Lynch, Philip --- "Human Rights Lawyering For People Experiencing Homelessness" [2004] AUJlHRights 4; (2004) 10(1) Australian Journal of Human Rights 4
Human rights lawyering for people experiencing homelessness
Philip Lynch*
Recognising the role that lawyers can play in client empowerment and the promotion of human dignity and respect, this article discusses a ‘human rights approach’ to lawyering for people experiencing homelessness. The article seeks to shift recent discussion from how to use human rights law in homeless legal practice, to how to adopt a human rights approach to such practice. Within a human rights paradigm, the article considers the duty to treat clients with dignity and respect; the importance of asking clients what they want, listening and giving primacy to their answers; holistic approaches to assist clients with their non-legal needs; the role of lawyers in client empowerment and community development; and strategies to promote the meaningful participation of people experiencing homelessness in law reform work, policy advocacy and public education.
The article concludes that, by adopting a human rights approach to legal service provision and advocacy, lawyers can enhance clients’ physical, social and psychological wellbeing, generate a sense of client empowerment, promote client participation in public policy development and implementation, and assist to improve clients’ lives.
Introduction
Human rights lawyering, according to Deena Hurwitz, involves three key steps. First, clients’ legal issues are considered and described in human rights terms. Second, remedies and redress for the wrongs suffered are formulated using human rights tools of accountability and having regard to human rights obligations of implementation and realisation. Third, strategies are developed and services are delivered in the context of key features of human rights advocacy, including accountability, transparency, non-discrimination, involvement of the persons affected, self-determination and respect for human dignity (Hurwitz 2003: 517).
Several advocates, activists and academics have recently focused on these first two steps of human rights lawyering in arguing that homelessness should be regarded as a human rights violation and that responses to homelessness should be developed and implemented in a human rights framework (see generally ‘Symposium: Homelessness, Human Rights and the Law’ 2004). They have rightly identified that people experiencing homelessness are often subject to multiple and intersectional human rights violations, including in relation to the right to adequate housing, the right to participation, the right to freedom of expression, the right to freedom of association, the right to equality and non-discrimination, the right to social security, the right to vote, the right to the highest attainable standard of health, the right to freedom of movement, the right to education, the right to a fair hearing, the right to life, the right to security of person, the right to privacy, and the right to be free from cruel, inhumane or degrading treatment or punishment. Importantly, they have also examined and discussed legal strategies to promote, protect and fulfil the human rights of people experiencing homelessness. At an international level, these strategies include submitting reports and complaints to United Nations treaty bodies such as the Committee on Economic, Social and Cultural Rights or the Human Rights Committee. Domestically, strategies include the use of human rights norms to inform the content and development of the common law, to defend certain criminal charges, to aid statutory and constitutional interpretation, and to review executive and administrative decisions and actions. The use of human rights discourse and the prospect of human rights litigation is an exciting development in the movement to eradicate homelessness.
Without discounting the importance of this development, in this article I want to focus on the third step of human rights lawyering for people experiencing homelessness and seek to shift recent discussion from how to use human rights law in homeless legal practice to how to adopt a human rights approach to such practice. In doing this I will draw on many of the client-centred approaches and lawyering strategies long adopted by community lawyers (see generally Renouf 2002) and enshrined in professional standards (see, for example, Legal Practice Act 1996 (Vic), s 64). Human rights lawyering has much in common with this tradition. In my view, however, by providing a theoretical framework of rights and responsibilities and focusing on the role of lawyers in contributing to the conditions necessary to live with human dignity, a human rights approach to lawyering also offers a new energy and imperative to this tradition. Within a human rights paradigm, the article will therefore consider the duty to treat clients with dignity and respect, the importance of asking clients what they want and listening and giving primacy to their answers, holistic approaches to assist clients with their non-legal needs, the role of lawyers in client empowerment and community development, and strategies to promote the meaningful participation of people experiencing homelessness in law reform work, policy advocacy and public education.
John’s story
In late 2001, John approached a group of lawyers who provide pro bono legal services to people who are homeless or at risk of homelessness. At that time, John experienced chronic alcoholism and was sleeping rough. He was extremely reluctant to move into crisis accommodation or transitional housing, or to engage with any ongoing support or treatment services, for fear that the Sheriff’s Office might ‘catch up’ with him in relation to significant unpaid fines that he had received for begging, swearing and drinking in the street. John had previously been incarcerated in connection with unpaid fines. John’s instructions to the lawyers were to ‘deal with the fines’ and to ensure that action was taken so that he ‘stopped getting hassled for drinking in the street’.
