Alternative Law Journal
PHILIP LYNCH[*] reports on a pro bono project in Melbourne that provides assistance to one of society’s most disenfranchised groups.
The law, in its majestic equality, forbids the rich as well as the poor from sleeping under bridges, begging in the streets, and stealing bread.
Anatole France, The Red Lily, 1894
Over 100 ago, Anatole France, writer, critic, communist and winner of the Nobel Prize for Literature in 1921, identified the disproportionate impact that the application of formally equal laws can have on unequals. The counterview, recently expressed by the Police Chief Inspector for Melbourne, that ‘where you live and your social standing is a non-issue’ fails to account for the social context of law. The application of law without regard to substantive injustice and inequality tends towards the perpetuation, rather than the subversion, of marginalisation and disadvantage.
The Homeless Persons’ Legal Clinic, a joint project of the Public Interest Law Clearing House (PILCH) and the Council to Homeless Persons (CHP), was established in October 2001 to provide free civil and administrative legal assistance and empowerment to one of society’s most disenfranchised groups – homeless people. In addition to providing legal services, the Clinic seeks to identify the range of legal issues facing homeless people, identify gaps in the delivery of services, and examine relevant law and policy reform issues. The Clinic is modelled on similar services in the United States and Canada which have demonstrated that many homeless people face distinct legal problems. These services have established that their clients are disproportionately affected by the vacuous application of the law, are sometimes targeted for the selective enforcement of laws, and require that services be appropriately targeted and delivered. Services are provided by the Clinic at crisis accommodation centres and welfare agencies to encourage direct access by clients.
The Clinic is funded by a non-recurrent grant of $57,000 from the Department of Human Services (Supported Accommodation Assistance Program Unit) and staffed by pro bono lawyers from participating law firms and legal departments, including Blake Dawson Waldron, Clayton Utz, Hunt & Hunt, Mallesons Stephen Jaques, Minter Ellison and National Australia Bank.
To date, the Homeless Persons’ Legal Clinic has provided assistance to over 100 clients. The most common legal problems for which homeless people have required assistance involve debts, fines, social security, housing and tenancy. If the Clinic cannot meet a client’s needs, it does its best to refer the client to a service that can. In this respect, the Clinic has developed strong referral relationships with financial counsellors, community legal centres and Victoria Legal Aid.
As Anatole France would have predicted, many clients of the Clinic are adversely affected by laws which disproportionately impact on the poor, such as laws which criminalise begging or drinking in the street. In one case, Mark (not his real name), who suffers from an acquired brain injury and is subject to an administration order, received more than $100,000 in fines over a period of five years for offences such as drinking in a public place, travelling without a valid ticket and begging. Most of the fines were issued around Flinders Street Station — his community, his home and his support network. Non-payment of such fines can result in imprisonment for one day per $100. On 14 December 2001, the Melbourne Magistrates’ Court dismissed all fines against Mark. Magistrate Grant imposed a condition that Mark comply with a case management plan prepared by Ozanam Community Support Services, stating that ‘the community should accept responsibility for people in the offender’s position’. The plan will enable Mark to obtain stable accommodation and aged care support. Magistrate Grant also acknowledged the efforts of Felicity Hampel SC, Brian Bourke, barrister, Minter Ellison, the Homeless Persons’ Legal Clinic, and the Magistrates’ Court Disability Support Coordinator, all of whom assisted Mark for free: ‘The proper functioning of the legal system has come to rely on the pro bono efforts of law firms and members of the Victorian Bar. Their assistance is of significant benefit to the community and to the Court itself’. The decision of the Court in Mark’s case recognised that any meaningful notion of justice requires that the formulation and application of the law account for inequality and context. Responses that eliminate inequality and promote human dignity, such as the provision of secure and affordable accommodation, are far more appropriate than imprisoning people for manifestations of poverty such as drinking in the street or begging.
Clients like Mark are also affected by the selective enforcement of laws or the usurpation of rights by people and organisations attempting to exercise power with impunity. Evan (not his real name), who is on a Disability Support Pension and often sleeps rough, was bodily evicted from a rooming house in Fitzroy. The rooming house proprietor gave no reasons for the eviction and refused to provide Evan with access to his belongings, which remained locked in his room. Anecdotal evidence suggests that the practice of evicting the most ‘destitute’ boarders is not uncommon when rooming houses are full. On behalf of Evan, the Clinic is seeking to negotiate an apology and compensation in connection with the illegal eviction. If this is unsuccessful, it is likely that proceedings will be issued in the VCAT.
The feedback from clients, welfare agencies and crisis accommodation facilities in respect of services provided by the Clinic has so far been very positive. As Mark commented to the legal team assembled on his behalf, ‘no-one has ever helped me like this before’.
The funding provided by the Department of Human Services will enable the Clinic to operate until about August 2002. Recurrent funding is being sought from government and corporate sectors to establish a permanent homeless persons’ legal service and to supplement the advice and casework provided by the Clinic with law reform work which addresses systemic issues of disadvantage and disempowerment. In the meantime, the Clinic will continue to seek solutions to situations that are unfair or unjust.
[*] Philip Lynch is the Coordinator of the Homeless Persons’ Legal Clinic run by PILCH and a part-time lawyer at Allens Arthur Robinson.
© 2002 Philip Lynch