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This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

Homeless People And The Law (Qld)


Homeless people are among the most criminalised of all populations in Australia, and are mostly charged with minor property and summary offences. Advocates argue some laws discriminate against those who use public space most frequently, such as the homeless. Due to a lack of private space, homeless people may choose a public place for security or social reasons, and their daily existence revolves around the public place. Activities can include drinking alcohol, urinating, and begging in that public place, all of which are considered offences under the Summary Offences Act 2005. This article outlines some of the offences and legal issues that affect homeless people.

Public nuisance

Section 6 of the Act states a person commits a public nuisance offence if they behave in a disorderly, offensive, threatening or violent way, and this behaviour interferes with another person’s peaceful passage through, or enjoyment of, a public place. This behaviour can include language that is offensive, obscene, indecent, abusive or threatening. A complaint is not needed for a police officer to take action. The maximum penalty for a public nuisance offence is 10 penalty units ($1334.50) or imprisonment for 6 months. If the offence is committed in or near licensed premises, the maximum penalty is 25 penalty units ($3336.25) or imprisonment for 6 months. Homeless people are more likely to be charged with this offence than other people due to their congregating in a public place.

Urinating in a public place

To be charged with this offence, “evidence that liquid was seen to be discharged from the vicinity of a person’s pelvic area”, in a public place, is considered sufficient evidence. The maximum penalty is 2 penalty units ($266.90), or if the urination is in or near licensed premises, the maximum penalty is 4 penalty units ($533.80). Homeless people may not have access to private toilet facilities and urinate in a public place due to necessity.

Begging in a public place

In a public place, a person must not beg for money or goods; cause, procure or encourage a child to do this; or solicit donations of money or goods. The maximum penalty is 10 penalty units ($1334.50) or imprisonment for 6 months. Buskers and charity donation collectors are exempt from this law. For some homeless people, begging may be a practical necessity to survive.

Being intoxicated in a public place

If a person is drunk or otherwise adversely affected by drugs or another intoxicating substance in a public place, they face a maximum penalty of 2 penalty units ($266.90). Alcoholism and drug use is often a reason for homelessness or a consequence of it.

Trespass

Section 11 of the Act states a person must not unlawfully enter or remain in a dwelling, a yard of a dwelling, a business, or a yard of a business. Homeless people may be susceptible to being charged with this offence if they are sleeping rough, seeking shelter or spending time on private land.

Police move-on powers

Homeless people can also be disproportionately affected by move-on powers exercised by police. Under the Police Powers and Responsibilities Act 2000, a police officer can, in particular circumstances, direct a person or group of people to move on or leave a public space. The direction can be given if the officer reasonably suspects the behaviour of the person or group is or has been:

  • causing anxiety to a person entering or leaving a place;
  • interfering with trade or business at the place by unnecessarily obstructing, hindering or impeding someone entering or leaving the place;
  • disorderly, indecent, offensive or threatening to someone entering, at or leaving the place;
  • disrupting the peaceable and orderly conduct of any event, entertainment or gathering at the place.

The direction can also be given if a person’s presence is causing anxiety, interference or disruption.

The maximum penalty for ignoring such a direction is 40 penalty units ($5338), or 60 penalty units ($8007) if the contravention is in or near a licensed premises.

A homeless person may disobey a move-on direction for reasons including that they have nowhere to move on to, they have safety concerns about moving to an unfamiliar area, and they may not be able to access service providers, such as charity food vans, in other areas.

Bail

If a person is charged with a criminal offence and released on bail, they must supply the court with a residential address. Bail is often granted with a condition that the bailed person live at a specified address. A lack of a fixed address can make obtaining bail difficult for a homeless person.

Giving evidence

A homeless person may be summonsed to court to give evidence, and finding that person to deliver a summons to them may be difficult if the person has no fixed address. This can compromise a matter in court.

Ex-prisoners

A homeless person released from prison may return to having no support or accommodation. This means the circumstances that led to the person’s imprisonment remain unchanged and the risk of reoffending is high. This is compounded by the fact ex-prisoners already tend to have higher unemployment rates and lower incomes than the rest of the population.

For advice or representation in any legal matter, please contact Armstrong Legal.

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