Australia results in increased rates of arrest and detention of socially excluded, marginalised people who are in need of treatment, understanding and practical assistance rather than punishment.

4. Why is Vagrancy Still an Offence?

As will be seen, the treatment of homeless persons and the way in which the offence of vagrancy is used has changed little since the nineteenth century. The enforcement of vagrancy laws against homeless people is still justified by the police on the basis of their duty to ensure public welfare and safety, as well as a concern for the social welfare of homeless individuals. However, it is argued that the public safety and social welfare justifications for the retention of the offence of vagrancy were not persuasive 100 years ago, and they are not persuasive now. Rather, they mask the real reasons behind the retention of the offence, which are based on notions of the ‘deserving and undeserving’ and are aimed at maintaining capitalist modes of production.

A. The Public Welfare Justification

As noted above, the offence of vagrancy was traditionally considered to be a mechanism for preventing crime, as it was believed that those who were idle would inevitably engage in criminal conduct of some kind. This belief is still held today: public safety and welfare are still the main arguments advanced in support of the retention of the crime of vagrancy in our modern society. Evidence for this was provided at the inaugural National Local Government Drug Conference in 2001, where the Chief Executive Officer of Brisbane City Council stated that public safety is the primary concern of the Council in its development of strategies to deal with homelessness and vagrancy. She added that the presence of homeless people restricts other members of society ‘in a psychological sense’ making them feel as though they do not have freedom of movement.[46] Also, the Western Australian Law Reform Commission reported in 1992 that vagrancy is classified as a ‘preventative offence’, that is, it allows for the arrest and detention of people on suspicion of their involvement (or possible future involvement) in some unspecified wrong-doing.[47]

However, there is no evidence that vagrancy offences have a crime prevention effect,[48] and it is submitted that public safety fears in relation to homeless persons may be considered ‘moral panic’. Hogg and Brown argue that an unrealistic and ill-informed culture of fear exists in our modern society whereby crime is depicted as a problem of such overwhelming proportions that the very fabric of society is considered to be at risk unless harsh punitive measures are taken to suppress it.[49] The effect of this ‘law and order commonsense’ is that law and order policy is based on fear (no matter how irrational), and the retention of crimes such as vagrancy is considered necessary to protect the public.[50] The stereotyping of homeless people as troublesome and dangerous crystallises this popular fear, thereby encouraging and legitimating the intervention of the criminal justice system.[51] However, the reality is that stranger to stranger violence is one of the least frequent types of interpersonal violence committed in Australia; most often, interpersonal violence arises out of family and intimate relationships, and altercations between young males arising out of leisure activities.[52] Thus, strangers loitering or sleeping in public places do not pose a realistic threat to community safety.

Rather than dispelling this fear, politicians appeal to voters by vowing to recruit more police, create tougher penalties and increase police powers. For example, the Queensland Government has recently introduced police ‘move on’ powers, with s  38(1)(a) of the Police Powers and Responsibility Act 2000 (Qld) allowing police to move people on if they cause ‘anxiety’ to others. This may have the effect of legitimating unreasonable fears or discomfort amongst those members of society who feel threatened or uneasy as a result of the mere presence of ‘outlandish’ looking people.

Thus, despite our claims to be a more tolerant society, attitudes towards homeless people have changed very little in the last century. The homeless are still represented as a threat to public safety, even though stranger to stranger violence is one of the least frequent types of interpersonal violence committed in Australia, and they are still viewed as an inconvenience, an affront, and a disturbance to the delicate sensibilities of ‘respectable’ people.

B. The Social Welfare Justification

Traditionally, criminal offences such as vagrancy were considered necessary to enable police and magistrates to save the poor and homeless from themselves.[53] One hundred years ago, the detention of homeless people in prisons or institutional settings was considered necessary for their own good, so that they might receive discipline and be dissuaded from their idleness.[54] This notion still persists today. It is still widely believed that capitalism allows for unbridled social mobility proportionate to one’s diligence and hard work, and that those who are poor have brought their condition upon themselves. The Protestant work ethic is still alive and well.[55] Also, some people (including law enforcers) still believe that the homeless may be better off in gaol, and that this justifies the interference of police in their lives.[56]

The belief that homelessness is a function of idleness is clearly flawed. Capitalism fails that proportion of the population that is unable to successfully compete in the labour market, particularly those with physical and mental disabilities, and those who have not had access to education or training.[57] Homeless people are among those who are excluded from the labour market, as they have no fixed address (which is necessary to receive correspondence) and inadequate resources to enable them to engage in employment (eg, lack of education, lack of appropriate attire, etc).

The belief that homeless people may be better off in prison evinces a lack of understanding regarding the nature of prison life. Imprisonment is a frightening, dehumanising experience which results in feelings of powerlessness and loss of dignity; prisons are often over-crowded, violent and isolating, and their adverse psychological effects may last for years to come.[58] Also, imprisonment can prejudice offenders’ chances of obtaining employment upon their release.[59] In the case of Moore v Moulds, Shanahan DCJ noted the inappropriateness of sending homeless defendants to prison ‘for their own good’, stating that processes other than imprisonment would be a more suitable response to such circumstances.[60]

Thus, as demonstrated above, keeping offences such as vagrancy on the statute books is commonly justified on the basis of public safety and social welfare grounds. However, the reality is that public safety is not jeopardised by the presence of homeless people in public spaces, and the incarceration of homeless persons will not benefit them or the community in the long term. The question must therefore be asked: why is vagrancy still a crime in Queensland?

