Walsh, Tamara; Klease, Carla --- "Down and Out? Homelessness and Citizenship" [2004] AUJlHRights 5; (2004) 10(1) Australian Journal of Human Rights 5

---

Down and out? Homelessness and citizenship

Tamara Walsh^[*]and Carla Klease⁺

It is widely recognised that homeless people are among the most disadvantaged and vulnerable members of Australian society. But further to this, those who are homeless are excluded from participation in a wide variety of socio-political activities that other citizens take for granted. A survey of homeless people conducted in Brisbane in 2003 has confirmed that many homeless people do not identify as Australian citizens, and many believe that they do not enjoy the same citizenship rights as the remainder of the population. This article draws on both human rights law and T H Marshall’s (1950) theory of citizenship in its discussion of the many ways in which the civil, political and social citizenship rights of homeless people are infringed or denied. The article argues that citizenship theory may contribute something unique to the lobby for increased rights for people who are homeless for three reasons. First, the use of citizenship terminology in advocacy may prove more persuasive to a federal government that has identified the enhancement of citizenship as a policy goal. Second, citizenship theory promotes community membership over and above individualism. And third, citizenship theory (particularly that of Marshall) advances a persuasive argument to the effect that it is only through the provision of social citizenship rights (such as the right to housing, the right to social security, the right to the highest attainable standard of health and the right to education) that the civil and political citizenship rights of marginalised people can be secured. Thus, it provides an alternative framework within which to lobby for social and economic rights for marginalised groups, such as people who are homeless.

Introduction

Citizenship theory states that all ‘citizens’, or members of a society, should enjoy a certain body of rights to enable them to participate in community life (Marshall 1950; King and Waldron 1998; Lister 1990). These rights are commonly categorised as civil, political or social rights, in accordance with T H Marshall’s (1950) conceptualisation of citizenship. While it is often claimed that citizenship theory may not be relevant to a modern, multicultural society such as that of Australia (see Moran 1988; Kymlicka and Norman 1994; Jayasuriya 1996; Barbarlet 1996), it will be advanced in this article that citizenship theory has the potential to add something unique to the lobby for increased rights for marginalised people. There are three reasons for this. First, the Federal Government appears to be more comfortable with citizenship discourse than human rights arguments; it has even cited social inclusion and enhancing the importance of citizenship as policy goals (see particularly Senate Legal and Constitutional References Committee 1996; Australian Citizenship Council 2000; Department of Family and Community Services 2002). Second, citizenship theory is more consistent with the goals of social inclusion and valuing social capital than human rights law as it emphasises social connectedness and community membership, as opposed to individualism. Third, Marshallian citizenship theory offers suggestions as to how the barriers against the exercise of civil and political citizenship rights by marginalised people might be overcome.

This article will report on the findings of a small survey of homeless people in Brisbane, which was aimed at determining whether homeless people believe that their experience of citizenship is equivalent to that of the rest of the population. The results of the survey provide a clear indication that their status as citizens does not automatically provide homeless people with the body of rights that are normally associated with the concept of citizenship. The reasons why homeless people experience a kind of ‘second class’ citizenship will be explored with reference to various areas of domestic law such as summary offences law, electoral law and social security law. Drawing on the Brisbane survey, other surveys and the broader literature, it will be concluded that citizenship theory may provide us with an effective tool for stimulating policy development on behalf of, and in partnership with, marginalised groups.

Defining citizenship

There are two main ways in which the term ‘citizenship’ is used in Australia. First, the term is often used to denote a legal status; this has been referred to as ‘big C’ Citizenship (Rubenstein 2000). The Australian Citizenship Act 1948 (Cth), which establishes the legal status of ‘Citizen’, fails to provide a definition of citizenship. However, the Act does juxtapose ‘the Citizen’ against other status groups including ‘permanent residents’, ‘unlawful non-citizens’ and ‘enemy aliens’, so some information regarding the content of Australian Citizenship may be inferred from what it is stated not to be. The Act explains that Citizenship may be obtained by birth, adoption, descent or naturalisation, however it fails to prescribe any rights or duties to Citizens. Other pieces of legislation must be looked to in order to determine what the legal implications of Citizenship are (Rubenstein 2002: particularly ch 5). An examination of such statutes demonstrates that Citizens are guaranteed very few rights,^[1] none of which are constitutional, and therefore they are all are capable of being overridden (Taylor 2001). Thus, the definition of citizenship in the Australian Citizenship Act 1948 (Cth) is one ‘stripped bare’ (Rubenstein 2002: 11).

The word ‘citizenship’ is also used to denote something more normative, encompassing concepts such as social membership, substantive equality, and inclusion (Rubenstein 2000; Marshall 1950). This is known as ‘small c’ citizenship. Under this approach, citizenship is regarded as a status attracting a certain body of rights or entitlements with respect to civil, political and social life that are necessary for full community membership and participation (Australian Citizenship Council 2000; Senate Legal and Constitutional References Committee 1996; Marshall 1973). Its scope is wider than that of the formal legal notion of Citizenship. It embraces permanent residents who are not legal Citizens in recognition of the fact that such persons contribute to and are members of the community (Senate Legal and Constitutional References Committee 1996), and it recognises a more extensive body of rights that attach to citizens in acknowledgement of the importance of equality and participation.

One of the most influential analyses of citizenship as a normative concept was conducted by T H Marshall (1950). He defined citizenship as ‘a status bestowed on those who are full members of a community’, adding that ‘[a]ll who possess the status are equal with respect to the rights and duties with which the status is endowed’ (Marshall 1950: 18). Marshall understood citizenship as a social status that furnishes its members with substantive individual entitlements (Lister 1990: 23). For Marshall, citizenship rights serve to equalise individuals with regard to status, thereby enabling citizens to participate in the community, and establishing a sense of common possession of and loyalty to the community (Marshall 1965).

Marshall divided citizenship rights (and the corresponding institutions that deliver these rights) into three categories: civil, political and social. Civil citizenship rights are defined by Marshall as those rights that are necessary for individual freedom, such as the right to liberty of the person, the right to equality before the law and the right to freedom of communication; he identified the chief institution concerned with the delivery of these rights as being the court system. Marshall defined political citizenship rights as those rights that guarantee the exercise of political power, either as an elector or a parliamentarian, the chief institutions concerned with ensuring such rights being parliament and local government authorities. Social citizenship rights were defined by Marshall as the whole range of rights delivered by social services that ensure the economic welfare and security of citizens and their ability to ‘live the life of a civilised being according to the standards prevailing in the society’ (Marshall 1950: 8).

