PLEASE TYPE the UNIVERSITY of NEW SOUTH WALES Thesis/Dissertation Sheet

LIVING IN PUBLIC SPACE: A HUMAN RIGHTS WASTELAND?

Cassandra Goldie

A thesis submitted in fulfilment of the requirements for the degree of Doctor of Philosophy

Faculty of Law University of New South Wales

March 2008 PLEASE TYPE THE UNIVERSITY OF NEW SOUTH WALES Thesis/Dissertation Sheet

Surname or Family name: Goldie

First name: Cassandra Other name/s: Mary-Ellen

Abbreviation for degree as given in the University calendar: PhD

School: Law Faculty: Law

Title: Living in Public Space: A Human Rights Wasteland?

Abstract 350 words maximum: (PLEASE TYPE)

This thesis investigates the extent to which human rights law may be used to challenge the forced eviction of people who live in public space under public space laws. The specific case study is the operation of Darwin City Council By- law 103, which bans camping, or adults sleeping in a public place between sunset and sunrise. The by-law is used to criminalise or forcibly evict people who live in public space in Darwin in the Northern Territory. Darwin has the highest proportionate number of homeless people of any capital city in Australia. Indigenous people are significantly over-represented.

The thesis charts recent legislative changes across Australia to demonstrate that public space laws, such as Darwin City Council By-law 103, continue to be popular public policy responses to law and order concerns. This legal regulation is being undertaken without ensuring compliance with international human rights standards. There has been a marked increase in Australia of the use of available domestic and international human rights tools to raise concerns about the enforcement of these laws against people living in public space. Through a review of secondary sources, the thesis establishes that some 15 human rights have been identified as potentially engaged by such enforcement but Australian jurisprudence has yet to emerge. The thesis selects the human right to privacy, family and home for detailed analysis. It interrogates available evidence from Darwin, international and comparative jurisprudence and secondary sources to determine whether the forced eviction of people living in public space under Darwin City Council By-law 103 may be found to violate the right to respect for privacy, family and home in a particular case.

The study aims to make a specific contribution to growing endeavours to promote the human rights of people who are homeless, including people who live in public space. Its detailed analysis is designed to support a human rights litigation strategy at both domestic and international level, in order to challenge the extent to which people living in public space are subjected to criminalisation and forced eviction when they have nowhere else to live.

Declaration relating to disposition of project thesis/dissertation

I hereby grant to the University of New South Wales or its agents the right to archive and to make available my thesis or dissertation in whole or in part in the University libraries in all forms of media, now or here after known, subject to the provisions of the Copyright Act 1968. I retain all property rights, such as patent rights. I also retain the right to use in future works (such as articles or books) all or part of this thesis or dissertation.

I also authorise University Microfilms to use the 350 word abstract of my thesis in Dissertation Abstracts International (this is applicable to doctoral theses only).

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TABLE OF CONTENTS

Originality Statement iv

Authenticity Statement v

Acknowledgements vi

Abstract viii

1 Criminalisation and Forced Eviction of People Living in Public 1 Space: A Human Rights Concern

2 Legal Regulation of Public Space: The Legal and Human Rights 13 Context A Introduction 13 B Legal Regulation of Public Space: A Growing Urban Phenomenon? 15 C International Human Rights Norms Applicable to Australia 41 D Domestic Legal Remedies to Challenge Human Rights Violations 45 E International Mechanisms to Challenge Human Rights Violations 53 F Conclusion 70

3 The Use of Human Rights Laws to Challenge the Criminalisation 73 and Forced Eviction of People Living in Public Space A Introduction 73 B Legal and Human Rights Advocacy in Support of People who are 76 Homeless C Domestic Research and Advocacy Using Human Rights to 112 Challenge the Criminalisation and Forced Eviction of People Living

in Public Space D Domestic Human Rights Litigation Challenging the Criminalisation 126 and Forced Eviction of People Living in Public Space E International Advocacy Challenging the Criminalisation and Forced 130 Eviction of People Living in Public Space F Impact of Efforts to Challenge the Criminalisation and Forced 147 Eviction of People Living in Public Space G Conclusion 151

4 The Nature and Extent of Living in Public Space in Darwin, 157 Northern Territory A Introduction 157 B How Many People Live in the ‘Long Grass’ in Darwin? 158 C Who are the People Living in the ‘Long Grass’ in Darwin? 187 D Why do People live in the Long Grass when they are living in 200 Darwin? E Conclusion 226

5 Legal Regulation of Essential Human Behaviour in Public Space: 233 The Case Study of Darwin City Council Bylaw 103 A Introduction 233 B Darwin City Council Regulation of Camping and Sleeping in Public 234 Places C Legal Challenges and Protests Regarding the Use of ‘Move on’ 269 Powers such as DCC By-law 103 against Indigenous people living in Public Places D Conclusion 276

6 The Human Right to Respect for Privacy, Family and Home: Is 279 the Right Engaged? A Introduction 279 B Does a Forced Eviction Affect the ‘Home’ of People Living in the 295 Long Grass?

C Does a Forced Eviction Affect the ‘Privacy’ and ‘Family’ of People 338 Living in the Long Grass? D Conclusion 347

7 Arbitrary or Unlawful Interference with Privacy, Family and 351 Home: Is there a Violation? A Introduction 351 B When will State Conduct constitute an ‘Interference’? 354 C Is an Interference ‘in Accordance with the Provisions, Aims and 362 Objectives of the Covenant’? D When will an Interference be Considered Unlawful? 364 E When will an Interference be considered ‘arbitrary’? 377 F Positive Obligations under Art 17 464 G Conclusion 472

8 Conclusion 483

Bibliography 497

Johnny Balaiya’s True Story 551

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ORIGINALITY STATEMENT

‘I hereby declare that this submission is my own work and to the best of my knowledge it contains no materials previously published or written by another person, or substantial proportions of material which have been accepted for the award of any other degree or diploma at UNSW or any other education institution, except where due acknowledgement is made in the thesis Any contribution made to the research by others, with whom I have worked at UNSW or elsewhere, is explicitly acknowledged in the thesis. I also declare that the intellectual context of this thesis is the product of my own work, except to the extent that assistance from others in the project’s design and conception or in style, presentation and linguistic expression is acknowledged.’

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Date: ……………………………………….

I hereby grant the University of New South Wales or its agents the right to archive and to make available my thesis or dissertation in whole or part in the University libraries in all forms of media, now or here after known, subject to the provisions of the Copyright Act 1968. I retain all proprietary rights, such as patent rights. I also retain the right to use in future works (such as articles or books) all or part of this thesis or dissertation.

I also authorise University Microfilms to use the 350 word abstract of my thesis in Dissertation Abstract International (this is applicable to doctoral theses only). I have either used no substantial portions of copyright material in my thesis or I have obtained permission to use copyright material; where permission has not been granted I have applied/will apply for a partial restriction of the digital copy of my thesis or dissertation.

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AUTHENTICITY STATEMENT

I certify that the Library deposit digital copy is a direct equivalent of the final officially approved version of my thesis. No emendation of content has occurred and if there are any minor variations in formatting, they are the result of the conversion to digital format.

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ACKNOWLEDGEMENTS

It is clear to me now that there are two things one really needs in order to get a thesis done. One is inspiration. The other is perseverance.

My inspiration came from my days living in Darwin where I had the privilege to meet Johnny Balaiya, Stella Simmering, June Mills, and Bill Day. I spent many hours listening, and learning. Johnny Balaiya was an inspiration from the beginning, and he remained so throughout the course of this thesis, to the end. June Mills is quite remarkable and I was very honoured to meet her. Stella Simmering is a truly wonderful woman and activist, and Bill Day is one of the gutsiest, most decent people I know. Through Stella and Bill, I met the talented and determined Dulcie Malimara. My deep thanks to each one of you.

I clearly landed on my feet with the outstanding supervision of George Williams and Garth Nettheim. Both were steady as rocks and wise in their guidance. George and Garth always responded willingly to both large and small requests for help and provided feedback on drafts within the week. I make this point because I know now how incredibly lucky I was. I am indebted to you both. George generously welcomed me into the Gilbert + Tobin Centre of Public Law, and I am grateful for the doors that opened up in different ways over the time, including some wonderful friendships. Thank you to the G + T Mob, particularly to Megan Davies, Andrew Lynch, and Louise Halpin, Belinda MacDonald, Sean Brennan, and Devika Hovell. I would also like to acknowledge Kerrie Daley, Annabel Sutherland, Tony Antonio, Reg Potter, Dawesh Chand, and the late Paul Rodwell, who were so very helpful and friendly to me. Thank you all, as I know how pesky I can be. The Faculty of Law at UNSW, generally, was excellent. There are some remarkable people at UNSW and I have been honoured to be an associate there. Jill Hunter was a particularly wise guide along the way. Angus Corbett did the ground work to secure my scholarship, a true privilege in these times. My fellow students and partners in crime were also wonderful - people such as Scott Calnan and Koestrianti in the early days and, more recently, Umair Ghori and the lovely Humaira and little Haadia, together with Dominique Della-Pozza and Cathy Bond, who kept me laughing during the final long

hours of confinement. Many colleagues were very generous with their time with various requests. Thank you, in particular, to Chris Chamberlain for his earlier review of Chapter Four, Anne Coleman and Bill Day for their theses, Harry Blagg, Phil Lynch, Brendan Edgeworth, Jane Sanders and Tamara Walsh, and to Reece Plunkett, for her speed proof reading on a deadline.

I remember reading an ‘easy guide’ to getting a PhD in the beginning, lazing by the pool at Nightcliff in Darwin. I don’t remember much from it, but I do remember that it warned prospective students to factor into their study program at least one major life event – moving houses or cities, a relationship or break-up, the death or birth of a loved one. I now smile. I am fortunate to have some truly beautiful friends, family and colleagues in my life and I simply want to thank each and every one of you. You made me persevere. My love to Rosalie Lee and Karen Loreck, Suzanne Covich, Val Tomlin, Jo Prichard, Judith Quinlivan, Chris Slattery, Colleen Brown, Sono Michetti and the wonderful women of Fremantle, Lay Lee Tang, as well as Ken Fernandes, Dan Nicholson, Noel Murray, Micheline Lee, Stephen Gray and my Godson Mark, Elke Kerhoefs and Karen Maxwell who make up my Melbourne clan, Wendy Morton, Julian Barry, Kate Race and their beautiful boys, together with Daniel Alderman and David McMicken, James McEwan and Don Parker, and Nerida Noble from Darwin days where it all began, to dear friends Boris, Nina, Jordan and to Monique Hitter who inspired me to Sydney, Jonathon Hunyor, Catalina Loyola and Michael Raper, Isabelle Guillemin, Shirley Southgate and Tracey Greenwood right to the end, Cate Willey, Pat Drage, Fran, Daniel and Johl, Chelsea, Janet and Jackson, John, Jo, Ben, Elijah and Maddie Goldie, Jan and Mike Gibbs and my parents, Ellen and George Goldie, and also those afar, including Margie Taylor, Lizzie Roe, Melinda Ching Simon, Birte Shultz, Malcolm Langford and the beautiful Leonilde Romeo. Thank you.

Two days after I completed the thesis and sent it to the binders, on Sunday 24 February 2008, Johnny Balaiya passed away. This work is dedicated to his memory. His true story will be found in its closing pages. Please read it. He was a proud Aboriginal man of the Burrara Clan, a man of inspiration and perseverance.

ABSTRACT

This thesis investigates the extent to which human rights law may be used to challenge the forced eviction of people who live in public space under public space laws. The specific case study is the operation of Darwin City Council By-law 103, which bans camping, or adults sleeping in a public place between sunset and sunrise. The by-law is used to criminalise or forcibly evict people who live in public space in Darwin in the Northern Territory. Darwin has the highest proportionate number of homeless people of any capital city in Australia. Indigenous people are significantly over-represented.

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1 CRIMINALISATION AND FORCED EVICTION OF PEOPLE LIVING IN PUBLIC SPACE: A HUMAN RIGHTS CONCERN

‘Doesn’t matter what colour you are, black or white, we are all one family. Why government is treating us like we are animals? … We are not animals. We are family. We not animals, not dogs, we not kangaroo, but we are family. See yourself outside, yeah, you are different colour, but we are all the same, you got to see yourself inside, what you got inside for your own self. We all the same. We all one blood. Why you treating us wrong way?1

Dulcie Mulimara, Protester, Rally against Darwin City Council By-laws outside Parliament House, Darwin, Northern Territory, 3 August 2001

The evening was 7 August 2001: Australian Census night. Around the country, the search was on to find us, count us and capture the state of our nation. How old were we? With whom did we live? Were we having babies? And where did we live? Questions, questions, questions and we answered. Most people answered because we had to. Some of us answered because we thought it might count. Perhaps by telling our stories, others would listen — and understand.

Out the back of Darwin in the Northern Territory of Australia, two Indigenous men, Johnny Balaiya and Bob Bunba, sat at their bush camp. Johnny Balaiya and Bob Bunba were known as ‘long grassers’ - people who camped in the bush or on the

1 See W. Bartlett Day, Aboriginal Fringe Dwellers in Darwin, Australia: Cultural Persistence or a Culture of Resistance? (PhD Thesis, Department of Anthropology, University of Western Australia, 2001), 6.16: Another Parliament House protest, August 3rd 2001.

1 beaches around the outskirts of the urban dwellings of Darwin.2 Some people living in the long grass had done so for most of their adult lives. In Darwin, people may describe themselves or be described as ‘long grassers’ or ‘itinerants’.3 In other locations around Australia, people are named variously as ‘itinerants’,4 ‘fringe dwellers’,5 ‘parkies’,6 ‘goomies’,7 and ‘drones’.8

On this evening in Darwin, dusk was settling in. We sat with Johnny Balaiya and Bob Bunba, discussing Johnny Balaiya’s court case. Johnny Balaiya was this author’s

2 See Paul Toohey, 'A different kind of sleeping sickness in the Top End', The Australian (Darwin), 29 April 1999, 13: ‘The long grassers are mostly homeless Aborigines who live on foreshore and park areas around town. They are homeless only in the sense that they do not have roofs over their heads. Many of them have lived outside for years and consider themselves residents of Darwin, not vagrants.’ See also W. Bartlett Day, 'A View From the Long Grass' (1999) 12(2) Parity 21: ‘But many caught up in the harassment of the homeless have lived in Darwin for most of their lives. They have established bushland camps in town after being evicted from state housing because their communal lifestyle does not suit a nuclear household.’ 3 Longgrass Association, 'Vision Statement 20th September' (2002). 4 Paul Memmott and Shaneen Fantin, '"The Long Grassers": A Strategic Report on Indigenous "Itinerants" in the Darwin and Palmerston Area' (Paul Memmott & Associates, 2001). 5 W. Bartlett Day, Aboriginal Fringe Dwellers in Darwin, Australia: Cultural Persistence or a Culture of Resistance? (PhD Thesis, Department of Anthropology, University of Western Australia, 2001). 6 Dillon and Savage, 'The Parkie Problem and some ideas for strategies: A discussion paper about displaced and other homeless Aboriginal and Torres Strait Islander people in Cairns' (1994). 7 Paul Memmott and Shaneen Fantin, '"The Long Grassers": A Strategic Report on Indigenous "Itinerants" in the Darwin and Palmerston Area' (Paul Memmott & Associates, 2001), 24: ‘Because of the difficulties in defining Indigenous homelessness, researchers studying so-called Aboriginal 'homeless' people also have difficulty in deciding on a term of collective address. For example, Dillon & Savage (1994:3) rejected the use of the terms 'homeless' and 'displaced' in Cairns as being not strictly accurate because a number of people saw themselves as being both 'placed' and 'homed' and preferred instead to use the colloquial term 'parkie'. Aboriginal people themselves employ such labels as 'parkies', 'goomies', 'long grassers, 'river campers', etc.’ 8 Anne Coleman, Five Star Motels: Spaces, Places and Homelessness in Fortitude Valley, Brisbane (PhD Thesis, School of Social Work and Social Policy, The University of Queensland, 2000), 117-118: ‘The core group of local, long-term homeless Murris was a group who identified as the Valley Drones. Varying explanations were given for this term during the fieldwork, but there was consensus that the Drones were park people who chose to live outside, relatively unfettered by responsibilities, and free to be themselves.’

2 client. Suddenly, through the haze, two trucks pulled up to the camp, unannounced. We all looked up with surprise. One truck carried several journalists from ABC TV. The other van was driven by a local welfare worker who knew Johnny Balaiya and Bob Bunba well. The welfare worker had been employed to conduct the census for the Australian Bureau of Statistics. Greetings took place, and Johnny and Bob were asked to tell their stories for the cameras: How old were they, with whom did they live, did they have children, and where did they live? Johnny and Bob answered, perhaps because they had to but also because this time they thought that their story might count. Others might listen and understand.

And then, too quickly, it was over. The questions were answered, the interview was filmed, and the trucks were gone. After all, they only needed a 5 second grab. Johnny Balaiya and Bob Bunba sat first in silence and then in growing anger. It was clear that their true story had not yet been told. No one had asked, listened nor understood, and the cameras were gone into the night. This thesis is inspired by the stories of people like Johnny Balaiya and Bob Bunba. Not the stories told to the cameras on census night in 2001, but the stories of defiance in the face of discrimination and harassment which they shared with us after the trucks and cameras had gone, and the dust had settled over the camp.

Johnny Balaiya and Bob Bunba were living their lives in public space. As a result, they were subjected to persistent criminalisation9 or forced eviction10 from their

9 In this thesis, the term ‘criminalisation’ is used to refer to the process whereby a person is formally charged with a criminal offence which prohibits conduct in which a person living in public space is disproportionately more like to engage by reason of living in public space. For a discussion of the meaning of criminalisation in this context, see National Law Center on Homelessness & Poverty and National Coalition for the Homeless, 'Illegal to be Homeless: The Criminalisation of Homelessness in the United States' (2002), 36-9. 10 In this thesis, the term ‘forced eviction’ is used to describe the process by which a public authority informally directs a person to move away from the place in which they are living, under threat of formal action being taken, in accordance with a legal regulation to remove them. It is also used to describe the process when a public authority formally issues a direction or order under a legal regulation for a person to move away from the place where that person is living. Non-compliance with the direction or order may then lead to criminalisation. Finally, the term ‘forced eviction’ may apply to

3 camps and resting places, sometimes on a daily basis, by a range of regulatory authorities, including the Darwin City Council (‘DCC’), the Northern Territory police, and other agencies, such as the night patrol services.11 People who lived in public space in and around the urban centre of Darwin were subjected to sustained enforcement of legal regulations that criminalise a range of human conduct which is either life-sustaining or would at least be lawful if conducted behind closed doors. One of the most significant legal regulations was Darwin City Council By-law 103 (‘DCC By-law 103’), which prohibits camping in a public place, or adults sleeping in a public place between sunset and sunrise, thereby proscribing even this most basic and essential human act during the night.12 DCC By-law 103 continues to operate today. a person being arrested and removed from the place in which they are living , under a legal regulation which directly or indirectly prevents the person from living in the place of their arrest. The term ‘forced eviction’ has also been defined in international legal terms under art 11(1) of the International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 999 UNTS 3 (entered into force 3 January 1973) (‘ICESCR’). According to United Nations Committee on Economic, Social and Cultural Rights, General Comment No 7: Forced Evictions, UN Doc E/1998/22 (1997), which elaborates on the prohibition against forced evictions under art 11(1) of the ICESCR, a forced eviction is ‘the permanent or temporary removal against their will of individuals, family and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection.’: at [3]. 11 Catherine A Holmes, 'Environmental Health for the Homeless? Creating Supportive Environments for Health and a Better Quality of Life' (2006) 6(2) Environmental Health 42, 46: ‘Many [people living in the long grass who participated in social research in 2006] reported that they had nowhere to go, particularly during the daylight hours, and were forced into a continual cycle of mobility around the local areas. Night time was spent hiding to avoid receiving a fine and/or being moved on.’ 12 See Marcia Langton, 'The Long Grass People of Darwin' (1998) 11(4) Parity 24; Mary-Lynn Griffith, 'By the By!' (1999) 24(5) Alternative Law Journal 245; John Hughes, 'Homelessness & Crime: Community housing issues and the criminal justice system' (Paper presented at the Garma Festival 2001, Yirrkala, Northern Territory, 2001); Darwin Community Legal Service, 'Annual Report 2001 - 2002' (2002), 33; Cassandra Goldie, 'Living in Public Space: a human rights wasteland?' (2002) 27(6) Alternative Law Journal 277; Longgrass Association, 'Longgrass Assocation (Darwin and Palmerston) Vision Statement' (2003) 1(1) Longgrass Magazine 1; See also W. Bartlett Day, 'A View From the Long Grass' (1999) 12(2) Parity 21: ‘The Mayor of Darwin recently announced that Aboriginal drifters and “white trash” would be harassed and driven from the city. Tourists like to see Aborigines but begging is getting worse’ he told the Northern Territory News on February 11, 1999. The mayor called for a revival of the harassment campaign, which began on Clean Up Australia Day in 1996 when the

This thesis is an exploration of the extent to which the treatment of people like Johnny Balaiya and Bob Bunba, who live in public space — particularly their criminalisation and forced eviction using legal regulations such as DCC By-law 103 — may be challenged using human rights strategies, with the human right to privacy, family and home as the specific example.

The thesis commences with this overview chapter, followed by two chapters which set the scene regarding the legal and human rights context in which people living in public space continue to be criminalised and forcibly evicted from their camps and sleeping places in Australian cities. Since the commencement of this thesis in 2002, there have been significant developments in relation to the legal regulation of public space around Australia. There have also been some changes to the human rights context in which that regulation occurs. Extensive legal research and advocacy activity has been associated with these developments, with a particular focus on the impact of public space laws on people who are homeless.

Chapter Two provides a description of recent legislative developments in public space laws. It undertakes a state by state and territory review of recent legislative enactments that have changed the kind of human conduct permitted or proscribed in public space, for example, by banning public drinking or begging or creating police move-on powers. The review demonstrates that increasing the legal regulation of human conduct in public areas remains a politically popular strategy. Governments and policy makers are keen to demonstrate a ‘tough on crime’, ‘zero tolerance’ approach to behaviour perceived to be anti-social or threatening of public order and safety. People living in public spaces continue to be threatened with a range of public space laws that affect their ability to meet their most basic needs.

The review in Chapter Two of recent changes to public space laws is followed by an audit of the human rights legal protections currently existing either in Australian

Darwin homeless were blamed for the city’s litter problems. Later the Chief Minister of the Northern Territory advocated that Aborigines creating a nuisance in public places should be monstered and stomped on by the community’ (NT News April 17, 1997).’

5 jurisdictions or at the international level. The audit examines human rights legal protections which a person or group in Australia might bring to bear on limiting the impact of public space laws on the people who live there. The audit explains that, whilst Australia is a party to most of the major international human rights treaties, the human rights provisions in these treaties have yet to be comprehensively incorporated into the Australia domestic legal system to provide effective legal remedies. There have been some limited advances in human rights protections in two jurisdictions — the Australian Capital Territory (‘ACT’) and Victoria — with some other jurisdictions indicating progress towards adopting state or territory-based or federal human rights laws. However, at the present time, Australia remains isolated amongst developed countries in lacking effective domestic remedies for violation of many basic human rights, including most of the rights set out in the International Covenant on Civil and Political Rights (‘ICCPR’)13 and the International Covenant on Economic, Social and Cultural Right (‘ICESCR’).14

In contrast to the domestic setting, a person or group in Australia has access to a wide range of international human rights mechanisms which can be used to draw attention to a violation by Australian governments. These international mechanisms include lodging shadow reports to one of the international human rights treaty body responsible for monitoring Australia’s compliance with its obligations under human rights treaties. An individual can also lodge a complaint under several of the international human rights treaties to which Australia is a party, alleging that one or more of their human rights under the treaty has been violated. Finally, a person or group in Australia can raise human rights concerns with the mandate-holders of ‘special procedures’ established by the United Nations human rights system, such as the UN Special Rapporteur on the Right to Adequate Housing. Examples of how each of these international human rights mechanisms has been used to highlight human rights violations by Australian governments in recent times are provided.

13 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). 14 International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 999 UNTS 3 (entered into force 3 January 1973).

6 Chapter Three then deals specifically with the various ways in which these human rights tools have been used in legal research, advocacy and litigation efforts at both domestic and international level to raise human rights-based concerns about the treatment of people living in public space. There has been a rapid expansion in the development of specialist legal services for people who are homeless, including people living in public space. There has also been extensive research and advocacy on these questions since the commencement of this thesis. The efforts to promote the human rights of people considered homeless, including people living in public space, appear to have had some limited impact on legislative, policy and procedural changes.

This Australian body of human rights discourse generated by academics, lawyers and advocates in response to continuing or increased criminalisation and forced eviction of people living in public space includes claims that this treatment violates a wide range of human rights norms protected under the ICCPR or ICESCR: the right to life; the right to freedom from torture and cruel, inhuman and degrading treatment or punishment; the right to liberty and security of the person; the right to freedom of movement; the right to a fair hearing, including the right to legal representation; the right to a presumption of innocence; the right to privacy, family and home; the right to peaceful assembly; the right to freedom of expression; the right to freedom of association; the right to equality before the law; the right to an adequate standard of living, including adequate housing; the right to health; the right to enjoy one’s culture; and the right to freedom from discrimination.

However, within this body of Australian discourse, there has been only limited detailed analysis to substantiate these claims. This is in part due to the paucity of domestic jurisprudence on the question and the limited international human rights jurisprudence which is directly on point. There is yet to be an individual determination under international law as to whether the criminalisation or forced eviction of people like Johnny Balaiya or Bob Bunba living in the long grass in Darwin, Northern Territory in 2001 violates any of these human rights. Chapters Two and Three therefore set out the broader legislative and jurisprudential context in which the specific case study of the treatment of people living in public space in Darwin in the Northern Territory is then explored.

7 Chapters Four and Five of the thesis proceed to set out the Darwin case study. Chapter Four draws together primary and secondary sources with respect to the people who live in public space in Darwin in the Northern Territory. The chapter examines available evidence on the number of people living in the long grass and their demographic profile, including gender, age, race, and origins. The evidence identifies Darwin as having the highest rate of homelessness of any capital city in Australia, as well as the highest rate of Indigenous homelessness proportionate to the total Indigenous population of any capital city. The majority of people living in the long grass are Indigenous and originate from other communities around the Top End of Australia.

Chapter Four also analyses available research regarding people’s reasons for living in Darwin in general and in the long grass in particular. The chapter proposes that Indigenous people living in the long grass come to Darwin for a wide range of legitimate reasons and many have remained in Darwin for lengthy periods of time. The long grass ‘lifestyle’ is linked to a range of structural factors, including lack of culturally appropriate low cost accommodation, discrimination in available housing options, poverty, physical and mental health concerns, and alcohol and substance abuse. A significant proportion of the population has lived in the long grass for lengthy periods of time. The evidence supports the documented voices of people living in the long grass who say that, for many people, this is a way of living which best accommodates Indigenous cultural imperatives in light of the other housing options available.

Chapter Five then documents the operation of the Darwin City Council Public Places Program which enforces DCC By-law 103 banning camping, or adults sleeping public places between sunset and sunrise. DCC By-law 103(1) is a regulatory offence with few defences. The by-law is regularly used to move on people living in public spaces, forcibly evicting them from their camping and resting places. Few people are formally warned or prosecuted for the offence. A primary impact of the enforcement practice is that people are woken up, spoken to, and displaced from camping and resting areas. Chapters Four and Five therefore provide a detailed evidentiary base regarding the criminalisation or forced eviction of people living in the long grass in Darwin, Northern Territory. This evidence is then applied to a human rights analysis.

As noted above, to date, Australian writers have variously identified a total of 15 human rights potentially engaged by the criminalisation or forced eviction of people living in public space under public space laws. Within the confines of the thesis, it is not possible to analyse whether the experiences of people living in the long grass in Darwin constitute a violation of each of these rights. As such, the thesis selects the human right to privacy, family and home for detailed examination. This human right has been chosen, in part, because it is possible to bring an individual complaint to the United Nations alleging a human rights violation under the ICCPR, but not under the ICESCR. Further, to date, this is the human right under the ICCPR which the UN Human Rights Committee (‘HRC’), the international human rights treaty body responsible for monitoring state party compliance of the ICCPR, has identified as engaged by the forced eviction of people living in public spaces.

Chapters Six and Seven of the thesis provide a detailed examination of the nature and content of the human right to privacy, family and home and an analysis of the extent to which the criminalisation or forced eviction of people living in the long grass in Darwin in the Northern Territory, described in Chapters Four and Five, may be found to be a violation of this human right. These chapters examine international and comparative jurisprudence and secondary sources relevant to the Darwin case study, including the international normative standards on the prohibition on forced evictions and a review of the extensive litigation associated with the criminalisation and forced eviction of Gypsies and Travellers in the United Kingdom, both before the courts in the UK and the European Court of Human Rights. The analysis concludes that there is merit to pursuing such a claim.

The thesis assesses that a claim reliant upon the right to privacy, family and home under the ICCPR may not lead to a finding that people living in the long grass have a unfettered substantive right to continue to live in public space or to be provided alternative appropriate accommodation, although such a finding is open. However, the jurisprudence suggests that there is significant merit to claiming, at least, that the current regulatory environment in Darwin in the Northern Territory fails to meet minimum procedural safeguards before an eviction occurs. Such a claim could lead to a more humane approach to evictions.

Accordingly, the thesis provides both a broad contextual analysis of current developments in Australia regarding the human rights of people living in public space as well as a specific analysis of the claim that the criminalisation or forced eviction of people living in the long grass in Darwin in the Northern Territory violates the human right to privacy, family and home. In this way, the thesis endeavours to move beyond an advocacy approach using human rights discourse to a detailed assessment of the legal merits of such a claim.

The thesis also opens up some other worthy fields of inquiry. In particular, the thesis questions the cultural bias evident in the current judicial approach to the interpretation of ‘home’, particularly in the context of art 8 of the European Convention on Human Rights,15 the corresponding provision to art 17 of the ICCPR. The current interpretative approach to the meaning of ‘home’ disproportionately denies human rights protection to minority groups who live relatively transient or nomadic lifestyles, and for whom a home is not inherently linked to a fixed physical location.

Whilst the thesis does not review the extensive literature associated with the nature and meaning of ‘public space’ or ‘home’ from either Indigenous or non-Indigenous perspectives, it provides indications of the kind of evidence to be adduced to demonstrate cultural norms that continue to be practiced by Indigenous people living in public space. It also argues that more culturally appropriate living areas and structures are required to better accommodate these cultural needs.

Further, whilst the thesis reviews some of the significant state and territory developments associated with the legal regulation of public space in Australia, the review is not comprehensive. For example, the thesis does not examine the fertile regulatory environment of the 673 local councils around Australia, nor does it examine changes that may have occurred in policies guiding the exercise of discretionary enforcement of public space laws. Such policies can significantly affect the impact of formal regulations on the lives of people living in public space.

15 European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221, ETS 5 (entered into force September 1953).

10 Nonetheless, this thesis aims to make a specific contribution to the growing body of Australian legal analysis regarding the legal and human rights of people living in public space.

The decision to commence this thesis was made on a Saturday afternoon in 2001, sitting in the office of Darwin Community Legal Service (DCLS) where this author worked as Coordinator and Principal Solicitor. I sat with Stella Simmering, a non- Indigenous community supporter of people living in the long grass. Stella Simmering’s relationship with DCLS began when she came to the DCLS office as a place of last resort trying to find help for Johnny Balaiya. Johnny Balaiya had been evicted from his camps in the long grass on three occasions in the space of two years. Bob Bunba shared his experiences.

Since being introduced to Johnny Balaiya, Bob Bunba and other people living in the long grass, I have been struck by their tenacity, dignity and resilience in the face of ongoing harassment and deprivation. This experience has deeply touched, angered and inspired me. Prior to that Saturday afternoon in 2001, I had been involved in a range of collaborations involving legal and non-legal strategies aimed at attempting to ameliorate the impact of the legal regulation of people living in public space in Darwin. In 2001, I sat in the office with Stella, writing on — and staring at — the whiteboard, reviewing our efforts to date. I felt fundamentally challenged as a lawyer and a person by the apparent futility of the law in delivering any semblance of justice for Johnny Balaiya and Bob Bunba, and the thousands of other people like them, in Darwin and around Australia. The next day, on Sunday, I wrote the proposal to do this thesis.

Do people living in public space have human rights? International human rights law pronounces that people have basic human rights that are to be protected, regardless of where a person lives. On December 1948, the General Assembly of the United Nations proclaimed the Universal Declaration of Human Rights.16 Together with the ICCPR and the ICESCR, these international instruments have come to be known as the ‘International Bill of Rights’. Australia is bound by each instrument and,

16 Universal Declaration of Human Rights, GA Res 217A(III), UN Doc A/810, 71 (1948).

11 according to international law, Australian governmental authorities are obligated to act in accordance with this bill of rights in their domestic law and policy.

Yet, on reviewing legal regulation in places such as Darwin in the Northern Territory, it would seem that, if you do not have access to private space, you can be prevented from sleeping, shouting, speaking (begging), eating, standing around, having sex, toileting, or leaving belongings. From the story in Darwin in the Northern Territory, it might be concluded that, if you do not have access to private space, you can be criminalised for engaging in just about any kind of human behaviour that government chooses to proscribe. At the present time, public space in Australia continues to be regulated on the basis that it is a ‘human rights wasteland.’17 After 60 years of human rights standard setting, over 30 years of Australian legal aid, more than 30 years of equal opportunity and anti-discrimination laws, and most recently the development of a national network of homelessness legal advocacy organisations, Australian governments continue to pass and enforce laws that ban essential human activities in public spaces, even though it is well known that significant homeless populations will be affected.

From my experiences with people who lived in the public spaces of Darwin in the Northern Territory, it was my opinion that the criminalisation and forced eviction of ‘homeless’ people for engaging in life-sustaining conduct such as sleeping is an offensive example of state-sanctioned human rights abuse in Australia today. The purpose of this thesis is to test out that proposition.

17 Cassandra Goldie, 'Living in Public Space: a human rights wasteland?' (2002) 27(6) Alternative Law Journal 277.

2 LEGAL REGULATION OF PUBLIC SPACE: THE LEGAL AND HUMAN RIGHTS CONTEXT

A Introduction

It’s hard to remember exactly when the rot set in, but the introduction of move on powers in 1998 seems a pretty good place to start.18

Legal regulations that criminalise or forcibly evict people from public spaces exist in every jurisdiction in Australia. Such regulations may involve restrictions on human activity that might be described as ‘life-sustaining’19 or committed by reason of the ‘status’20 of the person, such as bans on sleeping, eating, drinking, standing around or toileting. Darwin City Council By-law 103 (‘DCC By-law 103’) which prohibits camping, and adults sleeping in a public place between sunset and sunrise is an example. Laws prohibiting vagrancy21 and begging22 are others. Other legal regulations that can be used to criminalise or forcibly evict people from public spaces include ‘public order offences’23 which, whilst varying from state to territory in

18 Jane Sanders, 'Darkness at the Break of Noon: The Fall and Fall of the Public Domain' (2006) 19(1) Parity 64. 19 See, eg, National Law Center on Homelessness & Poverty and National Coalition for the Homeless, 'Illegal to be Homeless: The Criminalisation of Homelessness in the United States' (2002), 36. 20 See, eg, Maria Foscarinis, 'Downward Spiral: Homelessness and Its Criminalization' (1996) 14(1) Yale Law & Policy Review 1, 36-43. 21 Tamara Walsh, '"Waltzing Matilda" One Hundred Years Later: Interactions Between Homeless Persons and the Criminal Justice System in Queensland' (2003) 25 Sydney Law Review 75. 22 Tamara Walsh, 'Defending Begging Offenders' (2004) 4(1) Queensland University of Technology Law & Justice Journal 58. 23 According to the Australian Standard Offence Classification (ASOC) of the Australian Bureau of Statistics (ABS), which is used to report on crime and justice statistics, ‘public order offences’ include trespass, offensive language, offensive behaviour, criminal intent, conspiracy, disorderly conduct, betting and gambling offences, liquor and tobacco offences, censorship offences, prostitution offences and other offences. See Australian Bureau of Statistics, 'Australian Standard Offence Classification (ASOC) 1234.0' (1997) at 6 May 2007.

Australia, typically include offences such as offensive language and behaviour, public nuisance, and disorderly conduct.24 More recently, the enactment of ‘move on powers’ has become popular. Move on powers authorise police to issue enforceable directions to people to leave a designated area in certain circumstances for a specified period to time with a failure to comply triggering the right of arrest and a criminal charge.25 Legal regulations that proscribe human behaviour in public spaces are most typically enacted through state or territory legislation or as local council subordinate legislation or by-laws.

This chapter examines the legal and human rights context within which it remains lawful in Australia at the present time to introduce legal regulations, such as anti- sleeping by-laws or move on powers, which operate to criminalise or forcibly evict people who are living in public space.

The chapter commences with an overview of recent developments in the legal regulation of public space, on a state by state and territory basis. This review demonstrates that the national trend is towards increasing the legal regulations that empower public authorities to criminalise or forcibly evict public space users. The experiences of people such as Johnny Balaiya and Bob Bunba living in public space in Darwin in 2001 were not unique and continue to be replicated across the country to vary degrees.

Having demonstrated the currency of public space laws that either ban essential human conduct or empower authorities to move people from public areas, the chapter then turns to the question of the extent to which complaints mechanisms are available

24 See, eg, Tamara Walsh, 'Offensive language, offensive behaviour and public nuisance: Empirical and theoretical analyses' (2005) 24(1) University of Queensland Law Journal 123; See also Robert Jochelson, 'Aborigines and Public Order Legislation in New South Wales' (1997) (34) Crime and Justice Bulletin: Contemporary Issues in Crime and Justice 1; Brendan Thomas, Policing Public Order: Offensive Language & Behaviour, The Impact on Aboriginal People (1999) at 17 November 2003. 25 See Monica Taylor and Tamara Walsh, 'Nowhere to go: The impact of police move-on powers on homeless people in Queensland ' (2006), 26-35, for a summary of move on power legislation on a jurisdictional basis.

to challenge, on human rights grounds, the use of these laws to criminalise or forcibly evict people living in public space.

The chapter summarises the human rights standards by which Australia is bound under international law and the extent to which those human rights have been incorporated into Australian domestic law. This summary shows that under international law, Australia is bound by most of the major international human rights treaties within the UN human rights treaty system. However, the level of incorporation of international human rights standards into Australia’s domestic legal system is poor with few international human rights being directly justiciable before Australian domestic courts. The Australian Capital Territory (‘ACT’) and Victoria are the exceptions. As such, the ability to challenge the use of public space laws against people living in public space as a human rights violation is limited within the Australian domestic legal system.

The chapter then reviews the international human rights mechanisms that can be engaged to challenge domestic violations of human rights at the international level. A wide range of international complaints mechanisms exist and, with the exception of individual complaints procedures, these mechanisms have increasingly been used by Australians to complain about domestic human rights violations.

This chapter therefore sets out the various human rights ‘tools’ which may be used at either domestic or international level to challenge the criminalisation and forced evictions that continue to impact on people living in public space. It sets the scene for Chapter Three, which is a review of efforts by Australians to use these domestic and international human rights tools to challenge public space laws.

B Legal Regulation of Public Space: A Growing Urban Phenomenon?

Laws that can be used to criminalise and forcibly evict people living in public space have been in place in all Australia jurisdictions since colonisation, transferred across from Britain where they have existed in some form for centuries.

Vagrants, ‘vagabonds’, and ‘undesirables’ have been targeted by the law, both civil and criminal, since the dawn of the capitalist era. The Protestant work ethic, racism towards Aboriginal people, and paternalistic attitudes towards lone women and children, have meant that itinerant people in Australia have always been vulnerable to regulation by the State. …

‘Modern’ vagrancy law was established in 1824 in Britain to regulate the lives of the poor and homeless. The Vagrancy Act 1824 (UK), based on legislation that dates back to the 12th century, was aimed at removing ‘undesirables’ from public view. Such laws construed homelessness as a form of deliberate deviance and a reflection of idleness, and made it a criminal offence to engage in behaviours associated with extreme poverty. …

The values and attitudes upon which such laws were based were brought with the settlers to the Australian colonies. Charitable relief for the homeless, in the form of confinement in a ‘benevolent asylum’, was offered based on paternalistic and educative notions. ‘Vagrants’, once accepted socially as ‘tramps’ (travellers), were soon re-characterised as ‘parasites’ and ‘brutes’ and vagrancy laws were established in most states in response. Aboriginal people, who were generally without ‘conventional shelter’, were treated as perhaps the lowest form of ‘undesirable’. Their regulation under the ‘protection’ acts extended to restricting their access to townships, compelling them to live in reserves and separating family members from one another.

There is, therefore, a long legacy of legal invention in the lives of homeless and transient people in … Australia … (citations omitted).26

During the 1970s, there was a relatively short period in which some public space laws were repealed. For example, the Northern Territory repealed the offence of public drunkenness in 1974, replacing it with a police power to take people into ‘protective custody.’27 Similarly, New South Wales replaced the offence of public drunkenness under the Summary Offences Act 1970 (NSW) in 1979 with ‘welfare-based

26 Tamara Walsh, 'The overruled underclass: The impact of the law on Queensland's homeless people' (2005) 28(1) University of New South Wales Law Journal 122, 124-6. 27 Ronald Sackville, 'Homeless People and the Law' (Commission of Inquiry into Poverty, 1975), 23.

regulation’28 under the Intoxicated Persons Act 1979 (NSW). ‘[T]he movement to de- criminalize status offences such as drunkenness was based on the view that the criminal law was not an appropriate mechanism to address a social or health related problem. Indeed the use of the law in this way was seen as an affront to human rights values.’29 However, most public spaces laws have remained in place.

Numerous authors and inquiries have consistently pointed out the disproportionate impact that the policing of public space laws can have on people experiencing disadvantage particularly in the context of impacts on Indigenous peoples, young people and people with mental health issues. These impacts include over-policing, high incarceration rates, and increased deaths in custody. Eggleston wrote about the disproportionate impact of public space laws on Aborigines over 30 years ago30 and, in 1992, the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs affirmed the 1991 findings of the Royal Commission into Aboriginal Deaths in Custody:

It is worth repeating the comments of the Royal Commission into Aboriginal Deaths in Custody on this issue:

‘Non-Aboriginal Australian society has never been able to accommodate the essentially public nature of Aboriginal life nor the ways in which this renders much behaviour visible. The kinds of appropriate behaviour that belong to Aboriginal definitions of the use of public space are often precisely the kinds of behaviour that bring them into strife with police: socialising and drinking in the open, lingering outside shops, sitting on the ground in the street and fighting are all behaviours which, in conventional law, fall into the category of street order offences …. What policy action does in general do, however, is to apply punitive sanctions to the public nature of Aboriginal behaviour.

28 Tony Krone, 'Fairness and efficiency in summary prosecutions: the independent prosecutor’s dilemma in a ’law and order’ environment (PhD Thesis, University of New South Wales)' (2002), 153. 29 Ibid 153 (citations omitted). 30 Elizabeth Eggleston, Fear, Favour or Affection (1976), 13, where the author reports that in Western Australia ‘Aborigines were charged with 42 per cent of the offences against good order and whites with 58 per cent’ at a time when the Indigenous population of the State was 2.5%.

By doing so, it transforms what in Aboriginal terms is often legitimate public behaviour into non-legitimate and deviant behaviour. But here, as in other matters, the police officers are enforcing a law made by others.’

This imposition of behavioural norms and definition of the use of public space through legislation and enforcement is inappropriate and ineffective and leads to ‘absurdities and waste of police time and resources’. This is not to say that some street behaviour is not an important problem but that it requires a more considered and effective response.31

As Krone finds,

it is a notorious fact that Aboriginal and other minority groups are over represented in the statistics for prosecution of public order offences. …32

31 House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, 'Mainly urban: Report of the inquiry into the needs of urban dwelling Aboriginal and Torres Strait Islander people' (Australian Government Publishing Service, 1992), 29. See also Aboriginal and Torres Strait Islander Social Justice Commissioner, 'Aboriginal and Torres Strait Islander Social Justice Commissioner, Third Report, 1995' (Human Rights and Equal Opportunity Commission 1995): ‘Aboriginal and Torres Strait Islander children are disproportionately the subjects of police surveillance and public order offences because of their use of public space and their perceived propensity to commit crime’, citing Chris Cunneen and David McDonald, 'Indigenous Imprisonment in Australia: An Unresolved Human Rights Issue' (1997) 3(2) Australian Journal of Human Rights 90; See also Inquest into the death of Mulrunji (Coroner's Court, Palm Island & Townsville, Acting State Coroner Clements, 27 September 2006), 2-3 in which the Coroner questioned the decision of the police to arrest the deceased on a public order charge of public nuisance: ‘[C]learly the situation could easily have been addressed by means other than arrest. … It was completely unjustified to decide to arrest. … What is clear from the evidence is that Senior Sergeant Hurley felt the need to exert his authority…’ The Acting State Coroner adopted the recommendations of the Human Rights and Equal Opportunity Commission, including that the arrest of the deceased was not an appropriate exercise of police discretion, and that the Police Powers and Responsibilities Act 2000 (Qld) ‘should be amended to reflect the principal of arrest as a last resort’ in line with the recommendations of the Royal Commission into Aboriginal Deaths in Custody regarding public drunkenness and public order offences: at 28-9. 32 Tony Krone, 'Fairness and efficiency in summary prosecutions: the independent prosecutor’s dilemma in a ’law and order’ environment (PhD Thesis, University of New South Wales)' (2002), 103 (citations omitted).

There is a large body of work now available on the over-representation of Aboriginal people in crime statistics and, in particular, for public order offences.33

For example, in a recent Queensland study, 41% of persons charged with public space offences in the Brisbane Magistrates Court were Indigenous.34 Public space laws, including public order offences such as public drinking, offensive language and disorderly conduct offences, and the exercise of police discretion, have been the subject of persistent criticism as a trigger for the disproportionate criminalisation of Indigenous peoples and other minority groups, and their over-representation in the criminal justice system.35

Krone argued in 2002 that ‘[o]fficial attitudes to the extensive use of vagrancy, drunkenness and prostitution offences, have, on the whole, shifted considerably towards decriminalisation and a realisation of the inappropriateness of using the criminal law to control such social problems.’36 However, he proceeds to note that, in New South Wales, for example,

the overall response to the decriminalisation of drunkenness has been to re- criminalize minor offending associated with the maintenance of ‘order’ and the implementation of non-criminal policing strategies of control and surveillance. The repertoire of police powers has in this way been expanded by the inclusion of non- offence regulatory powers to detain and remove people from the streets, whilst

33 Ibid 104. 34 Tamara Walsh, 'Won't pay or can't pay? Exploring the use of fines as a sentencing alternative for public nuisance type offences in Queensland' (2005) 17(2) Current Issues in Criminal Justice 217, 223. 35 See, eg, Tamara Walsh, 'From Park Bench to Court Bench: Developing a response to breaches of public space law by marginalised people' (Faculty of Law, University of Queensland, 2004), esp 33. See also ibid, 218-9: ‘Laws which regulate public space have a disproportionate impact on the lives of those who are marginalised. It has been consistently reported that certain population groups (such as Indigenous people, people who are poor and/or homeless, young people and people with mental illness) are more likely to appear in court for public space offences (citations omitted).’ 36 Tony Krone, 'Fairness and efficiency in summary prosecutions: the independent prosecutor’s dilemma in a ’law and order’ environment (PhD Thesis, University of New South Wales)' (2002), 145 (citation omitted).

leaving it open to the police to arrest and subsequently charge particular individuals for minor public order offences or simply for non-cooperation with move-on and other regulatory powers (emphasis added).37

Since the late 1990s, there has been a marked increase in the enactment of legal regulations that can be used to criminalise or forcibly evict people from public space, including public order offences, curfews and police move-on powers.38 This increase in the enactment of legal regulations to proscribe human behaviour in public space is at least in part attributable to popularisation of the ‘broken windows’ theory regarding crime prevention, which is typically implemented as ‘zero tolerance’, ‘law and order’ or ‘tough on crime’ policing.39

The ‘broken window’ theory proposes that there is a direct link between the incidence of petty crime or street disorder and serious offending, and that a strict policing of ‘street disorder’ offences has a flow-on effect in reducing crime more generally.40

37 Ibid 154. 38 Chris Cunneen, 'Policing public order and public places' (2006) 88 Reform Issues 42, 43-4: ‘What has been interesting over recent years are the changes in legislation that have facilitated more interventionist approaches to the more mundane activities (particularly young people) in public places. These have included laws allowing police to search and move-on individuals, as well as more punitive approaches to bail and sentencing which, effectively, enforce curfews and restrict movement and association. … There has been a move to a much tougher stance on public disorder and part of this has been through legislative changes that have increased police powers in the public realm, as well as calls for ‘technical’ solutions to public disorder, such as the use of a water cannon.’ 39 See P N Grabosky, 'Zero Tolerance Policing' (102, Australian Institute of Criminoloby 1999), 1: ‘The idea of zero tolerance policing is based on ideas developed by two criminologists in the United States, James Q. Wilson and George Kelling who, in 1982, published a seminal article entitled “Broken Windows” in the Atlantic Monthly magazine (Wilson & Kelling 1982). They argued that an ambience of unrestrained petty crime creates the impression that “no one is in control” and that more serious crime can be committed with impunity. In other words, unchecked disorder and incivility in a given locality send an implicit invitation to more predatory criminals.’ 40 See Hope Cormon and Naci Mocan, 'Carrots, Sticks and Broken Windows' (2005) 48 Journal of Law and Economics 235, 239, where the authors describe the interpretation of the ‘broken windows’ theory by former New York Mayer, Rudolph Giuliani and Police Commissioner William Bratton: ‘[I]n his account of the implementation of the broken windows policing, Bratton wrote that following the increase in arrests for misdemeanour offences such as disorderly conduct, public drunkenness, and

‘The term “street disorder” refers to such phenomena as the importuning of beggars, the rowdiness of teenage gangs, people sleeping on benches and urinating in parks, walls sprayed with graffiti and aggressive public drunkenness.’41 The theory was first published in 1982 by Wilson and Kelling,42 inspired by ‘The Death and Life of Great American Cities’ (1961):

The bedrock attribute of a successful city district is that a person must feel personally safe and secure on the street among all these strangers. He must not feel automatically menaced by them. A city district that fails in this respect also does badly in other ways and lays up for itself and for its city at large, mountain on mountain of trouble.43

The term ‘broken windows’ was used by way of the following analogy:

If one broken window is not repaired in a building, then others will be broken and the building vandalized, following by other buildings, then the street, the neighbourhood, and so on. An unrepaired window is a sign that no-one cares and therefore more damage will occur. Similarly, according to Wilson and Kelling, if disorderly behaviour is not dealt with in a particular area, then more serious crime will be the result. Small ‘incivilities’ such as public drunkenness, vandalism, begging and so forth create an atmosphere where more serious crime can flourish.44

damaging property, “the word would get out” regarding the increased police vigilance to change the behaviour of individuals. Similarly, Bratton wrote that crime and disorder in New York subways went down following a significant increase in the arrests of fare beaters. He indicated that “crime, disorder and fare evasion began to go down … all from arresting people for a buck-fifteen crime. We were proving the Broken Windows theory.” (citations omitted).’ 41 Arthur Schafer, 'Down and Out in Winnipeg and Toronto: The Ethics of Legislating Against Panhandling' (Caledon Institute of Social Policy, 1998), 5. 42 George Kelling and James Wilson, 'Broken Windows' (1982) March Atlantic Monthly . 43 Jane Jacobs, The Death and Life of Great American Cities (1961), 30, cited in Arthur Schafer, 'Down and Out in Winnipeg and Toronto: The Ethics of Legislating Against Panhandling' (Caledon Institute of Social Policy, 1998), 5. 44 Chris Cunneen, 'Zero Tolerance Policing: Implications for Indigenous People ' (Aboriginal and Torres Strait Islander Commission, 1999).

The broken windows approach to policing became internationally renowned because of its reputed success in lowering crime rates in New York City in the 1990s.45

Shane Stone, the Chief Minister of the Northern Territory from 1995 to 1999, was a vocal Australian proponent of zero tolerance policing, based upon this crime prevention theory. In 1997, Stone famously called for ‘itinerants’, like Johnny Balaiya and Bob Bunba, to be ‘monstered and stomped on by the community’46 in order to drive them out of Darwin. In 1998, he led a delegation to New York to investigate the merits of introducing zero tolerance policing into the Northern Territory, returning to announce that it would indeed be introduced.47 Stone argued that ‘cracking down on minor offences in a bid to reduce major crime ha[d] application even if it mean[t] driving itinerants out of the Territory.’48 The strategy

45 See David Dixon, 'Beyond Zero Tolerance' (Paper presented at the 'Mapping the Boundaries of Australia's Criminal Justice System' 3rd National Outlook Symposium on Crime in Australia, Canberra 22-23 March 1999). See also Chris Cunneen, 'Zero Tolerance Policing and the Experience of New York City' (1999) 10(3) Current Issues in Criminal Justice 299. 46 See Editorial, 'Drunks and politics', Northern Territory News (Darwin), 15 April 1997, : ‘Chief Minister Shane Stone is fed up and he let fly with a blistering attack on Aboriginal drunks last week. He said Aboriginal drunks deserved to be "monstered and stomped on by the community"... Mr Stone's choice of words was unfortunate. Such comments will do nothing to improve the worsening problem of drunken itinerants.’ See also W. Bartlett Day, 'A View From the Long Grass' (1999) 12(2) Parity 21: ‘The Mayor of Darwin recently announced that Aboriginal drifters and 'white trash' would be harassed and driven from the city. Tourists like to see Aborigines but begging is getting worse' he told the Northern Territory News on February 11, 1999. The mayor called for a revival of the harassment campaign which began on Clean Up Australia Day in 1996 when the Darwin homeless were blamed for the city's litter problems. Later the Chief Minister of the Northern Territory advocated that Aborigines creating a nuisance in public places should be monstered and stomped on by the community' (NT News April 17, 1997).’ 47 Aboriginal & Torres Strait Islander Commission, Zero Tolerance Policing: Law and Justice (2003) Aboriginal & Torres Strait Islander Commission at 17 November 2003. 48 Maria Ceresa, 'Long grassers feel the hand of Stone', The Weekend Australian 30 - 31 May 1998, 6.

was to involve increased enforcement of public order offences under the previous Summary Offences Act 1923 (NT).49

Ten years later, it would now be hard to say which Australian political party is leading the way in the ‘law and order’ stakes, particularly when it comes to proposals for regulating human activities in public places and ‘cracking down’ on perceived trouble-makers in public areas. Since the late 1990s, new laws have been passed or proposed in most Australian state and territory jurisdictions in order to increase police powers to restrict people’s activities in public. The people who are the target of these reforms have been variously described as ‘street drinkers’,50 ‘out of control youth’,51 ‘massive crowds’,52 ‘thugs’, ‘louts’, ‘hooligans’,53 ‘hotheads’,54 ‘urban terrorists’,55 ‘gangs’,56 ‘itinerants’,57 ‘cowards’ and ‘grubs’.58

49 Northern Territory, Parliamentary Debates, Legislative Assemby, 18 August 1998: Chief Minister, Shane Stone: ‘I propose to introduce zero tolerance policing on a formal basis in the Territory. I can reveal that the Commissioner of Police, Fire and Emergency Services, Brian Bates APM, and his senior officers have already been trialling elements of the strategy in Darwin, Tennant Creek, Alice Springs and Katherine with great effect. I say 'elements of the strategy' because, as I indicated at the outset, it does involve an integrated approach across government, and the Commissioner of Police has only had the opportunity to deal with those matters relating to policing. I further advise that I propose a review of police powers to ensure that Territory police have means to deal with aberrant and antisocial behaviour. I do not propose to recriminalise public drunkenness at this stage, although I leave that option open. I want to make it very clear that government has not ruled out that option. If other strategies do not work we will revisit this particular area. Rather, I propose to seek a stricter enforcement of the Summary Offences Act provisions. 50 ABC News Online, Police defend move on powers, 25 May 2005, at 26 January 2006. 51 The Australian Online, Police to be given ‘move on’ powers, 22 January 2006 < http://www.theaustralian.news.com.au/common/story_page/0,5744,17901618%255E1702,00.html >, at 26 January 2006: ‘"Move-on" powers have been proposed for all public spaces in Queensland to help police break up out-of-control youth gatherings in parks and streets. Police Minister Judy Spence today said introducing the powers would enable police to quickly scatter massive crowds in a bid to stamp out alcohol-fuelled violence.’ 52 Ibid: ‘"Move-on" powers have been proposed for all public spaces in Queensland to help police break up out-of-control youth gatherings in parks and streets. Police Minister Judy Spence today said introducing the powers would enable police to quickly scatter massive crowds in a bid to stamp out alcohol-fuelled violence.’

The following is an overview of some recent legislative developments.

1 Northern Territory In the lead up to the 2001 Northern Territory election, the then new Chief Minister and Attorney General Denis Burke oversaw passage of the Public Order and Anti- Social Conduct Act 2001 (NT), designed to ‘deal with … drunken itinerants’59 and

53 ABC New Online, NSW Lower House passes police powers bill, 15 December 2005: ‘Premier Morris Iemma says the powers will give police certainty for making difficult decisions in touch circumstances. “Ideally these new laws will not need to be used often – it would be great if they were never used at all,” he said. “But as long as these thugs, these hooligans, these hotheads, and these criminals disrespect the law, these powers will be used to the fullest extent.” 54 Ibid. 55 Ibid: ‘But NSW Opposition Leader Peter Debnam told Parliament he did not believe the bill was tough enough. “What we’ve seen in the last 72 hours are more urban terrorists terrorising the community – this bill is inadequate,” he said.’ 56 Liberal Party South Australia, Atkinson Wrong on Loitering Laws (2005) Liberal Party South Australia at 27 January, 2006. 57 Ashleigh Wilson, 'Labor to lock up habitual drunks', The Australian 2 June 2005, 6: 'Labor has moved to crack down on Aboriginal itinerants in the Northern Territory, with an extraordinary election pitch by Chief Minister Clare Martin yesterday to jail "habitual drunks" who refuse treatment. In a sign of a territory election dominated by race issues, Ms Martin said a re-elected Labor Government would introduce an anti-social behaviour act to deal with a "problem of considerable concern to our community". "No one likes being hum-bugged by drunks in our streets," she said. "If you are established as a habitual drunk, you will either have treatment or you'll face jail." ..."These people are habitual drunks who are a danger to themselves, their families and the community," Ms Martin said. The harsh measures have been designed to appeal to the growing number of voters in Darwin and other major centres concerned about the presence of drunk Aboriginal itinerants on the streets. Police Minister Paul Henderson said there were between 100 and 200 people in the territory who could be described as habitual drunks.' 58 Jonathan Harley, Cronulla: Six Weeks On (2006) 7.30 Report, Australian Broadcasting Commission at 26 January 2006, quoting the NSW Premier, Morris Iemma: ‘An innocent man going about his business is set upon by a significant number of what I would call cowards and grubs who start punching, kneeing and kicking them.’ 59 See Camden Smith and Melanie Van Helvoort, 'Laws to target drunks, youth', Northern Territory News (Darwin), 4 June 2001, 1: ‘Mr Burke said: "The bill is really a matter of police knowing clearly what their powers are on activities that are not necessarily illegal, but anti-social and distasteful and

‘long grassers’.60 Section 5 of the Act created a power exercisable by the police to issue a direction to leave a public place for up to 72 hours against a person whose behaviour ‘causes apprehension, harassment, alarm or distress to a reasonable person entering, at or leaving the place’,61 failure to comply without reasonable excuse amounting to an offence. Shortly after its surprise win in the 2001 election, the Martin Labor Government repealed the Public Order and Anti-Social Conduct Act 2001 (NT) as well as the much-maligned mandatory sentencing regime,62 both of which had been central planks of the CLP Government’s law and order, ‘tough on crime’ criminal justice policy platform.

However, just four years later in the lead up to the 2005 election, the Martin Labor Government itself campaigned heavily on a tough law and order platform with both parties flagging ‘law and order and tough new policies on anti-social behaviour as the number one priority’.63 The Opposition Country Liberal Party expressly campaigned

force law-abiding citizens to leave the area. I'm talking about drunken itinerants creating problems in public areas, taking over public areas, taking over parks so children feel unsafe there. Police need powers to deal with them and I don't believe they have sufficient powers at the moment to deal with them and that's what the legislation is designed to achieve." See also John Sheldon, 'NT Update: Public Order and Anti-Social Conduct Act (NT)' (2001) September RIGHTS NOW 9. 60 Aboriginal and Torres Strait Islander Social Justice Commissioner Dr William Jonas AM, 'Evolving law and order policy - A rights perspective' (Paper presented at the ATSIC Forum The Royal Commission into Aboriginal Deaths in Custody — Unfinished Business, 2 November 2001). 61 Public Order and Anti-Social Conduct Act 2001 (NT) , s 5. 62 For background to the mandatory sentencing regime in the Northern Territory from a human rights perspective, see Chris Cunneen, 'Mandatory Sentencing and Human Rights ' (2002) 13(3) Current Issues in Criminal Justice 324; Diana Henriss-Anderssen, 'Mandatory sentencing : the failure of the Australian legal system to protect the human rights of Australians' (2000) 7 James Cook University Law Review 235; Martin Flynn, 'Mandatory sentencing, international law and the Howard/Burke deal' (2000) 4(30) Indigenous Law Bulletin 7; Russell Goldflam, 'Mandatory sentencing and the concentration of powers' (1999) 24(5) Alternative Law Journal 211; Richard Coates, Inquiry into Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999: Submission by the Northern Territory Legal Aid Commission (1999) Northern Territory Legal Aid Commission at 11 May 2007. 63 ABC News, Counting begins in NT Election (2005) Australian Broadcasting Commission at 26 August 2007.

on a zero tolerance policy regarding anti-social behaviour.64 Upon re-election, the Martin Labor Government introduced its own version of anti-social behaviour legislation. The legislative package, announced by the NT Minister for Justice as ‘tough anti-social behaviour laws’,65 established a new alcohol court for people whose offending behaviour is considered to be associated with alcohol abuse. The court was granted the power to place certain people into compulsory alcohol rehabilitation, including a ban on drinking alcohol. It was argued that these laws would effectively re-introduce public drinking as an offence for people subject to these orders, with a penalty of imprisonment of up to 14 days.66 The legislation also enables ‘interested persons’ including the police to make an application to have private premises ‘open to and used by the public’67 declared ‘restricted premises’.68 It is then an offence for a person to bring liquor onto the premises, to have alcohol in their possession or consume it, although this does not apply to ‘a person who is passing through an area of restricted premises, open to and used by the public, in possession of an unopened container of liquor intended for consumption elsewhere.’69 It was argued that this legislation would enable the increased criminalisation of public drinking in many important gathering places around urban centres which are privatised public spaces.70

64 ABC Online, Northern Territory CLP leader advocates 'zero tolerance' policy (2005) Australian Broadcasting Commission at 9 September 2007. 65 Northern Territory Minister for Justice, Peter Toyne, 'Parliament Passes Tough Anti-Social Behaviour Laws (Press Release, 21 February 2006). 66 See Chris Howse, 'Racism, Vagrancy and New Laws in the Northern Territory' (2006) 19(1) Parity 64. 67 Anti-social Behaviour (Miscellaneous Amendments) Act 2006 (NT), s6, inserting s 101C(2) into the Liquor Act 1978 (NT). 68 Anti-social Behaviour (Miscellaneous Amendments) Act 2006 (NT), s6 inserting s 101C into the Liquor Act 1978 (NT). 69 Liquor Act 1978 (NT), s 101L(3) inserted by s 6 of the Anti-social Behaviour (Miscellaneous Amendments) Act 2006 (NT). 70 Chris Howse, 'Racism, Vagrancy and New Laws in the Northern Territory' (2006) 19(1) Parity 64.

In 2006, the Martin Labor Government also introduced new loitering and consorting laws as part of a ‘crack down’ on ‘gang violence’ in Aboriginal communities.71 The legislation, the Justice Legislation Amendment (Group Criminal Activities) Act 2006 (NT),72 is based on a zero tolerance approach to crime prevention:

This bill also recognises that low level offending can escalate into more serious criminal behaviour, behaviour that can be stopped if preventative interventions are undertaken early in the offending cycle.73

It creates, inter alia, a new police power under the Summary Offences Act 2001 (NT) to issue a written notice to a person loitering in a public place whom the police reasonably suspects of having committed, or is about to commit an offence in the area, not to return to that place for 72 hours, breach of which is a criminal offence subject to a fine or imprisonment for up to six months.74 The legislation is similar to, if not as broad in application as, the former Public Order and Anti-Social Conduct Act 2001 (NT) which the Martin Government had repealed just five years previously.

In 2007, the Northern Territory Police introduced a new ‘Social Order Crime Reduction Strategy’.75 The Strategy includes a directive for officers to ‘move people on more regularly in an attempt to avoid situations escalating into violence or anti- social behaviour.’76 The Northern Territory’s Police Minister was ‘making no apologies for a tough new approach to anti-social behaviour.’77 This strategy appears

71 Anne Barker, NT Announces Crack Down on Gang Violence (2006) Australian Broadcast Commission at 13 October 2007. 72 Assented to on 3 November 2006, commencing on 12 December 2006. 73 Northern Territory Government, Parliamentary Debates, Legislative Assembly, 24 August 2006 (Dr Toyne, Attorney General). 74 Summary Offences Act 2001 (NT), s 47B, inserted by s 22 of the Justice Legislation Amendment (Group Criminal Activities) Act 2006 (NT). 75 Northern Territory Police, Fire and Emergency Services, 'Strategy roll out - Social Order' (Press Release, 26 April 2007). 76 ABC News Online, Indigenous advocate criticises move-on powers (2007) Australian Broadcasting Commission at 11 May 2007 77 ABC News Online, Tough stance on anti-social behaviour defended (2007) Australian Broadcasting Commission at 11 May 2007.

to have been re-named or at least been complemented by a further initiative, ‘Operation CitySafe’ that involves an increased police presence in town centres, particularly Darwin and Alice Springs.78

Darwin City Council (‘DCC’) has in place a number of public spaces laws, including DCC By-law 103, the law which is the specific case study of this thesis. The DCC has prohibited camping or sleeping in public space in some manner since the 1950s. However, in 1996, the DCC significantly upgraded enforcement by establishing its Public Places Program, which involves early morning and evening patrols of public areas by council officers to move on and fine people for breaches of the by-laws.79 Most recently, on 28 January 2008, the Northern Territory News reported that the DCC is now considering a proposal to employ eight new ‘public space officers’ who would be empowered to fine people for violating the ‘2 km rule’.80 The 2 km rule prohibits public drinking within 2 km of licensed premises, effectively banning public drinking in most of the Darwin urban area. Penalty for breach is currently seizure of the alcohol by the Northern Territory Police. 81

2 Western Australia In April 2003, the Gallop Labor Government announced the introduction of a Youth Curfew in the inner-city precinct of Northbridge without notice or consultation. Using existing powers under the Child Welfare Act 1947 (WA),82 the government authorised police officers to remove any young person under the age of 16 found in the area after 10pm if unaccompanied by their parent or guardian.83 The curfew was introduced in response to growing concerns about young people, particularly

78 ABC Online, Police to maintain Operation CitySafe (2007) Australian Broadcasting Commission at 9 September 2007. 79 See Chapter Five. 80 Ben Langford, Call for grog cops (2008) Northern Territory News at 28 January 2008. 81 Summary Offences Act 2001 (NT), s 45D. 82 The Act has now been repealed, and replaced with the Children and Community Services Act 2004 (WA). 83 Moira Raynor, 'Northbridge Curfew' (2003) 5(27) Indigenous Law Bulletin 9.

Indigenous youth, found in the area. The government argued that the move was to protect the safety of the young people concerned as well as to allay concerns of local businesses.84

On 1 June 2005, the government introduced a general move on power under s 50 of the Police Act 1892 (WA),85 empowering the police to order a person to leave a public place for up to 24 hours if the police officer reasonably suspected, inter alia, that the person was about to do an act which was ‘likely to cause a person to fear violence will be used by a person against another person’.86 Failure to comply without reasonable excuse renders the person liable to a penalty of up to 12 months in jail or a fine of $12 000.87 The WA Attorney General down played the amendment, stating that it would only provide procedural improvements on the repealed loitering provisions.88 The stated purpose of the move on power was to promote ‘community safety, safer nightspots and the targeting of hot spots …’89 The WA Police said the new powers

84 Office of Crime Prevention, 'State Government Northbridge Strategy: Report on the Young People in Northbridge Policy; The Policy Three Years On - 2003-2006' (Western Australian Police, 2006). 85 Criminal Law Amendment (Simple Offence) Act 2004 (WA), s 52 inserting s 50 into the Police Act 1892 (WA). 86 Police Act 1892 (WA), ss 50(1)(b)(iii) and 50(2)(b). 87 Police Act 1892 (WA), s 50(6). 88 The Hon Jim McGinty MLA Attorney General, Legislative Assembly, Second Reading Speech, 23 September 2004, 6531b-6535a/1: ‘Secondly, the Bill abolishes section 43 of the Police Act 1892, which prescribes offences of “loitering”, “evil designs”, “being suspected of having committed an offence” and “being suspected of being about to commit an offence”, and replaces them with a “move on” power. … This power creates an extra step in the process when police reasonably believe a person is behaving suspiciously. In a nutshell, police will ask that person, in writing, to move on, and only if the person fails to obey this order will the person then be charged with a substantive offence. As the law currently stands, there is no intermediate step; a person can be charged instantly. The Western Australia Police Service has indicated that an offence of this nature will allow it to adequately deal with loitering and suspicious behaviour, and inhibit lawful activities, such as peeping toms, and persons seemingly lying in wait to commit a burglary but not having yet committed the substantive offence. It is also noteworthy that a similar “move on” power exists in the Prostitution Act 2000, and, according to the Western Australia Police Service, has been extremely effective in curbing illegal behaviour of that nature.’ 89 Minister for Police & Emergency Services Michele Roberts, Legislative Assembly, Questions without Notice, 21 June 2005, 3081c – 3082a/1.

would ‘enable them to further tackle street drinking and other forms of antisocial behaviour.’90

The greatest benefit for us is especially when you get groups of people sitting around the streets drinking, if we don't actually see them physically drink there's very little that we can do until now.91

In 2006, s 50 of the Police Act 1892 (WA) was moved into a new Criminal Investigation Act 2006 (WA) following a review of the proposed new Act by the Western Australian Legislative Council Standing Committee on Legislation.92 The Aboriginal Legal Service of Western Australia (‘ALSWA’) urged that the move on power be repealed due to the disproportionate impact on Aboriginal people using public space, people who were homeless and those experiencing mental health issues.93 However, the Committee recommended the power be retained. The re- enacted move on power in s 27 of the new Act has been slightly modified. Section 27 now requires that the length of the move on order issued by the police must be for a ‘reasonable’94 period, responding to ALSWA’s concerns that, in virtually all cases reported to it, the move on notices were being issued for the maximum period of 24 hours.95 Secondly, s 27 of the Criminal Investigation Act 2006 (WA) now provides that, when issuing an order, the police officer must ‘take into account the likely effect of the order on the person, including but not limited to the effect on the person’s access to the place where he or she usually resides, shops and works, and to transport,

90 ABC News Online, Police defend move on powers, 25 May 2005, at 26 January 2006. 91 Ibid. 92 Standing Committee on Legislation, 'Report 4: Criminal Investigation Bill 2005, Criminal Investigation (Consequential Provisions) Bill 2005 and Criminal and Found Property Disposal Bill 2005' (Western Australian Legislative Council 2006). 93 Aboriginal Legal Service of Western Australia, Submission to Inquiry into the Criminal Investigation Bill 2005, 27 July 2006. 94 Criminal Investigation Act 2006 (WA) , s 2 (b). 95 Aboriginal Legal Service of Western Australia, Submission to Inquiry into the Criminal Investigation Bill 2005, 27 July 2006.

health, education or other essential services.’96 This amendment also appears aimed at addressing concerns raised by the ALSWA case studies presented to the Committee which showed occasions when move on notices had prevented people from getting to their homes, schools or other essential services.97

3 Queensland On 25 November 2003, the Queensland Government introduced amendments to the Vagrants, Gaming and Other Offences Act 1931 (Qld)98 through the enactment of the Police Powers and Responsibilities and Other Legislation Amendment Act 2003 (Qld). The amendments retained a range of law and order offences regarding behaviour in public space and arguably widened the kinds of behaviours that might infringe the legislation including criminalising behaviour which ‘interferes, or is likely to interfere, with the peaceful passage through, or enjoyment of a public place by a member of the public’.99 In 2004, a new ‘public nuisance’ offence was introduced by the Police Powers and Responsibilities and Other Legislation Amendment Act 2004 (Qld). In March 2005, the Vagrancy, Gaming and Other Offences Act 1931 (Qld) was repealed and replaced by the Summary Offences Act 2005 (Qld). These reforms abolished the vagrancy offence but retained other public space laws including begging (previously categorised as a form of ‘vagrancy’)100 and public drunkenness.101 The penalty for begging was increased.102 The new ‘public nuisance’ offence was to be the subject of review after 1 October 2005 by the

96 Criminal Investigation Act 2006 (WA) , s 27(3). 97 Aboriginal Legal Service of Western Australia, Submission to Inquiry into the Criminal Investigation Bill 2005, 27 July 2006. 98 Vagrants, Gaming and Other Offences Act 1931 (Qld), s 7AA(2)(b). 99 For a discussion of these reforms, see Tamara Walsh, 'Who is the 'Public' in Public Space? A Queensland Perspective on Poverty, Homelessness and Vagrancy' (2004) 29(2) Alternative Law Journal 81, 82: ‘...the Queensland Government is committed to a law and order response to the regulation of public space…’. 100 Summary Offences Act 2005 (Qld) , s 8. 101 Summary Offences Act 2005 (Qld) , s 10. 102 See Tamara Walsh, 'From Park Bench to Court Bench: Update January 2006' (2006).

Queensland Crime and Misconduct in Commission.103 Submissions to that inquiry argued that research has indicated that the new ‘public nuisance’ offence was being used as a ‘catch all’ charge in the policing of public space,104 with the Aboriginal and Torres Strait Islander Legal Services (Queensland South) reporting over 100% increase in request for legal help with ‘disorderly/public nuisance’ criminal charges between 2003/4 and 2005/6.105 The Commission has yet to publish its review finding.

Following these reforms, in June 2006, the Queensland Government introduced state- wide move on powers.106 The legislation built on the pre-existing provisions under ss 36 - 41 of the Police Powers and Responsibilities Act 2000 (Qld) that enabled police to use move on powers in specified areas such as shops, ATMs and schools, as well as areas approved, upon application, by the Queensland Governor on the advice of the Police Minister. Now operating on a state-wide basis, police can use the move on powers under ss 46 and 47 of the Act to order a person to leave the area for up to 24 hours if their behaviour or presence causes, inter alia, anxiety to another person in the place, ‘reasonably arising in all the circumstances’.107 Section 48 then vests the police with a general power to issue directions to any person that are ‘reasonable in the circumstances.’108 The move on powers are subject to only limited exceptions,

103 Summary Offences Act 2005 (Qld) , s 6. 104 Queensland Public Interest Law Clearing House Homeless Persons' Legal Clinic, 'Submission to Crime & Misconduct Commission regarding Offence of Public Nuisance: How is the new public nuisance offence provision being enforced and what is its impact on the Queensland public? ' (2006), 12. 105 Aboriginal and Torres Strait Islander Legal Services (Queensland South), 'Submission to the CMC Review of Public Nuisance ' (2006), 2. 106 See Sunday Times, Police to be given 'move-on' powers (2006) Sunday Times at 27 January 2006: ‘"Move-on" powers have been proposed for all public spaces in Queensland to help police break up out-of-control youth gatherings in parks and streets. Police Minister Judy Spence today said introducing the powers would enable police to quickly scatter massive crowds in a bid to stamp out alcohol-fuelled violence.’ See also Monica Taylor and Tamara Walsh, 'Nowhere to go: The impact of police move-on powers on homeless people in Queensland ' (2006), 8. 107 Police Powers and Responsibilities Act 2000 (Qld), ss 46(1)(a) and 47(1)(a). 108 Police Powers and Responsibilities Act 2000 (Qld), s 48(1): ‘A police officer may give to a person or group of persons doing a relevant act any direction that is reasonable in the circumstances.’

including a prohibition on infringing a person’s right to peaceful assembly unless it is reasonably necessary in the interests of public safety, public order or the rights and freedoms of other people.109 The rights and freedoms of other people are defined to include the ‘rights and freedoms to enjoy a place’ and ‘the rights of persons to carry on lawful business in or in association with the place’.110

4 New South Wales In the lead up to the 2000 Olympics, on 1 July 1998, the New South Wales Carr Labor Government re-criminalised begging in all public areas under the control of the Sydney Harbour Foreshore Authority, which includes key locations such as Circular Quay, the Rocks and Darling Harbour,111 as well as vesting rangers and police officers with general move on powers which could be used against any person, inter alia, causing ‘annoyance or inconvenience to other persons in a public area’.112 The government also amended the Summary Offences Act 1988 (NSW) to create wide- ranging move on police powers, applicable if a police officer has reasonable grounds to believe, inter alia, that the person’s behaviour or presence ‘constitutes harassment or intimidation of another person or persons’113 or is likely to cause fear in another person who is of ‘reasonable firmness.’114 Failure to comply with an order to ‘move

109 Police Powers and Responsibilities Act 2000 (Qld), s 48(2). 110 Police Powers and Responsibilities Act 2000 (Qld), s 48(2). 111 Sydney Harbour Foreshore Regulation 1999 (NSW) s 4(1)(f), which lapsed on 1 September 2006 under the general sunset clause of s 10(2) of the Subordinate Legislation Act 1989 (NSW) but was reintroduced in substantially the same form through the Sydney Harbour Foreshore Authority Regulation 2006 (NSW), reg 4(1)(f). See also Tamara Walsh, 'Defending Begging Offenders' (2004) 4(1) Queensland University of Technology Law & Justice Journal 58, 59. 112 Sydney Harbour Foreshore Regulation 1999 (NSW), reg 13. 113 Summary Offences Act 1988 (NSW), s 28F, inserted by Crimes Legislation Amendment (Police and Public Safety) Act 1998 (NSW), s 3 and Schedule 1. 114Summary Offences Act 1988 (NSW), s 28F (1)(c). The powers could not be used if the person was involved in an industrial dispute, an ‘apparently genuine demonstration or protest’, a procession or an organised assembly: Summary Offences Act 1988 (NSW), s 28G inserted by Crimes Legislation Amendment (Police and Public Safety) Act 1998 (NSW), s 1 and Schedule 1. For an overview of the legislative changes introduced in preparation for the Sydney Olympics, see Beth Jewell, 'One Year after the Olympic Games' (2001) 26(6) Alternative Law Journal 299; Kylie Kilgour and Polly

on’ led to a fine of up to $220. In 2002, the move on powers under the Summary Offences Act 1988 (NSW) were re-enacted in Part 14 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)115 and remain in place. On 5 December 2005, in the wake of the events at Cronulla, the Iemma Labor Government passed in one sitting the Law Enforcement Legislation Amendment (Public Safety) Act 2005 (NSW) creating additional lockdown, search and seizure powers for public areas.116 These powers only apply to a ‘large scale public disorder’ defined to mean ‘a riot or other civil disturbance that gives rise to a serious risk to public safety, whether at a single location or resulting from a series of incidents in the same or different location.’117

5 Victoria In 2005, the Bracks Labor Government repealed the Vagrancy Act 1996 (Vic).118 A review of the Act in 2002 by the Scrutiny of Acts and Regulations Committee of the Victorian Parliament had found that the majority of provisions in the Act were now either adequately covered by other legislation or should be re-enacted in the Summary Offences Act 1996 (Vic). The Victorian Government followed the recommendation of the Committee to retain the offence of begging and a number of other offences despite research and advocacy efforts urging decriminalisation of begging in public places in Victoria and an early indication of being amenable to this reform. The offence of

Porteous, 'Sharing the Spirit: The Impact of the Sydney 2000 Olympics on Human Rights in Australia' (1999) 22(3) UNSW Law Journal 813. 115 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) , Part 14, ss 197-200. Section 240 and Schedule 4 of the Act repeal Part 5, including s 28F, of the Summary Offences Act 1988 (NSW). 116 For an overview of legislative and policy developments in New South Wales regarding the use of public places, see Chris Cunneen, 'Policing public order and public places' (2006) 88 Reform Issues 42. 117 Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 87A inserted by Law Enforcement Legislation Amendment (Public Safety) Act 2005 (NSW) s 3, and Schedule 1. 118 See s 3 of the Vagrancy (Repeal) and Summary Offences Amendment Act 2005 (VIC), assented to on 13 September 2005, repealing the Vagrancy Act 1966 (Vic) Section 5 of the Act inserts s 49A into the Summary Offences Act 1966 (Vic) providing that ‘A person must not beg or gather alms.’

begging was re-enacted in the Summary Offences Act 1966 (Vic).119 The decision to retain the begging offence appears to be linked to evidence given to the Committee by its Chairman regarding the use of the begging offence in the United Kingdom as a ‘zero tolerance’ strategy impacting on the reduction of more serious crime, evidence which was uncorroborated and contested by other sources.120 It is likely that the retention of the begging offence was also influenced by the impending Melbourne Commonwealth Games in 2006.121

In February 2005, the Victorian Government-appointed Inner City Entertainment Precincts Taskforce released its Discussion Paper, ‘A Good Night for All: Options for Improving Safety and Amenity in Inner City Entertainment Precincts.’122 The Discussion Paper proposed that the Government consider introducing ‘dispersal legislation’ similar to the move on powers in place in Queensland and New South Wales. The Taskforce recommended that the government ‘[i]nvestigate legislation to enable police to give a direction to a person in a public place if the police officer has reasonable grounds to believe that the person’s behaviour or presence in the place is causing or likely to cause fear to another person or persons. Any such legislation would incorporate safeguards to prevent indiscriminate use and ensure that vulnerable groups within the community were not adversely affected.’123 The proposal was a response to stakeholder concerns about ‘anti-social behaviour’ in the entertainment areas of Melbourne: ‘…groups of young people congregating in public places, public

119 See s 3 of the Vagrancy (Repeal) and Summary Offences Amendment Act 2005 (VIC), assented to on 13 September 2005, repealing the Vagrancy Act 1966 (Vic) . Section 5 of the Act inserts s 49A in the Summary Offences Act 1966 (Vic) providing that ‘A person must not beg or gather alms.’ 120 Letter from PILCH Homeless Persons' Legal Clinic to Victorian Attorney General, 30 October 2002. 121 See Fergus Shiel, Begging to remain a criminal offence (2003) The Age at 28 January 2006. For an overview of recent law reform developments in Victoria in relation to begging in public places, see Philip Lynch and Kristen Hilton, 'We want change: Understanding and responding to Begging in Melbourne' (2006) 19(1) Parity 40. 122 Inner City Entertainment Precincts Taskforce, 'A Good Night for All: Options for Improving Safety and Amenity in Inner City Entertainment Precincts' (Crime Prevention Victoria, Victorian Government, 2005). 123 Ibid 11.

drinking and noise generated by on-street behaviour or people leaving late night venues.’124 At the present time, the Brumby Labor Government has yet to respond to the proposal to introduce the legislation.

Most recently, the Victorian Government has introduced legislation to amend the Liquor Control Reform Act 1998 (Vic). The Liquor Control Amendment Bill 2007 would vest the Director of Liquor Licensing with power to designate an area which has been the site of alcohol related violence or disorder within 100 metres of licensed premises. The police are then empowered to ban a ‘suspected offender’ from entering the designated area for up to 24 hours. A Statement of Compatibility has been issued in relation to the Bill under the Charter of Human Rights and Responsibilities Act 2006 (Vic) finding that the banning and exclusion orders are justified in human rights terms but expressing concern that aspects of the proposed amendment may impinge on the right to freedom of movement and liberty.125

6 South Australia South Australia has in place long-standing ‘public order’ offences, enacted under the Summary Offences Act 1953 (SA) including a blanket ban on begging in a public place, or being in a public place for that purpose,126 a prohibition on ‘consorting habitually with … persons having no lawful visible means of support’,127 using offensive language, disturbing the public peace, or behaving in a disorderly or offensive manner.128 The Act also provides for the use of move on powers against a person who is loitering or in a group when the police have reasonable grounds to believe that, inter alia, a breach of the peace is about to occur or the movement of pedestrians is about to be obstructed.129 The South Australian Government has not

124 Ibid 7. 125 See Catherine Krol and Jonathan Kelp, 'Statements of Compatibility under the Victorian Charter - Liquor Control Reform Amendment Bill 2007' (2008) (21) Human Rights Law Resource Centre Bulletin 5, 5-6. 126 Summary Offences Act 1953 (SA) , s 12 127 Summary Offences Act 1953 (SA) , s13. 128 Summary Offences Act 1953 (SA) , s7. 129 Summary Offences Act 1953 (SA) , s18.

recently increased public space legal regulations, outside of specific laws dealing with terrorism130 and the introduction of a much-criticised inner city youth curfew in 2003.131 The Liberal Opposition has however perceived that increasing public space laws would have electoral appeal. On 15 October 2003, the Opposition introduced the Summary Offences (Loitering) Amendment Bill 2003 which proposed empowering the police to move on a person if the police held a reasonable belief that ‘the person or one or more persons in the group is acting, or has acted, in a manner likely to create distress or fear of harassment in a reasonable person within sight of hearing of the person or group.’132 The amendment would have introduced into South Australia similar move on powers to those in place in Western Australia, Northern Territory, Queensland and New South Wales. The amendment was rejected by the Labor Government on the basis that the existing loitering provisions provided adequate protection.133

In the lead up to the 2006 election in South Australia, the Liberal Opposition Leader, the Hon Rob Kerin MP, again proposed that, if elected, ‘[a]s part of a major law-and- order overhaul, a future Liberal Government will give police extra powers to direct loiterers to move on … the move would restore to police the power to protect innocent people from being pestered on the streets’.134 The Liberals were not elected.

130 Terrorism (Police Powers) Act 2005 (SA). 131 Felicity Millner, 'Operation Shuteye: Youth Curfew in South Australia' (2003) 5(26) Indigenous Law Bulletin 6. See also South Australia Council of Social Services, 'Curfews as a Crime Prevention Measure' (2007). 132 Summary Offences (Loitering) Amendment Bill 2003 (SA). 133 South Australia, Parliamentary Debates, Legislative Council, 12 November 2003, http://www2.parliament.sa.gov.au/dbsearch/display.asp?CALLER=lc- hansard.asp&IS_QUERY={phrase}loitering{/phrase}&IS_PAGE_SIZE=20&SEARCH_PAGE=hansa rd_search.asp&DOC_INDEX=4&HIGHLIGHT_HITS=True#IS_HIT1, (The Hon Carmel Zollo, Member of the Legislative Council): ‘The existing powers of section 18 are wide enough to cover all situations where there are genuine threats to individuals, their property or the peaceful enjoyment of public streets and places. The government will not be supporting this legislation.’ 134 Liberal Party South Australia, Libs to Give Police Power to Move on Loiterers (2005) at 28 January 2006. The Liberal Opposition had argued that there was no anti-loitering laws in place in South Australia, an assertion which was subsequently refuted by the Labor Attorney General. See South Australia, Parliamentary

However, at a local government level, in 2005, the Port Augusta City Council declared the entire city area a dry zone, making public drinking an offence,135 reportedly to specifically target Aboriginal people for drinking in public areas. Enacted with the support of the Anangu Pitjanjatjara Land Council, police, local traders and publicans,136 the dry zone has been reported as a success,137 although it has also been criticised as a ‘draconian and racist’138 policy of the local council.

7 Tasmania The Tasmanian Bacon Labor Government decriminalised public drunkenness in 2000 following its election in 1998,139 replacing it with a power to take people into protective custody,140 in line with recommendations from the Tasmanian Law Reform Commission141 and as part of its efforts to implement recommendations from the Royal Commission into Aboriginal Deaths in Custody. The subsequent Lennon Labor Government has not introduced legislation increasing the legal regulation of public space, except with the specific purpose of dealing with a risk of a terrorist

Debates, House of Assembly, 2 March 2005, at 5 May 2007 (M J Atkinson, Attorney- General). 135 Michael Sexton, SA town tries to tackle drinking problem (2005) 7.30 Report, Australian Broadcasting Commission at 27 January 2006. 136 ABC News Online, Support for Port Augusta dry zone declaration (2005) Australian Broadcasting Commission at 3 May 2007. 137 ABC Online, AM - Port Augusta dry zone strategy working (2007) Australian Broadcasting Commission at 3 May 2007. 138 Ibid. 139 See Police Offences Amendment (Public Drunkenness) Act 2000 (Tas), s 9 repealing s 4 of the Police Offences Act 1935 (Tas). 140 Parliament of Tasmania, Parliamentary Debates, House of Assembly, 26 August 2004 ( Mr Llewellyn, Minister for Police and Public Safety). 141 Chalmers, DRC, Report on Police Offences Act 1935, Law Reform Commissioner of Tasmania, 76 (1997).

act.142 However, various public space laws remain in place which pre-dates election of the Labor Government, such as ‘public annoyance’ offences under s 13 of the Police Offences Act 1935 (Tas), and anti-loitering and anti-begging laws under ss 7 and 8, respectively, of the same Act.

8 Australian Capital Territory In 1998, the ACT re-introduced move on powers under s 4 of the Crime Prevention Powers Act 1998 (ACT), powers which had previously been in place between 1989 and1993. Section 4 is however relatively narrow, confining the power to where a police officer ‘has reasonable grounds for believing that a person in a public place has engaged, or is likely to engage, in violent conduct’ and certain exemptions apply.

At about the same time as the former Chief Minister of the Northern Territory visited New York to investigate zero tolerance policing, in 1999, the ACT’s Liberal Leader of the Opposition also arranged a study tour to New York but concluded that the policy was probably not suitable for that jurisdiction.143

142 Police Powers (Public Safety) Act 2005 (Tas). See Parliament of Tasmania, Parliamentary Debates, House of Assembly, 30 November 2005 (Mr Lennon, Premier): ‘…the purpose of the Police Powers (Public Safety) Bill 2005 is to provide police officers with necessary powers to ensure the safety of the public where there is a potential terrorist threat to a significant event, to essential infrastructure or where a terrorist act has occurred. Following the granting of appropriate authorisation, police officers will be able to stop, search and question people; search vehicles; and seize and detain things. This bill is about protecting Tasmanians from acts of terrorism and, should a terrorist act occur, helping us deal with any investigations and recovery afterwards. It also provides for the making of authorisations which will enable police officers to exercise various powers when the commissioner is satisfied that there is a risk or a threat of a terrorist act or such an act has occurred.’ 143 Legislative Assembly for the ACT, Hansard, 8 December 1999, 3998 (Mr Humphries, Leader of the Opposition): ‘Members will be well aware of the controversial zero tolerance approach to policing in New York. I was interested in that and was very pleased that my adviser was able to spend some time there finding out what zero tolerance meant and whether it was a concept applicable in the ACT. My answer, incidentally, is probably not.’

9 Summary It is outside the scope of this thesis to conduct a complete historical audit of legislative policing powers, together with policing policies (such as police general orders) and practices that impact on the regulation of human behaviour in public space, by reference to federal, state and territory and local government jurisdictions. There are currently 673 local councils around Australia. Local government authorities have the power to pass delegated legislation in the form of by-laws or regulations, such as those enacted by the Darwin City Council which includes DCC By-law 103. It has not been possible to review regulatory developments at this tier of government in Australia due to the extensive research which would have been required.

Similarly, it has not been possible within the scope of the thesis to complete a review of the extent to which legal regulations which empower government authorities to criminalise or forcibly evict people from public space are indeed being uniformly used to this effect. In some jurisdictions, policing policies and practices may be guided by wide discretions which ensure that people who are living in public spaces are not criminalised at all. Police general orders may provide guidelines as to when legal regulations are to be enforced and when discretion against enforcement is to be exercised. Local government homelessness policies and protocols may also have a significant ameliorating effect at a localized level.144

It is therefore not contended that the policing practices impacting on people such as Indigenous people living in the long grass in Darwin in the Northern Territory are worse than they have ever been. However, it is clear that the current legislative and policy trend is to increase such regulations. Political debates also confirm that ‘law and order’ or ‘tough on crime’ policing strategies remain popular and dominant in terms of public policy options and responses to people living in public space. Further, as Chapter Three will show, academics, lawyers and advocates have increasingly demonstrated that people living in public spaces are being adversely impacted by these public space laws, renewing calls for their repeal and amelioration of their effect

144 See, eg, Kate Incerti, 'The City of Port Phillip's Homelessness Protocol: Engagement First - Enforcement Last' (2006) 19(1) Parity 98.

on people living in public space. A significant number of Australians have identified that the use of these public space laws against people living in public spaces is a serious human rights concern.

As the next section shows, Australia is a state party to all major human right treaties, and is monitored by most of the UN human rights treaty mechanisms. What is the human rights context within which such public space laws are being enacted and applied? The next section provides an overview of the human rights norms applicable to Australia, under international law, following which it sets out both the domestic and international human rights complaints mechanisms that could be used to challenge the criminalisation and forced eviction of people living in public space, as is done through the use of loitering and trespass offences, anti-sleeping laws and move on powers.

C International Human Rights Norms Applicable to Australia

Australia has traditionally been a significant participant in and proponent of the development of the United Nations human rights treaty system. The Charter of the United Nations was signed on 26 June 1945 and came into force some four months later, signalling the creation of the modern international law of human rights. Australia was a founding member. The Charter’s preamble states that the creation of the UN was in part to

reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.145

145 Charter of the United Nations, adopted 26 June 1945, entered into force 24 October 2045, as amended by GA Res 1991 (XVII) 17 December 1963, entered into force 31 August 1956 (557 UNTS 143); 2101 of 20 December 1965, entered into force 12 June 1968 (638 UNTS) 308); and 2847 (XXVI) of 20 December 1971, entered into force 24 September 1973 (892 UNTS 119).

Article 1 of the UN Charter provides that one of the intended purposes of the UN is ‘promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.’

Australia was also a founding member of the Commission on Human Rights, established in 1946,146 On 10 December 1948, Australia voted in the UN General Assembly to adopt the Universal Declaration of Human Rights (‘UDHR’),147 the precursor to adopting a ‘host of multilateral human rights treaties.’148 Australia proceeded to serve on the Commission on Human Rights for a total of 32 years.149

Since the adoption of the UDHR, a wide range of international human rights treaties have been negotiated through the UN system. There are nine major international human rights treaties: the International Covenant on Civil and Political Rights (‘ICCPR’);150 the International Covenant on Economic Social and Cultural Rights (‘ICESCR’);151 the Convention on the Elimination of all forms of Racial Discrimination (‘CERD’);152 the Convention on the Elimination of Discrimination Against Women (‘CEDAW’);153 the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘CAT’);154 the Convention on the

146 Hilary Charlesworth et al, No Country is an Island: Australia and International Law (2006), 65. 147 Universal Declaration of Human Rights, GA Res 217A(III), UN Doc A/810, 71 (1948). 148 Henry J Steiner and Philip Alston, International Human Rights in Context (2 ed, 2000), 141. For a summary of the history to the adoption of the Universal Declaration of Human Rights, United Nations General Assembly Resolution 217A(III), 10 December 1948, see Henry J Steiner and Philip Alston, International Human Rights in Context (2 ed, 2000), 138-9. 149 Hilary Charlesworth et al, No Country is an Island: Australia and International Law (2006), 65. 150 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). 151 International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 999 UNTS 3 (entered into force 3 January 1973). 152 Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969). 153 Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 18 December 1979, 1249 UNTS 1334 (entered into force 3 September 1981). 154 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85, (entered into force 26 June 1987).

Rights of the Child (‘CROC’);155 the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families;156 the International Convention Against Forced Disappearances;157 and the International Convention on the Rights of People with Disabilities (‘CRPD’).158 The development of a body of international legal norms and jurisprudence regarding the basic human rights of individuals, building on the UN Charter and the UDHR, is said to be ‘one of the most notable legal phenomena of the period since the Second World War.’159 With the exception of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, and the International Convention against Forced Disappearances, Australia has ratified all conventions, each of which recognises human rights relevant to the treatment of people living in public space.160

Additional treaty obligations have been developed through ‘optional protocols’, which deal with specific additional matters such as the creation of individual complaints mechanisms for violation of the treaty. Optional protocols have been developed with respect to four of the key human rights conventions: CAT,161 ICCPR,162 CROC,163

155 Convention on the Rights of the Child, opened for signature 20 November 1989, 28 ILM 1448, (entered into force 2 September 1990). 156 International Convention on the Protection of the Rights of All Migrant Workers and of Their Families, opened for signature 18 December 1990, UN Doc A/45/49 (entered into force on 1 July 2003). 157 International Convention for the Protection of all Persons from Enforced Disappearance, opened for signature 6 February 2007, UN Doc A/61/488 (not yet in force). 158 Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, UN Doc A/61/611 (not yet in force). 159 Hon Dr Justice A Anand, 'The Domestic Application of International Human Rights Norms' (Paper presented at the Judicial Exchange on Access to Justice, Mumbai, India, 14-16 November 2003), 2. 160 See Chapter Three which sets out 15 human rights which are said to be engaged by various public space laws. 161 Optional Protocol to the Covenant Against Torture and Cruel Inhuman or Degrading Treatment opened for signature 18 December 2002, GA Res A/RES/57/199. 162 Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 302 (entered into force 23 March 1976). 163 Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, opened for signature 25 May 2000, UN Doc A/54/49, entered into force 12 February 2002; Optional Protocol to the Convention on the Rights of the Child on

CEDAW164 and CRPD.165 Australia has ratified the optional protocols to the ICCPR and CROC.

The international human rights treaties to which Australia is a party protect a wide range of specific civil, political, economic, social and cultural human rights, including: • The right to life;166 • The right to freedom from torture, or cruel, inhuman and degrading treatment or punishment;167 • The right to liberty and security of the person;168 • The right to freedom of movement;169 • The right to a fair hearing, including the right to legal representation where the interests of justice require it;170 • The right to privacy, family and home;171 • The right to freedom of expression;172 • The right to freedom of peaceful assembly;173 • The right to freedom of association;174 • The right to equality before the law;175

the sale of children, child prostitution and child pornography, opened for signature 25 May 2000, UN Doc A/54/49, entered into force 18 January 2002. 164 Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 10 December 1999, UN Doc A/54/49 (entered into force 22 December 2000). 165 Optional Protocol to the Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, UN Doc Doc A/61/611 (not yet in force). 166 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), art 6. 167 Ibid art 7. 168 Ibid arts 9 and 10. 169 Ibid art 12. 170 Ibid art 14. 171 Ibid art 17. 172 Ibid art 19. 173 Ibid art 21. 174 Ibid art 22.

• The right to an adequate standard of living, including adequate housing;176 • The right to health;177 • The right to enjoy one’s culture;178and • The right to freedom from discrimination.179

However, whilst Australia has ratified all the major international human rights treaties, ratification does not automatically create domestic legal rights and obligations under Australian law. In order for human rights under international law to become justiciable in Australian courts, the provisions must be directly incorporated, for example, through the enactment of domestic legislation.180

D Domestic Legal Remedies to Challenge Human Rights Violations

Commencing in 1975 with the enactment of the Racial Discrimination Act 1975 (Cth), statutory provisions have been introduced at both federal and state and territory level to provide legal remedies to individuals who have experienced discrimination on various prohibited grounds in specified circumstances, and to partially incorporate the provisions of CERD and CEDAW as well as the non-discrimination provisions in the ICCPR. However, overall, Australia’s incorporation of its international human rights treaty obligations into its domestic legal system is poor, and Australia has been criticised by the UN human rights treaty bodies for the lack of domestic legal

175 Ibid art 26. 176 International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 999 UNTS 3 (entered into force 3 January 1973), art 11. 177 Ibid art 12. 178 Ibid art 15. 179 Ibid art 2; International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), art 2. 180 Nulyarimma v Thompson [1999] FCA 1192. See also Hilary Charlesworth et al, No Country is an Island: Australia and International Law (2006), 69; Nick O'Neill, Simon Rice and Roger Douglas, Retreat from Justice: Human Rights Law in Australia (2004), 177; Annemarie Devereux, 'International Human Rights Law: It's Relevance to Australian Practice' (Paper presented at the NSW Young Lawyers Seminar, Sydney, 22 August 2002).

protections available.181 Most of the human rights contained in the major international human rights treaties to which Australia is a party are not directly justiciable in Australian courts.182

Until 2004, no Australian parliament had enacted legislation purporting to protect substantive human rights under either the ICCPR, such as the right to life, or the right to freedom of association, nor any rights under the ICESCR.183 On 1 July 2004, the

181 See Concluding observations of the Human Rights Committee: Australia, UN Doc CCPR A/55/40 (2000), 13: ‘The Committee is concerned that in the absence of a constitutional Bill of Rights, or a constitutional provision giving effect to the [International Covenant on Civil and Political Rights], there remain lacunae in the protection of Covenant rights in the Australian legal system. There are still areas in which the domestic legal system does not provide an effective remedy to persons whose rights under the Covenant have been violated.’ See also Concluding observations of the Committee on Economic, Social and Cultural Rights: Australia, UN Doc E/C.12/1/Add.50 (2000), 14: ‘The Committee regrets that, because the [International Covenant on Economic, Social and Cultural Rights] has not been entrenched as law in the domestic legal order, its provisions cannot be invoked before a court of law.’ 182 For a discussion of the limited extent to which international human rights laws have been incorporated into the Australian legal system, see George Williams, A Charter of Rights for Australia (2007). 183 The ICCPR is scheduled to the Human Rights and Equal Opportunity Commission Act 1986 (Cth). Under s 11(f) of the Act, the Human Rights and Equal Opportunity Commission has the power to investigate complaints of certain human rights violations, including those under the ICCPR, in limited circumstances. However, the findings are not enforceable. Further, in 1992, Queensland enacted the Legislative Standards Act 1992 (Qld) to ‘ensure that Queensland legislation is of the highest standard’.183 The Act sets out ‘fundamental legislative principles’ (s 4(3)) which require, inter alia, that legislation as sufficient regard to the ‘rights and liberties of individuals: at s 4(2)(a). An assessment of this test depends on whether, for example, the legislation ‘(a) makes rights and liberties, or obligations, dependent on administrative power only if the power is sufficiently defined and subject to appropriate review; … (b) is consistent with principles of natural justice; … (d) does not reverse the onus of proof in criminal proceedings without adequate justification; … (j) has sufficient regard to Aboriginal tradition and Island custom; and (k) is unambiguous and drafted in a sufficiently clear and precise way.’: at s 4 (3). The Legislative Standards Act vests a power in the Office of the Queensland Parliamentary Counsel to ‘provide advice to Ministers and government entities on … the application of [these] fundamental legislative principles’ (s 7(g)(ii)) and requires that a Bill presented to the Legislative Assembly must be accompanied by an explanatory note which includes a ‘brief assessment of the consistency of the Bill with fundamental legislative principles and, if it is inconsistent with

Human Rights Act 2004 (ACT) came into effect, making the ACT the first jurisdiction to domestically incorporate civil and political human rights, by reference to the rights protected in the ICCPR. The Human Rights Act 2004 (ACT) improves the incorporation of international human rights norms into the ACT legal system in a number of important respects. Firstly, the Act provides that, when a court interprets an existing ACT law, ‘an interpretation that is consistent with human rights is as far as possible to be preferred,’184 subject to s 139 of the Legislation Act 2001 (ACT) which provides that, in working out the meaning of legislation, ‘the interpretation that would best achieve the purpose of the Act is to be preferred to any other legislation’185 (the ‘purposive test’).

Secondly, if the Supreme Court finds that a law is inconsistent with a human right set out in the Act, it may issue a ‘declaration of incompatibility’,186 providing the ACT Parliament with six months to decide what action it may take to address the inconsistency. The Act does not provide an effective remedy for a human rights violation that would accord with international human rights norms.187 In particular, a

fundamental legislative principles, the reasons for the inconsistency.’: at s 23(1)(f). Legislation that fails to meet these requirements is not invalidated (s 25) nor does the Act create individual justiciable rights or remedies for a person who may have been adversely affected by the operation of legislation that is not in accordance with these principles. As such, the Act provides some limited capacity to advise on legislation’s impact on the rights and liberties of individuals without independently protecting them. Further, the Legislative Standards Act 1992 (Qld) does not define these rights and liberties by express reference to international human rights norms. 184 Human Rights Act 2004 (ACT), s 30(1). 185 Legislation Act 2001 (ACT), s 139. 186 Human Rights Act 2004 (ACT), s 32. 187 See, eg, United Nations Human Rights Committee, General Comment No 31: Nature of the General Legal Obligations Imposed on States Parties to the Covenant, 80th Sess , UN Doc CCPR/C/21/Rev 1/Add 13 (2004), [16]: ‘Article 2, paragraph 3, requires that States Parties make reparation to individuals whose Covenant rights have been violated. Without reparation to individuals whose Covenant rights have been violated, the obligation to provide an effective remedy, which is central to the efficacy of article 2, paragraph 3, is not discharged. In addition to the explicit reparation required by articles 9, paragraph 5, and 14, paragraph 6, the Committee considers that the Covenant generally entails appropriate compensation. The Committee notes that, where appropriate, reparation can involve restitution, rehabilitation and measures of satisfaction, such as public apologies, public memorials,

declaration of incompatibility does not invalidate the offending legislation nor does it affect the ‘rights or obligations of anyone’.188 At the present time, a court cannot therefore award compensation nor provide other remedies to an individual whose human right has been violated.189 Further, the Act does not protect economic, social and cultural rights under the ICESCR, such as the right to adequate housing.190

The adoption of the Human Rights Act 2004 (ACT) was followed in Victoria by the enactment of the Charter of Human Rights and Responsibilities Act 2006 (Victoria) (‘the Charter’). The Charter is based on a similar model to the Human Rights Act 2004 (ACT) with a number of improvements and limitations.191 The Charter is again confined to civil and political rights. It does not empower the courts to grant an award of compensation and is limited in other available remedies that it provides. The Charter does, however, provide that it is unlawful for government authorities to act contrary to a human right, or to fail to give proper consideration to relevant human rights when making a decision, unless their statutory authority expressly requires them to do so.192 It does not provide for a free standing new cause of action whereby a person can bring a claim for a violation of their human rights against government in order to seek remedial relief such as compensation. However, s 38 provides that, where a person is able to seek relief on some other basis, such as on administrative

guarantees of non-repetition and changes in relevant laws and practices, as well as bringing to justice the perpetrators of human rights violations.’ 188 Human Rights Act 2004 (ACT), s 32(3). 189 The decision not to provide for individual remedies for violation was contrary to the recommendations of the ACT Bill of Rights Consultative Committee. See ACT Bill of Rights Consultative Committee, 'Towards an ACT Human Rights Act' (Australian Capital Territory, 2003). 190 The decision to exclude economic, social and cultural rights from the Human Rights Act 2004 (ACT) was also contrary to the recommendations of the ACT Bill of Rights Consultative Committee. See ACT Bill of Rights Consultative Committee, 'Towards an ACT Human Rights Act' (Australian Capital Territory, 2003). The decision was to be the subject of a review undertaken 12 months after adoption. However, this review is now to be undertaken before 1 July 2009. 191 Simon Evans, 'The Victorian Charter of Rights and Responsibilities and the ACT Human Rights Act: Four Key Differences and their Implications for Victoria' (Paper presented at the Australian Bills of Rights: The ACT and Beyond Conference, Australian National University, Canberra, 21 June 2006). 192 Charter of Human Rights and Responsibilities Act 2006 (Vic), s 38(1).

law grounds, the person may allege a violation of Charter.193 As such, it is argued that the Charter will enable a person to bring an action seeking a declaration against a public authority for acting unlawfully contrary to the Charter, and to seek an injunction.194 The requirement to give proper consideration to relevant human rights under the Charter arguably broadens the traditional Australian administrative law ground for challenging administrative decisions on the basis of failing to take into account relevant considerations. Formerly, administrative law principles required at best that relevant human rights need only be taken into account by the decision- maker.195 The requirement under the Charter to give ‘proper consideration’ may import a requirement of proportionality into the decision-making process, thereby enabling the courts to undertake substantive review of government decision- making.196

The ACT Government has now introduced the Human Rights Amendment Bill 2007 (ACT) which, if enacted, will strengthen the Human Rights Act 2004 (ACT) in a number of important respects. It will incorporate a requirement that public authorities must not act inconsistently with human rights, 197as is provided in the Victorian Charter.198 It will also create a direct cause of action for a person affected by a failure of a public authority to comply with human rights, empowering the court to ‘grant the relief it considers appropriate except damages (emphasis added)’.199 In this aspect, it

193 Charter of Human Rights and Responsibilities Act 2006 (Vic), s 38. 194 Simon Evans, 'The Victorian Charter of Rights and Responsibilities and the ACT Human Rights Act: Four Key Differences and their Implications for Victoria' (Paper presented at the Australian Bills of Rights: The ACT and Beyond Conference, Australian National University, Canberra, 21 June 2006), 12-3. 195 See, eg, Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273. 196 Simon Evans, 'The Victorian Charter of Rights and Responsibilities and the ACT Human Rights Act: Four Key Differences and their Implications for Victoria' (Paper presented at the Australian Bills of Rights: The ACT and Beyond Conference, Australian National University, Canberra, 21 June 2006), 13. 197 Human Rights Amendment Bill 2007 (ACT), s 7 which inserts Part 5A (ss 40 – 40D) into the Human Rights Act 2004 (ACT). 198 Charter of Human Rights and Responsibilities Act 2006 (Vic), s 38(1). 199 Human Rights Amendment Bill 2007 (ACT), s 7 which inserts s 40C(4) into the Human Rights Act 2004 (ACT).

overtakes the Victorian Charter, which only indirectly augments existing causes of action. The ACT Bill also proposes to strengthen the interpretative approach to existing legislation, again in line with the Victorian Charter200, by providing that ‘[s]o far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights’201 rather than being ‘preferred,’202 as is currently the case.

At the time of writing, the ACT and Victoria are the only two jurisdictions in Australia to have enacted human rights legislation which incorporates international human rights standards, particularly under the ICCPR, into the domestic legal system. However, it seems likely that this model of human rights protection may be replicated in other states and territories, with the Tasmanian Law Reform Institute formally recommending the enactment of a human rights law. This recommendation arose from government-sponsored community consultation in 2007.203 A similar process is underway in Western Australia with the government-appointed Consultation Committee for a Proposed Human Rights Act having released its Final Report on 21 December 2007.204 The Western Australian Attorney General has welcomed the Report whilst commenting with reservations about the Committee’s recommendation to include protection of economic, social and cultural rights.205 In addition, there is

200 Charter of Human Rights and Responsibilities Act 2006 (Vic), s 32. 201 Human Rights Amendment Bill 2007 (ACT), s 5, amending s 30 of the Human Rights Act 2004 (ACT). 202 Human Rights Act 2004 (ACT), s30(1). 203 See Tasmanian Law Reform Institute, 'A Charter of Rights for Tasmania' (Tasmanian Law Reform Institute, 2007). The Report recommends that the Tasmanian government enact a charter of rights which incorporates a wide range of civil, political, economic, social and cultural rights. The proposed charter of rights would empower the courts to declare legislation to be incompatible with protected human rights, and to grant appropriate relief, including compensation to individuals. 204 Consultation Committee for a Proposed WA Human Rights Act, 'Report of the Consultation Commitee for a Proposed WA Human Rights Act ' (2007). See Department of the Attorney General, A WA Human Rights Act (2007) at 20 October 2007. 205 Attorney General of Western Australia, 'Human Rights Report Completed' (Press Release, 20 December 2007).

continuing debate in the Northern Territory206 and New South Wales207 about the need for improved human rights protection. Following the election of the new Rudd Labor Government, which went to the 2007 Federal Election with a policy commitment to inquire into improving human rights protections at the national level, there is also a new push promote the enactment of a human rights law at a national level.208

At the present time, however, whilst there has been some significant developments in the ACT and Victoria in expanding the scope for using human rights norms to challenge government action in certain circumstances, the majority of Australians remain unable to seek a domestic legal remedy for violation of many of the human rights set out in the major international treaties to which Australia is a party. Various authors have highlighted indirect ways in which international human rights norms may be applied to the development of domestic law, in the absence of express incorporation through ordinary legislation such as the Human Rights Act 2004 (ACT) or explicit constitutional reform. There is authority for the relevance of international human rights norms to the development of the common law, statutory and constitutional interpretation, the exercise of judicial discretion and judicial review of administrative decision-making processes.209 However, judicial enthusiasm for such

206 For example, Charles Darwin University hosted an Academic Symposium, Securing Territorians’ Rights: Statehood and a Bill of Rights? on 10 May 2007. 207 See, eg, Gareth Griffiths, 'A NSW Charter of Rights?: The Continuing Debate' (NSW Parlimentary Library Research Service Briefing Paper No 5/06, 2006). 208 See, eg, the proposed Human Rights Act developed by New Matilda. Go to New Matilda, A Human Rights Act for Australia (2007) at 20 October 2007. Whilst the Coalition remains opposed to a national human rights law, the Federal ALP policy provides that ‘Labor will initiate a public inquiry about how best to recognise and protect the human rights and freedoms enjoyed by all Australians’. See Australian Labour Party, ALP 2007 National Platform: Chapter 13: Respecting Human Rights and a Fair Go For All (2007) Australian Labour Party at 20 October 2007. 209 For authority on the relevance of international human rights norms to: (1) the development of the common law, see, eg, Mabo v Queensland [No 2] (1992) 175 CLR 1; 66 ALJR 408; Dietrich v R (1992) 177 CLR 292; (2) statutory and constitutional interpretation, see, eg, Mabo v Queensland [No 2] (1992) 175 CLR 1; 66 ALJR 408; Minister for Immigration & Ethnic Affairs v Teoh (1995) 183

approaches should not be over-stated at the present time. The current trend amongst members of the High Court of Australia has been to reject or express doubts over such approaches or to progressively narrow and attenuate these possibilities for domestic application.210 In the context of discussion regarding judicial review of detention of children under the Migration Act 1958 (Cth), Tobin has acknowledged that

[i]t would be remiss not to acknowledge that the majority of the High Court, as presently constituted, is unlikely to be receptive to any suggestion that there is an implied constitutional prohibition against torture, cruel, inhuman or degrading treatment [or other international human rights].211

As noted above, Australia has been criticised for this gap in the domestic legal protection of human rights by both of the major UN international human rights treaty

CLR 273; Kartinyeri v The Commonwealth (1998) 152 ALR 540 (statutory interpretation) and Newcrest Mining Ltd v Commonwealth (1997) 190 CLR 512 (constitutional interpretation); (3) exercise of judicial discretion, see, eg, Brown v The Members of the Classification Review Board of the Office of Film and Literature (1997) 145 ALR 464; B v B (1997) 21 Fam LR 676, cited in Kate Eastman, 'International Human Rights Treaties and the Common Law' (Paper presented at the National Community Legal Centre Conference, Sydney, 9 September 1998) and (4) judicial review of administrative decision-making, see Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273. See also Hilary Charlesworth et al, 'Deep Anxieties: Australia and the International Legal Order' (2003) 25 Sydney Law Review 423, esp447-63; Philip Lynch and Jacqueline Cole, 'Homelessness and Human Rights: Regarding and Responding to Homelessness as a Human Rights Violation' (2003) 4 Melbourne Journal of International Law 139, 166-72; Kate Eastman, 'International Human Rights Treaties and the Common Law' (Paper presented at the National Community Legal Centre Conference, Sydney, 9 September 1998); Simon Rice, 'Making Human Rights Our Daily Business' (Paper presented at the National Community Legal Centre Conference, Fremantle, 2001); Annemarie Devereux, 'International Human Rights Law: It's Relevance to Australian Practice' (Paper presented at the NSW Young Lawyers Seminar, Sydney, 22 August 2002); George Williams, Human Rights under the Australian Constitution (2002) and Karen Walters, 'Human Rights - An Emerging Area of Law' (Paper presented at the Law Society Symposium 2002 Conference, Brisbane, 2 March 2002). 210 See, eg, Al-Kateb v Godwin (2004) 208 ALR 124.. See also George Williams, A Charter of Rights for Australia (2007), 11. His Honour Justice Kirby is the notable exception to this conservative judicial approach. 211 John Tobin, 'Finding Rights in the 'Wrongs' in our Law' (2005) 30(4) Alternative Law Journal 164, 167.

bodies. Given the non-justiciability of many of the international human rights before Australian courts, it is therefore not surprising that, to date, there have been virtually no domestic court cases which have challenged the criminalisation or forced eviction of people living in public space using international human rights norms. This is explored further in Chapter Three.

Having considered the limits of the domestic legal remedies that are currently available in Australia to challenge a violation of the human rights protected under the major international human rights treaties, including the ICCPR and the ICESCR, the next section sets out the various mechanisms that are available under the UN human rights treaty system that may be used to make a complaint about a domestic human rights violation at an international level.

E International Mechanisms to Challenge Human Rights Violations

1 Introduction Whilst ratification of international human rights treaties such as the ICCPR and ICESCR does not create justiciable legal rights and responsibilities under Australian domestic law, it enables people living in Australia to make use of a number of international mechanisms to lodge complaints about alleged human rights violations committed by Australian governments.

When Australia became a member of the United Nations and ratified the major international human rights treaties, it became subject to most of the international human rights mechanisms that are available to complain about human rights violations at a domestic level. In particular, Australia is required to submit periodic state reports to the relevant international human rights treaty body under each convention. Non-government organisations (‘NGOs’) may now use this reporting process to lodge, with the treaty body, their own views and complaints regarding state party compliance (‘shadow reports’). In the cases of several of the treaties, it is also possible for an individual to lodge a complaint with the relevant human rights treaty body (‘individual communications’). Finally, special mechanisms have been

established by the former Commission on Human Rights,212 which involve mandates given to expert working groups or individuals for taking action regarding specified thematic or geographic human rights situations (‘special procedures’).

In this section, each of these international human rights mechanisms is explained with examples of how these mechanisms have been used to date in the Australian context. It will be seen that, in a general sense, Australians have been making increasing use of these international human rights tools to raise human rights concerns in order to augment other strategies endeavouring to be catalytic of reform at domestic level.