As John’s story attests, the law and law enforcement can, in many cases, cause, contribute to or exacerbate homelessness and infract fundamental human rights (Senate Legal and Constitutional References Committee 2004: 149). That does not, however, mean that the law should be rejected as an emancipatory tool; for, in other cases, engagement with the law can assist to resolve a person’s homelessness (Davies 2003: 171). As Jonathan Hafetz, former Staff Attorney at the Partnership for the Homeless in New York City, recognises:
Most people do not become homeless without at least some interaction with legal-bureaucratic institutions, and generally do not escape homelessness without successfully navigating those institutions, whether it be by obtaining housing assistance, public benefits, medical treatment, or counselling (Hafetz 2003: 1245).
In addition to assisting people to exit homelessness, engagements with the law and lawyers can also significantly affect the social, psychological and emotional welfare of homeless people and further the realisation of their civil, political, economic, social and cultural rights.
Reflecting on John’s story, I want now to turn to an examination of the potential role of lawyers in responding to homelessness — in both an individual and a structural sense — by combining zealous legal advocacy with a holistic, human rights-focused approach to homelessness lawyering.
Human rights lawyers treat clients with dignity and respect
As the lawyers assisting John were completing the initial client intake form, John interrupted and asked whether he could offer some feedback. ‘When I came into this room you looked me in the eye, shook my hand and introduced yourself with a smile’, he said. ‘That was good. But then you started talking and you didn’t ask me my name until you began completing that intake sheet’. John went on to say that this approach made him feel like the lawyers saw him as a legal problem that needed to be solved, rather than as person who needs to be treated with dignity and respect.
John is not alone in this. A recent survey of 226 people sleeping rough, living in transitional housing or engaging with homelessness assistance services in Victoria disclosed that the right considered most important, and the right most often violated, is the right to be treated with dignity and respect (Department of Human Services (Vic) 2004: 9).
The right to be treated with dignity and respect is the cornerstone of the international human rights framework and is enshrined in the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The Preambles to both covenants provide that ‘recognition of inherent dignity ... is the foundation of freedom, justice and peace’ and state that human rights derive from the inherent dignity of the human person. The right to be treated with dignity and respect is also a cornerstone of the Supported Accommodation Assistance Act 1994 (Cth), which establishes a Commonwealth/state agreement pursuant to which homelessness assistance services are funded and delivered called the Supported Accommodation Assistance Program (SAAP). Recognising the importance of empowerment, participation, inclusion and autonomy to any person’s efforts to exit homelessness, s 5(4) of the Act provides that homelessness assistance services should ‘promote and emphasise the human dignity of people who are homeless’. The Preamble to the Act similarly provides that Commonwealth, state and territory governments and service providers should ensure that supported accommodation and related services are delivered to people experiencing homelessness in a manner that promotes and respects their human dignity, rights and freedoms.
Treating clients with dignity and respect should be central to the practise of any law (see, for example, Legal Practice Act 1996 (Vic), s 64), but particularly that of human rights law. Whereas it is well established that legal problems, particularly those pertaining to adequacy of housing and income, can have a significant impact on life quality, economic circumstances and health (Genn 1999: 213), there is now an emerging consensus that engagements with lawyers and legal processes themselves can contribute to the physical, psychological, social and emotional wellbeing of participants (King 2003: 172; International Network on Therapeutic Jurisprudence). Hazel Genn’s research in the United Kingdom regarding ‘what people do and think about going to law’ establishes that legal participants who receive high quality legal services are 56 per cent more likely to consider that the legal system and its substantive outcomes are ‘fair and just’ than self-represented participants (Genn 1999: 211). Indeed, research in both Australia and the United States demonstrates that being treated with dignity and respect by lawyers and legal officers is often more important than the legal outcome to many clients’ perceptions of justice, fairness and satisfaction (Tyler 1996: 3–15; Hunter 2002; King 2003: 173). In his recent book, entitled The Lowest Rung: Voices of Australian Poverty, social researcher and historian Mark Peel confirms this research. Synthesising the content of interviews with more than 300 people from what are often regarded as the ‘impoverished’ housing estates of Broadmeadows (in Melbourne), Mt Druitt (near Sydney) and Inala (in Brisbane), Peel reports that:
Their justice was distributive and procedural, and intimately connected with dignity and self-determination. Justice was about being respected, trusted and listened to because what you had to say was important. If social justice is a response to poverty, they argued, it must be a response to poverty’s psychological and emotional wounds, not just its financial consequences: ‘You can put up with the struggle, you know, just get by, if you get respect and if you’re treated right’, said Grace (Peel 2003: 182).
Being treated with a lack of dignity and respect can be a profoundly disempowering experience for clients: ‘clients who do not experience respect ... from their ally, the lawyer, may be all the more convinced that they lack the capacity to act for themselves’ (Ellmann 1992: 997–8). Being treated with dignity and respect, on the other hand, is likely to increase loyalty, trust, candour, engagement, understanding and, instrumental lawyer-client relationship concerns aside, a sense of client value, control and empowerment.
Human rights lawyers listen, hear and seek to understand
You can’t do justice if you don’t listen to the people who know injustice. It’s time for them to be heard (Peel 2003: 182).