In recent years, the Marshallian concept of citizenship has been revisited due to the development of social exclusion discourse as an alternative to income-based definitions of poverty. Proponents of social exclusion discourse argue that a certain level of material resources is required to enable individuals to participate in socio-political life. If this level of resources cannot be accessed, the individual or family concerned will be forced to withdraw from ordinary social life (Zappala, Green and Parker 2000; Bittman 1998). Thus, social exclusion broadens the notion of material disadvantage to encompass themes such as marginalisation and participation (Peace 2001; Zappala, Green and Parker 2000; Duffy 1999; Soulet 1999; Bittman 1998; see also Townsend 1979). Some theorists have explicitly defined social exclusion as the denial or non-realisation of citizenship rights as a result of material deprivation (see particularly Levitas’ 1998 ‘redistributionist discourse’ and Silver’s 1994 ‘monopoly paradigm’). Social exclusion is thereby presented as the antithesis of ‘small c’ citizenship; those who do not have access to the ‘basket of goods’ considered necessary to meet accepted living standards are effectively ‘disenfranchised citizens’ because they are, in practice, unable to participate in socio-political life (Mullins, Western and Broadbent 2001; Goodlad 1999; Levitas 1998; Bittman 1998; Silver 1994).

Marshall, citizenship and human rights

Many commentators have argued that Marshall’s analysis of citizenship rights is not relevant or applicable to our modern society. For example, feminist critiques and race critiques of citizenship have questioned both the purpose and scope of citizenship; they argue that citizenship has traditionally only conferred rights on certain classes of people within society, and that since citizenship is a concept that was invented and is sustained by white men, citizenship rights may not reflect the interests of other population groups (Kymlicka and Norman 1994; Barbarlet 1996; Levitas 1998; Landvogt 1999; Jayasuriya 1996; Moran 1988). Others have argued that the concept of citizenship presupposes a shared style of living, rendering it of doubtful utility in the context of what may now be considered an international community, or at the very least, a multicultural Australian society (Barbarlet 1996; Dahrendorf 1988; Cox 1998; Watts 1996). Further, some progressive commentators have cautioned against using the term ‘citizenship’ due to the use the New Right has made of the term in condemning ‘welfare dependency’ and supporting the introduction of mutual obligation requirements (Lister 1990).

However, it may be argued to the contrary that citizenship theory does not necessarily encompass these divisive aspects. While the formal legal notion of Citizenship may have been conceived by white men and used as a tool for exclusion, citizenship in its normative sense is a concept that encompasses all community members, not just members of a dominant elite. ‘Small c’ citizenship rights include those things that community members expect their government to secure or provide, including liberty, freedom of communication, health care, education, a social security safety net and freedom of religious and cultural expression, forming the basis for an implied social contract. Such rights are not necessarily reflected in law and are not limited to legal Citizens (Rubenstein 2000).

Further, Marshallian citizenship theory emphasises equality of status, and thus does not support residual welfare or the imposition of coercive mutual obligation requirements on welfare recipients (Shaver 2001). Marshall supports a universal welfare state, where all members of the community are entitled to an equal level of government support (see particularly Marshall 1965: 111–2; Lister 1990; Shaver 2001). While Marshall acknowledges the existence of citizenship duties, he argues that these duties will spring from a ‘lively sense of responsibility towards the welfare of the community’ without needing to be imposed from above (Marshall 1965: 123). Discouraging citizens from receiving welfare amounts to an attempt to change the way they view their rights rather than being reflective of the nature of citizenship itself (Cox 1998).

Indeed, far from being discriminatory or exclusive, clear linkages exist between citizenship theory and human rights discourse. The provision of human rights by virtue of individuals’ humanity is akin (but not identical) to Marshall’s insistence on equality of status. Both human rights discourse and Marshallian citizenship theory recognise that all members of society should be entitled to civil, political and social rights as of right, rather than on the basis of their market value, race, heritage or any other ‘illegitimate’ distinction (King and Waldron 1988). Citizenship theory and human rights discourse are both aimed at ensuring that all citizens are able to fully participate in socio-political life.

All of the rights recognised in human rights law fall into one of Marshall’s trilogy of civil, political and social citizenship rights. For example, human rights that may be categorised as civil citizenship rights include:

• the right to equality in dignity and rights (Universal Declaration of Human Rights (UDHR) art 1; International Covenant on Civil and Political Rights (ICCPR) art 3; International Covenant on Economic, Social and Cultural Rights (ICESCR) art 3);

• the right to freedom from discrimination (UDHR art 2; ICCPR arts 2, 3, 24; ICESCR arts 2, 3; International Convention on the Elimination of Racial Discrimination (CERD) art 2; Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) art 2; Convention on the Rights of the Child (CRC) art 2);

• the right to liberty and security of person (UDHR art 3; ICCPR art 9; CRC art 37; CERD art 5b);

• the right to freedom of movement (UDHR art 13(1); ICCPR art 12(1); CERD art 5(d)(i));

• the right to freedom of opinion and expression (UDHR art 19; ICCPR art 19; CRC art 13, 37; CERD art 5d(viii));

• the right to equality before the law (UDHR art 7; ICCPR art 14, 26; CERD art 5(a); CEDAW art 15);

• the right to a fair hearing (ICCPR art 14); and

• the right to freedom from interference with privacy, family or home (UDHR art 12; ICCPR art 17; ICESCR art 17; CRC art 16).

The following human rights may be categorised as political citizenship rights:

• the right to take part in the government of one’s country through universal and equal suffrage (UDHR art 21; ICCPR art 25; CERD art 5(c); CEDAW art 7); and

• the right to freedom of political communication (UDHR art 19; ICCPR art 19(2); CRC art 37).

Social citizenship rights as defined by Marshall encompass economic, social and cultural rights, including:

• the right to participate in the cultural life of the community (UDHR art 27(1); ICCPR art 27; ICESCR art 15(1)(a); CRC art 30; CERD art 5e(vi); CEDAW art 13(c));

• the right to social security (UDHR art 22; ICESCR art 9; CRC art 26);

• the right to an adequate standard of living, including housing (UDHR art 25; ICESCR art 11; CRC art 27; CERD art 5(e)(iii));

• the right to work (UDHR art 23; ICESCR art 6; CERD art 5(e)(i); CEDAW art 11);

• the right to enjoyment of the highest attainable standard of health (ICESCR art 12; CRC art 24; CERD art 5e(iv); CEDAW art 11(1)(f));

• the right to rest and leisure (UDHR art 24; CRC art 31); and

• the right to education (UDHR art 26; ICESCR art 13; CRC art 28; CERD art 5(e)(v); CEDAW art 10).

Thus, far from engendering division or discrimination, Marshallian citizenship theory is consistent with and reflected in human rights discourse. Having said this, however, citizenship theory may offer something unique to the lobby for increased rights for marginalised people for the following three reasons.

First, human rights discourse has unfortunately not proved effective in stimulating substantial law reform in Australia, particularly in relation to economic and social rights. Australia’s continued human rights violations are well documented.^[2] On the other hand, ‘citizenship’ and ‘participation’ are concepts with which conservative governments are familiar and at ease (Silver 1994). Indeed, increasing community awareness of citizenship and promoting social inclusion have been identified as policy goals by the current Federal Government in a number of policy documents.

For example, in 1996, the Senate Legal and Constitutional References Committee conducted an inquiry that was aimed at developing indicators of national social wellbeing. Citizenship was identified by the Committee to be a key indicator of wellbeing, the main elements of which were stated to be political participation and participation in socio-cultural life (Senate Legal and Constitutional References Committee 1996). The impetus for this approach came from the Committee’s observation that economic statistics were the sole measure of wellbeing in use in Australia. The Committee therefore considered it desirable to develop a ‘measure’ of wellbeing for use in policy development, which provided an indication of the level of legal, social and cultural wellbeing among Australians.