2 Shadow Reports As noted, Australia is now a part of all of the major international human rights treaties, including the ICCPR, ICESCR, CAT, CEDAW and CERD. Each of these treaties has a human rights treaty body that has been established to monitor states parties’ implementation of treaty obligations. The Human Rights Committee (‘HRC’) is established under art 28 of the ICCPR; the Committee on Economic, Social and Cultural Rights (‘CESCR’) was created by resolution of the Economic and Social Council in 1985;213 art 17 of CAT creates the Committee against Torture (‘CAT Committee’); the Committee on the Elimination of All Forms of Discrimination against Women (‘CEDAW Committee’) was established by art 17 of CEDAW; and the Committee on the Elimination of Racial Discrimination (‘CERD Committee’) exists by virtue of art 8 of CERD. Article 43 of CROC creates the Committee on the Rights of the Child (‘CRC’). State parties are under an obligation to submit a periodic

212 The Commission on Human Rights was a subsidiary of the United Nations Economic and Social Council, composed of 53 member States elected by the Economic and Social Council. One additional mandate, on children in armed conflict, was created by the UN General Assembly. There are presently 28 thematic, and 10 country specific mandates. On 26 March 2007, the Commission on Human Rights held its last session, and has now been replaced by a new body, the Human Rights Council. The Council was established by the UN General Assembly on 23 April 2006. See Resolution on the Human Rights Council, GA Res 60/251, General Assembly, 60th sess, UN Doc A/RES/60/251 (2006). 213 Review of the composition, organization and administrative arrangements of the Sessional Working Group of Governmental Experts on the Implementation of the International Covenant on Economic, Social and Cultural Rights, UN ESCOR, Resolution 1985/7 (1985).

report to the relevant treaty body to inform the body of steps taken to fulfil state party obligations under the relevant treaty during the applicable reporting period. State reports are typically due one or two years after initial ratification of the treaty then every four or five years.214

It is now established procedure for treaty bodies to receive shadow reports from NGOs in the lead up to consideration of a state’s report.215 It is also possible for representatives from NGOs to present oral evidence to the treaty body or meet with individual committee members in the lead up to deliberations over the state report.216 This strategy has proven to be effective in showing, at the international level, that a specific set of domestic circumstances appears to be in violation of the human rights treaty obligations of Australian governments. The treaty bodies rarely explicitly asserts that a state party is in violation of specific provisions of a treaty, preferring to express generalised ‘concern’, or ‘grave concern’ about events, followed by recommendations for future action.217 The treaty bodies set out their views on

214 The ICCPR reports are due one year after accession and then as requested, usually every four years, the ICESCR and CROC reports are due two years after accession and then every five years, CEDAW and CAT reports are due one year initially, and then every four years, and CERD reports one year, and then every two years. See, further, Office of the High Commissioner for Human Rights, Human Rights Treaty Bodies (2007) at 20 February 2008. 215 See, eg, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights: NGO Participation in the activities of the Committee on Economic, Social and Cultural Rights, UN ESCOR, 23rd sess, UN Doc E/C.12/2000/6 (2000) which provides detailed guidelines for NGO participation in the activities of the Committee on Economic, Social and Cultural Rights. 216 Oral submissions may be made to the Pre-Sessional Working Group in order to inform the formulation of the List of Issues, which are submitted to the States party prior to the Session at which the State report is to be reviewed by the treaty body. NGOs may then make oral submissions at the beginning of the Session during which the State report is to be reviewed, and meetings with individual treaty body members can also be made to lobby on the issues to be raised with the Australian government. NGOs can also suggest questions to the treaty body members that can be put to the Australian government during oral examination of the State report. 217 See, eg, the NGO Shadow Report, Aboriginal and Torres Strait Islander Commission, 'Aboriginal and Torres Strait Islander Peoples and Australia's obligations under the United Nations Convention on the Elimination of all Forms of Racial Discrimination' (1999) which was submitted to the Committee on the Elimination of Racial Discrimination and the subsequent Concluding observations of the

positive aspects of state party compliance with treaty obligations, together with concerns and recommendations in ‘concluding observations’.

Australia has complied with its reporting obligations under these human rights treaties,218 and increasingly NGOs have also lodged shadow reports. Recent experience with this monitoring process of Australia’s human rights record demonstrated an increasingly tense relationship between the former Australian government under Prime Minister John Howard and the human rights experts who serve on the human rights treaty bodies. Prior to the former Howard Coalition government, the relationship between these experts and Australian governments had been constructive and positive, with Australia showing ‘a willingness to accommodate advice that it had acted inconsistently with fundamental rights…’219 although it has also been argued that there has been ‘an Australian tendency to be suspicious of international law, indeed of foreigners … [and] [i]t does not matter which government is in office.’220

Until quite recently, however, the Australian government has stood in the vanguard of nations supporting both the principles upon which the treaty system has been founded

Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/C/304/Add.101 (2000). See also the NGO Shadow Report, Australian Social and Economic Rights Project, 'Australia's Compliance with the UN Covenant on Economic, Social and Cultural Rights: Community Perspectives' (2000), and the subsequent Concluding observations of the Committee on Economic, Social and Cultural Rights: Australia, UN Doc E/C.12/1/Add.50 (2000). 218 Although in many instances, state reports are filed far later than they fall due. 219 Devika Hovell, 'The Sovereignty Stratagem ' (2003) 28(6) Alternative Law Journal 297. See also Spencer Zifcak, 'The New Anti-Internationalism: Australian and the United Nations Human Rights Treaty System' (The Australia Institute, 2003), 31: ‘Until recently, Australia’s remarkably strong human rights record has acted as a beacon for other nations, particularly those in its immediate region.’ 220 Michael Kirby, 'Law, Like the Olympics, is Now International - But will Australia Win Gold?' (2000) 7 James Cook University Law Review 4, 5. See also Wayne Morgan, 'Passive/Aggressive: the Australian Government's Responses to Optional Protocol communications' (1999) 5(2) Australian Journal of Human Rights 22, criticising the response of Australian governments to the decision of the UN Human Rights Committee in Toonen v Australia, Communication No 488/1992, UN Doc CCPR/C/50/D/488/1992 (1994).

and the mechanism through which those principles may be made universal and tangible.221

However, under the leadership of former Prime Minister John Howard, the Australian government actively rebutted critics of Australia’s human rights record by UN bodies and officials, including members of the human rights treaty bodies, fostering an ‘anti- internationalist’222 domestic culture.

The immediate reason for the [Howard] Government’s hostility is not difficult to divine.… [T]he Howard Government’s performance in the human rights realm had been the subject of increasing, consistent and sustained criticism by the committees, particularly in relation to its treatment of Australia’s indigenous peoples and those seeking asylum [in Australia].223

[E]ach committee has become more critical of Australia’s human rights performance than it had been in reports issued in the early 1990s. Although the earlier reports had canvassed similar issues, when the negative side of the ledger is considered it is apparent that every committee has concluded that Australia’s fulfilment of its international treaty obligations has not been as effective or comprehensive as it had been in the preceding reporting period. The most obvious change that occurred between reports was the election of the Howard Government in 1996. It is unsurprising, therefore, that the Government should have reacted critically…224

This hostility was evident, for example, in the events surrounding the release by the CERD Committee of its concluding observations regarding Australia’s compliance

221 Spencer Zifcak, 'The New Anti-Internationalism: Australian and the United Nations Human Rights Treaty System' (The Australia Institute, 2003), 13-4. 222 Ibid iii: ‘The Howard Government's response to consistent and concerted international criticism by the UN, however, has been particularly severe. It has rejected all adverse comment categorically and has instead called for the complete overhaul of the UN human rights treaty body system itself.’ See also David Kinley and Penny Martin, 'International Human Rights Law at Home: Addressing the Politics of Denial' (2002) Melbourne University Law Review 24. 223 Spencer Zifcak, 'The New Anti-Internationalism: Australian and the United Nations Human Rights Treaty System' (The Australia Institute, 2003), 31. 224 Ibid 22.

with CERD in 2000225 but was a consistent pattern after the election of the Howard Federal Government in 1996.226 As Zifcak notes, ‘for the most part, the commission of the [human rights breaches found by the committees] has been the product of conscious government policy’227 and ‘[a]lmost every expression of concern raised by the Committees has already been and continues to be the subject of intense political discussion and debate in Australia itself.’228

In recent years, Australian NGOs have been increasingly effective in bringing allegations of human rights violations to the attention of human rights treaty bodies, aiding in the treaty bodies’ capacities to critically appraise Australia’s human rights record. It is apparent that the engagement by NGOs with the treaty bodies has enabled

225 Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/C/304/Add.101 (2000). For a description of the Committee’s review of Australia’s State report under CERD, and the subsequent fallout, see ibid 1-8. As Zifcak explains at 24, ‘[t]he Australian Government’s hostile response to criticism made by the six UN Treaty Committees was the culmination of discontent that stemmed primarily from Mr Ruddock’s appearance before the CERD Committee and gained momentum from that point onwards.’ See also Greg Marks, 'Australia, the Committee on the Elimination of All Forms of Racial Discrimination and Indigenous Rights' (2004) 6(7) Indigenous Law Bulletin 11 and the interview with the Australian Foreign Minister, Alexander Downer on the ABC 7.30 Report: ABC 7.30 Report, Australia headed for bottom of the human rights barrel (2000) at 20 July 2006. See also Hilary Charlesworth, 'Human Rights: Australia versus the UN' (Democratic Audit of Australia 2006), 4-5. 226 See Devika Hovell, 'The Sovereignty Stratagem ' (2003) 28(6) Alternative Law Journal 297. See also Nicholas Niarchos, 'Human Rights in Australia: A Retreat from Treaties' (Human Rights Committee of the Law Society of South Australia, 2004), 8: ‘The government has usually responded by ignoring or dismissing UN committee reports out of hand but the reaction to the report of the UN Committee on the Elimination of Racial Discrimination was immediate and hostile. The government attacked the report as being unbalanced and as having intruded unreasonably in Australia’s domestic affairs (citations omitted).’ See also Hilary Charlesworth, 'Human Rights: Australia versus the UN' (Democratic Audit of Australia 2006). The Federal Government has not been alone in its hostility to international human rights scrutiny. For example, on 21 July 2000, the former Chief Minister of the Northern Territory, Denis Burke, told the Committee on the Elimination of Racial Discrimination to ‘bugger off’ when it criticised the Northern Territory mandatory sentencing laws impact on Indigenous juveniles. See George Williams, A Charter of Rights for Australia (2007), 21. 227 Spencer Zifcak, 'The New Anti-Internationalism: Australian and the United Nations Human Rights Treaty System' (The Australia Institute, 2003), 23. 228 Ibid.

these UN experts to more deeply assess treaty compliance. The first Australian NGO shadow reports to be lodged with an international human rights treaty body was to the CRC in 1993229 and to the HRC in 1994.230 Since that time, NGOs have lodged numerous shadow reports under all the of human rights treaty bodies, including the HRC,231 CESCR, 232 the CERD Committee,233 the CAT Committee,234 the CEDAW

229 The first shadow report was submitted in 1993 by the Children’s Rights Coalition submitted ‘Where Rights are Wronged’ to the CRC. See Defence for Children International - Australian Section, 'Australia's Promise to children - the alternative report ' (1996), 9. 230 See Human Rights Council of Australia Inc., 'Australia's Third Report under the International Covenant on Civil and Political Rights: A Consolidated Response from Australian Non-Government Organisations (NGOs)' (1994). See Email from Eric Sidoti to Author, 8 December 2007. Sidoti was Executive Director of the Human Rights Council in Australia at the time of preparation of the shadow report. He ‘can’t confirm whether the 1995 ICCPR alternative report was the first though [he is] quite sure that it was the first to be done collectively in the way that [they] did it. [He is] fairly sure that on previous occasions, individual organisations (eg ICJ and maybe Amnesty) had submitted independent reports to the Committee when Australia was being considered?’. The Human Rights Council coordinated the shadow report, seeking input from other NGOs such as the National Children’s and Youth Law Centre. See Email from James McDougall, Director, National Children's and Youth Law Centre to the Author, 10 September 2007. 231 See, eg, Aboriginal and Torres Strait Islander Commission, 'Aboriginal and Torres Strait Islander Peoples and Australia's Obligations under the United Nations International Covenant on Civil and Political Rights ' (2000); National Children's and Youth Law Centre and Defence for Children International - Australian Section, 'Submission to the Human Rights Committee concerning Australia's third and fourth periodic reports under the International Covenant on Civil and Political Rights ' (2000); Womens Rights Action Network Australia, 'Mandatory Sentencing: Patterns of Gender and Racial Discrimination caused by the Northern Territory and Western Australia Mandatory Sentencing Legislation' (2000). 232 See, eg, Australian Social and Economic Rights Project, 'Australia's Compliance with the UN Covenant on Economic, Social and Cultural Rights: Community Perspectives' (2000); Aboriginal and Torres Strait Islander Commission, 'Aboriginal and Torres Strait Islander Peoples and Australia's Obligations under the United Nations International Covenant on Economic, Social and Cultural Rights' (2000); Human Rights and Equal Opportunity Commission, 'Submission to the Committee on Economic, Social and Cultural Rights' (2000); Redfern Legal Centre and Rentwatchers, 'The Human Right to Adequate Housing in Australia: A Report to the United Nations Committee on International Covenant on Economic, Social and Cultural Rights, April 1999' (1999); Womens Rights Action Network Australia, 'Retreating from the Full Realization of Economic, Social and Cultural Rights in Australia: A Gendered Analysis' (2000).

Committee235 and the CRC.236 For example, in 1999, the ASERP Project and other organisations lodged shadow reports with the CESCR in the lead up to the review of Australia’s state report in 2000.237 The treaty body was responsive to a wide range of the concerns raised by NGOs including forced evictions arising out of the Sydney Olympics, lack of paid maternity leave, lack of collective bargaining rights and the extreme disadvantage experienced by Indigenous Australians in the realisation of their economic, social and cultural rights.238

Interestingly, the increased activity of Australian NGOs at the international level is a factor that is not commonly recognised as contributing to the heightened criticism of the Australian government by UN bodies.239 However, it is a factor that did not

233 See, eg, Aboriginal and Torres Strait Islander Commission, 'Submission of the Aboriginal and Torres Strait Islander Commission, Australia, to the 56th Session of Committee on the Elimination of Racial Discrimination' (2000); National Human Rights Network of the National Association of Community Legal Centres, 'Australian Non-government Organisations' Submission to the Committee on the Elimination of Racial Discrimination' (2005). 234 See, eg, Aboriginal and Torres Strait Islander Commission, 'Aboriginal and Torres Strait Islander Peoples and Australia's Obligations under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment' (2000). 235 See, eg, Women's Rights Action Network Australia, 'Australian NGO Shadow Report on the Implementation of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)' (2005); Koorie Women Mean Business and National Network of Indigenous Women's Legal Services, 'Australian NGO Shadow Report on the Implementation of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)' (2005); UNANIMA International, Congregation of Sisters of the Good Shepherd and International Presentation Association, 'Australian NGO Shadow Report on Trafficked Women in Australia' (2006). 236 See, eg, Defence for Children International - Australian Section, 'Australia's promises to children - the alternative report' (1996); National Children's and Youth Law Centre and Defence for Children International - Australian Section, 'The Non-Government Report on the Implementation of the United Nations Convention on the Rights of the Child in Australia' (2005). 237 See, further, Chapter Three. See also Glenn Menner, 'The Australian Social and Economic Rights Project (ASERP) - Lessons for Housing Rights Advocacy' (2004) 17(1) Parity 19. 238 Concluding observations of the Committee on Economic, Social and Cultural Rights: Australia, UN Doc E/C.12/1/Add.50 (2000). 239 For example, see Greg Marks, 'Australia, the Committee on the Elimination of All Forms of Racial Discrimination and Indigenous Rights' (2004) 6(7) Indigenous Law Bulletin 11. ATSIC had recently funded for the first time an international advocacy program, funding a permanent presence in Geneva.

escape the notice of the former Howard Coalition Government. As part of its assault on the UN human rights treaty body system in the wake of the CERD concluding observations in 2000, the former federal government consistently questioned the veracity of the information presented by Australian NGOs to the UN and criticised the weight that the treaty bodies were giving to such evidence.240

See David Marr, Geneva v Canberra (2005) Sydney Morning Herald at 5 September 2007 :‘At this point ATSIC began to fund a program of international advocacy. Malezer was ATSIC's very active man in Geneva.’ 240 For example, in the fallout of the release of the Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/C/304/Add.101 (2000), the former Minister for Foreign Affairs, Alexander Downer, complained that the CERD Committee’s response was ‘based on an uncritical acceptance of the claims of domestic political lobbies and takes little account of the considered reports submitted by Government.’ See Minister for Foreign Affairs, 'Government to Review UN Treaty Committees' (Press Release, 30 March 2000), cited in Spencer Zifcak, 'The New Anti-Internationalism: Australian and the United Nations Human Rights Treaty System' (The Australia Institute, 2003), 24. The Australian government announced a treaty review in the wake of these events, and, following the internal review, stated, inter alia, that the system was in need of radical reform ‘to ensure adequate recognition of the primary role of democratically elected governments and the subordinate role of non-government organisations.’ See Spencer Zifcak, 'The New Anti-Internationalism: Australian and the United Nations Human Rights Treaty System' (The Australia Institute, 2003), 24. ‘Australia has been sharply critical of committees relying too heavily on submissions made to them by national and international non-governmental organisations affiliated with the UN and too lightly on the reports and representations of government. It appeared particularly stung by the influence it attributed to organisations representing the interests of indigenous peoples in relation to the CERD Committee’s conclusions. Here it is difficult to disentangle the issue as to the proper weight to be given to the submissions of non-governmental human rights organisations from that of the Government’s belief that the committee sided unfairly with its critics.’: at 39. In 2006, the Australian government released the Department of Foreign Affairs and Trade, 'Reform of the United Nations Human Rights Treaty Body System: Australian Initiatives ' (Commonwealth of Australia, 2006), which reiterated its concern about the role of NGOs in the UN human rights system: ‘NGOs can play a valuable role in providing information to the treaty bodies notably on closed or undemocratic countries, and their broader engagement with the international human rights machinery is important. But at times committees have given precedence to the views of NGOs over detailed information provided by democratically elected governments and governments have been given little opportunity to respond to criticisms at hearings. This has lead to perceptions that committees have become politicised … Committees, on the whole, take their role seriously and do good work. But some of the committees

As this recent track records confirms, a shadow report can be used as a human rights tool at international level in order to elicit expressions of concern and recognition by an independent body of human rights experts of a human rights issue, such as the treatment of people living in public space. The extent to which shadow reports have been used in support of this matter is elucidated in Chapter Three.

3 Individual Communications In the case of three of the six treaties to which Australia is a party, a person may lodge with the relevant treaty body an individual communication alleging a human rights violation. The HRC may receive individual communications under the First Optional Protocol of the ICCPR.241 Article 22 of CAT enables individual communications to the CAT Committee and art 14 of CERD provides for individual communications to the CERD Committee.242 The CEDAW Committee receives individual communications under the Optional Protocol to CEDAW.243 However, the former Howard government determined not to ratify this instrument.244 Further, although the Howard government signed the Convention on the Rights of People with Disabilities, have, at times, shown themselves to be unduly susceptible to information provided by NGOs and have overstepped their mandates.’ 241 International Covenant on Civil and Political Rights, First Optional Protocol, opened for signature 16 December 1966, 999 UNTS 302 (entered into force 23 March 1976). For an overview of the procedure, see Elizabeth Evatt, 'Reflecting on the role of international communications in implementing human rights' (1999) 5(2) Australian Journal of Human Rights 20. See also Scott Davidson, 'Procedure under the Optional Protocol' in Alex Conte, Scott Davidson and Richard Burchill (eds), Defining civil and political rights: the jurisprudence of the United Nations Human Rights Committee (2004) 17. 242 For an overview of the individual communications procedures under CERD and CAT, see Sarah Pritchard, 'Breaking the national sound barrier: communicating with the CERD and CAT Committees' (1999) 5(2) Australian Journal of Human Rights 67. 243 Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 10 December 1999, UN Doc A/54/49, entered into force 22 December 2000. 244 See Australian Minister for Foreign Affairs, Alexander Downer, Attorney-General, The Hon Daryl Williams AM QC MP, Minister for Immigration and Multicultural Affairs, The Hon Philip Ruddock MP, 'Improving the Effectiveness of United Nations Committees' (Press Release, 29 August 2000).

it did not sign the subsequent Optional Protocol to the Convention. The newly- elected Rudd Labor Government has a policy commitment to ratifying the Optional Protocol to CEDAW.245 There is currently no individual complaints mechanism available under the ICESCR246 or CROC.

Each treaty body makes decisions on individual communications and publishes their ‘views’, together with any proposals for remedial action to be taken by a state party if

245 Australian Labor Party, '2007 National Platform Chapter 13: Respecting Human Rights and a Fair Go for All' (2007), 209: ‘Labor will … provide Australian women with a new avenue to seek redress of their fundamental human rights where domestic avenues have been exhausted, by signing and pursuing ratification, through domestic treaty-making processes, of the Option Protocol to the UN Convention on the Elimination of All Forms of Discrimination against Women.’ 246 Note that there is ongoing effort to develop an Optional Protocol for the ICESCR, particularly through the work of the Open-Ended Working Group to Consider Options Regarding the Elaboration of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. The newly-constituted UN Human Rights Council discussed the Report of the Open-Ended Working Group at its First Session in June 2006, including the question of whether or not the Working Group’s Mandate should continue and whether or not it should now proceed with drafting an Optional Protocol, or continue to discuss the option of not having an Optional Protocol to the Convention. The UN Human Rights Council resolved to extend the mandate of the Working Group for a period of two years in order to elaborate an optional protocol to the International Covenant on Economic, Social and Cultural Rights and has requested that a first draft Optional Protocol now be prepared. This is a positive result. However, it is disappointing that the former Australian Government once again spoke against the proposal for the Optional Protocol, arguing that: (1) individual complaints mechanisms did little to improve the situations of peoples in countries where some of the most egregious human rights abuses occurred; (2) the existing Committee on Economic, Social and Cultural Rights ‘already offered a constructive and valuable way to encourage and assist all States parties to meet their obligations under the Covenant’; and (3) there were many and divided views on the merits of an Optional Protocol and ‘Australia was not convinced that such an exercise represented the best means of promoting and protecting economic, social and cultural rights.’ For the full summary of the discussions of the UN Human Rights Council, see United Nations Human Rights Council, 'Human Rights Council Discusses Draft Treaties on Economic, Social and Cultural Rights and Enforced Disappearance' (Press Release, 27 June 2006). For the resolution extending the mandate of the Open-Ended Working Group, see Implementation of General Assembly Resolution 60/251 of 15 March 2006 Entitled "Human Rights Council", UN Doc A/HRC/1/L.4/Rev.1 (2006). See also Martin Scheinin, 'The Proposed Optional Protocol to the Covenant on Economic, Social and Cultural Rights: A Blueprint for UN Human Rights Treaty Body Reform - Without Amending the Existing Treaties' (2006) 6 Human Rights Law Review 131 for discussion about some of the options under consideration for the Optional Protocol mechanism.

that state party is found to have breached a treaty obligation. Unlike the concluding observations of the treaty bodies under the periodic reporting process, the decisions arising out of individual communications explicitly identify breaches of specific provisions of treaty obligations and are considered to be of a jurisprudential character.

As at June 2006, there had been 44 decisions by human rights treaty bodies in response to individual communications lodged by persons alleging human rights violations against Australia and, in 12 cases, the treaty body made an adverse finding against Australia.247 However, the decisions of UN human rights treaty bodies are not binding on Australia, and ‘[t]he only means of enforcement open … is publicity.’248 With the exception of Toonen v Australia,249 the former Australian government failed to take explicit remedial action with respect to any adverse decisions of the human

247 Hilary Charlesworth, 'Human Rights: Australia versus the UN' (Democratic Audit of Australia 2006), 2. Note however that this does not include instances where the Australian government may have modified its position in response to the lodging of an individual communication, leading to the matter no longer proceeding to a decision-making stage. See Elizabeth Evatt, 'Reflecting on the role of international communications in implementing human rights' (1999) 5(2) Australian Journal of Human Rights 20, 32: ‘In one case, Australia did reassess its position before the matter reached admissibility stage. The complainant was given a resident visa and the Committee expressed its satisfaction that a remedy had been provided (citations omitted).’ See Ramsey v Australia, Case No 655/1995, Discontinued. 248 Shane Monks, 'In Defence of the Use of Public International Law by Australian Courts' (2002) 22 Australian Year Book of International Law 201, 203. Hilary Charlesworth points out that the Australian government has failed to publicise the decisions of the UN human rights treaty bodies, although this is a standard recommendation by each committee. See Hilary Charlesworth, 'Human Rights: Australia versus the UN' (Democratic Audit of Australia 2006). 249 Communication No 488/1992, UN Doc CCPR/C/50/D/488/1992 (1994) (‘the Toonen case’). For background to the Toonen case, see, eg, Shane Monks, 'In Defence of the Use of Public International Law by Australian Courts' (2002) 22 Australian Year Book of International Law 201, 202-3; Michael Kirby, 'Law, Like the Olympics, is Now International - But will Australia Win Gold?' (2000) 7 James Cook University Law Review 4, 11-2; Wayne Morgan, 'Identifying Evil for What It Is: Tasmania, Sexual Perversity and the United Nations' (1994) 19 Melbourne University Law Journal 740, esp 741- 6; and Kristen Walker, 'International Human Rights Law and Sexuality: Strategies for Domestic Litigation' (1998) 3 New York City Law Review 115, 120-30. For a critique of the Australian government’s remedial action in response to the Toonen case, see Wayne Morgan, 'Protecting Rights or Just Passing the Buck? The Human Rights (Sexual Conduct) Bill 1994 ' (1994) 1 Australian Journal of Human Rights 409.

rights treaty bodies under individual communications procedures.250 This was consistent with its generally dismissive approach to critical statements from UN bodies and officials, discussed above.251 However, an indirect impact on government policy, whilst difficult to measure, should not be underestimated. For example, in Young v Australia,252 Mr Young was successful in his individual communication to the HRC, which found that the inability of Mr Young to claim a war widower’s pension and bereavement benefit under the Veteran’s Entitlement Act 1986 (Cth) upon death of his same sex, war-veteran partner constituted a violation of art 26 of the ICCPR, which protects the right to equality before the law and the equal protection of the law. The former Howard government refused to explicitly accept the findings of the HRC, and rejected the argument that Mr Young was entitled to an effective remedy.253 However, the former Prime Minister subsequently affirmed his preparedness to ‘seek to remove areas of discrimination against homosexuals, gay and lesbian people, we don’t seek to maintain discrimination’.254 Recently, the Human Rights and Equal Opportunity Commission has undertaken its National Inquiry into Discrimination against People in Same-Sex Relationships: Financial and Work- Related Entitlements and Benefits, recommending that discrimination against same- sex couples be comprehensively removed from federal legislation dealing with such

250 See Spencer Zifcak, 'The New Anti-Internationalism: Australian and the United Nations Human Rights Treaty System' (The Australia Institute, 2003), iii: ‘The Howard Government's response to consistent and concerted international criticism by the UN, however, has been particularly severe. It has rejected all adverse comment categorically and has instead called for the complete overhaul of the UN human rights treaty body system itself.’ See also Wayne Morgan, 'Passive/Aggressive: the Australian Government's Responses to Optional Protocol communications' (1999) 5(2) Australian Journal of Human Rights 22; Hilary Charlesworth, 'Human Rights: Australia versus the UN' (Democratic Audit of Australia 2006). 251 See Devika Hovell, 'The Sovereignty Stratagem ' (2003) 28(6) Alternative Law Journal 297. 252 Communication No 941/2000 (6 August 2003). 253 Hilary Charlesworth, 'Human Rights: Australia versus the UN' (Democratic Audit of Australia 2006), 6. 254 Prime Minister, the Hon John Howard MP, Joint Press Conference with the Hon Kevin Andrews MP, and Mr Nicholas Wilson, Executive Director of the Office of Workplace Services, Parliament House, Canberra, 30 March 2006.

entitlements.255 Both the new Rudd Labor Government and Opposition Leader, Brendan Nelson, have made a commitment to remove discrimination of this kind under federal legislation.256

4 Special Procedures In addition to the shadow reporting and individual communications procedures, individuals and groups can make use of a range of special procedures available under the mandates of various UN human rights bodies or offices to highlight human rights concerns in Australia. Some examples are provided below.

Under the terms of her mandate, the UN Human Rights Commissioner may seek permission from a Member State to undertake a mission to the country concerned in order to investigate human rights issues on an ad hoc basis.257 In accordance with this procedure, in 2002, the former UN Human Rights Commissioner, Mary Robinson, obtained permission from the Australian government to send her Special Envoy and Regional Adviser for Asia and the Pacific, Justice P N Bhagwati, to Australia ‘to look at and report on human rights issues with regard to the treatment of asylum seekers currently in detention in Australia, with a specific focus on Woomera Immigration Reception and Processing Centre (IRPC) in Southern Australia.’258 Justice Bhagwati concluded that ‘the human rights situation of persons in immigration detention in Australia is a matter of serious concern’ and made a series of recommendations.259 Once again, the Howard government flatly rejected his findings, commenting that his

255 Human Rights and Equal Opportunity Commission, 'Same-Sex:Same Entitlements - National Inquiry into Discrimination against People in Same-Sex Relationships: Financial and Work-Related Entitlements and Benefits' (2007). 256 See Australian Labor Party, '2007 National Platform Chapter 13: Respecting Human Rights and a Fair Go for All' (2007), 207 and Australian Broadcasting Commission, Brendan Nelson joins the Insiders (2007) at 16 December 2007. 257 High Commissioner for the promotion and protection of all human rights, GA Res 48/141, UN Doc A/RES/48/141. 258 Justice P N Bhagwati, 'Human Rights and Immigration Detention in Australia: Mission to Australia 24 May to 2 June 2002' (UN High Commissioner for Human Rights 2002). 259 Ibid 19.

report was ‘fundamentally flawed’, containing ‘a number of emotive descriptions and assertions that have no foundation in the human rights instruments to which Australia is party.’260

In 1994, the CERD Committee adopted the proposal to establish early warning and urgent action procedures, as additional means for seeking to prevent racial discrimination, or to respond to serious allegations in a timely fashion. The early warning and urgent action procedure is aimed ‘at preventing existing problems from escalating into conflicts and can also include confidence-building measures to identify and support whatever strengthens and reinforces racial tolerance, particularly to prevent a resumption of conflict where it has previously occurred.’261 Urgent procedures are ‘to respond to problems requiring immediate attention to prevent or limit the scale or number of serious violations of the Convention.’262 The Committee adopts statements, decisions or resolutions arising out of its investigations under each of these procedures.

In 1998, the CERD Committee used its early warning procedure against Australia — the first time against any Western nation263 — regarding the proposal by the Australian government to amend the Native Title Act 1993 (Cth), and ‘any changes of policy in the State party as to Aboriginal land rights and reforms to the position of the Aboriginal and Torres Strait Social Justice Commissioner of the Australian Human Rights and Equal Opportunity Commission.’264 The Australian government prepared

260 Sydney Morning Herald, UN envoy slams Australian detention policy (2002) at 27 July 2006 citing the Joint Statement issued by the Minister for Foreign Affairs, Alexander Downer, the Attorney-General, Daryl Williams and the Immigration Minister, Philip Ruddock released in response to the Bhagwati report. 261 Office of the United Nations High Commissioner for Human Rights, Committee on the Elimination of Racial Discrimination - Early-Warning Measures and Urgent Procedures (2006) at 28 July 2006. 262 Ibid. 263 David Marr, Geneva v Canberra (2005) Sydney Morning Herald at 5 September 2007. 264 Procedural Decisions of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc A/53/18, para IIb1 (1998).

a detailed response for the Committee,265 which also had the benefit of submissions from the Australian Human Rights and Equal Opportunity Commission.266 The Committee concluded that the proposal to amend the Act appeared to

wind back the protections of indigenous title offered in the Mabo decision of the High Court of Australia and the 1993 Native Title Act. As such the amended Act cannot be considered to be a special measure with the meaning of articles 1(4) and 2(2) of the Convention and raises concern about the State party’s compliance with articles 2 and 5 of the Convention.267

The Committee also expressed concern about the proposal to abolish the position of the Aboriginal and Torres Strait Islander Commissioner. Unsurprisingly, the Australian government dismissed these observations and took no regard of the recommendations of the Committee.

The CERD Committee’s conclusions were rejected by the Commonwealth Attorney- General, Daryl Williams, as an ‘insult’ to Australia. In an interview on ABC radio he stated: ‘I don’t feel the least bit of embarrassment on behalf of Australia because regrettably the Committee has presented an unbalanced report which doesn’t recognise any of the submissions made by the Government.268

In addition to the role of the UN High Commissioner for Human Rights, and early warning procedures under CERD, a system of special procedures has been established by the former Commission on Human Rights (and now transferred to the new Human Rights Council) to address either country-specific or thematic human rights concerns. Whilst the work varies in its content, and emphasis, each mandate-holder or working group established under these special procedures generally has a role in reporting to

265 Additional Information pursuant to Committee Decision: Australia, UN Doc CERD/C/347 (1999) . 266 Committee on the Elimination of Racial Discrimination, Decision 2(54) on Australia: Australia, UN Doc A/54/18, para 21(2) (1999) , [2]. 267 Ibid [8]. 268 Sarah Pritchard, 'Breaking the national sound barrier: communicating with the CERD and CAT Committees' (1999) 5(2) Australian Journal of Human Rights 67, 86, citing 'Native title laws breach UN race rules', The Weekend Australian 20-21 March 1999, 3.

the intergovernmental bodies, conducting research on issues of concern, carrying out country visits, receiving and responding to victims of human rights violations, intervening with governments on their behalf, providing technical assistance and participating in development of the normative content of relevant human rights standards.269

Australia has not been the subject of a country-specific mandate, but there is a number of thematic mandates that may be brought to bear on human rights situations in Australia, including:

• Special Rapporteur on Adequate Housing, Mr Miloon Kothari; • Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Mr Paul Hunt; • Independent Expert on Extreme Poverty, Mr Arjun Sengupta; • Special Rapporteur of the Commission on Human Rights on the situation of human rights and fundamental freedoms of indigenous people, Mr Rodolfo Stavenhagen; and • Special Rapporteur on Violence Against Women, including its causes and consequences, Dr Yakin Erturk.

In the Australian context, the mandate-holder who has had most direct involvement in the scrutiny of Australia’s human rights record is the Special Rapporteur on Adequate Housing, Miloon Kothari. The detail of this engagement is examined in Chapter Three, with particular reference to the extent to which the treatment of people living in public space, particularly their criminalisation and forced eviction, has become an issue of his concern.270

269 For detail of the work of experts appointed under the Special Procedures system, see OHCHR, 'Manual of the United Nations Human Rights Special Procedures (draft) ' (2006) at 19 August 2007. 270 See Chapter Three.

F Conclusion

This chapter has provided an overview of the legal and human rights context within which people living in public space continue to be criminalised and forcibly evicted. The first section reviewed recent legislative and policy developments that have increased the legal regulation of public space, demonstrating a continuing law and order approach to the treatment of people living in those places, including people who are homeless.

The chapter then introduced the limited range of domestic human rights remedies that might be used by people living in public space to challenge their treatment within the domestic legal setting. Few options exist in most jurisdictions. However, internationally, there is a wide range of human rights strategies available, including engagement with human rights treaty bodies through shadow reports, lodging an individual communication, or through the use of the range of special procedures that now exist within the UN human rights system. As has been demonstrated, there is a diverse set of options available under the UN human rights system to lodge a concern regarding the forced eviction and criminalisation of people living in public space.

It is apparent that, generally, NGOs in Australia have become increasingly active in the use of these UN human rights mechanisms to augment domestic advocacy efforts on human rights concerns, particularly in the areas of indigenous rights and refugee rights, women’s rights, children’s rights and the right to adequate housing. As explained further in Chapter Three, this increased activity is linked to a range of domestic and international factors, including reforms within the UN systems to increase accessibility for NGO participation, retrogressive measures that were introduced and driven through by the former Coalition government and its intractability in the face of domestic human rights advocacy efforts, bringing into stark relief the significant inadequacies in domestic human rights legal protections, particularly the absence of domestic legal remedies. The increased role of Australian NGOs at the international level is also linked to the globalisation of the NGO sector and the capacities created by new technologies that have, to a large degree, overcome

the isolation from the global community of people living on the world’s largest island.271

Having introduced the range of human rights tools available, and some examples of their use, the next chapter reviews domestic and international advocacy efforts that use human rights tools to challenge the treatment of people living in public space. Chapter Three provides a detailed analysis of the use of these human rights tools, and the various arguments that have been made by Australian academics, lawyers and advocates about the extent to which the legal regulation of human behaviour in public space may violate the international human rights of people who are homeless, and if so, in what respects. This analysis will show that it has been asserted that a wide range of international human rights norms may be violated or at least engaged by the criminalisation or forced eviction of people living in public spaces.

However, as Chapter Three will show, until very recently, there had been no independent assessment or finding made to verify these claims. There has also been no adjudication of a particular case by any Australian domestic court or UN human rights treaty body that Australia is in violation of its international human rights obligations in the manner in which people living in public space are criminalised or forcibly evicted through public space laws, such as anti-sleeping by-laws or move on powers.

271 See, further, Chapter Three.

72 3 THE USE OF HUMAN RIGHTS LAWS TO CHALLENGE THE CRIMINALISATION AND FORCED EVICTION OF PEOPLE LIVING IN PUBLIC SPACE

A Introduction

As Chapter Two has shown, there has been renewed and continuing political and public interest in ‘law and order’ policing and the use of laws to regulate human behaviour in public spaces. The expansion of ‘move on’ powers is a particular phenomenon in the Northern Territory, Western Australia and Queensland, three jurisdictions with, interestingly, the larger proportional Indigenous populations in Australia.272 This growth in public space laws has been undertaken within the Australian legal and human rights context in which there are minimal justiciable substantive human rights protections which might be used to challenge the ways in which such regulations have been used to criminalise and forcibly evict people living in public space. There are no express constitutional rights that could be brought to bear on testing out whether such criminalisation and forced evictions are compliant with international human rights norms.273 Further, there are few statutory provisions that domestically implement the majority of human rights contained within the major international human rights treaties, including the International Covenant on Civil and

272 According to the 2001 Census, the percentage of each state and territory’s population who were Indigenous was as follows, from greatest to least: NT – 25.05%; Tas – 3.46%; WA – 3.19%; Qld – 3.14%; NSW – 1.90%; SA – 1.61%; ACT – 1.1%; Vic – 0.54%. See Australian Bureau of Statistics, 4705.0 - Population Distribution, Indigenous Australians, 2001 (2002) Australian Bureau of Statistics at 3 June 2007. 273 It has been argued that the implied right to political communication recognised in Lange v Australian Broadcasting Commission (1997) 189 CLR 520 may provide a constitutional basis for challenging anti-begging laws. See Tamara Walsh, 'Defending Begging Offenders' (2004) 4(1) Queensland University of Technology Law & Justice Journal 58, 65-8.

73 Political Rights (‘ICCPR’)274 or the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’),275 with the recent exception of the human rights laws enacted in the Australian Capital Territory (‘ACT’) and Victoria. The extent to which either of these human rights enactments provides effective domestic legal means to challenge the criminalisation and forced eviction of people living in public space is as yet untested.

In contrast to this paucity of effective domestic legal remedies, Chapter Two has also demonstrated that a wide range of human rights-based strategies are available at the international level, including shadow reports, individual communications, and special procedures. These mechanisms have all been used by Australians in various contexts to increase the international scrutiny of Australia’s human rights record, particularly since the late 1990s under the former Howard Coalition government.

This chapter now focuses specifically on human rights-based action that has been used to challenge the treatment of homeless people, with particular reference to the treatment of people living in public space. This chapter will show that public space laws have become a significant concern amongst a growing body of lawyers, academics and advocates, and there has been increasing use of human rights-based strategies to challenge current laws, policies and practices that operate to criminalise and forcibly evict people living in public spaces.

The chapter firstly tracks the expansion of work by legal and human rights-based lawyers, academics and advocates who have engaged with the extent to which public space laws are being used against people living in public space. It will reveal a dramatic increase since the late 1990s in legal and human rights-based research, policy debate and advocacy regarding the treatment of people living in public space.

274 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). 275 International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 999 UNTS 3 (entered into force 3 January 1973).

74 Having tracked the growth in interest regarding these questions, the chapter then reviews the body of academic, legal and advocacy work that has been generated. The chapter identifies the specific writings, advocacy efforts and litigation strategies that have dealt with the criminalisation and forced eviction of people living in public space in Australia. The review is undertaken to highlight the international human rights norms that have been referenced to argue in both the domestic and international setting that the treatment of people living in public space may be in violation of Australia’s international human rights obligations. The review will show that lawyers, researchers and advocates have asserted that public space laws, when used against people living in public spaces, violate a wide range of international human rights. The views are most commonly expressed in general terms without detailed analysis of relevant international and comparative legal sources and jurisprudence applied to a detailed set of facts.

There have been few independent assessments regarding the merits of these claims in the Australian setting. The former Federal Race Discrimination Commissioner, Dr Bill Jonas, a statutory officer of the Australian Human Rights and Equal Opportunity Commission (‘HREOC’) expressed the view that the treatment of Indigenous people in public space may amount to racial discrimination,276 and indicated an intention to conduct a national inquiry into the regulation of the presence of Indigenous people in public spaces.277 At the international level, on 11 May 2007, the UN Special Rapporteur on Adequate Housing, Miloon Kothari, found that it is likely that Australia’s treatment of people living in public space is in breach of its international human rights obligations. 278 This was the first occasion upon which any part of the international human rights system had made an independent finding against Australia

276 Human Rights and Equal Opportunity Commission, 'Allegations of Discrimination in Townsville' (Press Release, 1 May 2003); Human Rights and Equal Opportunity Commission, 'Townsville Indigenous people at risk' (Press Release, 26 June 2003); Human Rights and Equal Opportunity Commission, 'Adelaide City Dry Area' (Press Release, 30 September 2002). 277 Human Rights and Equal Opportunity Commission, 'Townsville Indigenous people at risk' (Press Release, 26 June 2003). 278 Miloon Kothari, Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Miloon Kothari, Addendum, Mission to Australia (31 July to 15 August 2006, UN Doc A/HRC/4/18/Add.2, (2007), [47], [132].

75 to this effect. However, to date, there has been no independent finding by a domestic court or tribunal or by an international human rights treaty body that a specific example of criminalisation or forced eviction of a person living in public space violates an international human right norm.

B Legal and Human Rights Advocacy in Support of People who are Homeless

1 Overview Historically, in Australia, there has been a tendency for the legal profession to see the issue of homelessness as an area where the law has little to offer. Homelessness has more typically been perceived as a ‘non-legal’ welfare problem, linked to lack of employment, abuse of alcohol, mental health issues, and other individual circumstances rather than attributable, in part, to a lack of legal protection of people’s basic human rights, or other systemic legal institutional failings.279 This attitude is likely due to a range of features of Australian legal institutional frameworks including restrictions on the statutory legal aid system’s capacity to provide legal assistance in areas of high priority to people facing homelessness280 and the lack of domestic legal protection of fundamental human rights that are typically violated when a person is homeless. The legal profession has typically also had a limited understanding of international and comparative human rights law regarding housing rights, and the profession is likely to hold similar beliefs to the wider community about the causes of homelessness being grounded in individual circumstances, rather than a denial of fundamental rights.281

279 Cassandra Goldie, 'Living in Public Space: a human rights wasteland?' (2002) 27(6) Alternative Law Journal 277; Di Otto, 'Homelessness and Human Rights: Engaging human rights discourse in the Australian context' (2002) 27(6) Alternative Law Journal 271; Di Otto, 'Rethinking Homelessness' (2004) 17(1) Parity 6. 280 Under state and territory legal aid commission guidelines, it is usually difficult to get legal aid for defending a public space offence, due to the unlikelihood that a person will face immediate imprisonment if convicted. It is also usually difficult to get legal aid to defend an eviction application. 281 There is no direct research on point to support this contention regarding the legal profession. However, recent research has affirmed that the majority of the ‘general public’ believes that people are homeless due to their own individual actions and failings, rather than to broader systemic factors that are outside their control, such as failings by other bodies or institutions to fulfil obligations, including

Even amongst legal practitioners and advocates grounded in human rights law and advocacy, homelessness has more typically been seen as an issue associated with economic, social and cultural rights discourse, in particular the ‘right to adequate housing’ contained in art 11(1) of the ICESCR.282 As noted in Chapter Two, economic, social and cultural human rights, including the right to adequate housing, have not been comprehensively incorporated into the domestic legal system of Australia and are considered by some to not constitute ‘rights’ nor be amenable to justiciability before the courts.283 Accordingly, in Australia, homelessness has been too easily dismissed as a problem not amenable to ‘rights-based’ intervention.

Until the late 1990s, community and welfare groups had more commonly seen the legal system as a tool of oppression of people who are homeless, rather than as a tool for change.284 Accordingly, links between legal functionaries and community activists

ensuring an adequate supply of affordable stable accommodation or suitable employment opportunities. See Mission Australia Research and Social Policy, 'Homelessness: What Australia says' (Mission Australia, 2002): ‘People were more likely to nominate personal factors as a cause of homelessness, than structural issues (like high housing costs or unemployment)…’ See also the findings of research commissioned by Hanover Welfare Services in 2006 which found that most members of the public believed that people who were homeless ‘only had themselves to blame’. See Hanover Welfare Services, 'New research shows the public believe homeless people only have themselves to blame' (Press Release, 19 October 2006). 282 See Cassandra Goldie, 'Living in Public Space: a human rights wasteland?' (2002) 27(6) Alternative Law Journal 277; Philip Lynch and Jacqueline Cole, 'Homelessness and Human Rights: Regarding and Responding to Homelessness as a Human Rights Violation' (2003) 4 Melbourne Journal of International Law 139. Interestingly, conversations during the course of this thesis revealed that persons typically assumed that this author was writing about the right to adequate housing in the area of economic, social and cultural rights, given the focus of the thesis on the human rights of people living in public space. 283 See Centre on Housing Rights and Evictions, '50 Leading Cases on Economic, Social and Cultural Rights' (Centre on Housing Rights and Evictions, 2003), 5: ‘It is often asserted - or lamented - that economic, social and cultural rights "have no substantial body of domestic jurisprudence to facilitate their elaboration, unlike civil and political rights"’, citing Simon Tay and Goh Chien Yen, 'Economic social and Cultural Rights in ASEAN: A Survey' (Friedrich Ebert Stiftung, 2001). 284 Di Otto, 'Rethinking Homelessness' (2004) 17(1) Parity 6, 6: ‘the language of human rights was not part of the social justice vocabulary of [the 1970s and 1980s]. We spoke of empowerment, self-help,

77 had not been developed and consolidated. With some notable exceptions,285 there had been relatively limited debate in Australia amongst legal functionaries or community activists about the existing ‘rights’ of people facing homelessness, both legal and human rights, and how people might pursue those rights to assert greater control and legitimacy, inside and out of the domestic courts and at international level. The absence of a human rights analysis has been particularly evident.286 In 1975, Justice Ronald Sackville delivered his seminal report, Homeless People and the Law (the Sackville Report)287 and over the years, some significant papers and reports had been written, particularly HREOC’s National Inquiry into Homeless Children (commonly referred to as the ‘Burdekin Report’).288 There have also been important legal and social campaigns in support of people facing homelessness, such as the Rent Watchers campaign leading up to the 2000 Olympics in Sydney,289 and the campaign against loitering offences in Port Kembla.290 However, reports and campaigns tended to be localised endeavours without the capacity to continue a broader campaign of community and legal activism needed to define and secure legal protection of the basic human rights of people facing homelessness as a national concern.

As will be shown in this chapter, this advocacy landscape has changed significantly since the last 1990s, particularly with the growth in specialist legal assistance for

community participation, and holding governments accountable, but without resource to the law to legitimate these claims, or to enforce them. This blindness to the potential of legal strategies to assist social justice goals was attributable to the widely held view that the law worked against the interest of marginalised groups, operating as an instrument of the wealthy to maintain structural disadvantage, rather than providing a means to challenging inequalities.’ 285 For example, there had been long standing expressions of concerns about the criminalisation of Indigenous people through enforcement of ‘street offences’ or public order offences. See Chapter Two. 286 Ronald Sackville, 'Homelessness, Human Rights and the Law' (2004) 10(2) Australian Journal of Human Rights 11, 14. 287 Ronald Sackville, 'Homeless People and the Law' (Commission of Inquiry into Poverty, 1975). 288 Human Rights and Equal Opportunity Commission, 'Our Homeless Children: Report of the National Inquiry into Homeless Children' (Canberra: Australian Government Publishing Service, 1989). 289 Kylie Kilgour and Polly Porteous, 'Sharing the Spirit: The Impact of the Sydney 2000 Olympics on Human Rights in Australia' (1999) 22(3) UNSW Law Journal 813; Beth Jewell, 'Sydney 2000 and the Criminalisation of the Homeless' (2000) 13(6) Parity 20. 290 Danae Harvey, 'No Loitering Laws in Port Kembla, New South Wales' (2000) 13(6) Parity 15.

78 people experiencing homelessness, increased academic interest in the legal and human rights of homeless people, and the resultant increase in use of human rights standards and tools to advocate in support of people who are homeless, including people living in public space.

2 Access to Legal Assistance by People who are Homeless Australia has a well-developed legal aid system, described as ‘one of the most sophisticated … in the developed world’,291 consisting of four major components: statutory legal aid commissions, community legal centres, Indigenous legal services and pro bono legal services. Established in the 1970s, statutory legal aid commissions exist in each of the seven States and Territories, jointly funded by the Commonwealth, and State and Territory governments, with a total of 75 offices and over 2000 staff.292 Statutory legal aid commissions are the primary providers of direct legal services to people who are not in a position to pay for their own legal assistance. Legal aid commissions focus on legal assistance to defend serious criminal charges and assist family law problems, with attenuated civil law services.293 Until recently, there had been no specialised programmes for people who are homeless although many people assisted through duty lawyer services would have been homeless.294

Secondly, there are now over 200 community legal centres operating around the country. Community legal centres are independent, community-based organisations that are governed by volunteers and receive funding from a wide range of sources. Relying primarily on Commonwealth funding, whilst facing an 18% reduction in this

291 Victor Stojcevski, 'Access to Legal Assistance for Homeless People' (2004) 7(1) Parity 61. 292 Cassandra Goldie, 'Legal Aid and Access to Justice in Australia' (Paper presented at the Role of Legal Aid to Promote Access to Justice for Marginalized in the Context of Human Rights, Hotel Sahid, Jakarta, Indonesia, 21 April 2006), 2. 293 For example, in 2004/5, the breakdown of types of cases funded by Legal Aid Western Australia was: criminal law 66%; family law 28%; and civil law 6%. See Legal Aid Western Australia, 'Annual Report 2004/5 ' (2005). 294 See, eg, Legal Aid Queensland that has recently conducted a six month Homelessness and Street Offences Project, discussed below. See also Victor Stojcevski, 'Access to Legal Assistance for Homeless People' (2004) 7(1) Parity 61.

79 funding source over the last 10 years,295 most centres also receive supplementary funding from some State and Territory governments and philanthropic organisations. In addition to direct casework, community legal centres provide legal education and training to the community and are involved in law and policy reform and advocacy efforts. Centres provide general and specialist legal services in a wide range of poverty-law areas. Some centres provide specialist services that are important to people facing homelessness, particularly centres for young people, or in the area of social security law, and tenancy. However, until recently, there were few centres specialising in supporting people who are homeless.

Thirdly, the federal government provides funding on a tendered basis to specialist Indigenous legal services in each state and territory.296 These services are also significantly under-funded297 with the majority of effort taken up in providing criminal law legal representation298 in order to respond to the inordinately high rates of arrest and imprisonment of Indigenous people in Australia.299

295 National Association of Community Legal Centres, 'Submission to the Attorney-General Hon Philip Ruddock MP regarding the Internal Review of the Commonwealth Community Legal Services Program - CCLSP' (2007), 11. 296 Randal Ross, 'Indigenous Legal Services Restructured' (2006) Indigenous Law Bulletin 29. 297 See, eg, Peter Toyne, Minister for Justice and Attorney-General, Northern Territory, 'Submission to Joint Committee for Public Accounts and Audit: Indigenous Law and Justice Inquiry' (2004), 3: ‘Aboriginal and Torres Strait Islander Legal Services have struggled to meet this demand for legal assistance [due to the increased rates of apprehensions for criminal offences].’ 298 See, eg, ibid, 2: ‘Indigenous Legal Services in the Northern Territory have traditionally focussed on providing legal assistance in criminal matters and for Indigenous people living in remote areas.’ See, also, Jenny Hardy, Deputy Director, Northern Territory Legal Aid Commission, 'Submission to Joint Committee of Public Accounts and Audits re: Indigenous Law and Justice Inquiry' (2004). 299 See Human Rights and Equal Opportunity Commission Aboriginal and Torres Strait Islander Commissioner Website at http://www.hreoc.gov.au/social_justice/statistics/index.html#toc9: ‘The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) reported in 1991. At that time, Aboriginal people made up 14% of the total prison population and were up to 15 times more likely to be in prison than non-Aboriginal people. It made a large number of recommendations to address this issue. Despite this, the number of Indigenous prisoners increased over the last decade: Indigenous people represented 22% of the total prisoner population as at 30 June 2005. The total number in prison increased by 12% over 2004 to 2005 (from 5,084 to 5,656) (citations omitted).’ In South Australia, for eg, Aboriginal defendants appear in criminal matters at a rate of 257.6 per 1000 population, compared

Fourthly, pro bono legal services are an increasingly significant component of legal aid service delivery. Pro bono legal assistance has been a long-standing feature of the Australian private legal profession, pre-dating the establishment of the statutory legal aid system. However, in recent times, there has been a significant growth in pro bono schemes, particularly amongst larger law firms,300 with private lawyers undertaking controversial public interest cases in areas such as refugee law. 301

Legal aid commissions, community legal centres, Indigenous legal services and pro bono lawyers have been providing important direct legal services to people who are homeless for over 30 years. Yet, there has been a real need to do more. Speaking at a ‘Homelessness and the Law Forum’ in Melbourne in 2000, Denis Nelthorpe, then Director of the Consumer Law Centre Victoria, noted that

[t]here is a need to ensure better access to legal advice for homeless clients and a capacity to effectively deal with a wider range of legal issues and problems. This could include challenges to discrimination practices in the private rental market, to rules and administration of Centrelink,302 to State government housing programs and to unreasonable or discriminatory local government by-laws.

Homeless clients and their support workers could be better serviced, and perhaps even grasp the law as a weapon, if the legal profession and homeless agencies put

to 20.6 per 1000 for non-Aboriginal persons. See Marianne Nielsen, 'Indigenous-Run Legal Services in Australia and Canada' (2006) 16(3) International Criminal Justice Review 157, 159. 300 Michael Kirby, 'Law in Australia - Cause of Pride; Source of Dreams' (2005) 8 Flinders Journal of Law Reform 151, 158. See also Mary Rose Liverani, 'Pro bono attaining a new status in law firms' (2005) May Law Society Journal 18; and Fiona McLeay, 'The pros of pro bono' (2005) Australian Law Management Journal 14. 301 Michael Kirby, 'Law in Australia - Cause of Pride; Source of Dreams' (2005) 8 Flinders Journal of Law Reform 151, 158-9. 302 Centrelink is the federal agency of the Commonwealth Department of Human Services that delivers the social security payments and services in Australia.

81 their minds to the development of more flexible and innovative programs for delivery of legal services (footnote added).303

3 The Development of Specialist Legal Assistance for People who are Homeless In 1996, Nelthorpe formally supported Caitlin English, then Director of the Public Interest Law Clearinghouse (‘PILCH’) in Victoria to apply for a Churchill Fellowship to study pro bono legal services in the United States on the basis that she would give particular attention to homelessness service provision.304 PILCH was established in 1995 as a clearinghouse for pro bono services, basing itself on innovative models in the US.305 The English study arising out of the Churchill Fellowship concluded that ‘the United States was considerably further advanced in the provision of pro bono services than we were in Australia’ and noted ‘the leadership role of the American Bar Association in developing Bar pro bono schemes throughout the country.’306

As part of her tour through the US, English visited a number of specialist pro bono schemes for people experiencing homelessness, including Volunteer Lawyers for the Homeless established by the Legal Assistance Fund (‘LAF’) with 70 private attorneys attending homeless shelters and one LAF staff attorney to supervise, and the Public Counsel – Homelessness Prevention Law Project, which provides outreach services to people using homelessness services, drawing on summer clerks from the Public Interest Project at UCLA. English also highlighted the work of the National Law Centre on Homelessness and Poverty, the ‘Adopt a Shelter’ program in Hollywood and Santa Monica, the Homeless Youth Project in Los Angeles, and the Lawyers Clearinghouse on Affordable Housing and Homelessness in Boston. English urged ‘Australian lawyers and community advocates seeking to increase the rights and legal services to homeless people [to] benefit from examining further the activities of

303 Denis Nelthorpe, 'The Law - A Shield or a Sword?' (Paper presented at the Homelessness and the Law Forum, Melbourne, Victoria, 2000). 304 Email from Denis Nelthorpe to the Author, 21 October 2007. 305 Victorian Bar Council, 'PILCH - Lawyers Doing it for Free in the Public Interest' (1999) 167 In Brief: The Fortnightly Newsletter of the Victorian Bar Council 1. 306 Caitlin English, 'Churchill Report' (1999), 1.

82 public interest lawyers in this field in the United States.’307 A key finding of the English study was that ‘the location of services at the point of contact with homeless or at risk groups was the most effective way of providing legal services to the homeless.’308

In response to the findings of the English study, in October 2001, the first Homeless Persons Legal Clinic was established by PILCH in Melbourne, Victoria in partnership with the Council to Homeless Persons, the peak advocacy group for homelessness services and people who are homeless in Victoria.309 The Clinic commenced as a 52 week project, involving delivery of legal services through two Clinics based at welfare agencies, with legal assistance provided by private law firms on a pro bono basis. The Clinic was explicitly ‘based on similar schemes in the United States which have proved of considerable worth to homeless people in dealing with the civil legal issues which may impact on their ability to access accommodation, employment or social security payments.’310 The Clinic made an important commitment to training legal practitioners and welfare agency staff to increase the ability of agencies to support clients to resolve legal problems.

The Clinic has grown into a well-established and highly respected legal service provider as well as a strong and effective advocate for the legal and human rights of people who are homeless. The Clinic provides legal services at eleven welfare agencies311 through weekly clinics staffed by pro bono lawyers from eight law firms.312

307 Caitlin English, 'Legal Services to Homeless People in the United States' (Paper presented at the Homelessness and the Law Forum, Melbourne, Victoria, 2000). 308 Public Interest Law Clearing House and Council to Homeless People (Victoria), '2000/2001 Funding Submission to the Victorian Department of Human Services' (2000), 5. 309 Philip Lynch, 'The Homeless Persons Legal Clinic' (2002) 27(1) Alternative Law Journal 31. 310 Public Interest Law Clearing House and Council to Homeless People (Victoria), 'Homelessness and the Law - Towards a Workable Solution' (2000). 311 Participating agencies currently are: The Big Issue; Melbourne CityMission Western; Ozanam House; Urban Seed (Credo Café); Salvation Army Life Centre; Flagstaff Crisis Accommodation; St Peters’ Eastern Hill; The Lazarus Centre; Hanover Southbank; Homeground Argyle Housing; and VACRO.

83 In addition, the Clinic has been active in policy and law reform work.313 The success of the Homeless Persons Legal Clinic in Melbourne, Victoria has been the catalyst for similar initiatives in another four of the seven jurisdictions in Australia, discussed below. The model of the Clinic has also been expanded to Bendigo, with the Loddon Campaspe Community Legal Centre securing a two year Foundation Fellowship, in part to develop a specialist legal service for people who are homeless. The Homeless Persons Legal Assistance Project commenced in 2007.314 The project in Bendigo was established in collaboration with the PILCH Homeless Persons' Legal Clinic. PILCH had identified Bendigo as an ideal location to trial a regional service, the first of its kind in Victoria, partly due to the well-established and mobilised social housing services network.315

312 Allens Arthur Robinson; Blake Dawson Waldron; Clayton Utz; Mallesons Stephen Jaques; Minter Ellison; Phillips Fox; Corrs Chambers Westgarth; and the National Australia Bank Ltd Legal Department. 313 Some of the law reform submissions of the Clinic include Philip Lynch and Carla Klease, 'Homelessness and Access to Justice: Submission to the Senate Legal and Constitutional Committee Inquiry into Legal Aid and Access to Justice ' (2003); Philip Lynch, 'Discrimination Against Drug Users: Exacerbating Addiction: Submission to the Senate Legal and Constitutional Committee Inquiry into the Provisions of the Disability Discrimination Amendment Bill 2003 (Cth)' (PILCH Homeless Persons Legal Clinic, 2004); Philip Lynch, 'Public Policy Responses to Begging in Melbourne' (Public Interest Law Clearing House, 2005); Sean Selleck, Victoria Halliday and Philip Lynch, 'Discrimination in Employment on the Basis of Criminal Record: Submission to the Human Rights and Equal Opportunity Commission Inquiry into Discrimination in Employment on the Basis of Criminal Record' (Public Interest Law Clearing House 2005); and Beth Midgley, Kristen Hilton and Philip Lynch, 'Do Not Go Home - Go Directly to Jail Homelessness and the Bail Act 1997 (Vic): Submission in relation to the Victorian Law Reform Commission's Review of the Bail Act Consultation Paper' (Public Interest Law Clearing House, 2006). For full details, go to www.pilch.org.au. 314 Loddon Campaspe Community Legal Centre, Homeless Persons Legal Assistance Project (2007) Loddon Campaspe Community Legal Centre at 21 October 2007. 315 See Peter Noble, 'Loddon Campaspe Community Legal Centre to establish New Homeless Persons Legal Clinic Bendigo - Funding support provided by Clayton Utz Foundation - February 2007' (2006) 13(December ) Homelessness, Human Rights and the Law at 11 June 2007.

84 On 10 December 2002, the Queensland Public Interest Law Clearing House (‘QPILCH’) launched the Brisbane-based Homeless Persons’ Legal Clinic as a six- month pilot project based on the Melbourne model.316 Part-time, seconded solicitors from private law firms originally filled the Clinic’s Coordinator and Solicitor position.317 In September 2005, QPILCH was successful in receiving a one year grant from the Queensland Department of Communities in order to expand its services and employ a full-time solicitor. Funding for the Clinic has now been extended twice for twelve month periods until June 2008.318 The Clinic provides pro bono legal help from ten legal clinics operating at a range of welfare and emergency accommodation centres.319 There are eleven participating law firms320 and legal assistance is provided in all areas of law (with limited services in criminal and family law matters). The Clinic is also involved in community education and training activities and systemic advocacy and law reform initiatives,321 as well as providing ongoing training to

316 Queensland Public Interest Law Clearing House, Homeless Persons Legal Clinic (2006) at 17 February 2008. 317 Blake Dawson Waldron provided the first seconded solicitor in 2002/3 then Minter Ellison Lawyers seconded several solicitors until 2005. 318 Email from Michael Carey, QPILC Homeless Persons' Legal Clinic to Author, 22 August 2007. 319 Brisbane Homelessness Service Centre; HART4000; Anglican Women’s Hostel; Salvation Army, Pindari Homeless Men’s Hostel; Red Cross Youth Night Café; Salvation Army, Pindari Women’s Hostel; Mission Australia Community Café; 4AAA Kurilpa Kiosk; Pathways to Prevention; and St John’s Drop-in Centre. 320 Current participating law firms are: Allens Arthur Robinson; Blake Dawson Waldron; Clayton Utz; Freehills; Gilshenan & Luton; Mallesons Stephen Jaques; McCullough Robertson; McInnes Wilson; Minter Ellison; MurphySchmidt; and Phillips Fox. See also Queensland Public Interest Law Clearing House, 'Homeless Persons' Legal Clinic Funding Application to Minister for Communities, Disability Services and Seniors to expand legal services for Homeless Queenslanders' (2005), 4. 321 See, eg, Queensland Public Interest Law Clearing House Homeless Persons' Legal Clinic, 'Submission: Policy Review Paper, Review of the Residential Tenancies Act 1994' (2007); Queensland Public Interest Law Clearing House Homeless Persons' Legal Clinic et al, 'Written Submission to the National Youth Commission Inquiry into Youth Homelessness' (2007); Queensland Public Interest Law Clearing House Homeless Persons' Legal Clinic, 'Submission to Crime & Misconduct Commission regarding Offence of Public Nuisance: How is the new public nuisance offence provision being enforced and what is its impact on the Queensland public? ' (2006); Queensland Public Interest Law Clearing House Homeless Persons' Legal Clinic, 'Submission Brisbane City Council Move-On Power Applications, Community Development Services' (2005); Rights in Public Space Action Group,

85 participating pro bono solicitors. The Clinic is ‘the first legal service in Queensland which is specifically designed to address the legal needs of homeless people.’322 In 2005, Legal Aid Queensland, the statutory legal aid commission, also carried out a ‘Homelessness and Street Offences Project’, comprising six months of dedicated legal representation made available to 60 homeless people in the Brisbane’s Magistrates Court, using a research framework to track the experiences of people criminalised whilst living on streets.323

In May 2004, the New South Wales Public Interest Advocacy Centre and Public Interest Law Clearinghouse also set up a Homeless Persons Legal Service, based in Sydney. The Service was again modelled on the Victorian and Queensland Clinics although the specific design was informed by a detailed consultation process with a wide range of community and legal groups. The Service received twelve months funding support from the Commonwealth Department of Family and Community Services under the National Homelessness Strategy and the Public Purposes Fund administered by the New South Wales Attorney-General’s Department. After major difficulties in obtaining ongoing funding, the Service has now received a three year grant from the NSW Attorney General’s Department through the NSW Public Purposes Trust, enabling it to employ a full-time Coordinator and Policy Officer.324 It relies on pro bono services from ten law firms,325 providing legal help from nine community locations.326 As with its counterparts in other States, the Service has also been actively involved in systemic legal and policy research, and advocacy.327

'Submission to the Minister for Police and Corrective Services on the Review of the Vagrants, Gaming and Other Offences Act 1931 (Qld)' (2004). 322 Queensland Public Interest Law Clearing House, 'Homeless Persons' Legal Clinic Funding Application to Minister for Communities, Disability Services and Seniors to expand legal services for Homeless Queenslanders' (2005), 5. 323 Karen McLeod, 'The Homelessness and Street Offences Project' (2006) 19(1) Parity 62. 324 Email from Robin Banks, Director, Public Interest Advocacy Centre to Author, 10 September 2007 . 325 The law firms currently participating are: Allens Arthur Robinson, Baker & McKenzie, Corrs Chambers Westgarth, Deacons, Ebsworth & Ebsworth, Gilbert + Tobin, Henry Davis York, Legal Aid Parramatta, Minter Ellison and DLA Phillips Fox. 326 The Station Ltd; Wayside Chapel; Matthew Talbot Hostel; Norman Andrews House; Parramatta Mission; Streetlevel Mission; Edward Eagar Lodge; Women’s & Girls Emergency Centre; and Newtown Mission.

Also in NSW, in 2006, the Legal Aid Commission identified homeless people as one of its priority client groups, requiring specialised service delivery to support their specific legal needs. The Commission also committed itself to identifying barriers that homeless people face when accessing legal assistance. It now contributes legal assistance to the Homeless Persons Legal Service at Parramatta Mission, and plans to expand assistance to other regional areas. Lastly, in addition to a review of eligibility policies to increase access by homeless people to legal aid assistance, the Commission has provided training to the volunteer lawyers providing advice for the Homeless Persons Legal Clinic.328

In Perth, Western Australia, a specialist Homeless Persons Legal Clinic is in development. In October 2004, Labor Lawyers (Western Australia) and Human Rights WA, a local volunteer non-government organisation (‘NGO’), held a public forum on “Homelessness and the Law”, opened by the Hon David Malcolm, former Chief Justice of the Supreme Court of WA and addressed by Philip Lynch, then Coordinator of the PILCH Homeless Persons Legal Clinic in Melbourne, Victoria and now Director of the Human Rights Law Resource Centre. Arising out of that Forum, a funding application to establish a Perth-based Clinic was submitted to the Attorney General of Western Australia. The application was declined in favour of a small grant for a Scoping Study to be conducted. The Committee has now been incorporated and the Scoping Study, assessing the legal needs of people who are homeless with a view to formulating recommendations about the model for a specialist service that would be suitable for local conditions, has been completed, recommending that a Clinic be established.329

In South Australia, the Housing Legal Clinic commenced operations on 1 July 2006. Based on the successful models established in Melbourne, Brisbane and Sydney, the

327 See, eg, Ellena Galtos and Emma Golledge, 'Not Such a Fine Thing! Options for Reform of the Management of Fines Matters in New South Wales' (2006). 328 Email from Monique Hitter, Acting Director, Civil Law Division, Legal Aid Commission of New South Wales to Author, 21 August 2007 . 329 Shelter WA and Tenants Advice Service, 'Report to the Western Australian Homeless Person’s Legal Advice Clinic Steering Committee' (2006).

87 new Service in Adelaide is designed to assist people who are homeless or at risk of becoming homeless. It again relies on the provision of pro bono services of private law firms, with legal advice services being provided from community service locations.330 The Clinic is a project of the Welfare Rights Centre of South Australia and has secured funding from the South Australian Government through the Department of Families and Communities. In January 2008, the Department extended funding to 30 June 2009.331 The Adelaide Clinic complements the Clinical Legal Education Programme provided by the Law School of the University of Adelaide. Established in February 2005, the Law School conducts a legal advice clinic, the Adelaide Legal Outreach Service (ALOS), which is designed to meet the legal needs of people experiencing, or at risk of, homelessness. The Programme is provided by law students under legal supervision.332

4 Increased Research and Academic Interest in the Legal and Human Rights of People Experiencing Homelessness Alongside this growth in specialist legal services tailored to the specific legal needs of people who are homeless, and partly as a result of this growth in legal professional engagement with the issues facing such people, there has been a virtual explosion in publications and academic interest regarding legal and human rights issues experienced by people who are homeless. A literature review reveals that, prior to the year 2000, about ten journal articles and research reports had been published by Australians dealing with legal and human rights concerns associated with ‘homelessness’, 333 with only the Sackville334 and Burdekin335 reports published prior to

330 Cate Edwards and Bronwyn Thomas, 'Community Legal Practice: Access to Justice, Pro Bono Publico in South Australia & PILCH' (2007) 29(9) Bulletin 30. 331 Email from Bill Manallack, Coordinator of Adelaide Housing Legal Clinic to Author, 14 January 2008. 332 Kathleen McEvoy, 'Homeless Persons Legal Advice Service: Legal Academics, Law Students and Legal Practitioners: Education and Action for Social Change' (Paper presented at the Australian Lawyers and Social Change Conference, Canberra, 22-24 September 2004). See, also, Alex Kusmanoff, 'The Adelaide Legal Outreach Service' (2005) 27(10) Bulletin 22. 333 Mary Gaudron, 'Human Rights for the Homeless' (1999) 8a Human Rights Defender 17; Mary-Lynn Griffith, 'By the By!' (1999) 24(5) Alternative Law Journal 245; Kylie Kilgour and Polly Porteous, 'Sharing the Spirit: The Impact of the Sydney 2000 Olympics on Human Rights in Australia' (1999)

88 the 1990s. Since 2000, almost 100 journal articles alone have gone to print.336 In the

22(3) UNSW Law Journal 813; Hannah McGlade and Jeannine Purdy, 'From theory to practice: or what is a homeless Yamatji grandmother anyway? Joan Martin v Homeswest' (1999) 11 Australian Feminist Law Journal 137; Jane Sanders, 'Youth Homelessness: 10 Years on from the Burdekin Report' (1999) 8 Human Rights Defender 12; Cassandra Austin, 'Rights for the Homeless: Working Paper 5' (Australian Housing and Urban Research Institute, 1996); Chris Sidoti, 'Housing as a Human Right' (Paper presented at the National Conference on Homelessness, Melbourne, 4 September 1996); Annemarie Devereux, 'Australia and the Right to Adequate Housing' (1991) 20 Federal Law Review 223. Note that there had been long-standing academic undertakings regarding the criminalisation of Indigenous people, addressing, on occasion, the legal issues facing Indigenous people who are disproportionately impacted by public space laws. See, eg, Chris Cunneen and David McDonald, 'Indigenous Imprisonment in Australia: An Unresolved Human Rights Issue' (1997) 3(2) Australian Journal of Human Rights 90; Chris Cunneen, 'Zero Tolerance Policing and the Experience of New York City' (1999) 10(3) Current Issues in Criminal Justice 299. See, also, the literature reviewed in Tony Krone, 'Fairness and efficiency in summary prosecutions: the independent prosecutor’s dilemma in a ’law and order’ environment (PhD Thesis, University of New South Wales)' (2002). 334 Ronald Sackville, 'Homeless People and the Law' (Commission of Inquiry into Poverty, 1975). 335 Human Rights and Equal Opportunity Commission, 'Our Homeless Children: Report of the National Inquiry into Homeless Children' (Canberra: Australian Government Publishing Service, 1989). 336 See, eg, Tamara Walsh, 'The Queensland Special Circumstances Court ' (2007) 16(4) JJA 223; Tamara Walsh, 'The Queensland Special Circumstances Court ' (2007) 16(4) JJA 223; Julie Fry, 'Young People, Health Rights and Homelessness' (2006) 20(1) Parity 25; Cassandra Goldie, 'Criminalising People in Public Space in Australia and Canada' (2006) 19(1) Parity 43; Emma Golledge, 'Not such a Fine Thing! The Impact of Fines and the Regulation of Public Space' (2006) 19(1) Parity 58; Paula Grogan, Tiffany Overall and Anna Radonic, 'Advocating for the Human Rights of Young People' (2006) 20(1) Parity 64; Paula Grogan, 'Out of Order? The Increasing Regulation of Young People in Public Space' (2006) 19(1) Parity 85; Dr Andrew Hollows, 'The Homeless Citizen and Human Rights ' (2006) 20(1) Parity 11; Chris Howse, 'Racism, Vagrancy and New Laws in the Northern Territory' (2006) 19(1) Parity 64; Philip Lynch and Kristen Hilton, 'Engaging Homelessness, Guardianship, Administration and Disability in a Human Rights Framework' (2006) 19(3) Parity 12; Philip Lynch and Kristen Hilton, 'Homelessness and Public Space: Responding in a Human Rights Framework' (2006) 19(1) Parity 8; Philip Lynch and Kristen Hilton, 'We want change: Understanding and responding to Begging in Melbourne' (2006) 19(1) Parity 40; Emily McCarron and Suzie Forell, 'No Home, No Justice? Meeting the legal needs of homeless people' (Paper presented at the National Homelessness Conference, Sydney, New South Wales, 2006); Emily McCarron and Sophie Clarke, 'Living in the Public Eye: Homelessness and Fines' (2006) 19(1) Parity 49; Karen McLeod, 'The Homelessness and Street Offences Project' (2006) 19(1) Parity 62; Jane Sanders, 'Darkness at the Break of Noon: The Fall and Fall of the Public Domain' (2006) 19(1) Parity 64; Monica Taylor and Tamara Walsh, 'Nowhere to go: The impact of police move-on powers on homeless people in

Queensland ' (2006); Monica Taylor, 'Moving-On Homelessness: The Impact of Police Move-On Powers in Public Space' (2006) 19(1) Parity 60; Tamara Walsh, 'The Legal Needs of Homeless People in Queensland ' (2006) 19(2) Parity 5; Tamara Walsh, 'Homelessness, Public Space and the Law in Queensland' (2006) 19(1) Parity 43; Stan Winford, 'A New (Legal) Threat to Public Space: The Rise and Rise of the ASBO' (2006) 19(1) Parity 55; Janet Adkins and Michele Slatter, 'Everybody Knows: Sex Discrimination in Housing' (2005) 18(1) Parity 60; Eileen Baldry et al, 'Ex-Prisoners, Homelessness and the State in Australia' (2006) 39(1) Australian and New Zealand Journal of Criminology 20; Alana Ebert, 'Homelessness, Mental Health and Law Enforcement' (2005) 12(1) Psychiatry, Psychology and Law 152; Tess Hardy, 'Left Out in the Cold: Homelessness and Anti- Discrimination Law' (2005) 18(1) Parity 75; Emma Golledge, 'The SAAP Act: Towards an Understanding of its Legal Requirements ' (2005) 18(1) Parity 72; Philip Lynch, 'Homelessness, poverty and discrimination: improving public health by realising human rights' (2005) 10(1) Deakin Law Review 233; Philip Lynch, 'Homelessness, Human Rights and Social Inclusion' (2005) 30(3) Alternative Law Journal 116; Rita Markwell, 'Seques from the outside: sources of indigenous housing rights in international law' (2005) 6(13) Indigenous Law Bulletin 6; Beth Midgley, 'Achieving Just Outcomes for homeless people through the court process' (2005) 15(2) Journal of Judicial Administration 82; Tamara Walsh, 'Won't pay or can't pay? Exploring the use of fines as a sentencing alternative for public nuisance type offences in Queensland' (2005) 17(2) Current Issues in Criminal Justice 217; Tamara Walsh, 'The overruled underclass: The impact of the law on Queensland's homeless people' (2005) 28(1) University of New South Wales Law Journal 122; Tamara Walsh, 'Social Security or Social Exclusion? ' (2005) 18 (1) Parity 79; Tamara Walsh, 'Offensive language, offensive behaviour and public nuisance: Empirical and theoretical analyses' (2005) 24(1) University of Queensland Law Journal 123; Alison Aggarwal, 'Homelessness and the UN: Role of the Special Rapporteur on Adequate Housing' (2004) 17(1) Parity 58; Alison G Aggarwal, 'UN Special Rapporteur on Adequate Housing: Strengthening gendered norms for the right to adequate housing' (2004) 10(2) Australian Journal of Human Rights 165; Naomi Bailey, Zoe Vale and Hellene Gronda, 'Crisis Accommodation and the Law ' (2004) 17(1) Parity 84; Sam Biondo, 'The Pursuit of Systemic Change: A Community Legal Centre Perspective' (2004) 17(1) Parity 52; Michelle Bradfield, 'Nowhere to Hide: When Home is Not a Haven' (2004) 17(1) Parity 48; Anne Coleman, 'Homelessness and Human Rights: From Rhetoric to Reality' (2004) 17(1) Parity 24; Kenneth Fernandes, 'Reclaiming Housing Rights: Homeless Peoples' Participation is Essential' (2004) 17(1) Parity 17; Cassandra Goldie, 'Indigenous People and Public Space: The Use of 'Move On' Powers in Darwin, Northern Territory and Associated Legal Challenges' (2004) 17(1) Parity 86; Peter Horbury, 'Social Security Law and Homelessness' (2004) 17(1) Parity 46; Chris Howse, 'The Full Protection of the Law?' (2004) 17(1) Parity 96; Philip Lynch, 'Homelessness, Access to Justice and Legal Service Delivery: The PILCH Homeless Persons' Legal Clinic' (2004) 17(1) Parity 70; Philip Lynch, 'The Utility of Human Rights to Homeless People and their Advocates' (2004) 17(1) Parity 10; Philip Lynch, 'Human rights lawyering for people experiencing homelessness' (2004) 10(2) Australian Journal of Human Rights 59; Glenn Menner, 'The Australian Social and Economic Rights Project (ASERP) - Lessons for Housing Rights

Advocacy' (2004) 17(1) Parity 19; Rowan McRae and Dan Nicholson, 'No place like home: Homelessness in Australia and the right to adequate housing' (2004) 10(2) Australian Journal of Human Rights 27; Meg Mundell, 'Giving Voice to the Voiceless: Homelessness and Democracy' (2004) 17(1) Parity 94; Dan Nicholson, 'Australia's Obligations and the Human Right to Adequate Housing' (2004) 17(1) Parity 13; Di Otto, 'Rethinking Homelessness' (2004) 17(1) Parity 6; Dianne Otto and Philip Lynch, 'Housing, homelessness and human rights' (2004) 10(2) Australian Journal of Human Rights 1; Jelena Popovic, 'Homelessness and the Law: A View from the Bench' (2004) 17(1) Parity 53; Michelle Rabsch, 'A Homeless Persons Legal Service for New South Wales' (2004) 17(1) Parity 68; Julian Rieckert, Freyha McCarthy and Chian Kee, 'Privacy Law and Homeless People ' (2004) 17(6) Parity 47; Ronald Sackville, 'Homelessness, Human Rights and the Law' (2004) 17(1) Parity 4; Ronald Sackville, 'Homelessness, Human Rights and the Law' (2004) 10(2) Australian Journal of Human Rights 11; Amy Richardson, 'The Erosion of Housing in Australia: From a Right to a Privilege' (2004) 17(1) Parity 92; Anita Spitzer, 'Homelessness and Disability' (2004) 17(1) Parity 79; Lou Schetzer and Suzie Forell, 'Legal Needs of Homeless People Project of the NSW Law and Justice Foundation' (2004) 17(1) Parity 43; Fionn Skiotis, 'The Housing is a Human Right Project' (2004) 17(1) Parity 16; Eve Stagoll, 'A Homeless Sanctuary: Australia's Treatment of Refugees and Asylum Seekers' (2004) 17(1) Parity 90; Julie Stubbs, 'Domestic Violence, Laws and Homelessness in Australia' (2004) 17(1) Parity 41; Tamara Walsh, 'From Park Bench to Court Bench: Developing a response to breaches of public space law by marginalised people' (Faculty of Law, University of Queensland, 2004); Tamara Walsh, 'Who is the 'Public' in Public Space? A Queensland Perspective on Poverty, Homelessness and Vagrancy' (2004) 29(2) Alternative Law Journal 81; Tamara Walsh, 'Defending Begging Offenders' (2004) 4(1) Queensland University of Technology Law & Justice Journal 58; Tamara Walsh and Carla Klease, 'Down and Out? Homelessness and citizenship' (2004) 10(2) Australian Journal of Human Rights 77; Tamara Walsh, 'Nuisance to the public or nuisance to the police' (2004) Proctor 24; Tamara Walsh, 'Inequality before the law: Legal Issues Confronting People who are Homeless' (2004) 17(1) Parity 41; Stan Winford, 'The Fitzroy Legal Service/Drug Outreach Lawyer Project' (2004) 17(1) Parity 64; Livia Carusi, 'Rights, Advocacy and People Participation - Responding to the Challenge' (2003) 16(2) Parity 21; Cassandra Goldie, ''Why government is treating us like animals?' Legal and Human Rights Perspectives on Living in Public Space' (2003) 16(9) Parity 16; Cassandra Goldie, 'Rights versus Welfare: Fostering community and legal activism in support of people facing homelessness' (2003) 28(3) Alternative Law Journal 132; Cassandra Goldie, 'Homelessness: A Rights-Based Agenda, Fostering Legal and Social Activism' (2003) (March) Australian Federation of Homelessness Organisations News 7; Philip Lynch and Jacqueline Cole, 'Homelessness and Human Rights: Regarding and Responding to Homelessness as a Human Rights Violation' (2003) 4 Melbourne Journal of International Law 139; Dianne Otto, 'Addressing Homelessness: Does Australian's indirect implementation of human rights comply with its international obligations?' in Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone (eds), Protecting Human Rights: instruments and institutions (2003) ; Tamara Walsh, '"Waltzing Matilda" One Hundred Years Later: Interactions Between Homeless Persons and the Criminal Justice System in

91 same period, a wide range of reports, submissions, papers, forums and training courses have been published or delivered in diverse contexts.337 In 2003, the

Queensland' (2003) 25 Sydney Law Review 75; Tamara Walsh, 'Housing as of Right' (2003) 2(June/July) Australian Association of Social Workers Queensland Branch Newsletter 11; Eileen Baldry and Peter Maplestone, 'Homelessness/social problems & Criminal Justice' (Paper presented at the Beyond Punishment Public Seminar, Sydney, 19 June 2002); Livia Carusi and Sue Coleman, 'Housing as a Human Right' (2002) 15(8) Parity 6; Cassandra Goldie, 'Living in Public Space: a human rights wasteland?' (2002) 27(6) Alternative Law Journal 277; Cassandra Goldie, 'Homelessness, Public Housing and Racial Discrimination in the Northern Territory' (2002) 15(8) Parity 18; Caroline Lambert, 'Women's Housing as a Human Right' (2002) 15(8) Parity 2; Philip Lynch and Bella Stagoll, 'Promoting Equality: Homelessness and Discrimination' (2002) Deakin Law Review 15; Philip Lynch, 'The Homeless Persons Legal Clinic' (2002) 27(1) Alternative Law Journal 31; Philip Lynch, 'Begging for Change: Homelessness and the Law' (2002) 26(3) Melbourne University Law Review 690; Di Otto, 'Homelessness and Human Rights: Engaging human rights discourse in the Australian context' (2002) 27(6) Alternative Law Journal 271; Beth Jewell, 'One Year after the Olympic Games' (2001) 26(6) Alternative Law Journal 299; Dianne Otto and David Wiseman, 'In search of 'effective remedies': Applying the International Covenant on Economic, Social and Cultural Rights in Australia' (2001) 7(1) Australian Journal of Human Rights 5; Sam Biondo, 'Homelessness and the Law' (2000) 13(6) Parity 5; Danae Harvey, 'No Loitering Laws in Port Kembla, New South Wales' (2000) 13(6) Parity 15; Mark Higgins, 'Acquired Brain Injury - The Linkages between Homelessness and the Criminal Justice System' (2000) 13(6) Parity 22; Chris Howse, 'Towards a dealing Just and Kind' (2000) 25(3) Alternative Law Journal 108; Kerri Jackson, Helen Smith and Paul Sullivan, 'CCI: Breaking the Cycle, Drugs, Homelessness and Crime' (2000) 13(6) Parity 14; Beth Jewell, 'Sydney 2000 and the Criminalisation of the Homeless' (2000) 13(6) Parity 20; Sue Edwards, 'Homelessness and the Law: Developing a Workable Response' (2000) 13(6) Parity 4; Lucy McCotter, 'Providing Support t Homeless People with Legal Problems: Finding Strategies that Work' (2000) 13(6) Parity 8; Glenn Menner, 'The Right to Housing Under International Law - The Australian Social and Economic Rights Project ' (2000) 13(7) Parity Insert; Sarah Nicholson, 'Do Children and Young People have any Legal Rights?' (2000) 13(6) Parity 10; Ronald Sackville, 'Opinion: Homeless People and the Law' (2000) 13(6) Parity 24; Jane Sanders, 'Youth + Street = Crime??' (2000) 13(6) Parity 9. 337 See, eg, Homeless Persons' Legal Clinic, 'Discrimination on the Grounds of Homelessness or Social Status: Report to the Department of Justice' (Public Interest Law Clearing House, Melbourne, Victoria, 2007); Tamara Walsh, 'No Vagrancy: An examination of the impact of the criminal justice system on people living in poverty in Queensland' (TC Beirne School of Law, University of Queensland, 2007); Beth Midgley, Kristen Hilton and Philip Lynch, 'Do Not Go Home - Go Directly to Jail Homelessness and the Bail Act 1997 (Vic): Submission in relation to the Victorian Law Reform Commission's Review of the Bail Act Consultation Paper' (Public Interest Law Clearing House, 2006) Alistair Nicholson, 'Children and Homelessness in Australia 2006 - a Nation's Shame' (Paper presented at the National Homelessness Conference, Sydney, New South Wales, 2006); Tamara Walsh, 'No Vagrancy:

An examination of the impact of the criminal justice system on people living in poverty in Queensland' (TC Beirne School of Law, University of Queensland, 2007) Monica Taylor, 'Homelessness, Mental Health and the Law ' (Paper presented at the Lock 'Them' Up? Disability and Mental Health Aren't Crimes Conference, Brisbane, 17-19 May 2006);Monica Taylor and Tamara Walsh, 'Nowhere to go: The impact of police move-on powers on homeless people in Queensland ' (2006); Tamara Walsh, 'No Offence: The Enforcement of Offensive Language and Behaviour Offences in Queensland' (TC Beirne School of Law, University of Queensland, 2006); Philip Lynch, 'Public Policy Responses to Begging in Melbourne' (Public Interest Law Clearing House, 2005); Sean Selleck, Victoria Halliday and Philip Lynch, 'Discrimination in Employment on the Basis of Criminal Record: Submission to the Human Rights and Equal Opportunity Commission Inquiry into Discrimination in Employment on the Basis of Criminal Record' (Public Interest Law Clearing House 2005); Monica Taylor, 'Public Space Issues and Street Offences' (Paper presented at the Homelessness Taskforce Policy Forum, Brisbane, Queensland, 23 November 2005); Tamara Walsh, An Investigation of the Laws which Apply to People Who Are Homeless in Queensland and Their Influence on Homeless Person’s Citizenship Experience (PhD Thesis, Queensland University of Technology, 2005); Philip Lynch, 'Discrimination Against Drug Users: Exacerbating Addiction: Submission to the Senate Legal and Constitutional Committee Inquiry into the Provisions of the Disability Discrimination Amendment Bill 2003 (Cth)' (PILCH Homeless Persons Legal Clinic, 2004); Beth Midgley, 'Improving the Administration of Justice for Homeless People in the Court Process' (PILCH Homeless Persons Legal Clinic, 2004); Dan Nicholson, 'The Human Right to Housing in Australia' (Centre on Housing Rights and Evictions, 2004); Justice Ronald Sackville, 'Homelessness, Human Rights and the Law: Keynote Address' (Paper presented at the Homelessness Symposium, Melbourne Town Hall 10 March 2004); Tamara Walsh, 'From Park Bench to Court Bench: Developing a response to breaches of public space law by marginalised people' (Faculty of Law, University of Queensland, 2004); Di Otto, 'Addressing Homelessness as a Violation of Human Rights in the Australian Context' (Paper presented at the 3rd National Homelessness Conference 'Beyond the Divide', Brisbane, 6-8 April 2003); Philip Lynch and Carla Klease, 'Homelessness and Access to Justice: Submission to the Senate Legal and Constitutional Committee Inquiry into Legal Aid and Access to Justice ' (2003); Philip Lynch, 'From Cause to Solution: Homelessness and the Law' (Paper presented at the 3rd National Homelessness Conference 'Beyond the Divide', Brisbane, 6-8 April 2003); Kate Incerti and Lauren Matthews, 'Persons-Bricks-Homes: Partnerships to realising Housing as a Human Right' (Paper presented at the Australian Association of Social Workers National Conference 2003 'Cooperating for Social Justice', Canberra, Australian Capital Territory, 29 September 2003); Kenneth Fernandes, 'Why Not Involve the Homeless? Housing Rights and Community Building' (Paper presented at the 3rd National Homelessness Conference 'Beyond the Divide', Brisbane, 6 - 8 April 2003); Livia Carusi, 'Rights Rhetoric to Rights Culture - Transforming the Dream into Reality' (Paper presented at the 3rd National Homelessness Conference 'Beyond the Divide', Brisbane, Queensland, 6 - 8 April 2003); Homeless Persons' Legal Clinic et al, 'Homelessness and Human Rights in Australia: Submission to the Supported Accommodation Assistance Program (SAAP IV) National Evaluation' (2003); Jelena Popovic, 'Homelessness and the

93 Homelessness Legal Rights Project was established at the Gilbert + Tobin Centre of Public Law, University of New South Wales involving maintenance of a web site and publication of e-bulletins dealing specifically with the Australian legal and human rights of people facing homelessness.338 The Law and Justice Foundation of New South Wales has also undertaken an extensive legal needs research study regarding people who are homeless, concluding, inter alia, that services such as the specialist homelessness legal clinics operating from a community setting are a highly effective

Law: A View From the Bench' (Paper presented at the PILCH and Sir Zelman Cowen Centre for Legal Education, Melbourne, 15 October 2002); Homeless Persons' Legal Clinic et al, 'Homelessness and Human Rights in Australia: Submission to the Supported Accommodation Assistance Program (SAAP IV) National Evaluation' (2003);Eileen Baldry and Peter Maplestone, 'Homelessness/social problems & Criminal Justice' (Paper presented at the Beyond Punishment Public Seminar, Sydney, 19 June 2002); Chris Sidoti, 'Having a Home: Not Just a human need but a human right' (Paper presented at the Homelessness State Conference: Homelessness in the 21st Century: Working Together for Change, Adelaide, 16-17 March 2000); John Hughes, 'Homelessness & Crime: Community housing issues and the criminal justice system' (Paper presented at the Garma Festival 2001, Yirrkala, Northern Territory, 2001). ‘Housing as a Human Right Workshop’ held on 10 September 2002 in Melbourne, as a collaboration between the Council to Homeless Persons’ Support & Accommodation Rights Service, the Council on Housing Rights and Evictions – Asia and Pacific Programme. Workshop notes available at 4 February 2003; Caitlin English, 'Legal Services to Homeless People in the United States' (Paper presented at the Homelessness and the Law Forum, Melbourne, Victoria, 2000); Jonathon Mott, 'Homelessness and the Law: Confronting the Issues and Providing Assistance' (Paper presented at the Council to Homeless Persons Forum Melbourne Town Hall 2000); Council to Homeless Persons, 'CHP Homelessness and the Law Forum' (2000) 13(7) Parity 4; Denis Nelthorpe, 'The Law - A Shield or a Sword?' (Paper presented at the Homelessness and the Law Forum, Melbourne, Victoria, 2000). 338 See Gilbert + Tobin Centre of Public Law, Homelessness Legal Rights Project Website (2008) University of New South Wales at 2 February 2008. The author developed the Project, secured its funding, and was the former Project Director.

94 way in which to make justice more accessible to people who are homeless.339 In Queensland, the Rights in Public Space Action Group has been established.340

The sheer number of articles, research initiatives, reports, submissions, papers and presentations is an indicator of a significant shift from the welfare approach to homelessness to an increased academic and advocacy interest in the ‘rights’ of people who are homeless, and the various ways in which the law and human rights tools might be used to promote their interests. As Walsh notes,

[i]n recent years, calls have been made by a number of Australian commentators for a ‘rights-based’ approach to be taken in advocacy in support of homeless people, as opposed to the traditional ‘welfare’ or socio-economic framework; it has been argued that homeless people, and supporters acting on their behalf, should feel empowered to make claims against the state, rather than relying on gratuities, or “hand-outs”. The use of rights discourse has thus become the “rhetoric of choice” (citations omitted).341

As the next sections show, a sizeable proportion of this body of work investigates ways to increase the human rights protections for people who are homeless.342

5 Developments in Human Rights Advocacy in support of People who are Homeless

339 See Lou Schetzer and Suzie Forell, 'Legal Needs of Homeless People Project of the NSW Law and Justice Foundation' (2004) 17(1) Parity 43 and Emily McCarron and Suzie Forell, 'No Home, No Justice? Meeting the legal needs of homeless people' (Paper presented at the National Homelessness Conference, Sydney, New South Wales, 2006). 340 See Rights in Public Sapce Action Group, Rights in Public Space Action Group: A Coalition Promoting the Rights of Marginalised People in Queensland's Public Spaces Website (2008) at 2 February 2008. 341 Tamara Walsh, An Investigation of the Laws which Apply to People Who Are Homeless in Queensland and Their Influence on Homeless Person’s Citizenship Experience (PhD Thesis, Queensland University of Technology, 2005), 7. 342 The role of the Parity national journal regarding homelessness in Australia, and its editor, Noel Murray, from the Council to Homeless Persons has been particularly important in encouraging publication of articles reflecting on the growth in community-based advocacy and action.

95 Largely as a result of community based activism, supported more recently by international human rights developments, the public discourse about homelessness, in Australia and elsewhere, has gradually shifted from the common law view that criminal sanctions are required to punish homelessness, to a benevolent concern with addressing ‘human needs’ in the 1970s, to tentatively taking on the language of ‘human rights’ in the late 1990s … Indeed, the shift to the language of human rights by housing advocacy and support groups and networks in the Australian context has occurred with remarkable speed over the last decade.343

As earlier noted, in 1989, HREOC undertook a major human rights inquiry into children experiencing homelessness in Australia. The report arising out of that inquiry, ’Our Homeless Children’, stands out as an example of some of the earlier efforts in Australia to mark out homelessness as a ‘human rights issue’ in Australia.344 However, His Honour Justice Sackville recently highlighted that the use of the ‘rhetoric of human rights’ was not historically common, and is in general one of the striking changes in contemporary debates about homelessness in Australia today:

Proponents of reform [now] almost always employ the rhetoric of human rights to advance their argument. They adopt international human rights norms as the measure by which to assess current policies and practices affecting homeless people or bearing on the phenomenon of homelessness in the community … By contrast, there was no reference to the language of human rights in Law and Poverty in Australia or in other contemporary reports. Advocates of reform of the time tended to invoke the ‘needs’ of homeless people as the yardstick for evaluating programs or practices and to concentrate on repealing laws or modifying practices that could be properly characterised as discriminatory or unfair to such people (citations omitted).345

343 Dianne Otto and Philip Lynch, 'Housing, homelessness and human rights' (2004) 10(2) Australian Journal of Human Rights 1, 2. 344 Human Rights and Equal Opportunity Commission, 'Our Homeless Children: Report of the National Inquiry into Homeless Children' (Canberra: Australian Government Publishing Service, 1989). 345 Ronald Sackville, 'Homelessness, Human Rights and the Law' (2004) 10(2) Australian Journal of Human Rights 11, 14. See also Tamara Walsh, 'Housing as of Right' (2003) 2(June/July) Australian Association of Social Workers Queensland Branch Newsletter 11: ‘[T]here have been strong calls of late for a shift away from a welfare-based approach to issues of housing and homelessness towards a rights-based approach (citations omitted).’; Dianne Otto and Philip Lynch, 'Housing, homelessness and human rights' (2004) 10(2) Australian Journal of Human Rights 1.

Anne Coleman also highlights the significance in the shift from a ‘welfare-based’ to a ‘rights-based approach’ to Australian debates about homelessness, underpinned by human rights discourse:

This shift in conceptualisation is significant because it holds up a mirror to society’s values and beliefs about homelessness, and to our personal interactions with homeless people … A human rights framework provides a way of articulating a vision – a different vision of how we as individuals and as a society interact with people who are homeless and socially excluded. This vision places homeless people beyond the vagaries of policy making and the whim of service provision by providing a platform of rights for homeless people and a benchmark for those working with them.346

Arguably, the growing use of human rights discourse in advocacy efforts associated with housing and homelessness commenced with the creation of the Australian Social and Economic Rights Project (‘ASERP’) which was formed in 1999 by a broad coalition of local activists, the Victorian Council of Social Services and the Centre on Housing Rights and Evictions. The project produced the first-ever shadow report to the United Nations Committee on Economic, Social and Cultural Rights (‘CESCR’) in preparation for the 2000 review of Australia’s compliance with its international obligations under the ICESCR including the right to adequate housing.347 The shadow report was crucial to the incisive critique that the CESCR brought to bear on the Australian Government’s state report, which dealt with Australia’s compliance for the years 1990-1997. The concluding observations of the CESCR criticised Australia’s performance against treaty obligations in a number key areas, including failure to incorporate the ICESCR into the domestic legal system, the disproportionate disadvantage of Indigenous people in all key areas of economic, social and cultural

346 Anne Coleman, 'Homelessness and Human Rights: From Rhetoric to Reality' (2004) 17(1) Parity 24. See also Cassandra Goldie, 'Rights versus Welfare: Fostering community and legal activism in support of people facing homelessness' (2003) 28(3) Alternative Law Journal 132. 347 See Glenn Menner, 'The Right to Housing Under International Law - The Australian Social and Economic Rights Project ' (2000) 13(7) Parity Insert.

97 rights fulfilment, particularly employment, housing, health and education, and the lack of a National Housing Strategy or legal protection from forced evictions.348

The establishment of the Asia Pacific Programme of the Centre on Housing Rights and Evictions (COHRE) in Australia in 1999 in Melbourne, Victoria, as an international human rights NGO specialising in the international human right to adequate housing also had a significant impact. Canadian Leilani Farha commenced COHRE’s work in Australia in 1998. With recent experience in using international human rights mechanisms to promote housing rights in Canada (through the Centre on Equality Rights in Accommodation), Farha was one of the instigators of the ASERP Project in 1998, together with Patrick Earle from the Human Rights Council.349 Farha’s work with COHRE was continued by Ken Fernandes, a long time housing rights community activist (originally from Pakistan, and with a history of working with local communities in a wide range of countries), who established the COHRE – Asia Pacific Program, basing its head office in Melbourne. COHRE’s presence in Australia acted as an additional catalyst, bringing a human rights-based perspective to initiatives to promote access to justice for people who are homeless.350 The role of COHRE in Australia to foster human rights-based advocacy regarding homelessness and housing was complemented by the presence of Alison Aggarwal in Sydney from 2003, who had been employed as Research Assistant to the UN Special Rapporteur on Adequate Housing, Miloon Kothari, with a focus on women and housing rights.351

348 See Concluding observations of the Committee on Economic, Social and Cultural Rights: Australia, UN Doc E/C.12/1/Add.50 (2000). For a summary of the review of Australia’s compliance with the ICESCR by the CESCR in 2000, see Dianne Otto and David Wiseman, 'In search of 'effective remedies': Applying the International Covenant on Economic, Social and Cultural Rights in Australia' (2001) 7(1) Australian Journal of Human Rights 5. 349 See Email from Leilani Farha to the Author, June 2007. 350 For example, COHRE – Asia Pacific Programme was one of the primary authors of the National Human Rights Network of the National Association of Community Legal Centres, 'Australian Non- government Organisations' Submission to the Committee on the Elimination of Racial Discrimination' (2005). 351 Alison Aggarwal, 'Homelessness and the UN: Role of the Special Rapporteur on Adequate Housing' (2004) 17(1) Parity 58.

98 International human rights mechanisms are now regularly used by domestic advocates to bring scrutiny to the Australian governments’ failures to address the rights and interest of people experiencing homelessness. Following on from the ASERP Project, and the shadow report to CESCR in April 2000, in that same year, Philip Lynch (then Coordinator of the Victorian Homeless Persons Legal Clinic) collaborated with Associate Professor Dianne Otto from the Faculty of Law at the University of Melbourne to prepare a first submission to the UN Special Rapporteur on the Right to Adequate Housing on Women and Adequate Housing in Australia.352 This submission was followed by workshops in 2004 coordinated by Alison Aggarwal, the Research Assistant to the Special Rapporteur, to train participants in how to use the mechanisms of the Special Rapporteur to promote housing as a human right in Australia. The workshops were instrumental in increasing activists’ awareness of a rights-based perspective for considering housing and homelessness. The workshops were also catalytic in the development of a further national submission to the Special Rapporteur on Women and the Right to Adequate Housing in Australia, a process that was overseen by a Steering Committee consisting of National Shelter, Victorian Council of Social Services, People with Disabilities, Women with Disabilities Australia, WESNET, Centre on Housing Rights and Evictions, community legal centres, community housing associations and tenancy services.353

In 2005, NGOs involved in housing and homelessness again participated in the preparation of a shadow report to the Committee on the Elimination of Racial Discrimination (‘CERD Committee’), highlighting a range of race discrimination issues associated with housing and the treatment of homeless people.354 In the same year, the Victorian Homeless Persons Legal Clinic wrote to the Special Rapporteur on Adequate Housing under his urgent action procedure, in response to state and federal

352 Dianne Otto and Philip Lynch, 'UN Special Rapporteur on Adequate Housing: Questionnaire on Women and Adequate Housing: An Australian Submission' (University of Melbourne & Public Interest Law Clearing House 2002). 353 Donna Banister et al, 'Report to the Un Special Rapporteur on Housing: Women and the Right to Adequate Housing in Australia' (National Shelter et al, 2004). 354 National Human Rights Network of the National Association of Community Legal Centres, 'Australian Non-government Organisations' Submission to the Committee on the Elimination of Racial Discrimination' (2005).

99 governments’ announced intention to cut $30 million from the Supported Accommodation Assistance Program, which funds emergency housing for homeless people. The Special Rapporteur sent a letter concerning the proposed funding cut,355 which was subsequently partly reversed.

These efforts by NGOs to engage with the UN mechanisms were a catalyst leading to the decision by the Special Rapporteur on Adequate Housing to undertake an official visit to Australia in 2006. Between 31 July and 15 August of that year, the Rapporteur visited most states and territories to investigate the extent to which Australian governments were meeting their international human rights obligations to progressively realise the human right to adequate housing, particularly under art 11 of the ICESCR. The Rapporteur ‘met with representatives of the civil society, including social workers, support services, academics, women’s groups and indigenous representatives. Throughout his mission, he took testimonies from people directly affected by the shortcoming in the implementation of the human right to an adequate housing, including indigenous peoples, women, persons experiencing homelessness, and those suffering domestic violence and discrimination in accessing housing.’356 He appreciated ‘the extensive efforts made by civil society groups in all states, and was very impressed by the level of competence and dedication of these women and men to cope with the numerous problems of Australian society despite the increasing stress under which they are working.’ The findings from the Special Rapporteur’s Australian mission are detailed further below.

Alongside this increased engagement with international human rights mechanisms, human rights language and frameworks have been used in a range of domestic advocacy efforts. For example, in 2004, the Victorian Council of Social Services, in collaboration with the Homeless Persons Legal Clinic, Shelter Victoria, Women’s

355 Miloon Kothari, 'Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Miloon Kothari, Addendum, Summary of communications sent and replies received from Governments and other actors, 16 December 2004 - 1 December 2005, UN Doc E/CN.4/2006/41/Add.1, 23 December 2005' (2005), 4. 356 Miloon Kothari, Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Miloon Kothari, Addendum, Mission to Australia (31 July to 15 August 2006, UN Doc A/HRC/4/18/Add.2, (2007), 5.

100 Housing Ltd and COHRE, conducted the Housing as a Human Right Project. The project included publication of The Human Right to Housing in Australia,357 held consultations with 21 focus groups of 185 people across Victoria about their experiences of being denied the right to adequate housing,358 and held a Housing Rights Tribunal, enabling people to tell their stories in public to an eminent panel of legal and human rights experts.359

The PILCH Homeless Persons Legal Clinic in Victoria has also been instrumental in using human rights tools to underpin virtually all of its domestic policy and advocacy endeavours. The Clinic developed a range of recommendations regarding increased protection of homeless people’s right to vote using a human rights framework360 and argued for reforms to anti-discrimination laws to include ‘social status’ as a prohibited ground of discrimination, again using a human rights analysis.361 The Clinic also contributed to the incorporation of human rights-based recommendations in the Report of the Senate Select Committee on Mental Health362 and was part of the successful opposition by a coalition of legal and community groups to reforms to the Disability Discrimination Act 1992 (Cth) that would have permitted discrimination in the provision of housing against people with a drug addiction.363 In 2003, the Clinic coordinated a broad coalition of advocates to prepare an extensive submission to the Federal Government Review of the Supported Accommodation Assistance

357 Dan Nicholson, 'The Human Right to Housing in Australia' (Centre on Housing Rights and Evictions, 2004). 358 Rivkah Nissim, 'Little piece of heaven: Thoughts from Victorians on Housing as a Human Right' (Victorian Council of Social Services, 2004). 359 Rivkah Nissim, 'There is no dignity living suspended like this ... The Victorian Housingt Rights Tribunal Volume ' (Victorian Council of Social Services, 2005). 360 Homeless Persons’ Legal Clinic, Giving Voice to the Voiceless: Submission to the Inquiry into the 2001 Federal Election (2002). 361 Philip Lynch and Bella Stagoll, ‘Promoting Equality: Homelessness and Discrimination’ (2002) 7 Deakin Law Review 295. 362 Senate Select Committee on Mental Health, 'A national approach to mental health – from crisis to community' (Commonwealth of Australia, 2006). 363 Philip Lynch, 'Discrimination Against Drug Users: Exacerbating Addiction: Submission to the Senate Legal and Constitutional Committee Inquiry into the Provisions of the Disability Discrimination Amendment Bill 2003 (Cth)' (PILCH Homeless Persons Legal Clinic, 2004).

101 Programme, its major funded response to the need for crisis accommodation. The submission explicitly adopted a human rights framework to develop its critique.364 Phil Lynch particularly advocated for a human rights based approach to service delivery, policy and law reform.365 Kristen Hilton, his successor at the Victorian Clinic, continued with the use of a human rights framework, travelling to Geneva in 2007 to present an oral intervention on behalf of the National Association of Community Legal Centres before the Human Rights Council during the presentation of the Special Rapporteur on Adequate Housing’s report regarding, inter alia, his findings from the Australian mission.366

In the Australian Capital Territory, ACT Shelter, the ACT Council of Social Services (ACTCOSS), and the Welfare Rights Centre launched the Housing as a Human Right Campaign in March 2006,367 publishing a poster, and series of postcards to tell the stories of people in need of adequate housing. A Charter of Rights Working Group was also established in the ACT to develop a Homelessness Charter of Rights which is underpinned by human rights standards.368 In 2005, ACTCOSS argued that any

364 Public Interest Law Clearing House et al, 'Homelessness and Human Rights in Australia: Submission to the Supported Accommodation Assistance Program (SAAP IV) National Evaluation' (Public Interest Law Clearing House, 2003). 365 See, eg, Philip Lynch and Jacqueline Cole, 'Homelessness and Human Rights: Regarding and Responding to Homelessness as a Human Rights Violation' (2003) 4 Melbourne Journal of International Law 139; Philip Lynch, 'The Utility of Human Rights to Homeless People and their Advocates' (2004) 17(1) Parity 10; Philip Lynch, 'Human rights lawyering for people experiencing homelessness' (2004) 10(2) Australian Journal of Human Rights 59; Philip Lynch, 'Homelessness, Human Rights and Social Inclusion' (2005) 30(3) Alternative Law Journal 116; and Philip Lynch and Kristen Hilton, 'Homelessness and Public Space: Responding in a Human Rights Framework' (2006) 19(1) Parity 8. 366 Coordinator Kriston Hilton, Homeless Persons Legal Clinic, and Representative of the National Association of Community Legal Centres Human Rights Council., Fifth session. 11 to 18 June 2007, Organizational meeting,19 to 22 June 2007 at the Palais des Nations in Geneva, Switzerland, Live Webcast, 12 June (2007) at 20 October 2007. 367ACT Shelter, 'Launch of the Housing is a Human Right Campaign, 11am Thursday 16th March, Canberra Museum and Gallery' (Press Release, 16 March 2006). 368 Commonwealth of Australia and Australian Capital Territory, 'SAAP V Bilateral Agreement in Relation to the Supported Accommodation Assistance Program' (2006), 8-9.

102 reforms to police powers and crowd control needed to conform to human rights standards set out in the new Human Rights Act 2004 (ACT).369 The QPILCH Homeless Persons Legal Clinic and its collaborators, particularly Dr Tamara Walsh from the University of Queensland have also regularly referenced law reform proposals to human rights standards.370 For example, in 2007, QPILCH HPLC underpinned its submission to the National Youth Commission Inquiry into Youth Homelessness with international human rights standards, including the ICESCR, the Convention on the Rights of the Child (‘CROC’),371 the ICCPR and the Universal Declaration of Human Rights.372 The Clinic’s submission opposing the extension of move-on powers across Queensland in 2005 relies, in part, on human rights arguments.373 The catalytic work to establish the Homeless Persons Legal Clinic in Western Australia was undertaken, in part, by Human Rights WA.

The increased use of international human rights norms and discourse since the late 1990s as part of both international and domestic advocacy and analysis regarding the needs and interests of people experiencing homelessness is linked to a number of developments in Australia, both specific to the area of homelessness, and more generally regarding social justice advocacy. Some of those developments may be traced back to individual events, such as the presence of Farha in Australia in 1998,

369 ACTCOSS, 'Comment on the Standing Committee on Legal Affairs' Inquiry into Police Powers and Crown Control' (Australian Capital Territory Council of Social Services, 2005). 370 See, eg, Monica Taylor, 'Public Space Issues and Street Offences' (Paper presented at the Homelessness Taskforce Policy Forum, Brisbane, Queensland, 23 November 2005); Monica Taylor and Tamara Walsh, 'Nowhere to go: The impact of police move-on powers on homeless people in Queensland ' (2006); Tamara Walsh, 'No Vagrancy: An examination of the impact of the criminal justice system on people living in poverty in Queensland' (TC Beirne School of Law, University of Queensland, 2007), 11; Tamara Walsh, An Investigation of the Laws which Apply to People Who Are Homeless in Queensland and Their Influence on Homeless Person’s Citizenship Experience (PhD Thesis, Queensland University of Technology, 2005). 371 Convention on the Rights of the Child, opened for signature 20 November 1989, 28 ILM 1448, (entered into force 2 September 1990). 372 Queensland Public Interest Law Clearing House Homeless Persons' Legal Clinic et al, 'Written Submission to the National Youth Commission Inquiry into Youth Homelessness' (2007). 373 Queensland Public Interest Law Clearing House Homeless Persons' Legal Clinic, 'Submission Brisbane City Council Move-On Power Applications, Community Development Services' (2005)

103 who had just completed her own involvement in preparing an NGO shadow report on the human rights to housing for the CESCR’s review of Canada’s state report, or the recruitment of Lynch, with a sound background in and passion for human rights law, as the first Coordinator of the first Homeless Persons Legal Clinic in Victoria.374 The establishment of the network of homeless persons’ legal clinics and services in five jurisdictions, triggered in part by the Churchill Fellowship findings of English in 1999, is also clearly another major development which has created focused and specialist capacity to investigate these questions. In 2002, this author wrote that

there is a need to generate a body of legal and human rights knowledge associated particularly with the experience of living in public space and being considered ‘homeless’. This need becomes all the more urgent when indications are that legal regulation of these public spaces is increasingly being seen as a solution to so-called ‘anti social behaviour’ and the perceived fears of the ‘mainstream’ community.

Developing such a body of knowledge about the rights of homeless people would be similar to the area of domestic violence, which has required legal functionaries to develop a broad legal knowledge across family law, criminal and civil law. This expertise in the area of domestic violence has been achieved primarily as a consequence of the establishment of specialist legal advocacy services for victims of domestic violence. A growing body of legal knowledge is developing for working with people who have experienced domestic violence both individually and at a systemic level.

In Australia, there have historically been few specialist, legal rights-based advocacy services for homeless people that might generate a similar body of legal and human rights knowledge….375

374 Phil Lynch attributes his application of human rights norms to his work at the PILCH Homeless Persons Legal Clinic as being underpinned by introduction to International Law and International Human Rights Law during his law degree, together with key influencers: John Tobin, Senior Lecturer at Melbourne Law School; Chris Maxwell, President of Liberty Victoria and President of the Victorian Court of Appeal; and this author. See Email from Phil Lynch to Author, 20 August 2007. 375 Cassandra Goldie, 'Living in Public Space: a human rights wasteland?' (2002) 27(6) Alternative Law Journal 277, 280.

104 That picture has now clearly changed.

However, whilst the growth in human rights-based advocacy associated with homelessness, as distinct from domestic legal analysis may be in part attributable to key persons and service developments, it must also be understood in the context of a broader-based expanding awareness of the relevance of, and interest in human rights standards and tools in Australia to promote social justice. There are a number of factors at play, some international, and others specific to Australia, that have lead to this increased use of human rights tools.

Firstly, as noted in Chapter Two, it is only since the 1990s that Australian NGOs have commenced and built capacity to engage with the UN human rights mechanisms. The Australian Human Rights Council lodged one of the first coordinated NGO shadow report to the UN Human Rights Committee in 1994 although Australia has been a signatory to international human rights treaties since 1975 (the Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’)376 and ICESCR, followed by the ICCPR in 1980. Why did it take almost 20 years for the first Australian NGO shadow report to appear? The practice of UN human rights treaty bodies issuing concluding observations only became a feature of the monitoring process in 1990.377 Previously, human rights treaty bodies did not issue specific expressions of concern regarding human rights violations arising out of state reports. The monitoring process of state party reporting was understood to be one of engagement and dialogue, and consequently, experts were reluctant to make

376 Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969). 377 Michael O'Flaherty, 'The Concluding Observations of United Nations Human Rights Treaty Bodies' (2006) 6 Human Rights Law Review 27, 28: ‘For much of the 35-year history of the treaty body system, it was considered by some treaty body members that the treaties simply did not authorise the issuance of comments on any State (citation omitted).’; and at 30: ‘The first of the treaty bodies to seize the new opportunities [created by the end of the Cold War and the turnover of committee members], the Committee on Economic, Social and Cultural Rights (CESCR) in 1990, taking full advantage of its relative youth and freedom from an unyielding treaty mandate, commenced the practice of issuing sets of collective country-specific comments in the context of the review of periodic reports (citations omitted).’

105 comments that might be construed as findings against a particular State. The practice of receiving shadow reports also only emerged around this time.378 For example, it was only in 1995 that the HRC developed its procedure for reviewing state reports to enable NGO representatives to meet with committee members during inter-sessional working group meetings.379 Growing participation in the UN human rights mechanisms, such as through shadow reports, and special procedures, since the 1990s has acted as an educative process at the domestic level, with a widening network of social justice actors involved in the efforts to generate evidence and document the human rights situation for the UN processes. These processes have heightened people’s awareness of the application of human rights standards to social policy questions that might not have previously been perceived as human rights concerns.

Secondly, the ratification by the former Keating Federal Government of the Optional Protocol to the International Covenant on Civil and Political Rights (‘Optional Protocol’) on 25 December 1991,380 followed shortly after by a series of important High Court decisions, such as Mabo v Queensland [No 2],381 Dietrich v R382 and Minister for Immigration & Ethnic Affairs v Teoh,383 affirmed the relevance of

378 According to Bruce Porter, ‘NGOs could always submit written information to Committees, on an informal basis.’ However, the process was not on the public record, and state parties were not provided with the material submitted. In 1993, the Canadian Charter Committee on Poverty Issues negotiated with the Chair of the Committee on Economic, Social and Cultural Rights, Philip Alston, to lodge a shadow report and to appear before the Committee on the first day of the session during which the Canadian state report was to be reviewed. This was apparently unprecedented and paved the way for the more transparent shadow reporting procedures that have now been adopted by the UN human rights treaty bodies, with shadow reports being publicly available, and NGOs provided with the opportunity to orally present to the treaty body in the presence to state party representatives. Porter was one of the persons representing the Charter Committee on Poverty Issues before the Committee in 1993. See Email from Bruce Porter, Director, Social Rights Advocacy Centre to the Author, 10 September 2007. 379 For eg, see Thomas Buergenthal, 'The Human Rights Committee' in Philip Alston (ed), The United Nations and Human Rights (2000), cited in Henry J Steiner and Philip Alston, International Human Rights in Context (2 ed, 2000), 713. 380 International Covenant on Civil and Political Rights, First Optional Protocol, opened for signature 16 December 1966, 999 UNTS 302 (entered into force 23 March 1976). 381 (1992) 175 CLR 1. 382 (1992) 177 CLR 292. 383 (1995) 183 CLR 273.

106 international human rights laws to the lives of Australians, certainly amongst lawyers and the judiciary. The success of the high profile and controversial case of Toonen v Australia,384 the first individual communication brought by an Australian to the UN Human Rights Committee (‘HRC’) under the Optional Protocol leading to the decriminalisation of homosexuality in Tasmania, excited social justice advocates’ interest in the effectiveness of international human rights strategies.