Perhaps the most powerful but challenging strategy for human rights lawyers to demonstrate respect for the human dignity of people experiencing homelessness is to ask, listen, understand and always give primacy to what clients want; that is, to empathise with clients.
It is a powerful strategy because, as discussed further below, empathising with clients involves not only ‘actively listening’ to them and validating their narratives and experiences, but recognising that any appropriate, successful, sustainable response to homelessness will necessarily be informed by those narratives and experiences — a process that requires the meaningful participation of homeless people in program development, implementation and management. Giving effect to this recognition is the strongest possible communication of respect.
It is a challenging strategy, however, because, as Stephen Ellmann rightly identifies, listening to and understanding clients often requires that lawyers recognise and overcome their own limitations of experience and perspective ‘so as to see or feel the world as other persons do, despite the differences of race, gender, class, culture or simply identity that divide us from each other’ (Ellmann 1992: 1003; Butcher 2004).
Empathetic lawyering requires that the client feels that the lawyer is listening, understanding and accepting, but not judging (Ellmann 1992: 991). Ellmann goes on to say that ‘to cross the gap’, and to be perceived by the client to have ‘crossed the gap’, lawyers need more than mere intellectual curiosity and commitment, they need ‘some sympathetic identification with those from whom ... experience may otherwise separate them’ (1003). In my view, ‘crossing the gap’ generally requires that lawyers acquire some exposure to and understanding of clients’ social, cultural and economic experiences, perspectives and lives (Renouf 2002). As Carrie Menkel-Meadow states, lawyers need to learn more effectively how to ‘feel’ with others by experiencing ‘the other’ (Menkel-Meadow 1994: 620; see also Bond 2001: 332). In the context of homelessness legal service provision, this engagement is most effectively realised by providing legal services to people experiencing homelessness on their own ‘turf’: at soup kitchens, welfare agencies, crisis accommodation facilities, rooming houses and even on the streets. In John’s case, legal services were provided over a bowl of spaghetti by pro bono lawyers outreaching to Credo Café, an open lunch program for Melbourne’s homeless which operates in the basement of Collins Street Baptist Church. Not only does the provision of outreach legal services significantly increase their accessibility and cultural appropriateness and overcome many identified barriers to accessing legal assistance (‘Symposium: Homelessness, Human Rights and the Law’ 2004; Senate Legal and Constitutional References Committee 2004: 149–53), it is also likely to increase the likelihood of lawyers ‘developing a critical understanding of power and privilege’ (Aiken 1997: 46), gaining clients’ trust and confidence, and ‘attaining an understanding of clients’ substantive goals and aspirations’ (Genty 2000: 275; see also Renouf 2002).
Giving primacy to clients’ voices is also a challenge because, as Hafetz identifies, when dealing with one of society’s most disempowered and stigmatised groups, it is all too easy to disregard what a client is saying and impose our own conceptualisations of that client’s ‘best interests’ (Hafetz 2003: 1246). John’s instructions to his lawyers were to ‘deal with the fines’ and to take action to ensure that law enforcement officers stopped hassling and targeting him for drinking in the street. Too often, lawyers respond to instructions such as this in a limited and judgmental way by, for example, advising the client to stop drinking rather than actually seeking to identify and address the underlying causes of this injustice. For Peel and many of the housing estate residents of Broadmeadows, Mt Druitt and Inala, however, the paternalistic substitution of perceived ‘best interests’ for what the client says he or she wants is the antithesis of empathy and is profoundly disempowering:
To speak without being listened to ... erodes hope in the possibility of change. It is cruel to ask questions without really hearing the answers or to consult when pre-determined outcomes won’t be affected anyway. Asking without listening is much, much worse than not asking at all (Peel 2003: 110).
This was also a recurring theme in the recent survey of 226 homeless people across Victoria referred to earlier, with a significant majority of respondents identifying the ‘right to make your own decisions, regardless of what the worker may think about that decision’ as very important. As one respondent stated, ‘You always feel judged when someone is making decisions about you’ (Department of Human Services (Vic) 2004: 12).