In the Committee’s report, ‘citizenship’ was referred to in its normative sense, that is ‘citizenship as a desirable activity’, and thus the term ‘citizen’ was considered to include all members of the Australian community, including non-Citizens. The Committee felt this was justified (and indeed necessary) as a result of the ‘deliberate policy of successive governments to foster an inclusive concept of citizenship’ (Senate Legal and Constitutional References Committee 1996: 16). While examples of such policies were not cited by the Committee, it can be assumed that the policies they have in mind include those relating to social security, the First Home Owner Grant and the Pharmaceutical Benefits Scheme, which provide the same benefits to Citizens and non-Citizens (for a thorough discussion, see Rubenstein 2002: ch 5.2). The significance of this report is that it positions citizenship at the heart of social wellbeing; indeed, it seems to equate social wellbeing with the full realisation and expression of individuals’ citizenship rights. This is most clearly demonstrated by the Committee’s statement that in formulating national indicators of social wellbeing, it aims to ‘identify the best way to organise data to measure progress towards an ideal of citizenship’ (Senate Legal and Constitutional References Committee 1996: 14). The remainder of the report is centred around this aim of ensuring the full realisation of the benefits of citizenship to all individuals in Australia, through the promotion of social and political participation.

In 1999, the Australian Citizenship Council, an independent body established to advise the Minister for Immigration and Multicultural Affairs on Australian citizenship matters, was commissioned by the Federal Government to conduct an inquiry and report on how the significance of citizenship could be enhanced in Australia (Australian Citizenship Council 2000). The terms of reference required the Council to advise on contemporary issues in Australian citizenship policy and on how best to increase community awareness of the significance of citizenship, most notably including its role as a ‘unifying symbol’. In its report, the Council focused particularly on this unifying role of citizenship. It devised a set of seven shared civic values that define what citizenship means to members of the Australian community, and which include and unite all Australians, both legal and non-legal citizens. These values recognise some civil citizenship rights, including a commitment to equality under the law and freedom of opinion, and some social citizenship rights, such as a commitment to tolerance, fairness, cultural diversity and the ‘wellbeing of all Australians’. The Government’s commissioning of this report, and the ultimate outcomes of the inquiry, would seem to indicate that promoting the unifying role of citizenship is an important policy goal.

More recently, the Federal Government has cited ‘social inclusion’ as one of its goals in reforming the welfare system. The Department of Family and Community Services discussion paper, Building a Simpler System to Help Jobless Families and Individuals, opens with a short discussion on this policy goal. It states that individuals’ dignity is best supported through policies ‘that give people the opportunity to fulfil their potential as active and contributing members of society’ (Department of Family and Community Services 2002: i). This goal resonates with comments made in the reports discussed above on the importance of participation and citizenship. While not everyone may agree with the way in which the Government has applied this policy goal to its welfare reform package (ie its prioritisation of paid work over other forms of participation in the community), the fact remains that social inclusion is recognised by the Government as something worth striving for.

Thus, since citizenship has been identified as a policy goal of the Federal Government, suggestions for policy reform aimed at enhancing the citizenship experience of people who are homeless may prove more persuasive than arguments based on other theoretical frameworks. While, in recent years, many Australian commentators have advocated for a shift from a welfare-based approach to a rights-based approach to lobby for increased rights for marginalised people (see Fernandes 2003; Goldie 2003; Lynch and Cole 2003; Otto 2002), citizenship theory has the capacity to support this shift by allowing advocates to frame rights based arguments in terms to which governments may be more sympathetic and responsive. If human rights arguments are recast into citizenship terminology, the government can be held accountable to its own stated policy goals while, in substance, retaining human rights values and assertions.

A second contribution of citizenship theory is that it places greater emphasis on social connections and community membership than does human rights discourse. The central premise of human rights discourse is that all individuals are entitled to the same rights by virtue of their humanity. Citizenship theory, on the other hand, is based on the idea that all members of a community are entitled to the same rights by virtue of their membership in that community; everyone who is a member of society is entitled to be protected and assisted by that society in return for the contribution that their membership makes to the community (Marshall 1965; Lister 1990; Jayasuriya 1996; see also Gaudron J in Minister for Immigration and Ethnic Affairs v Teoh, 1995, at 303–5). This reflects the historical origins of citizenship theory, which was born out of the social contract theories of Locke, Hobbes and Rousseau. Social contract theory imagines society to be based upon an implied contract between the sovereign and its subjects whereby the sovereign agrees to provide its subjects with certain benefits, in exchange for the fulfilment of certain duties by its subjects, such as allegiance, the payment of taxation and adherence to the law. If the sovereign fails to fulfil its obligations to its subjects, the subjects are entitled to reject or disobey their sovereign (Locke 1690; Hobbes 1651; Rousseau 1762). The emphasis in citizenship theory on reciprocal obligation between sovereign and subject by virtue of community membership may engender a sense of inclusion, mutual respect and communal responsibility, in contrast to the individualism of human rights (Jayasuriya 1996; Kymlicka and Norman 1994; Lister 1990).

The third contribution that citizenship theory can make is to provide new insights and suggestions about how the civil and political rights of marginalised groups might be more effectively realised. Marshall, for example, advances a persuasive argument as to the central role of social citizenship rights in ensuring the realisation of civil and political citizenship rights. This third contribution will be discussed in detail below.

Homelessness and citizenship: a survey

Marshallian citizenship theory presents itself as a model well suited to the discussion of the marginalisation of homeless people in contemporary Australian society. It is well established that the human rights of homeless people are denied to them on a daily basis (see particularly Otto 2002; Goldie 2002). However, to date, homeless people’s experience of citizenship has not been extensively explored.

As a means of addressing this deficiency, a survey of homeless people in Brisbane was conducted by Queensland University of Technology’s Faculty of Law and the Queensland Public Interest Law Clearing House Inc (QPILCH) in July 2003, in order to ascertain whether homeless people feel that they enjoy the same citizenship rights as the remainder of the population. The survey was administered by lawyers from the Homeless Person’s Legal Clinic, which is a project of QPILCH.^[3]

The survey was comprised of nine closed questions; in addition, respondents were given an opportunity to have their qualitative remarks recorded in relation to each question, if desired. A total of 26 responses was obtained. The majority of those surveyed (82 per cent) were either sleeping rough or living in boarding houses, squats or emergency hostels. The remainder were renting privately (4.5 per cent), living in public housing (4.5 per cent), or living rent-free with family and/or friends (9 per cent). All came within the accepted ‘Chamberlain definition’ of homelessness (Chamberlain and MacKenzie 1992).^[4]

Under the normative definition of citizenship, all (or at least most) of the respondents to this survey would be considered citizens. Further, 96 per cent of the homeless people surveyed reported that they were born in Australia, which would indicate that they are likely to be legal Citizens.^[5] Yet, only 52 per cent of respondents answered ‘yes’ to the question ‘are you an Australian citizen?’. Thus, approximately half of the homeless people surveyed did not identify as citizens, despite their status as citizens in either the legal or normative sense. Further, 38 per cent of respondents indicated that they felt excluded from participation in social life and 58 per cent of respondents stated that they did not feel that they enjoyed the same rights as everyone else in society.