Thirdly, overseas jurisdictions from which Australian governments, lawyers, the judiciary and the community commonly draw comparative experience and expertise regarding legal jurisprudential and policy developments, such as the United States,385 Canada,386 New Zealand387 and most recently, the United Kingdom388 all now have national human rights laws in place. Australia is the only common law country to lack a national human rights law or bill or rights of some kind.389 This anomaly has highlighted in Australia, firstly, the relevance of human rights norms in other jurisdictions to a wide range of social policy matters, and, secondly, the relative lack of legal protections of human rights in Australia regarding such matters.

In addition to these legal institutional developments, it is clear that the period since the election of the former Howard Coalition Government in 1996 was marked by a range of policy and program changes that raised substantial human rights concerns. The former Howard Coalition Government oversaw measures that were claimed to be in violation of human rights standards in a wide range of areas, including: • Indigenous rights (for example: abolition of the Aboriginal and Torres Strait Islander Commission (‘ATSIC’);390 amendments to the Native Title Act 1993

384 Communication No 488/1992, UN Doc CCPR/C/50/D/488/1992 (1994). 385United States Constitution. 386Canadian Charter of Rights and Freedoms, The Constitution Act 1982, being Schedule B to the Canada Act, 1982 (UK) 1982, c 11 (the Charter), in force on 17 April 1982. 387 Human Rights Act 1993 (NZ). 388Human Rights Act 1998 (UK). 389Nick O'Neill, Simon Rice and Roger Douglas, Retreat from Justice: Human Rights Law in Australia (2004), 27. 390 See, eg, Foundation for Aboriginal and Islander Research Action, 'Report for the Attention of Members of the Committee on the Elimination of Racial Discrimination' (2005), 12, 41; Australians for

107 (Cth);391 rejection of the reconciliation process begun under former Prime Minister Keating;392 mandatory sentencing regimes393); • asylum seekers and refugees (for example: extension of mandatory detention of asylum seekers; removal of appeal rights; offshore processing; and reduction of Australian migration zones);394 • human rights defenders and civil society advocacy (for example: removal of advocacy rights from civil society groups funded by Commonwealth funds;

Native Title and Reconciliation, 'Submission to the Committee on the Elimination of Racial Discrimination ' (2005), 15-7; Human Rights and Equal Opportunity Commission, 'Information concerning Australia and the International Covenant on the Elimination of All Forms of Racial Discrimination' (2005), 39-43. 391 See, eg, Foundation for Aboriginal and Islander Research Action, 'Report for the Attention of Members of the Committee on the Elimination of Racial Discrimination' (2005), 14, 40; Australians for Native Title and Reconciliation, 'Submission to the Committee on the Elimination of Racial Discrimination ' (2005), 4, 11, 28-30; Human Rights and Equal Opportunity Commission, 'Information concerning Australia and the International Covenant on the Elimination of All Forms of Racial Discrimination' (2005), 15-23. 392 See, eg, Foundation for Aboriginal and Islander Research Action, 'Report for the Attention of Members of the Committee on the Elimination of Racial Discrimination' (2005), 12, 35-7, 41; Australians for Native Title and Reconciliation, 'Submission to the Committee on the Elimination of Racial Discrimination ' (2005), 5, 10. 393 See, eg, Aboriginal and Torres Strait Islander Commission, 'Aboriginal and Torres Strait Islander Peoples and Australia's Obligations under the United Nations International Covenant on Economic, Social and Cultural Rights' (2000); Aboriginal and Torres Strait Islander Commission, 'Aboriginal and Torres Strait Islander Peoples and Australia's Obligations under the United Nations International Covenant on Civil and Political Rights ' (2000); Aboriginal and Torres Strait Islander Commission, 'Submission of the Aboriginal and Torres Strait Islander Commission, Australia, to the 56th Session of Committee on the Elimination of Racial Discrimination' (2000); Human Rights and Equal Opportunity Commission, 'Submission to the Committee on Economic, Social and Cultural Rights' (2000); Human Rights and Equal Opportunity Commission, 'Information concerning Australia and the International Covenant on the Elimination of All Forms of Racial Discrimination' (2005), 32-4. 394 See, eg, National Human Rights Network of the National Association of Community Legal Centres, 'Australian Non-government Organisations' Submission to the Committee on the Elimination of Racial Discrimination' (2005), 36-40.

108 reduced funding to HREOC and funding cuts or abolition of peak advocacy bodies, particularly those who were critical of government policy);395 • rights to legal representation (for example: major cuts to legal aid; and removal of the Legal Aid Commission’s discretion regarding the setting of guidelines about who gets legal aid in Commonwealth matters);396 • rights to social security (for example increased compliance conditions placed on persons to remain in receipt of social security, including extension of periods of suspension, when a person may be denied access to any income support);397 • rights of accused persons, detainees and prisoners (for example, anti-terrorism laws that authorise detention without charge; removal of prisoners’ right to vote; removal of the right to enrol to vote following the announcement of an election);398 • rights of workers (for example: further reductions on the right to strike; removal of rights to collectively bargain; and removal of unfair dismissal rights in smaller businesses);399 and

395 See, eg, Clive Hamilton and Sarah Maddison, Silencing Dissent (2006); Australian Social and Economic Rights Project, 'Australia's Compliance with the UN Covenant on Economic, Social and Cultural Rights: Community Perspectives' (2000), 10; National Human Rights Network of the National Association of Community Legal Centres, 'Australian Non-government Organisations' Submission to the Committee on the Elimination of Racial Discrimination' (2005), 15-7. 396 See, eg, Women's Rights Action Network Australia, 'Retreating from the Full Realization of Economic, Social and Cultural Rights in Australia: A Gendered Analysis' (2000), Article 2(1): Taking steps to achieve progressively the full realisation of rights enumerated, Major Issues, (iii) other retrogressive measures; National Human Rights Network of the National Association of Community Legal Centres, 'Australian Non-government Organisations' Submission to the Committee on the Elimination of Racial Discrimination' (2005), 30-1. 397 Australian Social and Economic Rights Project, 'Australia's Compliance with the UN Covenant on Economic, Social and Cultural Rights: Community Perspectives' (2000), 11. 398 See, eg, National Human Rights Network of the National Association of Community Legal Centres, 'Australian Non-government Organisations' Submission to the Committee on the Elimination of Racial Discrimination' (2005), 31-2, 41-42. 399 See, eg, Women's Rights Action Network Australia, 'Retreating from the Full Realization of Economic, Social and Cultural Rights in Australia: A Gendered Analysis' (2000), Article 7: The Right to Just & Favourable Conditions of Work, and Article 8: The Right to Form and Join Trade Unions;

109 • rights to adequate housing (for example: reduction in public housing funding; reduction in funding to the supported accommodation assistance program).400

Without adequate domestic legal remedies available to challenge these reforms on human rights grounds, it is not surprising that advocates have increased their use of UN mechanisms to challenge the perceived injustices. Government policy developments over a decade have built an increasing awareness of how human rights norms and legal protections are relevant to social justice concerns and UN human rights mechanisms have been identified as a viable tool for augmenting domestic advocacy efforts in the absence of effective domestic legal remedies.

Arising out of the growing consciousness of the lack of human rights protections in Australia under ten years of a Howard Coalition Government, two Labor state governments, one in the ACT, the other in Victoria, have now enacted domestic human rights laws, as discussed in Chapter Two. These laws, together with the consultative processes that preceded their enactment, have provided focal points for debate and advocacy about the application of human rights laws to social policy questions. As noted in Chapter Two, there are now formal, government-sponsored inquiries underway in Western Australia and Tasmania and live debate in the Northern Territory, NSW and at national level regarding the merits of introducing human rights protections.

Finally, the impact of all of these developments on the increased awareness of, and capacity to, use human rights tools has been accelerated and enhanced by the rapid advancements in, and take-up of, the internet and communication systems. At the beginning of the 1990s, internet use was confined to an exclusive research base within

Australian Social and Economic Rights Project, 'Australia's Compliance with the UN Covenant on Economic, Social and Cultural Rights: Community Perspectives' (2000), 11. 400 See, eg, Redfern Legal Centre and Rentwatchers, 'The Human Right to Adequate Housing in Australia: A Report to the United Nations Committee on International Covenant on Economic, Social and Cultural Rights, April 1999' (1999); Australian Social and Economic Rights Project, 'Australia's Compliance with the UN Covenant on Economic, Social and Cultural Rights: Community Perspectives' (2000), 12.

110 the Australian university environment.401 By 1997, over 1 million people were regular internet users.402 Just three years later, at the turn of the century, over 50% of Australian adults were online.403 The internet has enabled increasing cross- fertilisation of ideas and experiences within Australia and internationally, even amongst the most resource-challenged grassroots human rights advocacy organisations. It has also greatly facilitated collaborative work. For example, the co- authors of one of the Australian shadow reports to CERD in 2005 never met.404

Each of these factors is likely to have played a part in Australia’s expanded use of human rights norms and tools in both international and domestic advocacy efforts over the last decade, both in the area of homelessness and housing, and in general.

6 Summary It is clear that developments since the late 1990s in legal service delivery, academic activity, and broader human rights advocacy in support of people experiencing homelessness in Australia are inextricably linked with, and have been mutually reinforcing of, each other. For example, academic interest in the legal and human rights of people who are homeless has been fostered by collaborations with homelessness legal service providers. The increased accessibility of specialist homelessness legal expertise available to community advocates and people who are homeless has also lead to the increasing use of legal and human rights based standards and tools in public policy debates by non-legal advocates, and academic interest has also been heightened due to the wider community interest in using legal and human rights-based tools in advocacy endeavours. Specialist homelessness legal services have often acted in collaboration with legal academics, other community legal centres, Legal Aid Commissions, community welfare agencies, advocacy groups, and

401 Roger Clarke, Origins and Nature of the Internet in Australia (2004) at 20 October 2007. 402 Ibid. 403 Ibid. 404 This author was a co-author of National Human Rights Network of the National Association of Community Legal Centres, 'Australian Non-government Organisations' Submission to the Committee on the Elimination of Racial Discrimination' (2005).

111 the private legal profession, to generate a critical mass in human rights-based advocacy for people who are homeless in one of the wealthiest nations in the world.

Within this context of increased use of human rights tools, norms and analysis with respect to homelessness generally in Australia, to what extent has it been asserted that the criminalisation and forced eviction of people living in public space, a particular population of those generally considered to be homeless, is a human rights violation? Where it has been asserted that human rights are involved, what rights, and in what respects? These questions are now explored.

The next section examines domestic research and advocacy that address these questions, followed by examination of domestic litigation efforts, and, finally, international advocacy by Australians. In each section, a review is undertaken of the extent to which human rights norms have been used to critique the treatment of people living in public space, and the arguments that human rights norms are violated.

C Domestic Research and Advocacy Using Human Rights to Challenge the Criminalisation and Forced Eviction of People Living in Public Space

The increased legal regulation of public space impacts on the lives of people living in those places at key stages in the regulatory process. The impact typically commences through engagement with policing authorities (being moved on, warned, or directed to leave the area) which sometimes leads to formal prosecution (on-the-spot fines, summons, or arrest and charge). Once a formal prosecution is commenced, persons are then subject to conviction and enforcement mechanisms (enforcement methods vary but typically involve increased costs if fines are not paid, custody if the charge is a more serious matter, loss of drivers licenses or in some cases no impact as fines are withdrawn due to the unlikelihood of payment). Research and advocacy efforts have focussed on various aspects of this regulatory process, on occasions calling for the legal regulation itself to be repealed, or arguing for increased diversionary processes at the point of engagement with policing authorities so that persons who live in public spaces are not formally prosecuted but diverted to social services. Advocates have also argued for legislation to be amended to enable a person’s homelessness or

112 poverty to be used as a defence. Finally, advocacy has argued for more flexible enforcement and sentencing options through, for example, the establishment of ‘specialist’ courts or court-based services designed to divert people who have been formally prosecuted to social services.405 Advocacy efforts have been undertaken at local, state and territory, and national level in the domestic setting, depending on the particular law, policy or practice that is being challenged.

In Darwin, there were extensive efforts to advocate in support of people like Johnny Balaiya and Bob Bunba living in public space. Strategies included legal challenges,406 community protests,407 concerts, political lobbying, negotiations, newspaper articles, research, and newsletters.408 The Aboriginal Justice Advocacy Committee (‘AJAC’) in the Northern Territory has been a critic of methods used to criminalise and forcibly evict Indigenous people living in public space, most recently coming out in strong opposition to the NT Police ‘Social Order Crime Reduction Strategy’, which will increase the persistent ‘moving on’ of people found in public space, including those who live in there. Chris Howse, Executive Office of AJAC argued that the government should instead be ‘addressing issues such as employment and housing.’409

[T]he Government should be addressing the reasons people are on the street instead…

The Aboriginal Justice Advocacy Committee is sick and tired of hearing about such policies as so-called proactive policing in the Alice Springs area what will result in

405 See further below. 406 See W. Bartlett Day, Aboriginal Fringe Dwellers in Darwin, Australia: Cultural Persistence or a Culture of Resistance? (PhD Thesis, Department of Anthropology, University of Western Australia, 2001), 201-269. See also Cassandra Goldie, 'Indigenous People and Public Space: The Use of 'Move On' Powers in Darwin, Northern Territory and Associated Legal Challenges' (2004) 17(1) Parity 86. 407 Anne Barker, Long grassers protest NT sleeping laws (2002) ABC News Online at 21 September 2002. 408 See, further, discussion in Chapter Five regarding challenges to DCC By-law 103. 409 ABC News Online, Tough stance on anti-social behaviour defended (2007) Australian Broadcasting Commission at 11 May 2007. See also Chris Howse, 'Racism, Vagrancy and New Laws in the Northern Territory' (2006) 19(1) Parity 64; Chris Howse, 'Towards a dealing Just and Kind' (2000) 25(3) Alternative Law Journal 108.

113 people getting locked up and families being split apart when the overall problem is neglected gravely by governments and councils.410

In other parts of Australia, public debates about increasing regulation of public space have lead to intervention by the Aboriginal and Torres Strait Islander Social Justice Commissioner of HREOC, suggesting that proposals for regulation may involve acts of racial discrimination against Indigenous people.411 On 17 October 2003, the former Aboriginal and Torres Strait Islander Social Justice Commissioner provided a compelling overview of developments and failings since the Royal Commission into Aboriginal Deaths in Custody (‘RCIADC’) released its National Report412 in 1991. He referred specifically to the regulation of Indigenous people occupying public space:

A third key challenge is the re-emergence, if you could say that it ever went away, of strict regulation of Indigenous people in public space. During the past year the trend has continued of State and local governments resurrecting old policies which have the effect of excluding Aboriginal people from public places. These laws and policies in theory apply to everyone but in practice target Aboriginal people.

The Commissioner provided the following analysis:

Exclusionary laws such as these are a return to the old segregation days. They are based on paternalistic notions about the relationship between government and Indigenous people and attempt to impose assimilation as a pre-condition to their acceptance as full members of society. They come close to violating the citizenship rights of Aboriginal people. They also ignore the history of Aboriginal exclusion and disadvantage. They impact on the poorest, most isolated and most disadvantaged.

410 ABC News Online, Indigenous advocate criticises move-on powers (2007) Australian Broadcasting Commission at 11 May 2007. 411 Human Rights and Equal Opportunity Commission, Allegations of Discrimination in Townsville (2003) Press Release, 1 May at 1 May 2003. See also Human Rights and Equal Opportunity Commission, Adelaide City Dry Area (2002) Press Release, 30 September at 21 May 2003. 412 Commonwealth of Australia, 'Royal Commission into Aboriginal Deaths in Custody, National Report' (1991).

114 Aboriginal people are grossly over-represented among those afflicted by ill-health, including alcohol addiction, by poor living conditions and by homelessness.413

The Council to Homeless Persons (‘CHP’) and the Youth Affairs Council of Victoria Inc (‘YACV’) both made strong submissions against the 2005 proposal by the Inner City Entertainment Precincts Taskforce to introduce ‘dispersal legislation’, which would have vested police with a general ‘move on power’. It was argued that such legislation would disproportionately target young and homeless people.414 There have also been suggestions that such forms of regulation of public space may be contrary to domestic anti-discrimination laws.415 As noted previously, advocates have increasingly applied international human rights norms and rhetoric to their analysis and critique of government laws and policies impacting on people who are homeless, including advocacy regarding public space laws.

In 2002, this author suggested that the criminalisation and forced eviction of people living in the long grass using the anti-camping and anti-sleeping by-law, Darwin City Council By-law 103 (‘DCC By-law 103’), which is the focus of this thesis, was

413 William Jonas, 'The Royal Commission into Aboriginal Deaths in Custody - 12 Years Later' (Paper presented at the Indigenous Corrections Conference, Adelaide, South Australia, 17 October 2003). See also Cassandra Goldie, ''Why government is treating us like animals?' Legal and Human Rights Perspectives on Living in Public Space' (2003) 16(9) Parity 16. 414 See Council to Homeless Persons, 'Submission to A good night for all: Options for improving safety and amenity in inner city entertainment precincts' (2005); Youth Affairs Council of Victoria Inc., 'Young People's Response to 'A good night for all: Options for Improving Safety and Amenity in Inner City Entertainment Precincts'' (2005). 415 Paul Memmott and Shaneen Fantin, '"The Long Grassers": A Strategic Report on Indigenous "Itinerants" in the Darwin and Palmerston Area' (Paul Memmott & Associates, 2001), 31: ‘Targeted Legislation and Anti-Discrimination Law: The introduction of legislation to target a specific racial group such as Aboriginal Itinerants is another common law-and-order strategy, but one which often violates anti-discrimination law. However, there have been few concerted legal challenges to such laws. The laws may be introduced without any mention of the target group and accompanied by a publicly voiced defence that the laws are for all people irrespective of racial background. In some cases this may be true but in other cases it is clearly not the case. (An exception may well be Darwin where in the past there has not only been a large Indigenous Itinerant population, but also a winter influx of non-Aboriginal travellers in campervans and combie vans who dwell at the beachside parks in contravention of local Council by-laws) (emphasis added).’

115 arguably in violation of the right to freedom from torture, and cruel, inhuman and degrading treatment or punishment; the right to liberty and security of the person; the right to privacy, family and home; the right to freedom of expression; the right to enjoy one’s culture; and the right to adequate housing.416 The 2003 Joint Submission by a coalition of Non-Government Organisations to the National SAAP IV Evaluation argued that the combination of inequitable distribution of crisis accommodation funding, on a state and territory basis, combined with the prohibition of conducting essential human behaviour in public places, violated art 12 of the ICCPR which protects the human right to freedom of movement.417 In the same year, Lynch and Cole argued that the criminalisation of people engaging in

activities associated with homelessness – such as laws that criminalise sleeping, bathing, urinating, drinking or storing belongings in public space – violate the right to be free from cruel, inhumane or degrading treatment or punishment. Such laws discriminatorily affect homeless people on the grounds of their housing status and the necessary location of their conduct, not on the basis that their behaviour itself is reprehensible and therefore ought to be criminal. In doing so, these laws violate standards of decency and constitute punishment that is disproportionately severe to the ‘crime’ (citations omitted).418

These authors also argued that ‘anti-consorting laws’ such as certain vagrancy laws which regulate the classes of person with whom people occupying public space can associate violate the right to freedom of association.419 They proposed that, where a person ‘is consistently at risk of eviction and lacks safe and secure alternatives, then they cannot be considered to be residing in adequate housing with an adequate

416 Cassandra Goldie, 'Living in Public Space: a human rights wasteland?' (2002) 27(6) Alternative Law Journal 277, 280. 417 Public Interest Law Clearing House et al, 'Homelessness and Human Rights in Australia: Submission to the Supported Accommodation Assistance Program (SAAP IV) National Evaluation' (Public Interest Law Clearing House, 2003), 62-7. 418 Philip Lynch and Jacqueline Cole, 'Homelessness and Human Rights: Regarding and Responding to Homelessness as a Human Rights Violation' (2003) 4 Melbourne Journal of International Law 139, 148. 419 Ibid 155-6.

116 standard of living.’420 This is exactly the circumstances of people living in the long grass in Darwin in the Northern Territory. Lynch and Cole posited that this experience is in violation of art 11 of the ICESCR which protects the right to an adequate standard of living, including the right to adequate housing. Finally, they asserted that people living in public parks experience a violation of their human right to health, protected under art 12 of the ICESCR.421

Other articles, submissions and domestic advocacy efforts have proposed that various laws regulating human behaviours in public areas, such as vagrancy laws, anti- camping or sleeping laws, police ‘move-on’ powers, and other ‘public space laws’,422 including begging, that either criminalise and/or authorise the forced eviction or harassment of people living in public space violate ‘international human rights law’ generally,423 ‘civil liberties’,424 or specific international human rights. The following sets out those specific international human rights norms, and the various public space laws that have been argued by both researchers and advocates as operating in their violation:

• The right to life (move on powers;425 anti-begging laws;426 lack of adequate housing427);

420 Ibid 162. 421 Ibid 163-5. 422 The term ‘public space laws’ is used to encompass the wide range of laws that prohibit human conduct in public space that would be lawful if conducted in private, such as anti-sleeping laws, vagrancy laws, begging laws, and anti-drinking laws. These laws may be contrasted with assault etc, where the behaviour is unlawful regardless of whether it is conducted in public or private space. 423 Tamara Walsh, 'From Park Bench to Court Bench: Developing a response to breaches of public space law by marginalised people' (Faculty of Law, University of Queensland, 2004), 29; Beth Jewell, 'One Year after the Olympic Games' (2001) 26(6) Alternative Law Journal 299, 301. 424 Ronald Sackville, 'Opinion: Homeless People and the Law' (2000) 13(6) Parity 24; Ronald Sackville, 'Homeless People and the Law' (Commission of Inquiry into Poverty, 1975), 38. 425 Monica Taylor and Tamara Walsh, 'Nowhere to go: The impact of police move-on powers on homeless people in Queensland ' (2006), 37-8. 426 Letter from Phil Lynch, Homeless Persons Legal Clinic, to Attorney General of Victoria, 17 April 2003.

117

• The right to freedom from torture and cruel, inhuman or degrading treatment or punishment (move on powers;428 public space laws;429 anti-sleeping laws430);

• The right to liberty and security of the person, including freedom from arbitrary arrest or detention (move on powers;431 vagrancy laws;432 public space laws;433 anti-begging laws;434 anti-sleeping laws435);

427 Philip Lynch and Jacqueline Cole, 'Homelessness and Human Rights: Regarding and Responding to Homelessness as a Human Rights Violation' (2003) 4 Melbourne Journal of International Law 139, 145-7. 428 Monica Taylor and Tamara Walsh, 'Nowhere to go: The impact of police move-on powers on homeless people in Queensland ' (2006), 40-3; Queensland Public Interest Law Clearing House Homeless Persons' Legal Clinic, 'Submission to Brisbane City Council Move-On Power Applications, Community Development Services' (2005), 12. 429 Philip Lynch and Jacqueline Cole, 'Homelessness and Human Rights: Regarding and Responding to Homelessness as a Human Rights Violation' (2003) 4 Melbourne Journal of International Law 139, 148; Philip Lynch and Kristen Hilton, 'Homelessness and Public Space: Responding in a Human Rights Framework' (2006) 19(1) Parity 8. 430 Cassandra Goldie, 'Living in Public Space: a human rights wasteland?' (2002) 27(6) Alternative Law Journal 277, 280. 431 Tamara Walsh, '"Waltzing Matilda" One Hundred Years Later: Interactions Between Homeless Persons and the Criminal Justice System in Queensland' (2003) 25 Sydney Law Review 75, 94; Monica Taylor, 'Moving-On Homelessness: The Impact of Police Move-On Powers in Public Space' (2006) 19(1) Parity 60; Monica Taylor and Tamara Walsh, 'Nowhere to go: The impact of police move-on powers on homeless people in Queensland ' (2006), 39-40; Queensland Public Interest Law Clearing House Homeless Persons' Legal Clinic, 'Submission Brisbane City Council Move-On Power Applications, Community Development Services' (2005), 12; Tamara Walsh and Carla Klease, 'Down and Out? Homelessness and citizenship' (2004) 10(2) Australian Journal of Human Rights 77, 88. 432 Tamara Walsh, '"Waltzing Matilda" One Hundred Years Later: Interactions Between Homeless Persons and the Criminal Justice System in Queensland' (2003) 25 Sydney Law Review 75, 94; Tamara Walsh and Carla Klease, 'Down and Out? Homelessness and citizenship' (2004) 10(2) Australian Journal of Human Rights 77, 88. 433 Philip Lynch and Kristen Hilton, 'Homelessness and Public Space: Responding in a Human Rights Framework' (2006) 19(1) Parity 8. 434 Tamara Walsh, 'Defending Begging Offenders' (2004) 4(1) Queensland University of Technology Law & Justice Journal 58; Cassandra Goldie, 'Criminalising People in Public Space in Australia and Canada' (2006) 19(1) Parity 43, 44; Tamara Walsh and Carla Klease, 'Down and Out? Homelessness and citizenship' (2004) 10(2) Australian Journal of Human Rights 77, 88.

118

• The right to freedom of movement (public space laws,436 move on powers;437 vagrancy laws;438 anti-sleeping laws439);

• The right to a fair hearing, including the right to legal representation where the interests of justice require it (move on powers;440 vagrancy laws441);

• The right to a presumption of innocence (anti-consorting laws;442 vagrancy laws; 443 public space laws444);

435 Cassandra Goldie, 'Living in Public Space: a human rights wasteland?' (2002) 27(6) Alternative Law Journal 277, 280. 435 Kylie Kilgour and Polly Porteous, 'Sharing the Spirit: The Impact of the Sydney 2000 Olympics on Human Rights in Australia' (1999) 22(3) UNSW Law Journal 813. 436 Kylie Kilgour and Polly Porteous, 'Sharing the Spirit: The Impact of the Sydney 2000 Olympics on Human Rights in Australia' (1999) 22(3) UNSW Law Journal 813; Philip Lynch and Kristen Hilton, 'Homelessness and Public Space: Responding in a Human Rights Framework' (2006) 19(1) Parity 8; Philip Lynch, 'Human Rights and the Supported Accommodation Assistance Program (SAAP)' (2004) 17(1) Parity 21, 23. 437 Monica Taylor, 'Moving-On Homelessness: The Impact of Police Move-On Powers in Public Space' (2006) 19(1) Parity 60, 61; Queensland Public Interest Law Clearing House Homeless Persons' Legal Clinic, 'Submission Brisbane City Council Move-On Power Applications, Community Development Services' (2005), 12. 438 Tamara Walsh, '"Waltzing Matilda" One Hundred Years Later: Interactions Between Homeless Persons and the Criminal Justice System in Queensland' (2003) 25 Sydney Law Review 75, 94. 439 Cassandra Goldie, 'Indigenous People and Public Space: The Use of 'Move On' Powers in Darwin, Northern Territory and Associated Legal Challenges' (2004) 17(1) Parity 86, 87. 440 Philip Lynch and Jacqueline Cole, 'Homelessness and Human Rights: Regarding and Responding to Homelessness as a Human Rights Violation' (2003) 4 Melbourne Journal of International Law 139; Monica Taylor and Tamara Walsh, 'Nowhere to go: The impact of police move-on powers on homeless people in Queensland ' (2006), 50; Queensland Public Interest Law Clearing House Homeless Persons' Legal Clinic, 'Submission Brisbane City Council Move-On Power Applications, Community Development Services' (2005), 12. 441 Tamara Walsh, '"Waltzing Matilda" One Hundred Years Later: Interactions Between Homeless Persons and the Criminal Justice System in Queensland' (2003) 25 Sydney Law Review 75, 94. 442 Letter from Phil Lynch, Homeless Persons Legal Clinic, to Attorney General of Victoria, 17 April 2003.

119

• the right to privacy, family and home (anti-sleeping laws;445 vagrancy laws446);

• the right to peaceful assembly (public spaces laws;447 move on powers448);

• the right to freedom of expression (anti-begging laws,449 offensive language;450 anti-sleeping laws;451 move on powers452);

443 Tamara Walsh, '"Waltzing Matilda" One Hundred Years Later: Interactions Between Homeless Persons and the Criminal Justice System in Queensland' (2003) 25 Sydney Law Review 75, 94; 444 Tamara Walsh, 'From Park Bench to Court Bench: Developing a response to breaches of public space law by marginalised people' (Faculty of Law, University of Queensland, 2004), 30. 445 Cassandra Goldie, 'Living in Public Space: a human rights wasteland?' (2002) 27(6) Alternative Law Journal 277, 280. 446 Tamara Walsh and Carla Klease, 'Down and Out? Homelessness and citizenship' (2004) 10(2) Australian Journal of Human Rights 77, 88. 447 Kylie Kilgour and Polly Porteous, 'Sharing the Spirit: The Impact of the Sydney 2000 Olympics on Human Rights in Australia' (1999) 22(3) UNSW Law Journal 813; Philip Lynch and Kristen Hilton, 'Homelessness and Public Space: Responding in a Human Rights Framework' (2006) 19(1) Parity 8. 448 Queensland Public Interest Law Clearing House Homeless Persons' Legal Clinic et al, 'Written Submission to the National Youth Commission Inquiry into Youth Homelessness' (2007), 21. 449 Letter from Phil Lynch, Homeless Persons Legal Clinic, to Attorney General of Victoria, 17 April 2003; Philip Lynch and Jacqueline Cole, 'Homelessness and Human Rights: Regarding and Responding to Homelessness as a Human Rights Violation' (2003) 4 Melbourne Journal of International Law 139, 154; Monica Taylor and Tamara Walsh, 'Nowhere to go: The impact of police move-on powers on homeless people in Queensland ' (2006), 48-9; Tamara Walsh, 'Defending Begging Offenders' (2004) 4(1) Queensland University of Technology Law & Justice Journal 58, 71; Cassandra Goldie, 'Criminalising People in Public Space in Australia and Canada' (2006) 19(1) Parity 43, 44; Tamara Walsh and Carla Klease, 'Down and Out? Homelessness and citizenship' (2004) 10(2) Australian Journal of Human Rights 77, 88. 450 Monica Taylor and Tamara Walsh, 'Nowhere to go: The impact of police move-on powers on homeless people in Queensland ' (2006), 49. 451 Cassandra Goldie, 'Indigenous People and Public Space: The Use of 'Move On' Powers in Darwin, Northern Territory and Associated Legal Challenges' (2004) 17(1) Parity 86, 87. 452 Queensland Public Interest Law Clearing House Homeless Persons' Legal Clinic, 'Submission Brisbane City Council Move-On Power Applications, Community Development Services' (2005), 12.

120 • the right to freedom of association (move on powers;453 anti-begging laws;454 anti-consorting laws;455 public space laws456);

• the right to equality before the law (public space laws;457 anti-begging laws;458 move on powers;459 vagrancy laws460);

• the right to an adequate standard of living, including adequate housing (lack of adequate housing;461 anti-begging laws;462 anti-sleeping laws463);

453 Queensland Public Interest Law Clearing House Homeless Persons' Legal Clinic et al, 'Written Submission to the National Youth Commission Inquiry into Youth Homelessness' (2007), 12; Monica Taylor and Tamara Walsh, 'Nowhere to go: The impact of police move-on powers on homeless people in Queensland ' (2006), 49-50. 454 Letter from Phil Lynch, Homeless Persons Legal Clinic, to Attorney General of Victoria, 17 April 2003. 455 Cassandra Goldie, 'Indigenous People and Public Space: The Use of 'Move On' Powers in Darwin, Northern Territory and Associated Legal Challenges' (2004) 17(1) Parity 86; Letter from Phil Lynch, Homeless Persons Legal Clinic, to Attorney General of Victoria, 17 April 2003; Philip Lynch and Jacqueline Cole, 'Homelessness and Human Rights: Regarding and Responding to Homelessness as a Human Rights Violation' (2003) 4 Melbourne Journal of International Law 139, 155. 456 Philip Lynch and Kristen Hilton, 'Homelessness and Public Space: Responding in a Human Rights Framework' (2006) 19(1) Parity 8; Philip Lynch, 'Human Rights and the Supported Accommodation Assistance Program (SAAP)' (2004) 17(1) Parity 21; Philip Lynch, 'Human Rights and the Supported Accommodation Assistance Program (SAAP)' (2004) 17(1) Parity 21. 457 Tamara Walsh, 'From Park Bench to Court Bench: Developing a response to breaches of public space law by marginalised people' (Faculty of Law, University of Queensland, 2004), 30. 458 Tamara Walsh, 'Defending Begging Offenders' (2004) 4(1) Queensland University of Technology Law & Justice Journal 58, 74; Cassandra Goldie, 'Criminalising People in Public Space in Australia and Canada' (2006) 19(1) Parity 43, 44; Tamara Walsh and Carla Klease, 'Down and Out? Homelessness and citizenship' (2004) 10(2) Australian Journal of Human Rights 77, 88. 459 Tamara Walsh and Carla Klease, 'Down and Out? Homelessness and citizenship' (2004) 10(2) Australian Journal of Human Rights 77, 88. 460 Tamara Walsh and Carla Klease, 'Down and Out? Homelessness and citizenship' (2004) 10(2) Australian Journal of Human Rights 77, 88. 461 Jonathon Mott, 'Homelessness and the Law: Confronting the Issues and Providing Assistance' (Paper presented at the Council to Homeless Persons Forum Melbourne Town Hall 2000); Philip Lynch and Jacqueline Cole, 'Homelessness and Human Rights: Regarding and Responding to

121

• the right to health (lack of adequate housing464);

• the right to enjoy one’s culture (anti-sleeping laws;465 move on powers466);

• the right to freedom from discrimination (move on powers;467 anti-consorting laws;468 vagrancy laws;469 public space laws;470 anti-begging laws;471 anti- sleeping laws472).

Homelessness as a Human Rights Violation' (2003) 4 Melbourne Journal of International Law 139, 162. 462 Letter from Phil Lynch, Homeless Persons Legal Clinic, to Attorney General of Victoria, 17 April 2003. 463 Cassandra Goldie, 'Indigenous People and Public Space: The Use of 'Move On' Powers in Darwin, Northern Territory and Associated Legal Challenges' (2004) 17(1) Parity 86, 87. 464 Philip Lynch and Jacqueline Cole, 'Homelessness and Human Rights: Regarding and Responding to Homelessness as a Human Rights Violation' (2003) 4 Melbourne Journal of International Law 139, 163-5. 465 Cassandra Goldie, 'Living in Public Space: a human rights wasteland?' (2002) 27(6) Alternative Law Journal 277; Cassandra Goldie, 'Indigenous People and Public Space: The Use of 'Move On' Powers in Darwin, Northern Territory and Associated Legal Challenges' (2004) 17(1) Parity 86, 87. 466 Queensland Public Interest Law Clearing House Homeless Persons' Legal Clinic, 'Submission Brisbane City Council Move-On Power Applications, Community Development Services' (2005), 12. 467 Queensland Public Interest Law Clearing House Homeless Persons' Legal Clinic et al, 'Written Submission to the National Youth Commission Inquiry into Youth Homelessness' (2007), 21; Monica Taylor, 'Moving-On Homelessness: The Impact of Police Move-On Powers in Public Space' (2006) 19(1) Parity 60, 61; Monica Taylor and Tamara Walsh, 'Nowhere to go: The impact of police move-on powers on homeless people in Queensland ' (2006), 43-8; Queensland Public Interest Law Clearing House Homeless Persons' Legal Clinic, 'Submission Brisbane City Council Move-On Power Applications, Community Development Services' (2005), 12. 468 Letter from Phil Lynch, Homeless Persons Legal Clinic, to Attorney General of Victoria, 17 April 2003. 469 Tamara Walsh, '"Waltzing Matilda" One Hundred Years Later: Interactions Between Homeless Persons and the Criminal Justice System in Queensland' (2003) 25 Sydney Law Review 75; Rights in Public Space Action Group, 'Submission to the Minister for Police and Corrective Services on the Review of the Vagrants, Gaming and Other Offences Act 1931 (Qld)' (2004), 3. 470 Tamara Walsh, 'From Park Bench to Court Bench: Developing a response to breaches of public space law by marginalised people' (Faculty of Law, University of Queensland, 2004), 30.

122

These claims have been, largely, general assertions that the international human rights norm is engaged by the operation of the law against people who are homeless. For example, Taylor and Walsh argue that the police move-on powers, enacted under the Police Powers and Responsibilities Act 2000 (Qld),473 violate the right to freedom of association in the following manner:

The ICCPR article 22(1) and CRC article 15 preserve the right to freedom of association. Article 22(2) of the ICCPR states that,

‘No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.’

Move-on powers unduly restrict the exercise of the right to freedom of association which is enshrined in the ICCPR and the right to peaceful assembly in the CRC. The integrity of this right is significantly compromised by refusing homeless people access to space that other members of the public are permitted to enter. Despite section 39(2) of the PPRA which claims not to offend the right to peaceful assembly, move-on powers have, as their very intent, the disbanding groups of people in public

space. Due to a lack of private accommodation, homeless people assemble in public

space and are therefore victimised by the exercise of move-on powers. In effect,

move-on powers prohibit groups of homeless people occupying public space. This

isolates and ostracises individuals within the homeless community, which leads to loss of support and greater marginalisation. Thus the use of move-on powers to dismantle groups of homeless people in public space is an unjustifiable violation of

471 Tamara Walsh, 'Defending Begging Offenders' (2004) 4(1) Queensland University of Technology Law & Justice Journal 58, 75. 472 Cassandra Goldie, 'Indigenous People and Public Space: The Use of 'Move On' Powers in Darwin, Northern Territory and Associated Legal Challenges' (2004) 17(1) Parity 86, 87. 473 Police Powers and Responsibilities Act 2000 (Qld), ss 37-9 (now ss 46-48).

123 the right to freely associate and the right to equal access of public space (citations omitted).474

Fewer articles or reports review international and comparative human rights jurisprudence and secondary sources to analyse human rights-based claims in other jurisdictions. Lynch and Cole provide a more in-depth legal analysis in their wide- ranging 2003 article, ‘Homelessness and Human Rights: Regarding and Responding to Homelessness as a Human Rights Violation’ in the Melbourne Journal of International Law. The authors argue that public space laws criminalising essential human behaviour violate the human right of homeless people to be free from cruel, inhuman or degrading treatment or punishment. Citing US authority from 1962, Robinson v California,475 they argue that

the impact of fining homeless people for breaches of public space regulations is also cruel, unusual and degrading. As the United States Supreme Court analogised in Robinson v California, imprisonment and fines do not, in the abstract, constitute cruel and unusual punishment, but ‘[e]ven one day in prison would be cruel and unusual punishment for the “crime” of having a common cold.’476

In her 2004 article, ‘Defending Begging Offenders’477, Walsh provides an analysis of the feasibility of challenging the application of anti-begging laws to people living in poverty as a violation of the implied constitutional right to freedom of political communication, citing both domestic478 and comparative479 case-law on the right to

474 Monica Taylor and Tamara Walsh, 'Nowhere to go: The impact of police move-on powers on homeless people in Queensland ' (2006), 49-50. 475 370 US 660 (1962). 476 Philip Lynch and Jacqueline Cole, 'Homelessness and Human Rights: Regarding and Responding to Homelessness as a Human Rights Violation' (2003) 4 Melbourne Journal of International Law 139, 148-9. 477 Tamara Walsh, 'Defending Begging Offenders' (2004) 4(1) Queensland University of Technology Law & Justice Journal 58. 478 Lange v Australian Broadcasting Commission (1997) 189 CLR 520; Levy v Victoria (1997) 189 CLR 579. 479 Loper v New York City Police Department 1999 F 2d 699 (1993) 704; Federated Anti-Poverty Groups of BC v Vancouver (City) 2002 BCSC 105.

124 freedom of political communication or expression, one of the international human right recognised under the ICCPR.480

The generality of claims by researchers and advocates grounded in human rights language is perhaps not surprising, particularly given the lack of domestic legal remedies in most jurisdictions, and the lack of Australian human rights jurisprudence on these questions, together with the limited international jurisprudence directly on point, discussed further below and in Chapters Six and Seven.

For the many reasons cited in the previous section, the use of human rights norms and UN human rights mechanisms has generally increased in Australian social justice discourse. The increasing use of human rights discourse in the context of public space laws and their impact on people who are homeless is also a likely response to the progression of Australian governments who have continued to pursue a law and order approach to the regulation of public space, as shown in Chapter Two. The increasing legal regulation has occurred despite consistent advocacy efforts opposing such reforms, and continual research linking increased legal regulation of public space to higher incarceration rates of particular communities, including homeless people, Indigenous people and youth. As noted in Chapter Two, the impact of vagrancy laws and other public space regulations have been long standing concerns of social justice advocates. Human rights-based advocacy is a further basis for such concern.

However, as the next section will show, there is virtually no Australian human rights- based case law from either domestic or international jurisdictions which has directly challenged such a law and order approach against a person living in public space. There is no judicial determination within Australia or decision from the UN human rights treaty bodies in relation to Australia as to whether the criminalisation or forced eviction of a person living in public space may amount to a violation of a specific human right in a specific case.

480 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), art 19(2).

125 D Domestic Human Rights Litigation Challenging the Criminalisation or Forced Eviction of People Living in Public Space

Only a few legal challenges to the application of public space laws have been reported.481 More typically, such offences are treated as ‘minor’ or ‘petty’, with people not usually initiating a defence or seeking legal representation. Most people do not defend these charges, even when a defence may be available. For example, in New South Wales, a 1999 study of the prosecution of the public order offences of ‘offensive behaviour’ or ‘offensive conduct’ revealed that only 8.9% of charges against Aboriginal people were defended.482 The study noted that ‘it is surprising that these charges are not challenged more often as they continue to be so prevalent in so many Aboriginal communities.’483 In 2004, Walsh undertook a court observation study over 20 days in the Brisbane Magistrates Court. All of the 57 defendants dealt with by the court for public space offences during the study period pleaded guilty. The study identified that 34% of persons were unrepresented. Of those who were legally represented, their matters were dealt with in 7.2 minutes or 9.88 minutes by publicly funded or private lawyers, respectively.484

Further, as discussed in Chapter Two, there are few jurisdictions within Australia where it is currently feasible to mount a human rights-based challenge to moving on,

481 See Paul Memmott and Shaneen Fantin, '"The Long Grassers": A Strategic Report on Indigenous "Itinerants" in the Darwin and Palmerston Area' (Paul Memmott & Associates, 2001), 31: ‘The introduction of legislation to target a specific racial group such as Aboriginal Itinerants is another common law-and-order strategy, but one which often violates anti-discrimination law. However, there have been few concerted legal challenges to such laws…’ See also Tamara Walsh, 'From Park Bench to Court Bench: Developing a response to breaches of public space law by marginalised people' (Faculty of Law, University of Queensland, 2004), 6: ‘Homeless defendants also lack access to adequate legal assistance. This, in part, explains the dearth of case law on [public space] offences.’ 482 Brendan Thomas, Policing Public Order: Offensive Language & Behaviour, The Impact on Aboriginal People (1999) at 17 November 2003, 5. 483 Ibid 7. 484 Tamara Walsh, 'Won't pay or can't pay? Exploring the use of fines as a sentencing alternative for public nuisance type offences in Queensland' (2005) 17(2) Current Issues in Criminal Justice 217, 223- 4.

126 charging or fining a homeless person under public space law. With the exception of the ACT and Victoria, there are few statutory provisions in place that domestically implement Australia’s human rights obligations under international human rights treaties, creating justiciable rights and remedies. The Human Rights Act 2004 (ACT) and the Charter of Rights and Responsibilities 2006 (VIC) now create some justiciability, but to date, no case has been commenced that directly involves a human rights challenge to a public space law, or its application in a particular case.

Whilst most charges go undefended, there have been instances of criminal law challenges to the application of public space laws in a particular case, arguing, for example, that procedural requirements under the legislation were not met, or that the elements of the offence were not made out on the evidence before the court. Jane Sanders, Principal Solicitor of The Shopfront Youth Legal Centre writes that the Centre has ‘defended quite a few [move on charges] in court. In all but a small minority of cases, the defence has been successful. In many cases, the police have failed to satisfy the court that there were reasonable grounds for the direction or that that the direction was reasonable in the circumstances.’485 For example, in Police v Saysouthinh,486 the Centre successfully argued that there was no case to answer to a charge brought under the move on powers of the Summary Offences Act 1988 (NSW). No human rights-based submissions were made in the case. The Magistrate found that, firstly, procedural requirement had not been correctly followed, and secondly, there was insufficient evidence to establish that the temporal and geographical scope of the move on direction was ‘reasonable’ as required under the Act. In another matter from Queensland, Rowe v Kemper [2007] QDC (6 August 2007), involving an appeal being conducted by the QPILCH Homeless Persons’ Legal Clinic, an unsuccessful challenge was made to the application of the move on powers under the Police Powers and Responsibilities Act 2000 (Qld). The powers were used against a homeless man, who was directed to move on from shopping centre toilets where he

485 Letter from Jane Sanders, Principal Solicitor, The Shopfront Youth Legal Centre to Author, 17 October 2006. 486 (Unreported, Liverpool Local Court, Brydon W, 24 May 2002).

127 was getting changed.487 Once again, submissions by Counsel in the case did not raise human-rights based arguments.

To date, there has been only one Australian judgment that has addressed the question of the legality of the public space law itself, rather than its application in a particular case. In Goyma v Moore (‘Goyma’),488 the legality of DCC By-Law 103 was unsuccessfully challenged on administrative law grounds. DCC By law 103 is the public space law which forms the case study for this thesis, and is discussed in greater detail in Chapter Five, together with the Goyma decision. In Goyma, no human rights arguments were incorporated in the submissions, nor referred to in the judgment.

At Federal level, the Racial Discrimination Act 1975 (Cth) (‘RDA’), which partially incorporates CERD and the prohibition on racial discrimination under the ICCPR, has been used on one occasion to challenge a public space law. This challenge, Simmering v Darwin City Council (‘Simmering’),489 again involved DCC By-law 103, commenced in 2001, two years after Goyma was decided. The applicant argued that the application of DCC By-law 103 against Indigenous people living in the long grass by the Darwin City Council (‘DCC’) was contrary to the RDA. The applicant asserted that enforcement of the by-law amounted to either direct racial discrimination, producing evidence to show that the DCC specifically targeted Indigenous people with the enforcement of the bylaw, or operated as indirect discrimination, on the basis that the condition imposed by the by-law disproportionately impacted on Indigenous people, producing evidence to establish that Indigenous people were more likely to be living in public space, or ‘homeless’, by reason of their culture. This author drafted submissions in this case. HREOC terminated the case because it was not capable of settlement, and expressed an interest in being joined as an intervener if the matter proceeded to hearing in the Federal Court. The applicant commenced proceedings in

487 See The Australian, Video footage captures police abusing homeless man (2006) at 17 February 2008; ABC 7.30 Report, Qld police face violent arrest claims (2006) at 17 February 2008. 488 [1999] 154 FLR 298. 489 (2001) Human Rights and Equal Opportunity Commission, Reference Number 2012012FC:R, Complaint of Stella Simmering dated 6 December 2001.

128 the Federal Court but withdrew the matter in 2003 due to lack of resources and legal aid, and the risk on costs, given that the Federal Court is a costs jurisdiction.

To date, there has been no reported domestic judgment addressing the extent to which a public space law, or its application against a homeless person in a particular case, may violate a human rights norm. The factors that are likely to have played a part in this situation are several. Firstly, as noted above, public space offences are often treated as minor offences, and persons may not receive legal representation. Secondly, if a person is legally represented, available defences may be limited, and often legal aid is only available for minor offences where a person is prepared to plead guilty. For example, DCC By-law 103(1), which makes it an offence for an adult to sleep in a public place between sunset and sunrise is a regulatory offence and very limited defences can be argued.490 Further, with the exception of the move on powers under the Police Powers and Responsibilities Act 2000 (Qld), no public space laws explicitly incorporate human rights protections into the legislation.491 In addition, lawyers are either not familiar with human rights norms, or have a commonly held view that the use of human rights-based arguments is unlikely to be welcomed by the courts, in the absence of express incorporation of human rights protections through legislation. For example, it could be argued that, where move on powers provide for a ‘reasonableness’ test to be used, one component of the reasonableness standard is the extent to which the move on direction may violate a person’s international human rights. Tobin argues that, in order to apply international human rights within the courts, a ‘hook’ must be identified:

This requires the discovery of the potential for human rights law to assist in the development of common law principles and the resolution of ambiguity within legislation. Take, for example, the concept of reasonableness which is at the core of so many common law principles and legislative standards. In undertaking any assessment of what is considered ‘reasonable’, there is nothing to prevent lawyers and

490 See, further, Chapter Five. 491 Under the Police Powers and Responsibilities Act 2000 (Qld), a police officer ‘must not give a [move on direction] that interferes with a person’s right of peaceful assembly unless it is reasonably necessary in the interests of: (a) public safety; or (b) public order; or (c) the protection of the rights and freedoms of other persons. See s 48(2).

129 courts from making recourse to relevant standards which have been agreed by the international community of states, especially when they have been accepted by Australia on its ratification of the relevant treaty.492

However, there is no case law dealing with public space laws to support such a proposition. It might be anticipated that, in the ACT and Victoria, where human rights laws have now been adopted, such an approach may become increasingly common. This will be both on the basis of express legislative requirements regarding statutory interpretation, as detailed in Chapter Two, and also due to the increasing familiarity of the legal profession with the nature and content of international and comparative human rights jurisprudence arising out of the requirement to consider human rights-based arguments under the new human rights laws as a routine aspect of legal practice.

E International Advocacy Challenging the Criminalisation and Forced Eviction of People Living in Public Space

1 Introduction As set out in Chapter Two, there has been a marked increase in Australian use of international human rights mechanisms to leverage pressure for reform in a wide range of policy areas at the domestic level. Non-government organisations now routinely prepare shadow reports to UN human rights treaty bodies, commenting on the Australian government’s state report. It is also increasingly common for individual communications to be lodged under the Optional Protocol to the ICCPR, particularly in refugee and migration matters. In 2003, Lynch and Cole enjoined homelessness advocates to use UN international human rights complaints mechanisms.

[h]omelessness advocates can, and should, submit [shadow reports to the UN human rights treaty bodies]. Homeless persons’ advocates should also consider initiating individual complaints to the [UN Human Rights Committee] under the Optional Protocol [to the ICCPR] where the civil and political rights of a homeless person

492 John Tobin, 'Finding Rights in the 'Wrongs' in our Law' (2005) 30(4) Alternative Law Journal 164.

130 have been violated and that person has exhausted all effective and available local remedies seeking redress for the violation.493

The efforts to challenge the criminalisation and forced eviction of people living in public space using UN human rights mechanisms are now reviewed.

2 Shadow Reports As noted in Chapter Two, one of the first known collaborative shadow report in Australia to a UN human rights treaty body was prepared by the Human Rights Council of Australia, lodged under the ICCPR with the HRC in 1994 as part of the Australian government’s third state report. The HRC had issued two earlier concluding observations, in 1983 and 1988, regarding Australia’s first and second state reports under the ICCPR, respectively.494 It is not known whether, during these early years, the Committee had received alternative material from Australian NGOs to assist in its review process. Both the 1983 and 1988 concluding observations from the Committee raised issues regarding the disadvantages of Indigenous peoples in Australia, including their comparatively low life expectancy and high infant mortality rates, protection of their right to culture, and Aboriginal deaths in custody. 495 No mention is made of the issue of ‘homelessness’ or the criminalisation or forced eviction of people living in public space. In 1988, the Committee’s concluding observations refer positively to the establishment by HREOC of the Burdekin inquiry into homeless children.496

493 Philip Lynch and Jacqueline Cole, 'Homelessness and Human Rights: Regarding and Responding to Homelessness as a Human Rights Violation' (2003) 4 Melbourne Journal of International Law 139, 167. 494 Concluding observations of the Human Rights Committee: Australia, UN Doc CCPR A/38/40 (1983); Concluding observations of the Human Rights Committee: Australia, UN Doc CCPR A/43/40 (1988). 495 See, eg, Concluding observations of the Human Rights Committee: Australia, UN Doc CCPR A/38/40 (1983), [143], [156]; Concluding observations of the Human Rights Committee: Australia, UN Doc CCPR A/43/40 (1988), [432]. 496 Concluding observations of the Human Rights Committee: Australia, UN Doc CCPR A/43/40 (1988), [438].

131 The first shadow report in 1994, prepared to feed into Australia’s third state report, did not refer directly to the extent of human rights violations that may be experienced by people living in public space. However, it raised various concerns about the interaction of young people with the police, highlighting their vulnerability to police engagement due to their use of public places,497 and wide-ranging concerns about Indigenous people’s over-representation in the criminal justice system.498 The Committee did not address Australia’s third state report until 2000, due to the lengthy delay in lodgement, some 10 years after its second state report. The 2000 review was combined with scrutiny of Australia’s fourth state report. In the lead up to the 2000 review, several additional shadow reports were submitted. The now-abolished ATSIC’s shadow report made specific reference to the over-representation of Indigenous people in the criminal justice system, and highlighted mandatory sentencing regimes and ‘zero tolerance’ policing as major contributors to this outcome.499 It noted that such policies were contrary to the recommendations of the RCIADC, discussed in Chapter Two. The dire housing needs of Indigenous people were also referenced. The National Children’s and Youth Law Centre and Defence for Children International – Australian Section chose to focus its shadow report on the impacts of mandatory sentencing regimes in Western Australia and the Northern Territory.500 The concluding observations of the Committee arising out of the 2000

497 Human Rights Council of Australia Inc., 'Australia's Third Report under the International Covenant on Civil and Political Rights: A Consolidated Response from Australian Non-Government Organisations (NGOs)' (1994), 18, 26, citing Robert White and Christine Alder (eds), The Police and Young People in Australia (1994), including the work of Chris Cunneen. 498 Robert White and Christine Alder (eds), The Police and Young People in Australia (1994), 36, 87 and generally. Note that the concluding observations of the HRC arising out of this state reporting cycle could not be sourced for the purposes of the thesis. Online sources are not available, and, accordingly, the documentation could only be obtained in Geneva. 499 Aboriginal and Torres Strait Islander Commission, 'Aboriginal and Torres Strait Islander Peoples and Australia's Obligations under the United Nations International Covenant on Civil and Political Rights ' (2000), 21, citing Chris Cunneen, 'Zero Tolerance Policing: Implications for Indigenous People ' (Aboriginal and Torres Strait Islander Commission, 1999). 500 National Children's and Youth Law Centre and Defence for Children International - Australian Section, 'Submission to the Human Rights Committee concerning Australia's third and fourth periodic reports under the International Covenant on Civil and Political Rights ' (2000).

132 review made reference primarily to concerns regarding the mandatory sentencing regimes in the area of criminal justice.501

As noted in Chapter Two, since the mid-1990s, shadow reports from Australia have also been submitted as part of the periodic reporting processes under each of the other treaties to which Australia is a party: the ICESCR, CERD, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘CAT’), 502 the Convention on the Elimination of All Forms of Discrimination Against Women (‘CEDAW’)503 and CROC. Each of these review processes is now discussed.

The CESCR, in its 1993 concluding observation, focused on the need for Australia to monitor progress under the ICESCR, particularly regarding progress for Indigenous people and other vulnerable groups, without any specific reference to housing or homelessness.504 Again, it is not known if Australian NGOs submitted additional material. However, the 2000 review of Australia’s performance under the ICESCR involved perhaps the largest number of shadow reports to date, including the shadow report by the ASERP Project, discussed in Chapter Two. 505 The shadow reports

501 Concluding observations of the Human Rights Committee: Australia, UN Doc CCPR A/55/40 (2000), [522]-[523]. 502 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85, (entered into force 26 June 1987). 503 Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 18 December 1979, 1249 UNTS 1334 (entered into force 3 September 1981). 504 Concluding observations of the Committee on Economic, Social and Cultural Rights: Australia, UN Doc E/C12/1993/9 (1993), [16]. 505 Australian Social and Economic Rights Project, 'Australia's Compliance with the UN Covenant on Economic, Social and Cultural Rights: Community Perspectives' (2000); Aboriginal and Torres Strait Islander Commission, 'Aboriginal and Torres Strait Islander Peoples and Australia's Obligations under the United Nations International Covenant on Economic, Social and Cultural Rights' (2000); Human Rights and Equal Opportunity Commission, 'Submission to the Committee on Economic, Social and Cultural Rights' (2000); Redfern Legal Centre and Rentwatchers, 'The Human Right to Adequate Housing in Australia: A Report to the United Nations Committee on International Covenant on Economic, Social and Cultural Rights, April 1999' (1999); Womens Rights Action Network Australia, 'Retreating from the Full Realization of Economic, Social and Cultural Rights in Australia: A Gendered Analysis' (2000).

133 highlight issues of homelessness and lack of access to affordable housing,506 and the particular disadvantage experienced by Indigenous people in the enjoyment of their economic, social and cultural rights.507 Shadow reports refer to concerns regarding Indigenous deaths in custody and over-representation in the criminal justice system,508 with ATSIC and HREOC noting the effect of zero tolerance and law and order policies generally.509 HREOC cites Commissioner Johnson from the RCIADC regarding his concerns about over-representation of young Indigenous people in relation to, inter alia, street crime and public order offences.510 The shadow report from Redfern Legal Centre and Rentwatchers specifically raises public space laws,

506 Women's Rights Action Network Australia, 'Retreating from the Full Realization of Economic, Social and Cultural Rights in Australia: A Gendered Analysis' (2000), Article 11: The Right to An Adequate Standard of Living; Aboriginal and Torres Strait Islander Commission, 'Aboriginal and Torres Strait Islander Peoples and Australia's Obligations under the United Nations International Covenant on Economic, Social and Cultural Rights' (2000), 35; Redfern Legal Centre and Rentwatchers, 'The Human Right to Adequate Housing in Australia: A Report to the United Nations Committee on International Covenant on Economic, Social and Cultural Rights, April 1999' (1999); Australian Social and Economic Rights Project, 'Australia's Compliance with the UN Covenant on Economic, Social and Cultural Rights: Community Perspectives' (2000), 39-42. 507 Women's Rights Action Network Australia, 'Retreating from the Full Realization of Economic, Social and Cultural Rights in Australia: A Gendered Analysis' (2000), Article 11: The Right to An Adequate Standard of Living; Australian Social and Economic Rights Project, 'Australia's Compliance with the UN Covenant on Economic, Social and Cultural Rights: Community Perspectives' (2000), 22; Aboriginal and Torres Strait Islander Commission, 'Aboriginal and Torres Strait Islander Peoples and Australia's Obligations under the United Nations International Covenant on Economic, Social and Cultural Rights' (2000). 508 Women's Rights Action Network Australia, 'Retreating from the Full Realization of Economic, Social and Cultural Rights in Australia: A Gendered Analysis' (2000), Article 1: The Right to Self- Determination; Human Rights and Equal Opportunity Commission, 'Submission to the Committee on Economic, Social and Cultural Rights' (2000), [5.6]; Aboriginal and Torres Strait Islander Commission, 'Aboriginal and Torres Strait Islander Peoples and Australia's Obligations under the United Nations International Covenant on Economic, Social and Cultural Rights' (2000), [17]. 509 Human Rights and Equal Opportunity Commission, 'Submission to the Committee on Economic, Social and Cultural Rights' (2000), [5.13]; Aboriginal and Torres Strait Islander Commission, 'Aboriginal and Torres Strait Islander Peoples and Australia's Obligations under the United Nations International Covenant on Economic, Social and Cultural Rights' (2000), 18. 510 Human Rights and Equal Opportunity Commission, 'Submission to the Committee on Economic, Social and Cultural Rights' (2000), [5.22].

134 such as vagrancy laws used on people who are homeless, as a mechanism for sweeping people from the streets511 as well as the number of deaths of people living in public spaces.512 The concluding observations of the Committee address a number of concerns, but no reference is made to public space laws.513 The Committee expressed concern about forced evictions in the context of evictions from private rentals in the lead up to the 2000 Olympic Games in Sydney,514 recommending the adoption of a national housing strategy and policies, compliant with international norms on the right to adequate housing and the prohibition on forced evictions under the ICESCR.515

Review of Australia’s record under CERD commenced in 1977. The CERD Committee has issued nine concluding observations to date. The CERD Committee has variously expressed concern about Indigenous disadvantage,516 Indigenous deaths in custody,517 over-representation of Indigenous people in the criminal justice

511 Redfern Legal Centre and Rentwatchers, 'The Human Right to Adequate Housing in Australia: A Report to the United Nations Committee on International Covenant on Economic, Social and Cultural Rights, April 1999' (1999), 7-8. 512 Redfern Legal Centre and Rentwatchers, 'The Human Right to Adequate Housing in Australia: A Report to the United Nations Committee on International Covenant on Economic, Social and Cultural Rights, April 1999' (1999), 6. 513 Concluding observations of the Committee on Economic, Social and Cultural Rights: Australia, UN Doc E/C.12/1/Add.50 (2000), [380]. 514 Concluding observations of the Committee on Economic, Social and Cultural Rights: Australia, UN Doc E/C.12/1/Add.50 (2000), [386]. 515 Concluding observations of the Committee on Economic, Social and Cultural Rights: Australia, UN Doc E/C.12/1/Add.50 (2000), [399]. 516 Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc A/32/18 (1977), [174]; Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/A/39/18 (1984), [335]; Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/A/43/18 (1988), [48]; Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/A/49/18 (1994), [542]. 517 Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/A/43/18 (1988), [54], [59]; Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/A/46/18 (1991), [231]; Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc

135 system518 and poor housing conditions.519 In 1991, the Committee expressed concern about the criminalisation of Indigenous people for minor public order offences.520 More recent concluding observations also focused on the human rights concerns of mandatory sentencing.521 Shadow reports from NGOs in the lead up to the 2000 and 2005 review under CERD, including those from the former ATSIC, FAIRA and HREOC, also variously highlighted Indigenous deaths in custody and failure to implement the recommendations of the RCIADIC;522 over-policing and criminalisation of Indigenous people, leading to over-representation in the criminal

CERD/A/49/18 (1994), [532], [542], [547]; Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/C/AUS/CO/14 (2005), [21]. 518 Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/A/49/18 (1994). [524]; Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/C/304/Add.101 (2000), [38]; Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/C/AUS/CO/14 (2005), [21]. 519 Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/A/34/18 (1979), [399]; Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/A/37/18 (1982), [125]; Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/A/46/18 (1991), [245]; Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/A/49/18 (1994), [522], [527], [545]; Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/C/304/Add.101 (2000), [41]; Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/C/AUS/CO/14 (2005), [19]. 520 Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/A/46/18 (1991), [231]. 521 Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/C/304/Add.101 (2000), [39]; Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/C/AUS/CO/14 (2005), [20]. 522 Aboriginal and Torres Strait Islander Commission, 'Submission of the Aboriginal and Torres Strait Islander Commission, Australia, to the 56th Session of Committee on the Elimination of Racial Discrimination' (2000), 15; National Human Rights Network of the National Association of Community Legal Centres, 'Australian Non-government Organisations' Submission to the Committee on the Elimination of Racial Discrimination' (2005), 32-3; Human Rights and Equal Opportunity Commission, 'Information concerning Australia and the International Covenant on the Elimination of All Forms of Racial Discrimination' (2005), 29, 34-5; Australians for Native Title and Reconciliation, 'Submission to the Committee on the Elimination of Racial Discrimination ' (2005), 6, 8, 31-3.

136 justice system;523 mandatory sentencing regimes;524 and poor housing525 and overcrowding conditions.526 The Sovereign Union of Aboriginal Nations and Peoples in Australia (‘SUANPA’) and the National Human Rights Network of the National Association of Community Legal Centres expressed concern about law and order policing and the treatment young people in public space, particularly youth curfews.527 In 2005, the National Human Rights Network made explicit reference to concerns about the use of public space laws against Indigenous peoples.528 This 2005 shadow

523 Aboriginal and Torres Strait Islander Commission, 'Submission of the Aboriginal and Torres Strait Islander Commission, Australia, to the 56th Session of Committee on the Elimination of Racial Discrimination' (2000), 15; Human Rights and Equal Opportunity Commission, 'Information concerning Australia and the International Covenant on the Elimination of All Forms of Racial Discrimination' (2005), 29; Australians for Native Title and Reconciliation, 'Submission to the Committee on the Elimination of Racial Discrimination ' (2005), 5, 25. 524 National Human Rights Network of the National Association of Community Legal Centres, 'Australian Non-government Organisations' Submission to the Committee on the Elimination of Racial Discrimination' (2005), 26-7; Human Rights and Equal Opportunity Commission, 'Information concerning Australia and the International Covenant on the Elimination of All Forms of Racial Discrimination' (2005), 32-4. 525 Aboriginal and Torres Strait Islander Commission, 'Submission of the Aboriginal and Torres Strait Islander Commission, Australia, to the 56th Session of Committee on the Elimination of Racial Discrimination' (2000), 12; National Human Rights Network of the National Association of Community Legal Centres, 'Australian Non-government Organisations' Submission to the Committee on the Elimination of Racial Discrimination' (2005), 47-50; Human Rights and Equal Opportunity Commission, 'Information concerning Australia and the International Covenant on the Elimination of All Forms of Racial Discrimination' (2005), 29; Australians for Native Title and Reconciliation, 'Submission to the Committee on the Elimination of Racial Discrimination ' (2005), 5, 26. 526 Aboriginal and Torres Strait Islander Commission, 'Submission of the Aboriginal and Torres Strait Islander Commission, Australia, to the 56th Session of Committee on the Elimination of Racial Discrimination' (2000), 10. 527 Michael Anderson, 'In Contradiction to Australia's Report to CERD: an Aboriginal perspective' (Sovereign Union of Aboriginal Nations and Peoples in Australia, 2005), 24-5; National Human Rights Network of the National Association of Community Legal Centres, 'Australian Non-government Organisations' Submission to the Committee on the Elimination of Racial Discrimination' (2005), 42-3. 528 See National Human Rights Network of the National Association of Community Legal Centres, 'Australian Non-government Organisations' Submission to the Committee on the Elimination of Racial Discrimination' (2005), 49. This author participated in the preparation of this shadow report.

137 report cited the 2003 NGO Submission to the SAAP IV Evaluation,529 and submitted that

[t]raditional connections to places and cultural practices of gathering in open spaces for meeting and family business, coupled with the cultural inappropriateness of private dwelling options, mean that a high proportion of people living or regularly occupying public spaces are Indigenous. A proportion of Indigenous people would not consider themselves homeless but rather that their human rights to culture, freedom of expression and movement are violated by the lack of respect for and control over the spaces and places that they consider home.’530

Australians for Native Title and Reconciliation (‘ANTaR’) endorsed these concerns about the impact of the regulation of public space on Indigenous Australians.531 The Committee expressed concern about the ‘striking overrepresentation of indigenous people in prisons as well as the number of indigenous deaths in custody’532 and asked for more information about implementation of the RCIADIC. However, the Committee did not specifically refer to concerns regarding public space laws.533

At the time of writing, Australia had been reviewed against its obligations under CAT by the CAT Committee on two occasions, 1992 and 2001. The change in tenor between the first and second resultant concluding observations is apparent. In 1992, the Committee concluded that ‘Australia was in the forefront of counties defending human rights and commended Australia particularly on the rehabilitation services

529 Public Interest Law Clearing House et al, 'Homelessness and Human Rights in Australia: Submission to the Supported Accommodation Assistance Program (SAAP IV) National Evaluation' (Public Interest Law Clearing House, 2003). 530 National Human Rights Network of the National Association of Community Legal Centres, 'Australian Non-government Organisations' Submission to the Committee on the Elimination of Racial Discrimination' (2005), 49. The author prepared the content for this section of the Report. 531 Australians for Native Title and Reconciliation, 'Submission to the Committee on the Elimination of Racial Discrimination ' (2005), 26. 532 Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/C/AUS/CO/14 (2005), 21. 533 Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/C/AUS/CO/14 (2005).

138 offered to victims of torture.’534 In the lead up to the 2001 review, ATSIC submitted a comprehensive report, highlighting again the issues of mandatory sentencing regimes, over-policing of Indigenous people, over-representation in the criminal justice system and continued high rates of deaths in custody, together with maltreatment by police and in detention facilities.535 The ATSIC shadow report urged the Australian government to implement the recommendations of the RCIADC, which, as noted in Chapter Two, highlighted the disproportionate impact of public space laws, particularly public order offences, on Indigenous people. The CAT Committee’s concluding observations reflect these serious concerns in the shadow report, and set out a series of recommendations for action536 although express mention of public space laws is not included.

Australia’s reviews by the CEDAW Committee have been dominated by concerns regarding violence against women, lack of women in leadership positions, and women’s economic independence with particular concern for lack of paid maternity leave.537 To date, the concluding observations have not included scrutiny of housing and homelessness for women and girls in Australia, nor has there been significant commentary regarding the over-representation of Indigenous women in the criminal justice system538 other than expressions of concern generally about the overall disadvantage of Indigenous women. Shadow reports have raised some of these issues,

534 Concluding observations of the Committee against Torture: Australia, UN Doc CAT A/47/44 (1992), [214]. 535 Aboriginal and Torres Strait Islander Commission, 'Aboriginal and Torres Strait Islander Peoples and Australia's Obligations under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment' (2000). 536 Concluding observations of the Committee against Torture: Australia, UN Doc CAT A/56/44 (2001). 537 Concluding observations of the Committee on the Elimination of Discrimination against Women: Australia, UN Doc CEDAW/A/43/38 (1988); Concluding observations of the Committee on the Elimination of Discrimination against Women: Australia, UN Doc CEDAW/A/49/38 (1994); Concluding observations of the Committee on the Elimination of Discrimination against Women: Australia, UN Doc CEDAW/A/50/38 (1995); Concluding observations of the Committee on the Elimination of Discrimination against Women: Australia, UN Doc CEDAW/C/AUL/CO/5 (2006). 538 Cf Concluding observations of the Committee on the Elimination of Discrimination against Women: Australia, UN Doc CEDAW/C/AUL/CO/5 (2006), [31].

139 including lack of adequate housing or protection from forced evictions539 and Indigenous homelessness,540 as well as the high rates of policing and criminalisation of Indigenous women, including failure to implement the recommendations of the RCIADC541 but the concerns are largely not reflected in resultant concluding observations. Public space laws have not been explicitly discussed.

Shadow reports to the CRC under CROC have been submitted since ratification of that Convention.542 Defence for Children International prepared a submission in 1996, based on a broad-based national consultation process, following its participation in the 1994 shadow report under the ICCPR.543 NGOs prepared a further broad-based shadow report for the 2005 review. These shadow reports specifically raised concerns about the use of youth curfews, move-on powers and policing of young people congregating in public space,544 together with the high rate of youth homelessness.545

539 Women's Rights Action Network Australia, 'Australian NGO Shadow Report on the Implementation of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)' (2005), 8, 42-3; Koorie Women Mean Business and National Network of Indigenous Women's Legal Services, 'Australian NGO Shadow Report on the Implementation of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)' (2005), 16-7. 540 Koorie Women Mean Business and National Network of Indigenous Women's Legal Services, 'Australian NGO Shadow Report on the Implementation of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)' (2005), 3. 541 Women's Rights Action Network Australia, 'Australian NGO Shadow Report on the Implementation of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)' (2005), 46; Koorie Women Mean Business and National Network of Indigenous Women's Legal Services, 'Australian NGO Shadow Report on the Implementation of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)' (2005), 8, 20-1. 542 The first shadow report was submitted in 1993 by the Children’s Rights Coalition submitted ‘Where Rights are Wronged’ to the CRC. See Defence for Children International - Australian Section, 'Australia's Promise to children - the alternative report ' (1996), 9. 543 Defence for Children International - Australian Section, 'Australia's promises to children - the alternative report' (1996). 544 Defence for Children International - Australian Section, 'Australia's Promise to children - the alternative report ' (1996), 15, 16; National Children's and Youth Law Centre and Defence for Children International - Australian Section, 'The Non-Government Report on the Implementation of the United Nations Convention on the Rights of the Child in Australia' (2005), 15-8.

140 Particular attention was also given to the high rate of interaction of young Indigenous people with police and the criminal justice system,546 mandatory sentencing547 and the need to fully implement the recommendations of the RCIADIC.548 The CRC concluding observations in both 1998 and 2005 expressed concern regarding Indigenous young people’s over-representation in the criminal justice system, and particularly referenced mandatory sentencing.549 Youth homelessness was also discussed.550 In both years, the CRC also expressed specific concern about the policing and removal of young people from public space, including youth curfews, in relation to the right of peaceful assembly.551 In 2005, the Committee recommended that the Australian government ‘address the problems that may be related to the gathering of young people in certain places without necessarily resorting to policing and/or criminalisation, and consider reviewing legislation in this respect.’552

545 Defence for Children International - Australian Section, 'Australia's Promise to children - the alternative report ' (1996), 10; National Children's and Youth Law Centre and Defence for Children International - Australian Section, 'The Non-Government Report on the Implementation of the United Nations Convention on the Rights of the Child in Australia' (2005), 14, 47-9, 65. 546 Defence for Children International - Australian Section, 'Australia's Promise to children - the alternative report ' (1996), 28; National Children's and Youth Law Centre and Defence for Children International - Australian Section, 'The Non-Government Report on the Implementation of the United Nations Convention on the Rights of the Child in Australia' (2005), 7, 14. 547 National Children's and Youth Law Centre and Defence for Children International - Australian Section, 'The Non-Government Report on the Implementation of the United Nations Convention on the Rights of the Child in Australia' (2005), 21-2. 548 Defence for Children International - Australian Section, 'Australia's Promise to children - the alternative report ' (1996), 30. 549 Concluding observations of the Committee on the Rights of the Child: Australia, UN Doc CRC/A/53/41 (1998), [1033]; Concluding observations of the Committee on the Rights of the Child: Australia, UN Doc CRC/C/Add 268 (2005), [73]. 550 Concluding observations of the Committee on the Rights of the Child: Australia, UN Doc CRC/A/53/41 (1998), [1029], [1044]; Concluding observations of the Committee on the Rights of the Child: Australia, UN Doc CRC/C/Add 268 (2005), [57], [65]. 551 Concluding observations of the Committee on the Rights of the Child: Australia, UN Doc CRC/A/53/41 (1998), [1027], [73]. 552 Concluding observations of the Committee on the Rights of the Child: Australia, UN Doc CRC/C/Add 268 (2005), [74].

141 At the time of writing, NGOs are currently organising the preparation of the next round of shadow reports under the ICCPR and ICESCR.

This review of shadow reports demonstrates that the failure to implement recommendations of the RCIADC has been a dominant reference point for the critique of the impact of the criminal justice system on Indigenous people in Australia. Implicit in these concerns is the role of the use of public space laws, particularly public order offences, as one of the primary mechanisms by which Indigenous people come into contact with the criminal justice system. Youth advocates have also raised concerns about the policing of young people in public space, and homelessness advocates have also indicated concern over the use of public space laws to move people out of public areas, noting the particular impact on Indigenous youth who are more likely to be living in public space due to cultural imperatives. Some shadow reports have included specific reference to concern about the impact of public space laws on people who are homeless, particularly Indigenous peoples. However, to date, only the CRC has made specific reference of the human rights concerns that may be present in relation to the use of public space laws against people living in or occupying public space.

3 Individual Communications To date, no person in Australia has used an individual communications procedure, such as the Optional Protocol to the ICCPR or the individual communications procedure under CERD or CAT, to allege a violation of human rights about treatment in public space, including criminalisation for carrying out essential human functions such as sleeping. Indeed, to date, there is yet to be an individual human rights complaint from Australia in relation to any kind of treatment that is associated with a person’s homeless condition, or lack of access to adequate housing.

4 Special Procedures As noted in Chapter Two, the UN Commission on Human Rights established the mandate for the UN Special Rapporteur on Adequate Housing in 2000. The Special

142 Rapporteur was to provide a special focus on women.553 In 2002, Otto and Lynch compiled a detailed response to the Special Rapporteur’s Questionnaire on Women and Adequate Housing regarding the protection of housing rights for women in Australia. Their report specifically notes the direct and indirect discrimination experienced by Indigenous people in accessing available public and private low cost housing options. It also highlights the cultural inappropriateness of public housing stock, and policies that lead to evictions from public housing due to ‘overcrowding’.554 However, the Report does not make express reference to the criminalisation of women living in public space, and the particular impact of public space laws on Indigenous women. Then, in 2004, a coalition of Australian NGOs and individuals compiled a further report to the Special Rapporteur, again responding to his questionnaire. This was the first occasion upon which the criminalisation and forced eviction of women living in public space was raised as a human rights concern under the special procedure mechanisms of the UN. The 2004 NGO Coalition Report to the Special Rapporteur on Adequate Housing on Women and the Right to Adequate Housing in Australia highlighted the disproportionate impact of legal regulations of public space on Indigenous women who are homeless, in the context of assessing the extent to which Australian governments have fulfilled their obligations to progressively realise the human right to adequate housing under art 11 of the ICESCR.555

The effective role of Australian NGOs in bringing human rights concerns to the attention of the UN Special Rapporteur on Adequate Housing through these submissions during his mandate was one of the factors that led to his visit to Australia in 2006 to investigate these allegations. From 31 July to 15 August 2006, the UN

553 See Alison Aggarwal, 'Homelessness and the UN: Role of the Special Rapporteur on Adequate Housing' (2004) 17(1) Parity 58; Alison G Aggarwal, 'UN Special Rapporteur on Adequate Housing: Strengthening gendered norms for the right to adequate housing' (2004) 10(2) Australian Journal of Human Rights 165. 554 Dianne Otto and Philip Lynch, 'UN Special Rapporteur on Adequate Housing: Questionnaire on Women and Adequate Housing: An Australian Submission' (University of Melbourne & Public Interest Law Clearing House 2002), 27. 555 Donna Bannister et al, 'Women and the Right to Adequate Housing in Australia: Report to the UN Special Rapporteur on Housing' (2004), 48-51 (co-authored by this author).

143 Special Rapporteur on Adequate Housing undertook a Mission to Australia travelling to Darwin in the Northern Territory as well as a number of other urban, and rural and remote settings. The Special Rapporteur met with a wide range of civil society groups and received written submissions. On 15 August 2006, he released his Preliminary Observations,556 but did not refer to the criminalisation or forced eviction of homeless people from public space as a human rights concern.

On 28 September 2006, this author prepared a written submission to the Special Rapporteur in the lead up to the preparation of his Final Report, due for release in 2007. The submission argued that

[t]he policing of people who are homeless in public spaces in urban centres in Australia, on a case by case basis, operates to violate the prohibition on forced evictions, as a component of art 11(1) of ICESCR, as well as art 17 of the

International Covenant on Civil and Political Rights (ICCPR) which affirms the prohibition on arbitrary interference with a person's home and privacy. For people who are continuously evicted and 'moved on' in places where there is literally no where else to go, it is my view that this treatment is also in violation of the right to be free from cruel, inhuman or degrading treatment or punishment, protected under art 7 of the ICCPR and art 16 of the Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment of Punishment.

The former Aboriginal and Social Justice Commissioner of HREOC, Mr Jonas AM has expressed the view that the disproportionate use of policing powers against Indigenous people in public spaces may violate the prohibition of racial

557 discrimination.

556 Miloon Kothari UN Special Rapporteur on Adequate Housing, Mission to Australia, 31 July – 15 August 2006: Preliminary Observations (2006) at 28 September 2006. 557 Cassandra Goldie, Submission to the UN Special Rapporteur on Adequate Housing: Official Visit to Australia - August 2006 (2006 ) at 2 January 2007.

144 On 11 May 2007, the Special Rapporteur delivered his Final Report.558 He found as follows:

In every urban centre in Australia, laws now exist which either criminalize essential human activities, such as sleeping, or create “move on” powers that authorize policing authorities to continuously displace people who occupy and live in public spaces. For example, some people are forced to live in public places, yet local council by-laws make it illegal for a person to fall asleep in a public place between sunset and sunrise. These laws disproportionately affect people who are homeless, and indigenous people. They are used to forcibly evict significant populations who live in public areas due to lack of affordable and culturally appropriate living areas with security of tenure. In Darwin, about 70 per cent of people fined for sleeping in public

in 2001 were indigenous people. Enforcement of public space laws criminalizes the homeless and may violate civil rights, including the right to be free from inhuman or

degrading treatment or punishment. These regulations do not provide people living in public places and who are threatened with eviction the procedural or substantive rights recognized under international laws regarding forced evictions, and therefore may also violate the right to adequate housing (citations omitted).559

He recommended that

Australian governments should address homelessness and its causes as a priority. Moreover, laws that criminalize poverty and homelessness and those currently disproportionately impacting upon homeless people such as begging laws, public drinking laws and public space laws, should be revised and amended to ensure that fundamental human rights are protected.560

This was the first occasion upon which any part of the UN human rights mechanisms had identified that the criminalisation and forced eviction in Australia of homeless people from public space may be a human rights violation. The Special Rapporteur

558 Miloon Kothari, Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Miloon Kothari, Addendum, Mission to Australia (31 July to 15 August 2006, UN Doc A/HRC/4/18/Add.2, (2007). 559 Ibid [47]. 560 Ibid [132].

145 cites both the ICCPR, particularly art 7 which protects the right to be free from cruel, inhuman or degrading punishment and treatment, and art 11(1) of ICESCR, the right to progressive realisation of the right to adequate housing, particularly the prohibition on forced evictions.

This finding by the Special Rapporteur followed on from the first occasion in 2005 when the HRC had found that forced evictions may also violate article 17 of the ICCPR, being the human right to be free from arbitrary or unlawful interference with privacy, family and home.561 These are important findings, laying the ground for future international advocacy, particularly the scope for individual communications under the Optional Protocol to the ICCPR.

F Impact of Efforts to Challenge the Criminalisation and Forced Eviction of People Living in Public Space

It is outside the scope of this thesis to undertake a systematic evaluation of the impact of advocacy efforts in the area of public space laws and homelessness, including those efforts that have used human rights laws and tools, reviewed in this chapter. However, reforms suggest that the array of research and advocacy efforts to challenge the criminalisation and forced eviction of people living in public space, sometimes grounded in a human rights framework, has to date reaped some improvements.

1 Enhanced Service Delivery Increased focus on the legal needs of people who are homeless has led to expanded specialist service delivery for this client group. The early work of each of the specialist homelessness legal clinics progressively established in four jurisdictions has had a focus on the impact of public space laws and Chapter Two set out the progress of each of these clinics. In each case, the clinics have become stable service providers, with either increased or more secure funding. There have also been other specific projects developed to explore further the legal needs of people who are

561 See Concluding Observations of the Human Rights Committee: Kenya, UN Doc CCPR/CO/83/KEN, (2005), discussed further in Chapters Six and Seven.

146 homeless, for example, through the establishment of the Legal Aid Queensland Street Offences Project in 2005; expanded efforts by the New South Wales Legal Aid Commission to increase access to legal assistance to homeless people; and a range of research projects, such as the Law and Justice Foundation of New South Wales Legal Needs Survey and the work of Dr Tamara Walsh and partners in Queensland.562

2 Repeal or Amendment of Public Space Laws Advocacy regarding public space laws has called for the repeal of public space laws that disproportionately affect or discriminate against people due to their homelessness status563 but these calls have been largely ineffective. In Victoria and Queensland, it is likely that the repeal of the vagrancy offences in those jurisdictions in 2005 were in part due to advocacy by the Homeless Persons Legal Clinics and their collaborators.564 In Victoria, it may also be that advocacy opposing recommendations to introduce dispersal powers resulted in a lack of action by the Victorian Government to implement that recommendation to date.565 However, as described in Chapter Two, a wide range of public space laws remain in place in all jurisdictions, or, in the case of begging, offences have been re-enacted in New South Wales and Victoria. In Queensland, whilst the offence of vagrancy was repealed, a new offence of ‘public nuisance’ was introduced which appears to be leading to greater engagement with the criminal justice system, at least for Indigenous persons. Further, in New South Wales, Queensland, and Western Australia, expansive move on powers have now been introduced and remain in place.566

562 See Chapter Two. 563 See, eg, Letter from Phil Lynch, Homeless Persons Legal Clinic, to Attorney General of Victoria, 17 April 2003. 564 See, eg, Rights in Public Space Action Group, 'Submission to the Minister for Police and Corrective Services on the Review of the Vagrants, Gaming and Other Offences Act 1931 (Qld)' (2004). 565 See Chapter Two. 566 Ibid.

147 Advocates have also recommended that, in the absence of repeal, public space laws should at least be amended to ensure basic human rights are respected,567 and/or that a greater range of statutory defences be made available.568 For example, in Queensland, with the exception of the offence of ‘wilful exposure’ under s 9 of the Summary Offences Act 2005 (Qld), there are no statutory defences for the remaining public space laws under that Act, including public nuisance, begging in a public place, being drunk in a public place, and trespass. There have been few reforms achieved. However, in the case of the new ‘public nuisance’ offence in Queensland, the legislation mandated a review of the impact of the new offence by the Crime and Misconduct Commission. That review has been commenced but has yet to report. In Western Australia, there was some modification to s 27 of the Criminal Investigation Act 2006 (WA), the move on power. The legislation now requires that the length of an order must be ‘reasonable’ and police must to take into account a range of potential impacts on the person as part of their exercise of discretion.569

3 Increased Policing Diversion There are also some examples of increased diversion by policing officers. For example, in Victoria, the Guidelines to the new Infringements Act 2006, issued by the Victorian Attorney General, also make reference to the desirability of police exercising their discretion not to charge persons with public space offences where it is ‘clearly inappropriate to do so’570 although early reports indicate that these Guidelines are rarely being implemented.571

567 See, eg, Tamara Walsh, 'No Offence: The Enforcement of Offensive Language and Behaviour Offences in Queensland' (TC Beirne School of Law, University of Queensland, 2006), 34. 568 See, eg, Queensland Public Interest Law Clearing House Homeless Persons' Legal Clinic et al, 'Written Submission to the National Youth Commission Inquiry into Youth Homelessness' (2007), 3: ‘Recommendation 5: That all State and Territory public order legislation be reviewed and amended to include statutory defences for all public space offences, thereby minimising the criminalising impact of public space laws on young homeless people.’ 569 See Chapter Two. 570 Kristen Hilton, 'Infringing Our Young People ' (2006) 20(1) Parity 68, 69. 571 Ibid.

148 4 Sentencing Reforms In at least three jurisdictions, there has been some significant success to ameliorate the sentencing regimes for public space or public order offences brought against people in ‘special circumstances’ including people who are homeless. In particular, there is greater scope for dismissal of fines imposed on offenders, and greater court-based diversionary options, together with specialist court staff to assist in providing homeless people with ‘pathways’ out of the criminal justice system. These sentencing reforms have reduced the impact of public space laws on homeless people. For example, in 2002, the Victorian Department of Justice introduced a Special Circumstances Court (‘SCC’).

Homeless people in Melbourne can appear in the SCC where their homelessness results in them being unable to control conduct which constitutes the offence for which they are charged.

Now 5 years old, the Melbourne SCC is regarded as a great success. Most cases result in adjournment or dismissal in combination with other orders. It recognises that effective orders for homeless people appearing before the SCC include undertakings of good behaviour and/or referral pathways to support services.572

In 2006, the Victorian Government also amended its fines enforcement scheme to enable fines to be withdrawn before proceeding to court where special circumstances, such as homelessness, existed.573

In Queensland in 2004, State Cabinet announced a package to minimise the impacts of the Summary Offences Act 2005 (Qld) on people who are homeless, including the establishment of a pilot court diversion program for homeless people charged with public space offences, and establishment of a ‘Special Circumstances Court’ similar to the Melbourne SCC in order to ‘divert people with impaired decision making capacity (as a result of mental health issues, intellectual disability or

572 Queensland Public Interest Law Clearing House Homeless Persons' Legal Clinic et al, 'Written Submission to the National Youth Commission Inquiry into Youth Homelessness' (2007) 573 See Infringements Act 2006 (Vic). See also Kristen Hilton, 'Infringing Our Young People ' (2006) 20(1) Parity 68.

149 brain/neurological disorders) into a range of programs to address their underlying “offending” behaviour.’574

In order to be eligible for participation in the [Queensland] SCC, a defendant must:

• plead guilty; • be aged 17 or over; • be homeless or at risk of homelessness; • appear to be suffering from impaired decision making capacity (whether due to their mental health, intellectual disability, acquired brain injury or cognitive impairment); • be charged with an ‘eligible’ offence (an offence of a public order nature which can also include failure to appear and breach of bail for the original offence).

The SCC is supported by a dedicated Homeless Persons’ Court Liaison Officer. Possible court orders include releasing the individual, either totally or with an order for court supervision, recognisance or on condition of good behaviour. Conditions may also be attached which deal with the individuals problems, for example a referral to drug assessment/treatment, psychiatric assessment/treatment or a life skills course.575

The SCC is currently being evaluated, but early indications are that it ‘already appears to have had a significant positive impact on some defendant’s patterns of offending behaviour.’576 The SCC has been applauded by homelessness legal advocates who have called for greater prominence to be given to these kinds of ‘therapeutic sentencing projects.’577

As such, it can be seen that reforms are particularly with respect to changes to policing practices and court-based fines enforcement mechanisms, rather than changes

574 Monica Taylor, 'Homelessness, Mental Health and the Law ' (Paper presented at the Lock 'Them' Up? Disability and Mental Health Aren't Crimes Conference, Brisbane, 17-19 May 2006). 575 Queensland Public Interest Law Clearing House Homeless Persons' Legal Clinic et al, 'Written Submission to the National Youth Commission Inquiry into Youth Homelessness' (2007), 24-5. 576 Ibid 25. 577 Ibid 25.

150 to public space laws themselves, although it may be that legislative outcomes might have been worse but for the strident advocacy efforts to date. It is also clear that the profiling of legal issues affecting people living in public space has affirmed and promoted the need for expansion of specialist legal assistance to people who are homeless. However, overwhelmingly at the present time, law and order responses to the concerns regarding people living in public space remain popular, and, in the face of domestic and international advocacy efforts, the legal regulations of public space have been increased.578

G Conclusion

In 2003, Lynch and Cole argued that

international law may have a powerful bearing on the development of the common law, the interpretation and application of statutes and the Australian Constitution, the process of administrative decision-making, and the development and application of social justice policies. Lawyers and advocates working with and for people experiencing homelessness should have regard to these principles and mechanisms when regarding and responding to homelessness in a human rights framework.579

This chapter has shown that, over the last five years, there has been a substantial increase in the writings of Australian legal academics, lawyers and advocates regarding the legal and human rights of people who are homeless in Australia. In that body of work, a number of authors have specifically expressed views about the extent to which the criminalisation and forced eviction of people living in public space, such as the events experienced by people living in the long grass in Darwin in the Northern Territory, violates Australia’s international human rights obligations, either generally, or with respect to a wide range of human rights. Increasingly, human rights arguments have been used to bolster objections to the use of public space laws against

578 See Chapter Two. 579 Philip Lynch and Jacqueline Cole, 'Homelessness and Human Rights: Regarding and Responding to Homelessness as a Human Rights Violation' (2003) 4 Melbourne Journal of International Law 139, 168.

151 people living in public space in the face of a political environment that promotes a law and order approach. In terms of ‘the development and application of social justice policies’ at the domestic level, research and advocacy efforts grounded in a human rights framework have reaped some significant reforms. However, overwhelmingly at the present time, law and order responses to the concerns regarding people living in public space remain popular, and, in the face of domestic advocacy efforts, the legal regulations of public space have been increased.

To date, at the domestic level, there appear to be few human rights-based legal challenges to the criminalisation and forced eviction of people living in public space that have used human rights arguments. As noted in Chapter Two, it is probably not accurate to propose that, at the present time, international human rights law is a ‘powerful’ influence on the common law, statutory and constitutional interpretation, or judicial review of administrative decision-making. Further, legal advocates do not typically see human rights-based arguments as fruitful persuasive material before Australian domestic courts in the absence of an express legislative basis. To date, there has been no finding by a domestic court or tribunal that criminalisation or forced eviction of people living in public space violate Australia’s international human rights obligations, nor does it seem that human rights submissions are being routinely incorporated into criminal or administrative law challenges to prosecutions under public space laws.

This author participated in the one domestic legal challenge under the RDA in Simmering, which relied upon the international norm of prohibition of racial discrimination, but this matter was withdrawn, with no independent determination on the question of the racially discriminatory aspects of the use of public space laws against Indigenous peoples.

This author has also participated in recent efforts to raise these human rights concerns at an international level, using the shadow reporting process under CERD and the mandate of the Special Rapporteur on Adequate Housing, on two occasions. This NGO engagement with the Special Rapporteur lead to the first direct finding, in May 2007, which gives credence to the many domestic and international advocacy claims raised regarding this human rights concern.

152

However, the finding by the Special Rapporteur is general in its nature, without application to a particular set of facts. As has been widely noted, the greatest challenge to the implementation of international human rights norms is to give them specific content, to move beyond rhetorical claims, to a level of specificity that can support justiciability and the delivering of practical remedies to individuals affected by laws, policies and practices that are incompatible with human rights.

It is outside the scope of this thesis to rigorously test out whether each of the 15 human rights provisions that have been identified as applicable to the treatment of people living in public space in Australia (as listed in this chapter) could in fact be the basis of a legally meritorious individual complaint to a UN human rights treaty body, or be brought to bear on a domestic challenge under either criminal or administrative laws, or existing human rights provisions under the Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities 2006 (Vic).

The remainder of this thesis is therefore dedicated to a detailed analysis of one fact scenario – the experience of Indigenous people living in public space in Darwin and one human rights analysis – the human right to privacy, family and home under art 17 of the ICCPR.

The next chapters, Chapters Four and Five, summarise the available research regarding the criminalisation and forced eviction of people living in public space in Darwin, such as Johnny Balaiya and Bob Bunba in 2001, commonly described as ‘long grassers’, using DCC By-law 103. Chapter Four draws on available quantitative and qualitative date to attempt to describe who the people are, how many people are estimated to be living in the long grass, and why this may be so. Chapter Five proceeds to review the history and operation of DCC By-law 103, and its impact on the Darwin ‘long grass’ population.

Against this fact scenario, Chapters Six and Seven then consider the human right to family, privacy and home under art 17 of the ICCPR to explore whether the criminalisation and forced eviction of people living in the long grass in Darwin, through the application of DCC By-law 103, may be found to be in violation of this

153 human right. Chapters Six and Seven provide a detailed review of authoritative sources regarding art 17, including general comments, concluding observations, international and comparative jurisprudence and the opinions of international jurists. These sources are applied to the specific facts of Darwin in the Northern Territory to assess the merits of such an argument.

Does the criminalisation and forced eviction of Indigenous people living in the long grass in Darwin in the Northern Territory, such as Johnny Balaiya and Bob Bunba in 2001, constitute a violation of the human right to privacy, family and home under art 17 of the ICCPR? The thesis reaches conclusions on this question.580

580 Parts of this chapter have been previously published in Cassandra Goldie, 'Using the Law and Human Rights to Challenge Injustice for People who are Homeless' in Amy Horton-Newell (ed), Lawyers Working to End Homelessness (2006) 33; Cassandra Goldie, 'Rights versus Welfare: Fostering community and legal activism in support of people facing homelessness' (2003) 28(3) Alternative Law Journal 132; Cassandra Goldie, ''Why government is treating us like animals?' Legal and Human Rights Perspectives on Living in Public Space' (2003) 16(9) Parity 16.

154

155

156 .

4 THE NATURE AND EXTENT OF LIVING IN PUBLIC SPACE IN DARWIN, NORTHERN TERRITORY

A Introduction

This chapter draws together research and sources to build a specific picture of people living in the ‘long grass’ in Darwin in the Northern Territory. The term ‘long grass’ is a localised reference to mainly Indigenous people who live in public spaces around the urban centres. Tomlinson summarises the origins of the term in this way:

The name [long grasser] arose because people attempt to camp out of the authorities’ sight in the long spear grass during the wet season or under bushes in the dry.581

The chapter reviews primary and secondary sources regarding the nature and extent of living in public space, in the long grass, by reference to three key aspects: the number of people living in public space in Darwin, Northern Territory; analysis of who the people are, including demographic data such as gender, age and ethnicity, and their reasons for being in Darwin; and analysis of why people live in the long grass rather than in other forms of accommodation.

The Chapter endeavours to present available research findings regarding the long grass population – the people – who are forcibly evicted and criminalised whilst living in public space around the urban centre of Darwin. The next chapter, Chapter Five, will then provide a description of Darwin City Council’s by-law on camping and sleeping in public places (‘DCC By-law 103’) as applied to the area occupied by this population. The evidence-based analysis in this and the subsequent chapter provides the grounds for the assessment made in Chapters Six and Seven concerning the extent to which the forced

581 John Tomlinson, 'Homeless and in Darwin - no peace in the long grass' (2005) On Line Opinion at 19 December 2006.

157 . eviction and criminalisation of people living in the long grass in Darwin is in breach of international human rights law, particularly the right to respect for privacy, family and home. These two chapters, then, provide the evidence-based case study for this thesis.

B How Many People Live in the ‘Long grass’ in Darwin?

There is a widely-held view in Australia that the number of ‘homeless’582 people, including people living in public space, is on the increase. Some research and anecdotal evidence supports this view.583 Evidence of local public opinion in Darwin around 2003

582 The term ‘homeless’ has been place in quotations to acknowledge that, for some people who live in public space, they would not necessarily describe themselves as homeless. This issue is addressed later in this chapter. 583 For example, see Tony Kryger, Is Youth Worse Off Than Two Decades Ago? (1998) Australian Parliament House http://www.aph.gov.au/library/pubs/rn/1997-98/98rn48.htm at 31 July 2002; Jane Sanders, ‘Youth Homelessness: 10 years on from the Burdekin Report’ (1999) 8 Human Rights Defender 12; Salvation Army, ‘The tragedy of our most vulnerable: the homeless’ (2002) at 27 July 2002; Mission Australia, ‘National Homeless Persons’ week: Sunday 4 August 2002’ (Press Release, 2 August 2002); ABC Online, ‘Homeless youth on the rise: report’ (Press Release, 16 July 2002); RMIT, ‘Youth Homelessness 2001 Census Released’ (Press Release, 16 July 2002); Commonwealth Advisory Committee on Homelessness, Working Towards a National Homelessness Strategy (2001), 7: ‘Homelessness presents a serious challenge for Australian governments and communities. Its existence is a stark reminder that not all Australians have participated in the rising living standards of recent decades. While the situation in Australia is not as bad as in some other developed countries, there is a strong public perception that homelessness is on the rise, and the problem is increasingly visible in our major cities’; Anne Coleman, Five Star Motels: Spaces, Places and Homelessness in Fortitude Valley, Brisbane (PhD Thesis, School of Social Work and Social Policy, The University of Queensland, 2000), 183: ‘It is difficult to deny, however, that Australia’s increasing openness to global forces has come at some cost, with the costs generally being disproportionately distributed across some geographic areas, for example, rural areas, and some sections of the community. This is precisely the context in which Burke (1994) foresaw an increase in the number of people experiencing homelessness in Australia (citations omitted).’ Kenneth Fernandes, 'Why Not Involve the Homeless? Housing Rights and Community Building' (Paper presented at the 3rd National Homelessness Conference 'Beyond the Divide', Brisbane, 6 - 8 April 2003), 3: ‘Over the past decade gradual cuts to the social sector budget have been made. In housing, public housing stock is not increasing to keep up with the demand. There is a gradual

158 . also suggested a generalised belief amongst the local population that the number of people living in public space had increased dramatically and was at ‘crisis levels’:

Begging and other anti-social behaviour is now rife in most Territory towns. Nearly every shopping centre in Darwin and Alice Springs is plagued by itinerants. 584

Meanwhile, itinerants continue to plague Smith St Mall, Fannie Bay shopping centre and Nightcliff. We must look at the root cause of the problem. …

Community elders are forever demanding respect - now is the time for them to earn it by persuading would-be itinerants to stay at home. The elders must impress upon them that they are not welcome in town - by whites or blacks.585

Beggars are pestering people eating in cafes and restaurants as the Territory's itinerant crisis worsens. One cafe owner said last night: "Now you can't even enjoy a meal in peace - it's like being in the Third World." 586

As a person who has resided in the NT for 35 years I have seen the increase in drop-outs, long-grassers and Aboriginals in and around businesses and shopping centres throughout the NT...we need police seriously involved and laws strengthened. Bring back vagrancy laws with the power to remove them. What is wrong with itinerants being placed at Bagot Reserve or similar areas that exist in major centres. Until these people are removed

shift to be reliant on the private market. We are witnessing more people that are homeless and living in poverty.’; Kate Incerti and Lauren Matthews, 'Persons-Bricks-Homes: Partnerships to realising Housing as a Human Right' (Paper presented at the Australian Association of Social Workers National Conference 2003 'Cooperating for Social Justice', Canberra, Australian Capital Territory, 29 September 2003), 2: ‘Homelessness is increasing each year and so is the demand for assistance, especially crisis housing.’ 584 Paul Dyer, 'Go Home: Itinerants told by their own people', Northern Territory News (Darwin), 15 April 2003, 1. 585 Editorial, 'Elders must act', Northern Territory News (Darwin), 5 March 2003, 12. 586 Chris Carter, 'Street beggars hitting businesses', Northern Territory News (Darwin), 11 April 2003, 2.

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from public areas - and pursue it with some vigour the problem is going to increase. 587 Thanks for listening.

The public perception that there is a ‘crisis’ involving rapid increases in the number of people living a ‘long grass’ lifestyle has been reinforced by comments from government representatives, such as the former Minister for Community Development, John Ah Kit:

As the Northern Territory News rightly pointed out a few weeks ago, the drift from impoverished rural areas to the "honey pots" of big cities is not unique to the NT - it is an international phenomenon…As an Aboriginal, it shames me when a drunk countryman hassles me with a "Hey bruz! Give me money!” We're looking at a social crisis that has developed over 30 years. There's no denying it is worse than ever before. It is an issue that won't be solved overnight.588

Did a crisis exist and, if so, does it continue? Is it possible to know, either way? What does the available research tell us? Are the people living in public space in Darwin a significant and growing population, in numbers ‘worse than ever before’? This section sets out the available research regarding estimates of the number of people living in public space in Australia, with particular reference to Darwin in the Northern Territory, drawing upon data available from the Australian Bureau of Statistics (ABS), particularly the Homelessness Enumeration Strategy, as available at 2001, as well as some other empirical and secondary sources.

As will be seen, it is not yet possible to propose accurate estimates of the number of people who are living in public space in Darwin, in the Northern Territory, or Australia generally. Nor is it possible to say whether the number of people is increasing, remains

587 Name and Address Withheld, 'Letter to Editor: Vagrancy laws needed', Northern Territory News (Darwin), 10 March 2003, 12. 588 John Ah Kit, Minister for Community Development, ‘Make the most of regional strengths’ Northern Territory News (Darwin), 2003.

160 . stable or is on the decline.589 This is due predominantly to a lack of reliable longitudinal data and research. Whilst there is some progress being made towards an agreed estimation of the number of people who are defined as ‘homeless’ in Australia, the ABS Census data does not enable specific identification of the number of people living in public space, as distinct from, for example, people living outside in make shift shelters but on private land to which they have occupation rights. Estimations of the number of people living in public space, as a part of the ‘homeless’ population, are the most difficult to achieve, and therefore the least accurate.590

Where estimations of the level of homelessness, including occupancy of public space, have been generated, it has not been possible to accurately conclude any particular trends.591 Authoritative national estimations have only been available since the 1996 Census.592 These estimations indicate that the overall level of homelessness in Australia has remained relatively stable between 1996 and 2001, with the results of the 2006 Census not anticipated until 2008.593 Whilst additional qualitative research provides some indications of numbers of people, and trends in terms of increasing occupancy of public space in Darwin, the findings remain insufficient to confirm the popular

589 See Chris Chamberlain and David MacKenzie, 'Counting the Homeless 2001' (ABS Catalogue No 2050.0, Australian Bureau of Statistics, 2003), 64: ‘It is … clear that the [homeless] population has increased over the past 40 years, but there is no quantitative data on the rate of the increase … The increase in low income households underpins the increase in homelessness over the past two decades.’ 590 Chris Chamberlain, 'Counting the Homeless: Implications for Policy Development 1996' (ABS Catalogue No 2041.0, Australian Bureau of Statistics, 1999), 22: ‘The category of 'improvised home, tents, sleepers out'] is the hardest category in the homeless population to count, and it is the category where there is the greatest risk of undercounting.’ 591 See ACTCoss, Needs Analysis of Homelessness in the ACT (2002), 38: ‘…the number of people accessing SAAP [being the Supported Accommodation Assistance Program, providing crisis accommodation for homeless persons] and the number of support periods has fluctuated over the past five years, with no consistent pattern of increase or decrease over that period.’ 592 The ABS data was ‘supplemented by data from the National SAAP Data Collection and the second national census of homeless school students’: Chris Chamberlain and David MacKenzie, 'Counting the Homeless 2001' (ABS Catalogue No 2050.0, Australian Bureau of Statistics, 2003), 19. 593 Email from Chris Chamberlain, Associate Professor, RMIT University to Author, 7 October 2006.

161 . perceptions that have been strongly asserted in media and political discourses that a crisis exists. Further concerns are now being expressed about the likely increase in the number of Indigenous people moving into the Darwin urban centre arising out of the Northern Territory National Emergency Response, refereed to as the ‘Northern Territory Intervention’, introduced by the former Federal Government in 2007.594

1 Australian Bureau of Statistics 1996 and 2001 Census Data Analyses: Homelessness Enumeration Strategy

The 1996 and 2001 Censuses, held on the evenings of 7 August, and 6 August, respectively, were the first attempts to produce a national estimate of the number of homeless people in Australia, providing the most authoritative source of data available to date.

(a) Background to the ABS Homelessness Enumeration Strategy

In 1996, the ABS implemented its Homelessness Enumeration Strategy as part of the Australian Census. The Strategy was designed to address limitations in earlier censuses which had prevented homeless people from being identified. Until this time, the ABS census form had not included questions specifically supporting enumeration of people who were ‘homeless.’ The closest questions on the census form that might have provided an indication that someone was homeless in previous censuses were questions included in

594 See, eg, Human Rights and Equal Opportunity Commission, ‘Submission to the Senate Legal and Constitutional Committee on the Northern Territory National Emergency Response, 10 August 2007: ‘HREOC is also concerned that the removal of CDEP and lack of alternative employment options in Indigenous communities could lead to some people deciding to move into urban areas such as Darwin, Katherine and Alice Springs. This would exacerbate the current pressures in those areas in relation to available and appropriate housing and other essential services. Darwin already has the highest rate of homelessness in an urban setting on a national scale (citing this author).’ Research is not yet available to substantiate these concerns. For further background on the Northern Territory National Emergency Response, see Aboriginal and Torres Strait Islander Social Justice Commissioner, 'Social Justice Report' (Human Rights and Equal Opportunity Commission, 2008, forthcoming).

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1933 and 1947. During these censuses, the Commonwealth Bureau of Census and Statistics (CBCS) (the agency that performed the role of the ABS until 1974)595 included questions about the ‘number of persons (if any) who slept out throughout the year on veranda (not enclosed sleep outs)’. From 1976, the Australian census identified any person who was a ‘camper out’, but did not collect any information that would distinguish between people who were, for example, on a camping holiday and therefore had permanent residence elsewhere, and those for whom ‘camping out’ was a permanent situation, or at least their current way of living. In 1986, the ABS added the category of ‘improvised home’ to the census form, which it then modified to ‘improvised home, campers out’ in 1991. However, once again, there was no information collected to distinguish between people who ‘had nowhere else to go’596 — and therefore considered homeless — and those who were, say, camping out on holiday. 597

In addition to the inadequacy of census questions to support enumeration of ‘homeless’ people, prior to 1996, census collection procedures did not include special measures to support participation by ‘homeless’ people in the national count. Some attempts had previously been made. For example, from 1976, the ABS instructed collectors to seek out all people camping or sleeping out by visiting ‘any place in your Collection District (CD) on census night where it is likely that persons may be sleeping out, e.g. camping areas, park benches, derelict buildings etc.’ 598 However, until 1986, there was no evidence that this instruction was followed. For the 1986 Census, and increasingly in 1991, evidence emerged of localised efforts by census managers to improve the extent to which people who were homeless were located. For example, census collectors in Melbourne used the

595 Australian Bureau of Statistics, A Brief History of Australia's National Statistical Office (2002) Australian Bureau of Statistics at 18 February 2004. 596 See Australian Bureau of Statistics, '1996 Census: Homeless Enumeration Strategy (Evaluation of the Field Objective)' (Census Working Paper 91/1, Australian Bureau of Statistics, 1997), 2. 597 Ibid 4. 598 Ibid 2.

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Open Family Foundation bus to locate ‘street kids’. Collectors were equipped with gifts to act as incentives for participation. However, these localised efforts were not coordinated at a national level, nor evidenced as a consistent national approach.

As a result, the ABS developed a ‘Homelessness Enumeration Strategy’, which was implemented in the 1996 Census. To develop the strategy, the ABS adopted the definition of homelessness proposed by Chris Chamberlain and David MacKenzie.599 The definition is known as the ‘cultural definition’. Chamberlain and MacKenzie propose that ‘homelessness’ and ‘inadequate housing’ are concepts that are based on a shared understanding of community standards of minimum housing. A person is then defined as ‘homeless’ if they do not live in housing that meets the minimum standard. The minimum standard will vary according to cultural differences, hence the name of this definition. Chamberlain and MacKenzie propose that the ‘shared community standard of minimum housing’ in Australia is ‘a small rental flat to live in – with a room to sleep in, a room to live in, kitchen and bathroom facilities of their own, and an element of security of tenure’.600

By reference to this cultural standard, people would be defined as homeless in Australia if they fell into one of three categories, as follows:

Primary homelessness - people without conventional accommodation, such as those living on the streets, sleeping in parks, squatting in derelict buildings, or using cars or railway carriages for temporary shelter;

Secondary homelessness – people who move frequently from one form of temporary shelter to another. It covers: people using emergency accommodation (such as hostels for

599 Chris Chamberlain and David MacKenzie, 'Understanding Contemporary Homelessness: Issues of Definition and Meaning' (1992) 27(4) Australian Journal of Social Issues 274. 600 Chris Chamberlain and Guy Johnson, 'The Debate about Homelessness' (2001) 36(1) Australian Journal of Social Issues 35, 39.

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the homeless or night shelters); teenagers staying in youth refuges; women and children escaping domestic violence (staying in women’s refuges); people residing temporarily with other families (because they have no accommodation of their own) and those using boarding houses on an occasional or intermittent basis.

Tertiary Homelessness – people who live in boarding houses on a medium to long-term basis. Residents of private boarding houses do not have a separate bedroom and living room; they do not have kitchen and bathroom facilities of their own; their accommodation is not self-contained; and they do not have security of tenure provided by a lease.’601

Importantly, the category of primary homelessness also includes people living in private spaces but without any private property rights, such as when living in abandoned warehouses, squats, unlawful camps on other people’s private property, and the like; and people who have security of tenure, but who do not live in housing that meets the cultural standard (such as living in a tent). Clearly, living in the long grass counts is primary homelessness.

In order to categorise people as homeless by reference to one of the above three categories, the ABS 1996 Homelessness Enumeration Strategy involved modification to the census in two respects. Firstly, the strategy changed the census form in two ways. The form included a new category of ‘no usual address’ for the question ‘usual residence address’. In past censuses, people living in women’s refuges and other forms of accommodation categorised as secondary or tertiary homeless would have participated in the census because they were living in private dwellings to which census forms would have been delivered by traditional methods. However, the questions on the earlier census form had failed to enable those people to be separately identified as homeless.602 The

601 Chris Chamberlain, 'Counting the Homeless: Implications for Policy Development 1996' (ABS Catalogue No 2041.0, Australian Bureau of Statistics, 1999), 1. 602 This was because, prior to 1996, people who did not have a ‘usual address’ were instructed to nominate the address where they were staying in response to the question ‘What is the person’s usual address?’.

165 . change in 1996 to include a category of ‘no usual address’ was aimed at improving the identification of people in all homelessness categories, as it was hoped that people in the secondary and tertiary categories would select this category on the form.603 The ABS noted however that this might inadvertently define some people as homeless who would not consider themselves to be so: for example, ‘seasonal workers who are constantly travelling.’604 Secondly, the census form modified one of the dwelling structure categories. Instead of ‘improvised home, campers out’, this category became ‘improvised home, tent, sleepers out’, to better refer to homeless people in the primary homelessness category. According to the ABS, ‘[i]t avoids the connotations of fun attributable to ‘campers out’ and not appropriate to the homeless and the air of desperation covered by ‘sleeping rough’ used in the UK which would be inappropriate to (e.g.) holiday makers or surfers sleeping on the beach.’

The category of ‘improvised home, tent, sleepers out’ includes ‘sheds, tents, humpies and other improvised dwellings occupied on census night. It includes caravans occupied on census night and located in roadside parking areas. It also includes people sleeping on park benches or in other ‘rough’ accommodation (the traditional definition of homeless people).’605 In order to distinguish between people in the primary homelessness category

Accordingly, people staying in a refuge were likely to nominate the refuge as their usual address. See Australian Bureau of Statistics, '1996 Census: Homeless Enumeration Strategy (Evaluation of the Field Objective)' (Census Working Paper 91/1, Australian Bureau of Statistics, 1997), 2: ‘The usual address residence question has the potential to provide an indication of homelessness. However, from 1976 to 1991, the question included the instruction that if a respondent had no usual address they should tick the ‘this address; box. This meant that such people were coded as having a usual residence at their place of enumeration.’ 603 Ibid 10. 604 Ibid 53: ‘It is likely that there will be a number of people who consider that they have no usual address but would not normally be regarded as homeless (for example seasonal workers who are constantly travelling).’ 605 Adam Kennedy and Euan Robertson, '2001 Census: Housing' (Census Paper No. 03/02, Australian Bureau of Statistics, 2003), 43. See also Chris Chamberlain and David MacKenzie, 'Counting the Homeless 2001' (ABS Catalogue No 2050.0, Australian Bureau of Statistics, 2003), 16: ‘Primary homelessness is

166 . who were holiday makers and those who would be considered homeless, the ABS suggested that a number of additional attributes be considered, such as:

• usual address (if the person gives a usual address other than their place of enumeration the chances are they are a ‘camper’);

• labour force status;

• type of Household; and

• geographic areas involved (e.g. a person recorded as camping out in the centre of Melbourne is probably homeless; in Wilpena Pound they are more likely to be on vacation).

However, the ABS decided not to undertake this more complex analysis, and enumerated people as homeless in this category if they did not nominate their usual address as being elsewhere in Australia or overseas.606

In addition to changing the questions on the data collection form, the 1996 Homelessness Enumeration Strategy also changed the collection procedures in order to target people in the primary homelessness category. The strategy recognised that people in this group were more regularly completely missed from being counted (rather than not identified as homeless because of the questions asked) during previous censuses. The strategy’s

operationalised using the census category ‘improvised homes, tents and sleepers out.’ It includes people sleeping rough, camping in derelict buildings and sleeping in vehicles. It also includes people using makeshift shelters and more substantial improvised dwellings, but we have no data on the quality of this accommodation or the number of people in improvised dwellings.’ 606 Chris Chamberlain, 'Counting the Homeless: Implications for Policy Development 1996' (ABS Catalogue No 2041.0, Australian Bureau of Statistics, 1999), 22: ‘[The category of ‘improvised dwelling, tents, sleepers out’] can also include people who are on camping holidays and they have been excluded. This is easy because they report a usual address elsewhere in Australia or they report a usual address overseas…Just over 95% of the people [left] reported that they were at their ‘usual address.’

167 . modifications to collection procedures included making contact with organisations providing services to homeless people and seeking to involve them as collectors in the census. Field offices were also established in areas where homeless people were more likely to be located.607 The Homelessness Enumeration Strategy, implemented for the 1996 Census, was subsequently evaluated with the results published in 1997.608 The evaluation found that, whilst the strategy had improved the enumeration of the number of homeless people in Australia, the figures were clearly underestimates, with the greatest underestimates being in the primary homelessness category. The evaluation developed a series of recommendations for improving the accuracy of the census count, particularly in relation to the primary homelessness category.609 The final results of the first national census which had implemented the Homelessness Enumeration Strategy were published on 2 December 1999610 and are summarised below.

For the 2001 Census, the ABS implemented the changes recommended by the evaluation of the 1996 Homelessness Enumeration Strategy.611 It again applied the Chamberlain and MacKenzie definition (with one notable alteration, discussed below) and used the same questions on the census form. However, the ABS enhanced its collection procedures through a range of strategies, including contracting out data collection to welfare bodies that were better placed to locate people, particularly in the primary homelessness category. Hence, Johnny Balaiya and Bob Bunba were found by the local welfare worker engaged as a 2001 census data collector, and interviewed by the Australian Broadcasting

607 Australian Bureau of Statistics, '1996 Census: Homeless Enumeration Strategy (Evaluation of the Field Objective)' (Census Working Paper 91/1, Australian Bureau of Statistics, 1997), 8. 608 Ibid. 609 Ibid. 610 Chris Chamberlain, 'Counting the Homeless: Implications for Policy Development 1996' (ABS Catalogue No 2041.0, Australian Bureau of Statistics, 1999). 611 Strategic Partners Pty Ltd, Technical Forum on the Estimation of Homelessness in Australia: Final Report (2001), 15: ‘There was discussion on the need to improve aspects of the Census process in relation to obtaining data on homelessness particularly in trying to improve the identification of people living on the streets.’

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Commission Television, on the evening of August 2001, when this author was meeting with them at their camp on the perimeters of Palmerston, the satellite city of Darwin. The full analysis of the 2001 Census, Counting the Homeless 2001, was published on 18 November 2003.612 In addition, for the first time, state and territory-specific reports were published, providing a more detailed breakdown of the data relating to homelessness in each jurisdiction, including the 2004 report on the Northern Territory.613

It might have been anticipated that the availability of two national estimates regarding the number of people who are homeless in Australia would enable an estimation of the number of people who may be living in public space in Australia, and whether or not there have been any trends in this number over that time. However, this has proven not to be the case for several reasons.

(b) Problems with the ABS Homelessness Enumeration Strategy between 1996 and 2001 Firstly, the operational category of dwelling structure, ‘improvised dwellings, tents and sleepers out’ into which people living in public space are placed does not distinguish between people who live unlawfully in such conditions in public space, and those who are living on private land with or without the right to be there, but living in makeshift shelters. The categorisation does not enable analytic differentiation between people who have occupancy rights over the places and spaces in which they are living, and those who do not. This distinction is relevant to the thesis’ analysis as it is germane to the matter of regulating essential human behaviour, such as sleeping, simply because it is conducted in public..

612 Chris Chamberlain and David MacKenzie, 'Counting the Homeless 2001' (ABS Catalogue No 2050.0, Australian Bureau of Statistics, 2003). 613 David MacKenzie and Chris Chamberlain, 'Counting the Homeless 2001: Northern Territory' (Swinburne University and RMIT University, 2004).