Empathetic lawyering — that is, asking, listening, understanding and giving primacy to clients’ voices — is central to human rights lawyering (Hurwitz 2003: 522), both in a procedural and in a substantive sense. The procedural value of giving primacy to a client’s voice is that simply being heard can be empowering and validating. As Barbara Bezdek has written, ‘rights are not rights where they cannot be spoken or heard’ (Bezdek 1992: 600). This has led some poverty law scholars in the United States to argue that traditional lawyering methods must be revised to take account of the client’s voice in the course of poverty law representation so that, for example, welfare hearings are viewed less as a forum for a lawyer to advocate zealously on the client’s behalf, and more of an opportunity for the client to tell his or her story, particularly where the client’s socio-economic status is such that he or she would otherwise be denied this opportunity (Hafetz 2003: 1244, 1247). On this view, there may be considerable socio-political merit in running even a ‘legally unmeritorious’ case if it will ensure a level of transparency and accountability in decision-making, on the one hand, and provide a forum for the client to tell his or her story, to be listened to and to be heard, on the other. As one homeless person states, ‘There is nothing worse than not being able to understand what is happening to you’ (Department of Human Services (Vic) 2004: 14). In my experience, clients are more likely to be compliant with, and accept as fair, an adverse determination if it has been made after the client has had the opportunity to tell his or her story, and listen to the other side’s evidence and story. This is especially the case in hearings that are likely to affect a client’s autonomy, liberty or independence, including guardianship, administration and mental health treatment hearings. In my view, human rights lawyers should always assist clients to attend and, if instructed, contest guardianship, administration and involuntary mental health treatment applications, even in circumstances in which there is minimal chance of success or in which an appearance is unlikely to affect the outcome. Further, it is my view that courts and tribunals should always allow and facilitate storytelling in such hearings if they are to adopt a therapeutic approach to the administration of justice.
The substantive and instrumental value of giving primacy to clients’ voices is that it is only after being listened to and understood that clients can inform and engage with strategies and outcomes. As Mark Peel concludes in his book referred to above:
Doing justice depends upon listening; it begins not from telling people what they should do, but from listening to people and then asking, ‘What do you think should be done?’ ... Impoverished people don’t need to be taught and they don’t need to be told. They need to be trusted, respected and heard. They want to begin the conversation about poverty and injustice rather than always coming at its end (Peel 2003: 179).
The experience of Leonie, a rooming house tenant, demonstrates this point clearly. Leonie sought pro bono legal assistance to deal with an unpaid phone bill in relation to which she was being harassed by a debt collector. Lawyers provided her with comprehensive advice regarding possible grounds for challenging the mobile phone contract, causes of action against the debt collection agency under the Trade Practices Act 1974 (Cth), and the feasibility of negotiating either a waiver of, or instalment arrangement for, the debt. Notwithstanding this advice, Leonie instructed her lawyers that she was prepared to pay the debt. She wasn’t interested in her strict legal rights or potential remedies. All she wanted was an opportunity to tell her story — to explain to the debt collector why payment was late and to demand that, when he called her on the phone, he spoke politely and treated her with dignity and respect. The lawyers honoured these instructions and Leonie was empowered as a result.
Robert Bastress and Joseph Harbaugh have written that the ‘greatest respect’ is communicated and conveyed through ‘accurate empathy’ (Bastress and Harbaugh 1990: 130). Only by asking, listening, understanding and always giving primacy to clients’ voices can homelessness legal service providers claim to promote and protect the human rights and dignity of people experiencing homelessness, both individually and systemically.
Human rights lawyers adopt a ‘whole of client’ approach
Many people experiencing homelessness, such as John, seek legal assistance to deal with significant unpaid fines, particularly for public space offences (such as drinking intoxicating liquor in public) and public transport infringements (such as travelling without a valid ticket). If lawyers focus only on that immediate and pressing issue, however, they may not identify and address underlying or interrelated issues that may cause or contribute to a client’s so-called offending behaviour or the criminalisation of that behaviour. This kind of ‘band-aid’ approach is likely to lead to continued infractions of that person’s fundamental human rights and dignity. As Ellmann identifies:
To the extent that the legal client’s vulnerability is a product of social disadvantage and subordination, a true solution may require changes in the client’s life outside the lawyer’s office (Ellmann 1992: 1013).
Identifying and implementing solutions requires a proactive approach to homelessness human rights lawyering. Precisely because clients present in a state of crisis and are likely to be occupied by the single urgent legal issue in respect of which they seek assistance, lawyers must ask the client about their other needs and what, in the broadest sense, they want to achieve (Neiman 1999; Hafetz 2003: 1245). This is ‘holistic advocacy’, an approach that, in the words of Tanya Neiman, Director of the Volunteer Legal Services Program of the Bar Association of San Francisco, ‘focuses upon, analyses and addresses the needs and situations of the client as a whole person with complex interrelated issues and problems’ (Neiman 1999). It is an approach that adopts both an individual and a broader structural view as to what it means to act on a client’s instructions. This is not to say that, when a client presents with a fine for begging, the first priority should not be to challenge the fine vigorously. That is an integral part of homelessness and human rights legal advocacy. It is to say, however, that such a response does nothing to address the underlying causes of the client’s begging or of homelessness and its attendant human rights violations more broadly.
