Address delivered to volunteer lawyers at the Welfare Rights Centre Housing Legal Clinic

Address delivered to volunteer lawyers at the Welfare Rights Centre Housing Legal Clinic

The Hon John von Doussa QC

6 February 2007

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I would like to acknowledge the Kaurna people, the traditional owners of the land on which we meet today, and pay my respects to their elders.

Introduction

I am very grateful for the opportunity to address you today and express my admiration to you all for taking on the very necessary venture of    providing practical legal assistance to some of the most powerless and marginalised people in society.

The pro bono tradition

The voluntary provision of legal assistance to those in need – pro bono assistance as it is now called – continues a proud tradition which has a special place in the history of the South Australian legal profession. Perhaps the most enduring contribution to justice which lawyers in South Australia have made is through the provision of free legal assistance.

Long before the notion of publicly funded legal aid, in 1925 the South Australian Law Society established a formal legal assistance scheme.  This unique scheme paved the way for lawyers around Australia to create formal arrangements for voluntary legal assistance and made sure that deserving persons in need of legal assistance were not left without it by reason of lack of means.

The legal profession honoured its commitment to voluntary legal service for over 50 years before the legal-aid commission took over the function. However, the tradition of pro-bono legal advice has been kept alive by supplementary schemes established by the Law Society, and more recently through the pro bono activities of its members.

It is important to remember that for many South Australians access to justice has been possible only because of the dedication and moral commitment of lawyers to the protection of the rights and dignity of their fellow human beings. You are continuing that proud tradition.

And you could not choose a more deserving area of need than that of the homeless.

Homelessness in Australia

There is one very simple reason why pro bono work is important: in 2007 the fundamental principle that everyone should have equal justice is still not a reality.

The problem of homelessness in 21st centuryAustralia has been described as a ‘national disgrace’.¹

Figures from 2001 census suggest that on any given night there are approximately 100,000 homeless people in Australia. The definition of homelessness used in the census includes not only those who were without any accommodation, the rough sleepers, but also those who had only temporary and insecure housing or grossly inadequate housing.

There were 14,158 people without any home at all.

There were 7586 homeless people in South Australia, and the figure probably remains about the same. More than half these people lived in Adelaide. How many of them were sleeping rough is unclear, but estimates suggest there are currently some 100-200 sleeping rough in the City of Adelaide.

The causes of homelessness vary widely but most commentators agree that key factors include poverty, unemployment, lack of affordable housing, domestic violence and ill health.

Interestingly, although mental health issues and substance abuse have long been cited as a cause of homelessness, a recent report by RMIT University, says that for the majority of homeless people in Melbourne mental illness and substance abuse are actually the effect of becoming homeless.²

Homelessness as a human rights issue

Being homeless is defined in commonwealth legislation as inadequate access to safe and secure housing. A lot of people think being homeless simply means not having a roof over your head. The reality is that homeless people not only lack the physical shelter of adequate housing, they lack the social shelter of being included in society.

Without shelter, the homeless are exposed. Homeless people are isolated from society, and divorced from many essential services.

The human rights stemming from the concept of shelter and dignity find expression in the major international human rights instruments. The 1948 Universal Declaration of Human Rights recognises as fundamental the right to adequate housing, to adequate sustenance, to security, to liberty, to the right to work for just and favourable remuneration, and the right to enjoy equality before the law.

At its core, homelessness is a violation of human dignity which deprives people of their right to enjoy an adequate standard of living, jeopardises their access to basic services, and often prevents people from exercising their civil and political rights. 

The concept that an adequate standing of living is a human right finds concrete form in article 11 of the International Covenant on Economic Social and Cultural Rights which requires countries, like Australia, who have ratified the Covenant,  to take appropriate steps to ensure everyone has the right to an adequate standard of living, including adequate housing.