In relation to civil citizenship rights, 72 per cent of the homeless people surveyed stated that they felt police gave them undeserved attention. Qualitative remarks illustrated that this undeserved attention included unwelcome and seemingly unnecessary questioning amounting to ‘harassment’ and ‘abuse’. Three respondents specifically commented that they felt this attention was due to their state of homelessness, while another commented that ‘black people’ tended to be most vulnerable to police attention. One respondent noted that homeless people ‘drinking on the street’ were frequently targeted by police; another stated that the police ‘grab me for anything’.

In relation to political citizenship rights, of those homeless people surveyed who reported being eligible to vote,^[6] 50 per cent stated that they never voted in federal or state elections. Further, those surveyed tended not to exercise their right to engage in free political communication; an overwhelming 65.4 per cent of those surveyed stated that they never discuss political issues with those around them.

Homelessness and citizenship: survey implications

The results of this survey suggest that homeless people feel that they do not enjoy the same rights as other members of the population. Yet, in a formal legal sense, homeless people are entitled to the same rights and are subject to the same laws as the rest of the population. Thus, formally, they enjoy equality before the law. The results of this survey, however, imply that the operation or practical effect of the law may result in homeless persons’ belief that they do not enjoy certain citizenship rights to the same extent as other members of the community. The reality of this perception will be examined in relation to civil and political citizenship rights in an attempt to determine whether there is any basis for it.

Civil citizenship rights

The majority of homeless people surveyed reported that they received undeserved attention from the police. This observation is supported in the wider literature where it has been commonly reported that the operation of public order laws, including ‘move-on powers’ and ‘vagrancy’ offences, renders homeless people more vulnerable to police attention (Walsh 2003a; Walsh 2004b; Memmott 2002; Middendorp 2002; Goldie 2002; Liverani 1999; Victorian Law Reform Commission 1992; Western Australian Law Reform Commission 1992).

‘Move-on’ powers exist in many Australian states (see Summary Offences Act 1988 (NSW) s 28F; Police Powers and Responsibilities Act 2000 (Qld) ss 38, 39; Summary Offences Act (NT) s 47A(2)). They enable police officers to give a direction to a person or a group of people to move away from a certain area where they might reasonably be considered to be causing anxiety, disturbance or inconvenience to others. Such powers are disproportionately used against homeless people as a ‘street-sweeping’ device to move them away from public spaces frequented or dwelt in by them (Liverani 1999). This constitutes an infringement of homeless persons’ civil citizenship right to equality and liberty of person as such powers fail to recognise homeless people as having a right to access and use public spaces as equal members of the community (Waldron 2000).

‘Vagrancy’ offences have a similar effect. Many jurisdictions in Australia retain vagrancy offences that have been on their statute books for over 100 years (Walsh 2003a). In Queensland and Western Australia it is still a crime to have insufficient lawful means of support (Vagrants, Gaming and Other Offences Act 1931 (Qld) s 4(1)(a); Police Act 1892 (WA) s 65(1)), an offence which in practice criminalises the very state of poverty (Walsh 2003a). Also, in certain local government areas, councils have passed by-laws to prohibit conduct generally associated with homelessness, such as sleeping and drinking in public places (see McKew 2001; Howse 2000; Griffith 1999). Such laws infringe homeless persons’ civil citizenship rights to equality, liberty of person and freedom from arbitrary interference, and clearly contravene the rule of law by rendering illegal conduct that is beyond the control of the individual.

Also, begging or ‘gathering alms’ is still an offence in most Australian states (Vagrants, Gaming and Other Offences Act 1931 (Qld) s 4(1)(k); Vagrancy Act 1966 (Vic) ss 6(1)(d), 7; Summary Offences Act 1953 (SA) s 12; Police Act 1892 (WA) s 65(3); Police Offences Act 1935 (Tas) s 8(1)(a); Summary Offences Act 1923 (NT) s 56(1)(c)). It is well established that the vast majority of those who beg do so as a last resort to supplement their inadequate or non-existent income, thus the criminalisation of begging constitutes a violation of homeless persons’ right to liberty of person by effectively punishing poverty (Horn and Cooke 2001; Lynch 2002; Walsh 2004a). Anti-begging offences also constitute a violation of the civil citizenship right to freedom of expression, as they criminalise harmless exchanges between citizens (Foscarinis 1996; Walsh 2004a).

It may be argued that the right of homeless people as citizens to substantive equality before the law is infringed as a result of the selective enforcement of vagrancy and related offences against people who are homeless and their lack of access to legal assistance. Lynch (2002) has argued that the selective enforcement of the laws outlined above results in a different set of laws being applied to homeless people as compared with the rest of the population. For those who have a home, sleeping in a public place is an offence that can be avoided, while for those who are homeless, the criminalisation of such behaviour effectively means that the person must not sleep (Lynch 2002; Waldron 2000). Further, homeless people generally lack the means to challenge the infringement of their rights due to their lack of access to legal advice and services (Walsh 2003a). In recent years, homeless persons’ legal services have been set up in Melbourne, Brisbane and Sydney, however the services to date fail to meet demand. Also, representation from Legal Aid is not generally available for criminal matters unless the defendant intends to plead guilty (Legal Aid Queensland 2003; Victoria Legal Aid 2000). The result is that the vast majority of homeless people charged with vagrancy and related offences appear unrepresented, plead guilty and incur a penalty (Walsh 2003a). Thus, although in a formal sense people who are homeless may enjoy equality before the law, in a substantive or real sense they may not.

The existence and selective enforcement of public order laws results in the denial of the civil citizenship rights of homeless people (including the right to personal liberty, the right to freedom of expression and the right to equality before the law). The fact that all of these laws appear on Queensland statute books provides some explanation as to why homeless people in Brisbane would report disproportionate interference by police in their daily lives.

Political citizenship rights

The vast majority of those surveyed indicated that they did not generally exercise their political rights to vote and engage in political communication. The results of this survey echo the findings of others. For example, the Homeless Persons’ Legal Clinic in Melbourne has reported that between 33 per cent and 90 per cent of homeless people did not vote in the 2001 federal election (Harrison and Lynch 2002; see also Australian Federation of Housing Organisations 2001; Horn 2001).

The right to vote is perhaps the most fundamental political citizenship right in democratic societies (Lister 1990: 43). The majority of the High Court in McGinty v Western Australia (McGinty) supported the proposition that government does not have the power to take away a general right of enfranchisement from adult Citizens in federal elections on the basis that this is the current democratic standard (see Twomey 2001; Booker, Glass and Watt 1998). Thus, it might reasonably be concluded that as a result of the McGinty decision, an implied right to vote exists under the Australian Constitution with respect to all Australian Citizens. In order to exercise one’s right to vote on a responsible and informed basis, engagement in political dialogue is fundamental. This has been recognised by the High Court in Lange v Australian Broadcasting Corporation (Lange), where the Court unanimously held that a freedom of political communication is implied in the Constitution.

