JATL recently held our third Social Justice Forum of the year, ‘Barriers to Change: Homelessness’. As a silenced and marginalized group facing entrenched disadvantage, it is important to recognize the lived struggles of those experiencing homelessness and learn about the issues preventing access to justice and equality.
This forum warmly invited Jesse Nolan from the Brisbane Youth Service and
Cameron Lavery, Coordinator of the Homeless Person's Legal Clinic at QPILCH.
Jesse Nolan – Brisbane Youth Service
My name is Jesse and I’m one of the caseworkers with the Brisbane Youth Service. I currently hold a drug and alcohol counseling role. I have been working in the youth sector for around eight years now.
When I was asked to speak here, I thought I might do some research and in a true youth worker style, I chose to not do that. There are lots of statistics about the number of juveniles in the justice system and the barriers they face and you all being law students, I’m assuming you see enough statistics and it might be quite boring for me to rattle off facts. The things I will touch on today are the issues that we work with young people every day and especially some of the clients that I have on my caseload.
It’s obviously not a surprise that there is a massive overrepresentation of Indigenous people who are involved in the justice system, through the courts and similar legal processes. I currently support a young indigenous woman, Jane* (*de-identified and name changed for privacy) whose parents are both currently homeless and sleeping on the streets of Brisbane as are most of the extended members of her family. She’s one of the most beautiful human beings that I have ever had the pleasure of working with and she is currently serving nine months on probation for essentially fare evasion.
For the time she was sentenced, I was supporting her in court. We had been waiting around three hours and at this time she had been sleeping on the street and was around six months pregnant. The gentleman before her went before the Magistrate, he had been charged with the possession of quite a large amount of methamphetamines as well as driving under the influence (his second driving under the influence charge in a twelve month period). He had gone to court in quite a nice suit, he had his family supporting him at the courthouse as well as a private barrister. So the judge, taking all of these things into account gave him a $300 fine.
Jane went next and I was with her in court. She had just come from sleeping under a bridge to the courthouse that day. On the day she went before the court, her charges were possession of a very small amount of cannabis, as well as two or three fare evasion charges. The prosecutors were pushing for her to be incarcerated because she had previous probation periods where she had not met all of the requirements, due to her being homeless and in a domestically violent relationship, which had been outlined to the police prosecution support letter.
That circumstance could be replayed any number of times with the clients that we work with, and the level of disadvantage, particularly in the Indigenous community, is entrenched. I have worked with two clients who are currently incarcerated for what those in the youth sector would refer to as “homelessness offences”. This term includes things like fare evasion and other minor offences that are circumstantial as a result of being homeless.
We have a large number of people who are homeless for things like family violence reasons, but are not sleeping on the streets so they’re basically couch surfing. However, they do not generally have any access to income and are unaware of the Centrelink processes so they usually try and catch buses and trains, skipping the fares, to try and get to a friends house where they might be able to stay for a short period of time. This means that they tend to accrue a large number of fare evasion charges. However, we have seen young people incarcerated in juvenile detention for having a few fare evasion charges, which seems pretty ridiculous that the government is spending so much money locking people up for something as trivial as fare evasion when at the same courts, we are seeing people charged with large amounts of drugs or serious cases of domestic violence who walk free without incarceration. This often happens as a result of receiving a court date (up to 6 weeks in the future) and failing to appear. However, this is caused by entrenched features of homelessness, including focusing on where they might sleep at night and not giving attention to things not immediately linked to survival, like a court date six weeks in the future.
The other big one we have is trespassing as a result of sleeping rough. For example, a homeless person may sleep out the back of the church in King George Square, or up in the Roma Street Parklands on some property out there, and they are often charged for that. Possession and public nuisance would be the other two big ones.
For public nuisance, it’s essentially at the police’s discretion and I would say that in my experience, public nuisance is a charge they use to move people on. All of these sorts of charges lead to young people entering the justice system really early. On top of this, the failure to appear – by not realizing when they have to appear and then missing court – is taken by the Magistrates as a sign of total disrespect to the Courts. This often leads to them coming down harder on them then they would have in the first place. It’s pretty shocking to me that there are such difficult barriers for young people accessing court.