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Secondly, the definition of an improvised dwelling in remote Indigenous communities was altered between 1996 and 2001. According to Chamberlain and MacKenzie, co- authors of Counting the Homeless 2001, the ABS analysis used ‘the same definition of homelessness, as well as following the methodological precedents established for the 1996 analysis.’614 However, ‘[t]here was an important change in ABS counting rules’615 between 1996 and 2001 regarding the categorisation of dwellings in remote Indigenous communities, and whether or not a person was to be counted as falling into the category of ‘improvised dwellings, tents or sleepers out’. In 1996, census collectors in remote Indigenous communities had been instructed that, in order to be counted as a ‘house’ rather than an ‘improvised dwelling’ for census purposes, the dwelling needed to have both a working shower and a toilet.

This appealed to the shared community standard that houses and flats are expected to have a working bathroom and toilet. If the Indigenous householder reported that this was not the case, the building was classified as an improvised dwelling. However, census field staff reported that the definition caused difficulties for census collectors. In some Indigenous communities, bathroom and toilet facilities are provided in properly constructed amenities blocks used by multiple households. This arrangement is argued to be culturally appropriate housing because it accords with the wishes of the local community.

In 2001, the guidelines for census collectors in remote communities were changed. The instructions in the Field Officer’s Manual (remote Indigenous communities) stated that, ‘to be counted as a house for the census a dwelling needs to be a permanent structure built for the purpose of housing people’. Householders were no longer asked whether their dwelling had a working bathroom and toilet.616

614 Chris Chamberlain and David MacKenzie, 'Counting the Homeless 2001' (ABS Catalogue No 2050.0, Australian Bureau of Statistics, 2003), 1. 615 Ibid 6. 616 Ibid 22.

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As noted by Chamberlain and MacKenzie, ‘[t]his point may generate some debate’.617

The change in the counting rules between 1996 and 2001 has been referred to by Chamberlain and MacKenzie as a ‘change in procedure’.618 However, the change can also appropriately be classified as a change in the definition of an ‘improvised dwelling’ in remote Indigenous communities, and accordingly as the definition of ‘homeless’ for public policy purposes. Dwellings in remote Indigenous communities are located on Aboriginal land, not public space. Accordingly, the change did not affect the categorisation of people living in public spaces in the urban centres such as Darwin. However, the change has had a significant impact on the total count of people categorised in the primary homelessness category, as this group includes people living in public space and those living in improvised dwellings located on private land, including remote communities on Aboriginal land. As will be seen, the impact of this change in definition has been greatest in the Northern Territory.

Unfortunately, the change in definition makes it more difficult to draw comparisons between the 1996 and 2001 data regarding trends with respect to the numbers of people in the primary homelessness category, including the number of people living in public space. Chamberlain and MacKenzie acknowledge this difficulty.619 The change in the definition of primary homelessness in remote Indigenous communities has been repeated for the 2006 ABS Census,620 which will at least enable increased capacity to identify trends in the rates of homelessness over the five years between 2001 and 2006. The 1996 and 2001 Censuses estimations of homelessness, described below, need therefore to be interpreted with an appreciation of the limits and context, described above.

617 Ibid 22. 618 Chris Chamberlain and David MacKenzie, 'Counting the Homeless 2001' (ABS Catalogue No 2050.0, Australian Bureau of Statistics, 2003), 22. 619 Ibid 22: ‘There were 9, 751 Indigenous people in ‘improvised homes’ in 1996, but only 2, 681 in 2001…At the same time, the number of non-Indigenous people increased from 9, 828 to 11, 477. This was partly a consequence of changing the counting rules and it makes comparison over time difficult.’ 620 Email from Chris Chamberlain, Associate Professor, RMIT University to Author, 7 October 2006.

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2 Findings of the 1996 and 2001 Census under the ABS Homeless Enumeration Strategy

(a) National Findings The analysis under the Homelessness Enumeration Strategy of the ABS 1996 Census data estimated that 105 304 people nationally fell into one of the three categories of homelessness (primary, secondary or tertiary) on the night of 6 August 1996.621 In 2001, the number fell to 99 900 people, a difference of 5 404. This result led to positive responses from the former Federal Government.

The Minister for Family and Community Services, Senator Kay Patterson, welcomed today's (18 November) release of the Australian Bureau of Statistics' report "Counting the Homeless 2001", which shows a decline in the number of homeless people.

The report shows the estimated number of homeless people in Australia on Census night in 2001 of 99,900 had fallen since the previous estimate on Census night in 1996.

Senator Patterson said: "This is good news. More importantly this represents a significant decline in the study's estimated national rate of homelessness per 10,000 of the population from 59 in 1996 to 53 in 2001. …

While homelessness is an ongoing issue is Australia, today's ABS report clearly shows that we are heading in the right direction and that the policies of the Australian Government are working.622

In fact, the estimates of the number of people in the secondary and tertiary homelessness categories of homelessness remained relatively similar between 1996 and 2001. The

621 Chris Chamberlain, Counting the Homeless: Implications for Policy Development (1999). 622 Commonwealth Department of Family and Community Services, 'The Number of Homeless Falls, Says New Report' (Press Release, 24 December 2003).

172 . significant drop in the homelessness estimate related to the number of people in the primary homelessness category.623 This is discussed further below. Between 1996, and 2001, the ABS estimated that the total number of people in Australia categorized as in the ‘improvised dwellings, tents and sleepers out’ category fell from 20 579 to 14 158, a drop of 6 421. This is the operational category for primary homelessness.624 See Table A, below.

623 Chris Chamberlain and David MacKenzie, 'Counting the Homeless 2001' (ABS Catalogue No 2050.0, Australian Bureau of Statistics, 2003), 32: ‘[T]he numbers [of people categorised as homeless during the 1996 and 2001 Censuses] are similar in three categories (boarding houses, SAAP accommodation and persons staying with other households), but there was a decline of about 6,400 people in improvised dwellings, tents and sleepers out.’ 624 Ibid 21.

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Table A: Number of People categorized as ‘Homeless’ on Census Night in 1996 and 2001625

1996 2001 Variation Boarding Houses626 23 299 22 877 (-) 422 SAAP Accommodation 12 926 14 251 (+) 1 325 Friends and Relatives 48 500 48 614 (+) 114 Improvised dwellings, tents, 20 579 14 158 (-) 6 421 sleepers out TOTAL 105 304 99 900 (-)5 404

(b) State by State Variations The number of people categorised as homeless varied significantly from state to state and territory with the number of people categorised as homeless dropping the greatest between 1996 and 2001 in the Northern Territory. See Table B, below.

625 Ibid 32. 626 Note that Boarding Houses = Tertiary Homelessness or Secondary Homelessness, depending on how long the person had been living in the boarding house. If they have been living there for twelve weeks or less, they are categorized into the Secondary Homelessness grouping. If more than 12 weeks, they fall into the Tertiary Homelessness category.; SAAP Accommodation + Friends and Relatives = Secondary Homelessness; Improvised dwellings, tents, sleepers out = Primary Homelessness. See ibid 12.

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Table B: State by Territory comparison of the number of People categorized as ‘Homeless’ on Census Night in 1996 and 2001627

NSW Vic SA Tas ACT Qld WA NT 2001 26 676 20 305 7 586 2 415 1 229 24 569 11 697 5 423 1996 29 608 17 840 6 837 2 014 1 198 25 649 12 252 9 906 Variation (-)2 932 (+)2 465 (+)749 (+)401 (+)31 (-)1 080 (-)555 (-)4483

However, the number of people categorized as homeless needs to be interpreted with respect to the total population of each State and Territory, and variations between 1996 and 2001 need to take into account any variation in total population. This analysis can be presented by calculating the number of people categorised as homeless for every 10 000 people located in that state or territory on census night, representing the ‘rate of’ homelessness in that location. The Northern Territory’s rate of homelessness dropped the greatest of any state and territory between 1996 and 2001, from 523.1 to 288.3 per 10 000 people, followed by Queensland and Western Australia. However, despite this drop, the rate of homelessness in the Northern Territory in 2001 remained far higher than anywhere else in the country, when compared with the next highest rate, being Queensland at 69.8 per 10 000, and Western Australia at 64 per 10 000 of the population. See Table C, below.

627 Ibid 44, 46 and 47: Tables 6.2, 6.5 and 6.7, respectively.

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Table C: State by Territory Rates of categorised ‘Homelessness’ Per 10 000 of the Population on Census Night in 1996 and 2001628

NSW Vic SA Tas ACT Qld WA NT 2001 42.2 43.6 51.6 52.4 39.6 69.8 64.0 288.3 1996 49.4 41.0 48.1 43.9 40.3 77.3 71.5 523.1 Variation (-)7.2 (+)2.6 (+)3.5 (+)8.5 (-)0.7 (-)7.5 (-)7.5 (-)234.8

These figures do not distinguish between people in the primary, secondary and tertiary homelessness categories.

In order to focus the analysis on people living in public space, it is necessary to specifically consider the census dwelling category of ‘improvised dwellings, tents and sleepers out’. As noted above, this category does not distinguish between people living in public space and other people in the primary homelessness category such as those living on their own land in sub-standard housing. However, analysis of this dwelling category may provide indications of the numbers of people living in public space, and whether or not there are any trends in this grouping between 1996 and 2001. It is important to recall that this dwelling category is the ‘category where there is greatest risk of undercounting.’629

Table D below shows that the 2001 Census has the number of people categorized into the ‘improvised dwellings, tents and sleepers out’ grouping in the Northern Territory as 2 169 people, compared to 7 033 people in 1996, a drop of 4 864. This reduction is almost equivalent to the ‘decrease’ in the national total of people categorized as homeless across the country in 2001, being 5 404.

628 Ibid 44, 45 and 47: Tables 6.1, 6.4 and 6.7, respectively. 629 Ibid 56. See also David MacKenzie and Chris Chamberlain, 'Counting the Homeless 2001: Northern Territory' (Swinburne University and RMIT University, 2004), 5.

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Table D: Percentage of Total ‘Homeless’ Population for each State and Territory categorized into the Primary Homelessness category630

NSW Vic SA Tas ACT Qld WA NT Number of 2001 26 676 20 305 7 586 2 415 1 229 24 569 11 687 5 423 ‘homeless people’

1996 29 608 17 840 6 837 2 014 1 198 25 252 12 252 9 906 % of total 2001 11 9 12 10 6 16 19 40 homeless categorised in ‘improvised dwellings, tents or sleepers out’ 1996 13 7 11 12 * 19 20 71

Number of 2001 2 934 1 827 910 242 74 3 931 2 221 2151632 people in ‘improvised dwellings, tents or sleepers out’631 1996 3 849 1 249 752 242 * 4 798 2 450 7 033

630 See Chris Chamberlain and David MacKenzie, 'Counting the Homeless 2001' (ABS Catalogue No 2050.0, Australian Bureau of Statistics, 2003), 48: Table 6.9 and Chris Chamberlain, 'Counting the Homeless: Implications for Policy Development 1996' (ABS Catalogue No 2041.0, Australian Bureau of Statistics, 1999), 44, Table 6.3. 631 Note that the 1996 figures are a derivative of a calculation of the percentage rates provided by Chamberlain and MacKenzie in the row above, multiplied by the total estimated homeless population for each state and territory, set out in the first row of this table. The aggregate of the derived number of people in each state and territory categorised in the ‘improvised dwellings, tents and sleepers out’ in 1996 (20 373) does not exactly correspond to the aggregate total estimated number of people in this group for Australia reported by Chamberlain and MacKenzie (20 579). See Chris Chamberlain and David MacKenzie, 'Counting the Homeless 2001' (ABS Catalogue No 2050.0, Australian Bureau of Statistics, 2003), 32. 632 David MacKenzie and Chris Chamberlain, 'Counting the Homeless 2001: Northern Territory' (Swinburne University and RMIT University, 2004), 6

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According to Chamberlain and MacKenzie, this drop in estimation was ‘probably because of the change in the counting rules’633 applicable to remote Indigenous communities, discussed above. Accordingly, the drop in the estimated national number of people who were homeless between 1996 and 2001 is not due to any ‘success’ regarding intervention by government programs as claimed by the Federal Government. Nor does it indicate that there has been any improvement in housing conditions, affordability or availability in Australia over that time. The drop in estimations of homelessness in Australia over that five year period appears to be a direct result of the change in definition regarding who is to be considered ‘homeless’ in remote Indigenous communities. This change in definition could be anticipated to have had the greatest impact in the Northern Territory, with the large populations living in remote Indigenous communities, and the figures set out in Table D above bear this out.

However, despite these difficulties with the ABS Homelessness Enumeration Strategy, the published analyses indicate that, in both 1996 and 2001, the Northern Territory continued to have the highest rate of homelessness in Australia,634 according to the ‘cultural definition’ of homelessness, and the highest percentage of people falling into the primary homelessness category. In the NT, people living in ‘improvised dwellings, tents and sleepers out’ remained the largest group of homeless people, in contrast to any other jurisdiction, representing 40% of the total homeless population. However, it is not possible from the published analysis to gauge whether or not the number — or rate — of people living in ‘improvised dwellings, tents and sleepers out’ had increased, remained static or declined between 1996 and 2001 due to the change in the definition of ‘improvised dwellings’ for remote Indigenous communities for the 2001 Census.

633 Chris Chamberlain and David MacKenzie, 'Counting the Homeless 2001' (ABS Catalogue No 2050.0, Australian Bureau of Statistics, 2003), 47. 634 Ibid 58: ‘The change in the counting rules in remote communities had most effect in the Northern Territory where the number of Indigenous people enumerated in improvised dwellings dropped from 6 000 in 1996 to 1 300 in 2001. The homeless population went from 9,900 in 1996 to 5,400 in 2001, and the rate dropped from 523 per 10,000 to 288. Nevertheless, the rate of homelessness in the Northern Territory remains significantly higher than in other states.’

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(c) Darwin City ABS Statistical Subdivision Within the context of the above research findings, it is, then, possible to interrogate the ABS Census data collected in Darwin to establish the extent to which the data assists in verifying public perceptions about a growing crisis in the number of people living in public space in Darwin as the capital city of the Northern Territory.

In the 2001 Census, the ABS reported a total of 2008 homeless people in Darwin City (312 per 100000),635 with 558 people who recorded living in an ‘improvised home, tent, sleepers out’,636 of which 349 were Indigenous (62%). According to MacKenzie and Chamberlain, ‘[l]ocal service providers were involved in the enumeration of the primary population and they thought that 558 was a realistic figure. There were people sleeping in public places, including local parks, “near the mangrove swamps”, and in disused creek beds. A majority (62 per cent) of those sleeping rough were Indigenous.’637

It is useful to make a comparison between this profile of the homeless population in Darwin City, compared to other Australian capital cities. As Table E below shows, Darwin City has a far higher rate of people in the primary homelessness category (28%) than any other capital city in Australia, with Perth (8%) and then Sydney (6%) the next highest rates, when compared with the total population of each city. Darwin also has a far greater total number of Indigenous people living in improvised dwellings, both as a total number — 349, compared to the next greatest number in Perth (102) and then Sydney (97) — and also as a percentage of the total Indigenous population living in each city — (6%) compared to less than 1% for all other cities around Australia.

635 David MacKenzie and Chris Chamberlain, 'Counting the Homeless 2001: Northern Territory' (Swinburne University and RMIT University, 2004), 8. 636 Ibid 38. 637 Ibid.

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Table E: Comparison of Capital Cities as at the 2001 Census.638

City (a) (b) (c) % of (d) (e) % (f) (g) % in (h) No (i) % of (j) % of Usual Usual Usual Total pf Populatio Improvised of Indigenous Indigenous Reside Reside Resident homele Total n living Dwellings of Indige living in people living in nt nt Populatio ss Reside in the total nous improvised Improvised Popula Indige n who is popula nt Improvis homeless People dwellings of dwellings tion nous Indigeno tion Popula ed population in the total living compared to the Popula us ((b) as tion Dwellings ((e) as a Impro in improvised total Indigenous tion a who (Primary proportion vised dwellings population in the proportio are homeless- of (d)). Dwelli ((g) as a City ((h) as a n of (a)) Homel ness) ngs proportion of proportion of (b)) ess (d)) Darwin 64342 6176 9.60% 2008 3.12 558 27.79% 349 62.54% 5.65% City Perth 133623 20402 1.53% 5637 0.42 476 8.44% 102 21.43% 0.50% 8 Adelaide 107378 11135 1.04% 4755 0.44 217 4.56% 48 22.12% 0.43% 8 Melbour 336716 12427 0.37% 14072 0.42 737 5.24% 35 4.75% 0.28% ne 9 Sydney 396145 40460 1.02% 15456 0.39 929 6.01% 97 10.44% 0.24% 1 Brisban 160911 27763 1.73% 7726 0.48 386 5.00% 57 14.77% 0.20% e 4 Canberr 308887 3647 1.18% 1217 0.39 69 5.67% 5 7.25% 0.14% a Gr 191919 5568 2.90% 1078 0.56 46 4.27% 0 0% 0% Hobart

638 Data in this table has been extracted from the separate state and territory reports published by MacKenzie and Chamberlain in 2004, as follows: Darwin - David MacKenzie and Chris Chamberlain, 'Counting the Homeless 2001: Northern Territory' (Swinburne University and RMIT University, 2004), 57 -8; Perth - David MacKenzie and Chris Chamberlain, 'Counting the Homeless 2001: Western Australia ' (Swinburne University and RMIT University, 2004), 67, 69; Adelaide - David MacKenzie and Chris Chamberlain, 'Counting the Homeless 2001: South Australia' (Swinburne University and RMIT University 2004)67, 69; Melbourne - David MacKenzie and Chris Chamberlain, 'Counting the Homeless 2001: Victoria' (Swinburne University and RMIT University 2004), 71, 73; Sydney - David MacKenzie and Chris Chamberlain, 'Counting the Homeless 2001: New South Wales' (Swinburne University and RMIT University 2004), 75, 78; Brisbane - David MacKenzie and Chris Chamberlain, 'Counting the Homeless 2001: Queensland' (Swinburne University and RMIT University 2004), 75, 78; Canberra - David MacKenzie and Chris Chamberlain, 'Counting the Homeless 2001: Australian Capital Territory' (Swinburne University and RMIT University 2004), 46-7; and David MacKenzie and Chris Chamberlain, 'Counting the Homeless 2001: Tasmania' (Swinburne University and RMIT University 2004), 49-50. However, each of the percentage figures has been calculated by the author based on the published aggregate figures set out in the Table.

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The data for the number of people in Darwin City living in ‘improvised dwellings, tents, sleepers’ out’ on the night of the 1996 Census is not publicly available. However, as discussed in the next section, other researchers have commissioned 1996 Census data from the ABS to determine the number of Indigenous people in the ‘greater Darwin region’ and were provided with the statistic of 50, clearly a significant underestimation, making comparisons between 1996 and 2001 at the Darwin level useless. It does however verify that the improvements of the Homelessness Enumeration Strategy implemented in 2001, arising out the evaluation of the 1996 Census experience have increased the accuracy of the count.

As previously noted, estimations of the number of people in the category of ‘improvised dwellings, tents, sleepers out’ is likely to be the most significantly underestimated of all Census categories of people counted by reference to category of dwelling structure. However, in light of the improvements implemented in 2001, it is also likely that the 2001 Census estimation of 558 people in Darwin City represents an improved conservative estimate from which ongoing trends may be analysed into the future. As will be shown below, the 2001 ABS Census figure of 558 people living in ‘improvised dwellings, tents and sleepers out’ for the Darwin City area is congruent with other local estimations that have been provided by local community agencies and, accordingly, this data indicate that qualitative estimations of the number of people who are living in public space may be unreasonable.

3 Supplementary Research and Secondary Sources In addition to the ABS Census data generated through its Homelessness Enumeration Strategy, there is a limited amount of supplementary and secondary estimations of the number of people living in the long grass in Darwin in the Northern Territory.

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In 2000, the Northern Territory Itinerants Project, subsequently called the Community Harmony Project,639 commissioned a study into the issues facing Indigenous ‘itinerants’ or people living in the long grass, and relevant service providers in the Darwin and Palmerston region. The aims of the study were to ‘(a) collate and analyse documentation and literature on the issue; (b) consult widely with organisations that provide services to Indigenous ‘itinerants’, (c) undertake consultation with affected groups, and (d) consult widely with the “itinerant” population themselves.’640 As a part of the Study, the consultants, Paul Memmott and Shaneen Fantin, attempted to enumerate the number of Indigenous people living in public space in Darwin and Palmerston using ABS statistics. The consultancy took place before the availability of data from the 2001 Census and it confirms the inadequacy of the available data particularly that of the 1996 Census:

[The Project Management Committee] were first advised by the ABS that there may be a limit to the number or type of data ‘cells’ the ABS would release for Collector Districts. If the number of cells requested is greater than the population contained in the cells, then for privacy reasons ABS would not release the data. However upon further inquiry it was learnt that the number of [Indigenous] people recorded in this category for wider Darwin was only in the order of 50, there only being three Collector Districts where there was more than a few such people counted. This is undoubtedly a gross and misleading underestimate of the numbers of Indigenous itinerants in Darwin. This would indicate a methodological deficiency by ABS in being able to locate and count itinerants in a narrow window of time, a problem which is hardly surprising and confronts all service providers trying to locate, monitor and count itinerants (citations omitted).641

639 The Community Harmony Project, formerly called the ‘Itinerants Project’ was established to develop a coordinated response to the diverse needs and concerns of people living in the long grass, and the agency, business and public concerns associated with their behaviour. The Project has now been discontinued, and is to be replaced by the ‘Intervention and Case Management Service’ (‘ICMS’), a range of diverse strategies including: (1) Return to Country service; (2) Intervention and Transport Service; (3) Information and Referral; (4) Coordination and Targeting Committee. The ICMS was to be in place by December 2007. See Letter from Northern Territory Department of Justice to Author, 28 September 2007. 640 Paul Memmott and Shaneen Fantin, '"The Long Grassers": A Strategic Report on Indigenous "Itinerants" in the Darwin and Palmerston Area' (Paul Memmott & Associates, 2001), 4. 641 Ibid 21.

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Memmott and Fantin made their own estimation of Indigenous ‘itinerants’ in the Darwin and Palmerston region as being in the order of 150 – 200, based on a survey they undertook as part of the consultancy.642 However, the consultants noted that their own estimated figure was likely to be less reliable than the estimations provided by local community service providers:

The most reliable estimates of Indigenous itinerant people in Darwin would be those kept by agencies carrying out regular patrols or service provision, who attempt to visit all habitation places used by itinerants and maintain their count on a regular basis over a prolonged period to time (e.g. Darwin City Council Public Patrols or CAAPS [Council for Aboriginal Alcohol Program Services] outreach workers.643

The Council for Aboriginal Alcohol Program Services (CAAPS) reported an estimate of about 1000 Indigenous ‘itinerants’ in Darwin and Palmerston who ‘need assistance’, noting that this figure would include people who regularly slept in the long grass, and those ‘who go into parks and semi-bush areas to drink either for comradeship or because such behaviour is unacceptable in their community flats and houses.’644

The NT Community Harmony Project reported in late 2003 that some 536 clients had participated in its ‘Return to Home’ service between May and December 2003. The Return to Home service paid for a one-way ticket from Darwin to the person’s remote

642 Ibid 74. 643 Ibid 21. 644 Ibid 74: ‘[i]n addition to those who sleep out overnight, there are permanent town residents and their visitors, who go into parks and semi-bush areas to drink either for comradeship or because such behaviour is unacceptable in their community flats and houses.’ In the 2001 Census, a total of only 95 people were counted in the Primary Homelessness Category in Palmerston East Arm area, making a total of 653 for Darwin and Palmerson. See David MacKenzie and Chris Chamberlain, 'Counting the Homeless 2001: Northern Territory' (Swinburne University and RMIT University, 2004), 57. 644 Northern Territory Government, '"Return to Home" success driving strong results in Community Harmony Project' (Press Release, 3 January 2003).

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Indigenous community, with the cost subsequently deducted from the person’s Centrelink benefit.645 According to the NT Minister for Community Development in 2003, only 4 per cent of the people who had participated in the service had subsequently returned to Darwin.646 The Project reported that some 350 people remain living in the long grass in Darwin.647 However, in 2005, Tomlinson reported that, of the people accessing the Return to Home service, about 70% had subsequently returned to Darwin within one year.648 In 2003, the Longgrass Association estimated that about 1000 people were living in the long grass in Darwin.649 This estimate has since been cited in 2006 by Christie and Greatorex, noting that Yolgnu Aboriginal people from northeast Arnhem Land are increasingly making the ‘choice’ to live in the long grass when they come into Darwin.650

645 This program is to be continued under the new ICMS. See Letter from Northern Territory Department of Justice to Author, 28 September 2007. 646 Northern Territory Government, '"Return to Home" success driving strong results in Community Harmony Project' (Press Release, 3 January 2003). 647 AAP, Aboriginal elders to outlaw humbug (2004) News Limited at 15 March 2004. See also Paul Memmott, 'Public Place Dwelling Indigenous People: Alternative Strategies to the Law and Order Approach (Draft of 26 February 2004)' (Aboriginal Environments Research Centre, 2004), 6: ‘After the first visit of the [regional Elders Council named the Mala Elders] to talk to groups of Long Grassers in Darwin, 225 people were repatriated to their families in a period of five months with full cost recover; only 15 had returned as of early December 2003 [sourced from Personal Communication Project Coordinator L. Morris 9/12/03].’ 648 John Tomlinson, 'Homeless and in Darwin - no peace in the long grass' (2005) On Line Opinion at 19 December 2006. 649 Longgrass Association, 'Freedom to Sleep" Longgrass LIVE CD (2003): ‘Longgrass people are mainly Aboriginal family groups living in bush areas throughout the Darwin region. There can be up to 1000 people, including old people, young adults and children camping out on any one night in the Darwin area.’ 650 Michael Christie and John Greatorex, 'Yolgnu Life in the Northern Territory of Australia: The Significance of Community and Social Capital' (Charles Darwin University, 2006), 7.

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These estimations are consistent with the findings of the House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs which reported in 1992 that ‘there were about 500 transients living in the long grass area around Darwin’.651

Memmott and Fantin noted varied opinions about whether the population size of Indigenous ‘itinerants’ increases or decreases during the wet and dry seasons (November to April, and May to October, respectively). Agencies reported different views about the number of people living in public space as the seasons changed. Memmott and Fantin speculated that the variation in views about an increase in population during the wet may be attributable to the source of information from which people derived their perceptions. Agencies such as the police and the sobering up shelter (where police and patrolling officers regularly take people found intoxicated in public places) reported increased numbers of people during the wet. Such agencies respond to people becoming more visible during the wet as people living in the long grass leave the bushes and more hidden locations to seek shelter from the rain in barbeque areas, school yards and other public facilities. The local Indigenous Housing Association (IHA) also noted a sharp increase in applications for housing during the wet season at which time the number of people drops off again. On the other hand, a central town camp reported a marked increase in numbers during the dry season ‘with out-of-town people who come to visit family or for football carnivals. In the wet, they mostly go home.’ 652

As Memmott and Fantin note,

651 House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, 'Mainly urban: Report of the inquiry into the needs of urban dwelling Aboriginal and Torres Strait Islander people' (Australian Government Publishing Service, 1992), 156, cited in W. Bartlett Day, Aboriginal Fringe Dwellers in Darwin, Australia: Cultural Persistence or a Culture of Resistance? (PhD Thesis, Department of Anthropology, University of Western Australia, 2001), 47. 652 Paul Memmott and Shaneen Fantin, '"The Long Grassers": A Strategic Report on Indigenous "Itinerants" in the Darwin and Palmerston Area' (Paul Memmott & Associates, 2001), 75.

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[c]alculating the numbers of itinerants in Darwin and Palmerston is a difficult methodological problem without the availability of a large team of trained observers who could tackle all suburbs at precisely the same time in the early morning. Reports of numbers vary markedly. Obvious reasons for such variability include seasonal fluctuations, nocturnal/diurnal fluctuations, impact of popular sporting events, high mobility between different camping places and a lack of a common definition of who an ‘itinerant’ is.653

4 Summary The available research, both generic and Indigenous-specific, regarding the number of people living in public space in urban centres such as Darwin is limited, due to the difficulties in locating people, and generating accurate estimations. It may be concluded that ‘best guesses’ of the number of people living in public space in Darwin is in the order of 500 to 1000, depending on the time of the year. There is no clear research that supports the proposition that there has been a major increase in this number, over time, such as to describe the situation as at ‘crisis levels.’ However, this notion of a crisis continues to be broadly shared. There is also a widely held view that the number of Indigenous people living in the long grass continues to increase, primarily as a consequence of ‘urban drift’. ‘There are increasing numbers of people moving from communities into urban centres of the Territory.’654 The analysis of the ABS 2006 Census data, due in 2008, may increase the capacity for accurate assessment.

The ABS 2001 Census data, however, confirmed that Darwin had the highest rate of homeless people of any capital city in Australia (3.12%, compared to the next highest rate of 0.48% for Brisbane). It also had the highest percentage in the primary homelessness category (28%, compared to the next highest rate of 8% for Perth). Darwin also had the largest total number of Indigenous people in the primary homelessness (349), compared to Perth (102) and then Sydney (97), as well as the greatest percentage of Indigenous

653 Ibid 6. 654 NT Shelter, 'NT Shelter Report on 2005 Regional Housing Forums' (2005), 4.

186 . people in the overall primary homelessness population (62%), compared to Adelaide (22%) and Perth (21%). Whilst these findings might have been expected, given that Darwin has the highest number and rate of Indigenous people compared to other capital cities, the proportion of the Indigenous population living in ‘improvised dwellings’ or ‘sleeping rough’ (primary homelessness), in relation to the total Indigenous population living in that city was also extraordinarily high. At 5.65%, compared to the next highest, being 0.5% for Perth, and 0.43% for Adelaide, this rate is six times higher than any other capital city in Australia, which all recorded less than 1%.

C Who Are the People Living in the ‘Long Grass’ in Darwin?

Having attempted an estimation of the number of people, including Indigenous people, who live in the long grass in Darwin, this section summarises data generated by the ABS censuses regarding the demographic characteristics of people in the dwelling category of ‘improvised home, tent, sleepers out’. It also summarises empirical research and secondary sources, particularly related to Darwin in the Northern Territory to complement these national findings. Who are the people living in the ‘long grass’?

That’s our home – starlight hotel. Our ancestors had no roof over their heads, and us, we’re getting sick and tired of city council giving us the bill. We’re all human beings. Why can’t you just try and help us instead of locking us up, giving us the bill and busting our grog.655

Tony Hayward-Ryan in 1980, as a representative of the Community Welfare Division of the Northern Territory, prepared a report on Aboriginal Town Camps, calling for the access to and immediate acquisition of sites to accommodate a variety of different Aboriginal groups in different locations. This report recognised the long-term camping

655 Dulcie M, Longgrass Association, 'Freedom to Sleep" Longgrass LIVE CD (2003).

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patterns of many Aboriginal groups, particularly Arnhem Landers, and highlighted the lack of facilities in town camps in the late 1970s.656

People living in the long grass have been described as an ‘homogenous population characterised by laziness, criminal behaviour, alcoholism and the ‘Long Grasser’ lifestyle….’657 Day notes that whilst people camped in the long grass ‘for hidden or illegal drinking sessions or as places to sleep for people threatened by race or vagrancy laws…, [s]ince drinking rights were granted to NT Aboriginal people, drunkenness decriminalised and vagrancy laws abolished, the ‘long grassers’ have moved into the parks, beaches, scrub thickets and neglected buildings around the town. These sites are preferred to the spear grass where breezes are stifled, insects thrive and sometimes lives are lost in grass fires.’658

The term ‘long grasser’ has historically referred to ‘…Aboriginal people inhabiting the grassed areas hugging the Darwin foreshores living a ‘camping’ lifestyle.’659 According to Holmes,

[a]lthough this notion remains popular, the Long Grass now has a broader interpretation. Today, both Aboriginal and non-Aboriginal people describe themselves as Long Grassers, and the Long Grass can be any place where people live or a way of living. As such, people who identify as Long Grassers can include those who camp or live rough in multiple locations. Some will be homeless and suffer from extreme poverty whereas others are not, and have a home to return to.660

656 Paul Memmott and Shaneen Fantin, '"The Long Grassers": A Strategic Report on Indigenous "Itinerants" in the Darwin and Palmerston Area' (Paul Memmott & Associates, 2001), 36. 657 Catherine A Holmes, 'Environmental Health for the Homeless? Creating Supportive Environments for Health and a Better Quality of Life' (2006) 6(2) Environmental Health 42, 46. 658 W. Barlett Day, 'The Freedom to Sleep: A History from the Long Grass in Darwin, Northern Territory' (2006) 19(10) Parity 14. 659 Catherine A Holmes, 'Environmental Health for the Homeless? Creating Supportive Environments for Health and a Better Quality of Life' (2006) 6(2) Environmental Health 42, 44. 660 Ibid 44.

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However, the racial element of the long grass population cannot be ignored.

The so-called “long grass” people, resident along the beaches and on the edges of the town in Darwin are a reminder of Australia’s hidden “black” history. Darwin was settled at a time in Australia’s frontier history when Aboriginal people could not be so readily “dispersed” or “pacified” (that is shot). By the 1970s, at the end of the frontier period, large numbers of displaced Aboriginal people lived in Darwin. This included both Larrakia, the traditional owners of Darwin and surrounds, and Aboriginal people who had been displaced, forcibly and otherwise, from their homelands elsewhere in northern Australia.661

What does the evidence about people living in the ‘long grass’ reveal. What are their ages, race, family groupings, income and other social characteristics? Where do they come from, and why are they in Darwin?

1 Gender The 2001 Census indicated that, nationally, there were more men overall (58%) than women in into the primary homelessness category, similar to the Northern Territory profile of 57% males, and 43% females.662 This gender ratio was similar to 1996, when the Census recorded 58% male, and 42% female.663 At a local level, Memmott and Fantin conducted interviews with 52 people living in the long grass in Darwin and Palmerston, of which 34 were male, being a ratio of about 2:1,664 slightly more than the national

661 Marcia Langton, 'The Long Grass People of Darwin' (1998) 11(4) Parity 24. 662 David MacKenzie and Chris Chamberlain, 'Counting the Homeless 2001: Northern Territory' (Swinburne University and RMIT University, 2004), 7. 663 Chris Chamberlain, 'Counting the Homeless: Implications for Policy Development 1996' (ABS Catalogue No 2041.0, Australian Bureau of Statistics, 1999), 37: ‘There were even numbers of men and women in the age group 15 to 24, but after that the percentage of males gradually increases. The overall pattern is 58 per cent men and 42 percent women.’ 664 Paul Memmott and Shaneen Fantin, '"The Long Grassers": A Strategic Report on Indigenous "Itinerants" in the Darwin and Palmerston Area' (Paul Memmott & Associates, 2001), 62.

189 . profile. Holmes reported that 80% of the 50 users of an outreach service for people living in the long grass were male,665 although the proportion of men in this grouping was likely to be inflated due to the nature of the service being offered.

2 Age The 2001 Census revealed that for the overall ‘homeless population’ in the Northern Territory, 57% of people were aged 25 years or older, with 25% being 45 years or more. Another 35% were aged 12-24 years, with 8% being children under the age of 12. These percentages were similar to the national picture. 666 The 1996 Census revealed that there was a total of 6000 children living with their parents in an improvised dwelling.667 In 2001, this figure fell dramatically to 2900, again as a likely consequence of the change in counting rules for remote Indigenous communities.668 In the context of these national findings, Memmott & Fantin reported that of the 52 people interviewed in their study, most people were in their 30s and 40s (69%) with seven in their 50s and only one person 60 years or over. Only 3 were in their 20s.669 They also noted that during their interviews with people in the long grass, children were not visible. CAAPS had estimated that about 25% of people living in the long grass were children but Memmott and Fantin suggest that ‘if itinerants have children they are either left with relatives in rental housing in Darwin or with relatives in home communities.’670 They speculate that the CAAPS perception of the presence of children takes into account families who are in fact

665 Catherine A Holmes, 'Environmental Health for the Homeless? Creating Supportive Environments for Health and a Better Quality of Life' (2006) 6(2) Environmental Health 42, 45 666David MacKenzie and Chris Chamberlain, 'Counting the Homeless 2001: Northern Territory' (Swinburne University and RMIT University, 2004), 7. 667 Chris Chamberlain, 'Counting the Homeless: Implications for Policy Development 1996' (ABS Catalogue No 2041.0, Australian Bureau of Statistics, 1999), 32. 668 Chris Chamberlain and David MacKenzie, 'Counting the Homeless 2001' (ABS Catalogue No 2050.0, Australian Bureau of Statistics, 2003), 36. 669 Paul Memmott and Shaneen Fantin, '"The Long Grassers": A Strategic Report on Indigenous "Itinerants" in the Darwin and Palmerston Area' (Paul Memmott & Associates, 2001), 62. 670 Ibid 62.

190 . accommodated in public housing or hostels or town camps but who spend time in the long grass with others.

3 Indigenous Profile In the section above, it was concluded that the 2001 Census confirmed that 62% of the people in the Primary Homelessness category in Darwin City were Indigenous, being a total of 349. The capital city data is not available from published secondary sources arising out of the 1996 ABS Census. However, both the 1996 and 2001 Census confirmed that, nationally, ‘Indigenous people [are] over-represented in all sections of the homeless population …’ where data is available,671 being 9% of the overall ‘homeless’ population (compared to 2% of the general population).672 The rate of over- representation is greatest in the Primary Homelessness category. In 1996, almost 50 percent of the 19 580 people in Australia who were categorized as living in ‘improvised dwellings, tents and sleeping out’ on 6 August 1996 were Indigenous (9 751).673 In 2001, this percentage fell to 19% (2 681 people out of a total of 11 477). Accordingly, between 1996 and 2001, the number of Indigenous people nationally in the Primary Homelessness category fell from 9 751 to 2 681, down 7 070. By contrast, between 1996 and 2001, the number of non-Indigenous people in this category rose by some 1 649.674 As previously noted, the drop in the number of Indigenous people in this category is largely attributable to the change in the definition of ‘improvised dwelling’ on remote Indigenous communities.

In 1996, the percentage of people in the Primary Homelessness category who were Indigenous was by far the highest in the Northern Territory, at 89% and, then 54% for

671 Chris Chamberlain, 'Counting the Homeless: Implications for Policy Development 1996' (ABS Catalogue No 2041.0, Australian Bureau of Statistics, 1999), 39. 672 Ibid 39. 673 Chris Chamberlain, 'Counting the Homeless: Implications for Policy Development 1996' (ABS Catalogue No 2041.0, Australian Bureau of Statistics, 1999), 22. 674 Chris Chamberlain and David MacKenzie, 'Counting the Homeless 2001' (ABS Catalogue No 2050.0, Australian Bureau of Statistics, 2003), 22.

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Western Australia, with the lowest rate in Victoria.675 In 2001, 62% of people in the Primary Homelessness Category were Indigenous in the Northern Territory, with an overall Indigenous population of 29%.676 In Darwin, the figures are particularly concerning with almost 6% of the Indigenous population living in improvised dwellings, compared to less than 1% in other capital cities. Statistics provided by the DCC showed that about 70% of the people fined for contravening DCC By-law 103 were Indigenous.677 These statistics are consistent with the ABS findings from 2001.

Clearly, the available data indicates that Indigenous people make up a disproportionately high proportion of the number of people living in ‘improvised homes, tents, sleepers out’ in Darwin City, compared to their overall proportion of the population, the proportion on a national scale, and in comparison to any other capital city in Australia.

4 Family Groupings Nationally, in 1996 there were proportionately more family groups living in improvised dwellings than in other categories of the ‘homeless’ population, with 31% being families with children, 32% as couples, and 37% as singles.678 In the 2001 Census report, this particular breakdown was not provided. However, Chamberlain & MackKenzie reported that 67% of all families with children who were living in improvised dwellings were couples, with the balance of 33% being single parents. Memmott and Fantin found in their study that, of the 52 people interviewed, 13 were members of a large mixed gender

675 Chris Chamberlain, 'Counting the Homeless: Implications for Policy Development 1996' (ABS Catalogue No 2041.0, Australian Bureau of Statistics, 1999), 22. 676 David MacKenzie and Chris Chamberlain, 'Counting the Homeless 2001: Northern Territory' (Swinburne University and RMIT University, 2004), 8. 677 Between 1 February 2001 and 31 January 2002, 92 people had been issued with an infringement notice, with 29 being withdrawn and no-one had been jailed. Of the 92 people issued infringement notices between 1 February 2001 and 31 January 2002, about 70% of the people were Indigenous. See Letter from Darwin City Council to Human Rights and Equal Opportunity Commission, 18 April 2002. See also Chapter Five. 678 Chris Chamberlain, 'Counting the Homeless: Implications for Policy Development 1996' (ABS Catalogue No 2041.0, Australian Bureau of Statistics, 1999), 37.

192 . group of adults, with 3 belonging to a group of male only medium sized groups of up to six persons. Eight others belonged to either a couple or a couple with one or two other adults. The balance was at least with one other person, with only 4 people living on their own.679 This data also shows that the majority of people who are in the primary homeless category living in the long grass in Darwin are not isolated but live in extended groups of other adults.

5 Income Sources Chamberlain & Mackenzie relied on income data to conclude that ‘[m]any people living in improvised dwellings are poor.’680 Fifty eight percent of households nationally who were living in improvised dwellings in 1996 did not have at least one person within their family grouping who was in paid work681 In 2001, 66% of ‘households’ did not have any person in paid work.682 Neither report provides a breakdown of alternative sources of income, such as whether persons were in receipt of a Centrelink benefit. Holmes observes that people in the primary homelessness category in Darwin experience ‘economic disadvantage. They were rarely engaged in employment, with several having no source of income at all.’683

679 Paul Memmott and Shaneen Fantin, '"The Long Grassers": A Strategic Report on Indigenous "Itinerants" in the Darwin and Palmerston Area' (Paul Memmott & Associates, 2001), 64. 680 Chris Chamberlain and David MacKenzie, 'Counting the Homeless 2001' (ABS Catalogue No 2050.0, Australian Bureau of Statistics, 2003), 41. 681 Chris Chamberlain, 'Counting the Homeless: Implications for Policy Development 1996' (ABS Catalogue No 2041.0, Australian Bureau of Statistics, 1999), 38. 682 Chris Chamberlain and David MacKenzie, 'Counting the Homeless 2001' (ABS Catalogue No 2050.0, Australian Bureau of Statistics, 2003), 41. 683 Catherine A Holmes, 'Environmental Health for the Homeless? Creating Supportive Environments for Health and a Better Quality of Life' (2006) 6(2) Environmental Health 42, 45.

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6 Length of Time Living in the Long Grass The 1996 Census demonstrated that, for the majority of people nationally, homelessness was not a short-term condition, with over 70% of people having been without secure accommodation for six months or more.684 The statistics demonstrated that people who were living in improvised dwellings and other public space options had been doing so for an extended period of time.

‘[T]hree-quarters of the people living in improvised dwellings were in the same dwelling one year before the census. People who ‘sleep rough’ often move around, and some families with higher incomes can probably exit from the population. But, overall, this is a low turnover group.685

Some families with higher incomes may exit from the homeless population after a short period, but overall this is a low turnover group.’686

In 2001, it was estimated that between 60-70% of people living in either improvised dwellings, boarding houses or SAAP services had been ‘homeless’ for six months or more.687 The Memmott & Fantin interviews with 52 people in 2001 revealed that ‘26 of the interviewees had been leading their itinerant lifestyle in Darwin for five years or less, whilst 22 had been leading it for from 5 to +20 years…This indicate[d] that chronic itinerancy/homelessness is a reality and a norm. For many it has become a lifetime lifestyle.’688 Similarly, Christie & Greatorex note that ‘some Yolgnu long grassers stay

684 Chris Chamberlain, 'Counting the Homeless: Implications for Policy Development 1996' (ABS Catalogue No 2041.0, Australian Bureau of Statistics, 1999), 3. 685 Ibid 38. 686 Chris Chamberlain and David MacKenzie, 'Counting the Homeless 2001' (ABS Catalogue No 2050.0, Australian Bureau of Statistics, 2003), 41. 687 Ibid 8. Unlike the 1996 Census analysis, Chamberlain and MacKenzie did not analyse how many people had been in the same living conditions for more than one year. 688 Paul Memmott and Shaneen Fantin, '"The Long Grassers": A Strategic Report on Indigenous "Itinerants" in the Darwin and Palmerston Area' (Paul Memmott & Associates, 2001), 60.

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[in Darwin] for many months…’689 Earlier reports proposed that Indigenous people living in the long grass in Darwin could be categorised as either ‘permanents’, ‘transients’ or ‘homeless drifters’.690 Langton also asserts that the long grass population includes a permanent Aboriginal constituency.

While the greater majority of the indigenous population in Darwin live in circumstances comparable with their non-indigenous neighbours, there is a proportion who are permanently resident in the long grass and in the beach camps in Darwin. They have, somewhat mistakenly, come to be regarded as ‘homeless’.691

The available data therefore indicates that a sizeable proportion — up to three quarters — of people living in public space are likely to have been living in this manner for extended periods of time, and in some cases, on a permanent basis, rather than this being a temporary, crisis-driven, way of living.

7 Origins The ABS 1996 and 2001 Census analyses by Chamberlain & Mackenzie do not provide data on where people were born, or from where they came prior to living in their ‘improvised dwellings.’ However, Memmott & Fantin established that, of the 52 people they interviewed in 2001, 8 people came from interstate, 4 came from the Darwin area, with the vast majority (77%) coming from other communities around the Northern

689 Michael Christie and John Greatorex, 'Yolngu Life in the Northern Territory of Australia: The Significance of Community and Social Capital' (Charles Darwin University, 2006), 7. 690 House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs, 'Mainly urban: Report of the inquiry into the needs of urban dwelling Aboriginal and Torres Strait Islander people' (Australian Government Publishing Service, 1992), cited in W. Bartlett Day, Aboriginal Fringe Dwellers in Darwin, Australia: Cultural Persistence or a Culture of Resistance? (PhD Thesis, Department of Anthropology, University of Western Australia, 2001), 49. 691 Marcia Langton, 'The Long Grass People of Darwin' (1998) 11(4) Parity 24.

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Territory.692 Tomlinson notes that ‘[m]ost homeless people sleeping out in the greater Darwin region are Aboriginal people from settlements in Arnhemland and other Top End communities.’693 Day provides significant detail about the historical tradition of residency in Darwin by non-Larrakia Indigenous people from a large number of language groups.694 Langton notes that, by the 1970s, there was a large number of both Larrakia, traditional owner, and other Indigenous people living in the long grass in Darwin, having been displaced from homelands ‘elsewhere in northern Australia.’695 Cummings reported that that Indigenous itinerants or long grassers fall into two categories:

(1) Those who have come to town to have a good time socializing and drinking and who are prepared to do this in ‘long grass style’ (camping out); but whom intend to eventually return home.

(2) Those who live a permanent long-grass lifestyle; have cut off their ties with home communities long ago, and who accept that their lifestyle will remain consistent.696

Accordingly, it would seem that the majority of people living in the long grass are ‘Territorians’ in the sense that they are not from interstate or overseas, and are constituents of the Northern Territory Government. Their place of origin is however often from outside of Darwin, and coupled with the data from the previous section, the picture emerges of the ‘long grass’ population consisting predominantly of Indigenous people who have come to Darwin from other communities within the Northern Territory,

692 Paul Memmott and Shaneen Fantin, '"The Long Grassers": A Strategic Report on Indigenous "Itinerants" in the Darwin and Palmerston Area' (Paul Memmott & Associates, 2001), 61. 693 John Tomlinson, 'Homeless and in Darwin - no peace in the long grass' (2005) On Line Opinion at 19 December 2006. 694 W. Bartlett Day, Aboriginal Fringe Dwellers in Darwin, Australia: Cultural Persistence or a Culture of Resistance? (PhD Thesis, Department of Anthropology, University of Western Australia, 2001), 44-63. 695 Marcia Langton, 'The Long Grass People of Darwin' (1998) 11(4) Parity 24. 696 Paul Memmott and Shaneen Fantin, '"The Long Grassers": A Strategic Report on Indigenous "Itinerants" in the Darwin and Palmerston Area' (Paul Memmott & Associates, 2001), 38.

196 . but who are not ‘just visiting’ in the sense that they have been living in Darwin for an extended period of time.

8 Reasons for being in Darwin Indigenous people from other parts of the Northern Territory and beyond have been coming to Darwin for many years, ‘probably since soon after its establishment’697 and their reasons for coming to Darwin appear to be as diverse as is likely for non-Indigenous residents. Tomlinson recalls that ‘[s]ince at least the 1900s, Aboriginal people have come to visit relatives who are receiving medical treatment, or are incarcerated.’698 Christie & Greatorex refer to the Yolgnu Darwin residents originally from Northeast Arnhem Land who still make up a major part of the overall population living in the long grass:

Yolngu used to travel to Darwin in the old days, a few by boat and others walking along the coast. Interactions were common with other non-Yolngu Aboriginal Groups. Yolngu acknowledged and built economic, marriage and totemic connections with the local Larrakia landowners, and others in surrounding areas. Larrakia places names have been taken into Yolngu naming systems.699

In addition to the need to visit relatives receiving medical treatment in Darwin, some people were initially brought to Darwin as prisoners, and decided not to return to their original communities upon release. 700 Others ‘came to visit family or relatives.’701

697 Michael Christie and John Greatorex, 'Yolngu Life in the Northern Territory of Australia: The Significance of Community and Social Capital' (Charles Darwin University, 2006), 6. 698 John Tomlinson, 'Homeless and in Darwin - no peace in the long grass' (2005) On Line Opinion at 19 December 2006. 699 Michael Christie and John Greatorex, 'Yolngu Life in the Northern Territory of Australia: The Significance of Community and Social Capital' (Charles Darwin University, 2006), 7. 700 John Tomlinson, 'Homeless and in Darwin - no peace in the long grass' (2005) On Line Opinion at 19 December 2006. 701 Paul Memmott and Shaneen Fantin, '"The Long Grassers": A Strategic Report on Indigenous "Itinerants" in the Darwin and Palmerston Area' (Paul Memmott & Associates, 2001), 83.

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‘Some are attracted to the bright lights. Others sought employment or education. Some – who came from Arnhem Land or other Aboriginal reserves – came to gain access to alcohol, to avoid overcrowded housing, or to escape disputes.’702 ‘Other reasons … were for holiday, … laid off from pastoral work during wet, simply to look at Darwin and for a change,’703 as well as for ‘socialising and drinking.’704

Maypilarna et al found that ‘[t]e main reason for coming to Darwin was fear – fear of violence, including suicide, mental illness, aggressive behaviour and galka (sorcery).’705

Other reasons why people chose to leave large settlements in East Arnhem Land to live in Darwin are grief at the loss of a relative, or seeing their elders being treated disrespectfully. They leave to escape disputes and conflict in the community. People also leave because they feel alienated by those in power, and cannot get jobs or access to other resources such as housing. Some leave because they do not want to live in large settlements, and some live on outstations in the dry, but return to Darwin for the wet season.706

Some of the social research indicates that a majority of people are in Darwin because they have got ‘stuck’ and cannot get back to their communities, as a result of lack of funds, and also changes to airline and bus policies, which no longer give people an automatic right to travel the next day, if the person misses their flight or bus. ‘Now airlines and bus services, preoccupied with “efficiency” or “profit maximisation”, demand they purchase new tickets, which many cannot afford.’707 There appears to be some differing evidence

702 John Tomlinson, 'Homeless and in Darwin - no peace in the long grass' (2005) On Line Opinion at 19 December 2006. 703 Paul Memmott and Shaneen Fantin, '"The Long Grassers": A Strategic Report on Indigenous "Itinerants" in the Darwin and Palmerston Area' (Paul Memmott & Associates, 2001), 83. 704 Ibid 38. 705 Maypilarna et al, 'Yolngu Longgrassers on Larrakia Land' (Charles Darwin University, 2004), 3. 706 Ibid 4. 707 John Tomlinson, 'Homeless and in Darwin - no peace in the long grass' (2005) On Line Opinion at 19 December 2006.

198 . about the extent to which people living in the long grass, if given a genuine choice, would prefer to return to their home communities. Maypilarna et al found that ‘[m]ost [Yolgnu] people … wanted to go home and live on their country but there were many difficulties which prevented them doing so, and had usually triggered their leaving in the first place.708 Memmott and Fantin found that a majority of interviewees wanted to stay in Darwin.709 Their reasons varied, with three people saying there were too many problems at home, three remaining to care for sick relatives, with others naming the lack of alcohol on home communities as the reason for not wishing to return. One person wanted to remain in Darwin because their mother was buried there. They found that only five people reported that their reason for staying in Darwin was due to lack of funds to get home.710 Under a Northern Territory Government program, ‘Return to Home’ Service, which enabled people to borrow the money for a one way airfare, some 70% of people using this service return to Darwin within the year, indicating that whilst people wish to have the ability to return to their places of origin, this is not necessarily on a permanent basis.711

9 Summary The available evidence about people living in the ‘long grass’ in Darwin, Northern Territory, may be summarised as indicating the following: • Between half to two thirds are male; • The majority of people are likely to be in their 30s and 40s; • At least two thirds of people are Indigenous; • A majority of people live in family groupings, rather than living in isolation; • Most people have no paid work;

708 Maypilarna et al, 'Yolngu Longgrassers on Larrakia Land' (Charles Darwin University, 2004), 3. 709 Paul Memmott and Shaneen Fantin, '"The Long Grassers": A Strategic Report on Indigenous "Itinerants" in the Darwin and Palmerston Area' (Paul Memmott & Associates, 2001), 83. 710 Ibid. 711 John Tomlinson, 'Homeless and in Darwin - no peace in the long grass' (2005) On Line Opinion at 19 December 2006.

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• Up to three quarters have lived in the ‘long grass’ for extended periods of time, up to months and years, and sometimes on a permanent basis; • More than two thirds of people are from other communities in the Northern Territory; and • People have a wide range of reasons for moving to live in Darwin, with the evidence mixed as to whether people would choose to return to their communities of origin if that choice was genuinely available.

D Why do People live in the Long Grass when they are living in Darwin?

Many people say they enjoy the freedom of living in the long grass.712

In this section, we review some of the reasons why people might be living in public space in Darwin, rather than in other forms of accommodation. This becomes a crucial field of inquiry for the purposes of determining whether the criminalisation and forced eviction of people living in public space may violate international human rights standards, explored in detail in Chapters Six and Seven. In public advocacy documents, it is often stated that ‘homelessness’ is — in and of itself — a human rights violation. This is not, in fact, an accurate analysis of the international human rights standards and jurisprudence. As will be seen in subsequent chapters, the matter requires investigation into why people are living where they do, and in particular, the role of the state in leading to this personal circumstance.

The analysis of why people live in the long grass in Darwin, as presented here, draws primarily on the social research reports by Memmott and Fantin (2001)713 and

712 Maypilarna et al, 'Yolngu Longgrassers on Larrakia Land' (Charles Darwin University, 2004), 4. 713 Paul Memmott and Shaneen Fantin, '"The Long Grassers": A Strategic Report on Indigenous "Itinerants" in the Darwin and Palmerston Area' (Paul Memmott & Associates, 2001).

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Maypilarna et al (2004)714 and the anthropology PhD thesis of Day (2001).715 The former are based on interviews with people living in the long grass, whilst the latter onDay’s first hand experiences of living with people in the long grass in the 1970s and late 1990s. The analysis is also complemented by a number of social policy reports that look more generally at the causes of Indigenous homelessness.

These sources reveal a range of reasons for people living a long grass lifestyle in Darwin. These include: a lack of supply of low cost ‘social housing’ generally: the impacts of racial discrimination in accessing accommodation options; and the unsuitability of social housing stock design in light of the cultural imperatives of this population. Further, the lifestyles of people living in the long grass means that most people live in circumstances of extreme poverty (and sometimes with histories of trauma, alcohol and drug abuse and mental health concerns) which make living in the long grass the most viable lifestyle in light of the other low cost accommodation options available.

1 Insufficient supply of affordable housing as a barrier to housing for people living in the long grass

(a) A National Housing Crisis Housing demand in Australia continues to grow.716 Subsequently, local public policy debates have a strong focus on the general decline in ‘affordable housing’717 and a

714 Maypilarna et al, 'Yolngu Longgrassers on Larrakia Land' (Charles Darwin University, 2004). 715 W. Bartlett Day, Aboriginal Fringe Dwellers in Darwin, Australia: Cultural Persistence or a Culture of Resistance? (PhD Thesis, Department of Anthropology, University of Western Australia, 2001). 716 Australian Institute of Health and Welfare, 'Australia's Welfare 2003' (AIHW, 2003), 159. 717 ‘Affordable housing’ has been defined as ‘accommodation that is appropriate for low-income households in terms of size, standards, and access to services and facilities.’ See SGS Economics & Planning, 'Levers to Promote Affordable Housing in the Northern Territory ' (2007), 4. See also Judith Yates, Maryann Wulff and Margaret Reynolds, 'Changes in the supply of and need for low rent dwellings in the private rental market' (Australian Housing and Urban Research Institute, 2004), i: ‘The period from

201 . growing ‘housing crisis’718. Nationally, ‘housing affordability problems have intensified significantly over the past 15 years and…housing for low-income households, in particular, is failing to meet the rising demand.’719 As noted in Chapter Three, the Special Rapporteur on Adequate Housing, Miloon Kothari, also identified a ‘hidden housing crisis’ in Australia, in both his Preliminary Observations,720 and Final Report721 arising out of his Mission to Australia in 2006. As at 2003, projections were that between 2002 and 2011, an additional 1,149,000 dwellings would be required to meet the housing needs of the Australian population.722 According to the Australian Institute of Health and Welfare’s, Australia’s Welfare 2003,

1996 to 2001 contained significant changes, both temporary and structural, in the housing market. The number of households continued to outpace population growth: inflation and interest rates were low, and, overall, household incomes improved. These trends contributed to a housing boom that began in the late 1990s (Productivity Commission 2003) and, with it, a worsening of housing affordability for many households (ABS. 2002). See also ABC News, Housing Affordability: BBQ stopper and election issue (2007) Australian Broadcasting Commission

at 3 September 2007. 718 ABC News, Census proves housing crisis dire: ALP (2007) Australian Broadcasting Commission at 3 September 2007; ABC News, Ministers urge action on 'housing crisis' (2007) Australian Bureau of Statistics at 3 September 2007; ABC News, HIA predicts housing crisis to last years (2007) at 19 July 2007; The Age, Australian dream fades as cost sends some to ghetto (2007) at 3 September 2007. 719 Australian Institute of Health and Welfare, 'Australia's Welfare 2003' (AIHW, 2003), 159. 720 Miloon Kothari UN Special Rapporteur on Adequate Housing, Mission to Australia, 31 July – 15 August 2006: Preliminary Observations (2006) at 28 September 2006. 721 Miloon Kothari, Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Miloon Kothari, Addendum, Mission to Australia (31 July to 15 August 2006, UN Doc A/HRC/4/18/Add.2, (2007). 722 Australian Institute of Health and Welfare, 'Australia's Welfare 2003' (AIHW, 2003), 159.

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Australian housing markets have been characterised over the last 40 years by a growing shortage in low cost housing for low income earners, particularly in the rental sectors. The current chronic shortage of low cost private and public rental housing in many housing markets is a key factor in contemporary homelessness.723

Since these 2003 findings, ‘there has been an increased focus by governments and communities on the level or and trends in housing affordability’,724 acknowledging that ‘[i]mprovements to the supply of low-rent housing to meet housing needs will remain a major challenge to governments.’725 Significantly, following the 2007 Federal election, the Rudd Labor Government has identified housing and homelessness as national priorities, commissioning a White Paper to set out a 10 year strategy for reducing homelessness, particularly for people living in public spaces, as well as re-establishing a Federal Minister for Housing and a National Affordable Housing Strategy.726

(b) Lack of Affordable Housing Options in Darwin Within this national context of a housing crisis, there is general agreement amongst government representatives and other service providers in the Northern Territory that there is a lack of sufficient affordable housing to meet the needs of the population in Darwin. According to the Chief Minister in May 2003, ‘if people are going to come to town, they need to be able to access appropriate accommodation. You would have to agree that, in somewhere like Darwin and Palmerston, that is simply not available right now.’727 The need to expand the supply of affordable housing in the Northern Territory

723 Australian Federation of Homelessness Organisations, 'Submission to the Productivity Commission First Home Ownership Inquiry' (2003), 3. 724 Australian Institute for Health and Welfare, 'Australia's Welfare 2005' (AIHW, 2005), 270. 725 Ibid 313. 726 Federal Minister for Housing, Tanya Pilbersek, 'Minister announces homelessness white paper steering group members' (Press Release, 13 February 2008). 727Northern Territory, Parliamentary Debates, Legislative Assembly, 27 May 2003 (Ms Martin, Chief Minister).

203 . has been highlighted by NT Shelter728 as its highest priority in its 2007/8 NT Budget Submission.729 The lack of affordable housing has been impacted by lack of supply and affordability in public housing and the private rental market.

In terms of public housing, NT Shelter has reported that, with ‘increasing numbers of people moving from [remote] communities into urban centres of the Territory [including Darwin]…no extra housing had been built for 10 years….’730 NT Shelter has since amended this, stating that no new public housing has been constructed in Darwin for 20 years,731 and that between 2003 and 2004 the number of stock reduced by 8%.732 Most recently, in the twelve month period between 2005/6 and 2006/7, the number of available stock has again reduced, this time from 5398 to 5361.733 Overall, since 2001/2, the number of public housing stock has decreased markedly. NT Shelter has consistently called for a moratorium on the further loss of stock.734 NT Shelter documents the findings of broad-based consultations across the Northern Territory regarding key issues associated with the provision of housing. It is significant to note that:

Overwhelmingly, (97%) consultation participants identified their perception of dwindling public housing stock as the priority issue for discussion. All participants identifying this issue of concern also noted the link between lack of public housing stock and wait times as of primary concern.735

728 NT Shelter is part of a national network of community managed organisations established to, inter alia, advocate for access to housing, particularly for people from disadvantaged groups. 729 NT Shelter, 'NT Government 2007/08 Budget Submission: Housing for the Territory' (2006), 3. 730 NT Shelter, 'NT Shelter Report on 2005 Regional Housing Forums' (2005). 731 Email from Toni Vine Bromley, Executive Officer, NT Shelter to Author, 20 December 2006. 732 NT Shelter, 'NT Shelter Housing Fact Sheet 1 of 2' (Updated). 733 Territory Housing, 'Territory Housing Annual Report 2006/7' (Northern Territory Government, 2007), 41. 734 NT Shelter, 'Appropriate and Affordable Housing for ALL Territorians: NT Shelter 2007/8 Policy Platform' (2007), 8. 735 Shelter NT, 'Home Territory - The Community View' (Shelter NT, 2003).

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Some of the statements made by participants during the consultations included:

‘Them mob selling houses and not making new ones. Means my family waiting long time for house, waiting in the long grass.’ Public Housing Tenant – Darwin

‘We’re seeing the impact of the stock sell off now. The reduction in housing stock is impacting on those most in need of housing.’ Service Provider – Darwin

‘Territory Housing also needs to reduce the number of houses they are selling to the private sector, then individuals who are in need of emergency/priority housing will have houses available to them to use or will alternatively not have to wait for months to be housed, thus being forced onto the private rental market where rents are too costly for those on ‘pensions or benefits’ or where private landlords will not rent to you as you have kids or other issues.’ Home Territory Survey Respondent.736

The Report also calls for a moratorium on selling public housing stock, pending, inter alia, ‘an independent review of current policy, particularly community consultation and transparency of asset sales and management.’737

Private rental supply and affordability has also been a major problem. An analysis of the availability of affordable housing stock by State and Territory, ‘metropolitan’ and ‘non- metropolitan’ and by reference to Local Government Areas confirms that the greatest shortages of low-cost private rentals are concentrated in metropolitan areas. ‘Approximately two thirds of private rental households are located in metropolitan regions and the remaining one-third in non-metropolitan areas. The incidence of low rent

736 Ibid 22. 737 Ibid 11.

205 . stock is far greater in non-metropolitan Australia than the capital cities.’738 As at the 2001 Census, Darwin had a shortage of 300 private rental properties in the low-income range. Palmerston had a shortage of 100 low-cost private rental properties.739 Whilst the housing stock in the Northern Territory includes a higher number of flats, units and apartments compared to other states and territories, according to the Northern Territory Council of Social Services, the Northern Territory has ‘some of the highest housing costs in Australia i.e. housing costs that are similar to Sydney.’740 In 2001, the Northern Territory Government acknowledged that private rent levels in the Northern Territory were ‘high in comparison with other jurisdictions, although rent levels have been slowly reducing in ‘real’ terms over the last few years.’741 Combined with high costs to purchase a home, and a high cost of living generally, the lack of affordable private rental properties means that public housing remains ‘a very important avenue to affordable housing.’742 Five years later, in December 2006, the Real Estate Institute of Australia warned that vacancy rates in private rental properties across Australia are at an all time low, and the situation is anticipated to worsen in the future. According to the REIA President, ‘prospective tenants are going to find it very difficult to find accommodation or, certainly, affordable accommodation.’743 Private rental properties as a source of housing is simply too expensive for people living in the long grass, even though, as social security beneficiaries, they would be entitled to commonwealth rental assistance, including bond assistance.

738 Judith Yates, Maryann Wulff and Margaret Reynolds, 'Changes in the supply of and need for low rent dwellings in the private rental market' (Australian Housing and Urban Research Institute, 2004), ii. 739 Ibid 52 and Table B.13: Shortage of Affordable Rental Housing in Tasmania and Territory LGA’s, 2001. 740 Submission to the Senate Community Affairs Reference Committee's Inquiry into Poverty in Australia, Parliament of Australia, Canberra, July 2003 (Northern Territory Council of Social Services), 7. 741 Territory Housing, 'Territory Housing Annual Report 2000 - 2001' (Northern Territory Government, 2001), 10. 742 Ibid 10. 743 ABC Online, Rental shortage 'to worsen' (2006) at 27 December 2006.

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Memmott and Fantin report that, when people living in the ‘long grass’ were asked “What are the main problems you have living in Darwin?”, ‘the largest category of responses (15) dealt with housing and accommodation concerns.’744

‘…many respondents were sceptical about getting formal accommodation. The most common reasons were excessively high rents and excessively long waiting times.745

Whilst there is no accurate statistical assessment available regarding the gap between the housing available, and the unmet need,746 it is clear that there is simply not enough accommodation in Darwin..

2 Discrimination as a Barrier to Access to Housing In addition to supply and affordability of low-cost housing options in both the public and private rental markets, discrimination against Indigenous people has been identified as a significant barrier to housing for people living in the long grass. A major report into Indigenous homelessness in 1998 highlighted affordability and discrimination as two of the major barriers to the ability of Indigenous people to access private rental properties on an equal footing with non-Indigenous families, as well as the overall lack of supply of low-cost private rental properties.

They face considerable difficulty in being able to access housing in the private rental market due to poverty and high levels of unemployment, discrimination and in some areas, a lack of private rental housing stock (citations omitted).

The 1999 Commonwealth-State Housing Agreement also acknowledged that Indigenous people are also more likely to have difficulty accessing the private rental market due, in

744 Paul Memmott and Shaneen Fantin, '"The Long Grassers": A Strategic Report on Indigenous "Itinerants" in the Darwin and Palmerston Area' (Paul Memmott & Associates, 2001), 64. 745 Ibid 67. 746 James Dawson, 'A Hidden National Crisis: Indigenous Housing in Australia's Top End' (2006) Indigenous Law Bulletin 45

207 . part, to racial discrimination.747 A number of Australian shadow reports to international human rights treaty bodies raise concern about the discrimination faced by Indigenous people in accessing mainstream and public housing options.748

3 Cultural Imperatives In addition to experiencing discrimination in attempts to access low cost housing options in Darwin, it is also clear that the cultural imperatives of Indigenous populations living in the long grass impact on their ability to be housed, given currently available accommodation options.

Well, for a start, they really need to look very closely at human rights issues. The right for our people to move about the country. At the moment, they’re treating people like cattle, dumb animals that are just wandering around aimlessly and don’t know what they’re doing. And they’re moving them on. We must, as a national voice, take up the initial thing, which is, as Indigenous people to this country, we have a right to live in the way we want to live. And if we choose not to live in a box. Well, then, that’s our choice.749

747 See, eg, the Commonwealth State Housing Agreement Bilateral Agreement between The Commonwealth of Australia and The Northern Territory 1999 - 2003, operative from 1 July 1999, 6, referring to the additional barriers, due to discrimination, faced by Indigenous people attempting to access the private rental market in urban areas. 748 Redfern Legal Centre and Rentwatchers, 'The Human Right to Adequate Housing in Australia: A Report to the United Nations Committee on International Covenant on Economic, Social and Cultural Rights, April 1999' (1999), 9; Australian Social and Economic Rights Project, 'Australia's Compliance with the UN Covenant on Economic, Social and Cultural Rights: Community Perspectives' (2000), 41. 749 June Mills, President of the Longgrass Association in Message Stick ABC Television, The Longgrasses (2005) at 26 December 2006 and quoted in W. Barlett Day, 'The Freedom to Sleep: A History from the Long Grass in Darwin, Northern Territory' (2006) 19(10) Parity 14, 15.

208 .

The Territory Housing Commission has, since the 1950s, consistently failed to provide Indigenous Territorians living in major towns, with culturally appropriate shelter.750

It is well-established that Indigenous communities have particular needs in relation to the provision of accommodation and housing that are directly related to Indigenous cultural practices. Various sources refer to the specific cultural obligations of Indigenous people in relation to welcoming extended family, the practice of sitting, cooking and conducting activities outside, including sleeping, as well as a predisposition for moving from place to place, and that European style accommodation does not accommodate an Indigenous lifestyle. For example, in 2002, the Commonwealth Department of Family and Community Services reported that

there are fundamental problems with the way houses for indigenous people are designed and built, especially in the rural and remote regions of Australia. For example, houses are often designed in ways that do not meet indigenous people’s cultural needs…751

The findings of the 2001 Report, ‘The Long Grassers: A Strategic Report on Indigenous ‘Itinerants’ in the Darwin and Palmerston Area’ also highlighted that the Northern Territory’s public housing program in urban areas has failed to accommodate the special needs of Indigenous people, particularly the need to develop more culturally appropriate forms of public housing.

General A set of culturally appropriate accommodation options need to be available for those people leading a long grass lifestyle who are not prepared to leave Darwin and who have a need for accommodation…

Housing Design

750 John Tomlinson, 'Homeless and in Darwin - no peace in the long grass' (2005) On Line Opinion at 19 December 2006. 751 Commonwealth Department of Family and Community Services, Indigenous Publications, 26 June 2002.

209 .

The need for culturally appropriate design of accommodation. It is recommended that Territory Housing carry out a review of rental housing stock for indigenous tenants to ensure housing design is culturally appropriate and will cater for extended family groups and Aboriginal living practices.752

Tangentyere Council, an Indigenous organisation based in Alice Springs, made submissions to the 2001 Federal House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs: Inquiry into the Needs of Urban Dwelling Indigenous People. The Council called on the NTG to develop and implement housing standards for urban public housing that suit Indigenous people.

We feel that it is time for a complete investigation into the standards applied to the construction of public housing in urban areas as it is clear that increasingly the occupants of these houses will be ‘welfare’ tenants of whom the majority will be Aboriginal in the Northern Territory (emphasis added).753

During the same inquiry, the Indigenous Housing Association (‘IHA’) in Darwin also highlighted that the Northern Territory Government’s approach to provision of accommodation in urban areas has been culturally inappropriate for Indigenous families. The IHA stated that

[t]he Northern Territory unfortunately15 (sic) lagging in its approach to provide culturally appropriate and affordable housing for indigenous Territorians. The paternalistic approach by the government, coupled with the politicising of indigenous issues, has been the main contributor to the reasons why indigenous people are still disadvantaged and have the lowest home occupation and ownership in Australia …

[I]n essence, government policies have remained fundamentally assimilationist. …

752 Paul Memmott and Shaneen Fantin, '"The Long Grassers": A Strategic Report on Indigenous "Itinerants" in the Darwin and Palmerston Area' (Paul Memmott & Associates, 2001), 98. 753 Tangentyere Council, Submission to House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs: Inquiry into Needs of Urban Dwelling Indigenous People (2001), 19.

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[T]he solution for homelessness could be found in the building of culturally appropriate housing. The conformity of building a three bedroom dwelling, as does the Northern Territory Government, where three generations of family are required to live in the same dwelling is no longer appropriate. Current NT Housing Rental Policy is that one or two people cannot reside in a three bedroom property. Therefore the property must be vacated. This 15 (sic) probably appropriate for European society, however, in indigenous culture, which is also highly transient, the children/grandchildren visit between families and is (sic) not considered ‘permanent tenants’. As in European culture, where each generation is expected to find there (sic) own accommodation, indigenous society expects and even demands that family as (sic) provided shelter indefinitely …

[I]ndigenous housing needs vary and differ greatly from European needs. As indigenous families are traditionally bigger and incorporate different generations, the traditional ‘three bedroom’ European dwelling as (sic) entirely inappropriate and does not encourage traditional indigenous family culture (emphasis added).754

The views of the IHA in 2000 were a reiteration of research almost 20 years earlier.

Most of the urban housing available today is designed to suit assumed ‘typical’ households, those of nuclear families, Australians of British origin. Variations such as flats and hostels are available for those who don’t quite fit the nuclear mould, but these options neglect the cultural diversity, the diversity of lifestyles, and the ranges of household compositions which actually occur in Australian society. Aboriginal people, whose cultural norms differ more obviously from the majority Australian population than those of any other group, are the most seriously affected by inappropriate housing (emphasis added).755

754 Indigenous Housing Association Inc, Submission to House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs: Inquiry into Needs of Urban Dwelling Indigenous People (2000). 755 Helen Ross: ‘Uses or Abuses: Aboriginal Usage of Conventional Housing’ in David Drakakis-Smith (Ed) Housing in the North: Policies and Markets (1984), 129.

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On 20 September 2002, the Long Grass Association, a local grass roots association of long grass people and their supporters, launched its Vision Statement. The Vision Statement was released at the ‘Freedom to Sleep’ Concert held outside the Northern Territory Parliament in protest at the DCC by-laws, to be described in Chapter Five, and stated that

[t]he Department of Housing [Territory Housing] is seen by many Indigenous people as a Balanda (non-indigenous people) organisation operating for Balanda, trying to force Indigenous people to live under Balanda laws which means excluding extended family members from staying in their home. In Indigenous culture family is the number [one] obligation and this includes the extended family. Looking after family members, even if they have a drinking problem, is an obligation that cannot be abandoned. The Department of Housing has not accommodated for Indigenous extended families which continues to result in a very high rate of failed tenancies. Territory Housing refuses to disclose any information about these figures.756

Flatau et al found in 2005 that ‘[l]arge and extended family structures are … an integral component of the Indigenous way of life.’757 As NT Shelter confirms, ‘the provision of culturally appropriate public housing … [is] an imperative in each regional centre [in the Northern Territory].’758

The cultural practice of living with extended family and the cultural obligation to welcome and accommodate such family is particularly strong. As noted by Tomlinson, one of the reasons that people live in the long grass is to ‘be with others from their home communities.’ In addition, he notes that people are ‘…used to sleeping under the

756 Longgrass Association Darwin and Palmerston, Vision Statement, 20 September 2002. 757 Paul Flatau et al, 'Indigenous Access to Mainstream Public and Community Housing' (Australian Housing and Urban Research Institute, 2005), viii. 758 NT Shelter, 'NT Shelter Report on 2005 Regional Housing Forums' (2005), 3. See also NT Shelter, '2008/09 Submission to the NT Government Bduget Process' (2008), 7.

212 . stars….’759 Flatau et report that ‘… European style housing is, in many instances, inappropriate to the cultural, social and traditional requirements of Indigenous people and tends to be isolating relative to the communal structures of Indigenous camp environments. These problems are exacerbated when an Indigenous family is further isolated within non-Indigenous neighbourhoods as may occur within mainstream public and community housing accommodation.’760

The interviews reported by Memmott and Fantin also reveal that people find it difficult to manage European-style public housing which is as a result, at least in part, of cultural obligations and practices:

Nine respondents mentioned the difficulties of managing such accommodation due to the likelihood of visitation by other long-grassers and/or relatives, and the subsequent problems of alcohol consumption, alcohol violence, loud noise and damage to houses, all ultimately resulting in their eviction with damage debts to pay off. A number of them were in fact paying off such debts. Two interviewees said they had rejected rental houses in Palmerston because this suburb was too far from Darwin, where they had to regularly attend to their health problems.761

In 2007, The UN Special Rapporteur on Adequate Housing also expressed concern about the lack of culturally appropriate housing for Indigenous people in Australia generally, and its impact on their housing status.

Adequate housing necessitates a close examination of its cultural adequacy to the way of life of these communities. Throughout his visit to communities, the Special Rapporteur noted the limited number of house designs, which are mostly unadapted to cultural and

759 John Tomlinson, 'Homeless and in Darwin - no peace in the long grass' (2005) On Line Opinion at 19 December 2006. 760 Paul Flatau et al, 'Indigenous Access to Mainstream Public and Community Housing' (Australian Housing and Urban Research Institute, 2005), viii. 761 Paul Memmott and Shaneen Fantin, '"The Long Grassers": A Strategic Report on Indigenous "Itinerants" in the Darwin and Palmerston Area' (Paul Memmott & Associates, 2001), 67.

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social specificity stemming from different notions of “home” or “house”. The dominant European-style housing design does not accommodate cultural living practices, including the obligation to extended family members and groups, or use of outdoor living areas, often leading to evictions for alleged overcrowding or anti-social behaviour.762

As Johnny Balaiya explained in 2001,

We got to have blackfella food – half tucker for white man and half tucker for our tucker: goanna, kangaroo or yam anything – bush one…They tell us to move. They try to give me the white man house – little one. But I got lot of family – that’s for little boy and only half a little dog, that one. That’s why I don’t like it little white man house. Man can’t live in little house like that! That’s why I live here camping.763

As the Aboriginal and Torres Strait Islander Legal Services (Queensland South) states,

[m]ost people are homeless other than by choice. However, many Indigenous Australians occupy public spaces as a life-style preference in accordance with their cultural backgrounds. Sleeping out in the open is part of Aboriginal culture and embraced by many. … Many Aboriginal people continue to embrace the interconnection, which their people have had from time immemorial, by gathering and staying in … places of particular cultural significance. Surely they should be allowed to be true to their culture without undue police interference?764

There are few examples of culturally appropriate housing in Darwin for Indigenous families. Only five Indigenous specific town camps have been established in the greater

762 Miloon Kothari, Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Miloon Kothari, Addendum, Mission to Australia (31 July to 15 August 2006, UN Doc A/HRC/4/18/Add.2, (2007), [95]. 763 'Looking for a better voice for oldtimers like Johnny', The Litchfield Times 24 October 2001, 764 Aboriginal and Torres Strait Islander Legal Services (Queensland South), 'Submission to the CMC Review of Public Nuisance ' (2006), 5.

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Darwin area during the course of the 1970s and 80s, in part through the struggles of Indigenous ‘long grassers’. Kulaluk, Railway (or One Mile) Dam,765 together with Knuckeys Lagoon and 15 Mile Camp (now known as Palmerston Indigenous Village), were established in 1979.766 Minmarama Park was established in 1989.767 The town camps rely on Special Purpose Leases768 as the basis of legal tenure. As part of the Northern Territory Intervention, the town camps in Darwin have now been taken over by the Commonwealth for a five year period as prescribed areas.769 The creation of the town camps was supported through the process of the 1974 Woodward Royal Commission which found that, ‘… in addition to recommending that unalienated crown land be restored to traditional owners, proposed Aboriginal people dislodged from their home country should be housed on a needs basis. [As a result, in the late 1970s several permanent [Indigenous] town camps were established.’770 Several attempts to create additional Indigenous specific-living areas have been thwarted over the years. Tomlinson describes one occasion in the 1970s when ‘Long Grass People’, North Australian Aboriginal Legal Aid and the Uniting Church attempted to

progress a needs-based claim [as distinct to native title claim] on a small portion of vacant crown land between Mindil Beach and the town centre to set up decent facilities for transient Aborigines. Within days, the Perron Country Liberal Party Government transferred the land to Darwin City Council which refused to make any of the land available.771

765 One Mile Dam is currently under threat of redevelopment, with residents facing forced eviction. 766 See W. Bartlett Day, Aboriginal Fringe Dwellers in Darwin, Australia: Cultural Persistence or a Culture of Resistance? (PhD Thesis, Department of Anthropology, University of Western Australia, 2001), 5. 767 Ibid 79-80. 768 See Special Purposes Leases Act 1979 (NT), which comprises the Special Purposes Leases Ordinance 1953 (NT) and amendments made by legislation listed in Note 1 to the Act. 769 Aboriginal and Torres Strait Islander Social Justice Commissioner, 'Social Justice Report' (Human Rights and Equal Opportunity Commission, 2008, forthcoming). 770 John Tomlinson, 'Homeless and in Darwin - no peace in the long grass' (2005) On Line Opinion at 19 December 2006. 771 Ibid.

215 .

Day also describes the efforts of Indigenous people to establish a secure living area at Lee Point in Darwin in the 1990s772 and to secure a traditional living arrangement at Fish Camp, also in Darwin.773

As Memmott and Fantin note, there has been a failure to respond to the need of long term Indigenous residents — some of whom have lived in the long grass for up to 20 years — to be able to access culturally appropriate accommodation. Northern Territory Governments, both CLP and Labor, have not increased the ‘town camp’ Aboriginal living areas since the 1980s. The camps, based on different language, tribal and clan groupings, diversify the public housing options available.

The provision of permanent accommodation for long-term well established Aboriginal groups was implemented in various Territory towns during the 1970s and 1980s but there have been negligible new facilities for camping groups since then. Long-term campers who have been in town for 15 or 20 years or so should have their needs recognized (emphasis added)…

There has been general political opposition to getting more land for town camps or transient camps.774

Further, a change in the mix of public housing stock as a result of reforms to the public housing program in Darwin commenced in 1998. This has reduced, rather than increased, supply of larger European-style houses that might, at least, more adequately accommodate extended Indigenous family groups.775 The reforms set targets to be

772 W. Bartlett Day, Aboriginal Fringe Dwellers in Darwin, Australia: Cultural Persistence or a Culture of Resistance? (PhD Thesis, Department of Anthropology, University of Western Australia, 2001), 201-69. 773 Ibid 65-92. 774 Paul Memmott & Shaneen Fantin, The Long Grassers: A Strategic Report on Indigenous ‘Itinerants’ in the Darwin and Palmerston Area (2001), 86. 775 The NT public housing program has undergone a number of major reforms since its establishment. During the early stages of self-government for the Northern Territory, the availability of public housing

216 . achieved within five years, including the introduction of fixed term leases, charging market rents for people who no longer met the eligibility criteria, reduction of waiting list times, aligning housing stock more closely with need, and the introduction of incentives for tenants to purchase their homes when they become ineligible to remain in public housing due to the narrowing of the eligibility criteria.776 According to the responsible Minister, ‘the profile of applicants for public housing is changing, with an increase in demand for 1 and 2 bedroom housing, particularly in Darwin.’777 The reforms involved the selling off of public housing stock, particularly older 3 and 4 bedroom houses that were being occupied by people who were no longer eligible to occupy them, either because the size of the household had reduced (that is, children had grown up and left to live elsewhere), the tenants’ income levels had improved since they were granted public assistance was an essential part of the development of general infrastructure, creating housing for a wide range of ‘new arrivals’ (Commonwealth State Housing Agreement Bilateral Agreement between The Commonwealth of Australia and The Northern Territory 1999 - 2003, operative from 1 July 1999, 7). In recent years, there has been a reduction in public housing stock as well as a change in the mix of stock available. In addition, the eligibility criteria have been increasingly restricted in order to target people who ‘may have difficulty gaining secure access to private rental accommodation’ (Commonwealth State Housing Agreement Bilateral Agreement between The Commonwealth of Australia and The Northern Territory 1999 - 2003, operative from 1 July 1999, 4) or those who are ‘most in need’ (Northern Territory, Parliamentary Debates, Legislative Assembly, 26 November 1998, http://notes.nt.gov.au/lant/hansard/HANSARD8.NSF/0044d01ca7b2aec748255fcd0024659c/f85fee92e72b 2bbb69256714001c6148?OpenDocument, (Mr Baldwin, Minister for Housing)). In accordance with national policy directions, there has also been a continuing shift towards reliance on subsidising renting in the private rental market. The former Country Liberal Party Government of the Northern Territory announced major reforms to public housing in April 1998 as part of its Budget Statement. The reforms, entitled ‘Housing 2003’ were described at the time as the most significant change in direction in public housing in the NT since its inception and were designed in essence to ‘assist government reconfigure the public housing stock to meet the changing clientele’ and to increase the level of home ownership in the Territory which typically has a relatively low rate compared to the rest of the nation. 776 See Commonwealth State Housing Agreement Bilateral Agreement between The Commonwealth of Australia and The Northern Territory 1999 - 2003, operative from 1 July 1999, 7. 777 Northern Territory, Parliamentary Debates, Legislative Assembly, 26 November 1998, http://notes.nt.gov.au/lant/hansard/HANSARD8.NSF/0044d01ca7b2aec748255fcd0024659c/f85fee92e72b 2bbb69256714001c6148?OpenDocument, (Mr Baldwin, Minister for Housing).

217 . housing, or because they commenced occupancy prior to the introduction of means testing for public housing in 1991. ‘The 3-bedroom houses freed up [by relocation of ineligible tenants] will either be allocated to families on the wait list or sold to fund construction of new public housing’,778 with existing tenants being given the first option to purchase. The mix of public housing stock is being reoriented towards 1 and 2 bedroom units, with a significant proportion of the new stock being developed as seniors villages, purpose-built for older tenants. For example, from 1998 to 2001, 3 and 4 bedroom dwellings were reduced from 60.7% to 52.8% of stock, and 1 and 2 bedroom dwellings increasing from 39.3% to 47.2% of stock.

This change in the housing stock was destined to exacerbate the well known problems of ‘overcrowding’ that have a negative impact on the suitability of public housing as a realistic housing option for Indigenous families. For many Indigenous people, it is essential to have appropriate design and size of dwelling in order to fulfil cultural obligations, such as having extended family and visitors to stay, and to conduct a range of activities outdoors. The change in mix of stock has occurred despite the fact that public housing in the Northern Territory has the highest rates of occupancy by Indigenous people, and for example, between 1999/2000 and 2000/2001, the number of Indigenous people on the waiting list for public housing jumped dramatically from 25.9% to 36.7% of all people on the list.779 Analysis of the ‘change in clientele’ for public housing which lead to the change in mix of housing stock, giving a priority to 1 and 2 bedroom flats, appears to have been based on the formal wait lists for public housing which evidenced an increase in the demand for 1 and 2 bedroom flats. During a presentation by the CEO of Territory Housing at a 1999 Forum regarding Housing 2003, this author asked for details of the methodology used to assess the ‘future need’ for public housing in the Northern Territory and was advised that the formal wait lists had been the primary source

778 Ibid. 779 Territory Housing, 'Territory Housing Annual Report 2000 - 2001' (Northern Territory Government, 2001), 11. Note that the most recent Territory Housing Annual Report does not include waiting list numbers. See Territory Housing, 'Territory Housing Annual Report 2006/7' (Northern Territory Government, 2007).

218 . of data. Accordingly, it is suggested that many people living in the long grass would not have been included in the analysis as well as many other people, likely Indigenous, who had been living in ‘overcrowded’ (or ‘culturally inappropriate’) housing with other extended family.

Overcrowding is a well-recognised feature of Indigenous peoples experience of living in European style housing including public housing.780 As the UN Special Rapporteur noted, overcrowding and lack of appropriate design then leads to major problems associated with ‘noise and nuisance’, allegations of anti-social behaviour, leading to eviction. Overcrowding is directly linked to the sustainability of a tenancy. ‘Overcrowding places extra demands on housing structures which are often not sufficiently robust and durable. Large maintenance bills, neighbourhood complaints (which themselves may be based on prejudice) and eviction may result.781 As Flatau et al found, ‘[t]o reduce overcrowding outcomes for Indigenous households a boost to the stock of larger dwellings is required’,782 exactly the opposite trend to that which has occurred to the public housing stock in urban Darwin.

Memmott and Fantin recommended that there was a need to ‘develop appropriately designed housing for extended/larger families’,783 reiterating calls for action which date

780 See, eg, Human Rights and Equal Opportunity Commission, A statistical overview of Aboriginal and Torres Strait Islander peoples in Australia (2004) at 2 February 2004: ‘Households with Indigenous persons tend to have more residents than other households. At the 2001 Census, there was an average of 3.5 persons in households with Indigenous people, compared with 2.6 persons in other households…The Steering Committee for Government Service Provision has reported that Indigenous people were 5.6 times more likely to live in overcrowded houses than non-Indigenous people. This rate rises to 18.8 times the non-Indigenous rate in very remote areas.’ 781 Paul Flatau et al, 'Indigenous Access to Mainstream Public and Community Housing' (Australian Housing and Urban Research Institute, 2005), viii. 782 Ibid xii. 783 Paul Memmott and Shaneen Fantin, '"The Long Grassers": A Strategic Report on Indigenous "Itinerants" in the Darwin and Palmerston Area' (Paul Memmott & Associates, 2001), 99.

219 . back to the 1980s and beyond. The recommendation received strong support from service providers consulted during the formulation of such recommendations for the Project Management Committee of the Community Harmony Project.

A special consultation and design process would be required in addition to a well- thought-out housing management plan. Any location needs to be slightly removed from the higher density suburbs, and with access to bushland. The architectural design proceeds needs to incorporate external living areas and extra ablution facilities (externally accessible) as well as other culturally appropriate features. There are difficulties in developing such an option which must cope with extended or multiple family groups, eg size of houses; finding a location where such a complex can be sustained; and associated social problems (eg alcohol). The purchase of private land could be considered for this project.

Such a proposal has already been strongly requested by [Darwin Area Housing Association] on behalf of a Maningrida group and supported by Maningrida leaders living in Darwin. There is therefore a ready client.784

No further culturally appropriate housing has been made available in Darwin in the Northern Territory, some five years later, despite the findings of Maypilarna et al in 2004 that affirmed once again that the key recommendation for alleviating the situation for Yolngu people living on Larrakia land in the long grass was to create ‘more suitable accommodation in Darwin…’785

For many Indigenous people, including people living in the long grass, the majority European style of accommodation is simply culturally inappropriate. As Dodson noted,

if we are nomads, let us be nomads. Why try and chain us up to their houses and their buildings and their debt and servicing of the banks? …The Brits and the Irish are the

784 Ibid 99-100. 785 Maypilarna et al, 'Yolngu Longgrassers on Larrakia Land' (Charles Darwin University, 2004), 4.

220 .

minority in this country, and they should stop trying to make everyone else into moulds that replicate themselves.786

In addition to the problems of the physical design of current permanent social housing options, there is a range of policies and procedures that act as barriers to accessing public housing, particularly for Indigenous and homeless people.

Access to mainstream public housing can be denied to households on the basis of breaches of the terms of a prior public housing tenancy or the non-payment of Housing Authority debts … when strictly applied, such eligibility criteria can act to prevent some of the neediest households from re-entering public housing and securing long-term low- cost accommodation.787

For example, the current wait list procedures of Territory Housing are managed through written correspondence. ‘Homeless or itinerant Indigenous people who do not respond to written correspondence sent to their last known address are often removed from the waiting list because they do not respond.’788 In 2006, the Northern Territory Government introduced the Anti-social Behaviour (Miscellaneous Amendments) Act 2006 (NT) which empowers Territory Housing to require a person under specified circumstances to enter into an Acceptable Behaviour Agreement. A refusal to enter into the agreement or subsequent breach of the agreement enables Territory Housing to evict the tenant. In addition, it empowers an ‘interested’ third party who has been adversely affected to apply for the eviction of a public housing tenant on the basis of that they are either using the premises for illegal purposes, repeatedly creating a nuisance, or repeatedly interfering

786 Patricia Karvelas, Let Aborigines be nomads: Dodson (2006) at 22 December 2006. For a retort to Dodson, see Janet Albrechtsen, The nomadic ideal is killing the Indigenous (2006) The Australian at 22 December 2006. 787 Paul Flatau et al, 'Indigenous Access to Mainstream Public and Community Housing' (Australian Housing and Urban Research Institute, 2005), xii. 788 NT Shelter, 'NT Shelter Report on 2005 Regional Housing Forums' (2005), 7.

221 . with reasonable peace and privacy of other tenants. Further, the amendments authorise Territory housing or the tenant themselves to make an application to declare their premises a dry zone. These policies and rules all operate to make the tenancies of Indigenous families less sustainable, and more susceptible to eviction, leaving behind significant debts, and subject to a ban of being able to reapply for housing for a further two years.

Memmott and Fantin recorded that one of the barriers to people accessing accommodation was a history of prior evictions, with outstanding debts yet to be paid.789 Debts must be repaid before people will again be eligible for public housing.

The overall effect of inappropriate design of mainstream public housing, and the policies and procedures that create barriers that disproportionately impact on the ability of Indigenous people to benefit from available mainstream social housing is that ‘[i]ndigenous people experience shorter tenancies and are significantly more likely to be served termination and final eviction notices than their non-Indigenous counterparts. Furthermore, overcrowding levels within mainstream public housing remain at very high levels. Most importantly, the level of severe housing need amongst Indigenous people remains at very high levels.’790 The evidence reinforces the reality that for a proportion of Indigenous peoples, ‘mainstream’ or European-style models of living, upon which current accommodation options are based, fails to accommodate their cultural needs.

4 Economic and Social Disadvantage In a recent study regarding the barriers faced by Indigenous communities in accessing mainstream low-cost housing options, such as public housing and community housing, the researchers found that:

789 Paul Memmott and Shaneen Fantin, '"The Long Grassers": A Strategic Report on Indigenous "Itinerants" in the Darwin and Palmerston Area' (Paul Memmott & Associates, 2001), 67. 790 Paul Flatau et al, 'Indigenous Access to Mainstream Public and Community Housing' (Australian Housing and Urban Research Institute, 2005), xviii.

222 .

The inter-related problems of poverty, domestic and family violence, incarceration, drug and alcohol abuse and mental illness all represent risk factors for Indigenous households in need of accessing and sustaining tenancies in mainstream public and community housing. The prevalence of such problems in the Indigenous population is higher than in the non-Indigenous population. Whilst such problems are more likely to result in potential tenants being assessed as being in greatest need and, therefore, more likely to gain priority access to mainstream public housing, the same problems may lead to an inability to successfully manage tenancies. This may result in households falling behind in their rent payments and developing bad debt and anti-social behaviour histories which can prove major barriers to re-entry to mainstream public and community housing.791

According to the Northern Territory Council of Social Services, [t]he NT has the highest level of poverty of any State/Territory. This includes both adult and child poverty. However, current data, research and analysis often does not reflect this [due to the aggregation of NT data with the ACT, or other methodological approaches].’792 NT COSS notes that the NT has an officially low rate of unemployment. However, the official figure does not include the many people, particularly Indigenous, who are not registered with Centrelink (i.e. not in receipt of any income at all, including welfare benefits).793 Nor does the official figure include people ‘employed’ on the Community

791 Paul Flatau et al, 'Indigenous Access to Mainstream Public and Community Housing' (Australian Housing and Urban Research Institute, 2005), ix. 792 Submission to the Senate Community Affairs Reference Committee's Inquiry into Poverty in Australia, Parliament of Australia, Canberra, July 2003 (Northern Territory Council of Social Services), 3-4: ‘The real level of poverty in the NT is masked. It is masked by inadequate ABS and other research data on poverty, as well as by the lack of any comprehensive data and research on poverty and disadvantage in the NT. Likewise some of the key measures commonly used to indicate poverty are highly inaccurate, particularly in the case of Indigenous people and the NT. One of the best examples of this is the use of Centrelink data on unemployment, i.e. those registered with Centrelink, as being the basis for recording levels of unemployment in Australia.’ 793 Submission to the Senate Community Affairs Reference Committee's Inquiry into Poverty in Australia, Parliament of Australia, Canberra, July 2003 (Northern Territory Council of Social Services), 4: ‘The data also reveals that the vast majority of Indigenous adults are unemployed. In addition anecdotally in the NT

223 .

Development Employment Program (CDEP), an Indigenous form of Work for the Dole.794 Such people are counted as employed, even though they are only receiving income levels ‘which are usually equivalent to the dole or less.’795

As noted above, the vast majority of people living in ‘improvised dwellings’ are not employed, with a few having no income source whatsoever. As Holmes notes, ‘[e]mployment was hindered by addictions, poor health, a lack of skills and education, poor literacy, along with discrimination and criminalisation. Most, if not all, welfare payments were spent on alcohol, drugs, tobacco and gambling.’796 The lack of financial support is exacerbated for Indigenous people living in the long grass, who have

less control over how their money is spent in contrast with non-Aboriginal participants [in her social research]. One participant explained, ‘it is our way’, a practice stemming from cultural expectations around sharing with kin. Pension day was often stressful, as family members would extort often all available income, leaving the individual with no money until the next pension day.797

Memmott and Fantin found that ‘[a]ll respondents indicated that they obtained a regular income from a welfare payment of some kind, either unemployment benefit, sickness benefit, aged pension, supporting parent benefit, widow’s pension, CDEP pay (at Bagot) or sickness disability pension. Only one complaint was heard of someone not having a

Indigenous organisations report that there are high percentages of Indigenous people who are receiving no form of income, including welfare benefits.’ 794 Under the Northern Territory Intervention, the former Howard Coalition Government commenced the abolition of CDEP in the Northern Territory. However, following the election of the Rudd Labor Government on 24 November 2007, the Federal Government has suspended further action on this component of the Northern Territory Intervention. 795 Submission to the Senate Community Affairs Reference Committee's Inquiry into Poverty in Australia, Parliament of Australia, Canberra, July 2003 (Northern Territory Council of Social Services), 4. 796 Catherine A Holmes, 'Environmental Health for the Homeless? Creating Supportive Environments for Health and a Better Quality of Life' (2006) 6(2) Environmental Health 42, 45. 797 Ibid 46.

224 . regular income.’798 It is likely that the vast majority of people living in the long grass in Darwin are unemployed, and are also unlikely to be in receipt of CDEP benefits. As Tomlinson notes, one of the reasons that people live in the long grass is because they have ‘insufficient money for accommodation…’799 Poverty also affects people’s choices of location for living in town. For example, there are very few forms of cheap transport accessible to people living in the long grass. As some people are in town in order to support relatives receiving health care, their need to be located near to the Royal Darwin Hospital is an imperative.800

5 Physical and Mental Health Issues According to Holmes, the excessive consumption of alcohol and drugs, and gambling was used to ‘physically and emotionally distance [people living in the long grass] from painful thoughts …’ 801 reinforcing the findings by Maypilarna et al, discussed above. ‘Physical and mental health conditions often deteriorated as a result of trauma, further exacerbated by homelessness.’802 Whilst Memmott and Fantin found that people generally did not complain about serious physical or mental health concerns, they did ‘mention … toothache, head-ache, boils, pneumonia, blood pressure, kidney failure, haemoglobin and eye problems, asthma, liver problems, brain tumour and cataracts. Several people complained about getting sick after sleeping in the rain mentioning such complaints as pneumonia, asthma, and headaches. It was clear from visual impressions that many interviewees had multiple facial scars and lacerations received no doubt from

798 Paul Memmott and Shaneen Fantin, '"The Long Grassers": A Strategic Report on Indigenous "Itinerants" in the Darwin and Palmerston Area' (Paul Memmott & Associates, 2001). 799 John Tomlinson, 'Homeless and in Darwin - no peace in the long grass' (2005) On Line Opinion at 19 December 2006. 800 Ibid: ‘Long Grass People sleep out for various reasons …they want to live near hospitals to visit ill relatives…’ 801 Catherine A Holmes, 'Environmental Health for the Homeless? Creating Supportive Environments for Health and a Better Quality of Life' (2006) 6(2) Environmental Health 42, 48. 802 Ibid 48.

225 . fights, assaults drunken falls etc.’803

6 Alcohol and Other Drugs Use The public perception of life living in the long grass assumes a strong drinking culture. Memmott and Fantin found that most of the 52 people they interviewed ‘had been to the Sobering Up Shelter frequently and many had spent time in the CAAPS and/or FORWAARD [an alcohol rehabilitation service] programs … Only two respondents made comments denying that alcohol was a problem for their whole group.’804 Christie and Greatorex also report that ‘…some [Yolngu] become part of the culture of heavy drinking which pervades the lifestyle of long grassers.’805 As Tomlinson notes, some people live in the long grass because they ‘want to stay where they can drink with friends.’806 However, Maypilarna et al found through their discussions with people living in the long grass that ‘for most people drinking in the long grass was not the reason for living in the long grass. Rather, it was the consequence of deeper problems, which had not been addressed or resolved.’807

E Conclusion

This Chapter has reviewed the available research and literature regarding people living in the long grass in Darwin in the Northern Territory. It commenced with an investigation into estimates of how many people are likely to be living in this way, and whether the

803 Paul Memmott and Shaneen Fantin, '"The Long Grassers": A Strategic Report on Indigenous "Itinerants" in the Darwin and Palmerston Area' (Paul Memmott & Associates, 2001), 82. 804 Ibid 68. 805 Michael Christie and John Greatorex, 'Yolngu Life in the Northern Territory of Australia: The Significance of Community and Social Capital' (Charles Darwin University, 2006), 7. 806 John Tomlinson, 'Homeless and in Darwin - no peace in the long grass' (2005) On Line Opinion at 19 December 2006. 807 Maypilarna et al, 'Yolngu Longgrassers on Larrakia Land' (Charles Darwin University, 2004), 3.

226 . number has increased over recent times. There are no accurate measures available regarding this question, although some research supports the view that Indigenous people, as well as non-Indigenous people, are continuing to migrate towards the urban centre, thereby creating increasing pressure on available low-cost housing options. The available data suggests that between 500 – 1000 people may be living in the long grass in Darwin at anytime, given seasonal variations.

A disproportionate number of the people living in public space in Darwin are Indigenous adults, mostly living in groups, whose origins are from remote Indigenous communities within the Northern Territory. Whilst some of the people are living in Darwin on a short term basis in order to access services and conduct other business in the urban area, a significant proportion of people are long term permanent residents of the area.

A review of the research concerning the reasons people live in the long grass, when resident in Darwin, supports the widely-held views of local leaders and service providers that there is a significant lack of affordable, and appropriate low-cost housing, certainly for the longer term. It is also likely that, certainly for some Indigenous people, an increase in affordable housing may not affect their use of public space in the absence of low-cost accommodation alternatives in town which are designed to be genuinely appropriate for their cultural ways of living.

As Memmott and Fantin found, [m]ost [people living in the long grass] made it clear that they would prefer to have formal accommodation …’808 but it is suggested that living in the long grass is the most viable and culturally appropriate option available to people in light of the limited alternatives available to them. In other words, even for people who describe that they choose to live in the long grass, their choice is determined by their extensive experience both personally and shared of failed attempts to access private

808 Paul Memmott and Shaneen Fantin, '"The Long Grassers": A Strategic Report on Indigenous "Itinerants" in the Darwin and Palmerston Area' (Paul Memmott & Associates, 2001), 67.

227 . places, including public housing, existing town camps, and Aboriginal hostels. As just one example, one group living in the long grass had tried living in a hostel but found the place so dirty (presumably due to overcrowding and lack of culturally appropriate design) that they decided it was healthier to be camping by the beach.809

The struggles of people living in the long grass to secure additional Aboriginal living areas or town camps, at places such as Lee Point, and subsequently at Fish Camp demonstrate that people living in the long grass also wish to move on from the kind of existence in public space where they are treated like ‘animal’, ‘dog’ or ‘kangaroo’810 towards the creation of culturally appropriate, secure places and spaces that they can call home.

Over the years, a number of efforts have been made by the Northern Territory Government to address the needs of people living in the long grass. In 2001, the Itinerants Project was established to coordinate the development of a range of responses to the needs and concerns of both the long grass population, and the range of other interests expressing concern about their presence, including businesses objecting to anti- social behaviour. The Project was informed by the work of Memmott and Fantin, who devised a four-pronged strategy, involving patrolling, education and regional action, alcohol and accommodation components.811 The Itinerants Project was subsequently transformed into the Community Harmony Strategy, which has now also been discontinued, to be replaced by a new Integrated Intervention and Case Management Service (‘ICMS’) which was due to be implemented in December 2007. During the early

809 Maypilarna et al, 'Yolngu Longgrassers on Larrakia Land' (Charles Darwin University, 2004), 10. 810 See W. Bartlett Day, Aboriginal Fringe Dwellers in Darwin, Australia: Cultural Persistence or a Culture of Resistance? (PhD Thesis, Department of Anthropology, University of Western Australia, 2001), 6.16: Another Parliament House protest, August 3rd 2001, quoting Dulcie Malimara, Protestor, Rally against Darwin City Council By-laws outside Parliament House, Darwin, Northern Territory, 3 August 2001. 811 Paul Memmott and Shaneen Fantin, '"The Long Grassers": A Strategic Report on Indigenous "Itinerants" in the Darwin and Palmerston Area' (Paul Memmott & Associates, 2001), esp 7-11.

228 . phases of the Itinerants Project, council officers from the DCC advised this author that there was a significant improvement in the coordination of assistance for people living in the long grass, including efforts to support people to find alternative accommodation. However, according to the council officers, this coordination no longer occurs on a formal basis. A number of components of the Project are reported to be continued under the ICMS, including the Return to Home program, transport assistance, and Information and Referral, including proof of identity, assistance with accommodation and other referrals. A new committee is to be established ‘to address the issues surrounding anti- social behaviour in urban centres and to identify clients for structured intervention.’812 However, as described above, the accommodation needs of people living in the long grass have not been addressed. As noted by Memmott and Fantin in 2001, ‘[t]here has been general political opposition to getting more land for town camps or transient camps.’813 The researchers recommended that ‘[f]urther development control plans and land use planning proposals for Darwin should consider itinerant and town campers needs and land use patterns. The NT Government should ensure that existing town camps under special use lease agreements are not revoked or resumed, so as not to exacerbate the current accommodation situation.’814 It is outside the scope of the thesis to undertake a full evaluation of these efforts. An evaluation of the Community Harmony Project was conducted in 2004. The evaluation concluded that

[o]verall, itinerants feel that the Government is not helping them. They have not noticed any positive changes rather cite an increase in policy and city council presence as the newer but negative impact noted. Itinerants have a low level of awareness of the Information Referrals Office … and have no awareness of the Community Harmony Strategy … Housing is the key priority among itinerants, specifically those that (sic) are in Darwin and Palmerston for the long-term. … Some itinerants that (sic) want housing have tried to arrange it through the appropriate channels but have heard nothing back.

812 Letter from Northern Territory Department of Justice to Author, 28 September 2007. 813 Paul Memmott and Shaneen Fantin, '"The Long Grassers": A Strategic Report on Indigenous "Itinerants" in the Darwin and Palmerston Area' (Paul Memmott & Associates, 2001), 98. 814 Ibid.

229 .

This then engenders resentment. Among these there is a perception that non-aboriginal people will get housing assistance prior to them. A few itinerants did reside in a house in the past but lost it due to complaints made by neighbours. Beyond housing, itinerants did not cite any other problems with living in Darwin now or in the future and none suggested the desire to attain training, education or employment.815

Four years later, no additional culturally appropriate living areas have been created and the NT government has confirmed its intention to redevelop One Mile Dam, one of the town camps located in the urban centre of Darwin.

On 19 February 2008, three days before submission of this thesis, the Northern Territory Government announced a $10 million package of interventions to address ‘the increase in Indigenous people sleeping rough in Darwin’ and ‘to reduce anti-social behaviour’.816 The package has an emphasis on reviving a Night Patrol Service, an anti-social behaviour hotline for members of the public to make complaints, and implementation of CCTV. It also includes provision for 127 short term accommodation beds, as well as funding towards the Return to Home Service, underwriting the travel costs of people wishing to leave Darwin. The package has received early support from Larrakia Nation, as the local traditional owner organisation and Mission Australia, a welfare agency. However, whilst elements of the package are positive, once again, the proposals do not appear to address the long term accommodation needs of people living in the long grass. With at least 500 people living in the long grass at any given time and a substantial population of long term residents, the package is unlikely to address the long term accommodation needs of people living in the long grass. The package does not include any plans to expand permanent culturally appropriate living areas in Darwin, as was recommended by Memmott and Fantin back in 2001. The NT government has confirmed its intention to

815 Market Equity Research and Strategy, 'Community Harmony Strategy Evaluation Report 2004' (Department of Community Development, Sport and Cultural Affairs 2004), 3. 816 ABC News Online, Million-dollar plan targets Darwin's homeless (2008) at 20 February 2008.

230 . redevelop One Mile Dam, one of the town camps currently located in the urban centre of Darwin, also contrary to the Memmott and Fantin recommendations.

The next chapter now examines the primary regulatory measures that have been used against people living in public space, particularly through the legal regulation of behaviour that is essential to human existence. It gives particular attention to the DCC Public Places Program and DCC By-law 103, which prohibits camping and adults sleeping in a public place between sunset and sunrise. The operation of the Program and its impact on living in public space can be best understood within the context of the discussions in this Chapter about the nature and extent of living in public space in Darwin, Northern Territory.

The Long Grass People’s real problem is that no government has adequately addressed the realistic needs of Indigenous people coming in from home communities. Neither Territory nor Commonwealth Governments have set aside sufficient safe camping areas, with access to showers and toilets and opportunity to drink without harassment.817

817 John Tomlinson, 'Homeless and in Darwin - no peace in the long grass' (2005) On Line Opinion at 19 December 2006.

231 .

232 5 LEGAL REGULATION OF ESSENTIAL HUMAN BEHAVIOUR IN PUBLIC SPACE: THE CASE STUDY OF DARWIN CITY COUNCIL BY-LAW 103

A Introduction

As Chapter Three has documented, the negative impact of public space laws on the lives of people living in public space has been a particular focus of inquiry for researchers, lawyers and advocates working to support people who are homeless in Australia today. Chapter Four then presented available research about a particular population of people living in public space: people living in the long grass in Darwin in the Northern Territory. The chapter set out evidence about who people are, how many people live in this way, why they live in Darwin, and why they live in the long grass. Contrary to public perceptions about people living in the long grass, the evidence revealed that many people are not ‘itinerant’, living in a state of temporary crisis. A significant proportion of the population have adopted this life style to best accommodate their cultural practices, in light of the limited accommodation options available to them.

As this Chapter will show, the legal regulation of public space is a major concern for people living in the long grass. Researchers Memmott and Fantin found in 2001 that the second major concern of people living in the long grass — after problems with housing and accommodation — was ‘difficulties arising from patrols by authorities; either the NT Police Public Patrol, the Aboriginal Night Patrol or the Darwin City Council Public Place Patrol.’818 This chapter charts one of these patrolling mechanisms: the Darwin City Council (‘DCC’) Public Places Program which enforces compliance with, inter alia, Darwin City Council By-law 103 (‘DCC By-law 103’). DCC By-law 103 bans camping in a public place, or adults sleeping in a public place

818 Paul Memmott and Shaneen Fantin, '"The Long Grassers": A Strategic Report on Indigenous "Itinerants" in the Darwin and Palmerston Area' (Paul Memmott & Associates, 2001), 64-5.

233 between sunset and sunrise. The chapter concludes with an overview of attempts to use ‘rights-based strategies’ to challenge the enforcement of DCC By-law 103 against people living in the long grass. The attempts indicate that people will look to the law, and to ‘rights’, to attempt to leverage power and control in their direction when faced with persistent harassment.

The chapter aims to illuminate the experience of the people who are the targets of DCC By-law 103 and completes the case study of the criminalisation and forced eviction of people living in the long grass in Darwin commenced in Chapter Four and completed here. The case study sets out the evidential basis for the analysis in Chapters Six and Seven. Chapters Six and Seven investigate the potential to pursue a human rights-based claim to challenge the criminalisation or forced eviction of people living in the long grass using art 17 of the International Covenant on Civil and Political Rights (‘ICCPR’),819 which protects the human right to privacy, family and home.

B Darwin City Council Regulation of Camping and Sleeping in Public Places

It has always been illegal to camp in public places within the municipality [of Darwin] and council has always advised people of this and issued infringement notices. Council is extremely conscious of applying all policies and procedures in a non-discriminatory manner.

Community Services Manager, Darwin City Council, 1996820

1 Introduction The Northern Territory became self-governing in 1978 with the enactment of the Northern Territory (Self-Government) Act 1978 (Cth). Prior to this, the Commonwealth administered the Northern Territory.821 At the 2001 Census, the Northern Territory had a population of 202 729, including an Indigenous population

819 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). 820 Diana Leeder, 'Just for the record...' Northern Territory News (Darwin), 12 September 1996, 821 Northern Territory (Self-Government) Act 1978 (Cth).

234 of 50 785. Darwin City Council (‘DCC’) represented a population of 69 455, including an Indigenous population of 5 983.822 The physical jurisdiction of the Council is some 112 km2. Accordingly, the DCC, a municipal authority created under the Local Government Act 1993 (NT), plays a major role in regulating the lives of almost 34% per cent of the Northern Territory population, and 12% of the Indigenous population. DCC regulatory powers are extensive, covering a wide range of areas, including fire protection, street lighting, public entertainment and transport, roads, tourism, child care, community housing and land development schemes, as well as the ‘control of public places.’823 Darwin City Council By-laws have been promulgated pursuant to these powers under the Local Government Act 1993 (NT).

Although DCC By-law 103 is the case study for this thesis, it is important to note that, as set out in Chapter Two, there is a collection of public space laws which can be used to criminalise and forcibly evict people living in the long grass in Darwin. For example, the Trespass Act 1987 (NT) was the legislative basis for the eviction of people from a long grass camp at Lee Point, Darwin in 1997.824 The Trespass Act 1987 (NT) was also the basis for one of the evictions of Johnny Balaiya and his family from his camp at Pipeline or Yarrawonga in Palmerston, the satellite town to Darwin. Section 47A of the Summary Offences Act 2001 (NT) is also available as a mechanism for criminalising and forcibly evicting people living in public space. It provides for the offence of loitering and the power to direct people to move to cease loitering. Under s 47A of the Act, a person commits the loitering offence if they are idle or lingering about, do not give a ‘satisfactory account’ of themselves where requested to do so by a police officer and then do not move on when ordered to do so. Accordingly, both the trespass offence and the loitering offence enable the policing authorities to prevent someone from occupying public space. The new 47B of the

822 Darwin City Council, Darwin City Council Website (2006) at 27 December 2006. 823 Local Government Act 1993 (NT), s 121(2) and Schedule 2. 824 W. Bartlett Day, Aboriginal Fringe Dwellers in Darwin, Australia: Cultural Persistence or a Culture of Resistance? (PhD Thesis, Department of Anthropology, University of Western Australia, 2001), 223.

235 Summary Offence Act 2001 (NT), inserted by s 22 of the Justice Legislation Amendment (Group Criminal Activities) Act 2006 (NT), also has this potential. It empowers the police to issue a written move on notice of up to 72 hours against someone found loitering whom the police reasonably suspect of having committed, or being about to commit, an offence.

There are also provisions that regulate behaviour which might not be considered ‘essential’ but if conducted in private would not be an offence. An example of such behaviour is swearing. Swearing might not be considered essential human behaviour, and in this respect may be distinguished from offences under DCC By-law 103 in terms of impact on people considered to be homeless. However, it may be argued that such regulation inevitably has a discriminatory impact on people who live in public places by reducing the sphere of human activity in which they are permitted to engage without legal sanction, compared with people who do not live in public space. Some of the offences that fall into this category include s 53 of the Summary Offences Act 2001 (NT) which bans, inter alia, the use of ‘profane, indecent or obscene language’ in a public place. The various criminal offences set out above — trespassing, loitering, and, arguably swearing in public — may be described as laws that ‘criminalise’ homelessness, on the basis that the behaviour they proscribe would be lawful if conducted in private. However, DCC By-law 103 has been selected as the focus of this thesis because, as this chapter will show, it has been a primary subject of local protests, publicity and previous ‘rights-based strategies’ at the domestic level to challenge the treatment of people living in the long grass.

In this section, the laws, policies and practices of the DCC, with respect to sleeping in public places, are described. DCC By-law 103 is discussed, including available defences, with some commentary on the predecessors to the current anti-camping and sleeping by-law. The policies and practices, with respect to monitoring and enforcement of the regulation, and associated statistical evidence of its impact on people living in public places, are also reviewed. The section concludes with a discussion of the purpose and justification of the by-law and its enforcement against people living in public space.

236 2 Darwin City Council By-law 103 As DCC By-law 103 makes it unlawful for any person to camp in a public place, or for adults to sleep in a public place between sunset and sunrise, it, therefore, involves the regulation of conduct (sleeping) which may be considered essential — conduct that a person must carry out in order to survive. It may be distinguished from measures that proscribe behaviour about which people have a choice. In addition, the proscribed behaviour (sleeping) would be lawful if performed in places over which the person has private property rights, and so may be distinguished from laws that prohibit behaviour regardless of whether it is carried out in private, such as threatening conduct or behaviour which involves injury to third parties. It might therefore be argued that it operates to ‘criminalise’ people who are homeless, when people do not have a reasonable choice other than to sleep in public. Chapter Four has presented evidence of the lack of ‘choice’ for many people who are currently living in public places in Darwin.

DCC By-law 103 is not unique. DCC By-law 103 is one of a class of laws that have been described variously as ‘status’ offences,825 ‘quality of life’ laws,826 or laws that criminalise ‘basic life sustaining activities’.827 Laws that criminalise acts such as ‘sleeping, sitting, or storing personal belongings in places where people are forced to exist without shelter’828 exist in many jurisdictions.

DCC By-law 103 provides as follows:

103. Camping or sleeping in public place

(1) A person who –

825 See, eg, Elizabeth Eggleston, Fear, Favour or Affection (1976), 240. 826 See, eg, National Coalition for the Homeless, 'As homelessness increases, number of laws targeting homeless people rise' (2003) National Coalition for the Homeless at 7 February 2004. 827 National Law Center on Homelessness & Poverty, Combating the Criminalisation of Homelessness: A Guide to Understand and Prevent Legislation that Criminalizes Life-Sustaining Activities (2002) at 7 February 2004. 828 Ibid.

237 (a) camps; (b) parks a motor vehicle or erects a tent or other shelter or places gear or equipment for the purpose of camping or sleeping; or (c) being an adult, sleeps at anytime between sunset and sunrise, in a public place otherwise than – (d) in a caravan park or camping area; or (e) in accordance with a permit, commits an offence.