C. Protecting Capitalism

The answer offered by some commentators is that the real purpose of the crime of vagrancy is to defend capitalism from potential interferences, based on a belief that the use of public space by ‘more deserving’ citizens should be facilitated at the expense of the ‘less deserving’. There are two elements to this.

(i) Preventing Non-Commercial Uses of Commercial Space

First, the offence of vagrancy may be used to ensure that public space is used for commercial uses alone.[61] Large areas of public space have become commercialised in recent years. Shopping centres and malls have been reclaimed by businesspeople and consumers as ‘commercial space’, ie. spaces specifically designed for the sale and consumption of goods and services. The homeless are not consumers, so they tend to use such spaces for non-commercial uses. They have no choice but to perform activities in public that the majority of the population is able to perform in private. Their presence is, therefore, seen as disruptive. The business community desires the expulsion of the homeless as they create an obstruction and are a potential hindrance to the exchange of goods and services for money, as they may dissuade consumers from entering the commercial space.[62] Consumers also desire the removal of homeless people from commercial space as their presence serves as an unwelcome reminder of the failure of market forces to provide for all members of the community, and this may cause some discomfort.[63]

(ii) Facilitating Urban Renewal

Second, offences such as vagrancy allow for the forced removal of homeless people from inner city suburbs that are the subject of gentrification or renewal projects.[64] The recent trend towards revitalising inner city areas to provide high density housing for wealthy businesspeople has led to the eviction of squatters and low-income tenants, and the displacement of homeless people. In addition, public spaces such as parks are increasingly being revamped by councils to improve the aesthetics of their city/area for marketing reasons. Homeless people may be evicted as a result of this process, or because of the application of private property rights to such areas. For example, title to land owned by the council in fee simple at Southbank Parklands in Brisbane has been vested in the Southbank Corporation via the Southbank Corporation Act 1989 (Qld). Under that Act, the Corporation is given almost unfettered discretion in exercising its objects, functions, powers and duties in respect of the area, including rights to remove any unwanted frequenters.[65] Clearly, this evidences a belief that the use of public space should be reserved for the ‘deserving’ members of society.[66]

Thus, it may be argued that the reason for the retention of vagrancy as an offence is to facilitate commercial exchanges and protect commercial and leisure spaces from unwelcome intrusions by the ‘undeserving’.

5. Arguments in Favour of the Repeal of the Offence of Vagrancy

The offence of vagrancy sanctions the arrest, detention and imprisonment of the most vulnerable members of society, the homeless. It is archaic and ill-adapted to modern life, a fact that has been widely recognised by the higher courts. It results in the targeting of vulnerable groups such as indigenous people, young people, and people with a mental illness, and it offends accepted standards of fairness. It may also amount to a contravention of various articles of international covenants to which Australia is a party, and it places pressure on the public purse by diverting police resources and adding to the prison population.

A. The Law of Vagrancy is Archaic and Ill-Adapted to Our Modern Society

The higher courts have been advocating changes to the law of vagrancy for decades. As early as 1936, English judges stated that vagrancy provisions were out-dated and ill-adapted to modern life. For example, in the case of Ledwith v Roberts[67] where the offence of insufficient lawful means of support was at issue, Scott LJ said:

It seems to me wrong that these old phrases should still be made the occasion of arrest and prosecution when, in their historical meaning, they are so utterly out of keeping with modern life in England  ...  . Is it not time that our relevant statutes should be revisited and that punishment and arrest should no longer depend on words which today have an uncertain sense and which nobody can truly apply to modern conditions?[68]

In 1962, Australian High Court judges expressed their concurrence with the view of Scott LJ. In Zanetti v Hill,[69] Dixon CJ said:

[I]t is obvious that to transfer the application of such provisions from rural England in Tudor times and later, to the very different conditions of city life in Perth and give it a just and respectable operation must involve many difficulties.[70]

In the same case, Kitto J stated that the provision was ‘not directed to the punishment of poverty’ but rather it was targeted at those persons who, having regard to their current mode of living, seemed likely to be resorting for their support to unlawful activities.[71] Kitto J thereby aimed to restrict the application of the provision to those activities against which society needed to protect itself.[72]

This attempt to read down the offence was replicated in the 1981 case of Moore v Moulds.[73] In that case a 21 year old Aboriginal woman was questioned by police. She informed them that she had no money in her possession, was unemployed and was not in search of employment. She also admitted to sleeping on the riverbank for a number of days. On the basis of these admissions, she was charged with vagrancy, and the stipendiary magistrate sentenced her to three months imprisonment. This sentence was overturned in the District Court, where Shanahan DCJ said:

It is not or should not be a criminal offence to be poor. It is not nor should it be a criminal offence per se to sleep on the river bank nor to adopt a lifestyle which differs from that of the majority .... [such persons] do not, as a rule, commit criminal offences but are regarded as “nuisances” and their appearance is an affront to the susceptibilities of those members of the public who do not suffer from their disabilities ...[74]

The issue was raised once again in Parry v Denman.[75] In the period prior to his arrest, the accused in this case had staggered down the street (clearly drunk), eaten some food taken out of a garbage bin and asked some people for cigarettes. He was sentenced by a magistrate to 10 weeks’ imprisonment – six weeks for the offence of vagrancy and four weeks for failing to appear in court on the scheduled date. White DCJ in the District Court held that the six week sentence for vagrancy was excessive.[76] Indeed, he held that since there was nothing in the defendant’s behaviour that suggested he was likely to engage in any conduct against which society needed to protect itself, the offence was probably not made out.[77]

Thus, despite the numerous expositions by the higher courts that the offence of vagrancy should apply only to persons who are likely to engage in some behaviour against which the public needs to protect itself, cases of persons being charged with this offence who are guilty of nothing more than homelessness, poverty or alcoholism continue to come before the courts.