On this view, an important aspect of human rights lawyering involves identifying and assisting to address clients’ non-legal needs (see generally Renouf 2002). As Michael Diamond, Director of the Housing and Community Development Clinic at Georgetown University Law Center, argues, ‘Non-legal issues are intertwined with legal issues. Any effective response must account for both’ (Diamond 2000: 79). While some may consider that this is beyond the brief of lawyers, my view is that a person’s non-legal ‘welfare’ can impact very squarely on their current and prospective legal needs and health and that, having regard to this, a lawyer’s duty to his or her client does not cease with the resolution of the case at hand (Clarke 2001: 428–9).[1] As Tanya Neiman implores, ‘we must move from a “crisis only” to a more proactive, preventative approach’ (Neiman 1999: 20). That is not to say that lawyers should become social workers. It is to say, however, that homelessness lawyers operating in a human rights paradigm will get to know their clients and their non-legal needs better, get to know the social service providers that can assist clients with their needs, develop strong collaborative relationships with those providers, and develop effective and integrated intake and referral procedures to ensure that clients’ needs are met in a real and positive way. It is worth quoting Neiman in full on this:
A holistic approach requires us to focus on achieving results that have lasting impact and truly change lives. This does not require a sea change overnight; in fact, better results may be achieved by simply asking the right questions and linking arms with other providers and agencies dedicated to the same clientele ... We must realise that this one contact with the client may be the only reaching out that a client undertakes. This is especially true for extremely vulnerable clients such as battered women. There is a distinct tendency for people to move from crisis to crisis — and that is how we in the legal services community have tended to organise our work. Thus, if we can do no more than accurately analyse client needs and give some guidance on where to get help, at least we have not blinded them to other possible remedies that may help them change their circumstances. What would be best for all is if, once a client sits down to tell his or her story, advocates try to deal comprehensively with what is really going on (Neiman 1999: 21–3).
As Neiman concludes, the ‘job [of] legal service lawyers is to recognise that clients have a myriad of needs and to create efficient ways to utilise the willing talent available’ (Neiman 1999: 24). Recognising the limits of lawyers and the law, my view is that this is best achieved by undertaking a multidisciplinary approach to advocacy for the homeless. By collaborating with social service providers, human rights lawyers can help homeless clients with issues — such as fines, debt, social security, evictions and rental arrears — that are best resolved through legal advice or representation, while ensuring that clients’ non-legal needs are met as part of the case resolution strategy through the provision of crisis accommodation, case management, public housing assistance, vocational training, drug and alcohol counselling, and medical, dental and psychiatric treatment. This collaborative model improves the existing social service by incorporating a legal clinic to provide a more comprehensive overall service to clients, and improves the quality of the legal clinic by enhancing the empathy of lawyers and addressing the client issues that are often causative of or underlie legal problems. Most importantly, a collaborative, integrated approach is likely to improve human rights outcomes for clients (Department of Human Services (Vic) 2004: 11). In John’s case, recognising that alcoholism and homelessness were among the causes of him being hassled and fined for drinking in the street, the lawyers spoke with John about alcohol treatment and housing options. In consultation with John, they arranged for attendance at a residential rehabilitative program. They also obtained an appointment with a housing information and referral service, through which John was subsequently placed in transitional housing.
Human rights lawyers ensure client participation in public policy formulation and contribute to community development and the alleviation of disadvantage
Had John’s lawyers stopped there, however, they would not have properly discharged their duty to listen to, understand and give primacy to what John wanted to achieve: namely, action to rectify the injustice constituted by homeless people being continually targeted and fined for drinking in public spaces — the only spaces in which many homeless people can engage in this basic, often life-sustaining activity. Moreover, by failing to take further action to address underlying socio-economic and socio-political factors, the outcome procured by the lawyers would most likely only have offered John temporary respite from the fines, particularly given the incidence of recurring homelessness and relapse as part of recovery from any form of drug or alcohol addiction (Diamond 2000: 107–9).
Recognising this, Richard Wilson and Jennifer Ramussen have written that human rights lawyering must change not only laws, but also ‘the underlying social structures that cause injustice to develop or that sustain injustice’ (Wilson and Ramussen 2001: 55). That is why human rights lawyering for people experiencing homelessness requires that lawyers look beyond clients’ immediate legal and non-legal needs, and integrate advice and advocacy with part of a broader, ongoing anti-poverty and community development approach (Hafetz 2003: 1239–40; see also Hurwitz 2003: 517), becoming, in Diamond’s words, ‘more active in organising and developing client groups and in developing and implementing strategies that increase the long-term political power of clients’ (Diamond 2000: 68).
In my view, it is central to human rights lawyering that this project be undertaken in community with people who are homeless or who have experienced homelessness for three primary reasons. First, the meaningful involvement of people experiencing homelessness in developing and implementing policies to respond to homelessness and build stronger communities is required by both international human rights law and domestic law. Under international law, art 25 of the International Covenant on Civil and Political Rights provides that all persons shall have the right, and the opportunity without discrimination, to participate in public affairs. According to the Human Rights Committee, this right covers all aspects of public administration and the formulation and implementation of policy at international, national, regional and local levels (Human Rights Committee 2001: 157). Domestically, the Preamble to the Supported Accommodation Assistance Act 1994 (Cth) provides that it is essential that people experiencing homelessness have the opportunity to be involved in the development of policies relating to, or impacting upon, them. SAAP’s aim to enable people experiencing homelessness to participate fully in community life is recognised in s 5(4)(d) of the Act.