(1A) For the purposes of this by-law, land is taken to be a caravan park or camping area (as the case may be) if – (a) the land is used for parking of caravans or the erection of tents for the purpose of providing accommodation to members of the public; and (b) the owner or occupier of the land receives payment from another person as consideration for permitting the person to park or live in a caravan or to erect or live in a tent on the land.

(2) An offence under clause (1) is a regulatory offence.

(3) An authorized person may direct a person who is or has contravened clause (1) to do one or both of the following: (a) leave the public place; or (b) remove any motor vehicle, tent, shelter, gear or equipment to a place specified by the authorised person, and the person shall comply with the direction forthwith.

(4) A person who fails to comply with the directions of an authorised person under clause (3) commits an offence.

(5) A person who, whether alone or together with others, obstructs or by his, her or their presence intimidates another member of the public from using a public shelter, ablution facility, water supply, barbecue or fireplace commits an offence.

DCC By-law 3 provides that

‘public place’ includes:

238 (a) every place to which free access is permitted to the public, with the express or tacit consent of the owner or occupier of the place;

(b) every place to which the public are admitted on payment of money, the text of the admittance being the payment of the money only;

(c) every road, street, footway, court, alley, thoroughfare or cul-de-sac which the public is allowed to use, notwithstanding that the road, street footway, court alley or thoroughfare may be formed on private property; and

(d) land reserved under a law of the Territory for the use of the public or a member of the public.

The ‘on-the-spot’ penalty for an infringement of DCC By-law 103 is $50.829 If a person fails to pay the on-the-spot fine, and is prosecuted for the offence, the person may then be liable to a fine up to a maximum of $3000, as well as court costs.830

In addition to being fined, a person may also be subjected to an arrest for failing to cease committing the offence. Council officers have a general power to arrest or remove a person in breach of Council by-laws generally, including DCC by-law 103.831

Darwin City Council considers that DCC By-law 103 is a lawful exercise of its delegated power under the Local Government Act 1993 (NT) (‘the Act’) on the basis that s 182(1) of the Act empowers a local council to enact regulations for the purpose of carrying out its functions,832 functions which include ‘the control of public places’.833 This view has been upheld in Goyma v Moore (‘Goyma’).834

829 DCC By-law 21(2)(a)(ii). 830 DCC By-law 20. 831 DCC By-law 19 provides: ‘An officer or employee, authorised person or person appointed by the Council for the purpose or, without derogating from their general power, members of the Police Force, are hereby authorised to arrest or remove persons offending against these By-laws.’ 832 Section 182(1) provides: ‘A council may make by-laws, not inconsistent with this Act, the Regulations, another Act or, subject to subsection (2), regulations other than regulations under this Act,

239

3 History of Previous Regulations Prohibiting Camping or Sleeping in a Public Place

DCC By-law 103 has been in place since 1994, as a part of the Darwin City Council By-laws 1994 that repealed Darwin (Control of Public Places) By-laws 1987. The Darwin (Control of Public Places) By-laws 1987 had provided for similar, but not identical, regulation of sleeping and camping in public places. When first introduced in 1987, the Darwin (Control of Public Places) By-laws 1987 had prohibited camping in a public place835 and also sleeping in a motor vehicle or tent in a public place.836 They had also included a power to remove a person from a park, garden or reserve if the person had breached a by-law. Council could ban the person from the place for up to six months.837 By amendments passed in 1988 (‘the 1988 Amendments’),838 the Council consolidated By-law 54(8) which outlawed camping in a public place with By-law 55, the anti-sleeping law. In addition, it introduced a general prohibition on sleeping in a public place, rather than only if the person was sleeping in a motor vehicle or tent. The 1988 Amendments also extended the power of the Council to remove a person from the Darwin Mall in Smith Street.839

Prior to the 1987 By-laws, previous regulations also provided, in slightly varied forms, provisions that prohibited camping in public places. For example, By-law 18.02 of the By-laws of the Municipality of Darwin 1959 provided as follows:

No person shall reside upon, occupy, or use, or continue to reside upon or use, any reserve except in accordance with the purposes or objects for which the Council has or holds the same.

for or in relation to the performance of a function vested in it and which may be made to apply to the whole, or separately to a part or parts of, its council area.’ 833 Local Government Act 1993 (NT), Schedule 2. 834 [1999] 154 FLR 298. 835 By-law 54(8). 836 By-law 55. 837 By-law 56. 838 By-law 5 of Amendment of Darwin (Control of Public Place) By-laws, No 46 of 1988. 839 By-law 5 of Amendment of Darwin (Control of Public Place) By-laws, No 46 of 1988.

240

No person, without the permission of the Council, shall camp, lodge, or tarry overnight, or frequent for the purpose of camping, lodging, or tarrying overnight, in the open air in any reserve, except upon any reserve for camping purposes.

The term ‘reserve’ was defined to mean ‘any reserve, park, pleasure ground, garden, or other land under the control of the Council’ (by-law 18.01).

Accordingly, it may be seen that there has been some form of prohibition on sleeping in public places in Darwin since at least 1959. According to Tomlinson, ‘since at least 1978, Darwin City Council has had officers warning people to stop camping in public spaces and seizing their property if they refuse to leave.’840 Indeed, DCC By- law 103 is narrower in its terms than some of its predecessors in confining the sleeping prohibition to the time between sunset and sunrise (see for example, Darwin (Control of Public Places) By-laws 1987, By-law 55).

4 Possible Defences to DCC By-law 103

DCC By-law 103(1) is a regulatory offence and accordingly only limited defences to a charge are available. Those defences are set out in the Local Government Act 1993 (NT) and under the Criminal Code (NT). Section 192 of the Local Government Act 1993 (NT) provides as follows:

(2) It is a defence to a prosecution for a regulatory offence under subsection (1) if the defendant proves, on the balance of probabilities, that:

(a) any contravention or failure to comply constituting the offence occurred:

(i) in an emergency and was necessary to preserve life or prevent injury or protect property; or

840 John Tomlinson, 'Homeless and in Darwin - no peace in the long grass' (2005) On Line Opinion at 19 December 2006.

241 (ii) due to the unforeseen and unsolicited intervening act of another party or to overwhelming natural forces such as lightning, tempest, flood or earthquake; or

(b) the defendant did not intend to commit the offence, and that:

(i) where it is alleged that anything required to be done was not done, the defendant took all reasonable steps to ensure that it was done; or

(ii) where it is alleged that anything prohibited was done, the defendant took all reasonable steps to ensure that it was not done.

A successful defence under s 192 of the Act requires evidence that the defendant did not intend to fall asleep or camp and took all reasonable steps to prevent doing so; that the act of camping or falling asleep in a particular place at that particular time was ‘necessary to preserve life or prevent injury’; or that the act of falling asleep was caused by ‘overwhelming natural forces.’ It is suggested that none of these arguments would be sustainable on the common set of facts where a person chooses to fall asleep in public space by reason of not having an alternative appropriate form of accommodation available to them, perhaps with the exception of the unlikely and arguably impossible fact scenario of a person having first attempted to gain access to available accommodation services in Darwin just prior to their offending behaviour.

The other available defences are located in Part 11 of the Criminal Code (NT). Part 11 sets out the general criminal defences that may usually be relied upon for defending a criminal charge, such as authorisation, justification or excuse.841 However, s 22 of the Criminal Code (NT) provides as follows:

22. Exclusion of regulatory offences

841 Under s 23 of the Code, ‘[a] person is not guilty of an offence if any act, omission or event constituting that offence done, made or caused by him was authorized, justified or excused.’ Section 24 provides that ‘[a]ny event resulting from an act or omission that was authorized, justified or excused is, accordingly, authorized, justified or excused.’

242 Except for sections 26(1)(c) and (d) (and sections 23 and 24 to the extent necessary to give effect to section 26(1)(c) and (d)), 30(3) and 38, this Part does not apply to regulatory offences.

As such, in the case of regulatory offences, only the defences to a criminal charge set out in s 26(1) (c) and (d) of the Code are available. Section 26 is as follows:

26. Execution of law, &c.

(1) An act, omission or event is authorized if it is done, made or caused –

(a) in the exercise of a right granted or recognized by law;

(b) in execution of the law or in obedience to, or in conformity with, the law;

(c) in obedience to the order of a competent authority whom the person doing, making or causing it is bound by law to obey, unless the order is manifestly unlawful; or

(d) subject to subsection (3), pursuant to authority, permission or licence lawfully granted.

(2) Whether an order is or is not manifestly unlawful is a question of law.

(3) A person cannot authorize or permit another to kill him or, except in the case of medical treatment, to cause him grievous harm.

Section 26(1)(c) deals with acts done in compliance with an order of a competent authority and is therefore not likely to apply to the situation of people living in the long grass. Section 26(1)(d) provides that a person is not guilty of an offence if the act (not being the act of killing someone or causing them grievous bodily harm) was done, made or caused pursuant to authority, permission or licence lawfully granted. So, for example, a person would have a defence if they could establish, on a balance

243 of probability,842 that the Council had given them permission to camp. As shown in the next section, DCC has a policy of not giving permission to people to camp or sleep in public places except in highly exceptional circumstances, which does not include being ‘homeless’.

In contrast to DCC By-law 103(1), By-law 103 (3) is not a regulatory offence. This is the provision that makes it an offence for a person who has contravened DCC By-law 103(1) to then fail to comply with a direction to leave the public place, or to remove their camping gear. The power to issue the direction is not subject to any limitation, such as reasonableness. As a non-regulatory offence, the usual criminal law defences are applicable to a charge under DCC By-law 103(3), including an argument based on authorisation, justification or excuse under ss 23 and 24 of the Criminal Code (NT). However, a person would need to establish authorisation, justification or excuse for failing to comply with the direction, not the act of camping or sleeping itself. Consequently, it is difficult to see how the homeless condition of a person could be used to argue such a defence. A person who is awake and issued with a direction to move on is usually able to comply by leaving the public place, even if on a temporary basis. Of course, at some later stage, a homeless person will need to again find a place to sleep for the night.843

5 Permits under DCC By-law 103

DCC By-law 103(1)(e) provides that a person does not commit an offence if they have a permit to carry out an act (such as sleeping between sunset and sunrise) which is otherwise proscribed under the provision. DCC By-law 13 and 14 are the enabling provisions regarding the making of applications to the Council for the issuing of permits and licenses generally. Under DCC By-law 14(2), an application for a permit

842 Section 440 of the Criminal Code (NT) provides as follows: (1) Any matter that has to be proved by the defence in a trial must be proved on the balance of probabilities; otherwise the standard of proof is proof beyond reasonable doubt. (2) Subsection (1) does not apply in relation to the proof of facts necessary for determining whether evidence should be admitted or excluded. 843 For a general discussion of the criminal law defence of excuse, see Pregelj v Manison [1987] NTSC 76.

244 must be in accordance with the approved form. Darwin City Council policy provides that ‘[w]here Council has discretion to determine whether or not to issue a licence or permit or give approval for a matter under its control it will take into account expressed community views in determining whether issuing such a licence, permit or approval is in the public interest.’844

In 1999, the Darwin Community Legal Service (‘DCLS’) represented 20 Indigenous people who were living in public places, at least some of whom had variously either been warned or fined under DCC By-law 103. DCLS agreed to assist the clients to make applications for permits. The DCC informed DCLS that it did not have an ‘approved form’ upon which people could make an application for a permit under by- law 103. DCLS created its own forms, and on 9 June 1999, the Centre assisted the clients to lodge their applications with the DCC. Applicants provided various reasons for their need for a permit, such as:

Father is alive. Living at Galiwinku, Mother deceased – wants to stay in Darwin.845

My brother’s wife is very ill. Doctors say that we should stay in Darwin until she gets better, need housing.846

[Relative] goes to the hospital for dialysis treatment, we look after [relative] on the beach, he was not given a house.847

Been trying hard for 9 year's with Department of Housing Commission to get house.848

844 Darwin City Council, Licences, Permits, Etc - Public Interest Policy - Adopted on 25 February 1997, Reviewed on 12 June 2007 (2007) Darwin City Council at 4 September 2007. 845 Application for Sleeping Out Permit, Marked No 1, Four Applicants, 9 June 1999. 846 Application for Sleeping Out Permit, Marked No 2, Six Applicants, Undated. 847 Application for Sleeping Out Permit, Marked No 3, Six Applicants, 9 June 1999. 848 Application for Sleeping Out Permit, Marked No 4, Four Applicants, 9 June 1999.

245 On 21 June 1999, the Council refused all applications, stating that it was ‘unable to give permission for persons to utilise public places for camping or sleeping overnight for any of the reasons listed’ on the applications.849 DCLS responded on 22 June 1999 with a request for ‘a copy of the reasons for [the] decision’ and also ‘any Council policy documents upon which your decision was based.’850 On 2 July 1999, the Council replied, stating that

[c]ouncil policy is to actively deter people from camping or sleeping in public places within the municipality by the enforcement of By Law 103. The overall community view expressed to Council alderman is that this activity is not wanted or accepted. In response to community representation Council created the public places patrol program and Council officers are rostered 4 days a week over a 13 hour a day.851

The letter refers to an attached administrative policy but it is not possible to locate the policy provided under cover of this correspondence. DCLS made a further request for a copy of the DCC policy regarding the issuing of permits under by-law 103 in November 2001. The Council policy in place at that time provided as follows:

Applications for permits allowing persons to camp or sleep out overnight within the municipality will be considered for the following reasons:-

Security for events being held, or public works being performed

Person/s who are required to stay our overnight/s to fulfil a work function

Events that show a requirement that sleeping out is actually part of the event, e.g. Scout Association corroboree or jamboree

849 Darwin City Council, 'Letter from Tim Merrigan, Regulatory Services Supervisor, Darwin City Council to Darwin Community Legal Service, 21 June 1999' (1999). 850 Letter from Darwin Community Legal Service to Tim Merrigan, Regulatory Services Supervisor, Darwin City Council, 22 June 1999. 851 Letter from Tim Merrigan, Regulatory Services Supervisor, Darwin City Council to Darwin Community Legal Service, 2 July 1999.

246 Organisations that fundamentally need to camp or sleep within confines of public areas that they already have permission to utilise, such as a circus.

A permit to camp or sleep at a public place does not allow the person/s to have fires.852

This policy is not currently available on the Darwin City Council website. The policy as at November 2001 did not direct the Council to consider exercising its discretion under DCC By-law 103 to issue a permit to a person to camp. It did not take into account that a people could not find alternative appropriate accommodation and were therefore ‘homeless.’ Further, the policy made no provisions for directing council officers patrolling public areas to inform people that they have the option of making an application to the DCC for a permit under by-law 103. Evidence of the practice of the DCC responses to applications for permits is consistent with the policy of not issuing permits to people to camp in public places because they are homeless. Between 1994 and February 2002, the Council had issued only two permits under by- law 103:

Permits issued by Council for persons to sleep in public places are few and far between. Two permits have been issued since 1994 allowing person to sleep in a public place – one for the bone density testing caravan which was touring Australia. The permit allows the two occupants to occupy the caravan within the Casuarina Library car park where it was set up. The second permit was issued to the Scout Association for approximately 30 persons to sleep over night at Mindil Beach.853

Additional records currently available also show that the DCC has not issued any permits to members of the public under DCC By-law 103 since February 2002. Table A below sets out the statistics for all permits issued by the DCC on a month-by-month basis, between January 2002 to July 2007.

852 Email from Maree Williamson, CSHA Section, Housing Support Branch, Commonwealth Department of Family and Community Services to Cassandra Goldie, 19 March 2004 (Number 1). 853 Letter from Tim Merrigan, Regulatory Services Supervisor, Darwin City Council to Darwin Community Legal Service, 14 February 2002.

247 Table A: Permits issued by Darwin City Council between January 2002 and July 2006

Stall Street On Street Hand Sleeping Other TOTAL Holders Parades Parking Bills 2002 Jan 0 2 3 0 0 NA854 5 Feb 0 1 0 0 0 1 March 0 2 3 0 0 5 April 1 8 5 3 0 15 May 1 5 2 3 0 11 June 0 4 5 1 0 10 July 3 2 6 3 0 14 Aug 0 3 3 2 0 8 Sept 0 1 3 0 0 4 Oct 0 1 3 0 0 4 Nov 0 3 2 0 0 5 Dec 0 1 0 0 0 1 2003 0 83 Jan 0 1 0 0 0 1 Feb 0 4 0 0 0 4 March 0 5 0 0 0 5 April 0 8 0 0 0 8 May 0 3 2 0 0 5 June 0 7 2 0 0 9 July 0 6 5 0 0 11 Aug 0 3 2 0 0 5 Sept 0 5 0 0 0 5 Oct 0 1 0 0 0 1 Nov 0 2 0 0 0 2 Dec 0 1 1 0 0 2 2004 58 Jan 0 2 0 0 0 2 Feb 0 1 2 0 0 3 March 0 3 2 0 0 5 April NA NA NA NA NA NA NA855

854 In March 2005, Darwin City Council introduced a new category of ‘Other’ in its recording of Issued permits.

248 May 0 1 0 0 0 0 June 0 3 3 0 0 6 July 0 2 1 0 0 3 August 0 4 0 0 0 4 Sept 0 2 0 0 0 2 Oct 0 4 0 0 0 4 Nov 0 2 0 0 0 2 Dec 0 2 0 0 0 2 2005 33 Jan 0 5 0 0 0 5 Feb 0 0 6 0 0 6 Mar 0 3 0 0 0 3856 6 April NA NA NA NA NA NA NA857 May 0 5 0 0 0 3858 8 June 0 3 1 0 0 0 4 July 0 5 0 0 0 0 5 August 0 8 2 0 0 0 10 Sept 0 1 0 0 0 0 2 Oct 0 1 0 0 0 0 1 Nov 0 1 0 0 0 0 1 Dec 0 2 0 0 0 0 2 2006 0 50 Jan 0 3 1 0 0 0 4 Feb 0 2 0 0 0 0 2 March 0 1 0 0 0 0 1 April 0 9 0 0 0 0 9 May 0 5 0 0 0 0 5 June 0 5 0 0 0 0 5 July 0 1 1 0 0 0 2 August 0 3 0 0 0 0 3 Sept 0 1 0 0 0 0 1 October 0 4 0 0 0 0 4

855 Data for April 2004 is not available to download at http://www.darcity.nt.gov.au/aboutcouncil/council_overview/archive_minutes.htm. 856 Permits were not for Sleeping. 857 Data for April 2005 is not available to download at http://www.darcity.nt.gov.au/aboutcouncil/council_overview/archive_minutes.htm 858 Permits for ‘Other’ are not specified in the Regulatory Services Report Monthly Report 2005.

249 Nov 0 4 0 0 0 0 4 Dec 0 0 0 0 0 0 0 2007 0 50 Jan 0 6 0 0 0 0 6 Feb 0 6 0 0 0 0 6 March 0 1 0 0 0 0 1 April 0 6 0 0 0 0 6 May 0 9 0 0 0 0 9 June 0 5 0 0 0 0 5 July 0 4 0 0 0 0 4 TOTAL 0 311

These statistics have been extracted from monthly reports prepared by the DCC Director of Community Services, tabled at monthly Council Meetings.859 Each report contains a table of permits issued by the DCC during that month. Notably, the table does not include a column for permits issued under DCC By-law 103.

6 DCC Public Places Program Available evidence indicates that, whilst legal regulations prohibiting sleeping in public places have been in place for decades, the Council policy or practice regarding the exercise of the discretion to enforce the by-laws against Indigenous people using public places, and the available resource to do so, may have varied significantly over time.

The current DCC By-law 103 was developed as a result of a review that commenced in 1991,860 following complaints regarding ‘itinerants [sic] use of parks, camping,

859 See Darwin City Council, 'Regulatory Services Monthly Reports - Bundle' (Various), available at Darwin City Council, Council and Committee Meetings (2008) at 20 February 2008. 860 Simmering v Darwin City Council (2003) Federal Magistrates Court of Australia in Darwin, File Number DZ 4 of 2003, Affidavit of Diana Leeder dated 16 April 2003, 3.

250 washing, defecating, urinating, litter etc’861 and public meetings in 1990. According to a former Community Services Manager of the DCC, between 1991 and the adoption of the 1994 By-laws,

the Council established the Lord Mayor’s Working Party on Itinerants, the Town Camps Advisory Committee and a number of networks and communication strategies related to itinerants. Members of the itinerant community and local indigenous organisations were represented on various committees and working parties. The by- laws and the Council’s practices and procedures were included in the matters considered.

The Council also employed an Aboriginal worker from the Larrakia Nation whose role was to consult with indigenous people.862

The Lord Mayor’s Working Party on itinerant Issues, established in 1991, consisted of government and non-government organisations. Its brief was to develop long, medium and short-term strategies for addressing the problems associated with itinerants throughout the city. The issues it considered included:

Increasing legal sanctions and the resultant effect on enforcement resources as well as issues of discrimination, criminalisation of homeless people and infringement of human rights.

The need for sites to be identified where itinerants may legally camp or sit down and the piloting of a dry, daytime sit down camp, serviced by existing agencies.863

This Working Group went into recess in April 1992 and did not reform. However, in June 1992, the Council issued a directive to its enforcement officers that stated that:

861 Facsimile from Jarry Kovarik, Office of the Minister for Health Services to Anti-Social Behaviour Sub Committee, 25 September 1995. 862 Simmering v Darwin City Council (2003) Federal Magistrates Court of Australia in Darwin, File Number DZ 4 of 2003, Affidavit of Diana Leeder dated 16 April 2003. 863 Memorandum from Diana Leeder, Community Services Manager, Darwin City Council Re: Dealing with Groups of Itinerants for DCC City Inspector for Inspectors Notice Board, 26 August 1992.

251

You are all aware that we do not have either the resources or the legal powers to prevent groups from gathering throughout the municipality. Our concerns must be with those infringement of the by-laws which cause complaint from residents or which deny others reasonable access to public facilities and areas.

Enforcement officers were directed to follow guidelines which included:

Inform itinerants of the possibility of court action as a last resort, not an introductory statement…

Give out garbage bags and ask them to pick up litter…

When a camp is dispersed, personal items are to be stored at the Dept so that they can be reclaimed.

Report itinerant problems or new camp areas etc to the Senior Municipal Inspectors office, preferably in written form, so that accurate statistics of the problem can be maintained to assist in decision making on resolution of the problem.

Significantly, in 1992, ‘[a]greement was also reached in relation to unofficially condoning the illegal camping problem when it was out of sight and to act upon complaint, but also to provide for rubbish collection and insist that people within the groups be responsible for keeping the area they inhabited tidy.’864

Introduced by the Council in 1996, the DCC Public Places Program continues to operate today.865 The Program involves a morning and afternoon patrol of the beach fronts and other public places. Council officers patrol the areas to enforce DCC By- law 103, Monday to Friday. The council officers are responsible for issuing warning notices, and infringement notices for breaches of the by-law. Contrary to the earlier

864 Facsimile from Jarry Kovarik, Office of the Minister for Health Services to Anti-Social Behaviour Sub Committee, 25 September 1995. 865 Interview with Neil Dyer, Supervisor, Regulatory Services Section, Darwin City Council (Darwin, 31 October 2003).

252 1992 agreement to tolerate the ‘illegal camping problem’, according to the Darwin City Council Public Places Procedures,

The aim of the public places program is to minimise as much as possible breaches of By Law 103, in particular persons camping/sleeping in public places, the obstruction of public facilities and litter. The program also with help from the Northern Territory Police helps reduce the instances of anti social behaviour, such as consuming alcohol in non exempt areas and fighting.

The Public Places Program is fully funded for four officers, two vehicles and various other budget items such as stores issue.

Two shifts operate between 6.00am and 7.00pm Monday to Friday. Starting and finishing times for each is as follows, 6.00am to 2.15pm early shift, and 10.45am to 7.00pm late shift. …

When utilising the [anti-camping provision of by-law 103], there is a requirement that some form of indication of camping is present. The minimum indication is a ground cover of cover, ie plastic sheet, cardboard, swag, blanket…

To gain the most successful outcome for [the anti-sleeping provision of by-law 103], you need to observe the person who is over 18 years of age asleep before sunrise. There is no ability for the By Law to allow defences for prosecution, eg being drunk and falling asleep. If you have to wake someone up then they were asleep. If you observe someone asleep 10 minutes after sunrise then that person will need to be interviewed with a caution and admit to sleeping prior to sunrise. Sunrise is determined by the meteorology bureau and both vehicles carry sun set sun rise times for the year.866

866 Darwin City Council, 'Public Places Procedure Incorporating General By Law Work' (2007), provided by Tim Merrigan, Regulator Services Supervisor, Darwin City Council to author on 20 May 2007 at offices of the Council in Darwin.

253 Accordingly, the Program involves dedicated council officers, skilled in the enforcement of DCC by-law 103, regularly patrolling areas known to be inhabited by people who are likely to be offenders. These patrols are repeated every morning and night, five days a week. In January 2001, the Council restructured its Regulatory Services area so that the Public Places Program was staffed by the same council officers on a permanent basis. According to the Council,

[t]his has allowed officers to obtain an intimate working knowledge of public places duties and take ownership for the program and created knowledge sharing in the section and retention of policies and procedures. Previously, allocation of resource meant an area might have received attention until groups of people started regularly drinking there and leaving unsightly litter. Now officers are able to be more proactive and more often deal with circumstances as they arise. Where people drink in exempt areas, officers are talking to the group sooner and issuing garbage bags to make sure litter is not left on the ground.867

There was a strong perception that, with the introduction of the Program in 1996, the number of warnings and infringement notices increased dramatically. For example, in 2002, Dr Bill Day, an anthropologist living with the people at Fish Camp on the Kulaluk lease stated in a letter to the Anti-Discrimination Commission of the Northern Territory that

[i]n [2001], the number of infringements issued has almost trebled…868

The camps [at Kulaluk and Lee Point] exist because of a failure to provide a special need; the pressures on the more established camps comes from the enforcement of DCC programs; the increase in homeless Aborigines living on the Kulaluk lease is because DCC policies and programs are not in force there. From the granting of the lease in 1979 until the beginning of the present Public Places Programs, there was no

867 Darwin City Council, '2000-2001 Annual Report' (Darwin City Council, 2001), 51. 868 The author, Bill Day, is unable to confirm the source of this statistic.

254 similar problem with camps on Kulaluk land. In short, it is incorrect to say DCC has no involvement in present conditions at Kulaluk and Lee Point.869

The role of the DCC Public Places Program in increasing the enforcement of DCC By-law 103 is supported by the following report by the Northern Territory News on 26 March 1996:

The push is on in earnest to remove itinerants from the Darwin area.

Lord Mayor George Brown yesterday confirmed reports that about 80 people had been booked under council by-laws in the past fortnight for sleeping in public. Mr Brown who has said that the only way to deal with itinerants was to ‘harass, harass and harass’ is making no apologies for the current campaign. …

He claims Aboriginal community leaders share his concerns and are just as anxious as he is to prevent the flow of people to Darwin from the ‘dry’ communities, where the majority of itinerants come from.870

However, as will be shown below, the way in which DCC By-law 103 has been enforced has varied significantly over time, verified by available statistics from the DCC Regulatory Services Monthly Reports.

7 Enforcement Procedures for Infringement of DCC By-law 103 Prior to the decision in Goyma, discussed further below, the DCC prosecuted alleged offenders of DCC by-law 103 under the Justices (Territory Infringement Notices Enforcement Scheme) Regulations (‘TINES’), established under the Justices Act (NT).

Under the TINES Scheme, the Council officer issued the infringement notice to the person. If payment of the fine of $50 was not received within 14 days, the Council issued a ‘Courtesy Letter’. People living in public places would rarely receive this

869 W. Bartlett Day, Aboriginal Fringe Dwellers in Darwin, Australia: Cultural Persistence or a Culture of Resistance? (PhD Thesis, Department of Anthropology, University of Western Australia, 2001), 221. 870 Editorial, 'Where Can They Sleep?' Northern Territory News (Darwin), 26 March 1996.

255 Courtesy Letter because it did not need to be personally served. Unless payment was received within a further 28 days, the matter would immediately proceed to a warrant for the arrest and detention of the offender for non-payment of the fine, which, by that stage, was in the order of $155 for each offence including costs. A person could spend four days gaol for each offence.871

In Goyma, the TINES scheme, applicable to a wide range of regulatory offences, was found to be unlawful. As a result, the Northern Territory Government overhauled its fines enforcement scheme and introduced the Fines and Penalty (Recovery) Act 2002 (NT). The new scheme became operational on 2 January 2002, managed through a dedicated Fines Recovery Unit (‘FRU’).872 According to the Northern Territory Government, ‘[o]ne of the main goals of the FRU is to reduce the number of fine defaulters who are imprisoned. The FRU provides payment options that will hopefully reduce the imprisonment rate and recover Government revenue.’873 A person may only face imprisonment, at the discretion of the FRU, if they fail to complete a community work order or, indirectly, if they drive a vehicle whilst their license has been disqualified. Statistics from the FRU show that, since the commencement of the new scheme, whilst enforcement orders have been registered with the FRU for court-imposed fines on 17 occasions (12 Indigenous persons, and 5 non-Indigenous persons), as predicted, no person fined under DCC By-law 103 has been imprisoned for non-payment of a fine.874

Council officers now routinely issue a formal documented warning to an alleged offender, prior to issuing an Infringement notice. The Council introduced this further step in the enforcement procedure in 2002, as a result of comments from a presiding Magistrate, who suggested that officers should warn people prior to issuing an infringement notice and record the warning. The formal documented warning is to

871 Mary-Lynn Griffith, 'By the By!' (1999) 24(5) Alternative Law Journal 245, 246. 872 Northern Territory Government, Fines Recovery Unit (2003) at 8 February 2004. 873 Northern Territory Government, Fines Recovery Unit (2003) at 8 February 2004. 874Northern Territory Fines Recovery Unit, 'Fines Recovery Unit Court Fines DCC by law 100 and 103 Report provided by Malika Okiel, Director, Fines Recovery Unit' (2007).

256 enable the Council to produce evidence about prior warnings if a person is subsequently prosecuted.875

According to the former Community Services Manager, ‘[c]ampers are warned in the first instance and advised verbally that they may not camp in a public place within the municipality. A repeated offence leads to a written notice advising of the offence and implications of continuing to camp etc. An infringement notice is only issued when warnings have been ignored.’876

875 Interview with Neil Dyer, Supervisor, Regulatory Services Section, Darwin City Council (Darwin, 31 October 2003). However, note that under the Darwin City Council, 'Public Places Procedure Incorporating General By Law Work' (2007), Public Places Program Council officers are advised that ‘[t]here is a general rule of thought that if it is a regulatory offence you are issuing an infringement on then there is no requirement for a caution to be issued. This unfortunately can’t be guaranteed 100% once an infringement is challenged and ends up in court. The courts can be fickle at times and may dismiss cases on such things that we as officers thought would stand up in court. If you are to question anybody on a regulatory offence that has not been observed by you then you will need to issue a caution. For non regulatory offences, cautions are mandatory.’ 876 Simmering v Darwin City Council (2003) Federal Magistrates Court of Australia in Darwin, File Number DZ 4 of 2003, Affidavit of Diana Leeder dated 16 April 2003, 4.

257 8 The Impact of DCC By-law 103 on People Living in Public Places in Darwin Some statistics have been published that provide an indication of the impact of DCC law 103 on people living in public places. See Table B below.

Table B: Darwin City Council Public Places Program 2002 and 2003 – Reported Statistics of People Spoken to or Observed, Notices Issued and Infringements Issues

2002 2003 People Notices Infringements People Notices Infringements Spoken To/ Issued Issued Spoken To/ Issued Issued Observed Observed January 3947 29 4 January 2314 6 0 February 2854 10 8 February 2188 6 0 March 4664 30 8 March 3900 9 0 April 4305 26 9 April 3865 9 10 May 3498 22 11 May 3114 34 10 June 2576 17 4 June 3066 39 1 July 1999 92 2 July 2418 46 0 August 1917 41 6 August 3145 27 1 September 2577 85 9 September 2851 19 0 October 3353 50 0 October 3008 15 0 November 3649 1 0 November 2958 12 0 December 3516 9 1 December 2459 6 0 TOTAL 38 855 412 62 TOTAL 35 286 228 22

258

Table B: Darwin City Council Public Places Program 2002 and 2003 – Reported Statistics of People Spoken to or Observed, Notices Issued and Infringements Issues (continued)

2004 2005 People Notices Infringe People People Notices Infring Spoken To/ Issued ments Spoken To Observed Issued ements Observed Issued Issued Jan 1515 3 0 Jan NA877 Feb 3977 13 2 Feb 1785 3411 19 0 Mar 4227 10 0 Mar 1893 2366 14 0 April NA878 Apr NA879 May 3233 14 1 May 1261 1889 47 0 June 2445 70 0 Jun 1632 1297 88 0 People People880 Notices Infringe spoken to Observed Issued ments Issued July 916 1882 72 0 July 1288 1293 12 0 Aug 967 1412 55 3 Aug 1112 2965 107 0 Sept 810 1409 49 0 Sept 1675 2153 84 0 Oct 1013 1892 46 0 Oct 2000 1991 44 0 Nov 1176 2073 32 4 Nov 1125 2565 9 0 Dec 1449 2418 25 0 Dec 978 2537 12 0 TOTA 21728 11086 389 10 TOTA 13749 22467 436 0 L L

877 Darwin City Council Report not able to be downloaded from the website. 878 Darwin City Council Report not able to be downloaded from the website. 879 Darwin City Council Report not able to be downloaded from the website. 880 From July 2004, Council reports separated out the two categories of People Spoken To, and People Observed.

259

Table B: Darwin City Council Public Places Program 2002 and 2003 – Reported Statistics of People Spoken to or Observed, Notices Issued and Infringements Issues (continued)

2006 2007 People People Notices Infringe People People Notices Infring Spoken To Observed Issued ments Spoken Observed Issued ements Issued To Issued Jan 985 2258 10 0 Jan 729 2382 29 0 Feb 1244 2803 27 0 Feb 1246 2167 24 0 Mar 1148 2741 34 1 Mar 746 2194 10 0 April 617 2458 11 0 Apr 724 2185 24 0 May 601 1965 51 3 May 692 1632 59 0 June 540 1475 121 1 Jun 733 1999 58 0 July 919 1081 87 0 July 425 1631 94 0 Aug 437 1279 95 0 Aug Sept 836 1882 121 3 Sept Oct 992 1973 48 0 Oct Nov 951 2925 34 0 Nov Dec 970 1586 22 0 Dec TOTA 10240 24426 661 8 TOTA L L

The statistics are aggregated figures for all by-laws enforced under the DCC Public Purposes Program, including but not limited to DCC By-law 103. The full set of by- laws enforced by the Program is as follows:

• By-law 103 (1) (c) (sleeping) • By-law 103 (1) (a) (camping) • By-law 103 (1) (b) (erect tent/shelter) • By-law 103(4) (fail to comply with directions to cease breaching 103) • By-law 103 (5) (obstruct public facility) • By-law 100 (goods in public places) • By-law 107(5) (urinating and defecating in a public place); • By-law 18 (obstructing an officer)

260 • By-law 17(2) (failure to comply with notice to cease offending served under other by-laws such as 103).881

The DCC monthly reports do not provide a breakdown by reference to each by-law. However, some of the reports do provide a breakdown of ‘Infringements Issued’ during the same two year period. These statistics were reported in DCC Monthly Reports from January 2002 until September 2003, but reporting discontinued from the October 2003 Monthly Report. See Table C below.

Table C Darwin City Council Public Places Program 2002 and 2003 – Reported Statistics of Infringements Issues by By-law Type

Formal Infringements Issued 2002 Sleeping/Camping/ Goods in Public Urinate/Defecate Tent/Shelter Places (By-law 107(5)) (By-law 103) (By-law 100) January 4 0 0 February 8 0 0 March 8 0 0 April 5 0 4 May 11 0 0 June 4 0 0 July 1 1 0 August 4 1 0 September 9 0 0 2003 April 9 0 1 May 9 1 0 June 0 0 1 July 0 0 0 August 0 0 1 September 0 0 0

881 Darwin City Council, 'Regulatory Services Monthly Report for September 2003' (Report No 03C0409 PC:kl, Darwin City Council, 2003), 3.

261

Formal Infringement Notices were issued on 81 occasions, with 72 (89%) being for sleeping, camping or erecting a tent or shelter in a public place under DCC By-law 103. The other 9 infringements related to either leaving goods in a public place, or urinating or defecating in public. No infringement notices were otherwise issued for these reported months.

The DCC states that it does not discriminate against people on the grounds of their race with respect to the enforcement of DCC By-law 103. Council policy affirms this position.

Community Relations Ensure all people are treated in an equitable manner and in a manner which reflects the status of a Council officer.882

In addition, under Council Policy regarding ‘Itinerants’, Council officers are expected to ‘[p]rovide education and adopt a personal approach when dealing with itinerants in Darwin.’883

However, available statistics indicate that DCC By-law 103 is clearly having a disproportionately high impact on people who are Indigenous, including those people who have come to the urban area from remote Indigenous communities. The majority of people against whom formal infringement notices were issued during 2002 and 2003 were from other towns or communities in the Northern Territory (68%) or from the greater Darwin region (21%) with only 11% from interstate or overseas. See Table D below. Once again, these statistics were no longer provided in DCC Monthly Reports from October 2003. These statistics align with the Memmott and Fantin research on where people living in the long grass originated, with 77% coming from other communities in the Northern Territory.884

882 Darwin City Council Decision No 16\5318 (13/03/95). 883 Darwin City Council, Itinerants Policy - Adopted on 25 February 1997, Reviewed on 12 June 2007 (2007) at 4 September 2007. 884 See Chapter Four.

262 Table D Darwin City Council Public Places Program 2002 and 2003 – Reported Statistics of Infringement Notices by reference to Origin of Person

Origin of Person

2002 Darwin/Town Other NT Communities Interstate/Overseas Camps/Palmerston January 1 3 0 February 2 6 0 March 7 1 0 April 0 5 4 May 0 11 0 June 1 3 0 July 0 2 0 August 1 2 1 September 3 2 4 2003 April 1 9 0 May 1 9 0 June 0 1 0 August 0 1 0 TOTAL 17 55 9

The town camps and Palmerston have been grouped together with people who are resident in Darwin because they are not tourists, nor ‘visitors’ from remote communities around the Northern Territory. In other words, the people in this group do not fall into the two categories of people whom the DCC has proposed are the primary targets of the by-law. It should also be noted that the report does specify the criteria used to identify ‘Where From’. It may be that people who state that they are ‘from’ a named remote community in the Northern Territory have in fact been living in Darwin for a lengthy period of time, even years, but will continue to identify the remote location as ‘home’.

DCC does not publish enforcement data by reference to whether or not the person is Indigenous. However, available data, obtained through court proceedings, supports the above statistics that indicate that Indigenous people have been the primary targets

263 of the by-law. Between 1 February 2001 and 31 January 2002, 92 people had been issued with an infringement notice, with 29 being withdrawn. No one had been jailed. Of the 92 people issued infringement notices between 1 February 2001 and 31 January 2002, about 70% of the people were Indigenous.885 This percentage may be contrasted with the general population of Darwin, with 9% being Indigenous.886 The percentage is however consistent with the ABS Census data which found that about 62% of people in the primary homelessness category were Indigenous.887

Overall, there has clearly been a significant drop in the practice of issuing formal infringement notices. For example, whilst 62 were issued in 2002, this figure has progressively decreased: 22 (2003); 10 (2004); 0(2005); 8 (2006) and 0 to July 2007. However, this trend should be seen in the context of the successful challenge to the TINES scheme in Goyma, and the introduction of the FRU in 2002, following which Council has been required to personally serve people in order to proceed to court for non-payment of the infringement notice. Further, between 1999, and the present time, the Northern Territory Community Harmony Project888 commenced and there has been a series of community and public policy initiatives aimed at increasing public awareness about the impact of DCC By-law 103 on people living in the long grass. Initiatives included direct advocacy, public protests, a CD Launch newsletters, several litigation strategies, and legal challenges.889

The drop in the number of formal infringement notices is evidence that DCC By-law 103 is now rarely used to criminalise people living in the long grass. However, the drop in formal enforcement does not necessarily indicate that DCC By-law 103 is no longer being used to forcibly evict people living in public space.

885 Letter from Darwin City Council to Human Rights and Equal Opportunity Commission, 18 April 2002. 886 Paul Memmott & Shaneen Fantin, The Long Grassers: A Strategic Report on Indigenous “Itinerants” in the Darwin and Palmerston Area (2001) 20. 887 See Chapter Four. 888 See Chapter Four. 889 See below.

264 As noted, the Council records every occasion upon which they speak to a person, observe them, issue them with an official warning notice, and issue an infringement notice. Despite the continuous operation of this Program, there has been no noticeable reduction in the number of people subject to these enforcement mechanisms, which typically amount to a ‘forced eviction’ or the person being warned to move on from where they are located. For example, in 2002, a total of 38 855 people were observed or spoken to. Since then, the figure has not significantly altered: 35286 (2003); 32814 (2004); 36216890 (2005); and 34666 (2006). See Table B, above. These statistics cover all by-laws enforced by the DCC Public Places Program. However, the reports from 2002 and 2003 indicate that that, at least in the case of infringement notices, almost 90% of them relate to DCC By-law 103. See Table C above.

The DCC states that the purpose of DCC By-law 103 is to target interstate and overseas tourists, as well as people coming in from remote communities around the Northern Territory, and the longer-term long grass population living in and around Darwin. However, of the 82 occasions upon which a person was issued with a formal infringement notice during the two year period from January 2002, 9 (11%) were issued to people from overseas or interstate. Fifty-five people (67%) identified as coming from another community in the Northern Territory, and 17 (22%) were from Darwin or Palmerston, its satellite city.

The monthly reports do not report whether a person was Indigenous. However, this information appears to be collected by the Council. As noted above, the DCC has previously reported that of the 92 infringement notices issued in 2001, some 70% were to Indigenous people.

The DCC Supervisor of Regulatory Services stated in late 2003 that there is a core group of people who continue to breach DCC By-law 103, and with this group, he acknowledged that the warnings appeared to have little effect.891 In 1999, journalist

890 Total is for 10 months only, as statistics for two months in 2005 are not available. 891 Interview with Neil Dyer, Supervisor, Regulatory Services Section, Darwin City Council (Darwin, 31 October 2003).

265 Paul Toohey had reported ‘But after five years of by-law 103, it is clear that the fines neither raise revenue nor deter people from returning to their camps.’892 These views are supported by the Memmott and Fantin research in 2001 about the population of Indigenous people living in public places and ‘unlawful’ camps around town. The research ‘found a similar range of groups [of ‘itinerants’ or ‘longgrassers’]’ at a similar set of locations to those groups and locations identified in 1991.’893 Memmott subsequently reported that ‘public place dwellers would simply be redistributed to other areas of the city or housed temporarily in the watch-house, before returning to the spaces from which they were originally removed.’894 The effect of the use of DCC By-law 103 and other move on powers to persistently evict Indigenous campers and family groups from stable camping areas is described as follows:

The effect of these by-laws in practice is that people cannot establish stable camps, near essential services such as toilets and clean water…[P]eople living in public spaces have tried to gather around public amenities so that they can live with access to these services but the patrols have successfully managed to move them out of sight.’895

9 Stated Purpose and Justification for DCC By-law 103 As part of the introduction of the Local Government Act 1993 (NT), a ‘Statement of Intent’ was issued about the purpose of council by-laws generally. It stated that by- laws about conduct in public places were to:

(1) ensure minimum standards of environmental amenity; and

892 Paul Toohey, 'A different kind of sleeping sickness in the Top End', The Australian (Darwin), 29 April 1999, 13. 893 Paul Memmott and Shaneen Fantin, '"The Long Grassers": A Strategic Report on Indigenous "Itinerants" in the Darwin and Palmerston Area' (Paul Memmott & Associates, 2001), 26. 894 Paul Memmott, 'Public Place Dwelling Indigenous People: Alternative Strategies to the Law and Order Approach (Draft of 26 February 2004)' (Aboriginal Environments Research Centre, 2004), 3. 895Letter from Darwin Community Legal Service to Lord Mayor George Brown, 4 December 2001.

266 (2) control activities that were detrimental to the reasonable use by the public.896

Over time, various DCC statements have been made about the purpose and intent of DCC By-law 103, specifically. For example,

21 June 1999: The by-law regarding sleeping in public places is about public safety. We have to protect the community and that’s why we have these by-laws.897

18 December 2001: The by-laws ensure that public areas intended to be used equally by all members of the community do not become de facto camping grounds for interstate and overseas tourists, whether caravaners, campers or back packers as well as visitors from remote communities and Darwin’s long term long grass community.898

5 April 2002: There are probably three categories of campers: Long Grassers, people who choose to live in the open basically. They’re not such a problem because they generally are out of the way in places and only occasionally do we get complaints about them from the point of view of litter or leaving their belongs around. But a second group are tourists from all over the country and all round the world who seem to think they have some right to pull up and camp wherever they like. And the third group is largely an Aboriginal group which is people who come to town on legitimate business, medical treatment or for business or family reason, or whatever, and when they get to Darwin, don’t actually have any accommodation. So they really find themselves faced with camping somewhere, usually in an open place. So there’s those three categories that we actually have to deal with. The major problem comes from the second two groups.899

896 Simmering v Darwin City Council (2003) Federal Magistrates Court of Australia in Darwin, File Number DZ 4 of 2003, Affidavit of Diana Leeder dated 16 April 2003, 3. 897 Former Lord Mayor, George Brown, cited in Mary-Lynn Griffith, 'By the By!' (1999) 24(5) Alternative Law Journal 245. 898 Email from Maree Williamson, CSHA Section, Housing Support Branch, Commonwealth Department of Family and Community Services to Cassandra Goldie, 19 March 2004 (Number 1). 899 Allan McGill, Chief Executive Officer of the Darwin City Council, interviewed in Damien Carrick, Homelessness and the Law - Part 2 (2002) Australian Broadcasting Commission .

267 16 April 2003: ‘The by-laws are necessary and reasonable as Darwin has always attracted visitors from interstate, overseas and elsewhere within the Northern Territory whose preference is for camping out rather than in established caravan parks and camping areas.’900

Accordingly, the stated objective is to prevent camping in public by interstate and overseas tourists, transient people coming in from remote Indigenous communities, and long-term long grassers. However, statements indicate a varied emphasis on which group may be considered the ‘main’ or ‘primary target group’ or groups.

The DCC has made a number of statements acknowledging the lack of appropriate accommodation and living areas for the Darwin population, and particularly for Indigenous people living in public space. Council resolutions in 1991 and 1992, cited above, recognised the need for ‘alternative shelter and accommodation options’ or ‘sites … where itinerants may legally camp or sit down’, respectively. In 1995, the DCC resolved to ‘support efforts to establish a northern suburbs accommodation area for long grass and visiting Aboriginal people.’901 Whilst the Council acknowledges that there is a lack of suitable accommodation available for Indigenous people in Darwin, it maintains that it is under an obligation to ensure the enjoyable use of public amenities for the public generally and that DCC By-law 103 is an important method for achieving this outcome. According to a senior Council officer, ‘[h]ousing and provision of accommodation is not a function carried out by municipal councils in the Northern Territory and the Council has a responsibility to carry out those functions for which it does have responsibility [including the regulation of public places]. Housing is a permissive not mandatory function of local government in the Northern Territory.’902 By a Council Decision that was taken in 1997 and reviewed in 2007, Council’s Housing Policy ‘aims to facilitate the implementation of Northern Territory and Commonwealth housing programs through Council’s general facilitation role in

900 Simmering v Darwin City Council (2003) Federal Magistrates Court of Australia in Darwin, File Number DZ 4 of 2003, Affidavit of Diana Leeder dated 16 April 2003, 3. 901Darwin City Council Decision No 16\5318 (13/03/95). 902 Simmering v Darwin City Council (2003) Federal Magistrates Court of Australia in Darwin, File Number DZ 4 of 2003, Affidavit of Diana Leeder dated 16 April 2003, 2.

268 Human Services.’903 There is no statutory obligation on the Darwin City Council to provide social housing services, generally, nor to specifically address the housing needs of the Indigenous residents of Darwin.

10 Summary

Data from the DCC Public Places Program demonstrates that DCC By law 103 is a primary legal regulation used by the Council to forcibly evict people living in public space, and to a much less extent, to criminalise their conduct. The DCC states that the aim of DCC By-law 103 is to protect people’s safety and to prevent public places becoming de facto camping areas at the expense of other users. The persons targeted by the enforcement of DCC by-law 103 are both overseas and interstate tourists as well as visitors from other Northern Territory communities. Available data does not enable a breakdown of how the by-law is enforced against an individual person living in the long grass. However, the available statistics suggest that, if, for example, in a twelve month period, some 35 000 warnings have been issued, amongst a population of say 500 people. The number of warnings has continued at this high level, unabated.

C Legal Challenges and Protests regarding the Use of ‘Move on’ Powers such as DCC By-law 103 against Indigenous People Living in Public Places

The use of public space laws against people in Darwin, such as DCC By-law 103, has been the subject of a number of legal challenges and community protests. A range of supporters and volunteers have been involved at various stages, as well as a range of non-government organisations, including the Long grass Association, Darwin Community Legal Service, the North Australian Aboriginal Legal Aid Service, and the Aboriginal Justice Advocacy Committee in Darwin.

This section is a chronological summary of some of the legal challenges associated with the criminalisation and forced eviction of people living in the long grass in Darwin. A detailed history of some of the legal challenges and community protests

903 Darwin City Council Decision No 17/1228 (25/02/97) (13/03/95).

269 between 1999 and 2001 is set out in Chapter Six of Bill Day’s PhD Thesis, Aboriginal Fringe Dwellers in Darwin: Cultural Persistence or Culture of Resistance?904 Only one matter, Goyma, has proceeded to hearing.

In June 1996, the Northern Territory Government evicted people from an established camp at Lee Point in Darwin under the control of the NT Department of Lands Planning and Environment. In September 1996, the late Bob Bunduwabi, who was one of the leaders at the Lee Point camp, lodged a complaint under the Anti- Discrimination Act 1992 (NT) (‘the Act’) with respect to the statements of the former Lord Mayor of Darwin, who Day quotes as saying of Aboriginal ‘itinerants’, inter alia,

“I reckon if you keep shifting them around, constantly harass them so they can’t settle, they will get sick and tired of it and maybe some will go back to their communities.’…Bob’s complaint…claimed that the mayor’s statements created ‘a climate of persecution against alleged “itinerants” including people like [Bob] who have lived in Darwin for many years (citations omitted).905

The basis of the complaint included the eviction of the campers from Lee Point and the anxiety and stress caused as a result. The Anti-Discrimination Commission (‘ADC’) accepted the complaint as a complaint of racial discrimination under s 19(1) of the Anti-Discrimination Act 1992 (NT), and also as a complaint of failing to accommodate a special need under s 24, and agreed to investigate it. Later that year, Bob Bundawabi and others returned to the camp at Lee Point and determined to remain at the camp site regardless of the threats of eviction by the NTG. The campers were then issued with a formal direction to leave under the Trespass Act 1987 (NT). The complainant did not have legal representation confirmed at that stage. However, the ADC allowed two non-Indigenous activists, Bill Day and Caroline Tapp, to represent him. Upon receipt of the direction to leave, Day and Tapp were successful in obtaining an interim order restraining the government from evicting the campers

904 W. Bartlett Day, Aboriginal Fringe Dwellers in Darwin, Australia: Cultural Persistence or a Culture of Resistance? (PhD Thesis, Department of Anthropology, University of Western Australia, 2001). 905 Ibid 213.

270 from the site, ultimately until 11 February 1997, to preserve the ‘status quo’. Sadly, during that time, on 22 January 1997, Bob Bundawabi passed away. Accordingly the complaint did not proceed.906

After Bob Bundawabi’s death, campers wrote to the NT Government ‘asking for an officially recognised town camp for people from central Arnhem Land to replace the Lee Point site and, in March of that year, a protest march was held leading to the Northern Territory Parliament. In June 1997, Dulcie Malimara, the neice of Mr Bundawabi, also lodged a complaint with the ADC in similar terms to the previous matter. The ADC agreed to accept and investigate her complaint as a complaint of racial discrimination unders 19(1) of the Act. In January 1998, the complainant agreed to settle her complaint on the basis, in part, that the Northern Territory Minister agreed to

[f]acilitate talks between [the complainant] and others and relevant Government officials with the aim of resolving the application for a town camp or appropriate living facilities for [the complainant] and her group (citations omitted).907

No town camp has been created and, after unsuccessful efforts to secure funding for a community housing project, the complainant and her family group eventually accepted a public housing commission property in 2000. They were subsequently evicted for noise and nuisance in September 2001 following complaints from neighbours.908

In 1999, Darwin Community Legal Service became involved in providing legal advice to long grass people and the North Australian Aboriginal Legal Aid Service commenced proceedings in Goyma. Mr Goyma had been imprisoned for non- payment of fines issued against him for infringement of DCC By-law 103. His lawyers successfully had him released from jail on a habeas corpus application. The matter came before a single judge of the Supreme Court of the Northern Territory,

906 Ibid 233. 907 Ibid 254. 908 Ibid 259.

271 Martin CJ. Counsel for Mr Goyma made a number of arguments in support of his case that his imprisonment was unlawful. The first ground of the challenge was an administrative law challenge to DCC By-law 103, arguing that the delegated legislation was ultra vires the Local Government Act 1993 (NT). It was argued that the power to regulate ‘control of public places’ vested in the DCC under the Act did not extend to the power to regulate conduct in public places, such as sleeping. This argument was rejected on a textual analysis. It was also argued that the by-law was unlawful on the grounds of Wednesbury unreasonableness.909 Again, this argument was rejected.

The public use and enjoyment of public places, especially parks, street footpaths and beaches after sunset and before sunrise might be disturbed by the presence of a person asleep therein. Furthermore, presence of one sleeping person may well lead to a gathering of people for a like purpose. It cannot be denied that many people finding others sleeping in a public place in the night disturbing, regardless of the cause of the sleep. Further, there is an issue relating to the safety of the person or persons asleep being exposed to those who may choose to take advantage of their condition in the dark.

Those responsible for enforcing by-law 103(1)(c) have to choose whether to wake the person and give him or her an infringement notice, or ask him or her to move along, in which case refusal may lead to the giving of a notice. It is a discretion vested in the inspector.

As to an attack on the validity of the by-law based upon its unreasonableness, see the discussion in Pearce and Argument, Delegated Legislation in Australia, 2nd Ed 1999. The foregoing observations do not provide a proper basis for consideration of the question; it is impossible to say that no reasonable mind could justify the by- law.910

909 For a discussion of the Wednesbury ground of unreasonableness in public law, see Chapter Seven. 910 Goyma v Moore [1999] 154 FLR 298, 302. Note that, whilst Supreme Court of the Northern Territory upheld the validity of the by-law, the Court held that TINES Scheme, the procedural framework for prosecution of offences under by-laws was unlawful as being contrary to the Local Government Act 1993 (NT) and the Justices Act 1928 (NT). The defects in the procedural framework have since been rectified with the introduction of the Fines and Penalties (Recovery) Act 2002 (NT).

272

As a result, DCC By-law 103 remained in place and continued to be enforced.

In late 2000 and then 2001, Johnny Balaiya and his family group were evicted twice from two locations at Palmerston to make way for development. This land is not within the control of Darwin City Council and, at that time, Palmerston City Council did not have an equivalent regulation to DCC By-law 103. The Northern Territory Government Department of Land, Planning and Environment issued the warnings to Mr Balaiya under the Trespass Act 1987 (NT). Darwin Community Legal Service agreed to represent Mr Balaiya911 and assisted him to make an application to Territory Housing, the government authority responsible for public housing. Mr Balaiya applied for housing that would accommodate his cultural imperatives. Territory Housing confirmed that they did not provide such housing but offered him a single bedroom, European-style unit. Mr Balaiya and this author viewed the unit offered but Mr Balaiya refused the accommodation on the basis that he was a ‘black man’. DCLS attempted a negotiated settlement with the Northern Territory Government. Following discussions with ministerial advisers, DCLS secured the support of Bill Risk, representing Larrakia Nation. Some of the traditional owners of Darwin country proposed to the Northern Territory Government that it agree to issue to Larrakia Nation a special purpose lease under the Special Purposes Lease Act 1979 (NT), the same piece of legislation which was used to create Indigenous-specific living areas or town camps. Larrakia Nation had agreed that, if a lease was issued in its name, it would then grant permission to Mr Balaiya to live on the land for the term of his life, and subject to suitable conditions. Ultimately these negotiations failed. The Northern Territory Government advised DCLS that to issue such a lease would be against Cabinet policy and would set a precedent. No further special purpose leases have been created for Indigenous-specific living areas since the 1980s.

In May 2002, Johnny Balaiya, represented by DCLS, commenced proceedings under s 19(1) and 24 of the Anti-Discrimination Act 1992 (NT) against the Northern Territory Government, alleging that the government had indirectly discriminated against him on

911 The author was Principal Solicitor of DCLS, and acted as solicitor for Mr Balaiya in the matter up until after the filing of proceedings with the Anti-Discrimination Commission.

273 the grounds of his race, and unreasonably failed to accommodate his special needs as an Indigenous person in the provision of public housing. The complaint was based on the argument that Mr Balaiya could not live in European-style housing due to his cultural imperatives. In light of the significant Indigenous population living in the long grass, it was argued that the Northern Territory Government public housing program should reasonably include special purpose culturally appropriate housing. The Northern Territory Government had provided special purpose housing for seniors and people with disabilities who also had special needs, but had failed to do so for Indigenous people, amounting to indirect discrimination. The ADC accepted the complaint, and the matter was ultimately settled by conciliation on a confidential basis.

In 2001, the Longgrass Association was formed. In August 2001, a protest by people living in the long grass was organised, firstly outside Parliament House, and then at the Council Chambers. The focus of this protest was the use of DCC By-law 103 (and also by-law 100 regarding the seizure of unattended belongings). The August 2001 protest was followed by the inaugural ‘Freedom to Sleep’, organised by the Longgrass Association on 8 October 2001, to highlight ‘the need for greater understanding of the longgrass community among the general public, and the fact that all people who sleep in public are tarred with the same brush as a few trouble-makers.’912

In December 2001, Stella Simmering, a non-Indigenous activist lodged extensive document regarding the use of DCC By-law 103 and 100 and the impact on Indigenous people living in public space with the Human Rights and Equal Opportunity Commission (‘HREOC’). Stella Simmering lodged her complaint as a representative of the Long grass Association, an unincorporated organisation of which June Mills, a local Larrakia elder, was President. The compliant was accompanied by the signatures of 77 Indigenous people who were ‘directly affected by Darwin City Council By-law 100 and 103 and support the lodgement of this complaint.’913 HREOC determined to treat her correspondence as a representative complaint under s

912 'The Right to Sleep', The Litchfield Times 2001, 17 October. 913 Simmering v Darwin City Council (2001) Human Rights and Equal Opportunity Commission, Reference Number 2012012FC:R, Complaint of Stella Simmering dated 6 December 2001.

274 9 of the Racial Discrimination Act 1975 (Cth) (‘RDA’). Darwin Community Legal Service supported the complaint, and filed written submissions. On 12 March 2003, after extensive investigation and attempts to conciliate the complaint, HREOC terminated the complaint under s 46P(1)(i) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), and Ms Simmering commenced proceedings in the Federal Court. However, the applicant was unable to secure legal representation, and was also not able to face the risk on costs, the Federal Court being a full cost recovery jurisdiction, and withdrew from the proceedings. The Federal Court proceedings were discontinued by order of 6 May 2003.

On 20 September 2002 and then 7 November 2003, the second and third ‘Freedom to Sleep’ Protests and Concerts were held outside Parliament House to stage ‘a very public sleepover as part of a campaign to stop what [the longgrassers] describe as constant harassment by police and council officers.’914 The event was held to protest against ‘by-laws which make it an offence to sleep or stash their belongings in public places.’915 An estimated 300 protesters attended the 2002 event and sponsor agencies included the NT Itinerants Project, Darwin Community Legal Service, the Environment Centre NT and Radio Larrakia. The event received national coverage on ABC Radio, and regional TV.

A similar number of people attended the 2003 Concert at which the Administrator of the Northern Territory, the Honourable Ted Egan launched the ‘Freedom to Sleep Longgrass Live CD’, produced by the Longgrass Association in order to ‘draw national attention to Northern Territory Government’s shocking response to the growing population of people living in the Longgrass in Darwin, through this unique and significant documentation of Longgrass living culture.’916

This review of the legal challenges, and associated community protests, reveals a range of efforts to use legal remedies to ameliorate the impact of evictions of people

914 Anne Barker, Long grassers protest NT sleeping laws (2002) ABC News Online at 21 September 2002. 915 Ibid. 916 Longgrass Association, 'Freedom to Sleep" Longgrass LIVE CD (2003).

275 from ‘illegal’ camps located in public areas. However, DCC By-law 103 remains in place, as does the DCC Public Places Program, with its twice daily patrols to enforce compliance with the anti-camping and anti-camping public space law in the Darwin urban area.

D Conclusion

This chapter has aimed to map out the legal regulation of sleeping in public places by the DCC. The available evidence indicates that DCC By-law 103 has played a central role in regulating the conduct of people living in public spaces in areas under the control of that council, particularly since 1996 with the introduction of the DCC Public Places Program. This proposition is supported by the level of community activism and litigation that has been generated since 1996, which commonly focussed on the DCC by-laws as the subject of the activity. The proposition is also supported by the available statistics which indicate the high level of usage of the by-laws, in particular DCC By-law 103.

Together with Chapter Four, this chapter completes the case study of Darwin, as an example of how public space laws can be used against people living in public places to criminalise their behaviour and forcibly evict them from their homes. DCC By-law 103 has been extensively enforced, at least by warnings under threat of prosecution. Yet, as Chapter Four shows, there has also been general agreement at public policy level in Darwin that there is insufficient low cost accommodation available for the people who cannot afford to purchase their own private property rights. There is also significant evidence available to show that, for many Indigenous people, available housing options may be culturally inappropriate. Chapter Four showed that, as a result, a disproportionately high number of people living in public spaces in Darwin are Indigenous and that this is likely to be directly related to aspects of culture, together with humanitarian considerations such as poverty, discrimination and substance abuse. This chapter also shows that Indigenous people have been, therefore, not surprisingly, the primary group affected by DCC By-law 103.

276 This chapter has shown that DCC By-law 103 and the DCC Public Places Program have been used as a law and order strategy to move Indigenous people out of public space. As independent experts have argued, the ‘law-and-order approach’ is likely to ‘only result in temporary and/or local displacement, whilst overall cycles of incarceration, alcohol treatment and public place dwelling continue.’917

Can it be argued that these laws may therefore be contrary to international human rights in the manner in which they are enforced against people living in the long grass? Is there a special case that may be made regarding the human rights of Indigenous people in relation to the use of public space? The notion of ‘space’ as ‘public’ conjures up a vision of space in which all people are able to meet their respective basic rights, balanced only by the need to respect the basic rights of others. Does DCC By-law 103 represent an appropriate arbitration of the competing interest in Darwin regarding the use of public space, and in a manner which is consistent with international human rights principles? Is it unreasonable to ban sleeping in a public place in the context that has been described?

Chapters Six and Seven therefore investigate, in detail, the legal merit of pursuing an individual communication to the United Nations Human Rights Committee, alleging that the enforcement of DCC By-law 103 against people living in the long grass in Darwin may be a violation of the human right to privacy, family and home under art 17 of the ICCPR. The chapters review international and comparative human rights jurisprudence and secondary sources, with particular reference to the human right to privacy, family and home, in order provide a detailed assessment of the legal merits of a human-rights based complaint about the criminalisation and forced eviction of people living in public space. Does the evidence set out in the Darwin case study of the enforcement of DCC By-law 103 against people living in the long grass constitute a human rights violation?

917 Paul Memmott, Stephen Long and Catherine Chambers, 'Categories of Indigenous 'Homeless' People and Good Practice Responses to Their Needs' (Australian Housing and Urban Research Institute, 2003), 33(5).

277

278 6 THE HUMAN RIGHT TO RESPECT FOR PRIVACY, FAMILY AND HOME: IS THE RIGHT ENGAGED?

A Introduction

[F]ew things are more central to the enjoyment of human life than having somewhere to live.918

As the Darwin case study set out in Chapters Four and Five has endeavoured to demonstrate, the enforcement of Darwin City Council By-law 103 (‘DCC By-law 103’) which bans camping and adult sleeping in a public place between sunset and sunrise may be used to interfere with the intimate lives of people living in the long grass. In accordance with policy directives under the Darwin City Council (‘DCC’) Public Places Program, council officers are authorised to wake people in the early hours of the morning and direct them to move on under threat of a fine. DCC By-law 103 may involve people being denied the ability to sleep through the night, perhaps the most private of all activities. Displacement from resting places may also affect the ability of people to meet together and gather in family groups and carry out aspects of their family life. Many of the places and spaces used by people living in the long grass may also be considered home for their occupants. The experience of ‘homelessness’ for people living in the long grass may not necessarily be associated with a lack of a sense of home or an absence of attachment to the places they occupy but rather a lack of control over these places due to legal regulation and intervention. For Indigenous people, DCC By-law 103 may negatively impact on the ability of people to engage in cultural practices in public space, in the absence of alternative culturally appropriate accommodation being available.

In this chapter and Chapter Seven, the thesis assesses the extent to which the use of DCC By-law 103 to move on or forcibly evict people living in the long grass may violate the international human right to respect for privacy, family and home under art

918 Gillow v United Kingdom (1989) 11 EHRR 335, [8].

279 17 of the International Covenant on Civil and Political Rights (‘ICCPR’).919 These chapters consider whether art 17 may form the basis for an individual communication to the United Nations Human Rights Committee (‘HRC’) under art 2 of the Optional Protocol to the International Covenant on Civil and Political Rights (‘Optional Protocol to the ICCPR’)920 if domestic remedies have been exhausted.921

In Chapter Three, a review of Australian domestic advocacy demonstrated that lawyers, academics and advocates have identified some 15 human rights provisions under international covenants as potentially violated by the impact of public space laws, such as DCC By-law 103, on people living in public space. From this wide range of human rights, the thesis has selected the right to respect for privacy, family and home under art 17 of the ICCPR as the specific case study for a number of reasons.

Firstly, it is possible for a person to lodge an individual communication to the HRC under the ICCPR. In contrast, a person is not as yet able to make an individual

919 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). 920 Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 302 (entered into force 23 March 1976). 921 In order to pursue an individual communication to the HRC under art 17 of the ICCPR, the author must demonstrate that effective and accessible domestic remedies have been exhausted: Optional Protocol, art 2. For discussion of this requirement, see P R Ghandi, The Human Rights Committee and the Right of Individual Communication (1998), 241; Scott Davidson, 'Procedure under the Optional Protocol' in Alex Conte, Scott Davidson and Richard Burchill (eds), Defining civil and political rights: the jurisprudence of the United Nations Human Rights Committee (2004) 17, 26. However, if a domestic remedy has been unreasonably delayed, has no real prospects of success under domestic precedents, or the person is indigent with no legal aid and unable to pursue it, the Committee may not require such a remedy to be pursued in order to consider the communication: at 253-5. Mere doubts about the effectiveness of legal or administrative domestic remedies will not suffice: at 262. It is outside the scope of the thesis to undertake an analysis of the domestic remedies that may remain available to challenge DCC By-law 103 or its use in a specific case. It is also outside the scope of the thesis to assess, whether, in light of the unsuccessful legal challenges attempted to date, detailed in Chapter Five, the Committee would require domestic remedies to be further pursued in order for a future claim to be admissible. For the purposes of the thesis, the exhaustion of domestic remedies is an assumed precondition of any future individual communication.

280 complaint under the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’).922 If such a remedy was available, art 11(1) of that Covenant would be a primary human right relevant to the treatment of people in public space and may form a stronger basis for seeking an individual remedy. Article 11(1) of the ICESCR protects the right to adequate housing and provides the clearest international human rights standard regarding the nature and extent of a prohibition on forced evictions. However, at the present time, an individual remedy for violation of art 11(1) of the ICESCR does not exist.

Secondly, art 17 of the ICCPR has been selected for analysis as a result of the finding in Concluding Observations of the Human Rights Committee: Kenya (‘2005 Concluding Observations’)923 that the forced evictions of people in Kenya from informal settlements violated art 17. The HRC specifically identified art 17 as the source of violation,924 although the shadow report to the Committee by the Centre on Housing Rights and Evictions also alleged that the forced evictions violated art 7 of the ICCPR, the prohibition on torture or cruel, inhuman and degrading treatment or punishment.925 The Committee did not deal with the latter allegation, and, accordingly, has indicated that it considers art 17 to be a primary source of human rights protection against forced evictions under the ICCPR.

Thirdly, the equivalent of art 17 under the European Convention on Human Rights (‘ECHR’)926 – art 8 – has been one of the main provisions relied upon by Gypsies and Travellers in the United Kingdom in a series of legal cases to challenge their forced

922 International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 999 UNTS 3 (entered into force 3 January 1973). 923 Concluding Observations of the Human Rights Committee: Kenya, UN Doc CCPR/CO/83/KEN, (2005). 924 Concluding Observations of the Human Rights Committee: Kenya, UN Doc CCPR/CO/83/KEN, (2005), [22]. 925 Centre on Housing Rights and Evictions, 'Civil and Political Rights in Kenyan Informal Settlements: Submission to Human Rights Committee' (2005), 15-7. 926 European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221, ETS 5 (entered into force September 1953).

281 evictions.927 This long history of human rights litigation provides a rich source of jurisprudence for comparative analysis. As detailed in this chapter, there are some striking similarities between the efforts of Gypsy and Traveller peoples to retain their traditional way of life with those of Indigenous peoples in Australia.

Finally, the right to respect for privacy, family and home has now been incorporated into the ACT928 and Victoria,929 and is recommended for introduction in Western Australia930 and Tasmania.931 The right is also likely to be incorporated into any national human rights law which may emerge from the proposed national inquiry into

927 The other primary human rights provisions have been art 14 (non-discrimination), art 6 (right to a fair hearing) and art I of Protocol No 1 (right to peaceful enjoyment of possessions). See, eg, Buckley v United Kingdom (1997) 23 EHRR 101; Chapman v United Kingdom (2001) 33 EHRR 399; and Connors v United Kingdom [2004] ECHR 223. 928 Human Rights Act 2004 (ACT), s 12. 929 Charter of Human Rights and Responsibilities Act 2006 (Vic), s 13. The right to privacy under both s 12 of the Human Rights Act 2004 (ACT) and s 13 of the Charter of Human Rights and Responsibilities 2006 (Vic) is in almost identical terms to art 17 of the ICCPR. However, unlike art 17, both s 12 and s 13 are subject to express limitation provisions. The right to privacy in the ACT under s 12 may be ‘subject only to reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society’: s 28. The right to privacy in Victoria under s 13 may be ‘subject under law only to such reasonable limits as can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom, and taking into account all relevant factors including: (a) the nature of the right; and (b) the importance of the purpose of the limitation; and (c) the nature and extent of the limitation; and (d) the relationship between the limitation and its purpose; and (e) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve: s 7(2). Note that, under s 4 of the Human Rights Amendment Bill 2007 (ACT), currently before the ACT Parliament, an additional s 28(2) may be inserted as follows: ‘In deciding whether a limit is reasonable, all relevant factors must be considered, including the following: (a) the nature of the right affected; (b) the importance of the purpose of the limitation; (c) the nature and extent of the limitation; (d) the relationship between the limitation and its purpose; (e) any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.’ As will be seen in Chapter Seven, the jurisprudence of the HRC has incorporated many of these express limitation principles into its interpretation of the meaning of arbitrariness under art 17. 930 Consultation Committee for a Proposed WA Human Rights Act, 'A WA Human Rights Act: Report of the Consultation Committee for a proposed WA Human Rights Act' (2007), Appendix B, Draft Human Rights Bill, s 11. 931 Tasmanian Law Reform Institute, 'A Charter of Rights for Tasmania' (2007), 2.

282 the protection of human rights by the new Rudd Labor Government. As such, the right to respect for privacy, family and home is already available in two jurisdictions and may increasingly be available across Australia to provide a potential domestic human rights remedy to challenge the treatment of people living in public space.

Accordingly, art 17 of the ICCPR is considered to be an important international provision which should be reviewed as a contribution to research efforts to analyse the legal and human rights of people living in public space.

1 Article 17 of the ICCPR: An Overview The prohibition on arbitrary or unlawful interference with one’s privacy, family, and home is a human right recognised in international law as part of the overarching right to privacy,932 and is protected in art 17 of the ICCPR. Article 17 provides:

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

932 See Antoine Buyse, 'Strings Attached: The Concept of "Home" in the Case Law of the European Court of Human Rights ' (2006) 3 European Human Rights Law Review 294, 296: ‘The concept of the home should be seen in the context of the other concepts included in art 8 [of the European Convention on Human Rights, the corresponding right to art 17 of the ICCPR]: private life, family life and correspondence … Protection of family life, home and correspondence can both be seen as values in their own right and as specific parts of the overarching category of privacy.’ See also Lorna Fox, 'The Meaning of Home: A Chimerical Concept or a Legal Challenge?' (2002) 29(4) Journal of Law and Society 580, 596: ‘The right to respect for home under Article 8 of the European Convention on Human Rights [the corresponding provision to art 17 of the ICCPR] is embedded in the overall context of the Article … Since the rights protected under Article 8 are generally considered conjunctively, there is … a clear connection between home life and family life. Article 8 is essentially concerned with privacy, so consequently the references to family life, home and correspondence are viewed in the context of their role in the private sphere (citations omitted).’

283 Upon ratification of the ICCPR, Australia lodged a reservation to art 17, as follows:

Australia accepts the principles stated in article 17 without prejudice to the right to enact and administer laws which, in so far as they authorise action which impinges on a person’s privacy, family, home or correspondence, are necessary in a democratic society in the interests of national security, public safety, the economic well being of the country, the protection of public health or morals or the protection of the rights and freedoms of others.933

However, on 6 November 1984, Australia withdrew this reservation.

In order to succeed under art 17 of the ICCPR, an author of a communication therefore needs to establish three elements of the alleged violation. Firstly, a person must demonstrate that the conduct of the state has affected the person’s privacy, family, home or correspondence, that is, that art 17 is ‘engaged.’ Does the moving on of people living in the long grass affect their ‘home, privacy or family’? Is this human right at stake? This chapter addresses this first element. Secondly, the conduct of the state must constitute an ‘interference’ within the meaning of art 17 and, thirdly, it must be shown that the interference was either ‘not in accordance with the provisions, aims and objectives of the Covenant’, ‘arbitrary’ or ‘unlawful’. If each of these elements is established, the author may also argue that the state has failed to fulfil its duties under art 17(2) in conjunction with art 2(2) of the ICCPR to provide effective protection from such impermissible interferences. Chapter Seven investigates these latter elements of the analysis to identify whether, indeed, the experiences of people living in the long grass constitute human rights violations under art 17 of the ICCPR.

It is important to note that the state obligation regarding implementation of art 17 of the ICCPR incorporates both ‘negative’ and ‘positive’ obligations as with other provisions under the ICCPR. Under General Comment No 16: The right of Respect of Privacy, Family, Home and Correspondence and Protection of Honour and

933 Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2005), 935.

284 Reputation (‘General Comment No 16’),934 issued by the HRC on 8 April 1988 to provide authoritative guidance on the interpretation of art 17, the state is under an obligation, firstly, not to ‘engage in interferences inconsistent with art 17 of the Covenant and, secondly, [under art 17(2) and art 2(2)] to provide the legislative framework prohibiting such acts by natural or legal persons.’935 The state is required to protect individuals against acts by states agents, such as local councils, as well as private actors.936 As noted in General Comment No 31 on the General Legal Obligations Imposed on States Parties to the Covenant (‘General Comment No 31’),937 art 17 when read in conjunction with art 2(2) of the ICCPR also creates an obligation on the State to take positive steps to give effect to this human right. A failure to comply ‘cannot be justified by reference to political, social, cultural or economic considerations with the State.’938 It has been said, whilst art 17 does not extend to creating a positive obligation to provide a person with a home,939 the obligation to protect people from violation of art 17 does extend to taking positive action when the person is in a vulnerable position.940 The exact nature and scope of the positive obligations imposed by art 17 of the ICCPR is explored further in Chapter Seven.

There is a paucity of international commentary and jurisprudence from the HRC regarding the application of art 17 to forced evictions, including the forced eviction of people living in public space. General Comment No 16 makes no reference to the

934 United Nations Human Rights Committee, General Comment No 16: The right to Respect of Privacy, Family, Home and Correspondence and Protection of Honour and Reputation UN Doc HRI\GEN\1\Rev 1 at 21 (1988). 935 Ibid [9]. 936 United Nations Human Rights Committee, General Comment No 31: Nature of the General Legal Obligations Imposed on States Parties to the Covenant, 80th Sess , UN Doc CCPR/C/21/Rev 1/Add 13 (2004), [8]. 937 Ibid. 938 Ibid [14]. 939 See, eg, Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2005), 380: ‘As the right to privacy represents the quintessence of the liberal concept of freedom, most claims, are however, directed against State interference, and States have no general obligations to provide housing or to protect a family as an institution of private law (citations omitted).’ 940 Ibid 380.

285 relevance of this human right to protection against forced evictions. To date, the HRC has dealt with only a handful of communications which allege a violation of art 17 as a result of a forced eviction. Little jurisprudence has emerged. Most communications have been found either inadmissible,941 or unsubstantiated.942 Only one communication has dealt with an alleged forced eviction where the occupants were on the land unlawfully under domestic law. Unfortunately, the case did not yield any decision on the issue. 943 One communication lead to some limited general

941 See Savigny v France, Communication No 1283/2004, UN Doc CCPR/C/85/D/1283/2004 (2005) involving a forced eviction of the author and her son by her former husband from a marital home without court order. The communication was ruled inadmissible for failure to exhaust domestic remedies. In Kone v Senegal, Communication No 386/1989, UN Doc CCPR/C/52/D/386/1989 (1994), the author lodged a communication regarding, inter alia, his eviction from a home occupied for forty years following sale of the property to a third person. The author had not expressly invoked specific provisions under the ICCPR. Curiously, the Committee proceeded on the basis that the eviction from the family home ‘related primarily to alleged violations of his right to property, which is not protected by the Covenant’: at [5.1]. Accordingly, his complaint was inadmissible. It is difficult to understand the basis upon which the Committee did not consider a potential violation of art 17 arising from the eviction. See, also, Dahanayake v Sri Lanka, Communication No 1331/400, UN Doc CCPR/C/87/D/1331/2004 (2006), in which the authors complained, inter alia, of their forced eviction arising out of a development project. The authors did not include art 17 in their submissions as a basis for violation. The majority of the Committee did not consider this provision in finding the communication inadmissible. The minority members, Mr Kalin and Mr Solari, refer to art 17 as a possible source of a finding of a violation, expressing regret that this provision was not examined by the Committee. See also Rodriguez v Spain, Communication No 1213/2003, UN Doc CCPR/C/89/D/1213/2003 (2007) involving an alleged forced eviction from a private home as a compulsory acquisition for development. The communication was ruled inadmissible for failure to exhaust domestic remedies as art 17 violations were not pleaded in the domestic legal appeals. 942 See Diergaardt et al v Namibia, Communication No 760/1997, UN Doc CCPR/C/69/D/760/1997 involving an alleged forced eviction of members of the Rehoboth Baster Community from their communal lands. The Committee found that the eviction did not involve a violation of art 27, protecting the rights of minority groups, as it was not satisfied that their economic complaints regarding lack of access to the land involved cultural practices. The Committee then simply stated that ‘the authors have not substantiated any claim under art 17 that would raise separate issues from their claim under art 27 with regard to their exclusion from the lands that their community used to own.’ Unfortunately, no reasoning is provided. 943 Hopu and Bessert v France, Communication No 549/1993, UN Doc CCPR/C/60/D/549/1993/Rev 1 (1997). The communication was brought to the HRC by two traditional owners of land in Tahiti upon which there was a traditional burial site and traditional fishing lagoon. The Territory of Polynesia had

286 commentary on the application of art 17 to a forced eviction, but only in dissenting views.944

As noted above, on the single occasion in its 2005 Concluding Observations, the HRC expressed concern that the forced evictions of people living in informal settlements without security of tenure violated art 17:

[T]he Committee remains concerned about reports of the forcible eviction of thousands of inhabitants from so-called informal settlements, both in Nairobi and other parts of the country, without prior consultation with the populations concerned and/or without adequate prior notification. This practice arbitrarily interferes with the Covenant rights of the victims of such evictions, especially their rights under article 17 of the Covenant.

The State party should develop transparent policies and procedures for dealing with evictions and ensure that evictions from settlements do not occur unless those

dispossessed the community of their land in 1961, and had since leased the land to a third party, which had further subleased the site to a private company. In the 1990s, the private company announced its intention to develop the land into a luxury hotel resort. The traditional community then took up occupancy of the site in peaceful protest. The private company was successful in obtaining a court order to have the community forcibly evicted from the site. Before the HRC, the traditional owners alleged violations of their rights under the ICCPR, including their right to respect for privacy and family. They alleged violation of art 17 both in relation to their forced eviction from their traditional lands, and also the destruction of their traditional burial site. A majority of the Committee found in their favour in relation to the second claim, but did not make any finding in relation to the forced eviction. 944 Dahanayake v Sri Lanka, Communication No 1331/400, UN Doc CCPR/C/87/D/1331/2004 (2006) (Mr Kahlin and Mr Solari, dissenting). ‘To be forced to leave one’s own home to make place for the realization of a development project such as the expressway at issue in the present case certainly constitutes a restriction of [art 17] … While building an expressway may certainly be important for the development of a country and thus serve a legitimate aim, [art 17] requires that forced displacements must be lawful, i.e. ordered in accordance with domestic law, and necessary to achieve this aim…[The evidence] indicates that the ordered displacement of the authors may neither have been lawful nor necessary to the extent that a less intrusive trajectory might have been possible.’

287 affected have been consulted and appropriate resettlement arrangements have been made.945

This observation by the HRC is consistent with the approach of the Committee on Economic, Social and Cultural Rights (‘CESCR’) to minimum standards of protection against forced evictions under art 11(1) of the ICESCR. Article 11(1) of the ICESCR recognises

the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international cooperation based on free consent.

Through its General Comment No 4: The Right to Adequate Housing (‘General Comment No 4’)946 and General Comment No 7: Forced Evictions (‘ General Comment No 7’),947 the CESCR has made it clear that art 11(1) of the ICESCR incorporates a prohibition on forced evictions. In conjunction with the UN Special Rapporteur on Adequate Housing,948 the CESCR has expanded upon the principles to

945 Concluding Observations of the Human Rights Committee: Kenya, UN Doc CCPR/CO/83/KEN, (2005), [22]. It is likely that the HRC highlighted this human rights violation as a direct result of the shadow report from the Centre on Housing Rights and Evictions, 'Civil and Political Rights in Kenyan Informal Settlements: Submission to Human Rights Committee' (2005), from which a Committee member read when questioning the representatives of the Kenyan government during the oral hearings in Geneva. Representatives from COHRE and Hakijamii, the Kenyan-based Centre on Economic and Social Rights, also met with Committee members to raise these concerns in the lead up to the review of the Kenyan state report. See Email from Malcolm Langford, Senior Legal Officer, Centre on Housing Rights and Evictions to Author, 6 September 2006. 946 United Nations Committee on Economic, Social and Cultural Rights, General Comment No 4: The Right to Adequate Housing, UN Doc E/CN4/1991/4 (1991). 947 United Nations Committee on Economic, Social and Cultural Rights, General Comment No 7: Forced Evictions, UN Doc E/1998/22 (1997). 948 See, eg, Special Rapporteur on Adequate Housing, 'Basic Principles and Guidelines on Development-Based Evictions and Displacement: Annex 1 of the Report of the Special Rapporteur on Adequate Housing as a component of the right to an adequate standard of living (UN Doc

288 be applied in assessing the legality of forced evictions by reference to art 11(1) of the ICESCR, including through its concluding observations in response to state party reports under the Covenant.949 The former Commission on Human Rights and the Sub-Commission on Prevention and Protection of Minorities have also contributed to the development of the international norm regarding a prohibition on forced evictions.950 As noted by Langford and du Plessis, ‘[i]nternational human rights and humanitarian law is remarkably developed in the case of forced evictions.’951

The CESCR has affirmed that art 17 of the ICCPR is a ‘very important dimension in defining the right to adequate housing’952 under art 11(1) of the ICESCR and complements the right not to be forcibly evicted from one’s home protected under the latter provision.953 The relevance of art 11(1) of the ICESCR to art 17 of the ICCPR

A/HRC/4/18)' (2007). See, also, Alison Aggarwal, 'Homelessness and the UN: Role of the Special Rapporteur on Adequate Housing' (2004) 17(1) Parity 58. 949 See, eg, Concluding observations of the Committee on Economic, Social and Cultural Rights: Dominican Republic, UN Doc E/C 12/1990 (1990), cited in Malcolm Langford and Jean du Plessis, 'Dignity in the Rubble? Forced Evictions and Human Rights Law ' (Centre on Housing Rights and Evictions, 2005), 11. See, also, Concluding Observations of the Committee on Economic, Social and Cultural Rights: Chile, UN Doc E/C.12/1/Add.105 (2004), [51]. 950 See, eg, Resolution 1993/77 on Forced Evictions, United Nations Commission on Human Rights, UN Doc E/CN 4/RES/1993/77 (1993); Resolution 2004/28 on Prohibition of Forced Evictions, Commission on Human Rights, 66th sess, UN Doc E/CN 4/2004/L 11/Add 3 (2004); Resolution 1997/6 on Forced Evictions, UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, UN Doc E/CN 4/SUB 2/RES/1997/6 (1997); Resolution 1998/9 on Forced Evictions, UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, UN Doc E/CN.4/SUB.2/RES/1998/9 (1998). 951 Malcolm Langford and Jean du Plessis, 'Dignity in the Rubble? Forced Evictions and Human Rights Law ' (Centre on Housing Rights and Evictions, 2005), 2. See, also, United Nations Human Settlements Programme and Office of the High Commissioner for Human Rights, 'Housing Rights Legislation: Review of International and National Legal Instruments' (2002). For a compilation of international legal resources on the prohibition on forced evictions, see Centre on Housing Rights and Evictions, 'Forced Evictions and Human Rights: A Manual for Action' (1999), 7-85. 952 United Nations Committee on Economic, Social and Cultural Rights, General Comment No 4: The Right to Adequate Housing, UN Doc E/CN4/1991/4 (1991), [9]. 953 United Nations Committee on Economic, Social and Cultural Rights, General Comment No 7: Forced Evictions, UN Doc E/1998/22 (1997):‘[T]he practice of forced evictions may also result in violations of civil and political rights, such as the right to life, the right to security of the person, the

289 in the context of forced evictions has been affirmed by UN resolutions.954 Yet, without the ability for individuals to make complaints to the CESCR for a violation under the ICESCR, there is also no relevant international jurisprudence regarding specific cases under art 11(1) of the ICESCR. However, art 11(1) is particularly important to the thesis’ analysis of art 17 of the ICCPR. The 2005 Concluding Observations of the HRC give a clear indication of the preparedness of that Committee to inform its application of art 17 of the ICCPR to specific forced evictions by reference to the international normative standards developed under the ICESCR. As Langford and du Plessis note, ‘the language [in the 2005 Concluding Observations] is almost indistinguishable from that contained in [General Comment No 7 regarding forced evictions].’955

With a lack of international jurisprudence on the application of art 17 of the ICCPR and art 11(1) of the ICESCR to the prohibition on forced evictions, it is predominantly human rights decisions at regional and domestic level that have generated relevant jurisprudence dealing with the extent to which the right to respect for privacy, family and home provides protection in this area. In particular, art 8 of the ECHR provides:

1 Everyone has the right to respect for his private and family life, his home and his correspondence.

right to non-interference with privacy, family and home and the right to peaceful enjoyment of possessions’: at [4]. ‘The State itself must refrain from forced evictions and ensure that the law is enforced against its agents or third parties who carry out forced evictions (as defined in paragraph 3 above). Moreover, this approach is reinforced by article 17.1 of the International Covenant on Civil and Political Rights which complements the right not to be forcefully evicted without adequate protection.’: at [8]. 954 For example, Resolution 1998/9 on Forced Evictions954 by the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities reaffirms that ‘the practice of forced eviction constitutes a gross human rights violation of a broad range of human rights, …[including] the right to privacy…’ See, also, Resolution 1997/6 on Forced Evictions, UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, UN Doc E/CN 4/SUB 2/RES/1997/6 (1997). 955 Malcolm Langford and Jean du Plessis, 'Dignity in the Rubble? Forced Evictions and Human Rights Law ' (Centre on Housing Rights and Evictions, 2005), 18.

290 2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.956

This regional formulation of the right to privacy is in contrast to the American Convention on Human Rights which contains a similar provision to art 17 of the ICCPR.957

There appear to be significant differences in the nature and content of art 8 of the ECHR when compared with art 17 of the ICCPR. However, art 8 has been used in a range of cases to challenge forced evictions958 and, as will be shown, the jurisprudence on the interpretation of art 17 brings it closer in scope and effect to art 8 than might be initially apparent from the textual comparison. The jurisprudence regarding the application of art 8 of the ECHR to forced evictions, both from the European Court of Human Rights and also the United Kingdom, may be referenced to assist in the interpretation of art 17 to the extent that it addresses common concepts incorporated by interpretation into both human rights provisions, including ‘legitimate state interests’, and principles of ‘reasonableness’ and ‘proportionality’.959

956 European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221, ETS 5 (entered into force September 1953), art 8. 957 See American Convention on Human Rights, opened for signature on 22 November1969, 1144 UNTS 123 (entered into force 18 July1978), art 11. Note that the right to privacy is not protected in the African Charter on Human and Peoples' Rights, adopted 27 June1981, OAU Doc CAB/LEG/67/3 rev 5, 21 ILM 58 (1982) (entered into force on 21 October 1986). 958 See, eg, Cyprus v Turkey (2002) 35 EHRR 30; Selçuk and Asker v Turkey (1998) 26 EHRR 477; Akdivar and Others v Turkey (1997) 23 EHRR 143; S v United Kingdom (1986) 47 DR 274 and Wiggins v United Kingdom (1978) 13 DR 40. See also the series of Gypsy and Traveller cases reviewed below in this chapter and Chapter Seven. 959 For a comparative discussion regarding art 17 of the ICCPR and art 8 of the ECHR, see Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2005), 381. See also Chapter Seven.

291 Further, other civil rights provisions have been used in comparative human rights jurisdictions to challenge forced evictions, including the right to life960 and the right to freedom from torture or cruel, inhuman and degrading treatment or punishment.961 The South African courts have also dealt with forced evictions in the context of South Africa’s constitutional right to have access to adequate housing, which incorporates a prohibition on ‘arbitrary evictions.’962 Select comparative jurisprudence dealing with forced evictions is reviewed, particularly in Chapter Seven.

Accordingly, there is a diverse range of commentary and legal sources available to draw upon in analysing the application of art 17 of the ICCPR to the forced evictions of people living in the long grass in Darwin in the Northern Territory. The thesis refers to general comments, the views of international human rights treaty bodies, concluding observations, resolutions of UN bodies and regional and comparative human rights case law, as well as the commentary of international legal experts, including international experts under the special procedures of the UN. None of these sources are binding on the HRC in its interpretation of art 17 in a particular case.963 General comments are however considered to be highly persuasive and authoritative

960 See, eg, Olga Tellis v Bombay Municipality Corporation AIR (1986) SC 180 (Supreme Court of India); Ain O Salish Kandro (ASK) & Ors v Government of Bangladesh & Ors, (Kallyanpur Bosti Case) 19 BLD (1999) 488 W.P. NO-7585/2003 and Kalam and Others v Bangladesh and Others 21 BLD (HCD) (2001) 446 . 961 See, eg, Dogan v Turkey (2005) 41 EHRR 15; Jones v City of Los Angeles (Unreported, United States Court of Appeals for the Ninth Circuit, 14 April 2006); Mentes et al v Turkey (1998) 26 EHRR 595; Cyprus v Turkey, (Unreported, European Court of Human Rights,10 May 2001); Mentes et al v Turkey (1998) 26 EHRR 595. 962 Section 26, Constitution of the Republic of South Africa Act 2000 of 1993. 963 According to the Vienna Convention on the Law of Treaties (1969) ATS 1974 No 2, the provisions of a treaty, such as the ICCPR, are to be interpreted ‘in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its objects and purposes.’: art 31(1). The ‘context’ comprises any agreements between the parties in connection with the conclusion of the treaty, and any instruments made by one party, which has been accepted by the other parties to the treaty as relating to it: art 31(2). The HRC is also to take into account: ‘(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; and (c) any relevant rules of international law applicable in the relations between the parties.’: art 31(3).

292 in any interpretative exercise about compliance with treaty terms,964 together with the jurisprudence of the Committee through its views issued regarding individual communications.965 Concluding observations are also considered to have ‘considerable legal weight.’966 UN resolutions may also be referenced as evidence of agreement between parties to the ICCPR regarding ‘the interpretation of the treaty or the application of its provisions.’967 Where a regional or national case involves the interpretation of a law which is similar to an international human rights treaty provision, the case law may also be referred to by an international human rights treaty

964 ‘[T]he general comment has become a distinct juridical instrument, enabling the Committee to announce its interpretations of different provisions of the Covenant in a form that bears some resemblance to the advisory opinion practice of international tribunals. These general comments or ‘advisory opinions’ are relied upon by the Committee in evaluating the compliance of states with their obligations under the Covenant, be it in examining State reports or ‘adjudicating’ individual communications under the Optional Protocol … General comments have gradually become important instruments in the lawmaking process of the Committee, independent of the reporting system …: Thomas Buergenthal, 'The Human Rights Committee' in Philip Alston (ed), The United Nations and Human Rights (2000), cited in Henry J Steiner and Philip Alston, International Human Rights in Context (2 ed, 2000), 732. Budlender J has held in South Africa that ‘[g]eneral comments have authoritative status under international law.’: Residents of Bon Vista Mansions v Southern Metropolitan Local Council (2002) 6 BCLR 625 (High Court Witsatersrand Local Division), 629, cited in International Law Association (International Human Rights Law and Practice Committee), 'Draft Report to 2004 International Law Association Conference' (International Law Association, 2004), 23. The HRC refers to its General Comment No 16 in its jurisprudence: see, eg, Van Hulst v Netherlands, Communication No 903/2000, UN Doc CCPR/C/82/D/903/2000 (2004), [7.7]. and Toonen v Australia, Communication No 488/1992, UN Doc CCPR/C/50/D/488/1992 (1994), [8.3]. 965 For, eg, the HRC refers to the prior views of treaty bodies assessing the merits of individual communications in Van Hulst v Netherlands, Communication No 903/2000, UN Doc CCPR/C/82/D/903/2000 (2004), [7.6] ; Monaco de Gallicchio v Argentina, Communication No 400/1990, UN Doc CCPR/C/OP/5, 47-51 (1995), [10.4]. See, also, Dzemajl et al v Yugoslavia, Communication No 161/2000, UN Doc CAT/C/29/ (21 November 2002) where the Committee against Torture referred to its general comment and jurisprudence for interpretative purposes. 966 See, eg, Michael Craven, The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (1995), 90-91: ‘although the Committee’s interpretations of the Covenant are not binding per se, it is undoubtedly true that they have considerable legal weight.’ For a review of the use of concluding observations, see Michael O'Flaherty, 'The Concluding Observations of United Nations Human Rights Treaty Bodies' (2006) 6 Human Rights Law Review 27. 967 Vienna Convention on the Law of Treaties (1969) ATS 1974 No 2, art 31(3)(b).

293 body as an interpretative source for the purposes of its own proceedings.968 The opinions of international legal experts may also be considered, particularly where there is limited relevant jurisprudence from the Committee, 969 as is the case regarding the application of art 17 to forced evictions.

In this chapter, the preliminary question is therefore addressed. Does the use of DCC By-law 103 to forcibly evict people living in the long grass in Darwin in the Northern Territory engage art 17 of the ICCPR? Does it affect their home, or their privacy and family? The Chapter reviews international and comparative commentary and jurisprudence and applies these sources to the Darwin case study to analyse whether the forced eviction of people living in the long grass engages this human right.

Chapter Seven proceeds to address the further elements of an allegation of a violation under art 17. If the human right is engaged, does the use of DCC By-law 103 constitute an ‘interference’ which is ‘not in accordance with the provisions, aims and objectives of the Covenant’, ‘unlawful’ or ‘arbitrary’, and, if so, to what extent may Australia be found to have violated its international legal obligations - both ‘negative’ and ‘positive’ - under this human rights provision?

The analysis of art 17 in this chapter and Chapter Seven focuses on forced evictions under impact of DCC By-law 103, rather than the act of ‘criminalisation’ through formal prosecution. It is clear from the statistics of the DCC set out in Chapter Five that few people are now formally charged under the by-law. However, many of the

968 See, eg, Dzemajl et al v Yugoslavia, Communication No 161/2000, UN Doc CAT/C/29/ (21 November 2002) where the Committee against Torture considered decisions of the European Court of Human Rights, the Inter-American Court of Human Rights, and the European Commission of Human Rights in order to interpret the relevant provisions of CAT. 969 ‘[A]s the body of judicial decisions increases, the authority of the commentator is diminished … The literature of international law … possesses evident defects. One of the most frequent charges brought against it is that it displays a great deal of national bias. The fact is that international lawyers are inevitably municipal lawyers first of all … The writers of one country thus reflect their national legal tradition and techniques rather than any national political viewpoint ‘: Parry, The Sources and Evidences of International Law (1965), 103-5, cited in David Harris, Cases and Materials on International Law (5th ed, 1998), 57.

294 same arguments regarding violation of art 17 may be applicable, a fortiori, in a case where a person has also been formally charged with an offence.

The remainder of this Chapter therefore assesses whether art 17 is engaged.

B Does a Forced Eviction Affect the ‘Home’ of People Living in the Long Grass?

Article 17 protects persons from arbitrary or unlawful interference with a home they possessed at the time of the alleged interference. Accordingly, the necessity to establish the existence of a home is a crucial stage in engaging protection. Do people living in the long grass in Darwin in the Northern Territory have a ‘home’ or are they ‘homeless’ in human rights terms?

The ICCPR does not contain a definition of ‘home’ nor set out any specific criteria that must be met. Does the person need to hold some proprietary interest in the place they call home to claim protection? Does a person need to reside in the place for any length of time? Is it enough that the person considers the place to be their home - a subjective test about whether the place ‘feels like home’ - or must a person satisfy an objective test against settled criteria independently assessed? Does ‘home’ have to be a specific site, or can it consist of spaces and places? People living in public space in Australia are defined as ‘homeless’ under the ABS Census definitions, applying the cultural definition of homelessness developed by Chamberlain and MacKenzie.970 Does this therefore mean that they do not have a home? How is ‘home’ to be defined?

The HRC’s interpretation of ‘home’ in its General Comment No 16 is succinct and does not provide detailed guidance or definition. ‘Home’ is simply described as ‘the place where a person resides or carries out his usual occupation.’971 The Committee does not introduce any objective qualifiers such as length of residency, elements of

970 See Chapter Four. 971 United Nations Human Rights Committee, General Comment No 16: The right to Respect of Privacy, Family, Home and Correspondence and Protection of Honour and Reputation UN Doc HRI\GEN\1\Rev 1 at 21 (1988), [5].

295 security of tenure, or proprietary interests nor does it refer to subjective qualifiers such as sense of attachment, or notions of intent. The jurisprudence of the HRC also does not provide any assistance. To date, the decisions of the HRC which deal with individual communications under art 17(1) alleging a violation in relation to interference with a person’s home have not required the Committee to expand on the meaning of the term ‘home’ nor illuminate the factors that would be taken into account in determining whether a home exists.972

However, there is a series of cases emanating from the United Kingdom which have dealt with the question of whether or not the criminalisation or forced evictions of Gypsy and Traveller families in a range of contexts violated art 8 of the ECHR. This jurisprudence has contributed significantly to clarifying the meaning of ‘home’ under art 8, and the circumstances in which a forced eviction may at least engage the human right to respect for privacy, family and home.

The background to this line of cases is a long history of discrimination against Gypsies and Travellers in the United Kingdom and their struggle to retain their traditional way of life. As noted, there are some striking similarities between the experiences of these minority groups and those of Indigenous peoples living in and around urban communities in Australia.

972 See García v Colombia, Communication No 687/1996, UN Doc CCPR/C/71/D/687/1996 (2001) involving a raid of a family home by the police. See also Dumont de Chassart v. Italy, Communication No 1229/2003, UN Doc CCPR/C/87/D/1229/2003, in which the author unsuccessfully alleged violation of art 17 arising out of the police failure to act on an alleged burglary of his home by his former wife; and Sultanova et al v Uzbekistan, Communication No 915/2000, UN Doc CCPR/C/86/D/915/2000, in which the author successfully alleged that an unlawful search of her home violated art 17. In each of the decisions, the allegation that a ‘home’ was involved was not contested and the Committee did not provide any analysis of why the locations were considered to be ‘homes’ for the purposes of art 17. In Stewart v Canada, Communication No 538/1993, UN Doc CCPR/C/58/D/538/1993 (1996), the author argued that his deportation would affect his home by removing him from Canada. He argued that the term ‘home’ should be interpreted widely to include the country of Canada, rather than a specific house, but the Committee did not make any findings in relation to this submission. See also Alex Conte, Scott Davidson and Richard Burchill, Defining Civil and Political Rights: The Jurisprudence of the United Nations Human Rights Committee (2004), 156-7.

296 The estimated number of Gypsies and Travellers in the United Kingdom varies, ranging from between 90 000, 120 000 and 150 000973 up to 300 000974and 350 000975 and they have now been recognised as distinct ethnic groups for the purposes of protection under the Race Relations Act 1976 (UK).976 Gypsy people originally migrated from India to the UK around 1000AD,977 and together with indigenous Traveller peoples have traditionally lived nomadic lifestyles, using caravans and mobile homes, and travelling in extended family groups.978 However, in 1960, the

973 See Office of the Deputy Prime Minister, Housing, Planning, Local Government and the Regions - Thirteenth Report: Gypsy and Traveller Sites (2004) United Kingdom Parliament at 16 August 2006 , Introduction: ‘Estimates of the size of the Gypsy and Traveller population in the United Kingdom range between 90 000 and 120 000 (citations omitted). See also Gypsy & Traveller Law Reform Coalition, Gypsy & Traveller Law Reform Coalition at 15 August 2006: ‘There are an estimated 120,000 Gypsies and Travellers in the UK.’ See also Save the Children, 'Denied a Future? Volume 3' (The Save the Children Fund, 2001), 218: ‘The process of estimating the numbers of Gypsies and Travellers in the UK is a problematic one. The task of accurately counting their numbers is an even more difficult undertaking. Problems are rooted in the general difficulties associated with counting ethnic minority and/or mobile communities. The often “subjective” criteria associated with the definition of Gypsies and Travellers, coupled with inadequate representation in formal censuses, and a reluctance on their part to declare their identity (out of fear of discrimination), have led to few, and particularly poor quality, datasets being produced. Nevertheless, individuals and organisations have made genuine attempts at reaching semi-credible estimates based on a mixture of official and unofficial sources. According to Kenrick and Clark the estimated overall number of Gypsies and Travellers living in the UK is thought to be about around 120 000… Friends and Families of Travellers (a UK-wide organisation) estimates the overall number of Gypsies and Travellers in the UK to be slightly higher at 150 000 (citations omitted).’ 974 Sarah Spencer, 'Gypsies and Travellers: Britain's Forgotten Minority' (2005) 4 European Human Rights Law Review 335, 336: ‘It is thought that there may be no more than 300 000 Gypsies and Travellers in Britain, equivalent to the size of the Bangladeshi community. There may, according to a recent parliamentary inquiry, be less than half that number. Gypsies and Travellers are certain there are more.’ 975 Grattan Puxon, 'Dale Farm: A Case of UK Ethnic Cleansing ' (2006) International Alliance of Inhabitants at 15 August 2006. 976 Race Relations Act 1976 (UK). See Sarah Spencer, 'Gypsies and Travellers: Britain's Forgotten Minority' (2005) 4 European Human Rights Law Review 335, 336. 977 See Chris Johnson and Marc Willers, Gypsy and Traveller Law (2004), 4.

297 Caravan Sites and Control of Development Act 1960 (UK) was adopted, banning camping on public lands except in authorised caravan sites, effectively closing the commons to travelling peoples.979 The Act aimed to regulate the creation of caravan sites by requiring planning permission and site licenses and it also created a power in local councils to establish official caravan sites.

However, by 1967, only 14 official sites had been created.980 Accordingly, the Caravan Sites Act 1968 (UK) was introduced to place local councils under a statutory obligation to create caravan sites. This mandatory framework facilitated some growth in sites, particularly with the introduction of a grants scheme, but in 1994, the Conservative national government dismantled these special measures. The Criminal Justice and Public Order Act 1994 (UK) (‘CJPOA’) was introduced to repeal ss 6 -12 of the 1968 Act, releasing councils from the obligation to develop sites.981 The CJPOA also created a range of powers exercisable by the police or local authorities to direct unauthorised campers to move on, operating as a forced eviction power.982 In

978 Ibid 19. The authors list the following as cultural values shared by both Gypsies and other ethnic Traveller groups: nomadism; the dominant position of the family and extended families; early and close kin marriage; work patterns; rituals surrounding death and marriage; relationship with the dominant settled society; language; and the experience of discrimination. 979 Caravan Sites and Control of Development Act 1960 (UK), s1(1): ‘ Subject to the provisions of this Part of this Act, no occupier of land shall after the commencement of this Act cause or permit any part of the land to be used as a caravan site unless he is the holder of a site licence (that is to say, a licence under this Part of this Act authorising the use of land as a caravan site) for the time being in force as respects the land so used.’ 980 Office of the Deputy Prime Minister, Housing, Planning, Local Government and the Regions - Thirteenth Report: Gypsy and Traveller Sites (2004) United Kingdom Parliament at 16 August 2006 , Background – Legislation and Policy. 981 The impetus for the introduction of the Criminal Justice and Public Order Act 1994 (UK) is attributed to the Castlemorton Common free rave, which was held for a week in 1992 and attended by over 50 000 people, including New Travellers. See Zoe James, 'Policing Space: Managing New Travellers in England ' (2006) 46 British Journal of Criminology 470, 479. 982 Section 61 authorises a senior police officer to issue a direction to leave against two or more persons who are ‘trespassing on land and are present there with the common purpose of residing there for any period’ and the lawful occupier of the land has already taken ‘reasonable steps to ask them to leave.’ In addition, the police must be satisfied that the trespassers have either: (1) caused damage to the land or

298 conjunction with the introduction of the CJPOA, the national government issued guidance on when and how the eviction of Gypsies and Travellers from unlawful sites, often on council land, should be conducted: Circular 18/94 (Gypsy Sites Policy and Unauthorised Camping).983

Following these reforms in 1994, councils in the UK generally ceased expanding the number of sites and, in some cases they reduced the total number available. It became government policy to encourage Gypsy and Traveller families to purchase land, with a view to creating their own caravan pitches. The Government’s Planning Circular 1/94 requested councils to provide assistance to Gypsy and Traveller people by either locating land that they could purchase to create their own pitches, or developing criteria policies against which families could apply to have their land authorised for caravan usage. According to the Gypsy and Traveller Law Reform Coalition, this policy was a ‘spectacular failure’.984 All but one or two councils failed to take positive action to develop caravan sites, and adopted the latter approach requiring families to apply for planning approval.985 However, most private applications for planning approval were also rejected.986 Consequently, many families have been

property of the owner; (2) used threatening, abusive or insulting words or behaviour; or (3) have six or more vehicles between them. Section 77 of the Criminal Justice and Public Order Act 1994 (UK) provides: ‘(1) If it appears to a local authority that persons are for the time being residing in a vehicle or vehicles within that authority's area— (a) on any land forming part of a highway; (b) on any other unoccupied land; or (c) on any occupied land without the consent of the occupier, the authority may give a direction that those persons and any others with them are to leave the land and remove the vehicle or vehicles and any other property they have with them on the land.’ Failure to comply is a criminal offence, and local councils may seek orders to have caravans removed under s 78. 983 Department of the Environment Circular 18/94: Gypsy Site Policy and Unauthorised Camping. 984 Gypsy & Traveller Law Reform Coalition, 'The Human Rights Act and Gypsies and Travellers' (Undated). 985 Ibid. 986 See Sarah Spencer, 'Gypsies and Travellers: Britain's Forgotten Minority' (2005) 4 European Human Rights Law Review 335(citing T Willimans, 'Private Gypsy Site Provision ' (ACERT 1997)): Most families found it ‘…near impossible to get planning permission for caravan use, in part because [the advice to buy their own land] coincided with new restrictions on use of the ‘green belt’ which surrounds urban areas, and sometimes because they were ill advised in buying land in areas for which residential use would never have been allowed. In 1997, 90 per cent of the planning applications from

299 forced to either camp unlawfully on public land to retain their travelling lifestyle, or move into ‘mainstream’ forms of accommodation, inconsistent with their traditions and cultures.

Living on public land, Gypsies and Travellers face a range of forced eviction powers. In addition to powers under the CJPOA, authorities may use summary possession proceedings under the former Rules of the Supreme Court (RSC) Ord 113 or, since 1999, Part 5 of the Civil Procedures Rules (CPR), powers under the Highways Act 1980 (UK), by-laws987 or common law powers.988 Further, in 2003, additional eviction powers were introduced under s 60 of the Anti-social Behaviour Act 2003 (UK), inserting s 62A into the CJPOA.989

Gypsies and Travellers were rejected, compared to a success rate of 80 per cent for all other applications’: at 337. 987 For a discussion of the use of by-laws, see Chris Johnson and Marc Willers, Gypsy and Traveller Law (2004), 148-50. 988 See Chris Johnson and Marc Willers, Gypsy and Traveller Law (2004), 151. Under the common law of the United Kingdom, ‘[i]f a trespasser peaceably enters or is on land, the person who is in, or is entitled to, possession may require him or her to leave, and, if the trespasser refuses to leave, may remove that person from the land, using no more force than is reasonably necessary.’ As noted by Johnson and Willers, in practice, local authorities are however effectively precluded from using this common law power as a result of the ODPM, Guidance on Managing Unauthorised Camping (2004) at 25 September 2006 which provides that ‘local authorities should always follow a route which requires a court order.’ Local authorities will more commonly use summary possession powers or powers under the Criminal Justice and Public Order Act 1994 (UK). They will rely on by-laws to support the eviction, for eg, as a relevant consideration in demonstrating the proportionality of the eviction. See Chris Johnson and Marc Willers, Gypsy and Traveller Law (2004), 150. 989 Section 62A provides that if a senior police officer reasonably believes that two or more trespassers in the possession of at least one vehicle are on land with the common purpose of residing there for any period and there is a suitable pitch available on a relevant official caravan site, and the occupier of the land has asked the police to remove the trespassers, that officer may direct the trespassers to leave and remove their vehicles and other property. Failure to comply ‘as soon as reasonably practicable’ or return to the land within three months can lead to arrest without warrant and a conviction, leading to a fine or imprisonment for up to three months, plus seizure of the vehicles. Note that, given there continues to be a lack of suitable sites available, [i]t seems unlikely that the police will be able to use

300 Whilst people have continued to resist living in ‘bricks and mortar’ settled dwellings, the majority of the Gypsy and Traveller populations have therefore now given up a travelling lifestyle, often due to criminalisation, constant moving on and harassment experiences whilst living in public spaces.990 The population continues to grow but there is an insufficient number of authorised camping sites where families can lawfully pitch their caravans. It is estimated that between 20 - 27% of caravans are not on authorised sites991 and this number also continues to grow.992 Living in public

CJPOA 1994 s 64A to evict Gypsies and Travellers until local authorities provide sufficient sites for them.’ See Chris Johnson and Marc Willers, Gypsy and Traveller Law (2004), 136. 990 See Sarah Spencer, 'Gypsies and Travellers: Britain's Forgotten Minority' (2005) 4 European Human Rights Law Review 335, 336: ‘There is a common misconception that all Gypsies and Travellers live on the road. In practice, through choice or reluctant necessity, the majority now live in permanent housing. But this is an anathema for many. They may not want to travel frequently, or at all, but do want to live in a caravan or mobile home, on a site, in a community of family and friends. It may be a caravan that no longer has the means to move, but has the proximity to the outdoor world that bricks and mortar exclude. Thus for some nomadism is a way of life; for others it is a state of mind. As one man described the prospect of living in a house: “It’s like catching a wild bird off a tree and putting him in a cage – it’s not your life”.’ 991 See Office of the Deputy Prime Minister, Housing, Planning, Local Government and the Regions - Thirteenth Report: Gypsy and Traveller Sites (2004) United Kingdom Parliament at 16 August 2006 , Report Summary: ‘Over 3500 Gypsies and Travellers, 20% of the travelling community, have no legal place where they can stop their caravan.’ See also: Sarah Spencer, 'Gypsies and Travellers: Britain's Forgotten Minority' (2005) 4 European Human Rights Law Review 335, 337: ‘…more than a quarter of the 15 000 caravans – 27 per cent – are not on legal sites’; and Gypsy & Traveller Law Reform Coalition, Gypsy & Traveller Law Reform Coalition at 15 August 2006: ‘Not all live in caravans. In July last year, the government counted 15,014 caravans in England and Wales. Most (10,777) are on council-run or legal private sites. Just over a quarter are on unauthorised sites (1,855) or roadside verges (2,409).’ 992 According to the Department for Communities and Local Government, 'Planning for Gypsy and Traveller Caravan Sites Circular (ODPM 01/2006): Regulatory Impact Assessment', June 2006, [24], ‘the total number of caravans on unauthorised encampments and developments increased by 37% between January 1997 and January 2005 to 3558.’

301 space, Gypsies and Travellers are criminalised under various public space laws described above and considered ‘homeless’ under the Housing Act 1996.993

Herein lies the source of so much of the disadvantage experienced by Gypsies and Traveller and of the tension with their neighbours. Lacking legal sites on which to live, some pitch on land belonging to others; or on their own land but lacking planning permission for caravan use. There follows a cycle of confrontation and eviction, reluctant travel to a new area, new encampment, confrontation and eviction. Children cannot settle in school. Employment and health care are disrupted.994

For example, in January 2005, ‘66% of unauthorised encampments and developments were not tolerated … meaning that enforcement actions were required on 2341 caravans.’995 Families who have taken up ‘mainstream’ European-style housing also experience accusations of anti-social conduct and eviction. Like many Indigenous families in Australia, Gypsy and Traveller families typically have

greater than average numbers of children, a tendency to experience visits from large numbers of relatives and to some extent continue a pattern of visiting and socialising outdoors or in groups…996

993 Under s 175 (2) of the Housing Act 1996 (UK), a person is homeless if he or she has accommodation but it ‘consists of a moveable structure, vehicle or vessel designed or adapted for human habitation and there is no place where he is entitled or permitted both to place it and to reside in it.’ 994 Sarah Spencer, 'Gypsies and Travellers: Britain's Forgotten Minority' (2005) 4 European Human Rights Law Review 335, 338. 995 Department for Communities and Local Government, 'Planning for Gypsy and Traveller Caravan Sites Circular (ODPM 01/2006): Regulatory Impact Assessment', June 2006, [25]. 996 Colin Clark and Margaret Greenfields, Here to Stay: The Gypsies and Travellers of Britain (2006), 164. Housed Gypsy and Traveller families also experience criminalisation through the use of Anti- Social Behaviour Orders (‘ASBOs’) under the Anti-social Behaviour Act 2003 (UK). In June 2005, the Wakefield Council also attempted to use the ASBO to introduce a blanket camping ban over five sites on council land used regularly for unauthorised camping by Gypsy and Traveller families, but desisted following legal advice that such action may have violated the Race Relations Act 1976 (UK) and the unwillingness of the local police to participate in future enforcement. See Colin Clark and Margaret Greenfields, Here to Stay: The Gypsies and Travellers of Britain (2006), 165.

302 The pattern of continual displacement and dislocation experienced by Gypsies and Travellers in the United Kingdom from both public spaces and mainstream housing resembles the experiences of people living in the long grass in Darwin in the Northern Territory. The futility of the continuous eviction of Gypsy and Traveller groups from public lands has been noted by police charged with the responsibility for enforcing eviction laws such as the CJPOA. According to one police officer in the UK,

I think that by far the biggest problem is knowing what you might do with the group once you eject them, and unless you have actually got a plan that encompasses exactly what it is you are going to do with them don’t start the procedure because all you actually do is move the problem.997

As with Indigenous communities in Australia, Gypsies and Travellers are also disproportionately represented in homelessness and other socio-economic indicators. ‘Eighteen per cent of Gypsies and Travellers were homeless in 2003 compared to 0.6 per cent of the [overall] population.’998 ‘Infant mortality is twice the national average and life expectancy at least 10 years less than that of others in their generation.’999

The Gypsy and Traveller communities are also commonly misunderstood by mainstream society, and subjected to harassment, discrimination and vilification.1000

997 Zoe James, 'Policing Space: Managing New Travellers in England ' (2006) 46 British Journal of Criminology 470, 476. Note that amendments to the 1994 Act introduced in 2003 as part of the Anti- social Behaviour Act 2003 (UK)allow for the police to not evict people if there is no alternative site available, authorising the exercise of police discretion to avoid futile evictions. However, the amendment specifically refers to caravans, which are primarily used by Gypsies and other ‘Traditional’ Travellers and so does not benefit other nomadic groups, such as ‘New Travellers’ ‘who often live in converted heavy goods vehicles such as buses, trucks, vans and ambulances that have been converted into living spaces.’ See Zoe James, 'Policing Space: Managing New Travellers in England ' (2006) 46 British Journal of Criminology 470, 476. 998 Sarah Spencer, 'Gypsies and Travellers: Britain's Forgotten Minority' (2005) 4 European Human Rights Law Review 335, 337. 999 Ibid 339. 1000 Office of the Deputy Prime Minister, Housing, Planning, Local Government and the Regions - Thirteenth Report: Gypsy and Traveller Sites (2004) United Kingdom Parliament at 16

303 As with people living in the long grass in Darwin, Gypsies and Travellers have been targeted by politicians who advocate tough law and order responses, buttressed by negative media portrayals. In 2005, the Conservative Opposition, lead by Michael Howard, developed a 7 Point Plan to ‘deal with’ unauthorised Gypsy camps, proposing the criminalisation of trespass and the repeal of the Human Rights Act 1998 (UK), which was blamed for enabling ‘land grabbing’ by Gypsies and Travellers and the increase in illegal camp sites. According to Howard,

one of the factors assisting Travellers to break the law has been the human rights legislation which has provided cover for an unscrupulous minority of Travellers to do things which society as a whole has assumed and desired to be illegal. Since the Human Rights Act came into force, the number of unauthorised Traveller encampments in England has risen year by year. Local authorities have counted 1,855 Traveller sites where there has been development without planning permission and a further 2,377 where the development is not only unauthorised but the land itself has been seized illegally.