There are a number of reasons why these rights generally remain unrealised with respect to homeless people. First, homeless people face difficulties in being placed on the electoral roll. It is an offence to fail to update information regarding place of residence within 21 days of change of address (Commonwealth Electoral Act s 101). Since homeless people are generally forced to change their place of residence frequently, these requirements may discourage homeless people from enrolling. The provisions in the Commonwealth Electoral Act relating to itinerant voters, which are aimed at providing for the enrolment of those with no fixed address, also place onerous requirements on homeless people, for example complicated forms must be completed, the subdivision in which they must enrol may not be that to which they are most closely connected (Harrison and Lynch 2002), and a person ceases to be enrolled as an itinerant elector once he or she has been at the same place of residence for one month (Commonwealth Electoral Act s 96).

Second, under s 245 of the Commonwealth Electoral Act, failing to vote is an offence punishable by a fine of up to $A50, and Australian Electoral Commission statistics demonstrate that those who contravene s 245 are indeed penalised.^[7] Homeless people are amongst those members of the electorate who are most likely to face barriers to exercising their right to vote, such as mental illness, illiteracy, or having more pressing concerns to attend to, such as finding shelter or accessing food (Lynch 2002). Failure to vote is not punishable if a valid and sufficient reason is put forward (Commonwealth Electoral Act s 245(15B)), however it is not clear in the Act whether issues related to poverty and homelessness constitute a valid and sufficient reason for failing to vote (Harrison and Lynch 2002). Thus, the possibility of attracting a fine may discourage homeless people from enrolling to vote.

Third, it was recognised in Lange that in order for electors to be able to properly exercise their right to vote, they must be furnished with enough political information to choose between the available alternatives. However, homeless people may not have access to such information as a result of their being ‘outside the mainstream media loop’ (Harrison and Lynch 2002: 17) and they may not obtain the benefits of education campaigns conducted via the television or internet due to their lack of access to these media (Zappala and McLaren 2003; Harrison and Lynch 2002). Access to information has become increasingly dependent upon accessing technology, and thus purchasing power (Lister 1990: 45; Zappala and McLaren 2003). Without receiving education and information on political practices and policies, homeless people will not be able to fully realise their constitutionally protected freedom of political communication.

Thus, homeless people are often denied the right to vote as a result of the application of electoral law in Australia and, due to their exclusion from mainstream media, they are largely unable to participate in the exchange of political information protected by the constitutional freedom of political communication.

In sum, the findings of the Brisbane survey, indicating that many homeless people feel that their civil and political citizenship rights are routinely infringed, are affirmed by other research. Commentators have also highlighted a number of areas of law that may specifically contribute to the disenfranchisement of homeless people. The question is, what strategies for change suggested by the findings would be effective in ensuring that homeless people are able to realise their civil and political citizenship rights?

The way forward: realising social citizenship rights

We believe that citizenship theory can contribute something unique to the lobby for increased rights for people who are homeless for three main reasons. First, citizenship is a concept with which conservative Australian governments are at ease, as evidenced by the emphasis of various policy documents on citizenship. Second, citizenship theory promotes a sense of community membership over and above the individualism enshrined in human rights discourse. And third, perhaps even more importantly, citizenship analysis may provide insight into the way in which the civil and political citizenship rights of people who are homeless in Australia might be more effectively realised. It is this potential contribution of citizenship theory that will now be discussed.

As noted above, social citizenship rights as defined by Marshall include the guarantee of a minimum income and a minimum level of social service provision based not on compassion but on entitlement (Jayasuriya 1996; Lister 1990). The realisation of social citizenship rights, through the provision of a minimum level of essential goods and services, is a means of ensuring equality of status between citizens, and enabling them to participate fully in social life (Marshall 1950; Lister 1990).

Marshall’s citizenship theory emphasises social citizenship rights above all other citizenship rights. Marshall argues that social citizenship rights allow for equality of status between citizens, and that this is necessary to enable the realisation of individuals’ civil and political citizenship rights. Marshall advocated for a situation where the whole of society might be considered a single class, where those inequalities that impacted upon individuals’ ability to exercise their civil and political citizenship rights would not be tolerated (Marshall 1950).

To an extent, Western societies such as Australia have achieved a measure of success in realising Marshall’s vision of a single class (Shaver 2001). Dahrendorf (1985) suggests that up to 90 per cent of all citizens make up a majority class, generally known as the ‘middle class’. Homeless people make up part of the remainder (which Dahrendorf terms the ‘underclass’^[8]) who are being ‘defined out of the edifice of citizenship’ as the majority fashion social, political, legal and cultural life to serve their preferences (Dahrendorf 1985: 98).

According to a Marshallian analysis of citizenship, the reason why this ‘outer-class’ exists is the direct result of the failure of social citizenship rights to bring about equality of status and opportunity (Marshall 1950; see also King and Waldron 1988; Kymlicka and Norman 1994). If a certain proportion of the population is deprived of material or other resources, they are rendered unable to participate in socio-political life, and thereby prevented from exercising their civil and political citizenship rights. Without social citizenship rights, other citizenship rights are hollow. As Justice Gaudron (as she then was) noted, ‘[n]o right has meaning or value once starvation strikes’ (Gaudron 1999: 18).

Thus, applying Marshall’s citizenship theory to the issues under discussion here, we see that the only way Australian society can ensure that people who are homeless are able to exercise their civil and political citizenship rights is by supporting and enhancing the realisation of their social citizenship rights. This may provide an alternative approach to the law and policy reforms based on human rights arguments, which have thus far been ignored by government (see, for example, Walsh 2003a and Walsh 2004b). The efficacy of Marshall’s thesis will now be examined by reference to a number of social citizenship rights denied to people who are homeless, including the right to housing, the right to social security, the right to health and the right to education.

The right to housing

Of course, the most obvious social citizenship right denied to homeless people is the right to adequate housing. Approximately 100,000 Australians are currently homeless (Chamberlain 2003). Supported accommodation services continually fail to meet demand; almost 1000 Australians are turned away from SAAP services each day (AIHW 2002a). The 2001 Counting the Homeless project estimated that over 14,000 Australians were sleeping out or living in improvised dwellings on Census night (Chamberlain 2003). Thus, it is clear that the state is failing to provide all its citizens with accommodation as of right.

According to Marshall’s thesis, the provision of this social citizenship right should better enable people who are homeless to exercise their civil and political citizenship rights. Upon close examination, it can be seen that lack of adequate housing does in fact directly result in the denial of civil and political citizenship rights. As noted above, lack of access to private space means that homeless people are forced to conduct behaviours in public that most Australians carry out in private space, such as urinating, defecating, swearing and drinking alcohol. Yet the law criminalises many of these behaviours when they are conducted in public space. Thus, the very fact that public space is ‘home’ to homeless people increases their vulnerability to surveillance by police and selective enforcement of certain criminal laws, thereby resulting in the routine denial of their civil citizenship rights.