B. Misuse of the Offence by Police: The Targeting of Vulnerable Groups

The offence of vagrancy allows for the targeting of vulnerable groups in two ways. First, prosecution under this offence is based solely on police discretion – police may choose to refer a person to a shelter, hostel or other welfare agency instead of charging them with vagrancy. The elements of vagrancy offences are often so vague and poorly understood that they allow for the over-policing of those groups who are victims of police prejudice such as indigenous people and young people.[78] Second, the offence of vagrancy criminalises poverty. Poverty and homelessness are particularly prevalent amongst indigenous people, young people and people with a mental illness, and thus, such people are more likely to be prosecuted under this offence.

(i) Indigenous People

Indigenous people are significantly over-represented in custody rates for public order offences such as vagrancy.[79] In 1995, the custody rate for indigenous people where the most serious offence was a good order offence was 233.3 (per 100,000), while the rate for non-indigenous people was 4.3.[80] Fourteen percent of police incidents involving indigenous people were for public order offences, compared with 5 per cent for non-indigenous people.[81] Also, in Queensland, 46.1 per cent of all public drunkenness incidents involved indigenous people in 1995.[82] These figures are alarming, considering that indigenous people comprise only 2 per cent of the Australian population and only 2.9 per cent of the Queensland population.[83]

Further, once arrested for a public order offence, indigenous people remain in custody for a significantly longer period of time. Indigenous people remain in custody for public order offences for an average of 13.7 hours, while non-indigenous people are released after an average of 7.6 hours.[84]

Offences such as vagrancy provide an easy route for the arrest and detention of indigenous people by police.[85] The Royal Commission into Aboriginal Deaths in Custody reported that indigenous people are often over-policed and subjected to heavy-handed policing,[86] and there is little evidence to suggest that the situation has altered in recent years. Criminalisation, racism and ill-treatment by police are still considered to be major problems amongst indigenous communities.[87]

Indigenous people are also more likely to be charged with vagrancy due to their over-representation amongst Queensland’s homeless population. In 2000–2001, 19.9 per cent of clients utilising supported accommodation services in Queensland were indigenous.[88] The fact that indigenous people are often poor may also contribute to their imprisonment levels, as an inability to pay a fine for vagrancy may result in incarceration either directly by order of the court, or under the fine options order provisions in the State Penalties Enforcement Act 1999 (Qld) and the Penalties and Sentences Act 1992 (Qld).[89]

Thus, in this age of reconciliation, the offence of vagrancy is obstructing the path towards indigenous self-determination by increasing indigenous arrest, detention and imprisonment rates.

(ii) Young people

Young people are also over-represented in the custody rates for offences such as vagrancy. In 1995, young people aged between 17 and 19 were detained for good order offences and drunkenness at almost four times the rate of the average person.[90] In Queensland in 1999–2000, 18 young people received a custodial sentence for a vagrancy or trespass offence.[91] It is submitted that this is 18 too many. Clearly, imprisoning young people for such offences is not an appropriate solution. These children require a safe place to sleep and to receive support services – they should not be criminalised, let alone imprisoned, for circumstances which they are unable to control.[92]

Young people may be particularly vulnerable to prosecution for vagrancy due to the over-policing of young people. There is much published literature and research surrounding the issue of the over-policing of young people, particularly those who are members of ethnic minority groups.[93] Increased search and ‘move on’ powers have broadened the scope for police impingement on the lives of young people, and thus police interventions with young people continue to rise, despite the lack of a corresponding rise in juvenile crime.[94]

Young people may also be more likely to be charged with vagrancy due to the fact that they are over-represented amongst the poor and homeless. A report completed in 2000 by The Smith Family found poverty to be particularly acute amongst young people in Australia, as their income from Youth Allowance falls well below the poverty line.[95] A recent study reported that the youth homelessness rate in Queensland is amongst the highest in Australia.[96] This fact is supported by Supported Accommodation Assistance Program (SAAP) statistics; in 2000–2001, 21.7 per cent of clients utilising SAAP services in Queensland were under the age of 20, and a further 14.8 per cent of clients were aged between 20 and 24.[97]

(iii) People with a Mental Illness

There is a strong positive association between mental illness and homelessness. Indeed, the rate of mental illness amongst homeless people may be as high as 80 per cent.[98] With the closure in recent years of many community-based residential services and treatment programs, the prevalence of homelessness amongst people with mental illness has dramatically increased.[99] People with mental illness are also more likely to experience poverty and homelessness due to the interference of their illness with their ability to maintain employment, and the scarcity of low-income and public housing.[100]

Homeless mentally ill persons are up to 40 times more likely to be arrested and 20 times more likely to be imprisoned than those with stable, suitable accommodation.[101] Thus, by default, ‘the criminal justice system has replaced the mental health system as a primary provider of care to many homeless mentally ill persons’.[102] Studies around the world have reported a high prevalence of mental illness amongst those charged with vagrancy,[103] and it is highly likely that the offence of vagrancy is one of the main avenues for the arrest and detention of such persons in Queensland. Clearly, the arrest, detention and imprisonment of persons, for no other reason than their being mentally ill and homeless, is reprehensible. Such people instead require housing, social support and health care.