This is an example of how human rights legislation can deprive the majority of citizens of their traditional freedoms and protections.1001

The Daily Telegraph Editorial also heavily criticised the Human Rights Act 1998 (UK), and the ECHR.

Mr Howard has come up against a familiar obstacle to his eminently sensible plan to deal with an illegal Gypsy camp … That obstacle is the European convention on human rights, which was incorporated into British law under the Human Rights Act

August 2006 : Report Summary: ‘English people have very contradictory views about Gypsies and Travellers. On the one hand some are very pleased to employ them, trade with them and use their services. On the other hand they are appalled at the prospect of them setting up their mobile homes anywhere nearby for fear, whether real or not, of crime and anti-social behaviour. This dichotomy is at the centre of the way Gypsies and Travellers have been treated in England over the last 50 years. Whereas once Gypsies and Travellers tended to move in small groups, because of public hostility to their encampments, they have tended in recent years to move in larger groups - and this often aggravates the problems, particularly where using illegal sites.’ 1001 United Kingdom, Parliamentary Debates, House of Lords, 23 March 2005, Column 292 (Lord Howard of Rising).

304 of 1998. The Conservative leader has been warned that his plan to give the police power to close these illegal camps may contravene the law, since Gypsies belong to an identifiable ethnic group whose traditional ways are protected by the convention and the act …

Mr Howard must steel himself to say that he will definitely repeal the act, and withdraw from the convention from which it sprang … Human rights legislation is not merely an obstacle to framing sensible solutions to Britain’s most pressing problems. It is the very cause of many of those problems. Mr Howard should be brave enough to say so.1002

The Human Rights Act 1998 (UK) and the ECHR, condemned by The Daily Telegraph in Britain, have indeed been important tools in the ongoing campaigns by Gypsies and Travellers and their supporters to achieve recognition of the legitimacy of the traveller lifestyle and associated cultural practices. This human rights framework, and the litigation under it, has clearly been a catalyst for progressive positive policy responses by the British Government.1003 For example, in 1998, the same year that the Human Rights Act 1998 (UK) was adopted, the Department of Environment, Transport and the ODPM issued Managing Unauthorised Camping: A Good Practice Guide.1004 This guide has since been amended on several occasions, and then reissued as Guidance on Managing Unauthorised Camping1005 in 2004 and supplemented in 2005.1006 The national government has now issued a new OPDM

1002 Editorial, 'Editorial', The Daily Telegraph 2005, cited in Gypsy & Traveller Law Reform Coalition, 'The Human Rights Act and Gypsies and Travellers' (Undated). 1003 See, eg, Office of the Deputy Prime Minister, Housing, Planning, Local Government and the Regions - Thirteenth Report: Gypsy and Traveller Sites (2004) United Kingdom Parliament at 16 August 2006 which recommends, inter alia, reinstatement of the statutory obligation on local authorities to create caravan sites. See also Department for Communities and Local Government, 'Planning for Gypsy and Traveller Caravan Sites Circular (ODPM 01/2006)' (2006). 1004 Transport and the Regions Department of the Environment and Home Office of the United Kingdom, 'Managing Unauthorised Camping: A Good Practice Guide' (1998). 1005 ODPM, Guidance on Managing Unauthorised Camping (2004) at 25 September 2006. 1006 Office of the Deputy Prime Minister, 'Supplement to 'Managing Unauthorised Camping: A Good Practice Guide'' (2005).

305 Circular 01/20061007 and several guides: Guide to Effective Use of Enforcement Powers Part I Unauthorised Encampments;1008 Local Authorities and Gypsies and Travellers: Guide to Responsibilities and Powers; 1009and Gypsy and Traveller Accommodation Assessments: Guidance.1010 These guidelines and circulars have updated the requirements placed on local authorities seeking to evict Gypsies and Travellers from unauthorised sites, setting out steps to be undertaken to ensure that relevant considerations are taken into account in the lead up to an eviction in order to avoid violation of human rights provisions. For example, the most recent Guide to Effective Use of Enforcement Powers, Part 1: Unauthorised Encampments, 2006 provides that:

[l]ocal authorities should conduct thorough welfare enquiries when a new encampment of Gypsies and Travellers arrives in the area. Where pressing needs for particular services are identified as part of the local authority’s enquiries, relevant departments or external agencies should be contacted in order to meet these needs as appropriate (health services, social services, housing departments and so on). …

If necessary, removal of the encampment could be delayed while urgent welfare needs are addressed (unless, as above, the site on which the unauthorized campers are using is particularly sensitive or hazardous, in which case the unauthorised campers should be asked to relocate to a more appropriate location in the vicinity). Further, it may be possible to negotiate a date for the encampment to leave it, for instance, the Gypsies and Travellers have camped in the vicinity for a specific purpose; in order to attend an outpatient’s appointment at the local hospital for example.

1007 Office of the Deputy Prime Minister, 'OPDM Circular 01/2006 Planning for Gypsy and Traveller Caravan Sites', 2 February 2006. 1008 Office of the Deputy Prime Minister, 'Guide to Effective Use of Enforcement Powers, Part 1: Unauthorised Encampments', 2006. 1009 Department for Communities and Local Government, 'Local authorities and Gypsies and Travellers: a guide to responsibilities and powers' (2007). 1010 Department for Communities and Local Government, 'Gypsy and Traveller Accommodation Needs Assessments - Guidance' (2007). For an overview of the policy frameworks regarding evictions of Gypsies and Travellers from unauthorised encampments, see Office of the Deputy Prime Minister, 'Guide to Effective Use of Enforcement Powers, Part 1: Unauthorised Encampments', 2006. See also R (on the Application of James Casey) v Crawley Borough Council [2006] EWHC 301 (Admin), esp [18]-[22].

306

If the Gypsies and Travellers are cooperative, only wish to stay for a short time and the encampment is not in a sensitive location, it may only be necessary to monitor the situation pending their departure. It may also be appropriate to provide the unauthorised campers with some means of disposing of rubbish and waste in order to minimise clear-up costs when they have left.1011

This policy framework endeavours to implement obligations identified through the courts over a ten year period. Since the introduction of the Human Rights Act 1998 (UK), which came into force in full on 2 October 2000, art 8 of the ECHR has been a primary human rights provision upon which the litigation has relied to challenge the forced eviction and criminalisation of Gypsy and Traveller families.1012 The contexts of the evictions vary. Sometimes the Gypsies and Travellers were living in unauthorised encampments on public land. In other eviction cases, the families had purchased their own land but were living in caravans without planning permission.1013 In such cases, the planning authorities, usually the local council, used enforcement procedures under the Town and Country Planning Act 1990 (UK).1014

A preliminary question in some of the cases challenging the forced eviction and criminalisation of Gypsies and Travellers under art 8 of the ECHR has been whether the caravans occupied by Gypsies and Travellers constituted a ‘home’ for the purpose of engaging art 8. This jurisprudence has dealt with several of the key questions that would be likely to arise in any argument to assert that the camps and resting areas in

1011 Office of the Deputy Prime Minister, 'Guide to Effective Use of Enforcement Powers, Part 1: Unauthorised Encampments', (2006), 16. 1012 Prior to the introduction of the Human Rights Act 1998 (UK), Gypsies and Travellers challenged their forced evictions on administrative law grounds. See discussion in Chapter Seven. 1013 Under the Town and Country Planning Act 1990 (UK), planning permission must be sought to undertaken any development of land (s 57). The stationing of caravans on land has been held to be a ‘development’ for the purposes of the Act. See Buckley v United Kingdom (1997) 23 EHRR 101, [29] and the cases cited therein. 1014 Section 178 of the Town and Country Planning Act 1990 (UK) provides: ‘(1) Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice, the local planning authority may (a) enter the land and take the steps; and (b) recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so.’

307 the long grass in Darwin constitute homes for their occupants. In particular, the Gypsy and Traveller cases have addressed: the central test that is to be applied to defining a ‘home’; whether or not a home unlawfully occupied under domestic law can engage protection; whether there is any minimum length of necessary occupation; and other factors that may be taken into account in identifying the existence of a home for the purposes of engaging art 8 of the ECHR. Each of these questions is now explored.

1 The Central Test: ‘Sufficient Continuous Links’ The question of whether the forced eviction of a Gypsy family from their unlawful camping pitch affected their ‘home’ for the purposes of engaging art 8 of the ECHR first came before the European Court of Human Rights in Buckley v United Kingdom (‘Buckley’).1015 Buckley was the first case to reach a hearing before the European Court of Human Rights regarding the minority rights of Gypsies and Travellers in relation to forced evictions. It followed shortly after the first determination by the European Court of Human Rights that dealt in any detail with the interpretation of the term ‘home’ under art 8: Gillow v United Kingdom (‘Gillow’).1016

In Buckley, the applicant, Mrs Buckley had lived a travelling Gypsy lifestyle all of her life. However, in 1988, she moved onto her sister’s pitch in South Cambridgeshire, part of a growing Gypsy settled community, in the lead up to the birth of her third child, ‘because she found it hard being constantly on the move with young children’.1017 Shortly after, Mrs Buckley purchased a section of her sister’s land and commenced living there with her three caravans. In 1989, she made a retrospective application to the South Cambridgeshire District Council for planning permission under the Town and Country Planning Act 1990 (UK) to live on her land in her caravans. The application was refused on the grounds, inter alia, that ‘adequate provision had been made for Gypsy caravans elsewhere in the South Cambridgeshire area, which had in the Council’s opinion reached “saturation point” for Gypsy

1015 (1997) 23 EHRR 101 1016 (1989) 11 EHRR 335, discussed further below. 1017 Buckley v United Kingdom (1997) 23 EHRR 101, [10].

308 accommodation.’1018 Evidence showed that there were vacancies at an official Gypsy site in the district but Mrs Buckley did not wish to live there due to concerns regarding anti-social behaviour. In 1990, the Council issued an enforcement notice against Ms Buckley, requiring her to remove her caravans from the property within a month. She appealed under the Town and Country Planning Act 1990 (UK) against the initial planning decision to the Inspector and then to the Secretary of State but was unsuccessful, the Inspector noting in her report that

I consider it important to keep concentrations of sites for gypsies small, because in this way they are more readily accepted by the local community … [T]he concentration of gypsy sites in Willingham has reached the desirable maximum and I do not consider that the overall need for sites should, in this case outweigh the planning objections (emphasis added).1019

In 1994, Mrs Buckley applied again for planning approval and was again unsuccessful. On this occasion, she appealed to the High Court on grounds analogous to judicial review,1020 and the appeal was pending at the time the matter was dealt with by the European Court of Human Rights. By this time, Mrs Buckley had also been prosecuted on four occasions for failing to comply with the enforcement notice that ordered her to leave the site.1021 Mrs Buckley alleged, inter alia, that the United Kingdom was preventing her from living in her caravan and from ‘following the traditional lifestyle of a Gypsy’ in violation of art 8 of the ECHR.1022 The UK Government asserted that art 8 did not apply because ‘only a “home” legally established could attract [its] protection...’1023 The European Commission had

1018 Ibid,[14]. 1019 Ibid [16]. 1020 Town and Country Planning Act 1990 (UK), s 289. The appeal is on a point of law, and the court is limited to a supervisory jurisdiction, rather than original jurisdiction enabling a re-examination of the issues on the merits. 1021 Buckley v United Kingdom (1997) 23 EHRR 101, [18]. 1022 Ms Buckley also included in her original claim allegations that the criminalisation of ‘unauthorised camping’ under the Criminal Justice and Public Order Act 1994 (UK) discriminated against Gypsies by preventing them from pursuing their traditional lifestyles. This claim is discussed later in the section of this Chapter. 1023 Buckley v United Kingdom (1997) 23 EHRR 101, [52].

309 rejected this submission, and the European Court of Human Rights agreed. Adopting the decision in Gillow, the Commission opined as follows:

'Home' is an autonomous concept which does not depend on classification under domestic law. Whether or not a particular habitation constitutes a 'home' which attracts the protection of Article 8(1) will depend on the factual circumstances, namely, the existence of sufficient and continuous links. The factor of 'unlawfulness' is relevant rather to considerations under paragraph 2 of that provision of 'in accordance with law' and to the balancing exercise undertaken between the interests of the community and those of the individual in assessing the necessity of any interference (emphasis added) (citations omitted).1024

As noted above, the decision of Gillow had been the first occasion upon which the term ‘home’ was interpreted by the European Court of Human Rights. The decision in Gillow set the test that, in order to have a place recognised as a ‘home’, the person must show ‘sufficient continuous links’ with that place. Mr and Mrs Gillow had purchased and lived in a house in Guernsey for three years from 1957 until 1960 when they left to work elsewhere. After 18 years absence, they sought to return to live in the house in 1978, but legislation had been introduced requiring them to make an application for a license to do so, because they had not been residing on the island on the specified date of 31 July 1968.1025 Their application for a license was refused and they faced prosecution for unlawfully living in the house that they owned. Mr and Mrs Gillow ultimately pursued their case to the European Court of Human Rights, alleging a violation of art 8 of the ECHR. By the time of the hearing, the government had conceded that there had been a violation of art 8, on the basis that their home was affected, and that the refusal to grant a licence to the Gillows was disproportionate in light of their special circumstances (not particularised in the judgment). However, the European Court of Human Rights proceeded to deal with the alleged violation of art 8 in any event. It held that there were ‘sufficient continuing links’1026 with the house for

1024 'Complaint Under Article 8 of the Convention on Human Rights (Application No 20348/92); Report of the Commission (Adopted January 11)' (1995) Journal of Planning & Environment Law 633, 635. . 1025 Housing Law 1975 (Guernsey), s 6(1)(h). 1026 Gillow v United Kingdom (1989) 11 EHRR 335, [46].

310 it to be considered the ‘home’ of the Gillows for the purposes of art 8, taking into account the following factors: the applicants had not established another home; they owned the site; their personal belongings were located there; they had had a continuing intention to take up permanent residency at the site during the period of their absence; and the applicants had returned to live in the property for a further twelve months until it was sold.1027

Buyse analyses the decision in Gillow as follows:

[T]he Court took into account both positive and negative elements. Length of absence and the establishment of another home may diminish or break the continuing link, whereas both objective aspects such as periods of habitation, ownership, presence of personal belongings and subjective aspects such as intention to take up permanent residence may strengthen the link. It is unclear whether each of the positive factors taken by itself is a necessary requirement or that the absence of one of them can be compensated by others. Interestingly, time is both a positive (habitation) and negative (absence) factor. In [Gillow] even the fact that the period of absence (19 years) was much longer than the total period of residence (around three years) did not break the link between the Gillows and their house.’ 1028

The test laid down in Gillow and affirmed in Buckley has since been adopted and applied in various decisions1029 and has become the central test under art 8 against which a range of factors will be taken into account in order to establish whether a person’s home has been affected. A number of factors appear to be relevant to assessment under the Gillow test, including lawfulness and length of occupation, together with other evidence of permanency, intention and attachment to the site. The question of whether people living in the long grass in Darwin might be able to meet this test is explored further below.

1027 Ibid 348-9. 1028 Antoine Buyse, 'Strings Attached: The Concept of "Home" in the Case Law of the European Court of Human Rights ' (2006) 3 European Human Rights Law Review 294, 298. 1029 See, eg, Ward v Hillingdon LBC [2001] HRLR 40 [2001] EWHC Admin 91 QBD (Admin Ct); and R (on the Application of James Casey) v Crawley Borough Council [2006] EWHC 301 (Admin).

311 2 Can a Home Occupied Unlawfully Engage the Right to Respect for the Home? People who live in the long grass in Darwin do not have a current legal right recognised under domestic law to occupy the places and spaces around the urban centre of Darwin in the Northern Territory, nor do they have any legal or equitable interest in that land. Does unlawful occupation defeat the ability to have recognition of the places and space that they may consider ‘home’ under art 17 of the ICCPR? And how does the legality of occupancy relate to the Gillow test, if such a test was to be adopted by the HRC?

The HRC Committee in its 2005 Concluding Observation found that forced eviction of people from settlements unlawfully occupied in Kenya violated art 17, establishing that unlawful occupation will not be a bar to protection. This position accords with the commentary of both the CESCR1030 and the UN Special Rapporteur on Adequate Housing1031 regarding the prohibition on forced evictions under art 11(1) of the ICESCR. Both have expressly identified that unlawful occupation should not affect a person’s right to protection in accordance with human rights standards under the ICESCR. As noted by the Special Rapporteur, forced evictions are ‘often linked to the absence of legally secure tenure.’1032 Human rights protections against forced evictions should be made available ‘to all vulnerable persons and affected persons, irrespective of whether they hold title to home and property under domestic law.’1033

This position is also consistent with the approach of both the European Commission and Court of Human Rights, applying the Gillow test in Buckley, finding that a person’s right to respect for her or his ‘home’ was not dependent upon that home

1030 United Nations Committee on Economic, Social and Cultural Rights, General Comment No 7: Forced Evictions, UN Doc E/1998/22 (1997). 1031 See Special Rapporteur on Adequate Housing, 'Basic Principles and Guidelines on Development- Based Evictions and Displacement: Annex 1 of the Report of the Special Rapporteur on Adequate Housing as a component of the right to an adequate standard of living (UN Doc A/HRC/4/18)' (2007). 1032 Ibid [5]. 1033 Ibid [21].

312 being lawfully established.1034 The Court in Buckley noted that, in Gillow, the applicants had initially occupied their home legally, whereas in Buckley, the applicant was unlawfully occupying her land living in a caravan at all times. However, other factors established sufficient links to the location for it to be considered her home.1035

The proposition that a home established unlawfully under domestic law may be afforded protection under art 8, decided in Buckley, has been affirmed in subsequent authorities. For example, in R (on the application of O’Brien and others) v Basildon District Council (‘O’Brien’),1036 a decision of the UK Administrative Court (Queen’s Bench Division), the court was asked to review the lawfulness of a decision by the Council to remove Gypsy caravans and other structures that had been erected on plots, again without requisite planning approval. One of the grounds for challenge was that the proposed evictions under s 178 of the Town and Country Planning Act 1990 (UK) were contrary to art 8 of the ECHR. It was common ground in this case that the proposed actions by the Council involved an interference with the homes of the families, and therefore engaged art 8,1037 although the occupancy of the caravan sites in each case was unlawful at all times, and constituted criminal conduct. In one case, the occupier did not own the land.1038

1034 Cf Antoine Buyse, 'Strings Attached: The Concept of "Home" in the Case Law of the European Court of Human Rights ' (2006) 3 European Human Rights Law Review 294, 306, who argues that ‘[t]here should, at some point in time, have been a legal interest in the home concerned.’ 1035 In Buckley, ‘the court [was] satisfied that the applicant bought the land to establish her residence there. She has lived there almost continuously since 1988 – save for an absence of two weeks, for family reasons, in 1993 … - and it has not been suggested that she has established, or intends to establish, another residence elsewhere. The case therefore concerns the applicant’s right to respect for her ‘home’: Buckley v United Kingdom (1997) 23 EHRR 101, [54]. 1036 [2006] EWHC 1346. 1037 Ibid [98]: ‘[Council for the Gypsy claimants] first submitted that s 178 [which empowers the Council to remove the caravans and structures], when used in a case such as this, was in effect a residential eviction power, and, as was common ground, its use engaged art 8 ECHR and indeed art 1 of the First Protocol because the Claimants owned the land in question, though that did not give rise to any separate issues.’ 1038 Ibid [28].

313 Similarly, in South Cambridgeshire District Council v Dan Flynn (‘Flynn’),1039 the High Court of Justice Queens Bench Division in the United Kingdom held that caravans occupied unlawfully without planning approval constituted homes for the purposes of engaging art 8. The Gypsies had occupied the land in their caravans for periods ranging from four to seven years. However, at all times, their occupancy was unlawful as they had failed to obtain planning permission to use the sites as residential caravan sites and each person living on the plots was committing a criminal offence.1040 Once again, it was not disputed by any of the parties to the proceedings that the caravans, and the land upon which they were located, constituted homes.

It would seem that the illegality of the occupancy of a specific place will not be sufficient to deny the status of ‘home’ to that place under art 8 of the ECHR.1041 These authorities effectively overturn an early decision of the European Commission of Human Rights in S v United Kingdom1042 in which the Commission had ruled that a person living without lawful permission under a protected tenancy could not engage art 8 protection to challenge a forced eviction. In that case, Ms S had been in a same-

1039 [2006] EWHC 1320. 1040 Under s 179 of the Town and Country Planning Act 1990 (UK), if a person fails to comply with an enforcement notice within the time notified, that person commits a criminal offence, and may be prosecuted, and , if convicted, liable to a fine. A person cannot be imprisoned for commission of this offence. 1041 See, also, Oneryildiz v Turkey (48939/99) [2002] ECHR 491 (18 June 2002) in which a family who lived as ‘slum-dwellers’ near a tip without any legal title to the land or permission to occupy the land were able to claim compensation for the destruction of their homes and properties following a methane gas explosion caused by the negligence of local officials. The claim, based on art 1 protocol 1, regarding protection of possessions could not be defeated by reason of the authorities failure to act to remove them during the period of their occupation of the site and allowing their occupation to continue, including collecting taxes from them . It was not disputed that ‘the applicant's dwelling had been erected in breach of Turkish town planning regulations and had not conformed to the relevant technical standards, or that the land it had occupied belonged to the Treasury’, at [125]. See, further, Khatun v United Kingdom (1998) 26 EHRR CD 212, 215 where the Commission again refused to draw a distinction between homes in which the person claiming art 8 protection held proprietary rights and those in which they do not. ‘Even where occupation of the property is illegal, this will not necessarily prevent that occupation from being that person's 'home' within the meaning of article 8 of the Convention’, citing Buckley v United Kingdom (1997) 23 EHRR 101. 1042 (1986) 47 DR 274.

314 sex partnership with Mrs R for over ten years and had lived with Mrs R for three years in a property the subject of a protected tenancy in the name of Mrs R. Upon the death of Mrs R, the Council evicted Ms S on the basis that she was not recognised as the ‘wife’ of Mrs R and was therefore not entitled to succeed Mrs R as a protected tenant. The Commission found that, in the absence of any lawful right of occupancy, Ms S’s claim under art 8 was inadmissible.1043 The Buckley decision that illegality of occupancy does not prevent claiming art 8 protection is an important finding in relation to people living in the long grass in Darwin in the Northern Territory. The individuals and family groupings have no legal rights to occupy the land upon which they are living.

However, subsequent application of the Gillow test has identified that, whilst the unlawful character of the occupancy of land will not be sufficient to deny a place as constituting a person’s home, unlawful occupancy, lack of any legal interest in the site may be a factor that is taken into account when assessing whether the occupancy of a particular place is of sufficient permanency or duration to satisfy the Gillow test. For example, in Ward v Hillingdon LBC (‘Ward’),1044 Mr Ward and his family were Travellers who took up occupancy of a plot on a council-owned Gypsy and Traveller authorised caravan site without permission, and therefore as a trespasser under domestic law with no legal interest in the land whatsoever. After two weeks, the Council issued a removal direction to the Wards under s 77(1) of the CJPOA and, failing compliance, it applied to the courts for a removal or eviction order under s 78. Non-compliance with a removal order constitutes a criminal offence liable to a fine. Mr Ward made an application for judicial review of the Council’s decision, arguing, inter alia, that the removal direction was issued in violation of his right to respect for his home under art 8 of the ECHR. The court rejected the argument that the site

1043 Ibid [4]: ‘The Commission notes that the applicant was occupying the house, of which her partner had been the tenant, without any legal title whatsoever. Contractual relations were established between the local authority and the deceased partner and that contractual agreement may or may not have permitted long-term visitors. The fact remains, however, that on the death of the partner, under the ordinary law, the applicant was no longer entitled to remain in the house, and the local authority was entitled to possession so that the could not no longer be regarded as “home” for the applicant within the meaning of Article 8…’ 1044 [2001] HRLR 40 [2001] EWHC Admin 91 QBD (Admin Ct).

315 constituted the Wards’ home, on the basis that they had occupied the site for only two weeks and as trespassers, indicating that unlawful occupation may be a factor against a finding that a site constitutes ‘home’, particularly when the occupancy is of a short duration.1045

Similarly, in Leeds City Council v Price (‘Price’),1046 the House of Lords was unanimous in finding that a Gypsy family trespassing on public land for only two days could not engage art 8 protection to challenge their eviction. Lord Scott put it this way:

If a traveller with his caravan enters as a trespasser upon a piece of land, by what process does the small area of land on which he happens to station his caravan, and presumably, a few square yards surrounding that small area of land, become identified as his “home”? If a homeless person enters an unoccupied building, places his few possessions in one of the rooms and spends the next night or two there, does the room become his “home” in relation to which he is entitled to an article 8 ‘right of respect’? The answer must, I think be ‘No’ … It could not, in my opinion, credibly be suggested that in the two days between the entry by the Maloneys on the recreation ground and the commencement by Leeds [City Council] of possession proceedings the Maloneys had established “sufficient and continuous links” with the piece of land on which their caravan stood so as to constitute that singular piece of land their article 8(1) ‘home’.1047

His Lordship did however acknowledge that a status as trespasser will not necessarily preclude engaging protection.

It is clearly possible for a trespasser to establish a ‘home’ in property that belongs to someone else but whether and when he has done so must be matters of degree.1048

1045 Ibid [29]: ‘I do not think that plot 8, which Mr Ward had occupied as a trespasser for about a fortnight, could be said to be "his home", but his private and family life are affected by the council's decision.’ 1046 [2006] 2 WLR 570. 1047 [2006] 2 WLR 570, 615. 1048 Ibid 615.

316 The proposition that the lawfulness of occupation may be a factor relevant to determining whether a site is to be considered a ‘home’ is also supported by the decision of the High Court of Justice in R(on the application of James Casey) v Crawley Borough Council (‘Casey’).1049 Shortly before 5 September 2005, an extended family group of Irish Travellers and their children set up camp on an unauthorised site – a grass road-side verge on a road leading to residential flats - in the locality of the Crawley Borough Council. They took up the site because they literally had nowhere else to go. Justice Burton summarised their position as follows:

[The family group have] been moved on some 30 to 40 times per year. There is a distinct shortage of authorised sites nationally, and so they are driven to encamp in unauthorised sites, from which sooner or later they are moved on, to the considerable disruption of their children’s education. Members of the extended family have been coming to Crawley since 1992/3, and they have thus acquired over the years substantial links with the Crawley area. There are no authorised sites in the Crawley area. Although it is accepted that the grass verge at Dalewood…is not acceptable, they prefer to stay there than to leave and find themselves back in the spiral of constantly being moved on. They know of no plots vacant on authorised sites in the West Sussex, area, and will inevitably be driven, wherever they go, to unauthorised camping. They do not assert any entitlement or desire to stay on where they are at present, but resist being moved on until an alternative site is found. They effectively rely on the unavailability of any unauthorised sites as founding their case that they should not be moved on until one is found. Although they have applied, pursuant to the homelessness legislation, to the Defendant Council, and, because of their links with the area, have been accepted on the list, they will not accept an offer of ‘bricks and mortar’ accommodation, even on a temporary basis, because of their cultural aversion to it.1050

Within 2 days of their occupancy, on 6 September 2005, the Council took proceedings against them in the Horsham County Court, seeking repossession. The family challenged the proceedings, arguing, inter alia, that the eviction would violate their human rights under art 8 of the ECHR. A preliminary question was whether the site

1049 [2006] EWHC 301 (Admin). 1050 Ibid [13].

317 constituted a ‘home’ within the meaning of that provision. The court drew a clear distinction between those situations where unlawful occupation has been for an extended period of time, establishing ‘…”sufficient continuing links”, such as to make the place their home’,1051 and cases, such as the one under consideration, where the occupancy involved ‘trespassers with no sufficient or continuing links, indeed no connection, with the land…’1052 The court relied on the Gillow test to draw this distinction, finding that an unlawful site of only a day or two’s duration could not be considered a ‘home’ for the purposes of art 8.1053

Buyse also proposes that, in order for a place to be found to be a ‘home’ under art 8, ‘there should always be some form of legal interest in the house at stake, citing Loveland in support.1054 Loveland proposes that ‘[t]here is no explicit indication in the European Court of Human Rights’ case law that a ‘home’ can be established if the applicant has no legal interest in the dwelling or the land on which is stands unless the applicant’s residence is with the consent of a person having such an interest.’1055 His proposition accords with Buckley and subsequent decisions to the extent that, in all the cases dealt with by the European Court to date, the applicant either held a legal

1051 Ibid [38]. 1052 Ibid [38]. 1053 Burton J cited both the authorities of Price and Chapman in reaching this conclusion. He noted that in Price, the court had left open the question of whether trespassers could ever rely on an art 8 defence to possession proceedings, hence indicating that this was at least a possibility, without reaching a conclusion. However, Burton J considered that, in Chapman, the court’s reasoning suggested a contrary finding. This is a curious reference as the passage from Chapman cited by His Honour does not appear to be directly on point with respect to this particular question: R (on the Application of James Casey) v Crawley Borough Council [2006] EWHC 301 (Admin), [40]. 1054 Antoine Buyse, 'Strings Attached: The Concept of "Home" in the Case Law of the European Court of Human Rights ' (2006) 3 European Human Rights Law Review 294, 300. 1055 Ian Loveland, 'When is a House Not a Home Under Article 8 ECHR' (2002) Public Law 221, 223. See further, at 223-6, for a useful review of relevant authorities. See also Martin Davies and David Hughes, 'An End of the Affair - Social Housing, Relationship Breakdown, and the Human Rights Act 1998' (2004) Jan/Feb Conveyancer and Property Lawyer 19, citing S v United Kingdom (1986) 47 DR 274 in support.

318 interest in the land but was living on the land unlawfully in caravans,1056 or was lawfully occupying the land prior to eviction.1057 Whilst this may be the case, on the other hand, the court in Buckley was clear in stating that lawfulness of occupation would not be a factor in determining whether a site was a person’s home, and therefore art 8 was engaged. The court stated that lawfulness of occupation would go to determining whether the interference could be justified under art 8(2). Further, to date, the European Court of Human Rights has not explicitly ruled out a home being recognised where that person has always lived on the land as a trespasser.1058

On a global scale, it seems unsustainable to propose that, under the ICCPR, a person must always have some legal interest in the land, either by way of secure tenure, license or consent, in order to be recognised as having a home from a human rights perspective. As acknowledged in Millennium Development Goal No 7, Target 11, an estimated 1 billion people live in ‘slums’ or informal settlements, on land to which they do not currently have any legal title or occupancy rights. They are technically ‘trespassers’ under domestic law. For example, as at 2001, ‘38 per cent of urban residents in China lived in slums, compared to 56 per cent in India. In Bangladesh, 85 per cent of the urban populations live in slums, while Pakistan stood at 74 per cent.’1059 Further, the 2005 Concluding Observations of the HRC leave in no doubt that, under art 17 of the ICCPR, people who are trespassers under domestic law may also be entitled to human rights protection.

1056 See, eg, Chapman v United Kingdom (2001) 33 EHRR 399; Smith v United Kingdom [2001] ECHR 45; and Beard v United Kingdom [2001] 33 EHRR 442. See also the discussion in Malcolm Langford and Jean du Plessis, 'Dignity in the Rubble? Forced Evictions and Human Rights Law ' (Centre on Housing Rights and Evictions, 2005), 20, where the authors argue that it is clearly ‘arguable that for homeless people a regular place/s for ‘sleeping rough’ would constitute a home.’ 1057 Connors v United Kingdom [2004] ECHR 223. 1058 In S v United Kingdom (1986) 47 DR 274, discussed above, it was unclear whether Ms S was lawfully living in the protected tenancy during the lifetime of Mrs R, but this factor was not considered relevant to the court’s determination. 1059 UN Habitat, 'First Asia Pacific Ministerial Conference on Housing and Human Settlements' (Press Release, 19 October 2006).

319 As such, it is contended that, contrary to some lower court authorities regarding art 8 of the ECHR, the unlawful occupation of land by people living in the long grass in Darwin in the Northern Territory does not rule out engaging protection from forced evictions under art 17 of the ICCPR and should not weigh against such a finding.

3 Length of Occupancy Required to Establish a ‘Home’ As Chapter Four has detailed, a significant proportion of people living in the long grass in Darwin have been doing so for lengthy periods of time. Memmott and Fantin found that 42% of the 52 Indigenous people they interviewed in 2001 had been living in the long grass for between 5 to 20 years.1060 Overall, the census findings of the ABS have found that homeless people in the primary homelessness category, which includes people living in the long grass, are a ‘low-turn over group’,1061 with ‘three quarters of the people living in impoverished dwellings one year before the census.’1062 Langton also notes that a proportion of people live in the long grass and in the beach camps of Darwin ‘permanently.’1063 However, it can be anticipated that, whilst people may have been ‘living in the long grass’ for lengthy periods of time, many people will have only been camping at a specific site for short periods of time. As Chamberlain notes, ‘[p]eople who ‘sleep rough’ often move around…’1064 The short periods of occupancies are likely due to a range of factors, including importantly the impact of policing and patrols under the DCC Public Places Program that continuously move on people from camping sites, as well as movement associated with travelling to fulfil cultural and family obligations. It is likely that many people living in the long grass have only occupied a specific site for a matter of days or

1060 Paul Memmott and Shaneen Fantin, '"The Long Grassers": A Strategic Report on Indigenous "Itinerants" in the Darwin and Palmerston Area' (Paul Memmott & Associates, 2001), 60. 1061 Chris Chamberlain and David MacKenzie, 'Counting the Homeless 2001' (ABS Catalogue No 2050.0, Australian Bureau of Statistics, 2003), 41. 1062 Chris Chamberlain, 'Counting the Homeless: Implications for Policy Development 1996' (ABS Catalogue No 2041.0, Australian Bureau of Statistics, 1999), 38. See, further, Chapter Four. 1063 Marcia Langton, 'The Long Grass People of Darwin' (1998) 11(4) Parity 24. 1064 Chris Chamberlain, 'Counting the Homeless: Implications for Policy Development 1996' (ABS Catalogue No 2041.0, Australian Bureau of Statistics, 1999), 38.

320 weeks although there is no evidence-based research available to verify this proposition.

Is there any length of occupancy that would be required before any of these camping sites could be considered a ‘home’ for the purposes of art 17 of the ICCPR, in light of their ‘unlawfulness’?

There are no relevant findings by the HRC on this question nor does the CESCR or the UN Special Rapporteur suggest that length of occupancy is relevant to whether human rights protections against forced evictions should apply to places where people are living. However, once again, the case law from the United Kingdom and the European Court of Human Rights has addressed this issue in the context of the application of art 8 of the ECHR.

As can be seen from the decisions in Ward and Casey, dealing with art 8 and discussed above, on each occasion the court took into account the short occupancy length at a specific site (two weeks, and two days, respectively) combined with the unlawful character of the occupation, to find that these sites failed to meet the Gillow test of a ‘home’. Similarly, in Price, the House of Lords found that it was ‘all but unarguable’1065 that an unlawful Gypsy encampment of two days only could be considered a ‘home’ for the purposes of art 8. ‘[T]hey had been on the site for two days, without any authority whatsoever, when the Council issued proceedings for possession. There is nothing to suggest that they could show such continuous links with the land as would be necessary if it were to be regarded as their home.’1066

Buyse argues that these two factors – lawfulness and occupancy length - are relevant to assessing the extent to which a person has a reasonable expectation that the place they occupy will be treated as their home.

1065 Leeds City Council v Price [2006] 2 WLR 570, [48] (Lord Bingham). 1066 Ibid.

321 a reasonable expectation that a place will be respected exists in respect of a house one has bought and just moved into, whereas it does not in the case of a short stay in a hotel room…1067

This approach was also taken in R (Fuller) v Chief Constable of the Dorset Constabulary (‘Fuller’) 1068which involved judicial review and art 8 challenges to the issuing of a removal direction by the police under the CJPOA against a group of Travellers on an unauthorised encampment.1069 A group of some 20 adult Travellers and their four pre-school age children had set up an unauthorised encampment on council land. The Travellers were advised that they would have to leave in a month’s time. The removal direction under the CJPOA was issued shortly after the month had expired. Burnton J rejected any notion that the eviction engaged their right to respect for a home. Buyse suggests that, in a situation where a person occupies a site unlawfully, or in circumstances that do not necessarily involve an expectation that the place will be a person’s permanent home, at least a month would be required to meet the Gillow test. 1070 However, in Fuller, a month was not enough. Citing Gillow, Burnton J was of the view that to establish a home requires a ‘degree of continuity’ which was ‘absent in the present case. The Travellers had arrived only in July and knew from an early stage that their presence would be tolerated only until the end of August.’1071 This finding does support the proposition that expectations of any ability to stay will play a part in the determination.

It would seem that the more effective the state authorities are in continuously displacing people who are endeavouring to establish a home in public space, through

1067 Antoine Buyse, 'Strings Attached: The Concept of "Home" in the Case Law of the European Court of Human Rights ' (2006) 3 European Human Rights Law Review 294, 300. 1068 R (Fuller) v Chief Constable of the Dorset Constabulary [2002] 3 All ER 57. 1069 The decision in Fuller is discussed further in Chapter Seven. 1070 Antoine Buyse, 'Strings Attached: The Concept of "Home" in the Case Law of the European Court of Human Rights ' (2006) 3 European Human Rights Law Review 294, 300, citing O'Rourke v United Kingdom (App No 39022/97), decision of 26 June 2001. In that case, the applicant had been evicted from a hotel room he had occupied for less than a month for alleged improper behaviour. The Court expressed ‘significant doubts’ as to whether the hotel room constituted a ‘home’ to engage possible art 8 protection. 1071 R (Fuller) v Chief Constable of the Dorset Constabulary [2002] 3 All ER 57, [73].

322 repeated directions to move on under threat of prosecution, the less likely it may be that a person will be able to engage art 17 protection due to the short stays in each location. This approach is likely to reduce the ability of some people living in the long grass to assert that their right to respect of a ‘home’ is affected.

However, it is important to note that there is some authority for being able to claim protection from interference with one’s home if the eviction from a site occurred in the past, and the person has since been prevented from again taking up occupation despite a desire to do so. In such a case, the person may still be able to assert that the site from which they were evicted remains their ‘home’ for the purposes of art 17. Authorities appear to suggest that, where an absence of occupation from a site is due to the interference of the State, rather than a voluntary act, this absence may be discounted in determining whether the person has a continuous link with the site. A person should not be denied the right to claim respect for their traditional home when they have been forcibly evicted from it. 1072 These authorities may be useful to a person living in the long grass in Darwin where the person can show that, at some time in the past, they occupied a particular camping site on an extended basis such as to meet the test of constituting a ‘home’, even though they are now more constantly on the move, due to daily patrols and policing. It may be possible to claim a violation of their rights under art 17 arising out of the past forced evictions. The history of forced evictions of Johnny Balaiya and his extended family is a case in point. The following is an interview with family members following their forced eviction from Yarrawonga Camp on the outskirts of Darwin under the Trespass Act 1987 (NT) in 2004:

1072 See Antoine Buyse, 'Strings Attached: The Concept of "Home" in the Case Law of the European Court of Human Rights ' (2006) 3 European Human Rights Law Review 294, 298, citing Dogan v Turkey (2005) 41 EHRR 15, in which the applicants had been forcibly evicted from their homes by the Turkish security forces in 1994, and yet were found entitled to art 8 protection despite being absent for 10 years. See also Demades v Turkey [2003] ECHR 416, where the applicant had been denied access to his house from 1974 until the date of hearing in 2005. In that case, the Court treated the case as a continuing violation commencing from 1974. See also Cyprus v Turkey (2002) 35 EHRR 30, which involved prevention of displaced Greek Cypriots being able to return to their homes from 1974 until the date of hearing in 2001, also treated as a continuing violation of art 8.

323 DM Police brought that paper…They said just start move, well if not, they give us that paper $2000 fine… Only one night to pack things – we just moved next day

GB From Fish camp we been moved out…When we went back to get our stuff, there was nothing there. Everything was all clean. A couple of tarps was gone missing, tent, mattress and bunk gone … They should have packed things to go back and pick up all our stuff there.

DM Lee point was first, we got kicked out from there and they shift us out to Kululuk. One week Kululuk to Fish Camp. Then kicked out. Then we had a house for the old people, but too many hassles going on. That’s why we left that house at Milner. I knew that would happen. I didn’t’ want to get that house. So that’s what happened. Yarrawonga is the last camp now. But we still looking for camp. We can’t stay [at 15 mile].

JC We’d like to go back to same place. For years we stay there. We rather stay in long grass, you know!

DM I told that policewoman, I said ‘look, we like to stay in bush, long grass, cause we born in bush. It’s alright you balanda,1073you born in house. But us mob, we born in bush and that’s our country and that’s our bush camp.’ But they said, ah, you still have to move from here or otherwise $2000 fine.1074

In Johnny Balaiya’s words,

I’m the person, one person, when I’m staying her. I sit here for 4, 5 years myself and I have one dog and especially family, Tommy and Michael and, sometime Helen staying here every year…

I used to camp here but I still look after im (country). Please, well might be sometime when you can’t change your mind because you got to still write me down and I’m still full time and I’ll keep im this place here from … I’ll call it my word. This is

1073 Local term for white person. 1074 Yarrawonga mob, 'Forced Eviction at Yarrawonga' (2004) (4) Longgrass Magazine .

324 Darwin Larrakia but I still look after im. Just like Maningrida camp but I look after im to…That’s the real one story.1075

The eviction from Yarrawonga Camp followed earlier evictions of members of the same extended family group.

We are people from central Arnhem Land who have lived in Darwin for a long time. For eight months, we have been camping under tarpaulins in the bush near Palmerston. There is no water supply or sewerage where we are. Men from the NT Government told us to move from our camp in the bush near the Lee Point last July. Some of us had lived there for at least four years without any trouble.

At Lee Point, there were many people from central Arnhem Land who are relations of ours. Those people are now camped all around Darwin, at Fish Camp, Tiwi and Fannie Bay. None of them have houses, toilets or showers. They live under tarpaulins like us.

We are asking you government to make a good place where we can camp where there are toilets, showers and laundry. There is a lot of bushland between Casuarina, Lee Point and Buffalo Creek. We would like to have a meeting between the government and our people about this idea.1076

Whilst the exact length of occupancy of each of these camps would need further investigation, there is sufficient evidence to establish a long history of forced evictions from a number of key camping areas, occupied for extended periods of time, dating back over ten years in order to contend that the evictions from these ‘homes’ may engage art 17, even if some of those camps have not been occupied for some time.

1075 Various, 'Open Letter to Larrakia Nation and Marla Elders' (2004) (4) Longgrass Magazine 3. 1076 Letter from Johnny Balaiya et al to the Hon M J Palmer, Minister for Aboriginal Development, 12 March 1997.

325 4 Other Factors to be Taken into Account The case law under art 8 of the ECHR indicates that, in addition to the lawfulness of the occupation and the length of occupation (including gaps in occupation), a number of other factors may also be taken into account in assessing whether a person has sufficient continuous links with the site. These factors have included: whether the person has established another home elsewhere:1077 whether the person has left personal belongings at the site:1078 expression of subjective intent to live in the place permanently;1079 whether the person has been given some expectation that they are able to stay;1080 and whether the private and family functions are developed in that place.1081 These factors may variously impact on the success of a particular person or group living in the long grass being able to establish the existence of a ‘home’ based on the Gillow interpretative approach. It is not uncommon, for example, for Indigenous people to move between Darwin and their ‘home’ community on a periodically regular basis, in order to participate in cultural and family obligation, sometimes being absent from one place or the other for extended periods of time. The lack of objective expressions of intention to stay permanently, such as the creation of structures and shelters, may also be directly linked to the efforts of people to stay out of view, and to lessen the likelihood of being moved on by policing authorities. It can be seen that, to a greater or lesser extent, the kinds of factors highlighted in Gillow as evidencing a ‘home’ for the purposes of art 8 are directly linked to the central test of whether a person has established ‘sufficient continuous links’ with the specific location.

1077 Gillow v United Kingdom (1989) 11 EHRR 335. 1078 Ibid. 1079 Ibid. 1080 R (Fuller) v Chief Constable of the Dorset Constabulary [2002] 3 All ER 57, [73]. 1081 See Moreno Gomez v Spain (2005) 41 EHRR 40 (ECHR), [53]: ‘A home will usually be the place, the physically defined area, where private and family life develops.’ See also discussion in Antoine Buyse, 'Strings Attached: The Concept of "Home" in the Case Law of the European Court of Human Rights ' (2006) 3 European Human Rights Law Review 294.

326 5 Cultural Bias in the Interpretation of ‘Home’ under Art 8 of the ECHR It is arguable that the approach of the courts to the interpretation of ‘home’ detailed in the cases discussed above, which places the test of ‘sufficient continuous links’ – an extended relationship with a specific location - at the core of the definition of ‘home’ discloses a cultural bias towards a settled lifestyle. Buyse argues that the jurisprudence reveals three distinct concepts attributable to the notion of ‘home’: security; privacy; and attachment, and that the case law of the European Court of Human Rights has given the element of attachment the greatest weight.1082 As Buyse notes, it seems that the courts have used the test in Gillow to guide their interpretation of the term ‘home’ under art 8, which gives primacy to the specific physical location and the length of association of a person with that place. Whilst the European Court of Human Rights has articulated that the term ‘home’ is to be given an ‘extensive interpretation’,1083 extending protection to holiday homes,1084 private business premises1085 and corporate offices,1086 the court has not yet recognised that an area or region or network of land or places to which nomadic peoples have an attachment may constitute a home.

For example, in Casey, the court did not find that the Irish Traveller family had sufficient continuous links with the area to which they had been returning for over 10 years. Counsel for the Travellers argued that, even if the occupation of the specific site had only been for a couple of days, the family had ‘sufficient links with the locality.’1087 However, she framed these submissions primarily to assert a violation regarding their family and privacy, rather than their home, discussed further in the next section.

1082 Antoine Buyse, 'Strings Attached: The Concept of "Home" in the Case Law of the European Court of Human Rights ' (2006) 3 European Human Rights Law Review 294, 308. 1083 Demades v Turkey [2003] ECHR 416, [33]. 1084 Ibid. 1085 Niemietz v Germany (1992) 16 EHRR 97 , [26]. 1086 Société Colas Est v France [2002] ECHR 421 [40]-[42]. 1087 R (on the Application of James Casey) v Crawley Borough Council [2006] EWHC 301 (Admin), [43].

327 The application of the Gillow test throughout the series of Gypsy and Traveller cases has failed to extend the meaning of home to accommodate the travelling lifestyle. This failure to extend the meaning of home in recognition of more nomadic lifestyles is ironic given that the cases have been in the context of efforts by Gypsy and Traveller communities to secure greater protection and recognition of their travelling traditions. Just because you are constantly on the move, does this mean you do not have a sense of home? Are you not capable of having a real attachment to an area, if not to a specific site? Is not the place that provides you with a home for the night, cumulatively, just as important as one site which provides you a home for many

years?

It is suggested that the definition of home adopted by the European Court of Human Rights in Gillow is open to challenge, certainly before the HRC. The Committee’s General Comment No 16 on art 17 is extremely general in its terms and does not set out the elements that should be taken into account in determining how a person’s home is to be identified. The definition of ‘home’ is largely untested before the HRC, and whilst the European jurisprudence may inform the interpretation of the ICCPR, it is not binding. The approach of the HRC is unpredictable as was demonstrated by Coronel v Columbia,1088 a case involving a raid on a house by police, rather than a forced eviction. In that case, the HRC accepted that unlawful raids of houses where people were staying, but where they did not normally reside, constituted a violation of their right to respect for their home under art 17 of the ICCPR.1089 The issue of

1088 Communication No 778/1997, UN Doc CCPR/C/76/D/778/1997 (2002). See discussion in Antoine Buyse, 'Strings Attached: The Concept of "Home" in the Case Law of the European Court of Human Rights ' (2006) 3 European Human Rights Law Review 294, 305. 1089 Coronel v Columbia, Communication No 778/1997, UN Doc CCPR/C/76/D/778/1997 (2002), [9.7]: ‘With regard to the claim under article 17 of the Covenant, the Committee must determine whether the specific conditions in which the raid on the homes of the victims and their families took place constitute a violation of that article. The Committee takes note of the authors' allegations that both the raids and the detentions were carried out illegally, since the soldiers did not have search or arrest warrants. It also takes note of the corroborating testimony gathered from witnesses by the Attorney-General's Office showing that the procedures were carried out illegally in the private houses where the victims were staying. In addition, the Committee considers that the State party has not provided any explanation in this regard to justify the action described. Consequently, the Committee concludes that there has been a violation of article 17, paragraph 1, inasmuch as there was unlawful

328 whether the place constituted a home for all persons found in the house on that night was not disputed before the HRC. The facts in the decision do not indicate how long the people in that house had been residing there and it appears that at least some of the persons were only sleeping there for the night. 1090

As noted above, in the context of people living in the long grass in Darwin in the Northern Territory, it is likely that a significant proportion of people will have been living and sleeping in specific sites for only short period of time. However, the camps that people have established represented significant and important places to which people seek to return. Anthropological evidence demonstrates that there are some clearly identifiable camping places and areas that have been traditionally used by people from various language groups on an ongoing if transient basis with people holding a strong attachment to the Darwin area.1091 For example, Memmott and Fantin reported in 2001 that they found a ‘similar range of groups at a similar set of locations’1092 to the camp locations identified ten years earlier. Indeed, most of the ‘unauthorised’ Aboriginal camps around Darwin that were identified by an inquiry back in 1923 ‘continue to be occasional camping places for itinerants in 2001.’1093 Memmott and Fantin affirmed that ‘Central Arnhem Land people, representatives of whom have been camping around Darwin for up to fifty years, have been evicted

interference in the homes of the victims and their families or in the houses where the victims were present, including the home of the minor Luis Ernesto Ascanio Ascanio, even though he was not there at the time.’ 1090 See Antoine Buyse, 'Strings Attached: The Concept of "Home" in the Case Law of the European Court of Human Rights ' (2006) 3 European Human Rights Law Review 294, 304-5, for a review of the HRC findings on the meaning of home. 1091 W. Bartlett Day, Aboriginal Fringe Dwellers in Darwin, Australia: Cultural Persistence or a Culture of Resistance? (PhD Thesis, Department of Anthropology, University of Western Australia, 2001). 1092 Paul Memmott and Shaneen Fantin, '"The Long Grassers": A Strategic Report on Indigenous "Itinerants" in the Darwin and Palmerston Area' (Paul Memmott & Associates, 2001), 37. 1093 Ibid 36.

329 from a variety of locations,’1094 referring to evictions from Fish Camp and Lee Point, recorded in detail by Bill Day.1095

The story of Johnny Balaiya and his extended family is just one history of resistance to displacement in the face of progressive evictions:

We are the extend family of Johnny Balaiya. We are his brothers, sons and daughters and grandkids. We are people from the Maningrida area an extended family from other areas of the Northern Territory.

People in our family have been living in Darwin many years. We have a long history of living in many places all around Darwin and Palmerston. We have a long history of being moved from place to place by authorities like police, lands department and developers.

This camp is very important for us. Our Daddy, Johnny Bailaiya (sic) was living in this camp since 2001; he was living in this area since the family was kicked out of Lee Point.1096 Ninya (Daddy) has lived in this area and at this camp many times from when he first walked overland, following his family when the Japanese were bombing Milingimbi and Darwin.

Over the years, we have all been camping with Ninya, he is our elder and a lawman and many people come to see him for this reason. Balaiya camp is where family are welcome to come and stay for however long they need to stay in Darwin.1097

There is scope for arguing for a more culturally-relative definition of home under art 17 in order to reflect the reality of the life styles of people living in the long grass and

1094 Ibid 36. 1095 See W. Bartlett Day, Aboriginal Fringe Dwellers in Darwin, Australia: Cultural Persistence or a Culture of Resistance? (PhD Thesis, Department of Anthropology, University of Western Australia, 2001), 76-87, 201-269. 1096 Lee Point is another site in Darwin, Northern Territory, which has been a traditional camping area of many Aboriginal people living in public space. For a background to the struggle of Bob Bundawabi and others to secure a permanent camp site at Lee Point, see ibid 201-259. 1097 Various, 'Open Letter to Larrakia Nation and Marla Elders' (2004) (4) Longgrass Magazine 3.

330 other more nomadic or travelling communities and cultural groups. A culturally relative interpretation of ‘home’ is necessary to ensure that the benefit of art 17 protection is not disproportionately denied to minority groups such as the Indigenous people living in the long grass in Darwin, Northern Territory.

6 The Concept of Home in other Disciplines and Commentary It is outside the scope of this thesis to expand on the diverse approaches that could be taken to the interpretation of ‘home’ under art 17 from either Indigenous or non- Indigenous perspectives. The development of universally applicable interpretative principles that might guide the meaning of ‘home’ under art 17 of the ICCPR to accommodate the diverse and complex social, political and cultural elements associated with the concept of ‘home presents deep challenges.

Fox argues that a legal concept of home has yet to be fully developed either under art 8 of the ECHR or in other legal contexts which adequately reflects the complexity of the concept of home, identified in other research disciplines. As Fox notes, once there is a finding that the human rights provision is engaged, it requires the state decision- maker to balance the interests to be affected by an interference, which is explored further in Chapter Seven. Fox argues that such a balancing exercise requires:

a more clearly articulated conception of the values that a property [or place] holds for an occupier as a home than legal analysis currently offers … [and] … adds weight to the call … for a more fully worked out legal concept of home.1098

The challenge of an attempt to develop a legal concept of home to accommodate cultural differences is demonstrated by just one example - the efforts to define the notion of ‘homelessness’ - the absence of a ‘home’ - in the Australian social policy context.

1098 Lorna Fox, 'The Meaning of Home: A Chimerical Concept or a Legal Challenge?' (2002) 29(4) Journal of Law and Society 580, 598.

331 Currently, the most accepted definition of ‘homelessness’ for Australian public policy purposes is the ‘cultural definition’ of homelessness, detailed in Chapter Four. Developed by Chamberlain and MacKenzie, the definition proposes that a person has a home if they enjoy a minimum standard of housing by reference to the cultural norm in the Australian context: ‘a small rental flat to live in – with a room to sleep in, a room to live in, kitchen and bathroom facilities of their own, and an element of security of tenure’.1099 People are then considered to be homeless if they do not have access to this minimum standard of housing. The cultural definition applies an objective test. It does not incorporate a person’s subjective perspective.

The cultural definition of homelessness has been very important in developing measurable indicators of the number of homeless people in Australia1100 and has enabled the development of credible baselines for estimations of the number of people who are homeless, and the rate of homelessness over time. The cultural definition has also been important in efforts to improve the effectiveness of data collection methods particularly for counting people who are in the primary homelessness category, such as people living in the long grass,1101 and for supporting the development of public policy responses to homelessness in Australia.1102 However, it is suggested that such

1099 Chris Chamberlain and Guy Johnson, 'The Debate about Homelessness' (2001) 36(1) Australian Journal of Social Issues 35, 39. 1100 See Chris Chamberlain, 'Counting the Homeless: Implications for Policy Development 1996' (ABS Catalogue No 2041.0, Australian Bureau of Statistics, 1999), vi: ‘There can be no meaningful public debate about the best policy responses to assist homeless people, unless there is reliable information on the number of homeless people in the community. This requires an operational definition of homelessness which can be easily measured, and credible data on the population identified by the definition.’ See, also, Chris Chamberlain and David MacKenzie, 'Understanding Contemporary Homelessness: Issues of Definition and Meaning' (1992) 27(4) Australian Journal of Social Issues 274. 1101 Australian Bureau of Statistics, '1996 Census: Homeless Enumeration Strategy (Evaluation of the Field Objective)' (Census Working Paper 91/1, Australian Bureau of Statistics, 1997). 1102 As noted by Netty Horton, former CEO of the Council to Homeless Persons, based in Melbourne, ‘…[o]ne of the major developments [in ten years as CEO] was the ABS’s publication of estimated national figures for the homeless population, a landmark that came about largely as a result of the work of Chris Chamberlain and David McKenzie. For those of us involved in lobbying governments and others about homelessness, this changed the landscape of negotiations, providing for the first time

332 a definition lacks the cultural relativity required in terms of recognising the homes of people of diverse cultural backgrounds from a human rights perspective.

The image of Indigenous people living in bush camps and other more traditional lifestyles is one of government neglect that can be ameliorated by the provision of single family dwellings. Yet each of the contexts of traditional obligations and nomadic lifestyles can be an acceptable form of living for some Indigenous people.

The values and philosophical assumptions that attach to definitions of homelessness do not operate well for Indigenous people. They presuppose what is good and what is bad, without consideration of the unique qualities of the cultural obligations and roles that influence the way in which many Indigenous people live their lives and satisfy their family and cultural obligations.

Many of these people neither seek nor want any form of intervention into the way in which they are living. At the same time they look for acceptance and understanding that the lives that they lead should be respected and with that respect should come supports and assistance at the time and in the way, which most support their individual views of how their lives should be led.1103

Indeed it has been suggested that ‘[g]lobally, the term homeless has become a catch- all for a range of situations which imply a failure to reside in "acceptable" ways in the post-industrial urban conglomerations’.1104

As with the Gillow test of what constitutes a ‘home’, the cultural definition of ‘homelessness’ substantially fails to adequately represent the experiences of people such as Johnny Balaiya and his extended family, living in public space in the long grass in Darwin.

figures about which the government and the sector were broadly in agreement. See Netty Horton, 'A Decade of Change' (2003) 16(1) Parity 16. 1103 Chris MacQueen, 'Developing a Vision to Address Indigenous Homelessness' (2003) (March) Australian Federation of Homelessness Organisations News 6, 7. 1104 Marcia Langton, 'The Long Grass People of Darwin' (1998) 11(4) Parity 24.

333 But we say to them like this - 'we belong to here, this is our Motherland. We was born here, this is our homeland, not yours. You balanda people you come here, just like a leaf that blows with the wind.1105'

A recently developed definition of homelessness seeks to better reflect the diversity and complexity associated with some of the expressed aspirations of people such as those living in public space. The definition was developed by Anne Coleman through a process of active engagement with long-term ‘homeless’ people in a particular local community. Coleman undertook a field study of the experiences of long-term homeless people in Fortitude Valley, Brisbane, Queensland. She set out to facilitate the development of a definition of ‘homelessness’ by homeless people themselves. She argued that a more accurate definition of homelessness may be achieved through exploring the perspectives of homeless people. In this way, the definition may reflect homeless people’s experience, concerns and problems.1106 Her definition, developed through this process, was as follows:

Homelessness is having no legitimacy or control over the spaces in which you live, and no legitimated role within the community in which you live. This way of understanding and defining homelessness is in marked contrast to the currently used and accepted definitions in a number of ways, and appears to offer some advantages over definitions currently in use in Australia.1107

1105 Susan Gurrawiwi, 'We different from balanda, we look after family: Interview with Susan Gurrawiwi (Yothu Yindi Family from Gove), 15 Sept 2002' (2003) 1 Longgrass 12. 1106 Anne Coleman, Five Star Motels: Spaces, Places and Homelessness in Fortitude Valley, Brisbane (PhD Thesis, School of Social Work and Social Policy, The University of Queensland, 2000). Coleman interviewed a number of long term homeless people living in public space in Fortitude Valley in Brisbane. At 144, she notes: ‘Two [people] said they were homeless. One was accommodated and the other was not. The first was accommodated some small distance from Fortitude Valley, and had been for a number of years. He acknowledged that he was adequately sheltered, but did not feel relaxed or at east in his accommodation, and felt increasingly isolated from the Fortitude Valley community. In his opinion his accommodation did not represent a home for these reasons. The second [person] who identified as homeless was an Indigenous person removed from his family at the age of two. His sense of homelessness was not the result of his lack of accommodation, nor his twenty-five history as a homeless person in Fortitude Valley, but of his removal from family and place’. 1107 Ibid 167.

334

Coleman argues:

Definitions of homelessness which focus on lack of accommodation [such as the cultural definition] ignore the complex relationships people experiencing long-term homelessness have with the public spaces they use, and the significance of these spaces.

They also continue the decontexualisation of homelessness. Existing definitions are impossible to apply in arguing for the right of homeless people to access public space; indeed they do not even acknowledge the significance of public space.1108

Coleman’s definition of homelessness acknowledges that some people, although they consider they have a home living in public space share a common problem with other homeless people who want conventional accommodation: they lack the legitimacy and control over their home that conventional accommodation provides within our political, economic, social and legal system. Her definition has found some acceptance, particularly in research about Indigenous homelessness.1109

This is not to assert that people living in the long grass do not seek improvements to their living conditions in the places and spaces they consider home. Johnny Balaiya sued the Northern Territory Government for failing to provide culturally appropriate housing to accommodate his special needs when faced with a forced eviction from his established bush camp. In his claim to the NT Anti-Discrimination Commission, Johnny Balaiya asked for accommodation that would, inter alia, provide for clean

1108 Ibid 167. 1109 See, eg, Paul Memmott and Shaneen Fantin, '"The Long Grassers": A Strategic Report on Indigenous "Itinerants" in the Darwin and Palmerston Area' (Paul Memmott & Associates, 2001). See also Paul Memmott, Stephen Long and Catherine Chambers, 'Categories of Indigenous 'Homeless' People and Good Practice Responses to Their Needs' (Australian Housing and Urban Research Institute, 2003).

335 running water, toilets, shower and electricity, as well as sufficient space to enable him to welcome extended family and conduct many activities outside.1110

It is also not to suggest that all people living in the long grass have the same sense of home living in camps in Darwin. Bill Day distinguishes between ‘itinerants’ who drink in parks and public places and sleep in the long grass, and people who build more established dwellings in known locations, such as Johnny Balaiya and others. Day argues that the building of dwellings ‘seems to show a greater commitment to place and perhaps a greater willingness to resist efforts to displace them.’1111

It is clear, however, from the voices of Johnny Balaiya and his extended family, as people who have lived in the long grass at camps such as Lee Point, and Yarrawonga, that these places and spaces around Darwin were their homes, preferred in light of the existing housing options available to them.

Developing a legal definition of home to accommodate the notion of lack of control and legitimacy and subjective perspectives on associations with places and spaces would be difficult if the purpose is to generate national estimates of homelessness. In that context, the ‘cultural definition’ developed by Chamberlain and McKenzie has been particularly important. However, in the context of a human rights analysis, the Coleman definition may indeed make an important contribution.

7 Summary This section has examined relevant authorities and sources to assess whether it could be argued that, when a person living in the long grass is moved on or forcibly evicted from their camps under the DCC By-law 103 (or other empowering legislation such as

1110 Complaint Letter from Darwin Community Legal Service on behalf of Johnny Balaiya to The Anti- Discrimination Commissioner, 29 May 2002. 1111 Email from Bill Day to Author, 26 July 2002. See more generally W. Bartlett Day, Aboriginal Fringe Dwellers in Darwin, Australia: Cultural Persistence or a Culture of Resistance? (PhD Thesis, Department of Anthropology, University of Western Australia, 2001). Dr Bill Day acted as a pro bono expert witness in support of the discrimination complaint brought by Johnny Balaiya against the Northern Territory Government for failing to provide culturally appropriate public housing.

336 the Trespass Act 1987 (NT)), their human right to respect for their ‘home’ under art 17 of the HRC is engaged.

It concluded that, applying the Gillow test of the European Court of Human Rights, it may be difficult for people living in the long grass to demonstrate sufficient continuous links to a specific site in order for that site to be recognised as a ‘home’. However, there are also likely to be significant examples of camp sites which have been well known and established, such as to meet the Gillow test. In these cases, the fact that the camp site is unlawful under domestic law would not defeat engaging the protection of art 17 of the ICCPR, based on the approach already taken by the HRC to the issue of informal settlements and the authorities discussed. If a person could demonstrate sufficient ongoing links with the site, such as through lengthy occupation, and establishment of structures, the location may be found to constitute their home. Where people have previously been forcibly evicted from these camps, their absence from these sites may also be discounted, when determining their continuous occupation.

It is also suggested that any claim under art 17 of the ICCPR should assert a more cultural relative approach to the definition of ‘home’ than the one being applied under art 8 of the ECHR. A more cultural relative approach, not tied to requiring sufficient continuous links with a specific site, is vital for people who live more transient and less settled ways of life. An interpretative approach to the meaning of home in art 17 which encompasses culturally diverse experiences of home is consistent with a human rights approach to the definition, ensuring that people of diverse cultural backgrounds are able to equally enjoy the human rights protections offered by art 17 without being denied their cultural identity. A brief discussion of alternative perspectives on what it means to have a home identifies this issue as meriting further exploration. Such an argument is yet to be adequately explored, or adjudicated before the HRC.

337 C Does a Forced Eviction Affect the ‘Privacy’ and ‘Family’ of People Living in the Long Grass?

Even if a person living in the long grass in Darwin is found not to possess a ‘home’ at the time of their forced eviction, it is likely to be arguable that the acts by the State engage art 17 by reason of their impact on the person’s ability to sustain some notion of ‘privacy’ and ‘family’. Unlike the concept of home, in which the authorities appear to accept that people can be homeless, at least for the purposes of art 8 of the ECHR, a person clearly always possesses a sphere of private life which should be protected from interference by the state. It is also arguable that many people will be able to demonstrate the existence of ‘family’, even when living in a state of shared ‘homelessness’, living in public space.

The HRC again has not dealt with the impact of a forced eviction on a person’s private life but has made it clear that the concept of privacy also incorporates personal identity both as an individual and in relation to others.

The Committee considers that the notion of privacy refers to the sphere of a person’s life in which he or she can freely express his or her identity, be it by entering into relationship with others or alone.1112

Nowak proposes that the notion of respecting one’s privacy is to guarantee

the respect for the individual existence of the human being. Every person has a right not only to exist physically, spiritually and legally but also to respect for his or her peculiar, individual nature, appearance, honour and reputation … the sphere of individual autonomy whose existence and field of action does not touch upon the sphere of liberty of others is what we call privacy. It entitles the individual to isolate oneself from one’s fellow human beings, to withdraw from public life into one’s own private sphere, in order to shape ones’ life according to one’s own (egocentric) wishes and expectations.1113

1112 Coeriel v The Netherlands, Communication No 453/1991, UN Doc CCPR/C/57/1, 23-35 (1994), [10.2]. 1113 Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2005), 378.

338

The HRC has also stated that the notion of ‘family’ should be ‘understood broadly’1114 and should accommodate cultural interpretations.

The Committee observes that the objectives of the Covenant require that the term ‘family’ be given a broad interpretation so as to include all those comprising the family as understood in the society in question. It follows that cultural traditions should be taken into account when defining the term ‘family’ in a specific situation.1115

The English and European Courts have also been prepared to take a more expansive approach to the concepts of privacy and family life in the context of forced evictions of Gypsy and Traveller family groups. For example, in Ward, discussed above, the court declined to find that an unlawful site occupied for two weeks by a Traveller family as trespassers under domestic law constituted a ‘home’ for the purposes of art 8 of the ECHR. However, the court was comfortable in finding that the applicant’s ‘privacy’ and ‘family’ were affected when he and his six children were directed to leave the authorised gypsy site which they had occupied without permission.

1114 Tcholatch v Canada, Communication No 1052/2002 , UN Doc CCPR/C/89/D/1052/2002, (2007), [8.2]: ‘As to the alleged violation of article 17, the Committee recalls that the term "family" must be understood broadly, and that it refers not solely to the family home during marriage or cohabitation, but also to the relations in general between parents and a child. [Footnote: 13. See Communication No.201/1985, Hendriks v. The Netherlands, Views adopted on 27 July 1988, paragraph 10.3, and Communication No.417/1990, Santacana v. Spain, Views adopted on 15 July 1994, paragraph 10.2.] Where there are biological ties, there is a strong presumption that a "family" exists and only in exceptional circumstances will such relationship not be protected by article 17. The Committee notes that the author and her daughter lived together until the child was four years old and she was placed in institutional custody and that the author was in contact with the child until August 1999. In these circumstances, the Committee cannot but find that at the time when the authorities intervened, the author and her daughter formed a family within the meaning of article 17 of the Covenant.’ 1115 Hopu and Bessert v France, Communication No 549/1993, UN Doc CCPR/C/60/D/549/1993/Rev 1 (1997), [10.3], concluding that construction of a hotel complex on the author’s ancestral burial grounds did interfere with their right to family and privacy.

339 I do not think that plot 8, which Mr Ward had occupied as a trespasser for about a fortnight, could be said to be "his home", but his private and family life are affected by the council's decision.1116

Similarly, whilst the court in Casey was not prepared to find that a site occupied for only a day or two could constitute a ‘home’ for the purposes of art 8 of the ECHR, it was prepared to accept, if only tentatively, that the eviction of a family group of some eight adults and their children from their place of rest for the night, would constitute an interference with their ‘private and family life.’ As noted above, counsel for the Irish Travellers had argued that, by virtue of the family’s connection to the locality and their prior history of continuous forced evictions, they could claim that ‘further eviction would be an interference with their “private and family life”, even if not with their home’1117 particularly given the impact of the evictions on the children’s education, and on their search for a home. Noting the decision in Ward, Burton J was prepared to assume for the purposes of the case that

there is at least some interference with Article 8 rights, but it is plain that … if there is such interference it is very much at the lower end of the spectrum, given the powerful case for the entitlement of a local authority landowner to enforce its ownership rights and its planning duties.1118

The link between privacy and family and cultural identity has been important for the Gypsy and Traveller litigation and is clearly important in the context of the forced eviction of Indigenous people living in the long grass.

1 Ethnic Identity as an Aspect of Privacy and Family The line of Gypsy and Traveller cases has developed the proposition that a forced eviction which adversely affects a person’s expression of ethnic identity and cultural practices may impact on their privacy and family life under art 8. In particular, the

1116 Ward v Hillingdon LBC [2001] HRLR 40 [2001] EWHC Admin 91 QBD (Admin Ct), [29]. 1117 R (on the Application of James Casey) v Crawley Borough Council [2006] EWHC 301 (Admin), [43]. 1118 Ibid [46].

340 European Court of Human Rights has held in a number of cases that, for Gypsy and Traveller families, occupation of a caravan is an integral part of their ethnic identity. Whilst in Buckley, the court found that Mrs Buckley’s right to respect for her home was in issue, and that accordingly, it did not need to make a finding as to whether her ‘private life’ or ‘family life’ were also affected, 1119 in Chapman v United Kingdom (‘Chapman’),1120 the court expressly found that these rights were also affected. The Chapman case is now discussed.

After Buckley, Chapman was the next occasion upon which the European Court of Human Rights considered the right of Gypsies and Travellers to their traditional way of life. Mrs Chapman was a Gypsy by birth and had travelled all her life. Upon marriage, she continued to live on unauthorised sites, but faced continuous eviction together with her husband and four children.

They were constantly moved from place to place by the police and representatives of local authorities. Their children's education was constantly interrupted because they had to move about.

Due to harassment while she led a travelling life, which was detrimental to the health of the family and the education of the children, the applicant bought a piece of land in 1985 with the intention of living on it in a mobile home.1121

Mrs Chapman made a retrospective planning application for permission to live on this land in caravans but permission was declined. The family was served with enforcement notices under the Town and Country Planning Act 1990 (UK) and subsequently fined for breach of the enforcement notice on two occasions, for 50 GBP and 5000 GBP plus costs. The family was forced to move off their land but returned a couple of years later to again be served with enforcement notices. Mrs Chapman alleged, inter alia, that the planning decision and enforcement measures taken against

1119 Buckley v United Kingdom (1997) 23 EHRR 101, [54]-[55]. 1120 (2001) 33 EHRR 399. See also Coster v United Kingdom [2001] ECHR 44; Beard v United Kingdom [2001] 33 EHRR 442; Smith v United Kingdom [2001] ECHR 45; and Lee v United Kingdom [2001] ECHR 46. 1121 Chapman v United Kingdom (2001) 33 EHRR 399, [11]-[12].

341 her violated art 8 rights to non-interference with her home and her private and family life. The government had conceded that Mrs Chapman’s complaints concerned her right to respect for her home, and argued that it was therefore unnecessary to consider whether her right to respect for privacy and family were also affected. However, the court made a positive finding for Mrs Chapman in this regard, holding that the impact on her ethnic identity as a Gypsy affected her right to respect for privacy and family, as well as her home.

[T]he applicant's occupation of her caravan is an integral part of her ethnic identity as a Gypsy, reflecting the long tradition of that minority of following a travelling lifestyle. This is the case even though, under the pressure of development and diverse policies or by their own choice, many Gypsies no longer live a wholly nomadic existence and increasingly settle for long periods in one place in order to facilitate, for example, the education of their children. Measures affecting the applicant's stationing of her caravans therefore have an impact going beyond the right to respect for her home. They also affect her ability to maintain her identity as a Gypsy and to lead her private and family life in accordance with that tradition.

The Court finds, therefore, that the applicant's right to respect for her private life, family life and home is in issue in the present case.1122

Affirming Chapman, the court also found in Eatson v United Kingdom,1123 that

the applicant’s occupation of her caravan is an integral part of her ethnic identity as a gypsy, reflecting the long tradition of that minority of following a travelling lifestyle. Measures which affected the applicant’s stationing of her caravans have therefore a wider impact than on the right to respect for home. They also affect her ability to maintain her identify as a gypsy and to lead her private and family life in accordance with that tradition (emphasis added).1124

1122 Chapman v United Kingdom (2001) 33 EHRR 399, [73]-[74]. 1123 (Unreported, Application No 39664/98, European Court of Human Rights (Third Section), Admissibility Decision, 30 January 2001). 1124 Ibid 8. See also Coster v United Kingdom [2001] ECHR 44, [87]; Smith v United Kingdom [2001] ECHR 45, [80]; Beard v United Kingdom [2001] 33 EHRR 442, [84]; and Lee v United Kingdom [2001] ECHR 46. [75]. The Court in Buckley v United Kingdom (1997) 23 EHRR 101 at [55]

342

The proposition is also affirmed in the most recent case in the European Court of Human Rights dealing with the ability of Gypsies and Travellers to live in the way of their traditional culture, Codona v United Kingdom.1125 In the face of a council eviction from an unauthorised campsite, Ms Codona, her young son and extended family applied for housing as homeless persons under the Housing Act 1996 (UK). The Council accepted that the applicant was homeless for the purposes of the Housing Act 1996 (UK), and that she had a cultural aversion to bricks and mortar accommodation. However, in the absence of any Gypsy sites being available in the locality, the Council offered bricks and mortar accommodation (bed and breakfast style) on a temporary basis. Ms Codona refused this offer due to her cultural aversion and challenged the decision, arguing that the failure of the Council to provide her with an alternative site rather than conventional housing violated, inter alia, art 8 of the ECHR.

She contended that her private life, family life and home have been infringed because she is now forced to live in unauthorised encampments since she could not accept an offer of bricks and mortar accommodation without abandoning her lifestyle, fundamental to her identity.1126

The Court expressed doubt as to whether the decision by the Council engaged art 81127 but, later in its judgment on admissibility, was prepared to accept that ‘the applicant’s family and private life, as well as her ability to enjoy her home (in the form of her caravan) may well now be the subject of disruption because she and her family have placed their caravans on unauthorised encampments.’1128 However, as Ms Codona

considered it unnecessary to determine this question, having found that the right to a home was engaged. 1125 (Unreported, European Court of Human Rights, Casadevall P, Bratza J, Bonello J, Pellonpaa J, Garlicki J, Borrego Borrego J, Mijovic J, O'Boyle SR, 7 February 2006). 1126 Ibid 9-10. 1127 Ibid 10: ‘..it is far from obvious that Article 8 is engaged. On a proper analysis, it considers that the applicant’s contention is that the United Kingdom is under a positive obligation by virtue of Article 8 to provide her with accommodation of her choosing.’ 1128 Ibid 11.

343 was challenging the decision of the Council under the Housing Act 1996 (UK), and not her risk of criminalisation and forced eviction from the unauthorised site where she was then living, the court did not deal with any alleged human rights violation arising from this potential interference. The case is however authority for the proposition that, if these acts were to occur, the human right to respect for privacy and family life, as well as the home, may be engaged.

Johnson and Willers argue that

[t]he ECtHR’s clear finding that measures affecting Gypsies’ stationing of their caravans affect not merely the right to respect for their ‘home’ in the narrow sense, but their ability as members of an ethnic minority to continue to live according to their traditional travelling lifestyle, is of considerable significance to the approach which should be taken by public authorities when determining whether any interference with such an important right is justified in all the circumstances: the more important the Convention right, the greater the onus of justification on the public authority and therefore the greater the scrutiny that should be afforded to such justifications by the courts .1129

Johnson and Willers therefore seem to suggest, where interference directly impacts on the ability of ‘an ethnic minority to continue to live according to their traditional travelling lifestyle’, a higher duty rests on the state in terms of justifying an interference. This point is elucidated further in Chapter Seven in the context of considering whether the treatment of people living in the long grass would constitute ‘arbitrary and unlawful interference’ under art 17 of the ICCPR.

The line of cases before the European Court of Human Rights support the proposition that state conduct which affects a person’s traditional cultural lifestyle as an aspect of their ethnic identity will impact on their privacy and family life. This arguably goes some way towards compensating for the limited interpretation of the meaning of home in taking into account culturally diverse conceptions of home. However, a note of caution is required. In Fuller, discussed above, Burnton J also considered whether

1129 Chris Johnson and Marc Willers, Gypsy and Traveller Law (2004), 26.

344 the issuing of the removal order under the CJPOA against a group of Travellers who had set up an unauthorised encampment on council land, whilst not affecting their ‘home’, engaged their right to respect of privacy and family life. In his opinion, the use of such a power against Travellers would be less likely to engage art 8 by virtue of their cultural practice of being on the move, when compared with use against people who live a settled life.

In considering the right of the claimants to respect for their private and family life, one must bear in mind the nature of that life. It is a transient life, involving travel from time to time from encampment to encampment. They do not have or intend to create the long-term connections with an area, its people and its institutions or person with a conventional, geographically more fixed, life-style. Their children will necessarily move from school to school, assuming that there are vacancies at schools in the vicinity of their encampments. The degree of interference, if there is such with their family life will be significantly attenuated as compared with persons who have a stationary lifestyle.1130

Burnton J was prepared to accept however that ‘[a]ny eviction from an encampment may involve some interference with family life’.1131

Such dicta again calls for the need for asserting a more culturally relative concept of home, and associated private and family life, in order to avoid people who live less settled lives from being disproportionately denied equal human rights protection. As Anne Coleman emphasises, at the heart of the meaning of homelessness to people who live in public spaces is the lack of control over the places and spaces that are considered home. It is one thing for nomadic peoples to determine in their own time that it is time to move. It is quite another to be forcibly evicted by state authorities.

As Chapter Four details, it is arguable that, like the Gypsies and Travellers in the United Kingdom, some Indigenous people have cultural practices and obligations which are central to their ethnic identity as Indigenous peoples and which may only be met living in the long grass in light of the other housing options available. These

1130 R (Fuller) v Chief Constable of the Dorset Constabulary [2002] 3 All ER 57, [75]. 1131 Ibid [76].

345 cultural practices and obligations include being able to welcome extended family, to sit, cook and conduct living cultural activities, including sleeping, outside, and to be able to move from place to place. Camps established in the long grass are places where many of these ‘private’ and ‘family’ activities occur.

Nephew Yarrawonga is a good place to stay…It’s a place to stay with family and quiet – just sitting down. We having corroboree and all that. Sit round first, listen, talk story….

DM We have to go bush to get away so we can sit, talk family. We don’t want to mix with other people.1132

Over the years we have all been camping with Ninya [Johnny Balaiya], he is our father and keeps us all together. He is our elder and a lawman and many people come to see him for this reason. Balaiya camp is where family are welcome to come and stay for however long they need to stay in Darwin…

We are bush camp people. Housing commission doesn’t work for us – we have too many family.

At Balaiya Camp our family know where they can find us when they come from Maningrida or Outstation. Some stay a week, some stay 3 months.

All the people that come here live bush lifestyle they are only living their own lifestyle that they know how to live.

We don’t want to go anywhere else. We want to stop being pushed from place to place. Maningrida people have a long history in Darwin, but we have no place. This is why this camp is very important place to us.1133

In the same way as the forced evictions of Gypsy and Traveller people whilst living in their caravans interferes with their ability to maintain their ethnic identity, the moving

1132 Yarrawonga mob, 'Forced Eviction at Yarrawonga' (2004) (4) Longgrass Magazine . 1133 Various, 'Open Letter to Larrakia Nation and Marla Elders' (2004) (4) Longgrass Magazine 3

346 on of Indigenous people living in the long grass affects their ability to engage in culture practices and to meet cultural obligations, an interference with their private and family lives.

D Conclusion

This chapter has reviewed the authorities and commentary relevant to art 17 of the ICCPR with a view to assessing whether a forced eviction of a person living in the long grass in Darwin in the Northern Territory may engage the right to respect for privacy, family and home.

The chapter identifies that, in the absence of relevant jurisprudence from the HRC, it is proposed that the Committee may draw on the international norms regarding the prohibition on forced evictions under art 11(1) of the ICESCR to inform its interpretation of obligations under art 17 of the ICCPR in the context of forced evictions. If such an approach was adopted, it seems likely that the Committee would find that the forced evictions of people who living in public space in Darwin in the Northern Territory engages this human right. Their unlawful occupation, sometimes of short duration, would not appear to be relevant to the assessment.

However, if the HRC looks to the jurisprudence of the European Court of Human Rights, the line of Gypsy and Traveller cases from the ECHR provides the most directly relevant authorities regarding engagement of the right to privacy family and home in the context of forced evictions. Applying the Gillow test to the meaning of home, it may be difficult for people living in the long grass to establish that their homes are affected, certainly in cases where they have only been sleeping in places for short periods of time. Where bush camps are more established, and may evidence ‘sufficient continuous’ links, occupants may still be able to seek protection, despite their unlawful occupation. To date, the European Court of Human Rights has not ruled out this possibility.

The point is made however that the current test set out in the Gillow decision of the European Court of Human Rights is limited in its application to minority groups who

347 may live less settled, more transient life styles. The chapter urges the development of a more culturally relative interpretative approach to the meaning of ‘home’ in order to ensure that minority groups who lead more transient lifestyles are not disproportionately denied this human rights protection.

However, even if people in Darwin are constantly moved on such that they are homeless in human rights terms - without a home for the purposes of engaging art 17 protection on that basis - the forced evictions may engage their privacy and family life. The moving on of people who are sleeping in the night involves an interference with one’s privacy. Significantly for Indigenous people living in the long grass, it is also clearly arguable that their displacement impacts on their ability to live in the way of their culture, and therefore their ethnic identity. The Gypsy and Traveller cases have established that, when state conduct affects the ability of a person to engage in cultural expression essential to a person’s ethnic identity, the human right to privacy and family will be engaged. The forced evictions of people living in the long grass may be demonstrated to have such an effect. Many people live in the long grass as an effort to live a traditional lifestyle, in the absence of alternative culturally appropriate accommodation options in the urban centre of Darwin. It is arguable that their forced eviction adversely affects the ability to live in a culturally appropriate way.

If you go down this road of persecuting people who are so called 'homeless' (I would say without a place of residence) we are denying the indigenous people their basic right to choose the way they wish to live. It's assimilation and integration all over again. It's never gone away, those two dirty words.1134

The chapter has dedicated particular attention to analysing the meaning of ‘home’ and the extent to which people living in the long grass may be able to claim that their right to respect for their ‘home’ is affected. As argued at the beginning of this chapter, there is a cogent case for urging the HRC to adopt the normative standards developed under art 11(1) of the ICESCR when an interference under art 17 involves a ‘forced

1134 June Mills, 'Longgrass Association to be represented at Indigenous Homeless Forum' (2003) 1 Longgrass 7.

348 eviction’ within the meaning of that term under art 11(1). The CESCR has defined a forced eviction as

The permanent or temporary removal against their will of individuals, families and/or communities from the homes and/or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection (emphasis added).1135

The UN Special Rapporteur has developed this meaning of a ‘forced eviction’ to apply to

[a]cts and/or omissions involving the coercive or involuntary displacement of individuals, groups and communities from homes and/or lands and the common property resources that were occupied or depended upon, thus eliminating or limiting the ability of an individual, group or community to reside or work in a particular dwelling, residence or location, without the provision of, and access to, appropriate forms of legal or other protection.1136

As such, the case for the incorporation of international normative standards of human rights protection against forced evictions under art 11(1) of the ICESCR into the interpretation of art 17 of the ICCPR is particularly strong where a person can establish that their ‘home’ has been affected, although the argument may still apply where a person can at least show that they occupy the land from which they are being moved. Chapter Seven is premised upon such a finding. It assumes that the use of DCC By-law 103 to move on people living in public space engages their right to privacy, family and home. It endeavours to assess whether this human right is being subjected to violation.

1135 United Nations Committee on Economic, Social and Cultural Rights, General Comment No 7: Forced Evictions, UN Doc E/1998/22 (1997), [3]. 1136 Special Rapporteur on Adequate Housing, 'Basic Principles and Guidelines on Development-Based Evictions and Displacement: Annex 1 of the Report of the Special Rapporteur on Adequate Housing as a component of the right to an adequate standard of living (UN Doc A/HRC/4/18)' (2007), [4].

349

350 7 ARBITRARY OR UNLAWFUL INTERFERENCE WITH PRIVACY, FAMILY AND HOME: IS THERE A VIOLATION?

A Introduction

Chapter Six set out to establish whether state conduct which involves the forced eviction of people living in public space in Darwin in the Northern Territory through enforcement of Darwin City Council By-law 103 (‘DCC by-law 103’) engages their human right to respect for privacy, family and home under art 17 of the International Covenant on Civil and Political Rights (‘ICCPR’).1137 The chapter concluded that this is a likely finding of the United Nations Human Rights Committee (‘HRC’), particularly in light of the impact of enforcement practices on the traditional way of life of Indigenous peoples.

However, art 17 does not provide blanket protection of one’s privacy, family and home. State interference is permitted in certain circumstances. In this chapter, the parameters of permissible interference are examined to determine whether the HRC may find that the forced eviction of people living in the long grass may be considered outside permissible limits, constituting a human rights violation under international law.

The obligation placed on the state under art 17 of the ICCPR may be subject to derogation under art 4(1) of the ICCPR in cases of public emergency1138 but otherwise

1137 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976). 1138 Article 4(1) of the ICCPR provides: ‘In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.’

351 the right to non-interference with privacy, family and home is not subject to any of the express limitations provisions associated with other non-absolute human rights under the treaty.1139 As noted by the United Nations Committee on Economic, Social and Cultural Rights (‘CESCR’), the obligation under art 17 is also not subject to available resources.1140 However, the right does not guarantee absolute freedom from interference with one’s privacy, family and home. State interference with a person’s privacy, family and home is permissible unless it is either ‘unlawful’ or ‘arbitrary’. The HRC has elaborated on the meaning of these terms through its General Comment No 16: The right to Respect of Privacy, Family, Home and Correspondence and Protection of Honour and Reputation (‘General Comment No 16’):1141

The term ‘unlawful’ means that no interference can take place except in cases envisaged by law. Interference authorized by States can only take place on the basis of law, which itself must comply with the provisions, aim and objectives of the Covenant.

The expression ‘arbitrary interference’ is also relevant to the protection of the right provided in article 17. In the Committee’s view the expression ‘arbitrary interference’ can also extend to interference provided for under the law. The introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims

1139 See, eg, art 12 of the ICCPR which protects the right to freedom of movement. Article 12(3) provides that the right to freedom of movement ‘shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.’ 1140 United Nations Committee on Economic, Social and Cultural Rights, General Comment No 7: Forced Evictions, UN Doc E/1998/22 (1997), [8]: ‘[Article 17] recognizes, inter alia, the right to be protected against "arbitrary or unlawful interference" with one's home. It is to be noted that the State's obligation to ensure respect for that right is not qualified by considerations relating to its available resources.’ 1141 United Nations Human Rights Committee, General Comment No 16: The right to Respect of Privacy, Family, Home and Correspondence and Protection of Honour and Reputation UN Doc HRI\GEN\1\Rev 1 at 21 (1988).

352 and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances.1142

Through General Comment No 16, the Committee has therefore made it clear that any interference must also be ‘in accordance with the provisions, aims and objectives of the Covenant.’ It has also defined the term arbitrary to mean ‘reasonableness’ in the particular circumstances. As will be shown, the Committee has then developed the meaning of ‘reasonableness’ through its jurisprudence to require that any interference must: be in pursuit of a ‘legitimate state interest’; afford ‘procedural safeguards’ and give ‘due consideration’ to the interests of the person affected; and, finally, achieve a ‘reasonable’ outcome.

In this chapter, an assessment is made of each of these elements of the prohibition on ‘arbitrary or unlawful interference’ with a person’s privacy, family and home by reference to the experiences of people living in the long grass in Darwin. In undertaking the analysis, the chapter draws on international and comparative sources, including the outputs of the HRC, the normative standards on the prohibition on forced evictions developed under art 11(1) of the International Covenant on Economic, Social and Cultural Rights (‘CESCR’),1143 the jurisprudence regarding art 8 of the European Convention of Human Rights (‘ECHR’),1144 particularly the cases associated with the forced eviction of Gypsies and Travellers in the United Kingdom, and to a lesser extent some comparative human rights jurisprudence dealing with forced evictions, including South Africa cases regarding protection against arbitrary evictions provided in s 26 of the Constitution of South Africa.1145

The chapter firstly considers whether the enforcement practices of the Darwin City Council (‘DCC’) of its DCC By-law 103 would constitute ‘interferences’ with the privacy, family or home of people living in the long grass. It then analyses whether

1142 Ibid [4]. 1143 International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 999 UNTS 3 (entered into force 3 January 1973). 1144 European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221, ETS 5 (entered into force September 1953). 1145 Constitution of the Republic of South Africa Act 2000 of 1993.

353 the interference would be considered to be ‘in accordance with the provisions, aims and objectives of the Covenant.’ The chapter then assesses whether, even if the interferences may be found to be in accordance with the Covenant, the forced evictions would be considered ‘unlawful’ within the meaning of that term in art 17. Finally, even if the interference is found to be lawful, the chapter investigates whether the forced evictions may be considered ‘arbitrary’, hence amounting to a violation of art 17. Finally, the Chapter considers the nature and extent of positive obligations that may arise and also be the basis for a finding of a violation.

The chapter reaches some conclusions about the likelihood of the HRC finding that the forced evictions of people living in the long grass in Darwin in the Northern Territory may be found in violation of art 17 of the ICCPR in light of these international and comparative sources.

B When will State Conduct constitute an ‘Interference’?

The HRC does not typically undertake a detailed analysis of the meaning of the term ‘interference’ in its jurisprudence. In most cases, an individual communication to the Committee has not required it to undertake an analysis of this term separate from the question of whether the human right is ‘engaged’, already addressed in Chapter Six. In the practice of the Committee, these two issues are usually conflated. In its determinations, the Committee has found that, for example, deportation of a person or persons from the country where other members of their immediately family reside may constitute an interference with his or her family life.1146 The Committee has also found that the removal by the state of a child from her or his biological parent will

1146 Byahuranga v Denmark, Communication No 1222/2003, UN Doc CCPR/C/82/D/1222/2003 (2004); Winata v. Australia, Communication No 930/2000, UN Doc CCPR/C/72/D/930/2000, (2001), [7.2]; Bakhtiyari v Australia, Communication No 1069/2002, UN Doc CCPR/C/79/D/1069/2002 (2003); Madafferi v Australia, Communication No 1011/2001, UN Doc CCPR/C/81/D/1011/2001 (2004); Canepa v Canada, Communication No 558/1993, UN Doc CCPR/C/59/D/558/1993 (1997); and Stewart v Canada, Communication No 538/1993, UN Doc CCPR/C/58/D/538/1993 (1996).

354 constitute an interference with family life,1147 as will denial of contact with a biological child1148 or a failure by the state to adequately enforce a court order granting a parent regular contact with their child.1149 Other examples have included: interception by the state of telephone conversations between a person and their lawyer;1150 a state raid of a person’s home;1151 refusal to terminate a pregnancy;1152 refusal to allow a person to change their formal surname;1153 and denial by the state of a passport to enable a wife and her children to be reunited with her husband.1154

The European Court of Human Rights has also found that each eviction or act of criminalisation against Gypsies and Travellers under domestic legislation has also been ‘interference by a public authority’ for the purposes of art 8 of the ECHR.1155

It seems clear that, as long as a person has been personally moved on by a Council officer, or experienced some other direct enforcement action under DCC By-law 103, these enforcement actions would also be considered an ‘interference’ under art 17 of the ICCPR. Council officers wake people up in their camps, and direct them to ‘move on’ to another place. Officers may move people on informally, or in fewer occasions, may issue a formal warning notice. In rare cases, a prosecution is commenced. Officers also have the power to arrest people for non-compliance with their direction to ‘move on’ although the research does not reveal evidence that DCC By-law 103

1147 Tcholatch v Canada, Communication No 1052/2002 , UN Doc CCPR/C/89/D/1052/2002, (2007); and Buckle v New Zealand, Communication No 858/1999, UN Doc CCPR/C/70/D/858/1999 (2000). 1148 E B v New Zealand, Communication No 1368/2005, UN Doc CCPR/C/89/D/1368/2005 (2007); and Fei v Columbia, Communication No 514/1992, UN Doc CCPR/C/57/1 (1995). 1149 LP v Czech Republic, Communication No 946/2000, UN Doc CCPR/C/75/D/946/2000 (2002). 1150 Van Hulst v Netherlands, Communication No 903/2000, UN Doc CCPR/C/82/D/903/2000 (2004). 1151 Coronel v Columbia, Communication No 778/1997, UN Doc CCPR/C/76/D/778/1997 (2002); Sultanova et al v Uzbekistan, Communication No 915/2000, UN Doc CCPR/C/86/D/915/2000; and García v Colombia, Communication No 687/1996, UN Doc CCPR/C/71/D/687/1996 (2001). 1152 Huamán v Peru, Communication No 1153/2003, UN Doc CCPR/C/85/D/1153/2003 (2005). 1153 See Coeriel v The Netherlands, Communication No 453/1991, UN Doc CCPR/C/57/1, 23-35 (1994). 1154 El Dernawi v Libyan Arab Jamahirya, Communication No 1143/2002, UN Doc CCPR/C/90/D/1143/2002, (2007). 1155 See, eg, Buckley v United Kingdom (1997) 23 EHRR 101, [60].

355 was being used to trigger this particular interference, removing the person’s liberty. There seems little doubt that these acts – the moving on of people, or their forced eviction, and on occasion, their criminalisation through commencement of prosecution - would constitute ‘interferences’ for the purposes of art 17.

However, in some cases, both the HRC and the European Court of Human Rights have been required to undertake a separate analysis of what exactly will constitute ‘interference’ under either art 17 of the ICCPR or art 8 of the ECHR, respectively. This has typically been in the context of where a person has alleged that, whilst a law or policy has not been applied to them personally, the existence of the law or policy amounts to an interference with their human right.

Is it necessary for a person living in the long grass to demonstrate that they have personally been ‘moved on’ or prosecuted on a specific occasion in a specific case? Alternatively, would a person be able to argue that the mere existence of DCC By-law 103 amounts to an interference with their human right? Could a communication be brought under art 17 of the ICCPR by a person on the basis that they have reasonable grounds to fear being forcibly evicted or criminalised because they live in the long grass? In such cases, a separate analysis of what constitutes ‘interference’ under art 17 may be required.

1 Is the Possibility of Forced Eviction Sufficient to constitute an Interference? The HRC has made it clear that, in order to constitute ‘interference’ under art 17, a person must at least show that enforcement of a law or policy is ‘more than a theoretical possibility.’ In the Shirin Aumeeruddy-Cziffra v Mauritius (‘Mauritian Women’s Case’),1156 the 19 authors of the communication alleged that a retrospective law that removed residency rights from the foreign husbands of female nationals, but not the foreign wives of male nationals violated, inter alia, art 17 of the ICCPR. The authors argued that the law rendered the foreign husbands of Mauritian women subject to summary deportation, requiring them to apply for temporary residency and

1156 Communication No 35/1978, UN Doc CCPR/C/12/D/35/1978 (1981).

356 work permits. However, only three of the 19 authors were female nationals married to foreign husbands. The remaining authors were not married at all.

[A] distinction has to be made between the different groups of the authors of the present communication. A person can only claim to be a victim in the sense of article 1 of the Optional Protocol if he or she is actually affected. It is a matter of degree how concretely this requirement should be taken. However, no individual can in the abstract, by way of an actio popularis, challenge a law or practice claimed to be contrary to the Covenant. If the law or practice has not already been concretely applied to the detriment of that individual, it must in any event be applicable in such a way that the alleged victim's risk of being affected is more than a theoretical possibility (emphasis added).1157

The HRC ruled that the unmarried women had not been subjected to interference as required by art 17. However, it took the view that the remaining three authors had each been victims, even in those cases where the foreign husbands had not been deported, or refused residency or work rights.

[T]here is no doubt that they are actually affected by these laws, even in the absence of any individual measure of implementation (for instance, by way of a denial of residence, or an order of deportation, concerning one of the husbands). Their claim to be "victims" within the meaning of the Optional Protocol has to be examined.1158

The question of the degree of actual effect required to constitute ‘interference’ under art 17 was also dealt with by the HRC in Toonen v Australia (‘Toonen’).1159 In Toonen, the author argued that the legislation in question, ss 122(a) and (c) and 123 of the Criminal Code Act 1924 (Tas), which criminalised sexual conduct between consenting adult homosexual men was a violation of, inter alia, of art 17 of the ICCPR. The author was a man in a same-sex relationship who had not been charged with the criminal offence under the Code. However, he demonstrated that the mere

1157 Ibid [9.2]. 1158 Ibid [9.2(b)2]. 1159 Communication No 488/1992, UN Doc CCPR/C/50/D/488/1992 (1994).

357 existence of the legislation adversely affected his life in a number of respects. 1160 The HRC had no hesitation in finding that the existence of the Code constituted an interference with Mr Toonen’s privacy rights under art 17.

Mr. Toonen is actually and currently affected by the continued existence of the Tasmanian laws. The Committee considers that Sections 122 (a), (c) and 123 of the Tasmanian Criminal Code "interfere" with the author's privacy, even if these provisions have not been enforced for a decade. In this context, it notes that the policy of the Department of Public Prosecutions not to initiate criminal proceedings in respect of private homosexual conduct does not amount to a guarantee that no actions will be brought against homosexuals in the future, particularly in the light of undisputed statements of the Director of Public Prosecutions of Tasmania in 1988 and those of members of the Tasmanian Parliament. The continued existence of the challenged provisions therefore continuously and directly "interferes" with the author's privacy.1161

This approach by the Committee may be contrasted with the approach of the European Court of Human Rights. For example, in Buckley v United Kingdom (‘Buckley’),1162 Mrs Buckley’s primary complaint was in relation to state action taken against her under planning laws, refusing her permission to live in caravans on her own land. However, she also alleged that the combined effect of the designation system under the Caravan Sites Act 1968 (UK) which made it unlawful for her to

1160 Ibid [2.3-4]: ‘Although in practice the Tasmanian police has not charged anyone either with “unnatural sexual intercourse’ or ‘intercourse against nature’ (Section 122) nor with ‘indecent practice between male persons’ (Section 123) for several years, the author argues that because of his long-term relationship with another man, his active lobbying of Tasmanian politicians and the reports about his activities in the local media, and because of his activities as a gay rights activist and gay HIV/AIDS worker, his private life and his liberty are threatened by the continued existents of Sections 122(a), (c) and 123 of the Criminal Code. Mr. Toonen further argues that the criminalization of homosexuality in private has not permitted him to expose openly his sexuality and to publicize his views on reform of the relevant laws on sexual matters, as he felt that this would have been extremely prejudicial to his employment. In this context, he contends that Sections 122 (a), (c) and 123 have created the conditions for discrimination in employment, constant stigmatization, vilification, threats of physical violence and the violation of basic democratic rights.’ 1161 Ibid [8.2]. 1162 (1997) 23 EHRR 101.

358 pitch her caravans on public land which had been designated under that Act, together with the criminalisation of unauthorised camping under the Criminal Justice and Public Order Act 1994 (UK) (‘CJPOA’), violated her rights as a Gypsy under art 8 of the ECHR. She argued that the Caravan Sites Act 1968 (UK) ‘made it extremely difficult for Gypsies to follow their traditional lifestyle’1163 and that the CJPOA was ‘even more restrictive.’1164 However, Mrs Buckley had not been personally evicted or prosecuted under either Act. The majority of the Court rejected this argument, ‘[i]t not being the Court’s task to review legislation in the abstract...’1165 Similarly, in Chapman v United Kingdom (‘Chapman’),1166 the majority was not prepared to consider an argument that the combined effect of the legislative and policy environment in the United Kingdom made it impossible for Gypsies to preserve their way of life, in circumstances where the applicant had not been moved on or prosecuted under the relevant legislation.

The applicant contended that…the framework of legislation and planning policy and regulations disclosed a lack of respect for those rights as they effectively made it impossible for her to live securely as a Gypsy: either she was forced off her land and would have to station her caravans unlawfully, at the risk of being continually moved on, or she would have to accept conventional housing or ‘forced assimilation.’

The Court considers that it cannot examine legislation and policy in the abstract, its task rather being to examine the application of specific measures or policies to the facts to each individual case. There is no direct measure of “criminalisation” of a

1163 Ibid [56]. 1164 Ibid [56]. 1165 Ibid [59]. The dissenting judgment of Pettiti J in Buckley takes a different view, finding that the combined effect of the legislative and policy framework including the two statutes banning use by Gypsies and Travellers of public land to station their caravans operated as discriminatory interference under arts 8 and 14 of the ECHR: ‘With regard to Article 14 taken together with Article 8 (art. 14+8), the Court holds that there has been no violation (see paragraphs 59 and 88 of the judgment) because it considers that the 1968 and 1994 Acts had not been applied to the applicant's detriment. However, in the general context of Article 14 and Article 8 (art. 14, art. 8) all of the applicant's complaints relate to the effect of the de jure and de facto measures, which, in being discriminatory prevented respect for family life.’: at Pettiti J. 1166 (2001) 33 EHRR 399.

359 particular lifestyle as was the case in Dugdeon v United Kingdom, which concerned legislation rendering adult consensual homosexual relations a criminal offence (citations omitted).1167

In Chapman, the court distinguished cases where, although the person had not been prosecuted, the legislation criminalised ‘a particular lifestyle’ citing Dudgeon v United Kingdom (‘Dudgeon’),1168 which dealt with the criminalisation of consensual sex between adult males. The distinction between the situation faced by Mrs Chapman and that of the applicant in Dudgeon does not seem to work well. Both parties faced criminalisation of conduct which was considered essential to their personal identity and ‘lifestyle’. Further, in the Mauritian Women Case, it could not be said that the regulations criminalised their ‘lifestyles’ because they were married to foreign men. It is suggested that a more appropriate distinguishing feature between the findings in Toonen, the Mauritian Women’s Case and Dudgeon and those in Buckley and Chapman is that, in the former cases, the authors faced a direct impact on their privacy rights because, at the time of the human rights complaint, the legislation was directly applicable to them and could at any time be enforced. As such, the legislation was ‘applicable in such a way that the alleged victim’s risk of being affected [was] more than a theoretical possibility.’1169 In contrast, at the time of the Buckley and Chapman cases, the applicants no longer travelled, nor had they commenced again to do so. As a result, at the time of their complaints, they were not acting in violation of the Caravan Sites Act 1968 (UK) or the CJPOA, at risk of prosecution.

These authorities would suggest that a complaint under art 17 of the ICCPR could be brought by a person who is currently living in the long grass in Darwin in the Northern Territory even if they have not recently been subjected to the direct enforcement of DCC By-law 103. The communication would be on the basis that their forced eviction under this legislative framework is more than a theoretical

1167 Ibid [76]-[77]. 1168 [1981] ECHR 5. 1169 Shirin Aumeeruddy-Cziffra v Mauritius, Communication No 35/1978, UN Doc CCPR/C/12/D/35/1978 (1981), [9.2].

360 possibility. As the evidence set out in Chapter Four establishes, there appears to be between 500 and 1000 people living in the long grass at any given time, with at least two thirds being Indigenous. The statistics from the Darwin City Council (‘DCC’) Public Places Program, tabled before Council meetings on a monthly basis, show that, between July 2004 and July 2007, an average of between 700 and 1400 people per month have been ‘spoken to’ in relation to the by-laws, with indications of some reduction in the monthly average between 2004 and 2007.1170 Whilst the statistics apply to all by-laws enforced by the DCC Public Places Program, the available evidence indicates that some 90% of enforcement action is in relation to alleged violation of DCC By-law 103. Even taking the 2007 average monthly figure of about 700 people, the statistics indicate that people living in the long grass are likely to be warned or moved on at least once a month, assuming the warnings are evenly spread amongst the long grass population. Accordingly, the statistical evidence shows that, for a person living in the long grass in Darwin, it is far more than a theoretical possibility that they will be informally warned and moved on, forcibly evicting them from camps and resting areas. Further, there is likely to be evidence available to demonstrate that the existence of DCC by-law 103 adversely impacts on people living in the long grass. People adapt their behaviour, waking early to avoid council officer patrols, moving before they are moved on, or minimising their visibility, in order to avoid criminalisation and confrontation with the authorities. If a person is found camping, or, as an adult, sleeping in a public place between sun set and sun rise, there is a legitimate expectation that DCC By-law 103 will be enforced against them.1171 The legislation is directly applicable to them. Their situation is analogous to the

1170 The monthly average has varied from year to year, as follows: 1055 persons/month (2004); 1475 persons/month (2005); 853 persons/month (2006); and 756 persons/month (2007). See Chapter Five. 1171 Such an interpretation of the meaning of interference would accord with jurisprudence from the United States dealing with alleged violation of civil rights such as the Eighth Amendment of the United States Constitution which prohibits cruel or unusual punishment. In Jones v City of Los Angeles (Unreported, United States Court of Appeals for the Ninth Circuit, 14 April 2006), the court dealt with an application alleging that an anti-sleeping ordinance used against homeless people violated their rights under the Eighth Amendment. The court accepted that a person did not need to be charged under the ordinance in order to have standing. The plaintiffs had standing if they were homeless and could ‘not avoid engaging in the illegal conduct in the future…The plaintiff need only establish that there is a reasonable expectation that his conduct will recur, triggering the alleged harm; he need not show that such recurrence is probable’: at 17-8.

361 situations in Toonen, the Mauritian Women’s Case and Dudgeon and may be distinguished from Buckley and Chapman in this regard. As such, it is arguable that any person living in public space in Darwin experiences an ‘interference’ with their human rights by virtue of the existence of DCC By-law 103, and could participate in an individual communication to the Committee under art 17, due to the criminalisation of their lifestyle.

C Is an Interference ‘in Accordance with the Provisions, Aims and Objectives of the Covenant’?

As noted above, General Comment No 16 regarding the interpretation of art 17 provides that any interference with a person’s human right to respect for privacy, family and home must be ‘in accordance with the provisions, aims and objectives of the Covenant’ in order to be permissible. This is a requirement which is applicable in addition to the interference not being either unlawful or arbitrary. What exactly does this mean?

General Comment No 16 provides no further guidance on this question nor does the jurisprudence of the HRC. On a textual analysis, this requirement includes and, arguably, goes further than the corresponding express limitations incorporated into other provisions of the ICCPR. For example, restrictions on the right to freedom of movement must be ‘consistent with the other rights recognised in [the ICCPR]’ but not necessarily with its ‘aims’ and ‘objectives’, depending on how these terms may be interpreted in the future.

However, to date, the HRC has not provided further guidance as to the conditions which must be met to comply with this requirement. In each of the decisions on art 17 by the HRC, the Committee does not undertake a separate analysis of this element,1172 even when it expressly identifies this as an additional requirement, citing General Comment No 16 in support.1173

1172 See, eg, Winata v. Australia, Communication No 930/2000, UN Doc CCPR/C/72/D/930/2000, (2001); Buckle v New Zealand, Communication No 858/1999, UN Doc CCPR/C/70/D/858/1999 (2000); Stewart v Canada, Communication No 538/1993, UN Doc CCPR/C/58/D/538/1993 (1996).

362

The Mauritian Women’s Case seems to suggest that this element requires that the state conduct does not contravene another provision of the ICCPR.

[T]he exclusion of a person from a country where close members of his family are living can amount to an interference within the meaning of Article 17. . . . [Whether the immigration laws are] compatible with the Covenant depends on whether such interference is either 'arbitrary or unlawful' as stated in Article 17(1), or conflicts in any other way with the State party's obligations under the Covenant (emphasis added).1174

Interpreted in this way, the requirement may seem to be superfluous, at least where a state party has ratified the ICCPR as a whole without reservation, and is already bound equally by all of its provisions. Once a communication is before the Committee, the Committee may review the allegations against state obligations under the Convention as a whole. The HRC is able to make findings regarding violations of the Covenant based on an individual communication even when that communication does not expressly allege violation of a specific provision.1175

1173 See, eg, Coeriel v The Netherlands, Communication No 453/1991, UN Doc CCPR/C/57/1, 23-35 (1994), [10.4]; Toonen v Australia, Communication No 488/1992, UN Doc CCPR/C/50/D/488/1992 (1994), [8.3]; Van Hulst v Netherlands, Communication No 903/2000, UN Doc CCPR/C/82/D/903/2000 (2004), [7.3]; Byahuranga v Denmark, Communication No 1222/2003, UN Doc CCPR/C/82/D/1222/2003 (2004), [11.7]; García v Colombia, Communication No 687/1996, UN Doc CCPR/C/71/D/687/1996 (2001) [10.3]; Canepa v Canada, Communication No 558/1993, UN Doc CCPR/C/59/D/558/1993 (1997), [11.4]. 1174 Shirin Aumeeruddy-Cziffra v Mauritius, Communication No 35/1978, UN Doc CCPR/C/12/D/35/1978 (1981), [9.2]. 1175 See, eg, the dissenting views Mr Walter Kalin and Mr Hipolita Solari in Dahanayake v Sri Lanka, Communication No 1331/400, UN Doc CCPR/C/87/D/1331/2004 (2006) in which the authors had not argued their case alleging violation of art 17 but the dissenting Committee members proceeded to consider a potential violation of this provision. See also Kone v Senegal, Communication No 386/1989, UN Doc CCPR/C/52/D/386/1989 (1994), in which the author did not expressly refer to any provisions of the Covenant. The Committee proceeded to consider the communication based upon its own views as to the provisions of the Covenant that were engaged by the allegations.

363 Does the requirement that any interference must be in accordance with the provisions aims, and objectives of the Covenant therefore add anything to the analysis?

The Committee has dealt with a communication under art 17 where a state party’s conduct was likely to have offended both art 17 as well as another provision of the Covenant to which the State party was not otherwise bound. In Hopu and Bessert v France,1176 the Committee found a violation of art 17 as a result of the state party leasing land to a private company for development as a luxury hotel resort which would have lead to destruction of a traditional burial site. The Committee indicated that the offending conduct was also likely to have been in violation of art 27 of the Covenant which protects the right to culture.1177 However, the Committee found that it could not make a finding under this article because France had issued a declaration not to be bound by this provision at the time of accession to the ICCPR, constituting a reservation. If the protection afforded under art 17 included an obligation that the interference be ‘in accordance with the provisions, aims and objectives of the Covenant’, the Committee may have been able to make a finding that the destruction of the burial site was not compliant with this requirement, as it also violated another provision of the Covenant, being art 27. However, the Committee did not do so.

Accordingly, it is not clear whether this requirement does indeed add any additional requirements to the analysis.

D When will an Interference be Considered ‘Unlawful’?

In the Darwin case study, each of the actions taken against people living in the long grass by the DCC officers had been authorised by DCC By-law 103, and associated policies and procedures, including the waking up of people before sunrise, the extinguishment of fires burning to keep people warm, the moving on of people from

1176 Communication No 549/1993, UN Doc CCPR/C/60/D/549/1993/Rev 1 (1997). 1177 Article 27 provides: ‘In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members or their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language.’

364 their camping site without any alternative place to go, and commencement of formal enforcement action, at the absolute discretion of the council officers, under threat of arrest if refusing to comply. With the exception of allegations involving assault, or destruction of property during the course of moving people on under DCC By-law 103 or other legal regulations of public space,1178 all these acts are entirely lawful under the Australian domestic legal system. Does this therefore mean that this ‘interference’ is to be considered not ‘unlawful’ for the purposes of art 17 of the ICCPR?

1 ‘Unlawful’ Interference as State Conduct lacking Legal Authority under Domestic Law The HRC has most typically interpreted the term ‘unlawful’ in art 17 to mean that the state interference was not authorised under domestic law. This interpretation is supported by the weight of authority dealing with both art 17 of the ICCPR1179 and also art 8 of the ECHR. In each of the Gypsy and Traveller cases, the forced evictions were being sought either under applicable planning laws, specific legislation dealing with evictions from specific land use sites, or common law claims to repossession of land by property owners. When people were criminalised, the procedures were also commenced under domestic legislation and the prosecutions were made out before the

1178 See, for eg, the allegations set out in 'Darwin City Council Kicks 5 People awake on 1st August 2003' (2003) October(3) Longgrass Magazine 5 and 'Cops Burn People's Possessions: Cops, why they burn my mattress, clothes, all my handbag and everything? ' (2003) October (3) Longgrass Magazine 3. 1179 See, eg, Van Hulst v Netherlands, Communication No 903/2000, UN Doc CCPR/C/82/D/903/2000 (2004), [7.5]: ‘The Committee considers that an interference is not "unlawful", within the meaning of article 17, paragraph 1, if it complies with the relevant domestic law, as interpreted by the national courts’; García v Colombia, Communication No 687/1996, UN Doc CCPR/C/71/D/687/1996 (2001) involving a house raid conducted legally under domestic law; Canepa v Canada, Communication No 558/1993, UN Doc CCPR/C/59/D/558/1993 (1997) involving a deportation order made lawfully under domestic law; and Coeriel v The Netherlands, Communication No 453/1991, UN Doc CCPR/C/57/1, 23-35 (1994) reviewing a state decision to refuse to change a person’s surname, made in accordance with state legal policy; and Shirin Aumeeruddy-Cziffra v Mauritius, Communication No 35/1978, UN Doc CCPR/C/12/D/35/1978 (1981), [9.2]: ‘ Since ... [the state conduct] results from the legislation itself, there can be no question of regarding this interference as “unlawful” within the meaning of art 17(1) in the present cases.’

365 domestic courts. In each one of these cases, the majority court found that the state authority had acted ‘in accordance with the law’ because the actions taken against the families were authorised by domestic legislation.1180

On this interpretation, most of the actions taken by council officers under the DCC Public Places Program, including enforcement of DCC By-law 103, would be found to be lawful for the purposes of art 17. The Northern Territory Supreme Court has previously determined in Goyma v Moore (‘Goyma’)1181 that DCC By-law 103 has been lawfully enacted by the DCC under s 182(1) of the Local Government Act 1993 (NT) and accordingly is lawful under Australian domestic law.

However, whilst accepting that the weight of authority is likely to confine the meaning of ‘unlawful’ to this interpretation, there are three additional possible interpretations which might enable a contrary argument to be made.

2 ‘Unlawful’ Interference as Failure to ‘Specify in Detail the Precise Circumstances’ of Permitted Interference According to General Comment No 16, domestic laws authorising interference must ‘specify in detail the precise circumstances in which such interferences may be permitted. A decision to make use of such authorised interference must be made only by the authority designated under the law, and on a case-by-case basis’1182 thereby interpreting ‘unlawfulness’ to include a requirement of legal predictability.1183 This

1180 See, eg, Buckley v United Kingdom (1997) 23 EHRR 101; Chapman v United Kingdom (2001) 33 EHRR 399; Chichester DC v First Secretary of State & Ors [2005] 1 WLR 279 (CA) Civ Div)); Connors v United Kingdom [2004] ECHR 223; Ward v Hillingdon LBC [2001] HRLR 40 [2001] EWHC Admin 91 QBD (Admin Ct); Chichester DC v First Secretary of State & Ors [2005] 1 WLR 279 (CA) Civ Div)); R (on the Application of James Casey) v Crawley Borough Council [2006] EWHC 301 (Admin). 1181 [1999] 154 FLR 298. 1182 United Nations Human Rights Committee, General Comment No 16: The right to Respect of Privacy, Family, Home and Correspondence and Protection of Honour and Reputation UN Doc HRI\GEN\1\Rev 1 at 21 (1988), [8]. 1183 See Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2005), 383: ‘In evaluating whether interference with privacy by a State enforcement organ represents a violation of

366 requirement is in line with the commentary of the CESCR regarding permissible forced evictions. The CESCR states that legislation which provides for a forced eviction ‘must specify in detail the precise circumstances in which such interferences may be permitted’1184 in order to be compliant with art 11(1) of the ICESCR. Legal predictability is also a requirement under art 8 of the ECHR. As noted by Johnson and Willers,

[t]he requirement that any interference with article 8 rights be in accordance with the law means that there must not only exist a formal legal basis for the interference (for example, a statutory discretion), but that any law which confers a broad discretion must also give sufficient indication as to the scope of that discretion. As the ECtHR stated in Malone v United Kingdom,1185

‘It would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference.’1186

In R (Fuller) v Chief Constable of the Dorset Constabulary (‘Fuller’),1187 the objection to the forced eviction involved both a facial and applied challenge to the validity of the CJPOA under, inter alia, art 8 of the ECHR. As described in Chapter Six, the Travellers in Fuller were directed to leave an unauthorised site after being given a month’s grace. At the time, there were no official Traveller or temporary stopping sites in the locality. However, ‘the county council ha[d] for several years implemented a policy of sensitive management which is consistent with the

Art 17, it must especially be reviewed whether, in addition to conformity with national law, the specific act of enforcement…was predictable in the sense of the rule of law…’ 1184 United Nations Committee on Economic, Social and Cultural Rights, General Comment No 7: Forced Evictions, UN Doc E/1998/22 (1997), [14]. 1185 [1985] 7 EHRR 14. 1186 Chris Johnson and Marc Willers, Gypsy and Traveller Law (2004), 27. 1187 [2002] 3 All ER 57.