Further, under the current law, being in secure housing may be essential for citizens to exercise their political citizenship right to vote. As noted above, due to their lack of housing, homeless people are often not registered on the electoral roll. Thus, the provision of the social citizenship right to adequate housing to people who are homeless would indeed contribute to their capacity to enjoy their civil and political citizenship rights.

The right to social security

Consistent with Marshall’s thesis, the denial of the social citizenship right to social security, or a minimum level of income, also contributes to homeless persons’ inability to exercise their civil and political citizenship rights. Up to 83 per cent of homeless people report social security to be their chief source of income (AIHW 2002b; AIHW 2002c). Income support payments are pegged at levels well below the poverty line: a single, unemployed adult aged above 21 years is entitled to income support amounting to only 79 per cent of the Henderson poverty line, and a single unemployed person under the age of 21 is entitled to income support amounting to only 67 per cent of the Henderson poverty line (ACOSS 1999). The level of income provided by income support benefits is clearly insufficient to allow recipients to share in conventional living standards.

The breach penalty regime serves to undermine homeless persons’ access to social security as of right even further. Centrelink’s chief means of communication with social security recipients is by ordinary mail (Pearce, Disney and Ridout 2002). Since homeless people generally lack a fixed address, ordinary mail is the least effective means by which to communicate with them. As a result, homeless people are routinely breached for failing to reply to letters from Centrelink, or to take action in response to such letters, even though they never received them (ACOSS and Welfare Rights Centre (Sydney) 2001). The penalties imposed on those who receive social security breaches are onerous indeed. During rate reduction periods (imposed for the first and second activity test breach), benefit recipients are left with very little income with which to support themselves for up to 26 weeks and, during non-payment periods (imposed for the third and further activity test breaches), recipients are not provided with any income support at all for up to eight weeks (Walsh 2003b). These penalties restrict the ability of those who rely on income support benefits as their chief source of income to afford the basic necessities of life, let alone participate in social life. Since homeless people are more likely to be breached than others receiving income support (ACOSS and Welfare Rights Centre (Sydney) 2001), it is clear that their social right to a minimum level of income is being denied.

Lack of access to a minimum level of income restricts homeless people’s ability to exercise their civil and political citizenship rights for four main reasons. First, as noted above, homeless people are vulnerable to receiving fines for public order offences and electoral offences. Their lack of income often results in their being unable to pay the fine, and this can result in imprisonment in some Australian states (State Enforcement and Penalties Act 1999 (Qld) s 119; Magistrates Court Act 1989 (Vic) s 82D(1)(c); Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) s 55D; Sentencing Act 1997 (Tas) s 47(1)). Imprisonment for unpaid fines results in the contravention of their civil citizenship right to liberty. Second, lack of income often means that homeless people receive increased attention from debt collectors and other civil authorities for non-payment of bills, particularly utility bills. This results in the contravention of their civil citizenship right to freedom from interference. Third, inadequate income results in reduced access to information sources including television and the internet, leading to a reduced capacity to engage in informed political debate. Fourth, lack of income restricts homeless persons’ access to legal advice and representation, which results in an inability to assert their civil and political rights in court and to have their rights enforced through litigation. This amounts to the contravention of their civil citizenship rights to equality before the law and to a fair hearing. Thus, consistent with Marshall’s citizenship analysis, provision of the social citizenship right to social security would increase homeless persons’ capacity to exercise their civil and political citizenship rights.

The right to the highest attainable standard of health

Homeless people in Australia experience a higher incidence of asthma, pneumonia, gastrointestinal illnesses, skin conditions, hypertension, depression, schizophrenia, alcohol dependence and other chronic health problems than the remainder of the population (Kermode et al 1998; Nicholson 2000; Trevena, Nutbeam and Simpson 2001; Kamieniecki 2001). Further, homeless people lack access to a comfortable place in which to recover from illness and many are reluctant or unable to seek treatment from public health facilities (Gleeson 2000; Gunn, Harrison and Schrader 1998). This limited enjoyment of physical and mental health reduces homeless people’s capacity to participate in socio-political life, such as voting, engaging in political communication and ensuring that their civil rights are respected. Thus, consistent with Marshall’s thesis, realisation of the social citizenship right to health would better enable people who are homeless to exercise their civil and political rights.

The right to education

Homeless people have typically had only limited access to education. One survey of almost 400 homeless people in Melbourne found that the average age at which respondents had left full time education was 15.7 years (Kermode et al 1998). Further, it has been estimated that between two thirds and three quarters of young people who become homeless drop out of school within one year (Chamberlain and MacKenzie 1995). Homeless people’s lack of education often means that they lack knowledge with regard to the political process and the rights to which they are legally entitled. This serves as a barrier to their ability to exercise their political citizenship right to engage in political communication, as well as the broad range of civil citizenship rights that should be available to them. Increasing homeless people’s access to education is therefore vital to ensuring that they are able to exercise their civil and political citizenship rights. It is on this basis that the Homeless Persons’ Legal Clinic in Melbourne has lobbied the Australian Electoral Commission to send representatives to agencies and services frequented by homeless people to educate homeless people about their political rights (Harrison and Lynch 2002).

The application of Marshall’s citizenship theory to the plight of homeless people in Australia demonstrates that homeless people would be better able to exercise their civil and political citizenship rights if their social citizenship rights were realised. Thus, in addition to providing lobbyists with a government-friendly framework within which to advocate for increased rights for homeless persons, citizenship theory may provide a unique insight into how the civil and political rights of people who are homeless might be best secured. If lobbying efforts focus on ensuring that homeless people’s social citizenship rights are realised, their enjoyment of civil and political citizenship rights may well flow automatically.

Conclusion

Citizenship theory may provide a useful tool in advocating for increased rights for homeless people. Arguments framed in terms of citizenship may prove more persuasive to governments who use citizenship language in their own policies; citizenship theory places renewed emphasis on social connectedness, belonging and reciprocal obligation; and it suggests that the enjoyment of social citizenship rights must be ensured if the barriers preventing homeless people from enjoying their civil and political rights are to be overcome. Analysis of the law, and the comments of homeless people themselves, demonstrate that homeless people are routinely denied civil, political and social citizenship rights in Australia. Their civil citizenship rights are infringed as a result of over-policing and the existence of laws that criminalise the state of homelessness; and their political citizenship rights often remain unrealised due to barriers to becoming registered on the electoral roll and lack of access to political information. However, as has been demonstrated, ensuring that homeless persons’ social citizenship rights (including the right to adequate housing, the right to social security, the right to the highest attainable level of health, and the right to education) are fulfilled would go some way towards ensuring that homeless persons’ civil and political citizenship rights are also enjoyed. Unless the social citizenship rights of homeless people are realised, they will remain ‘disenfranchised citizens’ regardless of their legal Citizenship status. l

References

Australian cases

Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520

McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140

Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273

Australian legislation

Australian Citizenship Act 1948 (Cth)

Australian Constitution

Commonwealth Electoral Act 1918 (Cth)

Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA)

Magistrates Court Act 1989 (Vic)

Migration Act 1958 (Cth)