Currently the police have an operation in Brisbane City called Oscar Freeze going at the moment – a very creative name from QPS. We used to run an outreach program with QPS on every Thursday night where the police would come out and learn ways of engaging with young people. It had some really good benefits. Unfortunately, around the time the G20 summit was held, the police ceased all community type operations in Brisbane. That also probably led to them having multiple operations in the last few years, similar to Oscar Freeze, where they are essentially to target young Polynesian and Pacific Island people and move them on from the city. So, what can happen is if there are a large number of Pacific Islander young people coming out to access the food services, and they may have left home for a number of reasons including family/domestic violence but unlike other young people, they can’t access Centrelink if they are not Australian citizens. This means that they have no income, financial services or support networks, or access to services such as those provided by the Department of Housing. Basically, the police have been given a directive where they have been told to target Pacific Islander or New Zealand citizens to move them on. Their approach is to go pretty hard to these young guys. Additionally, because all of these young people are quite transient, moving between Brisbane, Ipswich, and the Gold Coast, this leads to failure to appear for notices. Getting these kids into court is a massive problem in itself and as soon as they start entering the court system, it starts to become really normalized. When they’re beginning to get into court for things like public nuisance, fare evasion, trespass and other minor things, they start to add up. Also, when in their peer group they are around people with larger or more serious offences, this becomes quite normalized for them and this leads to committing offences of a more serious nature.
We have also seen some of the older homeless community really getting up to distasteful things with the younger people sleeping out, by encouraging them in the offences they are committing and in some cases, there have been some extremely serious cases of sexual assault and other nasty stuff we won’t get into today.
We’ve already touched upon couch surfing, homelessness, and the failure to appear and the courts generally take that as a really serious sign of disrespect to the court. I have worked with a young man who is 25 years old, just had a son, and over the last twelve months he has spent about six months of that incarcerated, mostly a result of failure to appears caused by sleeping rough for the last few years. Young people are really struggling to get themselves to court.
Legal Aid is also a big hassle for young people. We find that these people entering the courts generally have no idea what their rights are so QPS will generally go pretty hard at these kids. A lot of the time they have been searched, unwarranted, and they are generally getting hassled. We have had young people that they are so terrified of King George Square that they won’t move anywhere, even if they’re five minutes past their curfew unless they are with a support worker due to being generally terrified of coming across someone.
They are also generally scared of going to court and by the directive of the police operations. There has been an influx of young people at Brisbane Children’s Court on a Friday and the Magistrates in turn are getting pretty sick of that quickly and come down hard on them. We’ve had a lot of young people currently incarcerated for some really trivial matters as a result.
The demographic that we deal with is largely unaware of their rights in their interactions with QPS and there is a current police operation where they are targeting a specific group of young people, who are probably the most vulnerable demographic of people in Queensland due to a lack of access to services (including homelessness services). The police are compounding their disadvantage, which is extremely sad and disappointing.
Cameron Lavery – Homeless Persons’ Legal Clinic
It’s really important and useful to hear from Jesse to start us off as everything we do is pro bono, through QPILCH and the pro bono volunteer lawyers, and is in collaboration with the sector. We do not achieve our outcomes without this collaboration with the sector. We have one of our Homeless Persons’ Legal Clinics out at the Brisbane Youth Service every Monday and for all of the trends that Jesse just spoke about, we see them from a legal perspective as well. It’s really useful to get that insight from someone on the ground.
Just to backtrack a bit, my name is Cameron and I am the Coordinator of QPILCH’s Homeless Persons’ Legal Clinic and also other outreach clinics for vulnerable groups, so we have clinics for refugees and asylum seekers, people with mental health concerns, and vulnerable young people transitioning from state care to independence. We have 21 clinics across the state and run in partnership with 28 law firms and over 30 other agencies. This translates to about 500 pro bono lawyers who volunteer their time through the firms to deliver these services. We help about 1700 new clients each year and we are really geared towards outcomes. The young people Jesse was talking about are one of our primary client bases and what we are trying to do as pro bono lawyers focused on civil law is to collaborate with people like Legal Aid and give practical legal advocacy in that space and try to inform people of their rights and make outcomes more appropriate.