Second, as Larissa Behrendt has written in the context of indigenous self-determination, ‘a community must always decide for itself what is best for its members. Only the community knows what is best for the community’ (Behrendt 1995: 108). In the context of responses to homelessness, Anne Gosely, a formerly homeless woman and a founder of the Homeless People’s Association, has similarly stated:
We understand that you think you are doing your best but until such time as you stop and ask the people themselves what their needs are you will keep going around in circles and wasting money that could be put to good use ... From our experience with housing we have been there and done that. We in the community are the key to help you solve these housing matters if we teach and you listen (Gosely et al 2003: 1).
Institutions such as the Homeless People’s Association — a group of homeless or formerly homeless people from St Mary’s House of Welcome in Fitzroy, Melbourne, which aims to enable homeless people to have a say and to participate in decision-making processes and projects that affect them — are critical in helping to inform lawyers of community needs and the most appropriate way to respond to those needs (Solomon 2000: 483; see also Diamond 2000: 115–6; Renouf 2002). The importance of consumer participation in programmatic development and implementation was a recurring theme among the 226 homeless people consulted across Victoria in the recent 2004 survey referred to earlier. As one homeless person consulted reported, ‘We should have the main say, because it’s for us, and we know what’s really going on’ (Department of Human Services (Vic) 2004: 13). Cassandra Goldie, Director of the Homelessness Legal Rights Project at the University of New South Wales, calls attention to the action needed to achieve this when she says:
Homeless people must be supported to speak and be listened to, to organise locally, to come together to articulate their needs, concerns and problems and to be involved in the delivery of solutions (Goldie 2003: 133).
Forming strong, symbiotic relationships with organisations such as the Homeless People’s Association should therefore be central to effective homelessness legal advocacy and community building. Robert Solomon, Clinical Professor of Law at Yale Law School, captures it like this:
Ultimately, a community-based process requires identifying the community and setting priorities. If those priorities are set in a law office by lawyers, informed predominantly by those who manage to get to the law office, the priorities are unlikely to be representative of or strengthen the community at large. Real priority setting must involve a client base and must occur on the clients’ turf (Solomon 2000: 483).
Third, as Hurwitz has identified, client participation in social justice advocacy should be fundamental to human rights lawyering due to its instrumental role in generating client awareness about rights and enduring client empowerment. As she says, ‘Making rights real for people involves an engaged “critical consciousness” that is developed through education, training and community organising, as well as strategic lawyering’ (Hurwitz 2003: 516). Client empowerment and community development require that homeless people themselves be a primary voice in public policy advocacy and decision-making processes that affect them and that lawyers support them to do this. This is reflected in the Supported Accommodation Assistance Act 1994 (Cth), which provides in s 5 that sustainable pathways out of homelessness require policies that empower homeless people, maximise their independence, and enable them to participate fully in social, cultural, economic and political life. As Andy Blunden writes:
There is more to well-being than having a fat bank account and there is more to poverty and exclusion than having no bank account at all. What people living in poverty and isolation really need is the right to self-determination: the capacity both individually and with others to determine their own future and gain control over their lives (Blunden 2004: 30).
The lawyers working with John identified that a range of legal, social, economic and political factors were contributing to him being continually fined for drinking in the street. These factors included the privatisation and policing of public space, the insensitivity of law enforcement officers to the predicaments of people experiencing homelessness, the lack of any diversionary program as an alternative to issuing infringement notices, the gap in equal opportunity legislation in failing to protect people from discrimination on the ground of homelessness, and the absence of any entrenched rights or access to a complaints mechanism for homeless people. On a macro level, of course, other contributing factors include entrenched poverty and the lack of adequate, affordable and appropriate housing stock (Senate Community Affairs Reference Committee 2004: 125). Addressing these factors remains an ongoing project. However, strategies developed and implemented by John and his lawyers to date include meeting with senior law enforcement officers to discuss the nature and causes of homelessness, liaising with law enforcement agencies and social service providers to develop referral protocols and procedures, making submissions to the Victorian Government regarding reform of the Equal Opportunity Act 1995 (Vic) to prohibit discrimination on the ground of ‘social status’, and participation on a governmental reference group to develop a ‘Charter of Rights and strengthened complaints mechanism for people experiencing homelessness’. With a slate wiped clean of fines, John is now employed by the Victorian Department of Human Services as a consumer consultant to advise on the development and implementation of policies and programs to respond to homelessness and promote homeless people’s rights.