C. Offends Accepted Standards of Fairness

The offence of vagrancy may be considered to offend accepted standards of fairness for two reasons. Firstly, most people charged with vagrancy appear unrepresented in court, and plead guilty.[104] Nimmer’s narrative paints a similar picture in relation to ‘vagrants’ in America in the 1970s, whose cases were handled ‘in an assembly-line fashion with little more than one minute devoted to each.’[105] This is despite the fact that there are a number of potential bases upon which a charge of vagrancy may be defended. For example, with regard to the offence of having no visible lawful means of support, an accused may defend their case by proving that they do indeed have sufficient lawful means of support, for example, through social security benefits, the support of family or the provision of the voluntary sector. Also, a number of remedies may be available to an accused who can prove that he/she was unlawfully arrested and detained, for example, administrative remedies (such as habeas corpus) or remedies in tort (ie, for false imprisonment). It has further been argued that the offence of vagrancy under subordinate legislation may be open to a finding of ultra vires by the courts on the basis that it is ‘manifestly unjust’ due to its partial and unequal operation as between different classes of persons.[106] This is reminiscent of the view of the majority of the United States Supreme Court in Robinson v California[107] which held that the offence of drug addiction was a ‘cruel and unusual punishment’ (in violation of the Eighth and Fourteenth Amendments) as it criminalised the involuntary ‘status’ of a person rather than a wilful act. Eggleston argues that unlike other status offences, vagrancy offences are only committed by those of low socio-economic status from which it is often very difficult to ‘reform’.[108]

However, far from objecting to the validity of the offence, the vast majority of persons charged with vagrancy appear in court unrepresented by legal counsel, and most plead guilty and incur a penalty.[109] In 2000, 1785 (87 per cent) of the 2  055 adults charged with vagrancy or trespass in Queensland were found guilty, and five per cent were sentenced to a gaol term.[110] Considering that a number of defences are available to persons charged with such offences, these figures are extraordinarily high. The inability of those charged with vagrancy to defend their case compounds the social injustice being experienced by them, and offends the rule of law. This view was expounded by Shanahan DCJ in Moore v Moulds where His Honour stated that as a matter of course, disadvantaged persons charged with this offence should be legally represented, and that proceedings should be stayed until counsel is appointed.[111]

Secondly, the offence of vagrancy offends accepted principles of criminal law by allowing for the arrest and detention of persons on mere suspicion of their involvement in some unspecified future criminal activity, and where no harm has been inflicted on an identifiable victim. Legislation governing the arrest and detention powers of police around Australia states that police must have a reasonable suspicion that a person is guilty of a specified offence to effect a lawful arrest.[112] If these elements are not present, the arrest is open to challenge in the courts. The offence of vagrancy allows for these checks on police powers to be circumvented, which is ‘inconsistent with our national sense of personal liberty or respect for the rule of law’.[113]

Further, vagrancy offences criminalise behaviour that may not generally be considered ‘criminal’. The offence of habitual drunkenness criminalises addiction, which may be better understood as a medical problem rather than criminal conduct,[114] and the behaviour it attempts to regulate could, if necessary, be addressed by utilising other offence categories, such as offensive or disorderly conduct.[115] Also, there is some anecdotal evidence to suggest that those who ‘panhandle’ for money often do so in preference to engaging in more serious criminal activity, such as drug trafficking or theft. One young homeless person has been quoted as saying:

[W]hen I walk down the street and I see people panhandling for money, like, I turn around and I look at them, and I go, “Why are you sittin’ here panhandling for money? Why don’t you sell some drugs, or go rob someone or somethin”, right?[116]

Thus the crime of vagrancy offends accepted standards of fairness as it targets vulnerable groups who are unable to defend their case, and it criminalises behaviour that is not strictly criminal in nature.

D. Pressure on the Public Purse

The retention of the offence of vagrancy on Queensland’s statute books is putting intense pressure on the public purse.

First, the offence of vagrancy diverts substantial police resources. The arrest, detention, court appearance and related administrative tasks associated with just one charge of vagrancy can divert up to two days of a police officer’s time.[117] If this is multiplied by the number of people arrested for vagrancy per year, the costs to Queensland Police may be considered excessive.

Second, many of those who are charged with vagrancy end up serving a gaol term, either because they are sentenced to imprisonment, or as a result of fine default. Queensland’s imprisonment rates exceed those of Australia as a whole. The imprisonment rate for men in Queensland is 308.5 (per 100  000) as opposed to 284.5 for Australia in general, and the imprisonment rate for women in Queensland is 20.8 as opposed to 19.8 for Australia in general.[118] Indigenous people comprise 25 per cent of the Queensland prison population, compared with 19.8 per cent of the Australian prison population.[119] Sentences of imprisonment for public order offences such as vagrancy which do not exist in other states may make some contribution to these higher than average rates.