367 government’s good practice guidelines,’1188 including a draft ‘toleration policy’ and a Gypsy and Traveller liaison officer. Shortly after the encampment in Fuller was established, the local council officer provided the Travellers with a copy of the council’s policy which provided, inter alia, that ‘intimidatory behaviour, if substantiated, following complaint will not be tolerated.’1189 Subsequently, the council officer issued assessment forms to conduct welfare checks with the Travellers at the site in accordance with government policy. The month’s grace was given to the Travellers, in light of the information gathered during the welfare checks and the absence of any nuisance or complaints, but was subject to their ‘good behaviour.’1190 Subsequently, there was an alleged violent interaction with police at the site, and it was determined that the encampment was to be moved on. By this time, there were some 30 travellers vehicles gathered at the site. The council issued the Travellers with a notice to leave, followed immediately by the police also issuing a direction to leave the site under s 61 of the CJPOA, failure to comply constituting a criminal offence. The Traveller families challenged the police direction, basing their human rights arguments on several grounds. Firstly, it was argued that s 61 of the CJPOA was, as enacted, incompatible with, inter alia, art 8 of the ECHR. Secondly, even if the CJPOA was valid legislation, it was argued that the application against the Travellers in this particular case was in violation of, inter alia, art 8 of the ECHR. As such, the case involved a human rights challenge both to the legislation itself, as well as to the specific exercise of discretion by the police officer under it.

Sitting as the Queen’s Bench Division of the Administrative Court, Burnton J held that s 61 of the CJPOA was not incompatible with art 8 of the ECHR. As a matter of statutory interpretation under the Human Rights Act 1998 (UK), the direction powers under the CJPOA were required to be exercised in compliance with the ECHR, including art 8. The court emphasised that the CJPOA provided a person with a defence to failing to comply with the direction if he or she had a reasonable excuse. The court accepted that an infringement of Convention rights would constitute such

1188 For an overview of the UK Government’s Good Practice Guidelines in relation to Gypsy and Traveller Unauthorised Encampments, see Chapter Six. 1189 R (Fuller) v Chief Constable of the Dorset Constabulary [2002] 3 All ER 57, [5]. 1190 Ibid [8].

368 an excuse. Relying on past decisions dealing with the forced evictions of Gypsies and Travellers, the court highlighted that a forced eviction of a Gypsy or Traveller may violate art 8 but it also may not, depending, in particular, upon whether the direction addressed a ‘pressing social need’ and was proportionate to the legitimate aim pursued. Whether this was the case would depend on the specific facts of each eviction. Accordingly, s 61 could not on its face be found to be incompatible with the ECHR.

The human rights framework available in the UK to inform the interpretation of the CJPOA does not currently exist in the Northern Territory. DCC By-law 103(1) creates an immediate offence if a person camps in a public place, or, as an adult, sleeps in a public place between sunset and sunrise. It then provides for a discretionary power to direct the person to leave that place. DCC By-law 103(3) vests the police and local council officers with a discretion that is unfettered. It simply provides that

an authorised person may direct a person who [camps or, as an adult, sleeps in a public place between sunset and sunrise] to do one or both of the following: (a) leave the public place; or (b) remove any motor vehicle, tent, shelter, gear or equipment to a place specified by the authorised person, and the person shall comply with the direction forthwith (emphasis added).’1191

Failure to comply leads to the commission of a further offence under DCC By law 103(4). Facially, the by-law does not provide any legal predictability regarding the ‘precise circumstances’ in which the legislation is to be applied. The power to direct a person to leave the site under DCC By-law 103(3) is an example of ‘broad discretionary powers conferred by [a] statute … with wide and open-ended terms’1192 in contrast to the CJPOA as interpreted subject to the Human Rights Act 1998 (UK). DCC By-law 103 operates as a blunt instrument theoretically applicable to any person regardless of the impact of the person’s conduct on the interests of others, or the interests of the state. It operates regardless of whether the person has been asleep for five minutes or five days. Neither the by-laws nor DCC policy documents of the

1191 DCC By-law 103(3). 1192 Chris Johnson and Marc Willers, Gypsy and Traveller Law (2004), 22.

369 provide guidance as to the factors to be taken into account in exercising discretion in enforcement. The DCC Public Places Program Procedures reinforce the position that any act of sleeping will constitute an offence:

To gain the most successful outcome…you need to observe the person who is over 18 of age asleep before sunrise. There is no ability for the By Law to allow defences for prosecution, eg being drunk and falling asleep. If you have to wake someone up then they were asleep.1193

Yet, the statistics published by the DCC clearly show that wide discretion is being exercised. Between January 2002 and July 2007, council officers spoke to or observed people in relation to non-compliance with DCC By-law 103 and the other by-laws enforced under the DCC Public Places Program on over 160 000 occasions.1194 Yet, during the same period, only 2424 formal warning notices were issued (1.5%). Council records only commenced to separate out the recording of the number of people ‘observed’, from the number of people ‘spoken to’ in relation to breaches of the by-laws from July 2004. An analysis of records for the three year period from July 2004 until July 2007 show that people were observed infringing by- laws on 72 169 occasions and people were spoken to on 35 606 occasions. Accordingly, council officers exercise a wide discretion as to the number of people they direct to move on. Further, only 1674 formal warning notices were issued (about 5% of the number of people spoken to). There is no ability to determine upon what basis officers exercised discretion in 95% of these cases not to proceed with any kind of formal enforcement procedure, nor do council officers have formal directions as to the basis upon which such discretion is to be exercised.1195

This absence of a human rights regulatory framework may be contrasted with the policy framework that now exists in the United Kingdom with respect to the enforcement of general anti-camping laws such as the CJPOA against Gypsies and Travellers. As found in Fuller, the discretion vested in the police under the CJPOA is

1193 See further Chapter Five. 1194 Ibid. 1195 Informal discussions with council officers indicate that discretion not to move on or formally enforce the by law may be exercised when the group is not highly visible or the source of complaints.

370 subject to the limits of art 8 of ECHR as a result of the rules of statutory interpretation under the Human Rights Act 1998 (UK). The policy frameworks regarding the obligations on local authorities, such as set out in the Guide to Effective Use of Enforcement Powers1196 also sets out detailed limitations.

The absence of a human rights regulatory framework in the Northern Territory to limit the operation of DCC By-law 103 may also be contrasted with the Australian Capital Territory (‘ACT’) and Victoria in Australia where general human rights legislation now exists. In Victoria, public authorities are now required to exercise their discretionary powers in compliance with human rights standards, except in certain limited circumstances.1197 Further, so far as it is possible to do so consistently with the purpose of legislation, Victorian legislation is to be interpreted ‘in a way that is compatible with human rights.’1198 In the ACT, an interpretation of legislation which is consistent with human rights ‘as far as possible is to be preferred.’1199 At the present time, public authorities in the ACT are not under an obligation to act consistently with human rights. However, the ACT government has now introduced amendments to the Human Rights Act 2004 (ACT) proposing that it will be unlawful for public authorities, including the police, to ‘act in a way that is incompatible with a human right … or in making a decision, to fail to give proper consideration to a relevant human right.’1200 The amendments also propose that, when legislation is interpreted, ‘so far as it is possible to do so consistently with its purpose, [the law] must be interpreted in a way that is compatible with human rights.’1201 These amendments would bring the ACT human rights legislation into line with the requirements in Victoria.

1196 Office of the Deputy Prime Minister, 'Guide to Effective Use of Enforcement Powers, Part 1: Unauthorised Encampments', (2006). See Chapter Six. 1197 See Charter of Human Rights and Responsibilities Act 2006 (Vic), s 38. 1198 Charter of Human Rights and Responsibilities Act 2006 (Vic), s 32(1). 1199 See Human Rights Act 2004 (ACT), s 30(1): ‘In working out the meaning of a Territory law, an interpretation that is consistent with human rights is as far as possible to be preferred.’ 1200 Human Rights Amendment Bill 2007 (ACT), s 7, inserting Part 5A into the Human Rights Act 2004 (ACT). 1201 Human Rights Amendment Bill 2007 (ACT), s 5, substituting s 30 of the Human Rights Act 2004 (ACT).

371

DCC By-law 103 may also be contrasted with the move on powers in Queensland under the Police Powers and Responsibilities Act 2000 (Qld), which provides that move on powers may not infringe a person’s right to peaceful assembly unless it is reasonably necessary in the interests of public safety, public order or the rights and freedoms of other people.1202

In the Northern Territory, the discretions under DCC By-law 103 are unfettered. If a person camps or, as an adult, falls asleep in a public place between sunset and sunrise, the council officer or police ‘may … direct a person to … leave the public place … and the person shall comply with the direction forthwith.’1203 Council officers also have an unfettered discretion to direct a person who has committed the offence to leave the public place. Failure to comply is an offence.1204

It may be argued that DCC By-law 103 operates without legal predictability including an absence of human rights limitations, and could arguably be considered ‘unlawful’ interference under art 17, as interpreted by General Comment No 16, as a result.

3‘Unlawful’ Interference as Prior State Conduct Contrary to other Domestic Laws As previously noted, all majority courts in the line of Gypsy and Traveller human rights cases under art 8 from the United Kingdom have held that the interference, whether by way of criminalisation, or forced eviction, was ‘in accordance with the law’ because the actions taken by the public authorities complied with the applicable domestic law. However, one dissenting judgment sets out an alternative analysis. In Chapman, Judge Bonello issued a separate dissenting opinion in order to record his view that, although the actions taken by the state authorities in that case to criminalise Mrs Chapman were taken in accordance with the relevant legislation, the Town and Country Planning Act 1990 (UK), the state party was guilty of prior unlawful conduct which directly lead to Mrs Chapman’s offending behaviour.

1202 See Chapter Two. 1203 DCC By-law 103(3). 1204 DCC By-law 103(4).

372

The authorities were manifestly in a state of illegality from before the time the applicant took the law in her own hands. Section 6 of the Caravan Sites Act 1968 (until it was revoked by the Criminal Justice and Public Order Act 1994 – see paragraph 42 of the judgment), imposed a legal duty on local authorities “so far as may be necessary to provide adequate accommodation for gypsies residing in or resorting to their area”. Indeed, the local authorities had been found in breach of their duty to make adequate provision for Gypsies in the area in 1985 and had disregarded a directive from the Secretary of State to comply with their statutory duties.

I believe that a public authority which is in breach of its legal obligations should not be allowed to plead that it is acting “in accordance with the law”. The classic constitutional doctrine of “clean hands” precludes those who are in prior contravention of the law from claiming the law's protection.

A public authority has as great an obligation to comply with the law as any individual. Its responsibility is eminently more than that of individuals belonging to vulnerable classes who are virtually forced to disregard the law in order to be able to exercise their fundamental right to a private and family life – individuals who have to contravene the law due to the operation of the prior failings of the public authorities.

In the present case, both the public authorities and the individual had undoubtedly trespassed the boundaries of legality. But it was the public authority's default in observing the law that precipitated and induced the subsequent default by the individual. That failing of the authorities has brought about a situation which almost justifies the defence of necessity. Why a human rights court should look with more sympathy at the far-reaching breach of law committed by the powerful than at that forced on the weak has not yet been properly explained.

Here, we are confronted with a situation in which an individual was “entrapped” into breaking the law because a public authority was protected in its own breach. A court's finding in favour of the latter, to the prejudice of the former, is, I believe, a disquieting event. A human rights court, in finding that an authority, manifestly on

373 the wrong side of the rule of law, has acted “in accordance with the law” creates an even graver disturbance to recognised ethical scales of value.1205

Judge Bonello acknowledged that his view was not supported by the current weight of authorities, and his view was expressed tentatively.1206

Is there any basis for arguing that Australian governments have breached their own domestic laws, the direct consequence of which has been to force people living in the long grass to contravene DCC By-law 103? Is the term ‘unlawful’ confined to the specific state conduct the subject of the alleged violation of art 17, or could it be interpreted to refer to the combined actions of the State that have caused the person to be subjected to the interference?

As detailed in Chapter Four, there has been a general agreement across all layers of government that there has been insufficient low cost housing available in Darwin generally to meet the needs of the community, and the statistics in relation to the rates of homelessness in Darwin show that this deficit disproportionately impacts on Indigenous people, particularly because of cultural preferences for living in extended family groups and informal settings rather than a European style accommodation, as well as poverty and other physical and mental health issues. However, unlike the Chapman case, there is no domestic law which has placed a direct statutory duty on the authorities to provide housing for people who are homeless as exists in the Housing Act 1996 (UK), or previously under the Caravan Sites Act 1968 (UK). There is no equivalent of the legislative and policy frameworks that exist in the UK regarding obligations to develop culturally appropriate sites for Gypsies and Travellers. It seems impossible to argue that the overall framework of laws, policies and practices operating in Darwin that lead to the forced eviction of people who live in public space can be considered contrary to the domestic law of Australia. The UN

1205 Chapman v United Kingdom (2001) 33 EHRR 399, Dissenting Judgment of Judge Bonello, [4-8]. 1206 Ibid [2]: ‘I endorsed, albeit grudgingly, the view common to the majority and the minority, that the measures to which the applicant was subjected were “in accordance with the law”. This conclusion is, I believe, difficult to escape, in the light of the current case-law of the Convention. I suggest that the Court should be looking beyond that…My view is that, on a proper reading of Article 8, a different conclusion could, and perhaps ought to, have been reached in this case.’

374 Special Rapporteur has criticised Australia for the lack of such regulatory frameworks and policies being in place to fulfil its obligations under art 11(1) of the ICESCR to protect the human right to adequate housing.1207

As such, this argument is likely to be found without foundation.

4 ‘Unlawful’ Interference as State Conduct contrary to International Law However, could it be argued that the State is acting unlawfully under international law? It is arguable that Australia has been in direct violation of its obligations under the ICESCR in failing to take reasonable steps to the maximum of its available resources to progressively realise the right to adequate housing under art 11(1). This was the clear finding of the UN Special Rapporteur on Adequate Housing in May 2007, both in terms of the lack of housing, and also regarding the criminalisation and forced eviction of people living in public space.1208 It is arguable that there is a direct causal link between the act of sleeping in public places between sunset and sunrise, and the failure of the state to provide adequate housing, including culturally appropriate living areas for Indigenous Darwin residents. Is it necessary to show that those combined acts were unlawful under the domestic laws of the country concerned, as in (b) above, or does the requirement of legality extend to requiring compliance with international legal obligations?

Nowak alludes to this argument as a possibility. ‘Although the term “unlawful” [under art 17] primarily refers to violations of the respective domestic laws, it might also be interpreted to cover violations of international [law] binding on the State party concerned.’1209 However, he acknowledges the contrary decisions to this proposition in the Mauritian Women’s Case and Toonen. In the Mauritian Women’s Case, the HRC expressed the view that, given that the treatment of the female nationals and their foreign husbands, whose residency rights had been diminished, was authorised

1207 Miloon Kothari, Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Miloon Kothari, Addendum, Mission to Australia (31 July to 15 August 2006, UN Doc A/HRC/4/18/Add.2, (2007). 1208 Ibid. See, further, Chapter Three. 1209 Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2005), 382.

375 by domestic legislation, there could be ‘no question’1210 of their treatment being ‘unlawful’ within the meaning of art 17(1). In Toonen, the HRC simply noted that ‘[t]he prohibition against private homosexual behaviour is provided for by law, namely, Sections 122 and 123 of the Tasmanian Criminal Code’ before the Committee proceeded to analyse whether the interference in that case was ‘arbitrary’, accordingly seemingly accepting that the interference was not ‘unlawful’ for the purposes of art 17. However, there is no indication from the published views in either case whether an alternative argument based on international law was made by the authors of those communications.

International law is ‘law’ and there is nothing in the ICCPR itself nor General Comment No 16 which necessarily precludes this wider interpretation. It could be argued that the interpretation of art 17 of the ICCPR by the HRC in General Comment No 16 which requires that the relevant law under which a permitted interference occurs must be ‘in accordance with the provisions, aims and objectives of the Covenant’, confines the relevance of international law to the test of lawfulness to the ICCPR, rather than other treaty obligations. However, this is also not conclusive as, according to the HRC, this requirement is an additional requirement, even where the interference is found to be otherwise unlawful. The question of whether the term ‘unlawful’ is to be interpreted by reference to both domestic and international laws which bind the state appears to be an open question, for further development.

However, the clear weight of authority results in the view that the HRC would find that the criminalisation or forced eviction of people sleeping in public space between sunset and sunrise is a lawful enforcement of DCC By-law 103, and therefore not ‘unlawful’ interference under art 17 of the ICCPR.

1210 Shirin Aumeeruddy-Cziffra v Mauritius, Communication No 35/1978, UN Doc CCPR/C/12/D/35/1978 (1981), [9.2(b)2(i)4]: ‘Since, however, this situation results from the legislation itself, there can be no question of regarding this interference as "unlawful" within the meaning of article 17 (1) in the present cases. It remains to be considered whether it is "arbitrary" or conflicts in any other way with the Covenant.’

376 Assuming that the interference is found to be lawful, art 17 of the ICCPR separately prohibits interference whether authorised by law or otherwise if it is operates in an ‘arbitrary’ manner. 1211 What does the term mean? How is it to be applied?

E When will an interference be considered ‘arbitrary’?

As previously noted, art 17 does not include an express limitations clause which sets out the circumstances in which a state party can restrict a person’s right to respect for privacy, family and home. Instead, it simply provides that any interference must not be either ‘unlawful’ or ‘arbitrary.’ Accepting that it is likely that the HRC would find that the forced evictions and any acts of criminalisation against people living in the long grass constituted lawful interference, when carried out in compliance with DCC By-law 103, the question remains as to whether such interferences may be found to be ‘arbitrary’ within the meaning in art 17.

It has been argued that the term ‘arbitrary’ is so broad that it negates the potential protection of the provision altogether,1212 and there has been support for the view that the term ‘arbitrary’ enables state parties to exercise greater scope for interference with privacy, family and home than is permitted by the corresponding art 8 of the ECHR.1213 However, as will be shown, this has not proven to be the case.

1211 United Nations Human Rights Committee, General Comment No 16: The right to Respect of Privacy, Family, Home and Correspondence and Protection of Honour and Reputation UN Doc HRI\GEN\1\Rev 1 at 21 (1988), [4]. 1212 Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2005), 381: ‘Guradze considered this limitation “far too broad in terms of rule of law” and thus the entire provision as simply “worthless” (citation omitted).’ 1213 See, ibid 381, the comparative discussion regarding permissible restrictions on the right to privacy under art 17 of the ICCPR and art 8 of the ECHR. Nowak points out that the traveaux preparatoires regarding negotiations of the ICCPR reveal that the efforts by Denmark, the Netherlands and Ireland to ‘insert a limitation clause modelled on Art 8(2) of the ECHR – ie one containing an exhaustive listing of all permissible purposes for interference – were defeated by a vote of 38:20, with 16 abstentions, because they would have excessively restricted the right of States parties to determine the precise limitations on the provision. On the other hand, these amendments also met with scepticism because they would have constricted art 17’s broad scope of application to mere interference by State authorities.’

377

General Comment No 16 provides that to avoid a finding of arbitrariness, any interference with the right to privacy must be ‘reasonable in the particular circumstances.’1214 This interpretation was the result of extensive debate in the lead up to the adoption of General Comment No 16, with diverse views expressed in the traveaux preparatoires in the lead up to the adoption of the ICCPR.1215

Since introducing the reasonableness test of ‘arbitrary’, the HRC has taken a varied approach to its application. For example, on some occasions, it has simply found that the conduct alleged was ‘unreasonable’, without providing any indication of the methodology used to come to that conclusion. It has also found that interference with the right to privacy must in be pursuit of a legitimate state interest. It has required that any interference must provide an affected person with procedural safeguards, requiring that the state party has a regulatory framework in place which enables the alleged victims’ interests to be given ‘due consideration’ prior to her or his right to respect for privacy, family and home being affected.

However, the Committee has also gone beyond this traditional approach to ‘arbitrariness’ analogous to procedural fairness under administrative law. The Committee has also applied a test of reasonableness that requires a reasonable outcome. The interference must be justified or objectively justified, necessary in the

1214 United Nations Human Rights Committee, General Comment No 16: The right to Respect of Privacy, Family, Home and Correspondence and Protection of Honour and Reputation UN Doc HRI\GEN\1\Rev 1 at 21 (1988), [4]. See also Alex Conte, Scott Davidson and Richard Burchill, Defining Civil and Political Rights: The Jurisprudence of the United Nations Human Rights Committee (2004), 157, citing García v Colombia, Communication No 687/1996, UN Doc CCPR/C/71/D/687/1996 (2001). 1215 See Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2005), 382- 3: ‘During the debates published in the traveaux preparatoires, it was stressed above all that “arbitrary” clearly went beyond “unlawful” and contained an element of “capriciousness”’. Nowak argues that ‘arbitrary’ contains elements of injustice, unpredictability and unreasonableness’ and that, ‘in addition to conformity with national law the specific act of enforcement has a purpose that seems legitimate on the basis of the Covenant in its entirety, whether it was predictable in the sense of rule of law and, in particular, whether it was reasonable (proportional) in relation to the purpose to be achieved (citations omitted).’

378 circumstances of any given case and proportionate to the objectives of the state, balancing the interests of the state with the interest of the person affected. In this way, the Committee has undertaken merits review of specific state policies and decisions, forming it own independent assessment of the reasonableness of a decision to interfere with a person’s human right.

Through this interpretative approach, it can be seen that the Committee has adopted some of the express limitations provided in other articles of the ICCPR. In addition, the adoption of the requirements of procedural fairness, reasonableness, necessity and proportionality bring the content of art 17 protection in relation to forced evictions into line with the commentary of the CESCR regarding the prohibition on forced evictions under art 11(1) of the ICESCR, and also jurisprudence of South Africa in relation to the right to have access to adequate housing and the protection against arbitrary evictions in s 26 of the Constitution of South Africa.

Further, the adoption of these elements of the test of arbitrariness brings the protection under art 17 more closely in line with the protection afforded in art 8 of the ECHR, despite the textual contrasts between the two provisions. Article 8(2) of the ECHR prohibits ‘interference’ by a public authority unless it is both lawful under domestic law and ‘necessary in a democratic society’ in the interests of one specified legitimate state interests: national security; public safety; economic well-being of the country; prevention of disorder or crime; protection of health or morals; or protection of the rights and freedoms of others. The European Court of Human Rights has interpreted the meaning of ‘necessary in a democratic society’ to require that any interference must address a ‘pressing social need’1216 and be proportionate to the legitimate aim being pursued.1217 Consequently both art 17 of the ICCPR and art 8 of the ICESCR incorporate requirements that any interference must pursue a legitimate state interest, and be necessary and proportionate to that interest, when balanced with the interests of the person affected. It can also be seen that components of the limitations developed by the HRC to avoid a finding or arbitrariness under art 17 are analogous

1216 Chapman v United Kingdom (2001) 33 EHRR 399, 425. 1217 Ibid 425.

379 to established grounds of judicial review of administrative decision-making, including requirements of procedural fairness.

The HRC has not always set out each of these elements in its reasoning when assessing whether interference may be considered arbitrary and therefore a violation of art 17. However, each element has been sufficiently applied in the jurisprudence of the Committee to merit consideration in any submissions which may be made in support of a communication by people living in the long grass.

In the following sections, each element of the meaning of ‘arbitrary’ in art 17 is explored. Each section reviews individual decisions of the HRC, commentary of the CESCR and the UN Special Rapporteur on Adequate Housing, and some comparative national human rights jurisprudence dealing with forced evictions. European and English decisions under art 8 are reviewed where applicable, particularly the decisions associated with the forced evictions of Gypsies and Travellers. Some of the UK cases pre-date the introduction of the Human Rights Act 1998 (UK). However, these cases involved judicial review of decisions to evict Gypsies and Travellers and may be considered relevant to the application of art 17 both in relation to adequate procedural safeguards and unreasonableness. The cases illuminate the relevant considerations that may need to be taken into account in any review of government decisions which impact on a person’s right to respect for privacy, family and home in the context of forced evictions.

Having dealt with relevant authorities and sources to develop the content of each element of the arbitrariness test, each section then applies the applicable principles to the case study of the forced evictions of people living in the long grass in Darwin in the Northern Territory.

1 Interference must be in pursuit of a Legitimate State Interest The HRC has established that the state must be able to articulate a legitimate state interest1218 or purpose1219 that it seeks to protect or pursue in order to avoid the

1218 Stewart v Canada, Communication No 538/1993, UN Doc CCPR/C/58/D/538/1993 (1996).

380 conduct being an arbitrary interference with the person’s right to respect for privacy, family and home. This appears to be a requirement even when the HRC has applied the more limited procedural safeguards test,1220 discussed further below, as well as when assessing the proportionality of a decision and the reasonableness of the outcome in light of the objective being pursued.1221 However, how is the legitimacy of state interest to be determined?

Nowak suggests that, in order to assess the legitimacy of a state interest, reference be made to express limitation clauses found in articles elsewhere in the ICCPR or art 8(2) of the ECHR. 1222 Articles in the ICCPR with express limitation clauses include: art 12(3) (freedom of movement);1223 art 18(3) (freedom of religion);1224 art 19(3) (freedom of expression);1225 art 21 (right of peaceful assembly) and art 22(2) (freedom of association).1226 Legitimate interests which may justify limitations on these human rights include: • ‘national security’(freedom of movement, freedom of expression, right of peaceful assembly, freedom of association); • ‘public order’(freedom of movement, freedom of religion, freedom of expression, right to peaceful assembly, freedom of association); • ‘public health or morals’ (freedom of movement, freedom of religion, right of peaceful assembly, freedom of association);

1219 Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2005), 382. 1220 See Stewart v Canada, Communication No 538/1993, UN Doc CCPR/C/58/D/538/1993 (1996), [12.10]. ‘The Committee is of the opinion that the interference with Mr. Stewart's family relations that will be the inevitable outcome of his deportation cannot be regarded as either unlawful or arbitrary when the deportation order was made under law in furtherance of a legitimate state interest and due consideration was given in the deportation proceedings to the deportee's family connection (emphasis added).’ 1221 Toonen v Australia, Communication No 488/1992, UN Doc CCPR/C/50/D/488/1992 (1994), discussed further below. 1222 See Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2005), 383. 1223 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), art 12(3). 1224 Ibid art 18(3). 1225 Ibid art 21. 1226 Ibid art 22(2).).

381 • ‘the rights and freedoms of others’(freedom of movement, right of peaceful assembly, freedom of association); • ‘public safety’ (freedom of religion, right of peaceful assembly); • ‘the fundamental rights and freedoms of others’ (freedom of religion); and • ‘the rights or reputations of others’ (freedom of expression).

As can be seen, there are some slight variations amongst these ICCPR limitations clauses. Article 8(2) of the ECHR shares some of the same state interests, referred to as ‘legitimate aims’ in that jurisdiction: ‘national security’, ‘public safety’, ‘protection of health or morals’ and ‘protection of the rights and freedoms of others.’ In addition, art 8(2) includes ‘economic well-being of the country’ and ‘prevention of disorder or crime’ which is analogous to ‘public order’. With the exception of the ‘prevention of disorder or crime’, these aims are the same as those incorporated into Australia’s own reservation under art 17. As noted in Chapter Six, Australia lodged a reservation to art 17 at the time of ratification of the ICCPR. The reservation had specified the state interests upon which it reserved the right to interfere with a person’s privacy, family and home as follows: national security; public safety; the economic well being of the country; the protection of public health or morals; or the protection of the rights and freedoms of others.1227 As noted in Chapter Six, this reservation was withdrawn by Australia in 1984.

In any event, Nowak argues that it would be difficult to consider legitimate state interests not otherwise recognised in these human rights treaties as appropriate justifications for limitations on human rights, particularly given the significance of the right to privacy although he also suggests that some of these interests may not be applicable to art 17.1228

Even though some types of interference may be justified for one reason or another, it must be kept in mind that overly far-reaching permissibility of State interference in the interest of public order, the common good or social costs undermines the sphere of individual privacy in highly socialized societies. The right to privacy, therefore,

1227 Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2005), 935. 1228 Ibid 383.

382 dictates that State interference be restrained and the principle of reasonableness be respected even with conduct that has certain effects upon the common good (e g vagrancy, begging, prostitution, etc).1229

The jurisprudence of the HRC does not elaborate on the ‘legitimate state interest’ requirement of reasonableness to any significant extent. In many cases, the Committee does not make any reference to the need for the measure to be in pursuit of a ‘legitimate state interest’ as such.1230 The Committee undertakes a review of state interests but it is usually in the context of balancing the reasons given by the state to justify the interference against the impact on the interests of the person affected, thus apparently assuming that the state interests are at least legitimate.1231 In a few cases, the Committee expressly finds whether a stated purpose is legitimate,1232 but, on

1229 Ibid 389. 1230 See, eg, Bakhtiyari v Australia, Communication No 1069/2002, UN Doc CCPR/C/79/D/1069/2002 (2003); Buckle v New Zealand, Communication No 858/1999, UN Doc CCPR/C/70/D/858/1999 (2000); Byahuranga v Denmark, Communication No 1222/2003, UN Doc CCPR/C/82/D/1222/2003 (2004); E B v New Zealand, Communication No 1368/2005, UN Doc CCPR/C/89/D/1368/2005 (2007); El Dernawi v Libyan Arab Jamahirya, Communication No 1143/2002, UN Doc CCPR/C/90/D/1143/2002, (2007); Fei v Columbia, Communication No 514/1992, UN Doc CCPR/C/57/1 (1995); García v Colombia, Communication No 687/1996, UN Doc CCPR/C/71/D/687/1996 (2001); Hopu and Bessert v France, Communication No 549/1993, UN Doc CCPR/C/60/D/549/1993/Rev 1 (1997); Huamán v Peru, Communication No 1153/2003, UN Doc CCPR/C/85/D/1153/2003 (2005); LP v Czech Republic, Communication No 946/2000, UN Doc CCPR/C/75/D/946/2000 (2002); Madafferi v Australia, Communication No 1011/2001, UN Doc CCPR/C/81/D/1011/2001 (2004); Tcholatch v Canada, Communication No 1052/2002 , UN Doc CCPR/C/89/D/1052/2002, (2007). 1231 See, eg, Madafferi v Australia, Communication No 1011/2001, UN Doc CCPR/C/81/D/1011/2001 (2004), [9.8]: ‘[T]he relevant criteria for assessing whether or not the specific interference with family life [by deportation] can be objectively justified must be considered, on the one hand, in light of the significance of the State party’s reasons for the removal of the person concerned and, on the other, the degree of hardship the family and its members would encounter as a consequence of such removal.’ 1232 Canepa v Canada, Communication No 558/1993, UN Doc CCPR/C/59/D/558/1993 (1997), in which the author had argued that ‘the deportation of long-term, deeply-rooted and substantially- connected aliens who have already been duly punished for their crimes is not related to a legitimate State interest’, at [4.4]. However, the Committee accepted the state party’s submissions that the deportation of a person previously convicted of many criminal offences was in pursuit of the ‘public interest’ and ‘to protect public safety’. See, also, Toonen v Australia, Communication No 488/1992,

383 balance, the Committee does not appear to be concerned with routinely addressing this particular element of the reasonableness test. This may be contrasted with the decisions of the European Court of Human Rights which consistently expressly analyse whether an interference pursues a ‘legitimate aim’ under art 8(2).

Toonen is one decision in which the views of the HRC turned in part on its express rejection of the state’s assertion that an interference was in pursuit of a legitimate aim. In that case, the Tasmanian government asserted that the criminalisation of sex between consenting male adults was ‘justified on public health and moral grounds, as they are intended in part to prevent the spread of HIV/Aids in Tasmania, and because, in the absence of specific limitation clauses in article 17, moral issues must be deemed a matter for domestic decision’1233 The Committee rejected both these submissions. Firstly, it considered that ‘moral issues’ could not be reserved exclusively as a matter for domestic concern, as to do so ‘would open the door to withdrawing from the Committee’s scrutiny a potentially large number of statutes interfering with privacy.’1234 Secondly, the Committee found that ‘no link has been shown between the continued criminalization of homosexual activity and the effective control of the spread of the HIV/AIDS virus.’1235 Accordingly, the Committee appears to have accepted that measures to prevent the spread of HIV/AIDS would be considered a legitimate state interest on public health grounds, but rejected that there was any connection between this stated purpose and the measures being pursued. In this way, the Committee concluded that the interference could not be considered reasonable.1236

UN Doc CCPR/C/50/D/488/1992 (1994) (prevention of HIV/AIDS on grounds of public health); and Van Hulst v Netherlands, Communication No 903/2000, UN Doc CCPR/C/82/D/903/2000 (2004) (combating crime). 1233 Toonen v Australia, Communication No 488/1992, UN Doc CCPR/C/50/D/488/1992 (1994), [8.4]. 1234 Ibid [8.6]. 1235 Ibid [8.5]. 1236 Under the principles of proportionality that have been developed as a ground for judicial review of government decision-making under administrative law in the UK, a three prong test has been developed, requiring, firstly, that the legislative objective be ‘sufficiently important to justify limiting a fundamental right’; secondly, [that] the measures [be] designed to meet the legislative objective ‘rationally connected to it’; and thirdly, are the means used to impair the right or freedom ‘no more

384

In each of the decisions of the European Court of Human Rights dealing with Gypsy and Traveller forced evictions, the court accepted that the interference was in pursuit of a legitimate aim as required under art 8(2) of the ECHR. For example, in Buckley, government assertions that the planning laws furthered the legitimate aims of highway safety, the preservation of the environment and public health were undisputed by Mrs Buckley and the majority of the court accepted these submissions. In Chapman, whilst the court found that the government had not substantiated its general assertions that the planning laws were in the interests of economic well-being, public health, and the preservation of the environment, it accepted that the preservation of the environment affected the ‘rights of others’, given that Mrs Chapman had conceded this specific point, and that the domestic planning decisions had been expressed primarily in those terms. The court avoided making any findings with respect to public health or economic well-being of the country.1237 In Connors v United Kingdom (‘Connors’),1238 discussed further below, the parties had agreed that the legislation justifying the summary eviction of a Gypsy family from an authorised site, without any procedural safeguards in place ‘pursued a legitimate aim, namely, the protection of the rights of other occupiers of the site and the Council as owner and manager of the site.’1239

Johnson and Williers argue that

[g]enerally, the enforcement powers available to planning authorities will pursue the legitimate aim of protecting the rights of others in the sense of environmental protection. However, it remains necessary for the authority to be satisfied in any particular case that a particular enforcement measure is genuinely pursued for such a

than is necessary to accomplish the objective’: De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Land and Housing [1999] 1 AC 69, 80 (Lord Clyde) cited in Mark Elliott, Jack Beatson and Martin Matthews, Administrative Law: Text and Materials (2005), 256. It can be seen that the Committee’s approach in Toonen takes a similar path, finding that the measures bore no connection to the stated aim, despite this being asserted by the Tasmanian government. 1237 Chapman v United Kingdom (2001) 33 EHRR 399, [[80]-[82]. 1238 [2004] ECHR 223. 1239 Ibid [69].

385 legitimate aim, and not for some other illegitimate purpose such as merely appeasing a vociferous or politically important local population or group who are objecting to the particular development.1240

This is a particularly important point. Whilst legislation may on its face be enacted in pursuit of a legitimate aim or state interest, it remains possible that the specific interference carried out under that law is not. It is surprising that in Buckley, Chapman, and Connors, the applicants each conceded that the specific interference was in pursuit of a legitimate aim under art 8(2) of the ECHR. For example, in relation to planning decisions under the relevant UK planning laws, statistics had shown that, in 1997, the year that Buckley was decided, 90 per cent of Gypsy and Traveller planning applications had been rejected, compared to just 20% of all other applications,1241 laying the ground for asserting that individual decisions under the planning laws were being taken against Gypsies and Travellers, if not directly in pursuit of racial discrimination, at least with sensitivity to the racist views of others. Three judges dissented in the Buckley decision, with Judge Pettiti handing down a particularly strident dissent. One of the findings of Pettiti J was that ‘the government’s reliance on the lawful aim pursued was not justified, because the grounds of public safety, economic well-being of the country and protection of health and of the rights of others were not established and should not therefore have been accepted [by the majority of the court.]’ 1242 In his view, it was not appropriate to ‘give priority to protection of the landscape over respect for family life’1243 indicating that mere protection of the landscape, for aesthetic benefit of others, without more, would not be a legitimate aim for the purposes of restricting a person’s human rights. He also indicated scepticism about the real reasons for the refusal to grant planning permission, noting that the planning inspector had stated in his report that he considered it important to keep concentrations of sites for Gypsies small, because ‘in this way they are more readily accepted by the local community.’1244 Pettiti J found

1240 Chris Johnson and Marc Willers, Gypsy and Traveller Law (2004), 24. 1241 Sarah Spencer, 'Gypsies and Travellers: Britain's Forgotten Minority' (2005) 4 European Human Rights Law Review 335, 336. 1242 Buckley v United Kingdom (1997) 23 EHRR 101 ( Pettiti J, dissenting). 1243 Ibid. 1244 Ibid.

386 that it was not appropriate to subvert the human right to family life ‘to the greater convenience of the local community and its greater willingness to accept others.’1245

To date, there has not been a decision by either the HRC or the European Court of Human Rights which has expressly considered whether a summary eviction power, a move on power, an anti-sleeping law such as the DCC By-law 103 or other legislation authorising a forced eviction from public land, such as contained in the CJPOA in the United Kingdom, pursues a ‘legitimate state interest’ or ‘aim’ either on its face, as enacted, or in its application in a particular case. However, a number of decisions from the UK have done so.

In Fuller, discussed above, a group of Travellers challenged their eviction under the CJPOA. As noted earlier, in addition to a facial challenge to the legislation under art 8, the Travellers also challenged the use of the legislation by the police in the particular circumstances of their case. As part of the analysis, the court addressed the question of whether a legitimate aim was being pursued by the police officer at the time. The court held that the eviction of the Travellers was necessary in the interests of the economic well-being of the country, in that the borough council had an existing contract with a private company for the conversion of compost on the land in question, which was due to commence shortly after the proposed date for removal of the encampment. ‘In addition, there was concern for public safety, following and caused by the incident [involving the interaction with the police] and the growing number of caravans at the encampment. … That incident, as described by the police, would have justified the making of a direction under section 61 in order to enforce the borough council’s right to possession of the site.’1246

The first finding, in relation to economic well-being of the country appears, with respect, to be somewhat stretching of the notion, given that the issue related to a local commercial contract. The second basis for the finding is more consistent with a human rights-based approach, although it is noted that the Travellers disputed the police version of events and denied that violence had occurred at the site.

1245 Ibid. 1246 R (Fuller) v Chief Constable of the Dorset Constabulary [2002] 3 All ER 57, [77].

387

In light of these authorities, would DCC By-law 103 be found as enacted in pursuit of a legitimate state interest?

As Chapter Five has detailed, the stated aim of DCC By-law 103 has been variously expressed. In 2003, the DCC argued that public place by-laws, generally, were in place to ‘ensure minimum standards of environmental amenity’ and to ‘control activities that were detrimental to the reasonable use of the public.’1247 On other occasions, specific aims for DCC By-law 103 have been expressed as follows: • To protect the community; • To ensure that public areas are intended to be used equally by all members of the community; and • To ensure that public areas do not become de facto camping grounds for visitors from overseas, interstate and elsewhere in the Northern Territory, whose ‘preference is for camping out rather than in established caravan parks and camping areas.’1248

It is likely that the HRC would accept that a prohibition on camping in public areas may be considered a legitimate state interest, in the interests of public health (due to lack of available sanitation and other essential services), public health being one of the permitted grounds set out elsewhere in the ICCPR which may justify limiting a person’s human right. As such, it is likely that the HRC would find that the anti- camping component of the by-law was enacted in pursuit of a legitimate state interest. However, would the HRC accept the same argument in relation to a blanket ban on any adult sleeping in a public place between sunset and sunrise, the second component of DCC By-law 103? It is arguable that this component of the by-law may not meet the required test. As discussed in Chapter Five, Martin CJ in Goyma expressed the purpose of the anti-sleeping ban as follows:

1247 See Chapter Five. 1248 Ibid.

388 The public use and enjoyment of public places, especially parks, street footpaths and beaches after sunset and before sunrise might be disturbed by the presence of a person asleep therein.

Furthermore, presence of one sleeping person may well lead to a gathering of people for a like purpose. It cannot be denied that many people finding others sleeping in a public place in the night disturbing, regardless of the cause of the sleep. Further, there is an issue relating to the safety of the person or persons asleep exposed to those who may choose to take advantage of their condition in the dark.1249

This justification was provided to support the Court’s finding that the by-law was not so unreasonable as to be unlawful on public law grounds.1250 It is not evident that any of these justifications would promote the state interests that might justify an anti- camping provision under art 17 of the ICCPR. It may be argued that the fact that others may be ‘disturbed’ by people sleeping in public places is not sufficient to constitute an issue of public safety, or even the rights and freedoms of others. If a person is asleep, they are not a threat or a danger to others. It could also be argued that, if the purported aim was to promote the public safety of those who are asleep, a total ban on their sleeping may not be rationally connected to achieving that aim. For example, what if a person had fallen asleep for just a few minutes, and did not have any intention of camping in that place? However, whilst this is technically a possible argument, it is unlikely to arise in any communication to the HRC, and is less relevant to the focus of this thesis. The thesis is concerned with human rights protections for people who live in the long grass. As Chapter Six has set out, the particular cases from Darwin in the Northern Territory which are likely to be found to engage art 17 – and therefore raise a human rights issue - will be in relation to people living in the long grass who are indeed ‘camping’ in the sense that they have some established place in which they are living as a place of home, or are living in public space conducting their private and family lives as part of their expression of ethnic identity. It is much less likely that a person who, for example, lives in another place, but has just happened to fall asleep in a public area momentarily would be able to argue that

1249 Goyma v Moore [1999] 154 FLR 298, 302. 1250 For a discussion of the public law ground of judicial review known as Wednesbury unreasonableness, see further below.

389 their human right is affected. In such cases, the Committee is unlikely to find that their human right is affected at all. The human rights issue arises due to the fact that people are living in the long grass because of their inability to establish homes elsewhere in light of the lack of affordable, culturally appropriate living areas elsewhere in Darwin.

As such, it is likely that the Committee would find that DCC By-law 103 pursues a legitimate state interest, in general terms.

However, in addition to reviewing the stated aim of the regulatory framework, it is submitted that the state must also establish that the specific act of enforcement of DCC By-law 103 pursued a legitimate state interest ‘in the particular circumstances of the case.’ This is supported by General Comment No 16 and is reflected in the two tiered approach to analysis taken in cases such as Fuller. Accordingly, whilst it is likely that the Committee may find that DCC By-law 103 pursues a legitimate state interest, it may be possible to argue that its enforcement in the particular case is not. Such an argument could be sustained if it could be established that, at the time of the interference, the application of the by-law was being undertaken for an illegitimate purpose, such as to harass Indigenous people out of Darwin and ‘back to their communities’ rather than because, for example, the camp was impacting on public health, or other legitimate reasons. In 1996, at the point when the enforcement practices of DCC By-law 103 escalated dramatically, as detailed in Chapter Five, the local newspaper in the Northern Territory, the Northern Territory News published the following report:

The push is on in earnest to remove itinerants from the Darwin area.

Lord Mayor George Brown yesterday confirmed reports that about 80 people had been booked under council bylaws in the past fortnight for sleeping in public. Mr Brown who has said that the only way to deal with itinerants was to ‘harass, harass and harass’ is making no apologies for the current campaign. …

390 He claims Aboriginal community leaders share his concerns and are just as anxious as he is to prevent the flow of people to Darwin from the ‘dry communities’, where the majority of itinerants come from.1251

Such a stated aim of enforcement could be argued as being illegitimate, on the basis that it is contrary to the provisions, aims and objectives of the Covenant, for example, the human right to freedom of movement under art 12. Evidence of such an illegitimate purpose would need to be provided. As another example, if a person was woken up and moved on under circumstances where their behaviour was having no impact on third persons, not impacting on public health issues, and the person sleeping was not under any potential threat of harm, it may be argued that no legitimate state interest was being pursued by enforcement of the by-law at that point in time.

However, on balance, and in light of the jurisprudence of the Committee to date, it is likely that, in the absence of evidence to show an illegitimate reason for the particular forced eviction, DCC By-law 103 would be accepted as pursuing a legitimate state interest, together with enforcement action taken under its authority.

2 Interference must provide Procedural Safeguards In addition to requiring that the interference must be in pursuit of a legitimate state interest, the HRC has made it clear that interference with the right to respect for privacy, family and home will be found to be arbitrary unless the state party can show that the person affected by the interference has been afforded procedural safeguards which ensure that due consideration has been given to the interests of the person affected. This test of arbitrariness is analogous to administrative law grounds of judicial review involving requirements of procedural fairness.

This principle is demonstrated in Stewart v Canada.1252 The author was seeking to challenge his deportation from Canada on the basis that its effect would be to deny

1251 Editorial, 'Where Can They Sleep?' Northern Territory News (Darwin), 26 March 1996, 1252 Stewart v Canada, Communication No 538/1993, UN Doc CCPR/C/58/D/538/1993 (1996).

391 him an ongoing relationship with his family and constitute arbitrary interference with his family life. The HRC confined its review to determining whether the state had afforded the author adequate procedural safeguards in making its deportation decision. The Committee found that, when the stated reason for the interference is legitimate, the interference will not be arbitrary as long as the state has given due consideration to the interests of the person whose right to family life is being affected. The Committee assessed that the author had been give ‘ample opportunity to present evidence of his family connections’1253 to the state authorities and these factors had been given ‘due consideration’1254 thereby confining the test of arbitrariness to one of procedural fairness.

The requirement that the state party have in place a domestic regulatory framework which ensures that the interests of a person are given due consideration prior to limiting their human right to privacy under art 17 has also been identified by the HRC in E B v New Zealand 1255 involving a custody dispute in the Family Court and Buckle v New Zealand1256 involving child protection proceedings. In each cases, the author had had adequate opportunity to present all relevant issues during the domestic legal proceedings, and the Committee was not prepared to independently assess the factual findings of the domestic decisions. In Tcholatch v Canada, the Committee found that failure to give the author the opportunity to present a defence in proceedings to terminate her contact with her child constituted arbitrary interference with her right to respect for her family.1257 Similarly, in Hopu and Bessert v France, the Committee found that there was nothing presented by the state to the Committee to show that it had ‘duly [taken] into account’ the impact of the interference on the authors in reaching its decision.1258

1253 Ibid [12.10]. 1254 Ibid [12.10]. 1255 Communication No 1368/2005, UN Doc CCPR/C/89/D/1368/2005 (2007). 1256 Communication No 858/1999, UN Doc CCPR/C/70/D/858/1999 (2000), [9.1]. 1257 Tcholatch v Canada, Communication No 1052/2002 , UN Doc CCPR/C/89/D/1052/2002, (2007), esp [8.6]. 1258 Hopu and Bessert v France, Communication No 549/1993, UN Doc CCPR/C/60/D/549/1993/Rev 1 (1997), [10.3].

392 The requirement of adequate procedural safeguards appears to be a minimum standard required by the Committee. In the view of some Committee members, this is the extent of the protection that a state party needs to provide in order for the interference not to be found arbitrary under art 17. In Coeriel v The Netherlands (‘Coeriel’),1259 Mr Kurt Hendl (dissenting) expressed the view that, as long as a state party has in place a regulatory framework which ensures that its decision to interfere with the person’s right gives due consideration to their interests and is made in accordance with ‘generally applicable and published’ guidelines in a non-discriminatory manner, the decision cannot be independently assessed by the Committee as to whether it is reasonable. In this way, he rejected the majority decision which found that, although procedural fairness had been afforded the authors, the outcome of the decision was considered to be unreasonable. Mr Hendl expressly rejected the content of General Comment No 16 which has imported a requirement of substantive reasonableness to avoid a finding of arbitrariness.1260 However, as will be seen in a later section of this Chapter, his view has not dominated the jurisprudence of the Committee, which has continued to apply a substantive reasonableness test.

In the context of forced evictions, the commentary of the CESCR has also made it clear that, where a forced eviction is to occur, persons affected are entitled to certain minimum procedural protections. In its General Comment No 7: Forced Evictions (‘General Comment No 7’),1261 the CESCR advises that ‘[a]ppropriate procedural protections and due process are essential aspects of all human rights but are especially pertinent in relation to a matter such as forced evictions which directly involves a

1259 Communication No 453/1991, UN Doc CCPR/C/57/1, 23-35 (1994). 1260 Ibid 23-35: ‘[The state party’s domestic] Guidelines have been applied in the present case, and there is no indication that they were applied in a discriminatory fashion. Hence it is equally difficult to call the decision arbitrary. The [majority of the] Committee does so, however, ‘in the circumstances of the present case.’ To arrive at that finding, the Committee introduces a new notion – that of ‘reasonableness’. It finds ‘the grounds for limiting the authors’ rights under article 17 not to be reasonable.’ The Committee thus attempts to expand the scope of article 17 by adding an element which is not part of that article. The only argument the Committee can adduce in this context is a simple reference … to its own General Comment on article 17….It is difficult for me to go along with this argumentation…’ 1261 United Nations Committee on Economic, Social and Cultural Rights, General Comment No 7: Forced Evictions, UN Doc E/1998/22 (1997).

393 large number of the rights recognised in both the International Covenants on Human Rights.’1262 The CESCR has set out a series of basic procedural requirements that should be met in order for a forced eviction to be conducted in compliance with art 11(1) of the ICESCR:

(a) an opportunity for genuine consultation with those affected; (b) adequate and reasonable notice for all affected persons prior to the scheduled date of eviction; (c) information on the proposed evictions, and, where applicable, on the alternative purpose for which the land or housing is to be used, to be made available in reasonable time to all those affected; (d) especially where groups of people are involved, government officials or their representatives to be present during an eviction; (e) all persons carrying out the eviction to be properly identified; (f) evictions not to take place in particularly bad weather or at night unless the affected persons consent otherwise…1263

Within the European human rights jurisdiction under art 8 of the ECHR, it is also clear that any interference with the right to respect for privacy, family and home must ensure that the person affected is afforded procedural safeguards. This is demonstrated in Connors, one of the most recent Gypsy and Traveller cases.

Connors is the first successful human rights challenge before the European Court of Human Rights by a Gypsy family to their forced eviction, following the unsuccessful applications in Buckley, Chapman and others.1264 Mr Connors and his family had led a travelling lifestyle in the way of their culture for many years. However, over time, the family became subject to increasing acts of harassment and were constantly moved on by state authorities as they pitched their caravan in various public areas. The family decided to take up a pitch in an authorised Gypsy caravan site at Cottingley Springs where the family then lived for some 13 years until they moved off

1262 Ibid [15]. At [4], the Committee lists the rights to include art 17 of the ICCPR. 1263 Ibid [15]. 1264 See, eg, Beard v United Kingdom [2001] 33 EHRR 442; Smith v United Kingdom [2001] ECHR 45; Lee v United Kingdom [2001] ECHR 46.

394 the site due to the level of violence and disturbances being experienced amongst the families living there at that time. The Connors family tried living in a rented European-style house but were unable to adapt to the conditions. So eventually they accepted allocation of a new plot back at the Gypsy caravan site. The license they signed included a clause prohibiting the causing of a nuisance either by them or their visitors. Mrs Connors was a severe asthmatic, and the eldest child was also seriously ill. Problems and allegations of nuisance ensued, particularly in relation to their children (of which there were four, ranging from 14 years to 4 months), and also their adult daughter and her partner who lived in the plot next to theirs. In 2000, the council served the Connors family with an eviction notice alleging that the license agreement had been summarily terminated as the local laws empowered the council to do.

The family unsuccessfully fought the eviction through the UK courts and they were ultimately evicted by the council in an operation that lasted five hours, with helicopters, police dogs, a number of police vehicles and detention vans. Mr Connors was arrested, as well as his 14 year old son. The younger son was held in the police van for five hours, and Mrs Connors was left alone to cope with her sick four month old baby.

The family took their case to the European Court of Human Rights. It was agreed between the parties that the eviction constituted an interference with their family life and home. It was also accepted that the eviction had been carried out lawfully under domestic law. The central question before the court was whether the interference with their right to a home and family life was ‘necessary in a democratic society’ to protect the rights of others.

The court held that the eviction of the Connors family without any procedural rights being made available was a violation of art 8(1) of the ECHR and was not authorised by art 8(2).

The procedural safeguards available to the individual will be especially material in determining whether the respondent State has, when fixing the regulatory framework, remained within its margin of appreciation. In particular, the Court must examine

395 whether the decision-making process leading to measures of interference was fair and such as to afford due respect to the interests safeguarded to the individual by Article 8.1265

The family had been given no opportunity to know the particulars of their alleged anti-social behaviour, nor did they have an opportunity to heard prior to the decision to evict them. The ability of the local council to summarily evict people from Gypsy sites was in contrast to the level of security of tenure offered to other public housing tenants, where domestic laws provided for the opportunity to be heard and to respond to allegations. The family was awarded 14 000 Euro in damages, as well as the costs of the proceedings.

The decision of Connors may be distinguished from Buckley and Chapman. In the latter cases, the domestic planning regulations had provided affected persons with the opportunity to make submissions, thereby enabling the state party to take these factors into consideration in its decision-making process.1266 Connors is also consistent with early UK authority regarding public law challenges to the lawfulness of evictions from official council caravan sites on the grounds of denial of procedural fairness (or natural justice).1267 As noted in Chapter Six, the history of efforts to challenge the forced eviction and criminalisation of Gypsies and Travellers in the United Kingdom pre-dates the Human Rights Act 1998 (UK). The earlier cases challenged forced evictions on a range of administrative law grounds, including failure to accord procedural fairness, denial of natural justice (legitimate expectations),1268 and failure to take into account relevant considerations,1269 as well as unreasonableness in the

1265 Connors v United Kingdom [2004] ECHR 223, [83]. 1266 David, Elvin, 'Human Rights and Property Law. Towards a New Jurisprudence?' (Paper presented for the Blundell Memorial Lectures, June, 2006), 5. 1267 See, eg, R v Brent LBC Ex parte McDonagh (1989) 21 HLR 494. In accordance with administrative law principles in both the UK and Australia, public authorities are under an obligation of procedural fairness or to afford natural justice where a decision affects a ‘right, interest or legitimate expectation.’ This phrase is to be interpreted widely. See, eg, Kioa v West (1985) 159 CLR 550. 1268 R v Brent LBC Ex parte McDonagh (1989) 21 HLR 494; R v Avon County Council Ex parte Hills (1995) 27 HLR 411. 1269 R v Brent LBC Ex parte McDonagh (1989) 21 HLR 494; R v Lincolnshire Ex Parte Atkinson (1996) 8 Admin LR 529; Dodd and Ors v Hampshire County Council (Unreported, Court of Appeal

396 Wednesbury sense, discussed further below.1270 The cases establish the principle that procedural safeguards are required, even when proceeding to evict Gypsies and Travellers from unauthorised encampments which they occupy as trespassers, and that personal circumstances must be given due consideration.

One of the early leading administrative law cases to establish this principle was R v Lincolnshire County Council Ex Parte Atkinson.1271 Sedley J commenced his reasoning with a particularly empathetic summary of the situation faced by travellers under the operation of the CJPOA:

It is relevant to situate this new and in some ways draconic legislation in its context. For centuries the commons of England provided lawful stopping places for people whose way of life was or had become nomadic. Enough common land had survived the centuries of enclosure to make this way of life still sustainable, but by s 23 of the Caravan Sites and Control of Development Act 1960 (UK), local authorities were given power to close the commons to travellers. This they proceeded to do with great energy, but made no use of the concomitant power given to them by s 24 of the same

(Civil Division), McCowan LJ, 20 December 1993); R v Avon County Council Ex parte Hills (1995) 27 HLR 411; R v Gloucester County Council Ex parte Dutton (1991) 24 HLR 246; R v Hampshire County Council Ex parte Dodd (Unreported, Queen's Bench Division (Crown Office List), Harrison J; 16 May1995); R v Kerrier District Council Ex parte Catherine Uzell (1996) JPL 837; R v Secretary of State for the Environment Ex parte Ward (Unreported, Queen's Bench Division (Crown Office List), Pill J, 27 May 1994); R v The Forest of Dean District Council Ex parte Grenfell (Unreported, Queen's Bench Division (Crown Office List), MacPherson of Cluny J, 19 March 1996); R v Wolverhampton Metropolitan Borough Council Ex parte Dunne (1997) 29 HLR 745; R v Leeds City Council Ex parte Maloney (1997) 31 HLR 552. 1270 Dodd and Ors v Hampshire County Council (Unreported, Court of Appeal (Civil Division), McCowan LJ, 20 December 1993); R v Secretary of State for the Environment Ex parte Ward (Unreported, Queen's Bench Division (Crown Office List), Pill J, 27 May 1994); R v Avon County Council Ex parte Valentine (Unreported, Court of Appeal, Dillon LJ, 12 April 1994; R v Secretary of State for the Environment Ex parte Ward (Unreported, Queen's Bench Division (Crown Office List), Pill J, 27 May 1994); R v Avon County Council Ex parte Hills (1995) 27 HLR 411; R v Brighton and Hove Council Ex parte Marmont [1998] JPL 670 (QBD); R v Hampshire County Council Ex parte Dodd (Unreported, Queen's Bench Division (Crown Office List), Harrison J; 16 May1995); Re Coster and Another's Application (Unreported, Court of Appeal, Henry LJ, 6 May 1994). 1271 (1996) 8 Admin LR 529.

397 Act to open caravan sites to compensate for the closure of the commons. By the Caravan Sites Act 1968, therefore, Parliament legislated to make the s 24 power a duty, resting in rural areas upon county councils rather than district councils (although the latter continued to possess the power to open sites). For the next quarter of a century there followed a history of non-compliance with the duties imposed by the Act of 1968, marked by a series of decisions of this court holding local authorities to be in breach of their statutory duty, to apparently little practical effect. The default powers vested in central government, to which the court was required to defer, were rarely if ever used.

The culmination of the tensions underlying the history of non-compliance was the enactment of the sections of the Act of 1994 which I have quoted. There follows, in s 80(1), the wholesale repeal of the material part, Pt II of the Caravan Sites Act 1968 [removing the duty to create caravan sites]. But the section keeps in being, inter alia, the powers under s 24 of the Act of 1960 for district councils to provide caravan sites for anybody, not merely gypsies. Apart, however, from the enhancement (by s 80(2) of the Act of 1994) of local authorities’s 24 powers to provide working spaces and facilities for gypsies, being a gypsy now carries no special rights or expectations except in the terms of a departmental circular (Department of the Environment 18/94; Welsh Office 76/94) issued on 23 November 1994 and captioned ‘Gypsy sites policy and unauthorised camping’…The commended policy in relation to gypsies is summarised at para 9:

‘The Secretaries of State continue to consider that local authorities should not use their power to evict gypsies needlessly. They should use the powers in a humane and compassionate fashion and primarily to reduce nuisance and to afford a higher level of protection to private owners of land.’1272

Sedley J found that, in the case of the eviction of travelling communities from council-owned land, local authorities were bound to take into account a range of relevant considerations prior to exercising their power under s 77(1) of the CJPOA to issue a ‘removal direction’.1273 He found that some of the relevant factors were those

1272 Ibid. 1273 Section 77(1) of the Criminal Justice and Public Order Act 1994 (UK) provides ‘If it appears to a local authority that persons are for the time being residing in a vehicle or vehicles within that

398 set out in government policy documents, including Circular 18/941274 regarding the eviction of Gypsies and Travellers from unauthorised sites, as well as any other applicable statutory obligations, such as those under the Children Act 1989 (UK)1275 regarding support for children and their families. Sedley J held that, even if these personal considerations had not been incorporated into applicable statutory provisions, and specified in the departmental Circular 18/94, they were

considerations of common humanity, none of which can be properly ignored when dealing with one of the most fundamental human rights, the need for shelter with at least a modicum of security.1276

He found that the local authority is under an obligation to actively inquire into each of these relevant matters prior to issuing its removal direction. The local authority is under an ‘elementary duty to “take reasonable steps to acquaint [itself] with the relevant information”’ citing Lord Diplock in Secretary of State for Education v Tameside MBC.1277

It follows, in my view, that an important element of the discretionary powers given to local authorities [to evict travellers from council land] is a duty to think about individuals – both those encamped and those resident in the location – and to strike a responsible balance between competing and conflicting needs (emphasis added).1278

authority’s area (a) on any land forming part of the highway; (b) on any other unoccupied land; or (c) on any occupied land without the consent of the occupier; the authority may give a direction that those persons and any others with them are to leave the land and remove the vehicle or vehicles and any other property they have with them on the land.’ 1274 Department of the Environment Circular 18/94: Gypsy Site Policy and Unauthorised Camping. 1275 Children Act 1989 (UK). 1276 R v Lincolnshire Ex Parte Atkinson (1996) 8 Admin LR 529. 1277 [1977] AC 1014. 1278 R v Lincolnshire Ex Parte Atkinson (1996) 8 Admin LR 529. See also ‘…it is necessary for the local authority to consider the relationship of its proposed action to the various statutory and humanitarian considerations which will be called into play, and to make both provision and decision accordingly.’

399 He accordingly based his decision on the judicial review ground of denial of procedural fairness whilst also introducing the requirement of proportionality into the exercise of the state’s administrative discretion regarding forcibly evicting persons from public land, discussed further below.1279

Sedley J’s finding was clearly assisted by the existence of the national government’s comprehensive policy document, Circular 18/94 which was issued at the time of the introduction of the CJPOA, and which particularised the relevant considerations. However, he was also clear that the absence of such a policy document would not have altered his decision. He found that, in the case of one of the local authorities under review, it had ‘omitted entirely to inform itself of potentially relevant matters both before giving a removal direction and before seeking a removal order’1280 and quashed the decision to make a removal direction under s 77 of the CJPOA.

Another early successful administrative law challenge to the forced eviction of Gypsies from a council site was R v Brent LBC Ex Parte McDonagh (‘McDonagh’).1281 In that case, the council had provided a written undertaking to the group that they would not be forcibly evicted from a temporary site whilst waiting for a permanent site to become available. Subsequently, the Gypsies were evicted without consultation. The High Court held that, in such circumstances, there was a legitimate expectation created that the Gypsies would not be evicted without being offered an alternative site or at least being consulted about the eviction and given the opportunity to make representations. Accordingly, they were entitled to procedural fairness. The decision to evict was found to be unlawful as there was no evidence that

1279 The judgment does not make clear the basis for this finding for e g whether the relevancy of these factors was drawn from express or implied statutory requirements or whether this was a finding based on the inherent jurisdiction of the courts to supervise the legality of administrative decision-making. As subsequently noted by Carnwath J in R v London Borough of Hillingdon Ex parte McDonagh [1999] 1 PLR 22, ‘[t]he legal basis of [the requirement to take into account considerations of ‘common humanity’, particularly when one is dealing with something as fundamental as the need for a house] is not immediately obvious, but there is no doubt that in recent years the courts have been willing to develop principles of general application, sometimes by analogy with human rights law. 1280 R v Lincolnshire Ex Parte Atkinson (1996) 8 Admin LR 529. 1281 (1989) 21 HLR 494.

400 the council had taken into account the hardship that could arise from the eviction, or that the written undertaking had been given.1282

As a result of these administrative law judicial determinations prior to the Human Rights Act 1998 (UK), local authorities were required to put in place procedural systems to ensure that they had gathered the relevant information applicable to a proposed eviction of any Gypsy or Traveller group so that the council could demonstrate that these relevant considerations had been taken into account prior to making the decision to proceed with an eviction,1283 balancing them against the interests of the residents and the state in favour of their eviction. Subsequent judicial decisions took a varied approach to the extent to which authorities were required by law to take into account the ‘considerations of common humanity’ set out specifically in Circular 18/94 when evicting persons in various contexts.1284 However, none of the

1282 See also R v Wolverhampton Metropolitan Borough Council Ex parte Dunne (1997) 29 HLR 745, where the Court also found that the Council was required to take into account humanitarian considerations prior to issuing a removal direction under the CJPOA to forcibly evicting Gypsy families from an unauthorised campsite. 1283 See Families and Travellers Friends, Guide to the Law (2006) at 31 October 2006: ‘In 1995, [Families, Friends and Travellers], working with the Public Law Project, secured an important judgment which has meant that local authorities have to take account of Traveller's circumstances before evicting. This judgment came about as a result of R-v-Wealden Dist. Council ex parte Wales, [cited here as R v Lincolnshire Ex Parte Atkinson (1996) 8 Admin LR 529] in which Justice Sedley stated these were "considerations of common humanity, none of which can properly be ignored when dealing with one of the most fundamental human needs, the need for shelter with at least a modicum of security.”’ 1284 See, eg, R v London Borough of Hillingdon Ex parte McDonagh [1999] 1 PLR 22 where it was held that the council was not by law required to take into account Circular 18/94 in the context of evicting trespassers from an official gypsy caravan site. Cf R v The Mayor and Burgesses of the London Borough of Lambeth Ex parte Doris Esi-Atitoe (Unreported, Queen's Bench Division, Kennedy LJ, 13 June 1996), cited in R v London Borough of Hillingdon Ex parte McDonagh [1999] 1 PLR 22, where Kennedy LJ considered that it was at least arguable that a local authority was required to take into account the welfare of the children when seeking possession of premises. See also R v Brighton and Hove Council Ex parte Marmont [1998] JPL 670 (QBD), a case involving travellers living unlawfully on council land, where the court held that, whilst considerations of ‘common humanity’ need to be taken into account, there was no obligation to consider the Circular 18/94 when applying the repossess the land using RSC Ord 113, as an action in rem. The court accepted that there was a

401 decisions expressly reject the basic principle established in Atkinson. For example, in R v Brighton and Hove Council Ex parte Marmont (‘Marmont’) counsel for the council and the court both accepted that ‘a local authority must have regard to considerations of common humanity’.1285 In Fuller, the court held that ‘a local authority must consider the Convention rights of trespassers and their human needs generally when deciding whether or not to enforce its right to possession of that land.’1286

The UK authorities have also confirmed that the obligation to afford procedural fairness in relation to the eviction of Gypsies and Travellers applies to policing authorities, as ‘public authorities’ for the purposes of being bound by art 8 of the Human Rights Act 1998 (UK). Whilst the obligations on the police may not be equivalent to those on local authorities in terms of conducting detailed welfare enquiries, ‘they must be aware of humanitarian considerations in reaching their decisions and must ensure that all decisions are proportionate.’1287 According to Johnson and Willers, ‘[t]he police must also take account of welfare considerations.’1288 They note that

distinction between issuing a direction to leave under the Criminal Justice and Public Order Act 1994 (UK), and a repossession application, because the former is addressed to specific persons and leads to criminal consequences for non-compliance. An action in rem ‘is to enable a landlord to recover possession of his land where some or all of the wrongful occupiers cannot be identified. It is a particularly useful remedy against a shifting population of trespassing travellers such as in the present case.’ Landowners using RSC Ord 113 would usually commence the application against ‘persons unknown.’ See Chris Johnson and Marc Willers, Gypsy and Traveller Law (2004), 117. See also Johnson and Willers’ discussion about the ‘line of somewhat confusing conflicting High Court judgments’ on this question and the cases cited at 155. 1285 R v Brighton and Hove Council Ex parte Marmont [1998] JPL 670 (QBD), 671. 1286 R (Fuller) v Chief Constable of the Dorset Constabulary [2002] 3 All ER 57, 74. 1287 R v Metropolitan Police Ex parte Small (Unreported, Crown Office List, Collins J, 27 August 1998) cited in ODPM, Guidance on Managing Unauthorised Camping (2004) at 25 September 2006, [6.9], which is cited in Chris Johnson and Marc Willers, Gypsy and Traveller Law (2004), 159. 1288 Chris Johnson and Marc Willers, Gypsy and Traveller Law (2004), 159.

402 [i]t is difficult to see how the police officers can take account of humanitarian considerations without making some form of enquiry. However, it is suggested that it will be difficult to argue that the police have failed to comply with their duty if they request that the Gypsies and Travellers provide details of the existence of any welfare concerns and then take account of any relevant information when deciding whether to issue a removal direction.1289

The general principle is now well established that public authorities should take into account ‘considerations of common humanity’ when exercising their powers both as a matter of administrative law, and also by reason of art 8 of the ECHR.

Within the jurisprudence of the UK, there has more recently been some doubts expressed as to whether the obligations under art 8 regarding procedural safeguards to take into account personal circumstances does in fact apply to interferences which involve forced evictions pursuant to lawful eviction powers. In 2006, the House of Lords in Leeds City Council v Price (‘Price’)1290 held that, as long as the application to evict a person complies with the domestic law, it will be always be compatible with art 8 of the ECHR, regardless of the personal circumstances of the person facing eviction. The only possible exceptions were if the law itself could be shown to be incompatible with the Convention, or that the decision to apply for the eviction was unlawful on public law grounds, such as being so unreasonable that no reasonable person could justify it (Wednesbury unreasonableness, discussed further below).1291 If

1289 Ibid 159-60. 1290 [2006] 2 WLR 570. 1291 For an analysis of Price, see David, Elvin, 'Human Rights and Property Law. Towards a New Jurisprudence?' (Paper presented for the Blundell Memorial Lectures, June, 2006) , 22. Elvin notes that Price affirmed the decision in Harrow LBC v Qazi [2003] UKHL 43 which pre-dated Connors, deciding that ‘the right of a public authority to enforce a claim for possession under domestic law would, in most cases, automatically supply the justification required by [art 8(2) of the ECHR]’. Ironically, the Secretary of State had intervened in Price to argue that ‘…it ought always to be open to a defendant to possession proceedings to resist an order on the basis that to make one would be a disproportionate interference with his or her [art 8(1)] rights because of his or her individual circumstances. The view of the Government therefore appears to support…the minority view in Qazi and [Price].’ However, the House of Lords in Price did accept that a challenge to an application for possession based on art 8(1) could be raised if ‘the defendant could exceptionally show a seriously

403 this was the case, it would be on its strict application a narrower basis for reviewing an interference with a person’s right to respect for privacy family and home than is currently available under art 17 of the ICCPR. General Comment No 16 and the jurisprudence of the HRC make it clear that the question of whether an interference is reasonable will always depend on the particular circumstances of the case, both in relation to the law being applied, and how the law is being applied in that case. As such, each case must be considered on its merits. A number of commentators have criticised Price as being inconsistent with Connors given that the European Court in the latter case had reached the view that a violation of art 8 had occurred in part due to the particular facts of the case, as well as because of defects in the regulatory framework under which the decision was made.1292 Despite the current state of authorities in the UK, the decision of Connors is clear authority for the proposition that, where a person’s right to respect for privacy, family and home is engaged, an interference which leads to a forced eviction must afford the person adequate procedural safeguards.1293 This basic principle is supported by South African arguable case that the relevant domestic law was incompatible with the Convention.’ See also the discussion in R (on the Application of James Casey) v Crawley Borough Council [2006] EWHC 301 (Admin), [35]-[40]. 1292 See, eg, Susan Bright, 'Article 8 Again in the House of Lords: Kay v Lambeth LBC; Leeds CC v Price' (2006) May/Jun Conveyancer and Property Lawyer 294, 304: ‘The really difficult question is then to explain why in Connors such [an art 8] challenge was possible.’ She notes that the majority judges in Price refer variably to a number of distinguishing features of Connors: (1) non-Gypsy camp sites provide for greater security of tenure, amounting to discrimination against Gypsies on Gypsy sites; (2) states have a positive obligation to ‘to facilitate the gypsy way of life’; (3) the denial of procedural safeguards; and (4) the length of occupancy of the site on the particular facts of that case. Yes, as noted by Bright, ‘it was the personal circumstances of the Connors family that made their eviction so unreasonable.’ See also See David, Elvin, 'Human Rights and Property Law. Towards a New Jurisprudence?' (Paper presented for the Blundell Memorial Lectures, June, 2006) , 22. 1293 Following the Connors decision, the Caravan Sites Act 1968 (UK) was amended by s 211(1) of the Housing Act 2004 (UK) to enable the courts to suspend the enforcement of a possession order obtained against a person occupying a site on a council-owned Gypsy caravan site. Prior to the amendment, the court had no discretion to suspend a possession order. If the council gave a person four weeks notice of termination of their licence, the council was entitled to possession regardless of the particular circumstances of the case. This lack of procedural safeguards was the primary basis for the decision in Connors that the eviction under this regulatory scheme violated art 8 of the ECHR. Following the 2004 amendment to the Caravan Sites Act 1968 (UK), the court has a discretion to

404 decisions dealing with arbitrary evictions1294 and also the decisions of the Indian Supreme Court dealing with forced evictions as arbitrary interference with the right to life.1295

How would this test be applied in the context of DCC By-law 103, and its application against people living in the long grass in Darwin? Does the legislation and policy framework afford people sufficient procedural safeguards in light of the impact on their right to respect for privacy, family and home?

suspend enforcement for up to 12 months at a time, taking into account, inter alia, ‘whether the occupier has failed to make reasonable efforts to obtain elsewhere other suitable accommodation…’: at s 4(4)(c). In Hughie Smith (On Behalf of the Gypsy Council) v Maria Buckland [2007] EWCA Civ 1318 CA (Civ Div), the court held that the amendment addressed the requirements set out in Connors under art 8: at [63]. However, on 15 November 2007, the Housing and Regeneration Bill 2007 (UK) was introduced into the UK Parliament. Section 272 of the proposed legislation will amend the Mobile Homes Act 1983 (UK) to extend security of tenure protection to Gypsies and Travellers living on authorised caravan sites on an equal footing with other occupiers of mobile homes. A local authority will need to obtain a court order in order to terminate a license. The court will only be able to terminate the license if it (a) is satisfied that the occupier has breached a term of the agreement and, after service of a notice to remedy the breach, has not complied with the notice within a reasonable time; and (b) considers it reasonable for the agreement to be terminated: at s 4. 1294 The implementation in South Africa of the constitutional right of access to adequate housing in s 26 of the Constitution of the Republic of South Africa Act 2000 of 1993 has also established a right to procedural fairness as part of the protection against arbitrary evictions. See, eg, City of Cape Town v Rudolph & Ors (Unreported, High Court of South Africa, Cape of Good Hope Provisional Division, Selikowitz J, 6 January 2006), [21], where the High Court of South Africa found that in order for the state to proceed with an eviction of a community to an alternative location, it is necessary to consult with the community about its needs. ‘The local council must take account of the “actual situation of the persons concerned”; must treat everyone with “care and concern” and respond to the needs of those most desperate. Clearly consultation is a requirement (citations omitted).’ 1295 The decisions of the Supreme Court of India dealing with the forced evictions of pavement dwellers have affirmed that at least some minimal procedural safeguards should be in place, with more extensive procedural rights afforded to long term occupants. See, eg, Olga Tellis v Bombay Municipality Corporation AIR (1986) SC 180: ‘The Court would have directed the Municipal Commissioner to afford an opportunity for the petitioners to show why the encroachments should not be removed.’ Later decisions accept this basic principle but vary in the nature and content of those safeguards, according to length of occupancy. See cases discussed further below.

405 As previously detailed, DCC By-law 103 operates without any policy framework to guide the exercise of discretion exercised under it. There is no policy framework to ensure that considerations of ‘common humanity’ or the impact of the interference on the person’s right to privacy, family and home are given ‘due consideration’ in the process of determining whether to informally or formally direct a person to move on. It appears to be policy that a person will initially be given an informal verbal warning and that this will then be followed by a formal notice. Only if a person does not comply with the formal notice, will a person then face prosecution. However, this policy has only been verbally explained to the author. There are no guidelines in place to guide council officers in the exercise of discretion regarding their enforcement practices. Discretion is clearly being exercised, with the vast majority of persons being informally warned and moved on, rather than facing commencement of ‘criminalisation’ proceedings. However, the right to respect for privacy, family and home is engaged not at the point of prosecution or criminalisation, but at the point of forced eviction, where the person is moved on under threat of prosecution, constituting an interference under art 17.1296

Discussions with council officers and observation indicate that, particularly whether there have not been complaints, and a camp is out of view, council officers endeavour to practice a significant level ‘toleration’ of the camps but this has not been formalised in policy or regulatory frameworks. There are no formal policies that set out the factors that council officers are to take into account which would guide inquiries that should be made, nor is there any process by which persons affected can be consulted or given warnings prior to action being taken. There are no formal procedures in place to support council officer efforts to assist people living in the long grass to address their human needs.

Notably, efforts to coordinate a response under DCC By-law 103 with greater informal procedural safeguards for people living in the long grass and service assistance was under development, in part, through the ‘Itinerants Project’, renames at the ‘Community Harmony Strategy,’ in Darwin in the Northern Territory, referred to

1296 See, eg, R v Wolverhampton Metropolitan Borough Council Ex parte Dunne (1997) 29 HLR 745; R (Fuller) v Chief Constable of the Dorset Constabulary [2002] 3 All ER 57.

406 in Chapter Four. During the operation of this Project, relevant public authorities including the DCC and housing services were endeavouring to coordinate a more humane response to the needs of people living in the long grass. However, whilst certain procedures were developed between agencies, the Project did not finalise a public policy framework nor put in place procedural safeguards communicated to people living in the long grass. As noted in Chapter Four, the evaluation of the Project did not elicit any positive responses from people living in the long grass. On 19 February 2008, three days before submission of this thesis, the Northern Territory Government announced a $10 million package of proposals to again address issues of anti-social behaviour in public places and the needs of people living in the long grass. Elements of this new initiative build on the earlier proposals developed during the Itinerants Project, and then the Community Harmony Project. It is unclear whether this package will involve the development of formal policies which may include provision of adequate procedural safeguards for people living in the long grass who face a forced eviction under DCC By-law 103 or other public space laws.

With the current legal and policy environment existing in the Northern Territory, it may be that the HRC would not find that the DCC is under the same level of responsibility that local authorities and police have in the UK in terms of the procedural safeguards in place when dealing with evictions of Gypsies and Travellers. As in Atkinson, the courts in the UK have held that local authorities are under an active responsibility to conduct the welfare inquiries, not just relying on the information provided by the person facing eviction. The positive obligation to undertake such inquiries has been developed through administrative law principles1297 linked to policy and statutory obligations currently in place in the UK, such as obligations under the Housing Act 1985 (UK).1298 No such statutory frameworks exist

1297 R v Lincolnshire Ex Parte Atkinson (1996) 8 Admin LR 529, citing Lord Diplock in Secretary of State for Education v Tameside MBC [1977] AC 1014, 1065 who held that ‘reasonable steps’ are required to be taken by the authorities to ‘acquaint [itself] with the relevant information.’ 1298 See R v Wolverhampton Metropolitan Borough Council Ex parte Dunne (1997) 29 HLR 745, where Phillips LJ accepted submissions that the court’s interpretation of the duty of inquiry under the Housing Act 1985 (UK) in R v Kensington and Chelsea Royal London Borough Council, Ex parte Bayani (1990) 22 HLR 406 could be applied to a local authority’s duties to make inquiries prior to issuing a direction to leave under the Criminal Justice and Public Order Act 1994 (UK). In the latter

407 in Australia. However, Atkinson also affirmed that the entitlement to procedural safeguards would apply without such statutory obligations being in place.

However, DCC By-law 103 is no less ‘robust’, ‘speedy’ and therefore potentially ‘draconian’ than the CJPOA, as it was described in Atkinson. The available statistics show that Indigenous people as a vulnerable group are the primary targets of its enforcement. Accordingly, it is submitted that ‘careful consideration is required before using it.’1299

If it can be established that a forced eviction against a person living in the long grass engages their human rights to respect for privacy, family and home, the authorities clearly support the proposition that they have a ‘right, interest or legitimate expectation’ under international law to be afforded procedural fairness in any interference with that right. This principle is analogous to the administrative law principle well developed in both UK and Australian jurisprudence in relation to government decisions that may adversely affects a person’s right, interest or legitimate expectation’ recognised in domestic law.1300 case, the court held at 409 that ‘the duty to make inquiries is to make such inquiries as are necessary to satisfy the authority … If (sic) follows therefore that as it is the authority which have to be satisfied the scope and scale of the inquires is, primarily at least, a matter for them. But the introduction of the word ‘necessary’ indicates that there is a standard which these inquiries must observe, in other words, the inquiries must be those which are ‘necessary’ to enable the authority to make a decision.’ However, cf R (Maughan) v Leicester City Council [2004] EWHC 1429 where the court held that there was not a duty to actively inquire into the detail of health concerns, when the council was generally aware that health problems existed, and, in any event, even if the council should have obtained further information, the court was satisfied that the further inquiry would not have altered the council’s decision. 1299 R v Wolverhampton Metropolitan Borough Council Ex parte Dunne (1997) 29 HLR 745: ‘In my judgment, ss 77 and 78 [of the Criminal Justice and Public Order Act 1994 (UK)] are intended to provide a robust and speedy means of evicting travellers from land. Because the remedy is draconian, careful consideration is required before using it. That is reflected in [Department of the Environment Circular 18/94: Gypsy Site Policy and Unauthorised Camping].’ 1300 See, eg, the discussion in Robin Creyke and John McMillan, Control of Government Action: Text, Cases & Commentary (2005), 544-7, and Kioa v West (1985) 159 CLR 550, 582, per Mason J: ‘The reference to “right or interest” … must be understood as relation to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests.’

408

It is clearly arguable that, in the absence of procedural safeguards in place to enforce DCC By-law 103, the forced eviction of Indigenous people living in the long grass may be found to be arbitrary, unless the state could show that, on the facts of a specific case, due consideration of relevant factors was given. The kinds of factors that should be taken into account in order to ensure procedural safeguards are adequate are discussed further in a later section of this chapter.

3 Interference must have a Reasonable Outcome: General Principles As previously noted, the HRC in its General Comment No 16 stated that, in order for interference with the right to respect for privacy, family and home to be permissible under art 17 of the ICCPR, the interference must be reasonable in the circumstances of the particular case. In subsequent decisions dealing with individual communications, the Committee has developed this requirement further, going beyond a requirement of procedural safeguards to requiring that the outcome of the decision also be reasonable.

The Committee has in some cases simply found that the decision was not reasonable without undertaking any particular methodological approach. For example, in Coeriel, the HRC reached its own view about the reasonableness of a decision by the state authorities in The Netherlands to refuse to change the names of the authors to Hindu names, as they wished as part of their conversion to the Hindu religion. The state party had a procedure in place for dealing with applications to change a surname, and had taken into account the submissions of the applicants in accordance with those guidelines. However, the HRC reached its own independent assessment, finding that the decision constituted ‘arbitrary’ interference with the authors’ right to respect for their privacy.1301

1301 Coeriel v The Netherlands, Communication No 453/1991, UN Doc CCPR/C/57/1, 23-35 (1994), [10.5]: ‘In the present case, the authors' request for recognition of the change of their first names to Hindu names in order to pursue their religious studies had been granted in 1986. The State party based its refusal of the request to also the change their surnames on the grounds that the authors had not shown that the changes sought were essential to pursue their studies, that the names had religious connotations and that they were not 'Dutch sounding'. The Committee finds the grounds for so limiting

409

The Committee has taken a varied approach to how it assesses the interference, expressing that the interference must be ‘justified,’1302 ‘objectively justified’ 1303 ‘necessary in the circumstances of the case’1304 involving the least ‘intrusive

the authors' rights under article 17 not to be reasonable. In the circumstances of the instant case the refusal of the authors' request was therefore arbitrary within the meaning of article 17, paragraph 1, of the Covenant.’ 1302 García v Colombia, Communication No 687/1996, UN Doc CCPR/C/71/D/687/1996 (2001), [10.3]: ‘The Committee considers, in accordance with its General Comment No. 16 (HRI/GEN/1/Rev.4 of 7 February 2000) that the concept of arbitrariness in article 17 is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. It further considers that the State party's arguments fail to justify the conduct described.’ See also Bakhtiyari v Australia, Communication No 1069/2002, UN Doc CCPR/C/79/D/1069/2002 (2003). See further Winata v. Australia, Communication No 930/2000, UN Doc CCPR/C/72/D/930/2000, (2001), [7.3]: ‘In view of this duration of time, it is incumbent on the State party to demonstrate additional factors justifying the removal of both parents that go beyond a simple enforcement of its immigration law in order to avoid a characterisation of arbitrariness.’ 1303 Byahuranga v Denmark, Communication No 1222/2003, UN Doc CCPR/C/82/D/1222/2003 (2004), [11.7]-[11.9]: ‘[T]he Committee reiterates that in cases where one part of a family must leave the territory of the State party while the other party would be entitled to remain, the relevant criteria for assessing whether or not the specific interference with family life can be objectively justified must be considered, on the one hand, in light of the significance of the State party's reasons for the removal of the person concerned and, on the other, the degree of hardship the family and its members would encounter as a consequence of such removal.’ See also Madafferi v Australia, Communication No 1011/2001, UN Doc CCPR/C/81/D/1011/2001 (2004), [9.8]: ‘The issue thus arises whether or not such interference would be arbitrary and thus contrary to article 17 of the Covenant. The Committee observes that in cases of imminent deportation the material point in time for assessing this issue must be that of its consideration of the case. It further observes that in cases where one part of a family must leave the territory of the State party while the other part would be entitled to remain, the relevant criteria for assessing whether or not the specific interference with family life can be objectively justified must be considered, on the one hand, in light of the significance of the State party's reasons for the removal of the person concerned and, on the other, the degree of hardship the family and its members would encounter as a consequence of such removal.’ 1304 Van Hulst v Netherlands, Communication No 903/2000, UN Doc CCPR/C/82/D/903/2000 (2004): [7.6] and Dahanayake v Sri Lanka, Communication No 1331/400, UN Doc CCPR/C/87/D/1331/2004 (2006) (Mr Kahlin and Mr Yrigoyen, obiter, dissenting).

410 trajectory’1305 and ‘proportionate’1306 to the significance of the state interests when balanced against the impact of the interference on the affected person. For example, in Madafferi v Australia (‘Madafferi’),1307 the Committee expressed the view that ‘the relevant criteria for assessing whether or not the specific interference with family life can be objectively justified must be considered, on the one hand, in light of the significance of the State party’s reasons … and on the other, the degree of hardship the family and its members would encounter …’1308 In Toonen, the Committee used the concept of proportionality, finding that criminalisation of homosexuality could not be considered a ‘proportionate measure to achieve the aim of preventing the spread of AIDS/HIV’1309 Citing Toonen in the 2004 decision of Van Hulst v The Netherlands (‘Van Hulst’),1310 the Committee summed up its approach as follows:

The Committee recalls its jurisprudence that the requirement of reasonableness implies that any interference with privacy must be proportionate to the end sought, and must be necessary in the circumstances of the case (emphasis added).1311

The effect of these decisions is to make it clear that the Committee will independently assess the reasonableness of the outcome of the interference in the particular circumstances of the case. As previously noted, not all Committee members have

1305 Dahanayake v Sri Lanka, Communication No 1331/400, UN Doc CCPR/C/87/D/1331/2004 (2006) (Mr Kalin and Mr Yrigoyen, obiter, dissenting). 1306 Toonen v Australia, Communication No 488/1992, UN Doc CCPR/C/50/D/488/1992 (1994), [8.3]; Canepa v Canada, Communication No 558/1993, UN Doc CCPR/C/59/D/558/1993 (1997)., [11.4]; Van Hulst v Netherlands, Communication No 903/2000, UN Doc CCPR/C/82/D/903/2000 (2004), [7.6]; Canepa v Canada, Communication No 558/1993, UN Doc CCPR/C/59/D/558/1993 (1997), [11.4]: ‘The Committee observes that arbitrariness with the meaning of art 17 is not confined to procedural arbitrariness, but extends to the reasonableness of the interference with the person’s rights…The separation of a person from his family … could be regarded as an arbitrary interference .. if in the circumstances of the case the separation of the author from his family and its effects on him were disproportionate to the objectives of the removal.’ 1307 Communication No 1011/2001, UN Doc CCPR/C/81/D/1011/2001 (2004). 1308 Ibid [9.8]. 1309 Toonen v Australia, Communication No 488/1992, UN Doc CCPR/C/50/D/488/1992 (1994), [8.5]. 1310 Communication No 903/2000, UN Doc CCPR/C/82/D/903/2000 (2004). 1311 Ibid [7.6].

411 been comfortable with this approach. The widening of the meaning of arbitrary to include substantive reasonableness was rejected in the dissenting opinion of Mr Hendl in Coeriel and also by Mrs Wedgwood, dissenting, in Madafferi. In Madafferi, Mrs Wedgwood was satisfied that the deportation of the author did not violate art 17 as the state party had in place procedural safeguards, and had clearly given due weight to the interests of a person being deported. In her view,

[t]he Committee has no evident warrant to assign its own chosen weight to the relative importance of protecting against recidivist criminal conduct versus minimizing family burdens. There are millions of immigration decisions each year, and we are not entitled to ‘reverse’ state governments simply because we might weigh the balance differently.1312

However, despite such views, the majority of the Committee has made it clear that it will reach its own assessment of the reasonableness of a decision.

The CESCR has also incorporated the requirements of reasonableness and proportionality into its normative standards for determining the lawfulness of forced evictions under art 11(1) of the ICESCR. As noted in Chapter Six, the CESCR cross- references its interpretation of the obligation under art 11(1) of the ICESCR to progressively realise the right to adequate housing including prohibiting forced evictions with the obligations under art 17 of the ICCPR. In its General Comment No 4: The Right to Adequate Housing (‘General Comment No 4’),1313 the CESCR articulated the link between art 11(1) and art 17 of the ICCPR:

[T]he right not to be subjected to arbitrary or unlawful interference with one’s privacy, family and home or correspondence constitutes a very important dimension in defining the right to adequate housing.1314

1312 Madafferi v Australia, Communication No 1011/2001, UN Doc CCPR/C/81/D/1011/2001 (2004), [7.8]. 1313 United Nations Committee on Economic, Social and Cultural Rights, General Comment No 4: The Right to Adequate Housing, UN Doc E/CN4/1991/4 (1991). 1314 United Nations Committee on Economic, Social and Cultural Rights, General Comment No 4: The Right to Adequate Housing, UN Doc E/CN4/1991/4 (1991), [9].

412

The Committee developed this relationship further in its subsequent General Comment No 7: Forced Evictions (‘General Comment No 7’):1315

In cases where eviction is considered to be justified [under art 11(1) of the ICESCR], it should be carried out in strict compliance with the relevant provisions of international human rights law and in accordance with general principles of reasonableness and proportionality. In this regard it is especially pertinent to recall General Comment 16 of the Human Rights Committee, relating to article 17 of the International Covenant on Civil and Political Rights, which states that interference with a person’s home can only take place ‘in cases envisaged by the law’. The Committee observed that the law ‘should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances’.1316

That Committee therefore draws together the principles applicable under art 11(1) of the ICESCR to forced evictions with the general principles espoused by the HRC under art 17.

The concept of ‘reasonableness’ under art 17 of the ICCPR is not confined to Wednesbury unreasonableness as developed as a public law ground of judicial review in England and Australia. In addition, as the cases will show, the Committee’s concept of reasonableness gives greater scope for independently assessing state party conduct under art 17 when compared with the approach taken by the European Court of Human Rights to art 8, particularly through the application by the latter body of its ‘margin of appreciation’ doctrine.

The comparative approaches to reasonableness and proportionality when reviewing government decisions leading to forced evictions from England and the European Court of Human Rights are now discussed in order to enable some comparison to be made with the likely HRC approach to review of a forced eviction under art 17. The

1315 United Nations Committee on Economic, Social and Cultural Rights, General Comment No 7: Forced Evictions, UN Doc E/1998/22 (1997). 1316 Ibid [14].

413 notion of unreasonableness appears in each jurisdiction, yet it is submitted that the English concept of Wednesbury unreasonableness and European human rights review is narrower in scope, affording greater freedom to the local decision-maker in the exercise of its own judgement about what is a reasonable outcome. As a result, the HRC arguably affords greater protection under art 17 and hence may be more likely to reach a decision in favour of people facing forced evictions.

(a) Comparison of art 17 unreasonableness with judicial review on the grounds of Wednesbury unreasonableness As previously noted, in the UK, prior to the enactment of the Human Rights Act 1998 (UK), a number of Gypsies and Travellers have come before the domestic courts to challenge their eviction by public authorities, including local councils and the police, by way of judicial review on public law grounds. Further, since the enactment of the Human Rights Act 1998 (UK), Gypsies and Travellers have typically continued to rely upon public law grounds for judicial review as well as pleading violation of, inter alia, art 8 of the ECHR.1317

The Gypsies and Travellers have sought judicial review on various grounds, including failure to take into account relevant considerations and lack of procedural fairness, discussed above in the context of the HRC’s requirement regarding procedural safeguards being in place. Some cases have alleged that the eviction decision was unlawful on the grounds of Wednesbury unreasonableness.1318

1317 See, eg, Ward v Hillingdon LBC [2001] HRLR 40 [2001] EWHC Admin 91 QBD (Admin Ct); Leeds City Council v Price [2006] 2 WLR 570; R (on application of O'Brien and others) v Basildon District Council [2006] EWHC 1346; South Cambridgeshire District Council v Dan Flynn [2006] EWHC 1320. 1318 See, eg, West Glamorgan County Council v Rafferty [1987] 1 WLR 457; Avon CC v Buscott [1988] 1 All ER 841; Dodd and Ors v Hampshire County Council (Unreported, Court of Appeal (Civil Division), McCowan LJ, 20 December 1993); R v Avon County Council Ex parte Valentine (Unreported, Court of Appeal, Dillon LJ, 12 April 1994; Coster v United Kingdom [2001] ECHR 44; R v Secretary of State for the Environment Ex parte Ward (Unreported, Queen's Bench Division (Crown Office List), Pill J, 27 May 1994); R v Avon County Council Ex parte Hills (1995) 27 HLR 411; R v The Forest of Dean District Council Ex parte Grenfell (Unreported, Queen's Bench Division (Crown Office List), MacPherson of Cluny J, 19 March 1996); Shropshire County Council v Wynne (1997) 96

414 This ground of public law review was established in Associated Provincial Picture Houses Ltd v Wednesbury Corporation1319 by Lord Greene MR.

The Court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to have taken into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it (emphasis added)…1320

‘Unreasonableness’ in the Wednesbury sense does not involve an independent merits review of an administrative decision, nor does it question the weight that has been given to the relevant factors taken into account.1321 It is a narrower, supervisory, although substantive, ground of judicial review, reserved for instances involving manifestly ‘absurd,’1322 ‘outrageous,’1323 ‘perverse’1324 administrative decisions where the case for judicial intervention is ‘overwhelming.’1325

LGR 689; R v Leeds City Council Ex parte Maloney (1997) 31 HLR 552; R v Brighton and Hove Council Ex parte Marmont [1998] JPL 670 (QBD); Ward v Hillingdon LBC [2001] HRLR 40 [2001] EWHC Admin 91 QBD (Admin Ct); R (Maughan) v Leicester City Council [2004] EWHC 1429; R (on the Application of James Casey) v Crawley Borough Council [2006] EWHC 301 (Admin); R (on application of O'Brien and others) v Basildon District Council [2006] EWHC 1346; South Cambridgeshire District Council v Dan Flynn [2006] EWHC 1320. 1319 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. The case involved judicial review of a regulation preventing the admission children under the age of 15 from a movie cinema. 1320 Ibid 233-4. 1321 R v Avon County Council Ex parte Hills (1995) 27 HLR 411: ‘That balancing exercise was performed by the Sub-Committee and the amount of weight to be accorded to the various factors was a matter for them. I do not consider that the decision that they reached could be said to be Wednesbury unreasonable …’ 1322 West Glamorgan County Council v Rafferty [1987] 1 WLR 457, 477. 1323 CCSU v Minister for the Civil Service [1985] AC 374: ‘So outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it.’

415

[Lord Greene MR in Wednesbury] emphasised that to prove unreasonableness in this sense would require something overwhelming. It was intended only as a safety net to catch those decisions that were manifestly absurd but may escape review on any of the more specific grounds of attack. Hence as a substantive ground of review unreasonableness would have only very limited application.1326

One of the pre-Human Rights Act 1998 (UK) decisions dealing with the forced eviction of Gypsies and Travellers that applied this ground of review was West Glamorgan County Council v Rafferty (‘Rafferty’).1327 The matter involved summary eviction proceedings brought by the local council against an unauthorised Gypsy encampment, known as the Briton Ferry Industrial Estate. In the Court of Appeal, it was agreed between the parties that, at all material times, the council had been in breach of its statutory duties under the Caravan Sites Act 1968 (UK) by failing to meet the accommodation needs of the Gypsies living in its designated area.1328 At the time, the estimated number of Gypsy people living in the area for which the council was responsible was no more than 350, compared to an overall population in West Glamorgan of about 370 000.1329 The council had made various attempts to develop sites in cooperation with district councils but each attempt had failed.

The Court of Appeal accepted that to quash an administrative decision on the grounds of unreasonableness, the facts of the case would need to be ‘both exceptional and extreme’1330 such that the decision of the council could be shown to be ‘perverse.’1331

1324 R v Hillingdon London Borough Council Ex parte Pulhofer [1986] AC 484, 518 (Lord Brightman). 1325 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 230 per Lord Greene MR, cited in Cannock Chase District Council v Kelly [1978] 1 WLR 1, 6-7, cited in West Glamorgan County Council v Rafferty [1987] 1 WLR 457, 469. 1326 Naomi Sidebotham, 'Judicial Review: Is There Still a Role for Unreasonableness? ' (2001) 8(1) Murdoch University Electronic Journal of Law at 17 November 2006. 1327 [1987] 1 WLR 457. 1328 Ibid 471: ‘It has not been argued before this court that on any view of the meaning of the section the plaintiffs could be regarded as not in breach of the duty imposed by it at the relevant time.’ 1329 Ibid 464. 1330 Ibid 461.

416 However, having weighed all the factors to be taken into account, the court quashed the decision of the plaintiff council to make an application for summary possession of its land under RSC Ord 1131332 in order to evict the occupants. The court upheld the decision of Kennedy J at first instance who had ruled that the decision of the council to evict the gypsies was invalid on the grounds of Wednesbury unreasonableness. The Court of Appeal found that there were a range of relevant considerations weighing both in favour of and against the eviction, but found that the decision was unreasonable in the Wednesbury sense. In reaching its decision, the council had incorrectly taken into account its own view that there was nothing more that it could do to discharge its obligations under the Caravan Sites Act 1968 (UK) to establish authorised Gypsy sites, which was clearly not the case. The council had the power to create temporary sites, and also had the power to directly implement its duties under the Act, without needing the cooperation of district councils.1333

It is clear that the traditional ground of review of government decisions on the basis of Wednesbury unreasonableness is narrower than the formulation of the test of unreasonableness as ‘arbitrariness’ by the HRC in relation to art 17 of the ICCPR. The Committee has affirmed that it will investigate the proportionality of the interference - beyond only intervening in manifestly absurd decisions.

1331 Ibid 476. 1332 Rules of the Supreme Court Order 113 applied to applications for summary possession of land in the High Court. In the County Court, the equivalent provision was County Court Rules Order 24. In 1999, these rules were replaced by Part 5 of the Civil Procedure Rules (CPR). See Chris Johnson and Marc Willers, Gypsy and Traveller Law (2004), 117. 1333 West Glamorgan County Council v Rafferty [1987] 1 WLR 457, 478: ‘The decision simply to evict by itself suggests the failure to consider the consequences of eviction, both on the gipsies themselves and on others as discussed above, and a failure to consider the plaintiffs’ own powers to alleviate those consequences. If those who made the decision accepted the view that there was nothing that the plaintiffs could then reasonably do in discharge of their statutory duty under the Act of 1968, then the holding of that mistaken opinion provides an explanation why this decision, which in my view was void for unreasonableness, came to be made.’

417 (b) Comparison of art 17 unreasonableness with the English doctrine of proportionality In addition to the doctrine of Wednesbury unreasonableness, the English Courts have now also developed a domestic doctrine of proportionality, drawn from the European human rights jurisdiction, which goes beyond Wednesbury reasonableness. As explained by Creyke and McMillan,

in 1985, Lord Diplock suggested the adoption in England of a principle of ‘proportionality’ as a ground of judicial review additional to Wednesbury unreasonableness. 1334

As held in R v Shayler,1335 the test of proportionality in the English jurisprudence as now developed requires a three pronged test:

The first is whether the objective which is sought to be achieved – the pressing social need – is sufficiently important to justify limiting the fundamental right. The second is whether the means chosen to limit that right are rational, fair and not arbitrary. The third is whether the means used impair the right as minimally is reasonably possible. As these propositions indicated, it is not enough to assert that the decision that was taken was a reasonable one. A close and penetrating examination of the factual justification for the restriction is needed if the fundamental rights enshrined in the Convention are to remain practical and effective for everyone who wishes to exercise them.1336

According to Creyke and McMillan,

[t]he doctrine of proportionality is now firmly rooted in English administrative law. …

1334 Robin Creyke and John McMillan, Control of Government Action: Text, Cases & Commentary (2005), 741-2. 1335 [2003] 1 AC 247. 1336 Ibid [61], cited in Robin Creyke and John McMillan, Control of Government Action: Text, Cases & Commentary (2005) 742.

418 [This] was a confluence of three trends …[one of which was] a move to align English and European law, once English laws and decision were reviewable by the European Court of Human Rights administering the European Convention for the Protection of Human Rights … [another being] the enactment of the Human Rights Act 1998 (UK), which conferred a new role on the English judiciary of examining whether laws and executive decisions contravened the fundamental human rights enshrined in the Act.’1337

Discussion of the doctrine of proportionality in the European human rights jurisdiction is detailed further below. Since the adoption of the Human Rights Act 1998 (UK), the application of art 8 to the review of government decisions in England has now explicitly empowered the courts to investigate the proportionality of the decision of a public authority in eviction cases as part of the art 8(2) analysis as well as the grounds of judicial review. In some of the recent cases dealing with forced evictions, it is indeed difficult to separate out the extent to which the court is reviewing the government decision through the lens of art 8 and when it is independently applying the public law grounds to establish lawfulness on the basis of reasonableness and proportionality.1338 In other cases, the courts do not appear to independently apply a proportionality test, applying the art 8 analysis, and a separate test of Wednesbury unreasonableness as an alternative ground of review.1339

On its face, the English doctrine of proportionality appears far closer to the approach which is being developed by the HRC in relation to arbitrariness under art 17. It proposes that, where a fundamental right is involved, the interference should impair the right as minimally as is reasonably possible, or be the least restrictive measure

1337 Robin Creyke and John McMillan, Control of Government Action: Text, Cases & Commentary (2005), 741-2. See also Mark Elliott, Jack Beatson and Martin Matthews, Administrative Law: Text and Materials (2005), 243: ‘English public law now embraces the more structured and intrusive principle of proportionality in certain spheres.’ For a discussion about the comparison between Wednesbury unreasonableness and proportionality as grounds of review, see Mark Elliott, Jack Beatson and Martin Matthews, Administrative Law: Text and Materials (2005), 259-264. 1338 See, eg, Leeds City Council v Price [2006] 2 WLR 570; South Cambridgeshire District Council v Dan Flynn [2006] EWHC 1320. 1339 See, eg, R (on the Application of James Casey) v Crawley Borough Council [2006] EWHC 301 (Admin).

419 required, in light of the objects being pursued. However, the Australian courts have consistently affirmed that judicial review does not enable a court to reverse a government decision simply because it disagrees with it or considers it to be disproportionate, confining review on the grounds of Wednesbury unreasonableness to its original articulation.1340 ‘[T]here are few definitive signs of the proportionality principle being applied in Australia, and none suggesting that the English form of the doctrine should be accepted.’1341 This is well illustrated by the decision of the Supreme Court of Northern Territory in Goyma, one of the two domestic legal challenges to the validity of DCC By-law 103. As discussed in Chapter Five, Mr Goyma had been fined and jailed for sleeping in a public place under DCC By-law 103. Counsel for Mr Goyma challenged the validity of the by-law, inter alia, on Wednesbury grounds. Martin CJ held that ‘it is impossible to say that no reasonable mind could justify the law’1342 and rejected the argument out of hand.

As discussed above, the development of the more extended doctrine of proportionality in the English courts has been particularly in the context of the protection of human rights and demonstrates the influence of the human rights jurisdiction upon principles of judicial review in UK law. Expanding the scope for reviewing government decisions which interfere with human rights is exactly because human rights are at stake, rather than ordinary government decisions affected ‘ordinary’ rights, interests or legitimate expectations. The presumption is that human rights are to be respected unless intervention can clearly be justified.

1340 See, eg, Foley v Padley (1984) 154 CLR 349, 352: ‘The questions whether the necessary opinion is one which no reasonable council could have formed, may sometimes be connected and overlap, but in the present case it is sufficient to inquire whether the activity described … could reasonably have been regarded as likely to affect the use or enjoyment of the Mall.’ 1341 Robin Creyke and John McMillan, Control of Government Action: Text, Cases & Commentary (2005), 743. 1342 Goyma v Moore [1999] 154 FLR 298, 302.

420 ‘[T]he proportionality principle presupposes the identification of some right interest or freedom that should withstand all but minimal and justifiable governmental interference.1343

This is the reversal of the logic behind traditional Wednesbury judicial review, which starts from a premise that a public authority’s decisions should not be overturned by the courts unless it can be shown to be manifestly absurd and therefore unlawful.

(c) Comparison of art 17 unreasonableness with the European Court of Human Rights doctrine of proportionality and the ‘margin of appreciation’ The final way in which the concept of unreasonableness in the sense of being disproportionate finds its way into the English cases is under art 8(2) of the ECHR. Article 8(2) provides that, in order for an interference with a person’s right to respect for privacy, family and home, it must be shown to be ‘necessary in a democratic society.’ The European Court of Human Rights has affirmed that, in order to meet this test, the state party must show that the interference addresses a ‘pressing social need’ and is ‘proportionate to the legitimate aim pursued.’1344

However, unlike the HRC which has been prepared to undertake a merits review of the reasonableness of the state action, the European Court of Human Rights has held that states parties will be afforded a ‘margin of appreciation.’1345 The court has been

1343 Robin Creyke and John McMillan, Control of Government Action: Text, Cases & Commentary (2005), 742-3. 1344 Chapman v United Kingdom (2001) 33 EHRR 399, 425. 1345 According to Shany, the doctrine of the ‘margin of appreciation’ developed by the European Court of Human Rights involves essentially two elements: ‘(i) Judicial deference: international courts should grant national authorities a certain degree of deference and respect their discretion on the manner of executing their international law obligations. Thus, international courts ought not to replace the discretion and independent evaluation exercised by national authorities ie refrain from reviewing national decisions de novo. Rather international bodies should exercise judicial restraint; (ii) Normative flexibility: international norms provide limited conduct-guidance and preserve a significant ‘zone of legality’ within which states are free to operate. Consequently, different national authorities, in distinct states, could conceivably reach different, yet lawful decisions regarding the application of the same international norm.’ However, State discretion must be exercised in good faith,

421 clear that the scope of the margin of appreciation will not be identical in each case but will vary depending on the context, including the nature of the Convention right, the significance of the right to the individual and the nature of the activities concerned.1346 The court has afforded states a wide margin of appreciation in ‘the field of socio- economic matters’1347 in the context of social housing,1348 planning decisions,1349 and possession proceedings against trespassers,1350 whilst stating that each case will be determined on its particular facts,1351 and that the margin may be narrower where and the Court reserves the right to review both the State’s decision-making process and substantive outcome to assess whether it is fair and reasonable, and accords with the object and purpose of the normative content of the human right concerned. See Yuval Shany, 'Toward a General Margin of Appeciation Doctrine in International Law' (2006) 16(5) European Journal of International Law 907, 910-11. 1346 See, eg, Buckley v United Kingdom (1997) 23 EHRR 101: ‘The scope of this margin of appreciation is not identical in each case but will vary according to the context. Relevant factors include the nature of the Convention right in issue, its importance for the individual and the nature of the activities concerned (citations omitted)’: at [74]. 1347 Hughie Smith (On Behalf of the Gypsy Council) v Maria Buckland [2007] EWCA Civ 1318 CA (Civ Div), [58]. 1348 Ibid, citing Blecic v Croatia [2004] ECHR 397, [65] and Stankova v Slovakia (Unreported, European Court of Human Rights, Bratza P, Casadevall, Bonello, Traja, Pavlovschi, Sikuta and Jirvela JJ, and Early R, 9 October 2007), both cases involving possession claims by local authorities of rented accommodation. 1349 See Buckley v United Kingdom (1997) 23 EHRR 101, [75]: ‘[b]y reason of their direct and continuous contact with the vital forces of their countries, the national authorities are in principle better placed than an international court to evaluate local needs and conditions. In so far as the exercise of discretion involving a multitude of local factors is inherent in the choice and implementation of planning policies, the national authorities in principle enjoy a wide margin of appreciation.’ 1350 R (on the Application of James Casey) v Crawley Borough Council [2006] EWHC 301 (Admin), [58]. See also R v Brighton and Hove Council Ex parte Marmont [1998] JPL 670 (QBD), where Tucker J, at 1049, accepted that there is a wide margin of appreciation where a local authority is considering whether to issue proceedings against trespassers on its own land.’ 1351 Buckley v United Kingdom (1997) 23 EHRR 101, [74]; Connors v United Kingdom [2004] ECHR 223, [82]. See also Helen O'Nions, 'The Right to Respect for Home and Family Life: The first in a series of 'Gypsy cases' to challenge UK legislation' (1996) 5 Web Journal of Current Legal Issues at 15 August 2006. The author argues that one of the positive aspects of the first Gypsy case to go to the European Court of Human Rights from the United Kingdom, Buckley v United Kingdom (1997) 23 EHRR 101, was that the ‘court…emphasised that each case will be looked at on its facts, which is good news for the other

422 procedural safeguards are not in place at the domestic level.1352 In Chapman, the court affirmed that the state is to be accorded a wide margin of appreciation, intervening only if there has been a ‘manifest error of appreciation by the national authorities.’1353 In the court’s view, the very fact that the issues in that case involved ‘complexity and sensitivity…in policies balancing the interests of the general population, in particular with regard to environmental protection, and the interests of a minority with possibly conflicting requirements renders the Court’s role a strictly supervisory one (emphasis added)’1354particularly when procedural safeguards are in place at the domestic level.1355

In Connors, the court affirmed the margin of appreciation doctrine but drew a distinction between cases in which the interference affects the enjoyment of ‘intimate or key rights’,1356 in which the margin will be narrower and ‘spheres involving the application of social or economic policies’, such as planning regulations dealt with in Buckley and Chapman, in which the margin will be wide.1357 The court also considered that ‘in spheres such as housing, which play a central role in the welfare and economic policies of modern societies, it will respect the legislature’s judgment as to what is in the general interest unless that judgment is manifestly without

Gypsy applicants who wish to challenge the planning regulations as well as the Criminal Justice and Public Order Act 1994.’ 1352 Hughie Smith (On Behalf of the Gypsy Council) v Maria Buckland [2007] EWCA Civ 1318 CA (Civ Div), citing Connors v United Kingdom [2004] ECHR 223. 1353 Chapman v United Kingdom (2001) 33 EHRR 399, 426. Mrs Chapman argued for a narrowing of the margin of appreciation in light of the emerging international consensus amongst Contracting States to the Council of Europe recognising an obligation to protect the security, identity and lifestyles of national minorities, such as Gypsies and Travellers, relying on the Framework Convention for the Protection of National Minorities but the court took the view that to the extent a consensus was emerging, it was not concrete enough to guide the conduct or standards of Contracting States in a particular situation: at 426. 1354 Ibid 426. 1355 Ibid. 1356 Citing Dudgeon v United Kingdom [1981] ECHR 5, in which the interference affected the ability of consenting males to engage in private sexual activity, and Gillow v United Kingdom (1989) 11 EHRR 335, in which the interference affected the applicants’ ability to live in the home that they owned. 1357 Citing Buckley v United Kingdom (1997) 23 EHRR 101, involving enforcement of planning laws.

423 reasonable foundation.’1358 However, it also appears clear from the judgment that the scope of the margin of appreciation applicable in art 8 cases will depend on the facts of each case ‘with particular significance attaching to the extent of the intrusion into the personal sphere of the applicant.’1359 Article 8 concerns ‘rights of central importance to the individual’s identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled place in the community.’1360

1358 Connors v United Kingdom [2004] ECHR 223, [82]. 1359 Ibid. 1360 Ibid. It is also arguable that these European authorities, Buckley, Chapman and Connors, when considered in the context of other decisions under art 8 of the ECHR, provide limited guidance regarding the extent of deference to be afforded to the states when reviewing conflicts between regulatory schemes dealing with a range of policy areas and human rights provisions such as art 17 of the ICCPR. Whilst the Connors court endeavours to explain the narrowing of the margin of appreciation in that case on the basis that the interference involved ‘intimate or key rights’ to be contrasted with cases involving planning laws or ‘housing policy’ which play a ‘central role in the welfare and economic policies of modern societies,’ this is arguably a flawed basis for the distinction. The consequences of the eviction of the families in Buckley and Chapman equally involved ‘intimate or key rights’ and the policies regarding publicly-operated Gypsy sites in Connors could be equally said to play a central role in the welfare of the local society, and about which the local authority was best placed to determine the appropriate regulatory framework. There also appears to be little logic attached to the distinction between cases such as Gillow v United Kingdom (1989) 11 EHRR 335, discussed above, where the Court applied a narrow margin of appreciation, overturning the application of a general population and housing control policy applicable to the island of Guernsey, and the later case of Blecic v Croatia [2004] ECHR 397 in which the Court again held that the state should be afforded a wide margin of appreciation with respect to the regulatory scheme dealing with social housing, refusing to intervene in a decision terminating the applicant’s protected tenancy in a publicly-owned flat because of her absence for a period greater than six months without justification, when the applicant argued that her absence was directly attributable to armed conflict in Dalmatia, unless it may be argued that the nature of legal rights at stake – on the one hand full ownership of the property and on the other hand, a mere tenancy – were sufficient. It is suggested that the central distinguishing feature of Connors which lead to the applicants’ success was the lack of procedural fairness afforded, in the context in which they had a legitimate expectation that their existing legal and equitable occupancy rights would not be abrogated without due process. Yet, Gillow seems to also be a case where the proprietary rights of the owners in the home outweighed the states’ policy considerations. In Gillow, the applicants were clearly afforded procedural fairness in the process of seeking various reviews of the decision made against them but can be understood as a success based on the higher standard of

424

It may be seen that, in the Gypsy and Travellers cases, the European Court appears to have effectively reduced its role of assessing whether an interference was ‘necessary in a democratic society’ to one which is ‘strictly supervisory’ only intervening where the decision is manifestly unreasonable – arguably akin to being unreasonable in the Wednesbury sense, at least where the person affected has been afforded procedural safeguards under the domestic regulatory scheme authorising the eviction. The Chapman court made it very clear that, having been satisfied that the decision-makers had reached their decision after weighing in the balance the various competing interests, ‘[i]t is not for [the] Court to sit in appeal on the merits of those decisions, which were based on reasons which were relevant and sufficient, for the purposes of Article 8, to justify the interferences with the exercise of the applicant’s rights.’1361

In practice, does the absence of the ‘margin of appreciation’ doctrine with the HRC lead to a substantially different, and likely narrower, form of protection under art 8 compared to art 17 of the ICCPR? Although a range of views have been expressed on this issue,1362 it is argued that art 17 affords greater human rights protection than its corresponding provision, art 8, under the ECHR,1363 with less deference being afforded to state decision-making under a ‘margin of appreciation’ doctrine. The HRC has demonstrated that it will undertake its own balancing exercise of the interests at stake to reach its own view of the reasonableness of a decision, even when procedural safeguards were afforded the person affected at the domestic level. This

justification that might be required when abrogating the rights of private freehold property owners to enjoy their occupancy rights. 1361 Chapman v United Kingdom (2001) 33 EHRR 399, [114]. 1362 See, eg, Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2005), 381. 1363 Bakhtiyari v Australia, Communication No 1069/2002, UN Doc CCPR/C/79/D/1069/2002 (2003), 3.3: ‘The authors claim that deportation of Mrs Bakhtiyari and her children would violate articles 17 and 23, paragraph 1. The authors compare these provisions to the corresponding articles (12 and 8) of the European Convention on Human Rights, and consider the Covenant rights to be expressed in stronger and less restricted terms. As a result, the individual's right to respect for family life is paramount over any right of the State to interfere, and thus the "balancing exercise" and "margin of appreciation" characteristic of decisions of the European organs will be of lesser importance in cases arising under the Covenant.’

425 may be considered an appropriately divergent approach to that of the European Court. Scheinin notes that

the European Court of Human Rights applies a doctrine of ‘a margin of appreciation’ which results in a deferential standard when drawing the line beyond which interference with a human right amounts to a violation of that right…

... although the Committee does not refer to a margin of appreciation enjoyed by states, it is very likely to leave any matters pertaining to the assessment of facts and evidence in the hands of domestic courts – perhaps particularly in countries where the ICCPR is part of the domestic law and the courts make reference to it (emphasis added).’1364

The European jurisdiction is exercised in relation to decisions made by state parties where there is already a domestic human rights jurisdiction. In contrast, in relation to communications from state parties such as Australia, the HRC may be the only jurisdiction which is able to independently assess whether an interference violates a human right protected under the ICCPR. At the present time, the ICCPR has not been incorporated into Australia’s domestic law and no domestic remedy is available to review the use of DCC By-law 103 as an interference on a person’s right to respect of privacy, family and home. As such, in the decision-making process to forcibly evict a person, the possible impact on the person’s right to respect for privacy, family and home necessarily may not have been taken into account and given due consideration at the domestic level. A communication to the Committee would be the first occasion upon which such a review would be undertaken. It would, in effect, be exercise original jurisdiction, rather than a supervisory role.1365 As such, it would be

1364 Martin Sheinin, 'Justiciability and the Indivisibility of Human Rights' in John Squires, Malcolm Langford and Bret Thiele (eds), The Road to a Remedy: Current Issues in the Litigation of Economic, Social and Cultural Rights (2005) , 24. 1365 Evatt points out that the HRC may be required to reach findings of both fact and law in communications to the Committee from jurisdictions where no effective domestic remedy exists at state level. See Elizabeth Evatt, 'Reflecting on the role of international communications in implementing human rights' (1999) 5(2) Australian Journal of Human Rights 20, 28.

426 inappropriate for the Committee to afford a ‘margin of appreciation’ or to give undue deference to the state party’s decision-making processes.

How then are these principles to be applied to the situation of people living in the long grass in Darwin? How would the HRC determine whether a forced eviction by the DCC under DCC By-law 103 amounts to an unreasonable outcome under art 17? In what circumstances might the Committee form the view that a forced eviction was proportionate or objectively justifiable and necessary in light of the interests at stake? What are the factors to be taken into account? What can be drawn from other international sources and comparative domestic jurisprudence to guide the assessment?

4 Interference must have a Reasonable Outcome: Factors to be taken into account As previously noted, there is no individual communication to the HRC which has dealt with the human rights implications of the forced eviction of people from unlawful locations, including public space. There has therefore been no occasion where the HRC has been required to decide the relevant considerations to be taken into account, and the weight to be given to them, in assessing whether a forced eviction is unreasonable and disproportionate. In this sense, the field for development of principles is open.