In discussions about protecting human rights, people often distinguish between economic, social and cultural rights and civil and political rights. But homelessness is a cruel illustration that the realisation of civil and political rights often depends on securing economic, social and cultural rights. In the last Federal election an estimated 80 000 of the 100 000 homeless people in Australia did not vote.

Access to Justice

People who experience homelessness face huge obstacles in securing access to justice and their right to the equal treatment under the law.

The first obstacle is that the legal protection of the rights of homeless people is manifestly inadequate.  While homeless people frequently experience discrimination, especially in the provision of accommodation and services, discrimination on the grounds of homeless or social status is not illegal. 

The second obstacle is that laws which regulate people’s behaviour in public spaces can have the practical effect of criminalising homelessness.  Laws that prohibit vagrancy, begging, sleeping, loitering or camping in public spaces all penalise homeless people. Indeed, one commentator has observed that:

To the extent that people experiencing homelessness come into contact with legal functionaries, such as lawyers, it is usually as a result of their prosecution for minor criminal offences, such as loitering.³

The fact that many homeless people only experience of the law as a source of trouble means that many homelessness people hesitate to seek out legal advice.

The final obstacle is that the legal protections and remedies that are theoretically available to homeless people are often practically inaccessible. 

The NSW Law and Justice Foundation’s 2005 report No Home, No Justice Report observes that on a ‘day to day basis, homeless people have many immediate needs – finding accommodation, getting food or money, caring for family which take precedence over legal issues’.⁴ The report observes ‘limited resources, feelings of despair or hopelessness, mental health or addiction issues, poor literacy or minimal education and a fear of disclosing this, [and] a lack of knowledge of legal options⁵’mean legal issues which cause or prolong homelessness remain unresolved. The costly, complex and formal nature of legal proceedings and legal advice only reinforces their feeling that ‘the law would never work in their interests’.⁶ 

What’s being done?

The South Australian Government has taken positive steps to address the problems of homelessness. It is an aim of the State Strategic Plan to halve homelessness in the life of the government. Premier Mike Rann was instrumental in establishing the Social Inclusion Board in 2002 which, in turn, led to the development of the South Australian Social Inclusion Homelessness Plan. I am sure you have become aware of these measures, and of the commitment of South Australian Minster for Families and Communities the Hon. Jay Weatherill and the chair of the Social Inclusion Board, Monsignor David Cappo AO to advance the objects of these programs. Indeed the Minister has been active in supporting the Welfare Rights Centre Housing Legal Clinic.

The work of the Housing Legal Clinic

Despite some progress homeless people continue to face legal problems that have either been caused by, or contributed to their homelessness.  For these people the need for assistance which helps them understand their options, and learn of support services, remains critical.

It is in the context of the need to break down the systematic barriers to justice for homeless people, that the work of Housing Legal Clinic is so important.

Since the Welfare Rights Centre Housing Legal Clinic opened in July last year volunteer lawyers have provided advice and assistance to more than 150 clients. 

Today is the first inaugural training session for volunteer lawyers. This training session is commendable because it illustrates not only your willingness to provide pro bono legal assistance, but your determination to ensure the assistance provided is of the highest professional standard.

Without pro bono legal services, the homeless and those at risk of homelessness are unable to access the legal system.

One of the strengths of the Legal Clinic is that it provides legal services at locations which are familiar and accessible to those who need the assistance - presently at the Byron Place Community Centre and the Magdalene Centre.

While in the past it would have been rare indeed for commercial law firms to take pro bono work seriously, times have changed. Today, many top commercial laws firms deserve credit for promoting pro-bono work as part and parcel of the professional responsibility of lawyers. While it must be difficult for partners like John Murray and Josh Simons to find the time to spearhead pro bono initiatives, the fact that they do provides professional and moral leadership for the current generation of lawyers.