Human rights lawyers engage in public education
As the discussion above demonstrates, human rights lawyers and their clients have the potential to shape public discourse, influence public policy and, importantly, transform societal norms and values through engaged public education. In some cases, public education can be an adjunct to litigation, as recognised by Hafetz:
Advocates should find (and, to the extent possible, publicise) cases that show how easy it is for people to fall through the cracks and become homeless due to extreme poverty. They should pursue litigation that exposes the socio-economic forces beneath individual hardships, putting homelessness in the context of larger policy issues and encouraging long-term solutions by decision-makers in the policy arena (Hafetz 2003: 1262).
But lawyers must also do more than litigate, employing their advocacy skills to generate, engage in, contribute to and influence public debate about homelessness and human rights. As Genn’s research in the United Kingdom demonstrates, public education about rights and legal processes for the enforcement of rights and redress of wrongs is profoundly lacking and contributes to societal unfairness and injustice (Genn 1999: 255; see also Senate Legal and Constitutional References Committee 2004: 150). Public education about causes of and solutions to homelessness is therefore necessary and central to building a stronger community both for the homeless and against homelessness. In my view, this project is best undertaken in a human rights framework. The language of human rights is universal and responding to homelessness in a human rights framework can be a powerful strategy (Lynch and Cole 2003). Human rights enable marginalised and disadvantaged people to make claims against governments as of right. Human rights norms impose obligations on governments to respect, protect and fulfil fundamental rights, including the right to adequate housing, the right to health, the right to education, the right to social security, the right to be free from discrimination, and the right to life, liberty and security of person. Crucially, they also impose an obligation on governments to take steps, to the maximum of their available resources, to realise progressively all homeless persons’ human rights and to remedy violations. That is what appeals to me most. A human rights approach to public policy advocacy enables debates about, and responses to, homelessness to be framed in the context of state responsibilities. By framing homelessness in human rights terms and, by extension, structural terms, we can shift the ‘blame’ for homelessness to governments and away from individuals.
Conclusion
Human rights advocacy is fundamentally participatory and equitable. That is, it requires active collaboration between lawyers, advocates, and those affected by the work (Hurwitz 2003: 521).
Homelessness is among the most serious socio-economic issues confronting Australia. On any given night, it is enumerated that there are over 100,000 people experiencing homelessness across the country, a figure referred to recently by a Senate Committee as a ‘national disgrace’ (Chamberlain and McKenzie 2003: 2; Senate Community Affairs Reference Committee 2004: 125). Many of these people have legal problems that have either caused or contributed to their homelessness. By appropriately targeting and delivering legal services, lawyers can start to address some of these problems and assist some people to navigate out of homelessness.
But, by adopting a human rights approach to legal service provision and advocacy, lawyers can also do much more. By treating homeless clients with dignity and respect, lawyers can enhance their physical, social and psychological wellbeing. By listening to clients and giving primacy to their voices and answers, lawyers can generate a sense of client empowerment. By identifying and addressing homeless clients’ non-legal needs in holistic collaboration with social service providers, lawyers can improve clients’ lives. By contributing to community development and facilitating the participation of homeless people in public policy development and implementation, lawyers can start to identify and address structural causes of homelessness. By working with homeless people to educate the public about human rights and homelessness, lawyers can begin to transform societal values and pressure politicians.
Human rights lawyering for people experiencing homelessness is, indeed, a powerful and important strategy. l
References
Australian cases
Harry v Mental Health Review Tribunal (1994) 33 NSWLR 315
Murray v Director General, Health and Community Services Vic (unreported, Supreme Court of Victoria, Eames J, 23 June 1995)
Australian legislation
Equal Opportunity Act 1995 (Vic)
Legal Practice Act 1996 (Vic)
Supported Accommodation Assistance Act 1994 (Cth)
Trade Practices Act 1974 (Cth)
International legal materials
Human Rights Committee (2001) General Comment 25: Article 25 UN Doc HRI/GEN/1/Rev.5
International Covenant on Civil and Political Rights, 23 March 1976, 999 UNTS 171
International Covenant on Economic, Social and Cultural Rights, 3 January 1976, 993 UNTS 3
