Other Law Reform Submissions
In January 2010 the HPLC made a submission to the Senate Standing Committee on Community Affairs in its review of the Social Security and Other Legislation Amendment (Welfare Reform and Reinstatement of Racial Discrimination Act) Bill 2009 (Bill). The Bill proposes the extension of the ‘income management regime’ to any ‘declared income management area’. The government has announced that it proposes to roll out this new model of income management across the Northern Territory from 1 July 2010, and that this is the first step in a nationwide roll out of income management.
The HPLC submitted that the income management regime contained within the Bill raises serious concerns in relation to the Government's international obligations to respect and promote the human rights of people experiencing homelessness. Any limitation or restriction on a person's fundamental rights can only be justified where it is demonstrated as necessary and only when measures are proportionate to the pursuit of legitimate objectives. As there is insufficient evidence to demonstrate the effectiveness of the proposed income management regime, there is no demonstrable justification that warrants the extension of the income management regime in the manner proposed in the Bill.
Many people experiencing homelessness already struggle to deal with the administrative processes of social security, on top of a daily struggle to meet basic needs. The HPLC’s clients report issues with bureaucracy and a lack of compassion and understanding in the administration of social security, and as a result find the process both frustrating and disempowering. The income management regime appears only to exacerbate this situation for disadvantaged people by imposing a significant administrative burden on a person, who must constantly deal with the administrative pressures of negotiating funding for basic living and family items.
In September 2009 the HPLC, with assistance from Blake Dawson, provided a response to the Attorney-General on the proposed Bankruptcy Legislation Amendment Bill 2009.
The HPLC welcomes the Government’s proposed reform of the bankruptcy laws to protect vulnerable and marginalised individuals. However, in the HPLC’s view, these changes do not go far enough to protect the interests of individuals who are, and will continue to be, severely disadvantaged by the harsh and enduring penalties contained in the bankruptcy laws.
For people experiencing homelessness, problems with debt are common. Many face problems in making repayments on credit cards, mobile phone bills, utilities, rent and other everyday items. This often leads to people experiencing homeless being subjected to various credit management or debt recovery procedures causing them stress and anxiety. The HPLC often receives requests for advice on how to voluntarily enter bankruptcy so that clients can put an end to these procedures. Whilst the HPLC advises that bankruptcy should be a last resort, many still choose to voluntarily enter bankruptcy despite the severe consequences.
The HPLC's submission makes a number of key recommendations, including that the Bill be amended to:
- provide that the first filing by an individual of a declaration of intention to file a debtors petition is not an act of bankruptcy;
- enable the discharge of infringements and non-provable Centrelink debt as part of bankruptcy or a debt agreement for people in recognised categories of special circumstance (ie. low income, assets and debt);
- ensure that no entries relating to debt agreements are recorded in the National Personal Insolvency Index, and that a person's entry on the NPII is removed after 7 years;
- reduce the period of bankruptcy from 3 years to 12 months for less complex bankruptcies; and
- prohibit bankruptcy, debt agreements or an entry on the NPII being used as the sole basis for a retailer of essential services requesting a security deposit prior to connection.
Surveillance in Public Places
People experiencing homelessness use public space in different ways. Those who sleep rough may have little choice about where they perform intimate activities such as sleeping, bathing, urinating/defecating. For others, public space provides a place to exist in a broad sense; to be safe and warm, to eat and drink, to be with friends and family, and to rest. For this group of people, public space can provide a welcome respite from the squalid or dangerous conditions at the bottom end of the Victorian accommodation market.
For better or worse, surveillance is an important aspect of the relationship between people experiencing homelessness and public space.
“On Camera, 24/7” is a submission made by the HPLC in response to the VLRC’s Consultation Paper on Surveillance in Public Places. This submission reflects the HPLC’s experience representing people in relation to their use of public space and our direct consultations with people experiencing homelessness about their perspectives on public space issues. These direct consultations resulted from a successful partnership with the VLRC to host a forum on public place surveillance which sought the views and comments of participants (all of whom had experienced homelessness) on the issue of surveillance in public places.
The HPLC submission highlights that, for many people experiencing homelessness, being watched (by surveillance cameras / security personnel / police) is a fact of life. It is an unfortunate paradox that the people who rely so much on public space for their quotidian existence are the same people who are watched, monitored, moved on and generally excluded. Furthermore, and unfortunately, individuals that the HPLC spoke to in its consultation seemed resigned to the fact that for them, privacy is almost non-existent. This is not good enough.
The HPLC considers that addressing the way in which surveillance is used in public places provides a good opportunity to better protect the rights of people experiencing homelessness to privacy and to non-discrimination. Our submission makes a number of key recommendations in this area, including:
That in making any recommendations for reform or regulation of surveillance in public places, the VLRC be guided by and seek to uphold the full range of human rights including the right to privacy, the right to non-discrimination and the right to freedom of movement.