Police Act 1892 (WA)

Police Offences Act 1935 (Tas)

Police Powers and Responsibilities Act 2000 (Qld)

Sentencing Act 1997 (Tas)

State Enforcement and Penalties Act 1999 (Qld)

Summary Offences Act 1988 (NSW)

Summary Offences Act (NT)

Summary Offences Act 1953 (SA)

Vagrancy Act 1966 (Vic)

Vagrants, Gaming and Other Offences Act 1931 (Qld)

International legal material

A v Australia, Communication No 560/1993, Human Rights Committee, 59th Session, 24 March–11 April 1997, UN Doc CCPR/C/59/D/560/1993 (30 April 1997)

Convention on the Rights of the Child, September 2, 1990, UN Doc A/44/49 (1989)

Convention on the Elimination of All Forms of Discrimination Against Women, September 26, 1981, 1249 UNTS 513

International Convention on the Elimination of All Forms of Racial Discrimination, January 4, 1969, 660 UNTS 195

International Covenant on Civil and Political Rights, March 23, 1976, 999 UNTS 171

International Covenant on Economic, Social and Cultural Rights, January 3, 1976, 993 UNTS 3

Universal Declaration of Human Rights, GA Res 217A (III), UN Doc A/810 (1948)

Books and articles

Australian Council of Social Service (ACOSS) and the Welfare Rights Centre (Sydney) (2001) Breaching the Safety-Net: The Harsh Impact of Social Security Penalties ACOSS, Sydney

ACOSS (1999) Submission to the Reference Group on Review of the Welfare System ACOSS, Sydney

Australian Citizenship Council (2000) Australian Citizenship for a New Century Commonwealth of Australia, Canberra

Australian Federation of Homelessness Organisations (2001) ‘Proposals threaten voting opportunities for homeless and young Australians’ Media Release, 27 June 2001

Australian Institute of Health and Welfare (AIHW) (2002a) Demand for SAAP Assistance by Homeless People 2000–2001 AIHW, Canberra

AIHW (2002b) Income Status of Homeless People in SAAP 1999–2001 AIHW, Canberra

AIHW (2002c) SAAP National Data Collection Annual Report 2001–02 AIHW, Canberra

Bailey P (1997) ‘The right to an adequate standard of living: new issues for Australian law’ 4 Australian Journal of Human Rights pp 25–50

Barbarlet J M (1996) ‘Developments in citizenship theory and issues in Australian citizenship’ 31(1) Australian Journal of Social Issues pp 55–72

Bittman M (1998) ‘Social participation and family welfare: the money and time costs of leisure’, paper presented at the Australian Institute of Family Studies Conference: Changing Families, Challenging Futures, Melbourne

Booker K, Glass A and Watt R (1998) Federal Constitutional Law: An Introduction Butterworths, Sydney

Chamberlain C (1999) Counting the Homeless: Implications for Policy Development Australian Bureau of Statistics, Canberra

Chamberlain C (2003) Counting the Homeless 2001 Australian Bureau of Statistics, Canberra

Chamberlain C and MacKenzie D (1992) ‘Understanding contemporary homelessness: issues of definition and meaning’ 27(4) Australian Journal of Social Issues pp 274–97

Cox R H (1998) ‘The consequences of welfare reform: how conceptions of social rights are changing’ 27 Journal of Social Policy pp 1–16

Dahrendorf R (1985) Law and Order Stevens & Sons, London

Dahrendorf R (1988) The Modern Social Conflict University of California Press, Berkeley

Department of Family and Community Services (2002) Building a Simpler System to Help Jobless Families and Individuals Commonwealth of Australia, Canberra

Duffy K (1999) ‘Free markets, poverty and social exclusion’ in D Avramov (ed) Coping with Homelessness: Issues to be Tackled and Best Practices in Europe Ashgate, Aldershot

Fernandes K (2003) ‘Why not involve the homeless? Housing rights and community building’, paper presented at the 3rd National Homelessness Conference: Beyond the Divide, Brisbane

Foscarinis M (1996) ‘Downward spiral: homelessness and its criminalisation’ 14 Yale Law and Policy Review pp 1–63

Gaudron M (1999) ‘Human rights for the homeless’ 8a Human Rights Defender pp 17–18

Goldie C (2002) ‘Living in public space: a human rights wasteland?’ 27 Alternative Law Journal pp 277–81

Goldie C (2003) ‘Rights versus welfare: fostering community and legal activism in support of people facing homelessness’ 28 Alternative Law Journal pp 132–5

Goodlad R (1999) Social Exclusion, Regeneration and Citizen Participation Urban Frontiers Program, Sydney

Griffith M L (1999) ‘By the By’ 24 Alternative Law Journal pp 245–7

Gunn A, Harrison A and Schrader T (1998) ‘Homeless young people: facilitating their access to primary health care’ 68 New Doctor pp 9–10

Harrison B and Lynch P (2002) Giving Voice to the Voiceless: Submission to the Inquiry into the 2001 Federal Election Public Interest Law Clearing House, Melbourne.

Hobbes T (1651) Leviathan

Horn M (2001) Social and Democratic Exclusion: Giving Voice to the Homeless, Hanover Welfare Services, Melbourne

Horn M and Cooke M (2001) A Question of Begging: A Study of the Extent and Nature of Begging in the City of Melbourne Hanover Welfare Services, Melbourne

Howse C (2000) ‘Towards a dealing just and kind’ 25 Alternative Law Journal pp 108–11

Jayasuriya L (1996) ‘Citizenship and welfare: rediscovering Marshall’ 31 Australian Journal of Social Issues pp 19–38

Kamieniecki G W (2002) ‘Prevalence of psychological distress and psychological disorders among homeless young in Australia: a comparative view’ 35 Australian and New Zealand Journal of Psychiatry pp 352–8

Kermode M, Crofts N, Miller P, Speed B and Streeton J (1998) ‘Health indicators and risks among people experiencing homelessness in Melbourne 1995–1996’ 22 Australian and New Zealand Journal of Public Health pp 464–70

King D and Waldron J (1988) ‘Citizenship, social citizenship and the defence of welfare provision’ 18 British Journal of Political Science pp 415–43

Kymlicka W and Norman W (1994) ‘Return of the citizen: a survey of recent work on citizenship theory’ 104(2) Ethics pp 352–81

Landvogt K (1999) ‘Valuing the mundane: social citizenship and the power of talk in women’s learning groups’ in Australian Association of Social Workers (ed) Promoting Inclusion, Redressing Exclusion: The Social Work Challenge Australian Association Social Workers, Barton pp 25–30

Legal Aid Queensland (2003) Policy Manual

Levitas R (1998) The Inclusive Society? Social Exclusion and New Labour Macmillan Press, London

Lister R (1990) The Exclusive Society: Citizenship and the Poor Child Poverty Action Group, London

Liverani M R (1999) ‘For the disadvantaged young, NSW is a Police State’ 37(10) Law Society Journal pp 62–5

Locke J (1690) Second Treatise on Civil Government

Lynch P (2002) ‘Begging for change: homelessness and the law’ 26 Melbourne University Law Review pp 690–706