Books and articles
Aiken J H (1997) ‘Striving to teach “justice, fairness and morality”’ 4 Clinical Law Review pp 1–64
Bastress R and Harbaugh J (1990) Interviewing, Counseling and Negotiating: Skills for Effective Representation Little Brown, Boston
Behrendt L (1995) Aboriginal Dispute Resolution Federation Press, Sydney
Bezdek B (1992) ‘Silence in the court: participation and subordination of poor tenants’ voices in legal process’ 20 Hofstra Law Review pp 533–608
Blunden A (2004) ‘Capital investment’ 14(5) Eureka Street pp 30–1
Bond J (2001) ‘Public interest law: improving access to justice: the global classroom: international human rights fact-finding as clinical method’ 28 William Mitchell Law Review pp 317–45
Butcher S (2004) ‘Lawyers “insensitive” to clients’ needs’ The Age 9 March p. 5
Chamberlain C and McKenzie D (2003) Counting the Homeless 2001 Australian Bureau of Statistics, Canberra
Clarke C (2001) ‘Problem-solving defenders in the community: expanding the conceptual and institutional boundaries of providing counsel to the poor’ 14 Georgetown Journal of Legal Ethics pp 401–58
Davies M (2003) ‘Legal theory and law reform: some mainstream and critical approaches’ 28 Alternative Law Journal pp 168–71
Department of Human Services (Vic) (2004) Charter of Rights and Enhanced Complaints Mechanism: Report on Consumer Consultations Department of Human Services, Melbourne
Diamond M (2000) ‘Community lawyering: revisiting the old neighbourhood’ 32 Columbia Human Rights Law Review pp 67–131
Ellmann S (1992) ‘Theoretics of practice: the integration of progressive thought and action’ 43 Hastings Law Journal pp 991–1015
Genn H (1999) Paths to Justice: What People Do and Think About Going to Law (1999) Hart Publishing, Oxford
Genty P M (2000) ‘Clients don’t take sabbaticals: the indispensable in-house clinic and the teaching of empathy’ 7 Clinical Law Review pp 273–86
Goldie C (2003) ‘Rights versus welfare’ 28 Alternative Law Journal pp 132–5
Gosely A, Swainson C, McCracken K and Tabb L ‘Stop and listen ... don’t assume: why the homeless people’s association was formed’ (Paper presented at Beyond the Divide, 3rd National Homelessness Conference, Brisbane, 6-8 April 2003) [Online] Available: <www.afho.org.au/4_publications/conference_papers/Tabb_ etc.pdf> [2004, August 8]
Hafetz J L (2003) ‘Homeless legal advocacy: new challenges and directions for the future’ 30 Fordham Urban Law Journal pp 1215–65
Hunter R (2002) ‘Through the looking glass: clients’ perceptions and experiences of family law litigation’ 16 Australian Journal of Family Law pp 7–25
Hurwitz D (2003) ‘Lawyering for justice and the inevitability of international human rights clinics’ 28 Yale Journal of International Law pp 505–50
International Network on Therapeutic Jurisprudence [Online] Available: <www.therapeuticjurisprudence.org> [2004, August 2]
King M (2003) ‘Applying therapeutic jurisprudence from the bench’ 28 Alternative Law Journal pp 172–75
Legal Services Research Centre (2003) Causes of Action: Civil Law and Social Justice The Stationary Office, Norwich
Lynch P and Cole J (2003) ‘Homelessness and human rights: regarding and responding to homelessness as a Human Rights Violation’ 4 Melbourne Journal of International Law pp 139–76
Menkel-Meadow C (1994) ‘Narrowing the gap by narrowing the field: what’s missing from the MacCrate Report — of skills, legal science and being a human being’ 69 Washington Law Review pp 593–624
Neiman T (1999) ‘Creating community by implementing holistic approaches to solving clients’ problems’ 33 Journal of Poverty Law Clearinghouse Review pp 19-37
Peel M (2003) The Lowest Rung: Voices of Australian Poverty Cambridge University Press, Cambridge
Renouf G (2002) ‘A client-centred approach to access to justice’ Paper presented at the Access to Justice Roundtable, July 2002, Sydney [Online] Available: <www.law foundation.net.au/publications/reports/ajr/ajr4.html#3> [2004, August 8]
Senate Community Affairs Reference Committee (2004) A Hand Up Not a Hand Out: Renewing the Fight against Poverty Commonwealth of Australia, Canberra
Senate Legal and Constitutional References Committee (2004) Legal Aid and Access to Justice Commonwealth of Australia, Canberra
Solomon R A (2000) ‘Representing the poor and homeless: a community-based approach’ 19 St Louis University Public Law Review pp 475–83
‘Symposium: Homelessness, Human Rights and the Law’ (2004) 17(1) Parity pp 1–104
Tyler T (1996) ‘The psychological consequences of judicial procedures: implications for civil commitment hearings’ in D Wexler and B Winnick (eds) Law in a Therapeutic Key: Developments in Therapeutic Justice Carolina Academic Press, Durham pp 3–15
Wilson R and Ramussen J (2001) Promoting Justice: A Practical Guide to Strategic Human Rights Lawyering International Human Rights Law Group, Washington DC
* Philip Lynch LLB (Hons) (Melb) is Coordinator of PILCH Homeless Persons’ Legal Clinic.
[1] Both the Supreme Court of Victoria (Murray v Director General, Health and Community Services Vic) and the Supreme Court of New South Wales (Harry v Mental Health Review Tribunal) recognise that acting in a client’s best interests includes having regard to that client’s ‘mental health’.