Of the 2  460 people arrested for trespass/vagrancy in Queensland in 1999–2000, a total of 108 received a custodial sentence. A further 1474 received a monetary penalty.[120] Due to the nature of the offence, it may be presumed that the majority of those fined for vagrancy would be unable to pay any fine imposed. Under the State Penalties Enforcement Act 1999 (Qld) and the Penalties and Sentences Act 1992 (Qld), fine default does not automatically lead to imprisonment. Those who are bona fide unable to pay a court ordered monetary penalty may apply to complete community service work in lieu of payment (ie. a fine options order[121]). However, fine default may still lead to imprisonment if:

the offender has been judged unsuitable for community service work and/or their debt cannot be satisfied by seizure of their property;[122]
the offender fails to comply with the fine options order;[123] or
the offender has been judged unsuitable for community service work for medical or psychiatric reasons, and a good behaviour order has been issued instead of a fine options order; however this good behaviour order has been breached.[124]

Each of these scenarios is more likely to apply to homeless persons than other classes of offenders. First, a homeless person may be considered unsuitable for community service work due to their dependence on alcohol or drugs, lack of transport, etc. Since homeless people rarely possess property of substantial value, seizure of their personal belongings would most likely be insufficient to satisfy their debt. Second, where a fine options order is issued, a homeless person may fail to comply with it by reason of physical or mental illness, lack of understanding of the process, or lack of transport. Third, where a homeless person’s physical or mental illness is recognised, and a good behaviour order is issued in lieu of a fine options order, he/she will be more at risk of breaching it due to their vulnerability to over-policing and excessive surveillance. Thus, although processes are in place in Queensland to prevent the needy from being imprisoned as a result of fine default, homeless persons may be more likely than others to slip through the net.

High rates of imprisonment put intense pressure on the public purse. The NSW Select Committee on the Increase in Prisoner Population found that it costs an average of $138.93 per day to keep one person in prison, while it costs only $8.63 per day to divert that person to a community-based program.[125] It will be almost impossible for demand to be met if the prison population continues to increase at its current rate. Queensland’s imprisonment rate is fast becoming economically unsustainable. Government funds applied to the arrest, detention, prosecution and imprisonment of ‘vagrants’ could be better spent.

E. Contravenes International Covenants

The offence of vagrancy also contravenes a number of international covenants to which Australia is a party. Section 4(1)(a) of Queensland’s Vagrants Act reverses the onus of proof. Under that section, a person found without visible lawful means of support shall be deemed to be a vagrant, unless he/she can give to the court’s satisfaction a good account of his/her means of support. This offends art 11(1) of the Universal Declaration of Human Rights (UDHR) and art 14(2) of the International Covenant on Civil and Political Rights (ICCPR) which state that everyone charged with a penal offence has the right to be presumed innocent until proven guilty.

Article 14(3) of the ICCPR states that everyone has the right to legal representation where the interests of justice so require. Since being found guilty of vagrancy can result in a prison sentence, it may be forcefully argued that the interests of justice require those charged with vagrancy to be legally represented. And as mentioned above, Shanahan DCJ has stated that vagrancy proceedings should be stayed until legal representation is obtained.

Also, art 9 of the UDHR states that no one should be subjected to arbitrary arrest or detention. It may be argued that the crime of vagrancy offends this article because it results in the arrest and detention of people on the sole basis of their poverty. As mentioned above, the higher courts have gone to great length to read down vagrancy provisions in accordance with this criticism; judges have agreed that it is not a crime to be poor, but rather, that the offence of vagrancy should only apply where the conduct in question is something against which society needs to protect itself. Regardless, police and magistrates have continued to arrest and penalise ‘vagrants’ on the basis of their poverty alone (as noted above), and it is submitted that this may indeed amount to arbitrariness.

Further, art 2 of the UDHR and art 26 of the ICCPR state that people should not be subjected to discrimination on the basis of their race, colour, sex and language (inter alia), or ‘any other status’. Since vagrancy effectively criminalises homelessness, this offence may be considered to amount to discrimination on the basis of people’s socio-economic or housing status, which may offend these articles.

Thus, in addition to being held in contempt by the courts, perpetuating social injustice and putting intense pressure on the public purse, the crime of vagrancy may offend a number of articles of international covenants to which Australia is a party.

6. Conclusion

The scenario described in the song ‘Waltzing Matilda’ is still familiar to Australians one hundred years later. Although it is often considered to be a celebration of freedom and adventure, the song actually tells the tale of a homeless man who commits a minor property offence, the penalty for which is presumably imprisonment. In our modern society, homeless people are still arrested, detained and imprisoned for minor offences.

Perhaps the most significant pathway into the criminal justice system for homeless people is the offence of vagrancy, which criminalises behaviour such as begging, habitual drunkenness and having no visible lawful means of support. The retention of this offence on the statute books in Queensland is often justified in terms of public safety and social welfare concerns. However, neither of these justifications are valid, and it has been argued that the real reason for the continued existence of the offence of vagrancy may be the desire by those with political power to protect and promote capitalism.