In my view, lawyers have both a professional and a moral obligation to give back to the community, by promoting the principles of fairness, justice and the rule of law.  Sometimes when lawyers speak out in defence of principle –the right to fair trial, the right to legal assistance, or the injustice of particular laws, like the City of Adelaide Dry Zone laws   – they are criticised as publicity seeking civil libertarians unduly obsessed with process and procedure.  But the fundamental lessons of the law are to respect the rule of law, value due process, and prize the principles of fairness embedded in the common law.

If, for example, the legal profession had not expressed its outrage at the fact that David Hicks has been detained without trial for five years, then that silence would have been a sorry indictment of the profession.  It is to the legal profession’s credit so many members of its profession have felt compelled to speak out in defence - not of David Hicks – but of one of the most fundamental principles of legal system – the right to a fair trial.

Of course, defending people’s rights is not just about public advocacy, it’s about providing practical assistance to those people who would not otherwise be able to protect their own rights.

Treating clients with dignity

Phillip Lynch, who used to coordinate the PILCH Homelessness Persons Legal Clinic in Melbourne, has written an excellent paper in which he advocates a human rights approach to lawyering for people experiencing homelessness.⁷

The preamble to the Commonwealth Supported Accommodation Assistance Program Act 1994, which reflects a human rights approach to homelessness, is worth repeating:

Homeless people form one of the most powerless and marginalised groups in society. Response to their needs should aim to empower them and maximise their independence. These responses should be provided in a way that respects their dignity as individuals, enhance their self esteem, is sensitive to their social and economic circumstances, and respects their cultural background.

Phillip Lynch’s paper draws on  a 2004 survey of 226 people sleeping rough, living in transitional housing or engaging with homeless assistance services which found that the right considered most important, and the right most often violated, was the right to be treated with dignity and respect.

Treating your clients with dignity should be a principle which you uphold in every aspect of legal practice. However, it is particularly important when you are dealing with a group of people who are routinely stigmatised and stereotyped.  You need to listen to your clients, respect their instructions, and fulfil your professional responsibilities as best you can.

Your training will equip you with the skills to provide quality advice.  However, I think the toughest challenge you will face is not going to be finding remedies in unfamiliar legislation or in the common law; it’s going to be the emotional impact of the stories you hear.

Previously, your clients are likely to have been society’s winners. Now you are going to be working with the people society ignores.  Many of the stories your new clients will tell you, will be stories about social issues, about service failures, about the long term effects of structural injustice.  As Philip Lynch observes, recognising the non-legal dimensions of your clients’ problems, ‘is not to say lawyers should become social workers’, but it is to say, that lawyers who operate in a human rights framework, must

get to know their clients and their non-legal needs better, get to know the social service providers that can assist clients with their needs… and develop …referral procedures to ensure clients needs are met in a real and positive way.⁸

A human rights approach to providing legal services to homeless people does not automatically require resorting to the courts.  Many of problems relayed to you will be tied up in immediate social needs that should take priority, and you should never hesitate to think laterally about how problems can be solved in ways that skirt around the technical legalities and niceties that may be involved. Inevitably, you will hear about problems that you, as a lawyer, cannot fix. Sometimes the most valuable service you can provide is referring the person to an appropriate support service.

On a day to day basis, you have to do your best for the individual within the existing legal framework. But always keep one eye on the bigger picture. Think of possibilities for a better legal framework. The arguments for law reform are armed by practical examples of the inadequacies and injustices of existing laws.  By speaking about the injustices facing homeless people, even among our friends and families, we can start promoting public consciousness and a public sense of responsibility of what it is like to experience homelessness in 21st century Australia.

Congratulations

I would like to conclude by congratulating everyone who is involved in this initiative.  I commend the Government for the steps it is taking to address homelessness, and also Bill Manallack, the Welfare Rights Centre Housing Legal Centre Coordinator, and Minter Ellison and Thomson Playford for promoting this venture.

And of course, I especially commend you, the volunteers. At the Housing Legal Clinic you will carry the flag for one of the finest traditions of the legal profession. I trust you will find the experience a most rewarding one.

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Endnotes