In terms of the context of homelessness and the law, it is important to have an understanding of why the legal profession dedicates so many pro bono resources to this space. It is actually the largest part of QPILCH. This is because homeless people have experienced such chronic disadvantage and been through trauma, all kinds of vulnerabilities, and marginalization. It’s dedicated to helping people who have been really disassociated from the general idea of a balanced life.
When I talk to my volunteer lawyers about this topic, I really like to emphasize that it is a whole range of complex factors that lead to homelessness. It is really important that we acknowledge that no story is the same and that everyone has their own story to be told. We need to be respectful of peoples’ lived experiences of homelessness and understand that complex factors, including personal vulnerabilities, financial hardship, and system failures, bring the picture together.
Jesse touched on some of the factors that may contribute to homelessness. A large factor today is the effect of domestic and family violence. There are lots of statistics around that, but Homelessness Australia says that 55% of women and children experiencing homelessness have done so escaping violence. Another big factor and statistic is mental health. The correlation between homelessness and mental health is huge. We also have a large number of clients who identify as Aboriginal or Torres Strait Islander.
In terms of our work in the space, what do we do as lawyers? We know that vulnerable people have multiple and complex legal needs but often don’t think about them as legal needs. They might think of going to court as something that a lawyer might be involved with but in their day to day life, they may not think that they should see a lawyer about a guy who is hassling them for money for example. They are thinking about mostly urgent needs, so things like “where am I going to sleep tonight?” and “when will I see my family and friends again?”. As the need for a lawyer isn’t necessarily at the forefront of their minds, we know that lawyers can help with things like debts, housing issues, mental health law, government decisions, employment, discrimination, and other things that we have touched on in law school. We can make a different in real life for these vulnerable people.
What we try to do as an outreach legal clinic is give vulnerable young people (and all ages) kind of a menu of ways that we can help and ask questions about legal needs. We created a document called the Legal Health Check, which is a diagnostic tool that is really about asking the right questions at the right time. Back in 2009, we found that if you ask someone experiencing homelessness “do you need a lawyer?” they will reply with no. But if you ask questions around the issues in their life, for example, “are you due in court?” or “is anyone chasing you for money?” or “do you have any housing hassles?”, it makes a big difference. It’s important as lawyers and future lawyers to recognize the privileged position we are in and we can use our communication and other professional skills to make things accessible for vulnerable people. We aspire to have a genuine conversation with the client to be able to allow them to access other services.
We also have clinics at crisis hostels, mental health wards, refugee settlement agencies, and other community based neighbourhood centres. We go to the clients because we know that they won’t come to us because of their vulnerable circumstances. It’s not because they are not interested in getting some help, it’s just they have too much going on and it just won’t happen unfortunately.
What are the key areas of legal need? Jesse has already touched on interactions with the criminal justice system and that is just one part of the puzzle for us, albeit a large one. Interactions with the public space or on public transport can be a real starting point for a spiral with the legal system. For us, a huge issue is SPER [State Penalties Enforcement Registry] fines. For students completing Clinical Legal Education with the HPLC, I always start off with talking about SPER fines because it’s such a big wake up call about the law and legal needs of people experiencing homelessness. Regarding SPER, a few years ago we looked at our data and found that when we asked a question about SPER we found that 65% of our HPLC clients had a SPER fine and on average they had $5000 of SPER debt, related to things like fare evasion and minor criminal charges (things like begging, moving on, obstructing police, and failing to appear), which are interconnected with the circumstances of homelessness. This SPER debt creates a huge burden on the back of our clients. Other issues we help with all the time are things like housing and tenancy, decision-making capacities, and interactions with the government and government decisions, such as Child Safety, Centrelink, and the Justice Department.
Brisbane Youth Service: http://www.brisyouth.org/
Homeless Persons' Legal Clinic: http://www.qpilch.org.au/cms/page.asp?ID=60736