The offence of vagrancy has been condemned by the higher courts, which have questioned the reasons for which it is utilised by police and magistrates. It perpetuates social injustice, targeting already disadvantaged people, and impacting disproportionately on indigenous people, young people and people with mental illness. It offends accepted standards of fairness, contravenes international human rights covenants and places intense pressure on the public purse. It, and all other offences throughout Australia akin to it, should be abolished.

In our modern society the nomad is a pariah ‘of no fixed address’. By adding these few words to the name of anyone whose appearance they consider irregular, those who make and enforce the laws can decide a man’s fate.[126]

[*] LLB, BSW (Hons); Senior Research Assistant, Faculty of Law, Queensland University of Technology. Email: tamara.walsh@qut.edu.au. This paper won the prize of Best paper at the Rights and Wrongs: Judging the law 4th Annual University of Sydney Law Postgraduate Conference, 6-7 December 2002.

[1] Philip Lynch, ‘The Homeless Persons’ Legal Clinic’ (2002) 27(1) Alt LJ 30 at 31; John Hagan, Bill McCarthy, Mean Streets: Youth Crime and Homelessness (1998) at 121–122.

[2] See Queensland Police, Service and Operational Procedures Manual (2000) at para 2.5.9.

[3] Statistics provided by the Crime Statistics Unit of Queensland’s Office of Economics and Statistical Research (hereinafter ‘OESR’) (Codes 13131, 13132 and 13133).

[4] Ibid.

[5] Ibid.

[6] Dr A A Bartholomew, H M Prison (eds), ‘Vagrancy: Insufficient Lawful Means of Support’ (1971) 4(2) ANZJ Crim 65 at 66.

[7] Ibid.

[8] Guy Johnson, The Shifting History of Homelessness: From a Legal Problem to a Social Problem (2001): <http://www.ashs.org.au/PubArt/22.pdf> .

[9] Christina Twomey, ‘Courting Men: Mothers, Magistrates and Welfare in the Australian Colonies’ (1999) 8(2) Women’s History Review 231 at 238.

[10] Weber argues that at the dawn of capitalism, material success was viewed as evidence of one’s eternal salvation by God, and thus idleness was seen as evidence of immorality. See further Max Weber, The Protestant Ethic and the Spirit of Capitalism (1976, 2nd ed, trans.).

[11] The Benevolent Society, Annual Report (1828) at 11; cited by Rosemary Berreen, ‘And Thereby to Discountenance Mendicity: Practices of Charity in Early Nineteenth Century Australia’, in Michael Wearing & Rosemary Berreen (eds), Welfare and Social Policy in Australia: The Distribution of Disadvantage (1994) at 14.

[12] ‘Asylums’ were a form of institutional care run by benevolent associations for those judged unable to support themselves; Berreen, id at 13.

[13] Above n9; Berreen, above n11 at 7, 12.

[14] Roberta Perkins, Working Girls: Their Life and Social Control (1991): <http://www.aic.gov.au/publications/lcj/working/index.html> .

[15] Ibid.

[16] Ibid.

[17] Ibid.

[18] Above n9 at 238.

[19] Id at 238; Berreen, above n11 at 7, 10.

[20] Tony Butler, NSW Corrections Health Service Inmate Health Survey (1997) at 23.

[21] Morrie O’Connor & Anne Coleman, ‘Particularly Vulnerable: Homeless young people with an intellectual disability’ (1995) 9(1) Interaction 8 at 12.

[22] Michelle Kermode, Nick Crofts, Peter Miller, Bryana Speed & Jonothan Streeton, ‘Health Indicators and Risks Among People Experiencing Homelessness in Melbourne’ (1998) 22(4) Australian and New Zealand Journal of Public Health 467.

[23] See Moore v Moulds (1981) 7 QL 227; Parry v Denman (District Court of Cairns (Queensland), 23 May 1997) in Andrew West, ‘Sentencing for Vagrancy’ (2000) 21(1) The Queensland Lawyer 12.

[24] For example, Kermode et al found that 74 per cent of their sample of homeless persons in Melbourne were current users of alcohol. The median number of standard drinks consumed on a typical drinking day was 11.5: above n22 at 467.

[25] OESR, Table 2.4.3 — Charges disposed against juvenile defendants in magistrates courts by offence type by method of finalisation and most serious penalty, Queensland, 1999–2000: <http://www.oesr.qld.gov.au/data/tables/cjsq2000/table_2_4_3.htm> (11 July 2002); OESR, Table 2.4.4 —Charges disposed against juvenile defendants in District and Supreme courts by offence type by method of finalisation and most serious penalty, Queensland, 1999–2000: <http://www.oesr.qld.gov.au/data/tables/cjsq2000/table_2_4_4.htm> (11 July 2002); OESR, Table 2.4.5 — Charges disposed against adult defendants by offence type by method of finalisation and most serious penalty, Queensland, 1999–2000: <http://www.oesr.qld.gov.au/data/tables/cjsq2000/table_2_4_5.htm> (11 July 2002).

[26] Above n3.

[27] Ibid.

[28] Ibid.

[29] Ibid.

[30] Ibid.

[31] Ibid.

[32] OESR, above n25; above n3.

[33] Ibid.

[34] Jon Faine, ‘Begging on Streets No Longer a Crime’, ABC Radio Melbourne, 31 May 2002: <http://www.abc.net.au/melbourne/stories/s570136.htm> .

[35] Police and Police Offences Ordinance 1973 (NT).