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

MacKenzie D and Chamberlain C (1995) ‘The National Census of Homeless School Students’ Autumn Youth Studies Australia pp 22–8

Marshall T H (1950) Citizenship and Social Class and Other Essays Cambridge University Press, Cambridge

Marshall T H (1965) Class, Citizenship and Social Development Anchor Books, New York

Marshall T H (1973) Social Policy in the Twentieth Century Hutchinson, London

McKew M (2001) ‘Noel Pearson: Cape York Land Council team leader’ 38 The Bulletin pp 40–1

Memmott P (2002) ‘Responses to indigenous people living in public spaces’ 15(1) Parity pp 11–13

Middendorp C (2002) ‘Homelessness and public space: unwelcome visitors’ 15(1) Parity p 18

Moran M (1988) ‘Review article: crisis of the welfare state’ 18 British Journal of Political Science pp 397–414

Mullins P, Western J and Broadbent B (2001) The Links Between Housing and Nine Key Socio Cultural Factors: A Review of the Evidence Australian Housing and Urban Research Institute, Brisbane

Nicholson P (2000) ‘The health status of homelessness: young women in Melbourne’, paper presented at the Young Women 2000 Conference, 22–23 March, Melbourne

Otto D (2002) ‘Homelessness and human rights: engaging human rights discourse in the Australian context’ 27 Alternative Law Journal pp 271–6, 281

Peace R (2001) ‘Social exclusion: a concept in need of definition?’ 16 Social Policy Journal of New Zealand pp 17–35

Pearce D, Disney J and Ridout H (2002) Report of the Independent Review of Breaches and Penalties in the Social Security System [Online] Available: www.breachreview.org [2004, July 6]

Rousseau J J (1762) The Social Contract, or Principles of Political Right

Rubenstein K (2000) ‘Citizenship and the centenary — inclusion and exclusion in 20th century Australia’ 24 Melbourne University Law Review pp 576–608

Rubenstein K (2002) Australian Citizenship Law in Context Lawbook Co, Sydney

Senate Legal and Constitutional References Committee (1996) National Wellbeing: A System of National Citizenship Indicators and Benchmarks Commonwealth of Australia, Canberra

Shaver S (2001) ‘Australian welfare reform: from citizenship to social engineering’ 36 Australian Journal of Social Issues pp 277–93

Silver H (1994) ‘Social exclusion and social solidarity: three paradigms’ 133 International Labour Review pp 531–78

Soulet M H (1999) ‘Theoretical uses and misuses of the notion of exclusion’ in D Avramov (ed) Coping with Homelessness: Issues to be Tackled and Best Practices in Europe Ashgate, Aldershot

Taylor G (2001) ‘Citizenship rights and the Australian Constitution’ 12 Public Law Review pp 205–29

Townsend P (1979) Poverty in the United Kingdom: A Survey of Household Resources and Standards of Living Penguin Books Ltd, London

Trevnea L J, Nutbeam D, Simpson J M (2001) ‘Asking the right questions of disadvantaged and homeless communities: the role of housing, patterns of illness and reporting behaviours in the measurement of health status’ 25 Australian and New Zealand Journal of Public Health pp 298–304

Twomey A (2001) ‘The federal constitutional right to vote in Australia’ 28 Federal Law Review pp 125–53

Victoria Legal Aid (2000) Legal Aid Handbook (12th ed)

Victorian Law Reform Commission (1992) Summary Offences Act 1966 and Vagrancy Act 1966: A Review Discussion Paper No 26

Waldron J (2000) ‘Homelessness and Community’ 50 University of Toronto Law Journal pp 371–406

Walsh T (2003a) ‘Waltzing Matilda one hundred years later: interactions between homeless people and the criminal justice system in Queensland’ 25 Sydney Law Review pp 75–95

Walsh T (2003b) ‘Breaching the right to social security’ 12 Griffith Law Review pp 43–63

Walsh T (2004a) ‘Defending begging offenders’ Queensland University of Technology Law and Justice Journal (forthcoming)

Walsh T (2004b) ‘Who is the public in public space?’ 29 Alternative Law Journal 82

Watts R (1996) ‘Unemployment, the underclass and crime in Australia’ 29 Australian and New Zealand Journal of Criminology pp 1–19

Western Australian Law Reform Commission (1992) Report on Police Act Offences Project No 85

Zappala G, Green V and Parker B (2000) Social Exclusion and Disadvantage in the New Economy The Smith Family, Sydney

Zappala G and McLaren J (2003) ‘Patterns of computer and internet access and usage amongst low-income households’ in G Zappala (ed) Barriers to Participation: Financial, Educational and Technological The Smith Family, Sydney pp 63–79

---

* Associate Lecturer in Law, Queensland University of Technology, BSW(Hons) (UNSW), LLB(UNSW), PhD Candidate (QUT).

+ Barrister, former coordinator of the Homeless Person’s Legal Clinic, Brisbane, BA(UQ), LLB(Hons) (UQ).

[1] The two key rights of citizens protected in legislation are the right to stay in Australia indefinitely and to re-enter Australia having left it (see generally Migration Act 1958 (Cth)) and the right to be enrolled on the electoral register (Commonwealth Electoral Act 1918 (Cth) s 93).

[2] This is, of course, particularly the case in relation to the mandatory detention of asylum seekers: see, for example, A v Australia.

[3] The Clinic provides free legal services to homeless people at six community organisations in Brisbane that provide services to homeless people. Legal advice is provided by volunteer lawyers from 10 Brisbane law firms on various civil and administrative law matters including fines, social security, housing and tenancy, guardianship and administration issues, and debt and loan agreements.

[4] The Chamberlain definition is a three-tiered definition of homelessness, encompassing primary homelessness (people without conventional accommodation, such as people sleeping rough), secondary homelessness (people who move from one form of temporary accommodation to another) and tertiary homelessness (people who live in boarding houses on a medium to long term basis): Chamberlain (1999): 1.

[5] It cannot be definitively stated that a person born in Australia is an Australian Citizen; under s 10(2) of the Australian Citizenship Act 1948 (Cth), a person born in Australia after 1986 is only an Australian Citizen if their parent was an Australian Citizen or ordinarily resident in Australia at the time of their birth, or if the person has throughout the period of 10 years commencing on the day of their birth been ordinarily resident in Australia.

[6] Of those surveyed, 38.5 per cent reported being ineligible to vote by virtue of their being aged under 18 years.

[7] In 1998, 40,396 paid a $A20 penalty in response to the first penalty notice issued to them and a further 8619 summonses were issued for failure to vote: statistics obtained from the Australian Electoral Commission, cited in Harrison and Lynch (2002): 14–15.

[8] The use of the term ‘underclass’ has attracted criticism, however debate regarding the term may be one of semantics. It is sufficient for our purposes to recognise that there is a substantial number of individuals in our society who do not share in at least some of the benefits of citizenship that are enjoyed by the majority, and that homeless people form part of this ‘excluded’ group. However, in view of the negative connotations that the term evokes, we will refer to this excluded group as the ‘outer-class’.