That surveillance principles be adopted to provide an overarching framework guiding regulation of public place surveillance, including a principle to the effect that ‘Public place surveillance should not be used to profile particular groups of people or to discriminate against people’ be adopted.
That funding be provided for a detailed examination of the ways in which surveillance (a) deters crime in respect of people experiencing homelessness and (b) results in increased apprehension rates where acts of violence are caught on camera.
That either an independent regulator or an affected individual be able to initiate a complaint about breaches of statutory surveillance rules or principles. That the independent regulator be given jurisdiction to consider and conciliate complaints in respect of public place surveillance which breaches a statutory rules in respect of this issue, and that the Victorian Civil and Administrative Tribunal be provided with jurisdiction to hear complaints that cannot be resolved by the independent regulator.
In June 2009 the HPLC and Seniors Rights Victoria (SRV) completed a joint response to the Review (the Review) of the Victorian Civil and Administrative Tribunal (VCAT). Our joint response recognises that even though the ‘lived experiences’ of HPLC and SRV clients are diverse in many ways, both groups are often seriously affected by VCAT decisions.
People with an experience of homelessness and older Victorians are most likely to interact with VCAT processes and decision-making through the Residential Tenancies List and the Guardianship and Administration Lists. In both of these lists, the impact of VCAT orders on the lives of disadvantaged individuals can be far-reaching and lea to, for example, their eviction from stable housing or the removal of day-to-day decision making ability.
The HPLC and SRV are principally concerned to ensure our clients have access to justice at VCAT. We consider the Charter of Human Rights and Responsibilities Act 2006 and the rights to equality before the law and to a fair trial are critical measures of whether older Victorians and people with an experience of homelessness actually have that access. Our submission makes a number of recommendations including the need for measures to track the ways in which disadvantaged clients move through VCAT, the need for a case management system for disadvantaged clients similar to the Magistrates’ Court ‘CISP’ program, the need for measures of the quality of decision making by the Tribunal and a more comprehensive scheme for taking special circumstances into consideration.
Mental Health Act 1986
The Victorian Government is currently reviewing the Mental Health Act 1986.
The Government released a Consultation Paper in December 2008, and in February 2009 the HPLC provided its response to the consultation (with the generous assistance of the Allens Arthur Robinson). The Government then released an exposure draft of the new Mental Health Bill 2010, and the HPLC provided a further response.
The HPLC's 2009 submission draws attention to the comprehensive linkages between homelessness and mental health disorders and is informed by several detailed case studies drawn from clients of the clinic. The response draws particular attention to the ways in which homeless people are disadvantaged by their circumstances in relation to involuntary treatment. For a homeless person or someone marginally housed in a rooming house the absence of appropriate and secure housing may mean the least restrictive treatment option is as an involuntary inpatient.
While acknowledging the consultation explicitly relates to the Mental Health Act, our analysis of international human rights obligations and the undeniable link between homelessness and mental illness leads to the incontrovertible conclusion that homeless people with a mental disorder must be housed.
The HPLC's 2010 submission focused on specific provisions in the draft Mental Health Bill 2010 which relate to the proposed Mental Health Tribunal and processes to increase fairness and access to justice by people subject to involuntary treatment. The HPLC submitted that the Draft Bill appears to be overly concerned with the issue of access to information rather than facilitating genuine participation in mental health proceedings by mental health consumers. The HPLC submission provided practical suggestions for allowing genuine participation, including ensuring that consumers can access advice and representation before the Tribunal.
Submission on Drug-Related Offending in Women Prisoners
In June, the HPLC together with Council to Homeless Persons (CHP) made a submission to the Drugs and Crime Prevention Committee, highlighting three key causal factors influencing drug-related offending: the lack of safe and appropriate housing, continuing substance abuse and poverty.
The submission outlines several recommendations aimed at reducing homelessness, recidivism and the over-representation of women experiencing homelessness in prisons.
Imprisonment even for a short period of time is linked to an increase in homelessness. The HPLC believes that affordable and appropriate housing is fundamental for prisoners to reintegrate into the community.
Guardianship and Administration
This submission focuses primarily on legal, practical and procedural barriers that interfere with the right of people with a disability, particularly those experiencing or at risk of homelessness, to enjoy legal capacity on an equal basis with others. In particular, it looks at:
· poor attendance at hearings;
· lack of legal representation;
· inadequate access to support services;
· limited avenues for reassessment and appeal;
· plenary orders;
· lack of review of a guardian or administrator's decisions; and
· the concept of "best interests".