[36] Darwin City Council By-Laws (as in force at 16 August 2002) s103.

[37] Chris Howse, ‘Towards a Dealing Just and Kind’ (2000) 25(3) Alt LJ 108; Mary-Lynn Griffith, ‘By the By’ (1999) 24(5) Alt LJ 245.

[38] The relevant sections of the Summary Offences Act 1970 (NSW) were repealed and replaced by the Offences in Public Places Act 1979 (NSW) which was repealed and replaced by the Summary Offences Act 1988 (NSW).

[39] That is, two penalty units. One penalty unit is equivalent to a fine of $110; Crimes (Sentencing Procedure) Act 1999 (NSW) s17.

[40] Mary R Liverani, ‘For the Disadvantaged Young, NSW is a Police State’ (1999) 37(10) Law Society Journal 62.

[41] Sydney Harbour Foreshore Authority Regulation 1999 (NSW) s4 attracts a penalty of 20 penalty units. One unit is equivalent to a fine of $110; Crimes (Sentencing Procedure) Act 1999 (NSW) s17.

[42] Sydney Harbour Foreshore Authority Regulation 1999 (NSW) s13.

[43] See Intoxicated Persons Act 1979 (NSW); Police Offences Act 1935 (Tas) ss4A, 4B; Intoxicated Persons (Care and Protection) Act 1994 (ACT).

[44] This was recognised by the Royal Commission into Aboriginal Deaths in Custody (see Recommendation 81, Elliot Johnston, Royal Commission into Aboriginal Deaths in Custody, National Report (1991, Volume 5) at 87). See also Victoria Parliament Drugs and Crime Prevention Committee, ‘The Experience of Decriminalisation: Two Case Studies’, Inquiry into Public Drunkenness (2000) at 41; and Andrew Cornish, ‘Public Drunkenness in New South Wales: From Criminality to Welfare’ (1985) 18(2) ANZJ Crim 73.

[45] Intoxicated Persons (Amendment) Act 2000 Schedule 1 (amendment to s3; definition of ‘authorised place of detention’).

[46] Jude Munroe, ‘Sharing Experiences and Building Bridges’, paper presented at the National Local Government Drug Conference, 4–5 December 2001: accessible from <http://www.brisbane.qld.gov.au/council_at_work/health_safety/illicit_drugs/drug_conference/programs.shtml> .

[47] Law Reform Commission of Western Australia, Report on Police Act Offences (1992) at para 4.1.

[48] Elizabeth Eggleston, Fear, Favour or Affection (1976) at 240.

[49] Russell Hogg & David Brown, Rethinking Law and Order (1998) at 4, 8, 29, 38–39

[50] Ibid.

[51] Rob White, ‘Street Life: Police Practices and Youth Behaviour’ in Rob White & Christine Alder, The Police and Young People in Australia (1994) at 114, 117; President’s Commission on Law Enforcement and the Administration of Justice, The Challenge of Crime in a Free Society (1967) at 52.

[52] Above n49 at 53, 55–56.

[53] Above n9; Berreen, above n11.

[54] Ibid.

[55] John Carroll, ‘Work’ (1996) 40(12) Quadrant 19.

[56] Moore v Moulds, above n23 at 230.

[57] Michael Horn, ‘Increasing Homelessness: Evidence of Housing Market Failure in Australia’ (2002) 25 Just Policy 26 at 31; John Wicks, ‘Inequality and Poverty: The Fruits of Market Failure’ (2001) December Impact 12.

[58] Blanche Hampton, Prisons and Women (1993) at 24, 54, 151; Pat Carlen, Alternatives to Women’s Imprisonment (1990) at 2.

[59] Boyd Hunter & Jeff Borland, ‘How Arrest Affects Indigenous Employment’ (1999) September Impact 1.

[60] Moore v Moulds, above n23 at 230.

[61] White, above n51 at 113–114, 121, 124.

[62] Id at 113.

[63] Ibid.

[64] Phil Crane & Mike Dee, ‘Young People, Public Space and New Urbanism’ (2001) 20(1) Youth Studies Australia 11 at 11–19.

[65] Southbank Corporation Act 1989 (Qld) ss37A, 37B.

[66] Above n64.

[67] (1936) 3 All ER 570.

[68] Id at 598 (Scott LJ).

[69] [1962] HCA 62; (1962) 108 CLR 433.

[70] Id at 437 (Dixon CJ).

[71] Id at 441 (Kitto J).

[72] Ibid.

[73] Above n23.

[74] Id at 230.

[75] West, above n23.

[76] Id at 13.

[77] Ibid.

[78] Above n48 at 241.

[79] Id at 13–14, 235–236.

[80] C Carcach & D McDonald, National Police Custody Survey (1995) at 32–33.

[81] Id at 25.

[82] Id at 29.

[83] Australian Bureau of Statistics (ABS), <http://www.abs.gov.au> .

[84] Above n80 at 44.

[85] Australians for Native Title and Reconciliation (ANTaR) Submission on Indigenous Imprisonment and the Impact of Some Provisions of the Vagrants, Gaming and Other Offences Act 1931 (Qld) (2002).

[86] Royal Commission into Aboriginal Deaths in Custody, National Report, Overview and Recommendations (Canberra, AGPS, 1991). See for example Recommendation 60, which called for the cessation of heavy-handed policing and racist abuse against indigenous people, and Recommendation 88 which called for Police Services to conduct an ongoing review on the issue of over-policing and/or inappropriate policing of indigenous people; Johnston, above n44.

[87] Chris Cunneen & D McDonald, ‘Indigenous Imprisonment in Australia: An Unresolved Human Rights Issue’[1997] AUJlHRights 6; , [1997] 3(2) Australian Journal of Human Rights 90.

[88] Australian Institute of Health and Welfare (AIHW), SAAP National Data Collection Annual Report 2000–2001 – Queensland Supplementary Tables (Canberra: the Institute, 2000) at 12.

[89] Although the fine options order provisions make it more difficult for people to be imprisoned for fine default than previously, imprisonment for fine default is still a possibility. See Part D below.

[90] C Carcach, D McDonald, above n 80 at 34.

[91] OESR, above n25, Table 2.4.3,.

[92] Kathy Don, Helena Jedjud, Greg Smith, ‘Social Exclusion in a Hard Place: Implications of the Herald Sun Campaign for Young People, Workers and the Community’ (2001) 14(1) Parity 14.

[93] See especially Steve James, Kenneth Polk. ‘Police and Young Australians’ in Duncan Chappell, Paul Wilson (eds), Australian Policing: Contemporary Issues (1996); Chris Cunneen, Rob White, Juvenile Justice: An Australian Perspective (1995).

[94] Steve Campbell, ‘Children’s Legal Issues: The Changing Relationship in the Policing of Young People and its Implications for Legal Practitioners’ (1999) 37(10) Law Society Journal 58.

[95] Ann Harding, Agnieszka Szukalska, Financial Disadvantage in Australia 1999 – The Unlucky Australians (2000): <http://www.smithfamily.com.au/documents/Fin_Disadv_Report.Nov – 2000.pdf> .

[96] Chris Chamberlain, David MacKenzie, Youth Homelessness 2001 (2002).

[97] AIHW, above n88 at 10.

[98] For a concise review of the literature, see Gregory W Kamieniecki, ‘Prevalence of Psychological Distress and Psychiatric Disorders Among Homeless Youth in Australia: a comparative review’ (2001) 35(3) Australian and New Zealand Journal of Psychiatry 352.

[99] NSW Select Committee on the Increase in Prisoner Population, Interim Report: Issues Relating to Women (Sydney: the Committee, 2000) at 28, 50; Human Rights and Equal Opportunity Commission (HREOC), Report of the National Inquiry into the Human Rights of People with Mental Illness (Canberra: AGPS, 1993) at 754.

[100] H Hall & P Glick, ‘The Homeless: A Mental Health Debate’ (1987) 21 Psychology Today 65.

[101] Eileen Baldry, ‘Homelessness and the Criminal Justice System’, paper presented at the Homelessness Summit, Parliament of NSW, 15 May 2001.

[102] Ibid.

[103] See for example Thomas McCarthy, ‘The International Protection of Human Rights — Ritual or Reality?’ (1976) 25 ICLQ 261 at 267.

[104] Moore v Moulds, above n23 at 229.

[105] Raymond Nimmer, Two Million Unnecessary Arrests: Removing a Social Service Concern from the Criminal Justice System (1971) at 2.

[106] Mary-Lynn Griffith, ‘Is the Punishment of Sleeping by the Darwin City Council Legitimate?’ (1999) 24(5) Alt LJ 245 at 246.

[107] [1962] USSC 130; 370 US 660 (1972).

[108] Above n48 at 240.

[109] Ibid; Moore v Moulds (Shanahan DCJ), above n23; Law Reform Commission of Tasmania, Report on Decriminalisation of Offences of Drunkenness and Vagrancy Report No 10 (1977).

[110] OESR, above n25, Table 2.4.5.

[111] Moore v Moulds, above n23 at 229.

[112] See for example s198 of the Police Powers and Responsibilities Act 2000 (Qld).

[113] Ledwith v Roberts, above n67 at 598 (Scott LJ).

[114] Above n107; President’s Commission on Law Enforcement and Administration of Justice, above n51 at 225–227.

[115] President’s Commission on Law Enforcement and Administration of Justice, above n51 at 235–236.

[116] Hagan & McCarthy, above n1 at 53.

[117] Telephone interview with Duty Sergeant, Brisbane District Communication Centre, 29 July 2002.

[118] Australian Bureau of Statistics, Prisoners in Australia, 2001, cat no 4517.0, (Canberra: AGPS, 2002).

[119] Ibid.

[120] OESR, above n25, Table 2.4.5.

[121] State Penalties Enforcement Act 1999 (Qld) s69(7), Penalties and Sentences Act 1992 (Qld) s55, 57.

[122] State Penalties Enforcement Act 1999 (Qld) s119(1), Penalties and Sentences Act 1992 (Qld) s57(1)(b).

[123] State Penalties Enforcement Act 1999 (Qld) s119(2), Penalties and Sentences Act 1992 (Qld) ss74, 78.

[124] State Penalties Enforcement Act 1999 (Qld) s118.

[125] NSW Select Committee on the Increase in Prisoner Population, above n99 at 108.

[126] Isabell Eberhardt 1877–1904, an essay published as ‘Pencilled Notes’ in Paul Bowles, The Oblivion Seekers and Other Writings (1979, trans).

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