It is argued that the HRC should be informed by the commentary of the CESCR and the UN Special Rapporteur on Adequate Housing regarding the international normative standards on forced evictions. As noted above, the CESCR has clearly stated that there is connection between the nature and content of the obligation on state parties under art 11(1) of the ICESCR regarding the prohibition on forced evictions and art 17 of the ICCPR. This approach is supported by the HRC in its 2005 Concluding Observations. There is extensive commentary on forced evictions by the CESCR through its own concluding observations. In addition, the UN Special Rapporteur on Adequate Housing, Miloon Kothari, has developed further commentary and guidelines on the prohibition on forced evictions. For example, he has made specific comments regarding the lawfulness of forced evictions of people living in public space in Australia, finding that laws such as DCC By-law 103 that are

427 used to forcibly evict and criminalise people living in public space lack the procedural and substantive rights protections required under the international law on the right to adequate housing,1366citing in support of this finding General Comment No 7 and his Basic principles and guidelines on evictions and displacement.1367

The South African decisions regarding the right of access to adequate housing under s 26 of the Constitution of South Africa may also provide guidance regarding adjudication of a prohibition on arbitrary evictions in a particular case.1368 There is also some comparative jurisprudence from India1369 and the United States1370 which considers civil rights protections in the context of forced evictions which might inform the assessment of arbitrariness or the appropriate remedies arising out of a violation. Further, whilst noting the divergence in doctrines applied in the English and European jurisdictions regarding forced evictions of Gypsies and Travellers challenged under art 8 of the ECHR or by judicial review, these decisions may also be

1366 Miloon Kothari, Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Miloon Kothari, Addendum, Mission to Australia (31 July to 15 August 2006, UN Doc A/HRC/4/18/Add.2, (2007): ‘These regulations do not provide people living in public places and who are threatened with eviction the procedural or substantive rights recognized under international laws regarding forced evictions, and therefore may also violate the right to adequate housing.’ 1367 Special Rapporteur on Adequate Housing, 'Basic Principles and Guidelines on Development-Based Evictions and Displacement: Annex 1 of the Report of the Special Rapporteur on Adequate Housing as a component of the right to an adequate standard of living (UN Doc A/HRC/4/18)' (2007). 1368 See, eg, Government of South Africa and Others v Grootboom 2001 (1) SA 46; City of Cape Town v Rudolph & Ors (Unreported, High Court of South Africa, Cape of Good Hope Provisional Division, Selikowitz J, 6 January 2006); City of Cape Town v Various Occupiers of the Road Reserve of Appellant parallel to Sheffield Road in Phillipi (Unreported, High Court of South Africa Cape of Good Hope Provincial Division, Blignault and Erasmus JJ, 30 September 2003); City of Johannesburg v Rand Properties (Pty) Ltd & Ors 2007 SCA 25 (RSA). 1369 See, eg, Olga Tellis v Bombay Municipality Corporation AIR (1986) SC 180; Ahmedabad Municipal Corporation v Nawab Khan Gulab Khan & Ors AIR 1997 SC 152; Almitri Patel v Union of India AIR 2000 SC 1256. 1370 See, eg, Jones v City of Los Angeles (Unreported, United States Court of Appeals for the Ninth Circuit, 14 April 2006) and the cases contained in National Coalition for the Homeless and National Law Center on Homelessness & Poverty, 'A Dream Denied: The Criminalization of Homelessness in US Cities' (January, 2006).

428 relevant to identifying the kinds of factors applicable to any assessment of the reasonableness of an eviction under art 17. As noted in Chapter Six, there are some striking similarities between the experiences of the Gypsy and Traveller communities in the UK and the Indigenous people in Australia who live a more traditional cultural life, including those people living in the long grass in Darwin in the Northern Territory.

The next section endeavours to highlight some of the key factors which these international and comparative sources dealing with forced evictions have identified as relevant considerations to be taken into account and the weight to be given to them in determining whether the outcome of those processes has lead to a reasonable and proportionate outcome.

(a) Unlawfulness of occupancy As discussed in Chapter Six, people who live in the long grass in Darwin are trespassers on public land and have no legal interest in their camping and resting sites around the urban centre of Darwin. It was argued that unlawful occupancy is not a bar to engaging the right to respect of privacy, family and home. However, in an assessment under art 17 of the reasonableness and proportionality of an interference with that right, would the fact that people in the long grass are trespassers under domestic law be relevant, and how much weight would be given to this fact?

As explained in Chapter Six, the HRC Committee in its 2005 Concluding Observation applied art 17 to the forced eviction of people living in informal settlements in Kenya, and the commentary of the CESCR and the UN Special Rapporteur on Adequate Housing also make it clear that the minimum procedural and substantive human rights protections associated with forced evictions are applicable irrespective of the legality of occupancy.1371 In other words, illegal occupancy not only is irrelevant to whether a

1371 See United Nations Committee on Economic, Social and Cultural Rights, General Comment No 7: Forced Evictions, UN Doc E/1998/22 (1997); See Special Rapporteur on Adequate Housing, 'Basic Principles and Guidelines on Development-Based Evictions and Displacement: Annex 1 of the Report of the Special Rapporteur on Adequate Housing as a component of the right to an adequate standard of living (UN Doc A/HRC/4/18)' (2007).

429 place is a person’s home, but it is also irrelevant to the minimum standard of protection to be provided.

However, the European authorities makes it clear that, under art 8 of the ECHR, the unlawfulness of occupancy will clearly be a relevant factor to be considered and will weigh heavily against a finding that the interference amounting to a forced eviction was disproportionate. For example, in Chapman, the court stated that

[w]hen considering whether a requirement that the individual leave his or her home is proportionate to the legitimate aim pursued, it is highly relevant whether or not the home was established unlawfully. If the home was lawfully established, this factor would self-evidently be something which would weigh against the legitimacy of requiring the individual to move. Conversely, if the establishment of the home in a particular place was unlawful, the position of the individual objecting to an order to move is less strong. The Court will be slow to grant protection to those who, in conscious defiance of the prohibitions of the law, establish a home on an environmentally protected site. For the Court to do otherwise would be to encourage illegal action to the detriment of the protection of the environmental rights of other people in the community (emphasis added).1372

The English authorities have been particularly strident in underlining that it would be a vary rare case indeed in which art 8 of the ECHR could be used by a person who is a trespasser to ever defeat the owner’s proprietary rights to possession. In 2001, in Fuller, Burnton J confirmed that ‘[ t]he unlawfulness of the establishment of an encampment is a relevant and significant factor in determining whether its removal is justified under article 8(2).’1373 Then, in 2003, Lord Scott in London Borough of Harrow v Qazi (‘Qazi’), went even further:

1372 Chapman v United Kingdom (2001) 33 EHRR 399, [102]. This situation may be contrasted with the forced eviction reviewed in Connors, in which the family had lawful occupation rights, but these were terminated under the domestic law as part of the eviction process. In other words, the interference itself operated to remove the lawfulness of the family’s occupation. 1373 R (Fuller) v Chief Constable of the Dorset Constabulary [2002] 3 All ER 57, [74].

430 [i]n no case has article 8 been applied so as to diminish or detract from the contractual and proprietary rights of the person entitled to possession.1374

The House of Lords decision in Qazi found by majority that, where a person is occupying premises with no legal or equitable right to occupancy, as is the case with people living in the long grass, the application for eviction will always be lawful and ‘necessary in a democratic society’ regardless of the personal circumstances of the individual, for example, whether they may become homeless following the eviction.

It could be said that in these cases Article 8 is simply not applicable. Or it could be said, applying Article 8(2), that the recovery of possession by the person entitled to possession is in accordance with the law and is necessary to protect that right to possession. It comes to the same thing.1375

The decision of Qazi was however to be shortly followed by Connors which held that the Connors family were entitled to art 8 protection even though they no longer had a right to occupy the caravan site, the right having been terminated under domestic laws. The apparent inconsistency between Qazi and Connors was then reviewed by the House of Lords in Price which affirmed the position that, in English law, trespassers on public land will rarely if ever be able to resist their eviction relying on art 8. The majority of the court in Price found that, where a person has a legal right to possession, an art 8 defence is not available based on personal circumstances, as long as procedural requirements have been met, and the administrative decision to evict is not Wednesdury unreasonable.1376 Lord Bingham, in the minority in Price, whilst

1374 [2003] UKHL 43, [139]. 1375 Ibid [137]. Lord Scott, cited in Ian Loveland, 'Much Ado About Not Very Much After All? The (Latest) Last Word on the Relevance of ECHR, Article 8 to Possession Proceedings' (2006) Journal of Planning & Environment Law 1457, 1458. The English Courts do not apply the ‘margin of appreciation’ doctrine in their review of the decisions of public authorities, in this case, the decision of the London Borough of Harrow to proceed with an application for repossession of premises in which Mr Qazi was holding over, following the lawful termination of his tenancy. 1376 Leeds City Council v Price [2006] 2 WLR 570, [110]: Lord Hope, delivering one of the majority judgments, stated that ‘…if the requirements of the law have been established and the right to recover possession is unqualified, the only situations in which it would be open to the court to refrain from proceeding to summary judgment and making a possession order are these: (a) if a seriously arguable

431 accepting that an art 8 argument may be available, also took the view that ‘it is very hard to imagine circumstances in which a court could properly give squatters …anything more than a brief respite.’1377 He contrasted the cases of ‘squatters’ with the family in Connors who had lawfully occupied their site for many years.1378 As noted, the majority in Price leaves open the possibility that a person in unlawful occupation facing eviction by a public authority may challenge the decision on public law grounds, including Wednesdbury unreasonableness. According to Lord Hope of Craighead, this avenue of review ‘is of course compatible with article 8.’1379 His proposition is however dependent upon whether the test applied to a review of an administrative decision to evict on the grounds of Wednesdbury unreasonableness is a narrower ground of review than assessing proportionality under art 8(2) of the ECHR. As suggested above, the standard of review in each case, in light of the European Court of Human Rights’ margin of appreciation doctrine, may indeed effectively amount to the same, requiring a decision to be ‘manifestly’1380 unreasonably in order for the court to intervene in its ‘strictly supervisory’1381 role.

It should be noted, however, that there had been several earlier decisions by the lower courts in the UK both prior to and after the commencement of the Human Rights Act 1998 which had quashed decisions to commence forced eviction proceedings against Gypsies and Travellers made by local authorities under domestic law, either whilst living on council land under the CJPOA, for example, in R (Margaret Price) v Carmarthenshire County Council,1382 or living contrary to planning laws on their own

point is raised that the law which enables the court to make the possession order is incompatible with Art 8 … (b) if the defendant wishes to challenge the decision of the public authority to recover possession as an improper exercise of its powers at common law on the grounds that it was a decision that no reasonable person would consider justifiable, he should be permitted to do this provided again the point is seriously arguable (citations omitted).’ 1377 Leeds City Council v Price [2006] 2 WLR 570, [37]. 1378 Ibid [48]. 1379 Ibid [61]. 1380 Connors v United Kingdom [2004] ECHR 223, [82]. 1381 Chapman v United Kingdom (2001) 33 EHRR 399, 426. 1382 [2003] EWHC 42 Admin, in which judgment was handed down on 24 January 2003, several months before Qazi which was heard in June and July 2003. Note that, in the former case, the Irish Traveller family was originally given permission by the council to live in the public open space as part

432 land, for example, in Clarke v Secretary of State for the Environment, Transport and the Regions and Tunbridge Wells BC (‘Clarke’).1383 As Burton J noted in Clarke,

[t]here must be a role for the Administrative Court in checking whether there has been a manifest breach of the Convention, even if the approach of the authority or tribunal, sought to be reviewed, does not offend against a common-law or statutory regime.1384

In Rafferty, discussed above, the court quashed a council decision to seek summary possession of their land using civil law proceedings under the former RSC Ord 113 on the grounds of Wednesbury unreasonableness, the council having incorrectly formed the view that there was nothing further that it was required to do to fulfil its statutory obligations under the Caravan Sites Act 1968 (UK). In McDonagh, the courts quashed a decision to evict a Gypsy family from a council site on the grounds of denial of natural justice and failing to take into account relevant considerations and in Atkinson, the court quashed a decision of the local council to exercise its power under the CJPOA to direct travellers to leave council land upon which they had established an encampment on the grounds that the council had failed to take into account ‘considerations of common humanity.’

It is arguable however that, when assessing the weight to be given to the unlawfulness of occupation in eviction proceedings, the English authorities indicate that it may be appropriate to draw a distinction between those cases in which the application for eviction under domestic law by way of summary possession proceedings as proprietary owner, such as in Price, and those cases where the eviction is being done under criminal law provisions involving a direction to leave under the CJPOA, such as in Atkinson and R (Margaret Price) v Carmarthenshire County Council, and a by- law like DCC By-law 103. In the former repossession proceedings, an application is

of a settlement of eviction proceedings initiated by the Council under the CJPOA with respect to another location. However, the council then offered them conventional housing, and said that they would be evicted. The family had attempted to find another site but were unsuccessful. The council intended that the public open space would only be temporary until the family found an alternative site. 1383 [2001] EWHC 800 Admin. 1384 Ibid.

433 being made to assert a proprietary right. It involves proceedings in rem. In the latter, failure to comply with a direction to leave under the CJPOA or DCC By-law 103 constitutes a criminal offence, and the legislation is, as noted in Atkinson, ‘draconian’ in its effect. This distinction is accepted in Marmont, finding that, in an application for summary possession of one’s own land,

the ‘margin of appreciation’ in the exercise of its discretion is greater than when a local authority is considering whether to exercise its powers under the [CJPOA]. … the Court should be slow to allow … personal considerations … to defeat the [local authority’s] claim in rem.1385

This distinction appears to be borne out by the comments of the court in R (on application of James Casey) v Crawley Borough Council (‘Casey’):

Given the consequences of refusing possession to a local authority would be to defeat the authority’s otherwise unqualified property rights, and hence to fetter the use of publicly-owned land, only in the most extreme and sympathetic circumstances should a Court determine that, on the specific facts of the individual case, the local authority’s property rights should be outweighed by the Article 8’s rights of a trespasser in occupation of it’s land.1386

In Price, the court also seemed to find that, in possession proceedings, the ‘proof by the public authority of its entitlement as the owner of the land to obtain an order for possession in the exercise of its property rights’1387 was definitive against trespassers on that land thereby emphasising the significance of the assertion of a proprietary right. However, the courts have been clear that unlawful occupation will weigh heavily in favour of eviction, even when the power to evict is by way of the criminal law.1388

1385 R v Brighton and Hove Council Ex parte Marmont [1998] JPL 670 (QBD), 672. 1386 R (on the Application of James Casey) v Crawley Borough Council [2006] EWHC 301 (Admin), [85]. 1387 Leeds City Council v Price [2006] 2 WLR 570, [116] per Lord Hope. 1388 R (on application of O'Brien and others) v Basildon District Council [2006] EWHC 1346, [152]: ‘ The enforcement of criminal law is properly to be given very considerable weight in the decision as to the steps to be taken to enforce compliance with enforcement notices which have taken effect…Where

434

As previously noted, it is arguable, however, that Price is inconsistent with the Connors decision, which remains good authority for the proposition that eviction proceedings commenced in accordance with domestic law can be challenged under art 8(2) of the ECHR, and this must involve a consideration of personal circumstances in every case. As discussed in Chapter Six, Loveland draws a distinction between those cases in which, at the time of the interference, the person had some kind of legal interest in the land or place they called their home in order to engage art 8 protection, and the European authorities support the view that prior legal occupancy will weight in favour of the person in terms of determining the reasonableness of an eviction. On the other hand, it is likely that, if a person has never had any legal right to the land or place, this factor will weigh heavily in favour of the state. At the present time, the European Court has yet to deal directly with the question. The South African jurisprudence also indicates that the unlawfulness of occupancy will weigh in favour of the state, particularly where it can be shown that the intention of those taking up occupancy was a desire to seize land to defeat the claims of others.1389

What then is the likely approach of the HRC to this question in the context of Darwin? It is submitted that, in considering the unlawfulness of the occupation of people living in the long grass, the HRC should be pressed to adopt the internationally recognised norm regarding forced evictions that, where land is occupied unlawfully, this should not diminish the minimum protection against arbitrary forced evictions, if a person’s human right to respect for their home, privacy and family is engaged. This submission should be most forcefully made where the person’s ‘home’ is affected, for example, in those cases, such as Johnny Balaiya, where he had clearly established his home living in public space in Darwin, and had done so for many years. His situation was indistinguishable from the people living in the informal settlements in Kenya dealt with in the 2005 Concluding Observations in terms of the level of protection he

occupation is in breach of the criminal law, even more so will enforcement of the law be a proportionate step. Great, even decisive, weight can properly be given to the effective enforcement of the law, avoiding the law being set at nought and being seen to be flouted, suspended or dispensed with in favour of a particular group.’ 1389 See, eg, City of Johannesburg v Rand Properties (Pty) Ltd & Ors 2007 SCA 25 (RSA).

435 should be afforded. However, if the Committee considers that unlawfulness of occupation will weigh in favour of protecting the state’s interests under DCC By-law 103, the Committee should be urged to treat the eviction power as ‘draconian’, providing as it does an immediate power to move on people living in public space, which leads to immediate criminalisation upon failure to comply. As such, the Committee should not defer to the state’s interest in only the ‘most extreme and sympathetic circumstances’ but assess all the relevant considerations in determining proportionality, requiring that the state demonstrate whether this was the least restrictive measure that could be taken to pursue their legitimate interest, or that it ‘impairs the right as minimally as possible,’ given that human rights are at stake, to achieve a reasonable outcome.

(b) Length of occupation As Chapter Six detailed, for many of the people living in the long grass in Darwin, it is likely that they will have only been occupying their current camps and resting places for relatively short periods of time, due both to their displacement by council and policing authorities, and also their greater tendency to move from place to place. A sizeable proportion will have been living in the long grass in some fashion for extended periods of time. Will the length of occupancy impact on the extent to which their forced eviction may be found to be unreasonable?

The international sources do not delve into this question under either the ICCPR or the ICESCR suggesting that length of occupation is not a relevant factor to the level of protection to be afforded in a forced eviction. The Gypsy and Traveller cases under art 8 of the ECHR and by way of judicial review vary in their approach. In some cases, a short occupancy has weighed against the Gypsies and Travellers, on the basis that their human right has been barely engaged1390 and that the local authority had

1390 Leeds City Council v Price [2006] 2 WLR 570, [48], per Lord Bingham, in which the occupation was only a few days. See also R (on the Application of James Casey) v Crawley Borough Council [2006] EWHC 301 (Admin), [38] and [46].

436 moved ‘timeously to evict them…’1391 presumably therefore not creating any legitimate expectation of being able to stay. In other cases, the court has expressed concern that, to continue to permit occupation indefinitely is to weigh in favour of eviction on the basis that the ability to occupy land is done on the basis of ‘toleration’1392 presuming that the basis of permission to occupy is only a temporary measure, and should not develop permanency. Where a greater length of occupancy has weighed in favour of preventing evictions, it has typically been in the context of where the Gypsy and Traveller families have been living on their own land but in breach of planning permission,1393 or were lawfully occupying the land prior to termination of their occupation license.1394

The South African implementation of the right to access adequate housing suggest that a greater length of occupancy may increase the responsibilities on the state when proceeding with a forced eviction but that it will be the desperation of the occupants and the lack of availability of alternative housing that will weigh more heavily in determining the justice of an eviction. Under the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 1998 (‘PIE’),1395 enacted to give effect to the constitutional protection against arbitrary forced evictions in s 26(3) of the Constitution of South Africa, a court may only grant an order to evict a person from

1391 Leeds City Council v Price [2006] 2 WLR 570, [37] (Lord Bingham). See, also, R (Fuller) v Chief Constable of the Dorset Constabulary [2002] 3 All ER 57, [78] (Burnton J), where the court identified the ‘temporary nature’ of the encampment as weighing in favour of their eviction. 1392 See R (Maughan) v Leicester City Council [2004] EWHC 1429 where the Traveller family had the benefit of several council decisions permitting them to stay at the unlawful site, a factor which was taken into account in supporting the decision to evict on the basis that the unlawful occupancy could not be sustained indefinitely. 1393 South Cambridgeshire District Council v Dan Flynn [2006] EWHC 1320, [13] per Silber J: ‘There are two features which distinguish this case from the facts in many other cases concerning gypsies, of which the first is that these defendants own the land, which is the subject matter of the present application and so this distinguishes their claims from those in many of the reported cases in which gypsies have only had a short connection with the place from which the council is seeking to evict them.’ 1394 See, eg, Connors v United Kingdom [2004] ECHR 223; Hughie Smith (On Behalf of the Gypsy Council) v Maria Buckland [2007] EWCA Civ 1318 CA (Civ Div). 1395 Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 1998 (South Africa).

437 land they occupy, but not necessarily own, if ‘it is just and equitable to do so, after considering all the circumstances.’1396 Whilst what may be termed the ‘considerations of common humanity’ such as the ‘rights and needs of the elderly, children, disabled persons and households headed by women’1397 must be taken into account with all forced evictions, the court is only required to consider whether ‘land has been made available or can reasonably be made available by a municipality or other organ of state or another land owner for the relocation of the unlawful occupier’1398 if the land has been occupied for more than six months. In City of Capetown v Rudolph,1399 the High Court of South Africa rejected an argument that the general protection from arbitrary evictions under PIE did not apply to people who had only recently taken up occupancy (in that case, initially a matter of weeks) on the basis that ‘there can be no doubt that the shelters erected by the Respondents are their homes. Indeed, their only homes.’1400 Further, in City of Cape Town v Various Occupiers of the Road Reserve of Appellant parallel to Sheffield Road in Phillipi,1401 the High Court upheld an order under PIE which had granted an eviction order but suspended the order pending the provision of alternative accommodation being made available, even though the occupation of the land had been less than the six months on the basis of their desperate situation and that there was no alternative accommodation immediately available to them. Accordingly, whilst length of occupancy is relevant to assessing reasonableness of the eviction order, the forced eviction legislation has been interpreted to give priority to the considerations of common humanity regarding the impact of the eviction on the persons concerned.

1396 Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 1998 (South Africa), s 4(6). 1397 Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 1998 (South Africa), s 4(6). 1398 Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 1998 (South Africa), s 4(7). 1399 City of Cape Town v Rudolph & Ors (Unreported, High Court of South Africa, Cape of Good Hope Provisional Division, Selikowitz J, 6 January 2006). 1400 Ibid 17. 1401 City of Cape Town v Various Occupiers of the Road Reserve of Appellant parallel to Sheffield Road in Phillipi (Unreported, High Court of South Africa Cape of Good Hope Provincial Division, Blignault and Erasmus JJ, 30 September 2003).

438 The length of occupancy has been a significant factor in the jurisprudence of the Supreme Court of India dealing with the constitutional right to life, which has been engaged to seek protection from forced evictions of pavement dwellers, also unlawful occupiers, in that state. The right to life is protected under art 21 of the Constitution of India 19501402 and the Supreme Court of India has determined that the right may be limited only in accordance with law that is ‘just, fair and reasonable.’1403 In determining whether the forced eviction of pavement dwellers violated this constitutional right, the Supreme Court of India has held that unfettered eviction powers must be exercised ‘reasonably’1404 In Olga Tellis v Bombay Municipality Corporation,1405 the Supreme Court held that the pavement dwellers were entitled to procedural fairness prior to the eviction, and ordered that they should all be given one months notice of eviction. However, only those who had been occupants for more than ten years were to be offered alternative accommodation, and only those who had been in occupation for more than 20 years with substantive housing were not be evicted unless the land was required for some public purposes. A subsequent decision in Ahmedabad Municipal Corporation v Nawab Khan Gulab Khan1406 also held that all evictees were entitled to minimal procedural protections but only those who had been in occupation for more than 10 years were to be protected from eviction unless alternative accommodation was provided.1407 These cases therefore indicate that the

1402 Constitution of India 1950. 1403 Olga Tellis v Bombay Municipality Corporation AIR (1986) SC 180, 196: ‘It is far too well settled to admit of an argument that the procedure prescribed by law for the deprivation of the right conferred by Art 21 must be fair, just and reasonable.’ The court cited as authority, inter alia, Francis Coralie Mullin v The Administrator, Union Territory of Delhi (1981) 68 All India Reporter SC 746. 1404 Olga Tellis v Bombay Municipality Corporation AIR (1986) SC 180, 199: ‘[The discretion to remove encroachments under the Act] has to comply with the constitutional mandate that the procedure accompanying the performance of a public act must be fair and reasonable. We must lean in favour of this interpretation because it helps sustain the validity of the law.’ 1405 Ibid. 1406 AIR 1997 SC 152. 1407 Cf Almitri Patel v Union of India AIR 2000 SC 1256 in which the Supreme Court of India rejected that persons living in informal settlements had any procedural or substantive rights in a forced eviction. ‘Rewarding an encroacher on public land with free alternative sites is like giving a reward to a pickpocket.’

439 longer the occupation, the greater the requirements in terms of both procedural and substantive protections.

What then may be said about the significance of the length of occupation for people living in the long grass in Darwin in the Northern Territory? Should length of occupation be taken into account, and if so, should it weigh in favour of greater protection or less, and how much weight should it be given in any decision under art 17 of the ICCPR?

It is submitted that, applying international norms regarding forced evictions, and the jurisprudence developed in South Africa, the length of occupation should not be considered a significant factor to be weighed in assessing proportionality. The key issue should be the impact on the person facing the forced eviction – the availability of alternative accommodation, the impact on ethnic identity and considerations of common humanity balanced against the legitimate state interest, discussed further below – rather than on historical factors. It is the present circumstances that are relevant to the question. The decisions from the Indian jurisdiction reveal the lack of logic in drawing any hard line distinctions regarding procedural or substantive rights protections that should be afforded. Upon what basis could it be said that a person’s right to life is worthy of any less protection on the basis that in the past, a person had lived in the precarious circumstances of informal occupation for two, six or ten years? Once it is established that a person’s right to respect for privacy, family and home is engaged, the Committee should approach the question of proportionality on present circumstances and future impact, rather than on any notion that past occupancy has created some entitlement to human rights protection.

Alternatively, if length of occupation is to be taken into account, it may be applied to the question of the extensiveness of the procedural protections which may be required to avoid an arbitrary eviction, with longer occupancy weighing more heavily in favour of greater protections.

440 (c) Availability of alternative accommodation The Darwin case study sets out in Chapter Four that one of the key factors that has lead to people living in the long grass in Darwin is the lack of available alternative accommodation. This is a general proposition that has affected everyone, regardless of ethnicity. Some people, Indigenous or otherwise, are unable to obtain accommodation under any of the existing housing options available. For Indigenous people, this housing crisis is further compounded by a cultural aversion to existing social housing options and the lack of culturally appropriate housing, as well as the generally more vulnerable position of Indigenous people as a minority group who have experienced extreme historical disadvantage and are subjected to discrimination, with associated health and welfare issues. In this section, the authorities are reviewed regarding the relevance of a general lack of available accommodation, regardless of ethnicity, to whether an eviction would be considered arbitrary in violation of art 17. The following section will then focus on the relevance of the ethnic identity of Indigenous people as a vulnerable minority group.

It appears that the jurisprudence reviewed dealing with forced evictions acknowledges the relevance of whether a person has access to alternative accommodation. The more challenging question is how much weight should be given to this factor, and whether the lack of access to alternative accommodation should be decisive against permitting a forced eviction, or in only permitting eviction if alternative accommodation can be made available. Will an eviction prima facie be arbitrary if the person has no where else to go?

In the 2005 Concluding Observations, the Committee found that the forced evictions of people living in informal settlements in Kenya should not occur unless, inter alia, appropriate resettlement arrangements have been made.1408 This position accords with the commentary of the CESCR and the UN Special Rapporteur on Adequate Housing on the prohibition on forced evictions under art 11(1) of the ICESCR. Both bodies state that a person should not be forcibly evicted from their homes, even when they are located on public land, if they will be evicted into homelessness. If an eviction

1408 Concluding Observations of the Human Rights Committee: Kenya, UN Doc CCPR/CO/83/KEN, (2005), [22].

441 cannot be avoided, the state is under an obligation to ‘make provision for the adoption of all appropriate measures, to the maximum of its available resources, especially for those who are unable to provided for themselves, to ensure that adequate alternative housing, resettlement or access to productive land, as the case may be is available and provided.’1409

However, this international commentary diverges radically from the European and English authorities dealing with Gypsy and Traveller evictions. The European Court of Human Rights makes it clear that a lack of alternative appropriate accommodation, whilst relevant, will not automatically operate to defeat a forced eviction under art 8 nor will the state be obliged to provide accommodation if an eviction is to proceed. In the view of the European Court, such a finding would be tantamount to creating a right to a home. The Court in Chapman accepted that a lack of alternative appropriate accommodation will be relevant, and that ‘if no alternative accommodation is available, the interference is more serious than where such accommodation is available. The more suitable the alternative accommodation is, the less serious is the interference constituted by moving the applicant from his or her existing accommodation.’1410 However, the court did not accept that

because statistically the number of Gypsies is greater than the number of places available on authorised Gypsy sites, the decision not to allow the application of a Gypsy family to occupy land where they wished in order to install their caravan, in itself, and without more, constituted a violation of Article 8. This would be tantamount to imposing on the United Kingdom … an obligation … to make available to the Gypsy community an adequate number of suitably equipped sites.

1409 Special Rapporteur on Adequate Housing, 'Basic Principles and Guidelines on Development-Based Evictions and Displacement: Annex 1 of the Report of the Special Rapporteur on Adequate Housing as a component of the right to an adequate standard of living (UN Doc A/HRC/4/18)' (2007), [43]. See also United Nations Committee on Economic, Social and Cultural Rights, General Comment No 7: Forced Evictions, UN Doc E/1998/22 (1997), [16]: ‘Evictions should not result in individuals being rendered homeless or vulnerable to the violation of other human rights. Where those affected are unable to provide for themselves, the State party must take all appropriate measures, to the maximum of its available resources, to ensure that adequate alternative housing, resettlement or access to productive land, as the case may be, is available.’ 1410 Chapman v United Kingdom (2001) 33 EHRR 399, [103].

442 The Court is not convinced, despite the undoubted evolution that has taken place in both international law…and domestic legislation in regard to protection of minorities, that Article 8 can be interpreted as implying for States such a far-reaching positive obligation of general social policy… It is important to recall that Article 8 does not in terms recognise a right to be provided with a home… Whether the State provides funds to enable everyone to have a home is a matter for political not judicial decision (citations omitted).’ 1411

It also formed the view that, in the absence of evidence, inter alia, about the efforts of Mrs Chapman to find an alternative site, it could not conclude that, as a matter of evidence, there were no alternative sites available, even though statistics had been provided to demonstrate the lack of available sites.1412

The English cases also reject a principle or rule that the absence of alternative accommodation should necessarily prevent an eviction process. 1413 Whilst alternative

1411 Ibid [98]-[99]. 1412 Ibid [112]-[113]. Cf Stankova v Slovakia (Unreported, European Court of Human Rights, Bratza P, Casadevall, Bonello, Traja, Pavlovschi, Sikuta and Jirvela JJ, and Early R, 9 October 2007) where the court found that an eviction from public housing without alternative accommodation, with a child in the care of the applicant, in the absence of relevant and sufficient reasons, was disproportionate and therefore not ‘necessary in a democratic society.’ The applicant was awarded 3000 euros. However, the case was an appeal from the Constitutional Court of Slovakia, which has reached the same finding at the domestic level. The applicant has proceeded to the European Court because the Constitutional Court was not empowered to provide an effective remedy by way of damages or other relief. 1413 See, eg, R v The Forest of Dean District Council Ex parte Grenfell (Unreported, Queen's Bench Division (Crown Office List), MacPherson of Cluny J, 19 March 1996): ‘There is no rule … that proceedings can never be brought in cases of this kind [ie enforcement proceedings to evict persons living on their own land in contravention of planning laws] until those who are on the land have found alternative accommodation.’ See also R (on the Application of James Casey) v Crawley Borough Council [2006] EWHC 301 (Admin), in which it was held that, given that there is no obligation on the state authority, the council, to provide sites for Gypsies, there can be no breach of any duty for failing to do so, and that ‘… the absence of an alternative site, either permanent or temporary, does not bar a local authority from obtaining possession against a trespasser on an unauthorised site where its decision to do so would be otherwise reasonable.’ At [78]. See also Department for Communities and Local Government, 'Planning for Gypsy and Traveller Caravan Sites Circular (ODPM 01/2006)' (2006), 16: ‘The obligation on public authorities to act compatibly with Convention rights does not give gypsies and travellers a right to establish sites in contravention of planning control.’

443 accommodation will be a relevant consideration to be taken into account, whether under an art 8 analysis1414 or by way of judicial review on the grounds of procedural fairness or unreasonableness, 1415 the courts require more, only being prepared to prevent an eviction either when procedural fairness has not been afforded1416 or when other factors weigh against eviction more heavily than the interest of the state.1417

However, whilst the English and European jurisprudence take the view that, to prevent an eviction ‘merely’ because the person will be made homeless is tantamount to creating a right to a home, going beyond the boundaries of art 8 protection, it is submitted that a finding that it is unreasonable to evict someone into homelessness does not automatically confer a positive duty to provide a home, although, as discussed later, such a positive duty may also arise in certain cases. It is possible to prevent a forced eviction from occurring, pending the state taking reasonable steps to make an alternative suitable site available, where that is considered to be reasonable in all the circumstances. This was the remedy crafted in City of Johannesburg v Rand

1414 See, eg, Tanbridge District Council v Delaney and Ors [2000] 1 PLR 11; R (on application of O'Brien and others) v Basildon District Council [2006] EWHC 1346; Simmons v First Secretary of State [2006] JPL 575; South Cambridgeshire District Council v Dan Flynn [2006] EWHC 1320; Chichester DC v First Secretary of State & Ors [2005] 1 WLR 279 (CA) Civ Div)); Davis v Tonbridge [2004] EWCA Civ 194; Porter v First Secretary of State and South Bucks DC [2004] UKHL 33. See also the discussion in Chris Johnson and Marc Willers, Gypsy and Traveller Law (2004), 33-8. 1415 See, eg, Dodd and Ors v Hampshire County Council (Unreported, Court of Appeal (Civil Division), McCowan LJ, 20 December 1993); R v Secretary of State for the Environment Ex parte Ward (Unreported, Queen's Bench Division (Crown Office List), Pill J, 27 May 1994); West Glamorgan County Council v Rafferty [1987] 1 WLR 457. 1416 See, eg, R v Lincolnshire Ex Parte Atkinson (1996) 8 Admin LR 529; R v Wolverhampton Metropolitan Borough Council Ex parte Dunne (1997) 29 HLR 745. 1417 See, eg, Chichester DC v First Secretary of State & Ors [2005] 1 WLR 279 (CA) Civ Div)) which found that, although there was no duty to provide adequate sites for Gypsies and Travellers, in a planning decision, the planning inspector was entitled to weigh in favour to the Gypsy family the fact that the planning authority had not made adequate sites available. See also R (on the Application of James Casey) v Crawley Borough Council [2006] EWHC 301 (Admin), [77]: ‘As there is no duty upon the Defendant to provide a site, including an alternative site, there can be no breach of any such duty. What it is reasonable for [a local authority] to do, in accordance with the Guidance, is to give reasonable consideration to the Options.’ In that case, finding an alternative site was not an option, because no such sites existed.

444 Properties (Pty) Ltd et al (‘City of Johannesburg’)1418 when dealing with the right to adequate housing in South Africa. The South African Constitution provides for a right to have access to adequate housing.1419 The jurisprudence has developed to be clear that this does not create a right for a person to be housed by the State, nor does it create an immediate obligation on the state to provide people with a home in a particular case.1420 The obligation is to adopt reasonable measures within available resources to progressively realise access to adequate housing.1421 The case involved an application by the City of Johannesburg to obtain an eviction order against some 300 people occupying six properties in the centre of Johannesburg. In City of Johannesburg, the High Court of South Africa prevented a forced eviction of squatters living in derelict buildings in destitute circumstances until provision of adequate alternative housing was available. The decision did not order the City to provide the accommodation but prevented evicting people into homelessness whilst no such accommodation was available. The State was under an obligation to, at the least, not make the situation worse for the residents. The case went on appeal to the Supreme Court of Appeal of South Africa,1422 which determined that, in light of the dangerous conditions of the building, inter alia, it would not prevent the eviction from occurring in the particular case, as it was being conducted lawfully under the domestic legislation. However, it ordered the state to

offer and provide those [occupants] who are evicted and are desperately in need of housing assistance with relocation to temporary settlement area … within its municipal area. The temporary accommodation is to consist of at least the following elements: a place where they may live secure against eviction; a structure that is waterproof and secure against the elements; and with access to basic sanitation, water and refuse services.1423

1418 City of Johannesburg v Rand Properties (Pty) Ltd & Ors 2007 (1) SA 78 (W). 1419 Constitution of the Republic of South Africa 1996, s 26(1). 1420 See, eg, Government of South Africa and Others v Grootboom 2001 (1) SA 46; 1421 See Constitution of the Republic of South Africa 1996, s 26(2). 1422 City of Johannesburg v Rand Properties (Pty) Ltd & Ors 2007 SCA 25 (RSA). 1423 This matter has now been appealed to the Constitutional Court of South Africa, and was heard on 28 August 2007. The Court has reserved judgment.

445 According to Budlender, the South African jurisprudence regarding forced evictions under section 26 of the Constitution has determined that

although there is not a positive right to alternative accommodation, the unavailability of alternative accommodation will often be a bar to the granting of an eviction order. What this amounts to is a defensive or negative right to alternative accommodation where the evictee is not able to obtain this through his or her own efforts.’1424

The effect of the jurisprudence in South Africa is similar to the outcome achieved in one of the recent cases in the United States dealing with forced evictions of people living on the streets using an anti-sleeping law similar to DCC by-law 103. Jones v City of Los Angeles (‘Jones’), 1425 a decision of the United States Court of Appeals for the Ninth Circuit was handed down on 16 April 2006. The case illustrates again that the protection of a negative right not to be evicted does not automatically create a corresponding positive right to a home. In Jones, the court granted an injunction preventing the enforcement of a city-wide anti-sleeping ordinance during the night until adequate alternative accommodation was made available, accepting that to forcibly evict and criminalise people for sleeping in public when they had no where else to go amounted to ‘cruel and unusual punishment’ in violation of the Eighth Amendment of the Constitution of the United States.1426 The court made it clear that its decision did not create a duty on the state to provide a person with a home.

By our decision, we in no way dictate to the City that it must provide sufficient shelter to the homeless or allow anyone who wishes to sit, lie, or sleep on the streets of Los Angeles at any time and at any place within the City. All we hold is that, so long as there is a greater number of homeless individuals in Los Angeles than the number of the available beds, the City may not enforce [the ordinance] at all times

1424 Geoff Budlender, 'The Right to Alternative Acommodation in Forced Evictions' in John Squires, Malcolm Langford and Bret Thiele (eds), The Road to a Remedy: Current Issues in the Litigation of Economic, Social and Cultural Rights (2005) 127, 138. 1425 Jones v City of Los Angeles (Unreported, United States Court of Appeals for the Ninth Circuit, 14 April 2006). 1426 United States Constitution, Eighth Amendment: ‘Excessive fail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.’

446 and places throughout the City against homeless individuals for involuntarily sitting, lying and sleeping in public.1427

Once again, the court protected a negative right, in this case a civil right, without interpreting the injunction as automatically creating a right to a home.

Such decisions are not to be considered radical in their formulation. There are numerous examples of where individual legal decisions have lead to pressure for positive change. The decision in Jones no doubt was likely to place pressure on the City of Los Angeles to provide alternative accommodation. The existing discrimination jurisdiction of Australia provides further examples, where a finding of unlawful conduct by the judiciary in a particular case has created pressure on the executive and legislature and the private sector to take positive action to avoid future litigation, without them being ordered to do so. Many legal decisions dealing with a specific case have been the impetus for broader social and policy changes.

As discussed in Chapter Four, The UN Special Rapporteur reported in 2006 on the ‘hidden national housing crisis’ in Australia.1428 Darwin has a far higher rate of overall homelessness compared to any other Australian capital city: (3.12%) compared to 0.56% for Hobart and under 0.5% for all other capital cities,1429 that is, the homelessness rate is almost six times higher than any other capital city. Darwin also has a far higher proportion of homeless people who are in the primary homelessness category - sleeping rough or in improvised dwellings - such as people living in the long grass: 62% of the total homeless population, compared to Perth

1427 Jones v City of Los Angeles (Unreported, United States Court of Appeals for the Ninth Circuit, 14 April 2006), 46. 1428 Miloon Kothari, Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Miloon Kothari, Addendum, Mission to Australia (31 July to 15 August 2006, UN Doc A/HRC/4/18/Add.2, (2007); Miloon Kothari UN Special Rapporteur on Adequate Housing, Mission to Australia, 31 July – 15 August 2006: Preliminary Observations (2006) at 28 September 2006. 1429 See Chapter Four.

447 (8%) and Sydney (6%) with the next highest rates1430 - almost eight times higher than any other capital city. There continues to be a significant lack of low cost housing options available. In 2003, the former Chief Minister of the Northern Territory acknowledged that ‘if people are going to come to town, they need to be able to access appropriate accommodation. You would have to agree that, in somewhere like Darwin and Palmerston, that is simply not available right now.’1431 Since then, the number of public housing stock has however continued to fall, with a loss of 37 dwellings between 2005/6 and 2006/7,1432 lessening the availability of low cost social housing. Whilst noting the announcement by the Northern Territory Government on 19 February 2008 of the plan to create an additional 127 short term accommodation beds, this falls well short of the requirements in light of the evidence available regarding the level of homelessness in Darwin. There is ample evidence to propose that, for many people living in the long grass, there is simply nowhere for them to go, and their homelessness is more extensively experienced than any other capital city in Australia. It is arguable that these factors may weigh heavily against a finding that eviction into homelessness is a reasonable outcome under DCC By-law 103. In any individual claim, as demonstrated in Chapman, such a proposition is likely to be strengthened if the person can produce evidence that they have unsuccessfully attempted to secure accommodation in the immediate or recent past.1433 However, as in Jones, if there is overwhelming evidence of a general lack of accommodation in the locality, it may not be necessary to show such efforts in every individual case.

There is sufficient jurisprudential support for the proposition that the lack of alternative accommodation is certainly a relevant consideration that should be taken into account by the Committee in assessing the reasonableness of a state forced eviction. Further, it is arguable that the lack of available accommodation should be weighed heavily against a forced eviction in any assessment of the proportionality

1430 Ibid. 1431 See Northern Territory, Parliamentary Debates, Legislative Assembly, 27 May 2003 (Ms Martin, Chief Minister). 1432 Territory Housing, 'Territory Housing Annual Report 2006/7' (Northern Territory Government, 2007), 41. 1433 Chapman v United Kingdom (2001) 33 EHRR 399, [112].

448 under art17. In light of the commentary of the CESCR in relation to international standards on forced evictions and the 2005 Concluding Observations of the HRC, it is arguable that, unless the state can show overwhelming interests to the contrary, such that an eviction is unavoidable, an eviction into homelessness is arbitrary and disproportionate. The CESCR makes it clear that forced evictions ‘are prima facie incompatible with the requirements of the Covenant and can only be justified in the most extreme circumstances, and in accordance with the relevant principles of international law.’1434 The international norms on forced evictions and the decisions of the Supreme Court of Appeal in South Africa also show that, where state interests are overwhelming, the state should ensure that people are provided at least a minimum standard of alternative adequate accommodation within its available resources.

It is arguable therefore, that in any enforcement of DCC By-law 130, Council officers should undertake inquiries as to whether a person has access to alternative accommodation, and if not, an eviction should not proceed unless efforts are made to arrange such accommodation. A failure to do so may amount to a violation of art 17 of the ICCPR.

(d) Ethnic identity and vulnerability as a minority group In Chapter Four, the thesis assessed that the research available indicates that, for a proportion of Indigenous people living in the long grass in Darwin in the Northern Territory, living in public space is an expression of ethnic or cultural identify and the best effort to sustain cultural practices, in light of the restricted housing options available to them. There is evidence to support the proposition that European-style accommodation fails to accommodate Indigenous cultural practices and ways of living. In the Australian context, the incompatibility of European-style housing, upon which social housing options are based, with Indigenous cultural identity has been expressly acknowledged by a range of sources, including the UN Special Rapporteur

1434 United Nations Committee on Economic, Social and Cultural Rights, General Comment No 4: The Right to Adequate Housing, UN Doc E/CN4/1991/4 (1991), 18.

449 on Adequate Housing,1435 the Federal Government,1436 academic experts,1437 Indigenous and housing organisations,1438 and Indigenous people themselves.1439 At the time of writing, Territory Housing has yet to provide any public housing built in culturally appropriate design, and there has been little if any significant expansion of existing Indigenous living areas.1440 In 2002, Johnny Balaiya, faced with a forced eviction from his bush camp to make way for development, applied to the public housing authorities in the Northern Territory for culturally appropriate housing. He was offered a one bedroom flat whilst being informed that culturally appropriate housing suitable for his Indigenous lifestyle was simply not available. He refused the accommodation on the basis that he is ‘a black man’1441 knowing that if he moved in, he would soon be evicted due to the large gatherings of extended family and the outside way of living. If an Indigenous person refused alternative accommodation that is culturally inappropriate, as did Johnny Balaiya, should that weigh against that

1435 Miloon Kothari, Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Miloon Kothari, Addendum, Mission to Australia (31 July to 15 August 2006, UN Doc A/HRC/4/18/Add.2, (2007), [95]. 1436 Commonwealth Department of Family and Community Services, Indigenous Publications, 26 June 2002. 1437 Paul Memmott and Shaneen Fantin, '"The Long Grassers": A Strategic Report on Indigenous "Itinerants" in the Darwin and Palmerston Area' (Paul Memmott & Associates, 2001), 98; Helen Ross: ‘Uses or Abuses: Aboriginal Usage of Conventional Housing’ in David Drakakis-Smith (Ed) Housing in the North: Policies and Markets (1984), 129; Paul Flatau et al, 'Indigenous Access to Mainstream Public and Community Housing' (Australian Housing and Urban Research Institute, 2005), viii; John Tomlinson, 'Homeless and in Darwin - no peace in the long grass' (2005) On Line Opinion at 19 December 2006; Maypilarna et al, 'Yolngu Longgrassers on Larrakia Land' (Charles Darwin University, 2004), 4. 1438 Tangentyere Council, Submission to House of Representatives Standing Committee on Aboriginal and Torres Strait Islander Affairs: Inquiry into Needs of Urban Dwelling Indigenous People (2001), 19; Longgrass Association Darwin and Palmerston, Vision Statement, 20 September 2002; NT Shelter, 'NT Shelter Report on 2005 Regional Housing Forums' (2005), 3. 1439 Yarrawonga mob, 'Forced Eviction at Yarrawonga' (2004) (4) Longgrass Magazine . See generally Chapter Four. 1440 Paul Memmott & Shaneen Fantin, The Long Grassers: A Strategic Report on Indigenous ‘Itinerants’ in the Darwin and Palmerston Area (2001), 86. 1441 For a discussion of the litigation by Johnny Balaiya arising out of the decision of the Territory Housing, see Chapter Five.

450 person in assessing the proportionality of any forced eviction from public space? Is the need for a person to live in the way of their culture a relevant consideration and how much weight should it be given? Would an inability to access culturally appropriate accommodation defeat the legal right under domestic law for an authority like the DCC to remove them from public space if this was the only way that cultural practices could be sustained?

The HRC jurisprudence has not dealt directly with the question regarding the relevance of culturally appropriate housing in the context of art 17. However, the commentary of the CESCR and the UN Special Rapporteur on Adequate Housing provides that the right to adequate housing encompasses the right to housing that is culturally appropriate,1442 and if a forced eviction is unavoidable, the state is under an obligation to provide alternative accommodation which is culturally appropriate.1443

Whilst the South African cases do not address this issue, the line of litigation in relation to the forced evictions of Gypsies and Travellers in the United Kingdom almost consistently raises this question. In many of the cases, the Gypsy and Traveller families had been offered alternative ‘bricks and mortar’ accommodation such as temporary bed and breakfast housing, but had refused this accommodation on the basis that they had a cultural aversion to living in this way. The decisions affirm that, whilst there is no right to a home as such, the fact that Gypsies and Travellers belong to a vulnerable ‘minority with a traditional lifestyle difference from that of the majority…means that some special consideration should be given to their needs and different lifestyle both in the regulatory planning framework and in reaching decisions in particular cases. To this extent, there is thus a positive obligation imposed on the

1442 See United Nations Committee on Economic, Social and Cultural Rights, General Comment No 4: The Right to Adequate Housing, UN Doc E/CN4/1991/4 (1991) which defines ‘cultural adequacy’ as ‘The way housing is constructed, the housing materials used and the polices supporting these must appropriately enable the expression of cultural identity and diversity of housing…’ 1443 See Special Rapporteur on Adequate Housing, 'Basic Principles and Guidelines on Development- Based Evictions and Displacement: Annex 1 of the Report of the Special Rapporteur on Adequate Housing as a component of the right to an adequate standard of living (UN Doc A/HRC/4/18)' (2007), [55]: Identified relocation sites must fulfil the criteria for adequate housing according to international human rights. These include…culturally appropriate housing.’

451 Contracting States by virtue of Article 8 to facilitate the Gypsy way of life (citations omitted).’1444

The English authorities also accept that the cultural aversion to ‘bricks and mortar’ accommodation1445 and the positive obligation to facilitate the Gypsy way of life1446 should be taken into account in assessing whether procedural fairness has been accorded in an eviction process,1447 and the decision to evict is not unreasonableness or disproportionate. As Johnson and Willers note

The [European Court of Human Rights] has expressly recognised that the vulnerable position of Gypsies and Travellers as a minority means that some special consideration should be given to their needs and their different lifestyle both in the

1444 Chapman v United Kingdom (2001) 33 EHRR 399, [96]. See also Coster v United Kingdom [2001] ECHR 44; Beard v United Kingdom [2001] 33 EHRR 442; Smith v United Kingdom [2001] ECHR 45; and Lee v United Kingdom [2001] ECHR 46 which were each decided on the same date as the Chapman decision and applied the same principles, producing the same outcome. Each of the cases involved the criminalisation of Gypsy families living on their own land unlawfully following failed retrospective planning applications. In each case, the Court held that the planning system provided sufficient mechanisms to enable the State party to take into account the relevant considerations, and that it had done so in each case, prior to refusing planning permission. As the State party was to be afforded a wide margin of appreciation, and the Court was not prepared to undertake a merits review of the discretionary decision, ‘the effect of these decision cannot in the circumstances of the case be regarded as disproportionate to the legitimate aim being pursued.’ See Coster v United Kingdom [2001] ECHR 44, [128]. In each case, there was also a joint dissenting opinion that upheld a finding of violation of art 8 on the basis that the interference was disproportionate to the legitimate aim of environmental protection, given the effect of the interference on the families concerned, particularly given that there was no evidence of availability of suitable, alternative, lawful sites. See also Chichester DC v First Secretary of State & Ors [2005] 1 WLR 279 (CA) Civ Div)), 303. 1445 R(Margaret Price) v Carmarthenshire CC [2003] EWHC 42 Admin; South Cambridgeshire District Council v Dan Flynn [2006] EWHC 1320; Surrey Heath Borough Council v Rooney & Ors [2005] EWHC 1922 (QB). 1446 Lisa Smith, Mary Ellen Reilly, Julia Reilly v The Secretary of State for Trade and Industry, London Development Agency [2007] EWHC 1013 (Admin) QBD (Admin). 1447 Hughie Smith (On Behalf of the Gypsy Council) v Maria Buckland [2007] EWCA Civ 1318 CA (Civ Div), [59]: ‘The court is saying that, because of their vulnerable position, gypsies are entitled to procedural safeguards. The precise scope of these safeguards is a matter for the national authorities to determine’ citing Connors v United Kingdom [2004] ECHR 223.

452 relevant regulatory planning framework and in arriving at decisions in particular cases, and that to this extent there is a positive obligation imposed on States by article 8 to ‘facilitate the Gypsy way of life.’1448

However, whilst the English authorities have accepted the significance of the vulnerable position of Gypsies and Travellers, and the positive obligation to facilitate their cultural way of life, it has not led to the courts adopting a proportionality test which requires that any state interference with their human rights under art 8 should be the ‘least restrictive measure’ in the context of forced evictions.1449 Indeed, in the context of forced eviction from unauthorised encampments, the courts have almost invariably given primacy to the property rights of the local authority to exclude the unlawful occupant, even when that occupant is a Gypsy or Traveller, a member of a vulnerable minority group to whom the state has special obligations. It is apparent from the jurisprudence that to stay an eviction by a lawful land owner would deeply challenge the fundamentals of the capitalist system. The courts have required overwhelming circumstances beyond ‘merely’ being Gypsies or Travellers without alternative culturally appropriate housing in order to find an eviction decision in violation of art 81450 or unreasonable in the Wednesbury sense.1451 When

1448 Chris Johnson and Marc Willers, Gypsy and Traveller Law (2004), 31-2. See also Sandra Liebenberg, 'Enforcing Positive Socio-Economic Rights Claims: The South African Model of Reasonableness Review' in John Squires, Malcolm Langford and Bret Thiele (eds), The Road to a Remedy: Current Issues in the Litigation of Economic, Social and Cultural Rights (2005) 89, where the author also argues for this approach to be taken in the reasonableness review of socio-economic rights under the Constitution of South Africa. ‘The inclusion of a stronger proportionality analysis would require government to show that there are no less restrictive means of achieving its purposes than limiting access to essential levels of the socio-economic rights, and that other less restrictive measures have been considered.’: at 84. 1449 See, eg, Lisa Smith, Mary Ellen Reilly, Julia Reilly v The Secretary of State for Trade and Industry, London Development Agency [2007] EWHC 1013 (Admin) QBD (Admin)l, [42], in relation to a decision to compulsorily acquire private gypsy encampments for development purposes, including the 2012 Olympic and Paralympic Games. 1450 R(Margaret Price) v Carmarthenshire CC [2003] EWHC 42 Admin, in which the local authority had mistakenly formed the view that the Gypsy family did not have a cultural aversion to ‘bricks and mortar’ accommodation.

453 overwhelming circumstances have been found to exist, such as a failure to accord procedural safeguards or take into account pressing humanitarian considerations, the practical effect is only to delay the eviction process.1452 No decision has been made by either the European or English courts which stays an eviction against a Gypsy or Traveller family unless or until alternative culturally appropriate housing is made available. For example, in Rafferty, the Court of Appeal quashed the eviction order, but declined to affirm the declaration made by the court at first instance that an eviction should not proceed until an alternative site was made available. It considered that ‘[i]t would be wrong … to try to indicate what sort of plan or provision for recovery of possession of … would be ‘reasonable.’ We have neither the right nor the knowledge to formulate any such suggestion and the plaintiffs do not need guidance from us.’1453 As discussed in the previous section, the courts have been firmly of the view that to stay an eviction pending alternative accommodation is to effectively create a right to a home.1454

1451 West Glamorgan County Council v Rafferty [1987] 1 WLR 457, where the local authority had incorrectly interpreted its obligation under the now repealed provisions of the Caravan Sites Act 1968 (UK) and accordingly manifestly failed to take their breach of obligations under that Act into account. 1452 R v Brent LBC Ex parte McDonagh (1989) 21 HLR 494, in which the local authority had failed to afford procedural fairness where there was a legitimate expectation created to do so by the Gypsies having been previously given a written undertaking that they would not be evicted without an alternative site available. The Court noted that ‘it is open to the respondents to reconsider the matter and, having given the letter-holders the opportunity to make representations, to reach a fresh decision taking into account those matters which I have referred to in this judgment.’ At 503. See also R v Lincolnshire Ex Parte Atkinson (1996) 8 Admin LR 529, in which the court quashed the decision due to lack of procedural fairness for failing to take into account considerations of common humanity, whilst noting that the decision did not give the Travellers a license to trespass on the land afresh. See also R v Wolverhampton Metropolitan Borough Council Ex parte Dunne (1997) 29 HLR 745, in which the court quashed the eviction decision, ‘leaving it to the council, if so minded to make a fresh start.’ 1453 West Glamorgan County Council v Rafferty [1987] 1 WLR 457. 1454 R (on the Application of James Casey) v Crawley Borough Council [2006] EWHC 301 (Admin), [77]: ‘As there is no duty upon the Defendant to provide a site, including an alternative site, there can be no breach of any such duty. What it is reasonable for [a local authority] to do, in accordance with the Guidance, is to give reasonable consideration to the Options.’ In that case, finding an alternative site was not an option, because no such sites existed. See also Chichester DC v First Secretary of State & Ors [2005] 1 WLR 279 (CA) Civ Div)), 295, citing Chapman v United Kingdom (2001) 33 EHRR 399.

454

As previously noted, this position is in contrast to the 2005 Concluding Comments of the HRC and the commentary of the CESCR and the UN Special Rapporteur on Adequate Housing in relation to forced evictions. Evictions should only occur when they are unavoidable. It is arguable that the Committee should continue its approach to assessing the compliance of forced evictions under art 17 in line with the international normative standards on forced evictions under art 11(1) of the ICESCR, as evidenced by its 2005 Concluding Observations. In the absence of a doctrine of a margin of appreciation, the Committee may appropriately inquire as to whether a forced eviction is unavoidable and that, in the absence of heavily justified state interests to be pursued, eviction should be avoided unless alternative culturally appropriate housing is made available to avoid people being evicted into homelessness, particularly when the eviction affects the cultural identify of a vulnerable minority group. To do so is not to create a right to culturally appropriate housing, but to prevent the State from intensifying the vulnerability of Indigenous people as a minority group entitled to special human rights protection.

In the European and English jurisdictions, the special obligation to facilitate the Gypsy and Traveller way of life arises as a result of their special status as a vulnerable minority group. Across Europe, there has been extensive recognition of the special status of Gypsies and Travellers and other Roma peoples, including identifying a concomitant obligation on the state to give special consideration to the protection of their human rights in light of their vulnerability.1455 This normative development at the European regional level, together with litigation pursued domestically, has triggered within the UK the development and improvement of national frameworks which must now be taken into account, as a matter of express policy, in public authority decision-making, including forced evictions, in order to ensure that government decision-making at least ‘facilitates’ the Gypsy way of life.1456

1455 For a review of European materials, see Chapman v United Kingdom (2001) 33 EHRR 399, [55]- [67]. 1456 For eg, Office of the Deputy Prime Minister, 'Guide to Effective Use of Enforcement Powers, Part 1: Unauthorised Encampments', (2006) and summary in Chapter Six.

455 No such policy frameworks exist in Australia. Yet, it is clearly arguably that Indigenous peoples, such as Indigenous Australians, are entitled to the same special status. It is outside of the scope of this thesis to review the body of work in this regard. However, suffice to say that, most recently, the UN General Assembly adopted the Declaration on the Rights of Indigenous Peoples1457 on 13 September 2007 with an almost unanimous vote,1458 affirming the special status of Indigenous peoples, and their particular vulnerability to human rights violations.1459 Whilst the Declaration is not formally binding on states, and Australia voted against it, it is arguable that its historically comprehensive endorsement at international level may have a powerful influence on considering the obligations on state parties regarding the right of Indigenous peoples to maintain and develop their distinct cultural identity, their spirituality, their language and their traditional ways of life.1460 Further, Australia has consistently been the subject of adverse comments regarding the meeting of its obligations under the ICCPR and the ICESCR as well as the Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’)1461 with respect to the human rights of Indigenous people.1462

1457 United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN GAOR, 61st sess, UN Doc A/RES/47/1 (2007). 1458 The Declaration was adopted with 147 votes in favour, 4 against (Australia, Canada, New Zealand and the United States) and 11 abstentions. 1459 United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN GAOR, 61st sess, UN Doc A/RES/47/1 (2007). 1460 S James Anaya and Siegried Wiessner, 'The UN Declaration on the Rights of Indigenous Peoples: Towards Re-empowerment' (2007) Jurist Legal News and Research (3 October ) Forum at 5 January 2008. See also Siegried Wiessner, 'Rights and Status of Indigenous Peoples:A Global Comparative and International Legal Analysis' (1999) 12 (Spring) Harvard Human Rights Law Journal 57. 1461 Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969). 1462 See, eg, Concluding observations of the Human Rights Committee: Australia, UN Doc CCPR A/55/40 (2000); Concluding observations of the Committee on Economic, Social and Cultural Rights: Australia, UN Doc E/C.12/1/Add.50 (2000); Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/C/304/Add.101 (2000); Concluding observations of the Human Rights Committee: Australia, UN Doc CCPR A/55/40 (2000).

456 The statistical profile of the homeless population in Darwin bears testament to the struggles of Indigenous peoples to retain cultural practices and identity in an urban setting. The sources affirm that public space – the ‘long grass’ - has a particular significance to Indigenous peoples in urban areas in the absence of alternative culturally appropriate living spaces. As Chapter Four documents, as at the 2001 Census, Indigenous people in the primary homelessness category constituted 6% of the overall Indigenous population in Darwin, contrasted with only 0.36% for the non- Indigenous population.1463 In other words, an Indigenous person living in Darwin is sixteen times more likely to be living in public space than the rest of the population.1464 This picture is the most extreme in Darwin, when contrasted with other capital cities, but the disproportionately high number of Indigenous people in the primary homelessness category is a national experience. As at the 2001 census, Indigenous people made up 19% of the people in the primary homelessness category whilst only representing 2% of the total Australian population.

For Indigenous people living in the long grass, in the context of the overwhelming rates of Indigenous homelessness, the repeated expressions of international concern regarding lack of access to appropriate housing, and the experience of inadequate housing conditions, it is submitted that the Committee should recognise their special status as a vulnerable minority group, and the concomitant obligation on the State to facilitate their cultural way of life. Indigenous peoples should be included as a recognised vulnerable group. As such, this factor should be taken into account and weighed heavily against an eviction if it would lead to further vulnerability.

(e) Other relevant considerations In addition to the range of factors already discussed as relevant to any assessment of proportionality - lawfulness of occupancy, length of occupation, availability of

1463 See Chapter Four. See also Miloon Kothari, Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Miloon Kothari, Addendum, Mission to Australia (31 July to 15 August 2006, UN Doc A/HRC/4/18/Add.2, (2007), [84]. 1464 As at the 2001 Census, Indigenous people made up 62% of the people living in the primary homelessness category in Darwin, whilst only making up 29% of the total population. See Chapter Four.

457 alternative accommodation, and the impact of the interference on the ethnic identify of the person affected in light of their vulnerability as a minority group - the jurisprudence dealing with forced evictions has identified a range of additional relevant considerations, interests or factors which should be taken into account in any decision-making process to ensure procedural fairness and proportionality of an eviction. The relative weight given to the factors has varied from decision to decision but a review of the issues is useful in assessing the kinds of evidence that may be appropriate to bring before the HRC in any communication alleging a violation of art 17 by people living in the long grass.

In summary, the following factors have been identified, variously, as relevant:

• The method of the forced eviction, such as brutality or violence in the eviction process1465 and the ‘seriousness of the enforcement measures taken, and whether other, less restrictive measures were available;’1466 • ‘Considerations of common humanity’ or humanitarian considerations, such as welfare concerns, health problems, educational needs, impending pregnancy;1467

1465 Connors v United Kingdom [2004] ECHR 223. 1466 Chris Johnson and Marc Willers, Gypsy and Traveller Law (2004); Chapman v United Kingdom (2001) 33 EHRR 399. See Johnson and Willers at 32, generally, for a list of relevant factual matters identified through the European Court of Human Rights decisions in Buckley and Chapman. 1467 See, eg, R (on the Application of James Casey) v Crawley Borough Council [2006] EWHC 301 (Admin); R v Brent LBC Ex parte McDonagh (1989) 21 HLR 494; R v Lincolnshire Ex Parte Atkinson (1996) 8 Admin LR 529; Surrey Heath Borough Council v Rooney & Ors [2005] EWHC 1922 (QB); Tanbridge District Council v Delaney and Ors [2000] 1 PLR 11; Chapman v United Kingdom (2001) 33 EHRR 399[55], quoting from UK government policy regarding dealing with unauthorised camps; South Cambridgeshire District Council v Dan Flynn [2006] EWHC 1320; R v Brent LBC Ex parte McDonagh (1989) 21 HLR 494; R v Leeds City Council Ex parte Maloney (1997) 31 HLR 552; R (Maughan) v Leicester City Council [2004] EWHC 1429; R v Kerrier District Council Ex parte Catherine Uzell (1996) JPL 837; R v The Forest of Dean District Council Ex parte Grenfell (Unreported, Queen's Bench Division (Crown Office List), MacPherson of Cluny J, 19 March 1996); R v Avon County Council Ex parte Valentine (Unreported, Court of Appeal, Dillon LJ, 12 April 1994; R v Gloucester County Council Ex parte Dutton (1991) 24 HLR 246; R v Wolverhampton Metropolitan Borough Council Ex parte Dunne (1997) 29 HLR 745; R v Brighton and Hove Council Ex parte

458 • Family requirements and financial resources;1468 • Whether the state has complied with any applicable legal or policy requirements, such as obligations under welfare legislation;1469 • The importance of the legitimate aim being pursued;1470 • Whether the occupation of the site is dangerous (for example, near a highway)1471 or there are other health or safety concerns with the site1472 • Whether commercial interests will be affected;1473 • Whether there are planning or environmental concerns;1474 • Any negative impact of the occupation on third parties, including nuisance,1475 ‘sentiments of others living in the locality’1476 or the number, validity and seriousness of any complaints;1477

Marmont [1998] JPL 670 (QBD); Chichester DC v First Secretary of State & Ors [2005] 1 WLR 279 (CA) Civ Div)), [111]. 1468 Chapman v United Kingdom (2001) 33 EHRR 399, [104]. 1469 See, eg, Avon CC v Buscott [1988] 1 All ER 841; R (on the Application of James Casey) v Crawley Borough Council [2006] EWHC 301 (Admin); R v Lincolnshire Ex Parte Atkinson (1996) 8 Admin LR 529; Ward v Hillingdon LBC [2001] HRLR 40 [2001] EWHC Admin 91 QBD (Admin Ct); R (Maughan) v Leicester City Council [2004] EWHC 1429; R v Avon County Council Ex parte Hills (1995) 27 HLR 411; West Glamorgan County Council v Rafferty [1987] 1 WLR 457; R v Gloucester County Council Ex parte Dutton (1991) 24 HLR 246; R v Hereford and Worcester CC Ex parte Smith (Unreported, Court of Appeal, Mann LJ, 7 April 1993). 1470 See, eg, Chapman v United Kingdom (2001) 33 EHRR 399; City of Johannesburg v Rand Properties (Pty) Ltd & Ors 2007 SCA 25 (RSA). 1471 See, eg, Surrey Heath Borough Council v Rooney & Ors [2005] EWHC 1922 (QB). 1472 See, eg, Dodd and Ors v Hampshire County Council (Unreported, Court of Appeal (Civil Division), McCowan LJ, 20 December 1993); R (Maughan) v Leicester City Council [2004] EWHC 1429; R v Hampshire County Council Ex parte Dodd (Unreported, Queen's Bench Division (Crown Office List), Harrison J; 16 May1995); R v Secretary of State for the Environment Ex parte Ward (Unreported, Queen's Bench Division (Crown Office List), Pill J, 27 May 1994). 1473 See, eg, R (Fuller) v Chief Constable of the Dorset Constabulary [2002] 3 All ER 57, [77]. 1474 See, eg, Buckley v United Kingdom (1997) 23 EHRR 101; Tanbridge District Council v Delaney and Ors [2000] 1 PLR 11; Chichester DC v First Secretary of State & Ors [2005] 1 WLR 279 (CA) Civ Div)). See also South Cambridgeshire District Council v Dan Flynn [2006] EWHC 1320, [13]: ‘[The second feature that distinguishes this case from the facts in many other cases concerning gypsies is that] the land in this case is not “green belt” land.’ See also R v Avon County Council Ex parte Valentine (Unreported, Court of Appeal, Dillon LJ, 12 April 1994.

459 • The negative impact of an eviction on third parties, such as creation of another unauthorised site;1478 • The nature, suitability and obtrusiveness of the encampment including its size;1479 • Whether the authorities had previously assured the occupants that they would not be evicted,1480or made it clear that they would be required to move on at some specified date.1481

However, the ‘mere’ fact that the family group has been subjected to continuous eviction has been found not relevant to determining the proportionality of a further eviction. For example, in the decision of Casey, the Irish Travellers had been ‘moved on some 30 to 40 times per year.’1482 Yet, Burton J was ‘entirely satisfied that the fact

1475 See, eg, R (on the Application of James Casey) v Crawley Borough Council [2006] EWHC 301 (Admin)[55], quoting from UK government policy regarding dealing with unauthorised camps, and Hughie Smith (On Behalf of the Gypsy Council) v Maria Buckland [2007] EWCA Civ 1318 CA (Civ Div), [41]. 1476 R v Lincolnshire Ex Parte Atkinson (1996) 8 Admin LR 529. 1477 See, eg, Avon CC v Buscott [1988] 1 All ER 841; R (on the Application of James Casey) v Crawley Borough Council [2006] EWHC 301 (Admin); R v Gloucester County Council Ex parte Dutton (1991) 24 HLR 246; R v Lincolnshire Ex Parte Atkinson (1996) 8 Admin LR 529; R (Maughan) v Leicester City Council [2004] EWHC 1429; R v Hampshire County Council Ex parte Dodd (Unreported, Queen's Bench Division (Crown Office List), Harrison J; 16 May1995); R v Wolverhampton Metropolitan Borough Council Ex parte Dunne (1997) 29 HLR 745; R (Fuller) v Chief Constable of the Dorset Constabulary [2002] 3 All ER 57, [77]. 1478 R v Brent LBC Ex parte McDonagh (1989) 21 HLR 494. 1479 R (on the Application of James Casey) v Crawley Borough Council [2006] EWHC 301 (Admin)[55], quoting from UK government policy regarding dealing with unauthorised camps; R v Hampshire County Council Ex parte Dodd (Unreported, Queen's Bench Division (Crown Office List), Harrison J; 16 May1995). 1480 R v Brent LBC Ex parte McDonagh (1989) 21 HLR 494. 1481 R (Fuller) v Chief Constable of the Dorset Constabulary [2002] 3 All ER 57, [78]. 1482 R (on the Application of James Casey) v Crawley Borough Council [2006] EWHC 301 (Admin), [13].

460 that the Claimants had been evicted in the past and are liable to be evicted from elsewhere in the future gives rise to no entitlement to occupation.’1483

In formulating a communication to the HRC, on the basis that a forced eviction was an ‘arbitrary interference’ with a person’s right to respect for privacy, family and home, it would be important to place before the Committee clear evidence of all relevant factors that might inform the assessment of proportionately in a particular case. As such, in addition to establishing a lack of alternative, culturally appropriate accommodation in Darwin as a reason for living in the long grass, and the impact of the forced eviction on the cultural way of life of a vulnerable minority group, it would be important to provide evidence of other ‘considerations of common humanity’ or humanitarian concerns. These factors would be weighed against the legitimate interests of the state in controlling human behaviour in public places on, for example, public health grounds or in order to protect the ‘right and freedoms of others.’

In Chapter Four, evidence was assembled to provide an indication of the demographic profile of people who live in the long grass and the kinds of ‘considerations of common humanity’ which they face. In contrast to many of the Gypsy and Traveller cases, the research suggests that the long grass population does not typically include young children or babies or pregnant women. In the European and English courts, the considerations presented by such persons being part of group facing a forced eviction have often been identified as weighing against eviction (although not often being decisive). The research available regarding the long grass population indicates that few children permanently live in this way.

Memmott and Fantin found that most of the people living in the long grass interviewed in 2001 did not complain about serious physical or mental health concerns. However, people did identify a range of health concerns, and mentioned ‘getting sick after sleeping in the rain mentioning such complaints as pneumonia, asthma, and headaches. It was clear from visual impressions that many interviewees had multiple facial scars and lacerations received no doubt from fights, assaults, and

1483 R (on the Application of James Casey) v Crawley Borough Council [2006] EWHC 301 (Admin), [76].

461 drunken falls.’1484 Alcohol abuse appeared to be prevalent with most of the 52 people has been taken to the Sobering Up Shelter frequently after being taken into protective custody by the NT Police, and many had spent times in alcohol rehabilitation programs. Few people had access to any income other than minimum social security benefits.1485 There can be no doubt the people are living in situations of relative deprivation.1486

The evidence of deprivation and other personal humanitarian concerns is clearly relevant to considerations under art 17. Its relevance goes to highlighting that to forcibly evict people away from camps and places that have been established to provide some semblance of privacy, family and home should not result in further deprivation, at the hands of the state. If people are to be moved, their situation should be improved.

There are few people who would argue that permitting the current circumstances of deprivation faced by people living in the long grass is not the preferable method for state protection of their right to respect for privacy, family and home. There is much evidence to show that people living in the long grass have made various attempts over the years to organise for improved respect, access to basic services and increased availability of culturally appropriate accommodation in the urban centre of Darwin in the Northern Territory to accommodate their needs, some of which have been detailed in this thesis. It is argued that arbitrariness of an eviction by the state would arise if

1484 Paul Memmott and Shaneen Fantin, '"The Long Grassers": A Strategic Report on Indigenous "Itinerants" in the Darwin and Palmerston Area' (Paul Memmott & Associates, 2001), 82. 1485 Catherine A Holmes, 'Environmental Health for the Homeless? Creating Supportive Environments for Health and a Better Quality of Life' (2006) 6(2) Environmental Health 42, 45. 1486 For example, back in 1997, World Vision made donations of tarpaulins to provide shelter to the community living at Fish Camp, a population consisting of old and sick people, sleeping on old mattresses on the ground. Located in Darwin, the community was carting water, and did not have enough water for showing or washing clothes. See Letter from Dulcie Malimara and George Banbuma to Friends, 4 November 1997. More recently, a Darwin City Council alderman called for showers to be made available to people living in public space around Darwin. See ABC Online, Darwin council considers showers for 'dirty itinerants' (2005) at 5 July 2007. The former Lord Mayor Peter Adamson rejected the proposal as unreasonable.

462 the state cannot demonstrate effort to address the humanitarian concerns apparent at the time of the forced eviction. This is a consistent theme of the Gypsy and Traveller cases following Atkinson, and the reason why the UK has developed its extensive legislative and policy framework to regulate the eviction of Gypsy and Traveller groups. A failure by the State to address these humanitarian considerations would support a finding of arbitrariness both in terms of lack of procedural safeguards, and also in finding that a forced eviction, without effort to provide assistance, is an unreasonable outcome.

In any communication to the HRC, the state may argue that there is a range of relevant and pressing considerations in favour of people being moved on. Some of these considerations have already been canvassed in the discussion above regarding the role that the DCC By-law 103 plays in pursuing a legitimate state interest. It may also be asserted by the state that a group of people living in the long grass have been the subject of complaints, direct nuisance caused to third persons, or that dangerous or public health concerns exist regarding the site. It may also be argued in some cases that commercial interests arise, such as the need to secure the land for development purposes. Johnny Balaiya faced eviction from one of his camps due to complaints about the presence of his family group being in the area, and another eviction arose due to the land he occupied being identified for future commercial European-style housing development.1487 It is accepted that all these factors would be relevant to assessing the proportionality of an eviction.

It is argued however that in determining whether a forced eviction is arbitrary under art 17, the Committee would need to be satisfied of pressing state interests to show that an eviction is unavoidable and the least restrictive measure available. Accordingly, it would also be important to produce evidence to demonstrate that other less restrictive measures could be pursued to achieve the legitimate state interests involved. DCC By-law 103 makes provision to grant a permit for a person to camp or sleep in a public place. Such permits could be made available to people who are unable to secure adequate alternative accommodation. Further, a system for granting ‘special purpose’ leases exists under Northern Territory legislation under the Special

1487 'Looking for a better voice for oldtimers like Johnny', The Litchfield Times 24 October 2001, .

463 Purposes Leases Act 1979 (NT). Mechanisms are in place to enable the state to implement a ‘toleration’ policy to provide minimal security of tenure for people living in the long grass so that they may remain in their camps and be provided with basic services pending the provision of alternative culturally appropriate accommodation. Both these mechanisms could be used, even as a temporary measure, to provide an alternative more suitable site. Such a proposal for Johnny Balaiya was supported in 2001 by Bill Risk representing the Larrakia Nation, as the traditional owners of Darwin.1488 The Northern Territory Government is reported as not having used its exercise its powers under the Special Purposes Lease Act for almost 20 years. The DCC has never issued a permit under its by-laws for such a purpose. In addition, the Northern Territory Government public housing program does not include any accommodation which has been designed to incorporate Indigenous cultural practices. Whilst noting the announcement by the Northern Territory Government on 19 February 2008 of a new package of measures, including some forms of short term accommodation, the evidence of inadequate efforts to develop culturally appropriate housing options for Indigenous people in Darwin in the Northern Territory may be contrasted with the legislative and policy frameworks that exist in the UK to at least ‘facilitate to the Gypsy way of life’ without going so far as to create a right to a culturally appropriate home in an individual case.

The question of whether a specific forced eviction of an Indigenous person under DCC By-law 103 amounts to arbitrary interference on the grounds of being an unreasonable outcome will depend on the particular circumstances of the case.

F Positive Obligations under Art 17

In the previous section, it was argued that the forced eviction of people living in the long grass in the context in which that occurs in Darwin in the Northern Territory may operate as an arbitrary and unlawful interference contrary to art 17(1) of the ICCPR. It was therefore argued that, at a minimum, the state is arguably under an obligation to prevent such forced evictions from occurring if a less restrictive measure is available.

1488 See Chapter Five.

464 This amounts to a ‘negative obligation’ arising under art 17(1). Further it was argued that, if a forced eviction was found to be unavoidable, an eviction without adequate procedural safeguards in place, and provision of alternative adequate housing may be considered disproportionate and unreasonable. However, is it sufficient that the forced evictions no long occur, or that those who are evicted are afforded these minimum standards? Are there associated positive obligations under art 17 that Australia has failed to meet which may also amount to violations?

As noted in Chapter Six, the protection afforded under art 17 of the ICCPR incorporates both ‘negative’ and ‘positive’ obligations on the state. There are number of sources for these positive duties. Firstly art 17(2) provides that:

Everyone has the right to the protection of the law against [arbitrary or unlawful interference with his privacy, family, home or correspondence] or [unlawful attacks on his honour and reputation].

Consequently, the state is under a positive obligation to provide a domestic legislative environment in which persons are protected from impermissible interference. In this way, if a Committee has made a finding that such an interference has occurred, it is open the Committee to find a violation of art 17(2) if it considers that legislative protection was inadequate.

What exactly is the extent of this positive obligation? How might this obligation be interpreted by the Committee arising out of a finding that the human right of a person living in the long grass have been violated under art 17?

General Comment No 16 provides some limited reference. It highlights that ‘it is precisely in State legislation above all that provision must be made for the protection of the right…’1489 Further, ‘States parties are under a duty themselves not to engage in interferences with article 17 and to provide the legislative framework prohibiting

1489 United Nations Human Rights Committee, General Comment No 16: The right to Respect of Privacy, Family, Home and Correspondence and Protection of Honour and Reputation UN Doc HRI\GEN\1\Rev 1 at 21 (1988), [2].

465 such acts by natural or legal persons.’1490 It is clearly arguable that legislative action is minimum positive state action in this context. The state is under an obligation to ensure through legislative reform that a prohibited interference carried out by DCC enforcement of DCC By-law 103 cannot occur in violation of art 17(1). As discussed in Chapter Three, at the present time, there is no legislation in Australia which adequately implements the provisions of the ICCPR, including ‘arbitrary and unlawful interference with a person’s privacy, family, home or correspondence, at the domestic level.’1491 Australia has been criticised by the HRC for this failure to fulfil its international obligations.1492 In an individual communication to the Committee about the treatment of people living in public space, it would be important to raise this legislative gap and it is clearly open to the Committee to find that this failure of domestic implementation amounts to a violation of art 17(2).

However, would this be sufficient in terms of the legislative measures required? Would it be effective protection? It is argued that, in addition to identifying Australia’s failure to domestically implement art 17, the Committee may identify specific legislative reforms to DCC By-law 103 in order to prevent the forced eviction and criminalisation of people living in public space. This would particularly be the case if the Committee finds that DCC By-1aw 103 fails to ‘specify in detail the precise circumstances’ in which its enforcement may occur when a person’s rights under art 17 are engaged, and is accordingly ‘unlawful’ in its effect. It could be argued that enactment of a general provision implementing art 17 at national level would be inadequate to address this defect in the domestic regulatory environment. Is it realistic to expect that a person living in the long grass is required to defend a forced eviction by challenging the administrative decision under a national generic human rights provision? It is arguable that effective protection requires amendment of the specific legislation under which impermissible interferences are currently

1490 Ibid 9. 1491 For a discussion of the implementation of the ICCPR into Australia’s domestic legal system, see Nick O'Neill, Simon Rice and Roger Douglas, Retreat from Justice: Human Rights Law in Australia (2004), esp 178-80. There is specific legislation dealing with protection of privacy rights, contained for eg Privacy Act 1988 (Cth) but its provisions are not applicable to the present context. 1492 See, eg, Concluding observations of the Human Rights Committee: Australia, UN Doc CCPR A/55/40 (2000), [498]-[528].

466 authorised. This reform could be achieved, for example, by requiring amendments to DCC By-law 103 to explicitly make its provisions subject to protection of basic human rights, including the right to respect for privacy, family and home. It may also be appropriate to require that DCC By-law 103 specify a range of defences that may be available, including that a person is unable to find adequate alternative accommodation, to ensure that its enforcement is reasonable and proportionate on a case by case basis. As discussed in Chapter Three, lawyers, academics and advocates have proposed such reforms to public space laws in order to ensure human rights are taken into account and respected during enforcement. The UN Special Rapporteur on Adequate Housing has also called for a review of Australian public space laws ‘to ensure that fundamental human rights are protected.’1493 Precedent exists for such amendments, as in the Police Powers and Responsibilities Act 2000 (Qld), which provides that a move on power may not be used by the police where it infringes a person’s right to peaceful assembly unless it is reasonably necessary in the interests of public safety, public order, or the rights and freedoms of other people.

It is not open to Australia to argue that its federal structure prevents it from achieving such a result. The HRC is clear that the obligations under the ICCPR

are binding on every State Party as a whole. All branches of government (executive, legislative and judicial) and other public or government authorities, at whatever level – national, regional or local – are in a position to engage the responsibility of the State Party. The executive branch that usually represents the State Party internationally… may not point to the fact that an action incompatible with the provisions of the Covenant was carried out by another branch of government as a means of seeking to relieve the State Party from responsibility for the action and consequent incompatibility.1494

1493 Miloon Kothari, Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Miloon Kothari, Addendum, Mission to Australia (31 July to 15 August 2006, UN Doc A/HRC/4/18/Add.2, (2007), [132]. 1494 United Nations Human Rights Committee, General Comment No 31: Nature of the General Legal Obligations Imposed on States Parties to the Covenant, 80th Sess , UN Doc CCPR/C/21/Rev 1/Add 13 (2004): ‘Whilst noting the explanation by the delegation [from the Australian Government to the Human Rights Committee] that political negotiations between the Commonwealth Government and the

467

The Committee has previously highlighted to the Australian government that it cannot avoid obligations under the Covenant because the act was committed by another layer of government at regional or local level.1495 Australia is liable for the acts of the DCC under international law. Further, the Federal Government has the legislative mechanisms in place which would enable it to achieve the amendments to DCC By- law 103 as proposed, both through its ability to enact legislation in respect of the Northern Territory,1496 and also through its external affairs power under s 51(xxix) of the Australian Constitution.1497

However, would legislative change such as proposed be adequate to provide protection from future violations? Is this the extent of positive action that may be required to fulfil obligations under art 17 regarding the treatment of people living in public space in Darwin? The HRC has provided that, under art 17, a state party is required to ‘adopt legislative and other measures to give effect to the prohibition against [arbitrary and unlawful] interferences and attacks as well as to the protection of this right (emphasis added).’1498 The Committee therefore explicitly states that legislation may not be sufficient in order to give effect to art 17(1). This commentary is consistent with the commentary on the ICCPR about the general obligations on

governments of the states and territories take place in cases in which the latter have adopted legislation and policies that may involve a violation of Convention rights, the Committee stresses that such negotiations cannot relieve the State party of its obligation to respect and ensure Covenant rights in all parts of its territory without any limitations or exceptions.’ 1495 Concluding observations of the Human Rights Committee: Australia, UN Doc CCPR A/55/40 (2000). 1496 Australian Constitution, s 122. For a discussion of the scope of the plenary legislative power of the Commonwealth under s 122 in relation to the Northern Territory, see Tony Blackshield and George Williams, Australian Constitutional Law and Theory: Commentary and Materials (4th ed, 2004); Australian Constitution, 268-282. 1497 For a summary of the scope and limits of the external affairs power under the Australian Constitution, see Tony Blackshield and George Williams, Australian Constitutional Law and Theory: Commentary and Materials (4th ed, 2004), 884-929. 1498 United Nations Human Rights Committee, General Comment No 16: The right to Respect of Privacy, Family, Home and Correspondence and Protection of Honour and Reputation UN Doc HRI\GEN\1\Rev 1 at 21 (1988), [1].

468 state parties required to give effect to the rights set out in the Covenant. Article 2(2) of the ICCPR also provides for more extended positive action.

Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant (emphasis added).

General Comment No 31 on the Nature of the General Legal Obligations Imposed on States parties to the Covenant sets out in detail how this obligation is to be implemented. It affirms that the legal obligation set out in art 2(2) ‘is both negative and positive in nature.’1499 It requires state parties to adopt ‘legislative, judicial, administrative, education and other appropriate measures in order to fulfil their legal obligations.’1500 Changes are to be made to laws and practices which are ‘necessary to ensure their conformity with the Covenant.’1501 These positive obligations are ‘of immediate effect. A failure to comply … cannot be justified by reference to political, social, cultural or economic considerations of the State.’1502 The Committee also states that, in considering an individual communication under the Optional Protocol to the ICCPR, the Committee may make findings both in relation to the specific violation which has occurred, and also about measures that should be implemented to prevent future violation. ‘Such measures may require changes to the State Party’s laws and practices (emphasis added).’1503

It is submitted that, if the Committee finds that the forced eviction of people living in the long grass is a violation of art 17(1), the positive obligations on Australian governments may not be confined to legislative change, recognising that legislation

1499 United Nations Human Rights Committee, General Comment No 31: Nature of the General Legal Obligations Imposed on States Parties to the Covenant, 80th Sess , UN Doc CCPR/C/21/Rev 1/Add 13 (2004), [6]. 1500 Ibid [7]. 1501 Ibid [13]. 1502 Ibid [14]. 1503 Ibid [17].

469 alone is unlikely to be effective in ensuring adequate protection from the kind of treatment experience by people living in the long grass. Amendments to the DCC By- law 103 may assist, but in the absence of other measures, such as policy and program changes, many people living in the long grass are likely to continue to experience forced evictions and lack of respect for their privacy, family and home. Many people living in the long grass are unlikely to know their legal rights under any such amendments, due to lack of literacy, deprivations or other aspects of living in the long grass, nor to have access to adequate resources to pursue these rights, whilst noting the important role that legal aid services would play in this regard. Further, is it a sustainable solution, consistent with human rights, that people living in the long grass should remain living in public space, subject to enforcement of DCC By-law 103?

As noted earlier, Nowak argues that ‘[s]pecial obligations to fulfil the right to privacy by means of positive action and to protect it against interferences by third parties arise in relation to persons deprived of personal liberty and other persons in a vulnerable position, such as children, the elderly, persons with disabilities, homosexuals and transsexuals.’ ’1504 For example, the state had an obligation to ensure prisoners had ‘communication with the outside world’1505 and to provide a ‘minimum of privacy, intimacy and respect…against interferences by prison wardens and other inmates…’1506 The state also had a positive obligation to facilitate communication between children and their parents following separation of the parents in order to give ‘effective protection’.1507 Accordingly, members of a vulnerable group may require special measures to ensure protection of their privacy, family and home.

The jurisprudence under art 8 of the ECHR as it is being developed by the European Court of Human Rights arguably also provides a framework for developing the nature and extent of the positive obligations imposed under art 17, particularly in the context of vulnerable minority

1504 Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2005), 380. 1505 Ibid. 1506 Ibid. See, eg Pinkney v Canada, Communication No 27/1977, UN Doc CCPR/C/14/D/27/1977 (1981). 1507 LP v Czech Republic, Communication No 946/2000, UN Doc CCPR/C/75/D/946/2000 (2002), [7.4]. See also Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (2005), 380.

470 groups. As noted, Buckley, Chapman and Connors have now established the legal principle that, under art 8 of the ECHR, states are required to take positive action to ‘facilitate the Gypsy way of life’ in order to provide protection in order to prevent violation of their right to respect for privacy, family and home. Whilst this principle did not amount to creating a legal right to a culturally appropriate home in every case, the positive obligation arose out of the special status of Gypsies as a vulnerable minority group in the United Kingdom and the failure of existing ‘special measures’ to achieve an proportionate outcome.1508 Cahn analyses the Connors decision in this way:

There must be a framework to ensure that a ‘gypsy way of life’ is facilitated, and that due to ‘the vulnerable position of gypsies as a minority’, ‘special consideration’ is given to their needs; That framework must be implemented; Local responsibility for implementing the framework must be clearly allocated; There should be no arbitrary obstacles to making use of the framework; The effectiveness of the framework will be assessed at least in part to determine whether ‘any benefit’ flows to Roma as a result of the framework; and Internal to the framework, fundamental human rights – in particular the European Convention rights – must be effectively realised.1509

1508 For another example of a positive obligation under art 8 in the context of a vulnerable group, see Marzari v Italy [1999] 28 EHRR CD 175, involving a challenge to an eviction of a tenant who discontinued payment of rent due to the refusal of the housing authority to modify the rented premises to accommodate his special disability needs arising out of his medical condition, metabolic myopathy. ‘The Court must first examine whether the applicant's rights under article 8 were violated on account of the decision of the authorities to evict him despite his medical condition. It further has to examine whether the applicant's rights were violated on account of the authorities' alleged failure to provide him with adequate accommodation. The Court considers that, although article 8 does not guarantee a right to have one's housing problems solved by the authorities, a refusal of the authorities to provide assistance in this respect to an individual suffering from a severe disease might in certain circumstances raise an issue under article 8 of the Convention because of the impact of such refusal on the private life of the individual. The Court recalls in this respect that, while the essential object of article 8 is to protect the individual against arbitrary interference by public authorities, this provision does not merely compel the State to abstain from such interference; in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private life. A State has obligations of this type where there is a direct and immediate link between the measures sought by an applicant and the latter's private life (emphasis added).’: at 179-180. 1509 Claude Cahn, 'Towards Realising a Right to Positive Action fro Roma in Europe: Connors v UK' (2005) 1 Roma Rights Quarterly 13

471 Cahn notes that it remains an open question as to how this positive obligation would be interpreted in contexts where a state has failed to adopt any positive or special measures at a domestic level.

As discussed earlier, it is clearly arguable that Indigenous people, such as people living in the long grass, are also members of a vulnerable minority group. As a result, it is contended that the state may have a positive obligation under art 17 to implement special measures to ‘facilitate’ their private, family and home life in accordance with their cultural and ethnic identity. In the context of Darwin in the Northern Territory, it may questionable whether the efforts that have occurred to date under the Itinerants Project, the Community Harmony Project and now those planned following the 19 February 2008 announcement, are adequate special measures to prevent arbitrary interferences with the human rights to privacy, family and home of Indigenous people living in the long grass. This is particularly the case given that these initiatives have yet to address the accommodation needs of long term residents of Darwin who are living in the long grass.

The Committee may be urged to require Australia to implement special measures, including appropriate policy frameworks for the enforcement of DCC By-law 103 together with the development and expansion of culturally appropriate housing options, in order to ensure that the 500 – 1000 Indigenous people living in the long grass are not subject to arbitrary interferences with their right to respect for privacy, family and home.

G Conclusion

The international and comparative jurisprudence reviewed in this chapter was undertaken in order to assess whether the forced eviction of people living in the long grass in Darwin in the Northern Territory violates art 17 of the ICCPR. The review looked at each element of such an allegation, on the basis that, as proposed in Chapter Six, a forced eviction of a person living in the long grass engages their right to respect for privacy, family and home.

472 The Chapter has argued that it is likely that a forced eviction under DCC by-law 103 will constitute an ‘interference’ under art 17, and that it is arguable that, even a person who has not been personally evicted, but lives in the long grass, could also participate in a communication to the HRC on the basis that their eviction is more than a ‘theoretical possibility.’

However, it is likely that the Committee would find that an eviction under DCC By- law 103 is ‘lawful’ for the purposes of art 17. Council officers are authorised to move people on under DCC By-law 103 which has been lawfully adopted as subordinate legislation under Australian domestic law. It is suggested, however, that the novel arguments regarding the meaning of ‘unlawfulness’ under art 17 should be tested: firstly, a submission that DCC By-law 103 fails to ‘specify in detail the precise circumstances’ of permitted interference, in order to predict the outcome of the exercise of discretion in particular cases; and secondly, that the overall regulatory framework of the state regarding forced evictions and lack of adequate housing which leads to people living in the long grass is in violation of the ICESCR, and therefore ‘unlawful’ under international law, as found by the UN Special Rapporteur arising out of his 2006 Mission to Australia.

As with most other cases in this area, the central question for the HRC dealing with a future individual communication from a person living in the long grass is likely to be whether the interference by the DCC on the lives of people living in public space is ‘arbitrary’ within the meaning of that term under art 17.

The Committee has developed a number of elements to assess arbitrariness. The chapter has established that it is likely a forced eviction under DCC By-law 103 would be found to pursue a legitimate state interest, for example, on grounds of public health or protecting the rights and freedoms of others. In a particular case, it may be possible to assert that a specific enforcement was a violation on the basis that it pursued an illegitimate interest, such as forcing people out of Darwin, if there was sufficient evidence to support such a contention.

The second element of assessing the arbitrariness of an interference is whether the state afforded the person affected adequate procedural safeguards. This requirement

473 has been consistently recognised as a minimum requirement in a forced eviction throughout the international human rights commentary and jurisprudence on forced evictions: the 2005 Concluding Observations of the HRC regarding art 17, the commentary of the CESCR and the guidelines of the UN Special Rapporteur on Adequate Housing, the European and English jurisprudence regarding evictions of Gypsies and Travellers, the South African jurisprudence on the right to adequate housing and prohibition on forced evictions, and the Indian jurisprudence on the right to life. The chapter argued that the regulatory framework in operation regarding DCC By-law 103 fails this test. There is no formal policy framework to guide the exercise of discretion in such a way as to ensure that the state undertakes inquiries to take into account the impact of the enforcement on a person who lives in the long grass and whose human rights under art 17 are in issue. There are no formalised procedures to ensure relevant factors are taken into and given due weight.

Finally, it has been argued that, depending on the particular facts of the case, a forced eviction of a person living in the long grass may be considered arbitrary as leading to an unreasonable outcome. The HRC requires that state interference under art 17 must be proportionate to the legitimate state interests at stake, when balanced with the interest of the person affect. The chapter argued that the Committee’s test of proportionality provides for wider protection of the right to respect for privacy than comparative approaches under art 8 of the ECHR applied by the European Court of Human Rights in light of the latter body’s doctrine of the margin of appreciation. The European Court has adopted the margin of appreciation doctrine which leads to affording the state a typically wide field for domestic discretion to assess what may be necessary in a democratic society to achieve its legitimate aims. The European Court is unlikely to interfere with a domestic decision in its strictly supervisory role unless the decision is manifestly disproportionate in a particular case. The chapter has argued that this standard of human rights review is effectively as narrow as judicial review of administrative action on the grounds of Wednesbury unreasonableness.

The Committee’s interpretation to date of art 17 leaves it open to assert that, in determining the proportionality of an eviction, it is incumbent upon the state to demonstrate that the interference is the least restrictive measure necessary. Under this

474 test, the state must show that an interference impairs a human right ‘as minimally as is reasonably possible’ in order to be proportionate.

The HRC’s interpretation of art 17 supports an approach whereby assessment of the proportionality of a forced eviction is undertaken by way of a merits review, effectively exercising ‘original jurisdiction.’ It was argued that this wider basis for review is appropriate for application by the HRC. This is particularly the case when an individual communication comes from a country such as Australia, where the human right to respect for privacy, family and home is not afforded domestic protection, and accordingly the state will not have exercised its own judgment about the proportionality of an interference by reference to human rights standards.

The chapter has argued that the Committee is likely to take a range of factors into account in applying this test of proportionality to a forced eviction in the long grass in Darwin, including the lawfulness and length of occupancy, the availability of alternative accommodation, the impact of the interference on the ethnic identity of Indigenous persons as a vulnerable minority group and other considerations, including ‘considerations of common humanity.’ Contrary to the European and English jurisprudence, the Committee may be urged to discount the relevance of the facts that people living in the long grass are trespassers and may have only occupied specific sites for short periods of time. Having accepted that the person’s human right to respect for their privacy, family and home is engaged, the Committee may be encouraged to inform its assessment of proportionality by reference to the international norms on the prohibition against forced evictions, under which legality of occupancy, and length of occupation are not considered to be relevant to the level of human rights protection required. There are early indications of the Committee’s preparedness to take this approach in its 2005 Concluding Observations.

The lack of alternative accommodation, particularly in Darwin which has the highest overall rate of homelessness of any capital city in Australia and the highest proportionate rate of Indigenous ‘homeless’ people, together with the special status of Indigenous people as members of a vulnerable minority group, should in contrast be given significant weight. The combination of these factors should require the state to show overwhelming evidence of the unavoidability of an eviction, as the least

475 restrictive measure possible, and that, if an eviction was unavoidable, reasonable steps were taken to provide alternative culturally appropriate accommodation where a person would otherwise be homeless.

The chapter also argued that art 17 includes both negative and positive obligations requiring both legislative and other measures necessary to prevent future violations. Avoidable forced evictions should cease. Further, if an eviction must occur, minimum procedural and substantive rights should be afforded, including ensuring that people are not evicted into homelessness, again drawing on the normative standards regarding prohibitions on forced evictions under art 11(1) of the ICESCR.

The positive obligations under art 17 should arguably be more extensive when the human rights of a vulnerable minority group are at stake. There can be no question that Indigenous peoples fall into this category. In such cases, drawing on the European jurisprudence, the Committee may require evidence of efforts by the State to ‘facilitate’ the Indigenous cultural way of life, and that the lack of evidence of efforts to provide culturally appropriate accommodation for Indigenous people in Darwin in the Northern Territory may weigh heavily against finding that their forced eviction is proportionate in a particular case. It is accepted that a range of other relevant considerations may inform the final assessment of proportionality of a specific eviction, both in terms of particular humanitarian considerations, or particularly pressing state interests and, accordingly, it is not possible to reach a conclusive assessment as to the proportionality of an eviction, absent a very specific case.

In line with accepting that art 17(2) requires legislative action to protect persons from prohibited interferences under art 17(1), the HRC may find that Australia is in violation of its obligations due to its failure to implement the obligations under art 17 into its domestic law. Further, the HRC may require that public space laws such as DCC by-law 103 should provide sufficient specificity to predict their enforcement on a case by case basis, including being subject to protection of fundamental human rights such as art 17. Available defences should also ensure that enforcement is reasonable and proportionate on a case by case basis.

476 Finally, it has been argued that it is open to the HRC to find that Australia has failed to put in place reasonable special measures to ‘facilitate’ the Indigenous way of life in the context of Darwin in the Northern Territory, separate from the question of whether a person is actually evicted in a particular case. The state has failed, in particular, to provide a regulatory framework to expand the availability of culturally appropriate housing options which would enable people to live free from an expectation of being forcibly evicted in the future.

The chapter recognises that the arguments associated with the positive obligations arising out of art 17 may lead to objections that this is to effectively blur the distinction between obligations under the ICCPR, and those that exist under art 11(1) of the ICESCR, and to extend the scope of protection under art 17 beyond its original intent. However, such a finding is not outside the bounds of art 17, particularly when this finding is in the context of the forced evictions of a vulnerable minority group. Under the ICESCR, the prohibition on forced evictions is an immediate obligation, and not subject to progressive realisation.1510 The HRC has also now indicated its preparedness to adopt minimum standards on forced evictions in the context of art 17 through its 2005 Concluding Observations. Further, the obligation to facilitate the cultural way of life of vulnerable minority groups has been recognised as a component of art 8 under the ECHR.

The chapter acknowledges that such a determination by the HRC would represent an arguably radical departure from the European and English case law under art 8 of the ECHR to the extent that it would involve the HRC adopting the normative standards on forced evictions developed under art 11(1) of the ICSECR, particularly to include a right not to be evicted unless adequate alternative accommodation is available. None of the Gypsy and Traveller cases have undermined the tenet that ‘a landowner has a basic right to obtain possession against people who are trespassing on his or her land’1511 other than on the grounds of irregularity in the way in which the eviction was conducted. The property rights of the land owner have remained unassailable.

1510 United Nations Committee on Economic, Social and Cultural Rights, General Comment No 7: Forced Evictions, UN Doc E/1998/22 (1997) 1511 Chris Johnson and Marc Willers, Gypsy and Traveller Law (2004), 116.

477

[T]he consequences of refusing possession to a local authority would be to defeat the authority’s otherwise unqualified property rights, and hence to fetter the use of publicly-owned land… [Accordingly,] only in the most extreme and sympathetic circumstances should a Court determine that, on the specific facts of the individual case, the local authority’s property rights should be outweighed by the Article 8’s rights of a trespasser in occupation of its land.1512

Further, the European and English cases have affirmed that art 8 does not create a right to a home, even when a person faced eviction into homelessness.1513 Comments from various UK judges indicate that, in the case of eviction of ‘trespassers’ from public land, the most that might be achieved by way of substantive rights protection could be a requirement that the eviction be delayed for a sufficient period to enable the occupants to relocate to another place. Within the European and English jurisprudence regarding art 8 and forced evictions, there is limited support for the contention that ‘trespassers’, unable to access appropriate accommodation themselves, have a positive right to alternative accommodation, or for their eviction to be stayed pending alternative accommodation being made available. These arguments have been made, and have been unsuccessful.1514

1512 R (on the Application of James Casey) v Crawley Borough Council [2006] EWHC 301 (Admin), [85]. The lack of success in using art 8 to protect a person’s right to respect for their home over the rights of a property owner is replicated in the context of efforts protect a person’s home against creditors aiming to realise their security over the property in question. See the authorities cited in Lorna Fox, 'The Meaning of Home: A Chimerical Concept or a Legal Challenge?' (2002) 29(4) Journal of Law and Society 580, 597. 1513 In Case Comment, 'Environment, Planning and Property: Occupation of Caravan Site in Breach of Planning Regulations by Gypsy Family' (2006) 3 European Human Rights Law Review 345, it is noted that Codona, as the most recent European Court of Human Rights case regarding the rights of Gypsies and Travellers to a culturally appropriate home, ‘demonstrates the extreme difficulty in establishing a positive obligation on the state to provide any home, let along a particular type of home…The Codona decision is consistent with the reasoning of [Price]. There, it was also affirmed that art 8 does not guarantee a right to a home or the right to have one’s housing problems solved by the authorities’: at 347. 1514 See, eg, R (on the Application of James Casey) v Crawley Borough Council [2006] EWHC 301 (Admin); Leeds City Council v Price [2006] 2 WLR 570.

478 [I]t is very hard to imagine circumstances in which a court could properly give squatters [either holding over after termination of a tenancy or trespassing on public land] anything more than a very brief respite.1515

It may be that the HRC would take a similar approach. We currently do not know.

However, the chapter has endeavoured to demonstrate the significant merits of pursuing an individual communication to draw to light the human rights concerns regarding the treatment of people living in the long grass in Darwin in the Northern Territory.

Even if the HRC only goes so far as to find that a forced eviction must provide adequate procedural safeguards to proceed with an eviction, without attributing to the state any further positive obligations to people who have nowhere else to go, this would be a significant step forward. Such a finding would help to bolster a claim for procedural fairness and the development of policies and procedures that would ensure that DCC officers were required to gather the relevant information before them and demonstrate a balancing of competing interests prior to a forced eviction.

Whilst recognising the significant differences between the binding nature of ECHR decisions on the UK parliament and the non-binding nature of HRC views arising out of individual communications on Australia, and the level of organised grassroots campaigning required to complement litigation strategies to achieve political reform, a strategic individual communication to the HRC about the impact of public space laws on people living in public space may still have an impact on Australian governments’ policy development. It would also assist in domestic human rights advocacy endeavours in this field. It is apparent that the litigation strategy in support of the rights of Gypsies and Travellers in the United Kingdom has had a positive

1515 Leeds City Council v Price [2006] 2 WLR 570 [37] per Lord Bingham, cited in David, Elvin, 'Human Rights and Property Law. Towards a New Jurisprudence?' (Paper presented for the Blundell Memorial Lectures, June, 2006), 24.

479 impact at policy level in that jurisdiction, despite the limited formal success in the courts.1516

Indeed, it would be significant to achieve a finding from the Committee that the forced eviction of people living in the long grass even engages the human right to privacy, family and home, even if the Committee proceeded to find that, in the particular case, the interference was not a violation. Such a finding would at least counter the notion that a person living in public space has no rights all: that public space is a ‘human rights wasteland’. A finding that a forced eviction of a person living in public space may infringe this human right in other circumstances would lay the groundwork for further strategic litigation. For example, there remains some scope for arguing that public authorities are required to take into account relevant human rights in the course of decision-making processes.1517 A finding by the HRC that the forced eviction of a person living in public space may violate the right to respect for privacy, family and home could enable a future public law challenge to the enforcement of public space laws against people who are homeless. It may enable a further challenge to DCC By-law 103 which might not lead to the same dismissive approach evidenced by the Supreme Court of the Northern Territory in Goyma.

A finding by the Committee that the human right is engaged may also be of significant, incidental benefit to efforts in other jurisdictions to challenge the impact of public space laws on people who are homeless and other vulnerable groups, particularly in the ACT and Victoria where human rights protections now require that public authorities must act in accordance with their terms, and legislation must be given a human rights interpretation.

1516 See Gypsy & Traveller Law Reform Coalition, 'Annual Report 2004/5' (2005) who lists some of the positive outcomes of the Campaign as follows: ‘(1) A new planning circular, which obliges councils to identify specific land for Traveller sites, moving away from the failed criteria based policy of circular 1/94; (2) Reform of Housing Corporation funding so that registered social landlords can develop sites. 56 million pounds is available; (3) A statutory duty in the Housing Act 2005 so that councils have to assess Gypsy and Traveller accommodation needs, which have to be reflected in local plans (regional spatial strategies and local development frameworks). Where councils fail to do this, the government can itself amend council’s local plans.’ 1517 See, eg, Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273.

480

The prospects of success before the HRC alleging violation of art 17 are sufficiently indicated to support the use of this claim as a possible litigation strategy to contribute to advocacy efforts in Australia to humanise the treatment of people living in public space.

481

482 8 CONCLUSION

It is not only the dignity of the poor that is assailed when homeless people are driven from pillar to post in a desperate quest for a place where they and their families can rest their heads. Our society as a whole is demeaned when state action intensifies rather than mitigates their marginalisation.1518

Is public space a human rights wasteland? For this author, the question first emerged during the years from 1998 to 2002 when working along side people who lived in public space in Darwin, in the Northern Territory, commonly known as ‘long grassers’ or people living in the long grass. First hand sharing of stories by people living in the long grass revealed persistent displacement from the places they considered to be their home, fuelling responses of anguish, resentment, anger, resistance and persistence. Respect, protection and fulfilment of their ‘human rights’ were absent from their testimonies. ‘Human rights abuse’ seemed to capture their experience.

As at 2001, Darwin in the Northern Territory of Australia had the highest rate of homelessness of any capital city in Australia, with the highest proportionate number of Indigenous people represented in the ‘homeless’ population. It was estimated that between 500 – 1000 people live in the long grass in Darwin and over 60% of those people were Indigenous. Yet, under Darwin City Council By –law 103 (‘DCC By-law 103’), it is an offence to camp or, as an adult, to sleep in a public place between sunrise and sunset. DCC By-law 103 is used to forcibly evict people who are living in public space on a daily basis. In Goyma v Moore (‘Goyma’),1519 the Supreme Court of the Northern Territory upheld the validity of this by-law under Australian domestic law.

As Chapter Two has shown, the criminalisation of homelessness in Darwin in the Northern Territory is not unique to that location. In all Australian jurisdictions, public

1518 Port Elizabeth Municipality v Various Occupiers 2004 (12) BCLR 1268, [18] (Sachs J). 1519 [1999] 154 FLR 298.

483 space laws criminalise a range of human behaviour which might either be considered essential, or which would at least be lawful if conducted in private spaces. In most jurisdictions, there has been an increase in the regulation of human conduct in public space, with the introduction of move on powers proving a particularly popular reform. There is a wide range of public space laws available to empower public authorities to criminalise and forcibly evict people living in public space regardless of whether that person has somewhere else to live.

This regulation of public space has been developed outside of a human rights framework. As Chapter Two explains, Australia is a party to all major international human rights treaties. Yet, most jurisdictions within Australia do not have domestic human rights laws to set limits on the enactment of legislation or the exercise of administrative powers. The Australian Capital Territory and Victoria are the exceptions. In Darwin in the Northern Territory, it is not possible to challenge DCC By-law 103 on human rights grounds, outside of an allegation of unlawful discrimination. A challenge based on racial discrimination was commenced in Simmering v Darwin City Council,1520 by Stella Simmering, as a representative of the ‘Long grass Association’. Stella Simmering made the complaint to the Human Rights and Equal Opportunity Commission under the Racial Discrimination Act 1975 (Cth). However, she was forced to withdraw from the case due to lack of resources and legal aid, together with concerns about facing a costs order if her complaint was unsuccessful. Stella Simmerings’ challenge was similar to an earlier challenge by Bob Bundawabi under the Anti-Discrimination Act 1992 (NT) who faced forced eviction from Lee Point Camp in Darwin under the Trespass Act 1987 (NT). Mr Bundawabi was successful in getting the Anti-Discrimination Commissioner to order an interim stay of his eviction but passed away before his complaint could be heard.

Whilst there are few domestic human rights-based remedies available in Australia, a significant number of human rights complaints mechanisms exist at the international level. The available international human rights complaints mechanisms include lodging an individual communication under the International Covenant on Civil and

1520 Simmering v Darwin City Council (2001) Human Rights and Equal Opportunity Commission, Reference Number 2012012FC:R, Complaint of Stella Simmering dated 6 December 2001.

484 Political Rights (‘ICCPR’), the Convention on the Elimination of All Forms of Racial Discrimination (‘CERD’) and the Convention against Torture (‘CAT’). It is also possible to lodge a shadow report with the various human rights treaty bodies, such as the United Nations Human Rights Committee (‘HRC’) under the ICCPR, in order to raise concerns about human rights violations as part of the scrutiny of Australia’s state reports. Under the special procedures of the United Nations Office of the High Commissioner of Human Rights, a number of mandate holders have also been appointed to monitor human rights, such as the United Nations Special Rapporteur on the Right to Adequate Housing, Miloon Kothari.

In the absence of effective domestic remedies for a range of human rights violations in Australia, these international human rights complaints mechanisms have been increasingly used against Australian governments in order to expose injustices at the domestic level. As Chapter Three sets out, some of the issues brought to the attention of international human rights bodies include violations against Indigenous people in a wide range of human rights areas, as well as refugees and asylum seekers, people of diverse sexual orientation, and people who are homeless.

Lawyers, academics and advocates have increasingly used human rights norms and tools to raise concerns about the treatment of people who are homeless in Australia at both domestic and international level. With the expansion of specialist legal services for people who are homeless, and growing legal academic interest in the issues of housing and homelessness, there has been an explosion in writings and advocacy regarding the legal and human rights of people who are homeless both generally, and with reference to the impact of public space laws on people who live in public space. Chapter Three reviewed this body of work. The chapter established that lawyers, academics and advocates have identified that the use of public space laws, such as DCC By-law 103, to criminalise or forcibly evict people who are homeless may violate some 15 human rights provisions under various international human rights treaties to which Australia is a party. These human rights are: the right to life; the right to freedom from torture and cruel, inhuman and degrading treatment or punishment; the right to liberty and security of the person; the right to freedom of movement; the right to a fair hearing, including the right to legal representation; the right to a presumption of innocence; the right to privacy, family and home; the right to

485 peaceful assembly; the right to freedom of expression; the right to freedom of association; the right to equality before the law; the right to an adequate standard of living, including adequate housing; the right to health; the right to enjoy one’s culture; and the right to freedom from discrimination. With some exceptions, however, claims that these rights are subject to violation have not received detailed analysis or adjudication. The lack of substantiation of these claims is not surprising, given the paucity of domestic or international human rights jurisprudence which is directly on point.

There has been no independent finding by a court or tribunal in Australia that the criminalisation or forced eviction of people who are homeless under public space laws amounts to a human rights violation. Further, at international level, no individual communication from Australia has yet to be lodged to make a human rights complaint. However, shadow reports to human rights treaty bodies have now raised concerns as part of the scrutiny of Australia’s state reports. To date, no concluding observations of the human rights treaty bodies have expressed specific concern about the criminalisation or forced evictions of people living in public space.

Finally, in 2007, the UN Special Rapporteur on Adequate Housing, Miloon Kothari released his report on his Mission to Australia. He expressly dealt with this human rights concern. The Special Rapporteur found that the ‘enforcement of public space laws criminalizes the homeless and may violate civil rights, including the right to be free from inhuman or degrading treatment or punishment. These regulations do not provide people living in public places who are threatened with eviction the procedural or substantive rights recognized under international laws regarding forced evictions, and therefore may also violate the right to adequate housing (citations omitted).’1521 He recommended that ‘Australian governments should address homelessness and its causes as a priority. Moreover, laws that criminalize poverty and homelessness and those currently disproportionately impacting upon homeless people such as begging laws, public drinking laws and public space laws, should be revised and amended to

1521 Miloon Kothari, Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Miloon Kothari, Addendum, Mission to Australia (31 July to 15 August 2006, UN Doc A/HRC/4/18/Add.2, (2007), [47].

486 ensure that fundamental human rights are protected.’1522 These findings followed on from the earlier views of the HRC in Concluding Observations of the Human Rights Committee: Kenya (‘2005 Concluding Observations’)1523 that the forced evictions of people in Kenya from informal settlements violated art 17 of the ICCPR, the human right to be free from arbitrary or unlawful interference with privacy, family and home. However, these findings are of general tenor, and lack sufficient particularity to enable an assessment to be made about a human rights violation in a specific case.

With limited analysis of these expressed human rights concerns regarding the treatment of people living in public space in Australia, the thesis chose the Darwin case study for such an endeavour. Chapters Four and Five of the thesis provided the detailed evidence which may be available to pursue a human rights-based complaint. Chapter Four reviewed available sources to provide an estimate of the number of people living in public space in Darwin in the Northern Territory, and available demographic information. It explored the reasons why people are in Darwin and why, when they are there, they are living in the long grass, rather than other forms of accommodation. The chapter indicated that a significant number of the people living in the long grass have long-standing attachment to Darwin, and are living in the long grass as a result of a lack of alternative accommodation options which are culturally appropriate.

Chapter Five examined the available data regarding the operation of DCC By-law 103, establishing that enforcement patrols occur on a daily basis. In the majority of cases, formal enforcement of the by-law no longer occurs. The vast majority of contact with council officers involves informal directions to move on from where people are sleeping in order to avoid formal enforcement. Council officers therefore exercise significant discretion in their use of powers under DCC By-law 103. However, there are no formal policies to guide the exercise of this discretion, nor is there any policy to place obligations on council officers or other authorities to investigate the accommodation or humanitarian needs of the people with whom they

1522 Ibid [132]. 1523 Concluding Observations of the Human Rights Committee: Kenya, UN Doc CCPR/CO/83/KEN, (2005).

487 come into contact, nor to take action to assist people who may have no where else to live.

The impact of the operation of DCC By-law 103 is therefore to displace people from their camping and resting places on a regular basis. It is important to endeavour to comprehend the impact of this displacement from the people who are affected.

In Chapter One, the introduction to this thesis, this author recounted events on the evening of the 2001 Census, sitting in a bush camp with Johnny Balaiya, Bob Bunba and Stella Simmering on the outskirts of Darwin. That evening, after his interview with ABC TV, Bob Bunba stood and told his true story. Stella Simmering captured his words on tape:

Long as we born in the fire and this ground my mother been put me this one [Bob picks up handful of soil]. My mother, she was put me in the dirt. I was born in the bushes. We can sleep any way we like. Before Captain Cook, he was around the world. How come the City Council they push us – that’s wrong. When they see your fire they tip it up water, when you cook something they take it out that saucepan. Everyday they come there, everywhere. They put my name. And they think I’m going to pay fifty dollars. But no. I can’t give fifty dollars from me, no! … I said this is your paper, you watch, I cut ‘im off. I put in fire. They used to come early in the morning. Six o’clock, they wake us up, ‘Wakey, wakey!’ What’s that mean, ‘Wakey , wakey?’ You tell me. … We are Black, you are white, we are all different. We are born in the ground. We can camp anytime, we stop in the bushes, we don’t like to stop in the town. When we get a house, all the young boys, they break everything. I was get three time house in Palmerston, and they [Territory Housing] kick us out and I said, ‘No more.’1524

1524 Simmering v Darwin City Council (2001) Human Rights and Equal Opportunity Commission, Reference Number 2012012FC:R, Complaint of Stella Simmering dated 6 December 2001, Annexure to Complaint.

488 The thesis drew on the stories of Bob Bunba and others. The case study of the forced eviction of people living in public space in Darwin in the Northern Territory was used to undertake a detailed analysis of whether human rights violations are involved. From the 15 human rights identified as potentially engaged by the use of public space laws against people who are ‘homeless’, the thesis selected art 17 of the ICCPR which protects the right to respect for privacy, family and home for its study.

Article 17 was selected as it provides a potential basis for an individual communication under the Optional Protocol to the ICCPR, and has now been identified by the HRC in its 2005 Concluding Observations as the human right violated under the ICCPR by the forced eviction of people living in informal settlements in Kenya, analogous to the situation faced by people living in the long grass in Darwin in the Northern Territory. The right to respect for privacy, family and home is also one of the primary human rights relied upon by Gypsies and Travellers in the United Kingdom under art 8 of the European Convention on Human Rights (‘ECHR’), the corresponding provision to art 17 of the ICCPR. Gypsies and Travellers have pursued an extensive human rights litigation strategy to secure greater protection from forced evictions, and recognition of their right to their traditional way of life. The right to respect for privacy, family and home is now also protected at domestic level in the ACT and Victoria in Australia, and is likely to be incorporated into human rights laws proposed for Western Australia and Tasmania and at national level as a likely outcome of a proposed inquiry by the federal Rudd Labour Government.

Chapter Six reviewed international and comparative sources to determine if art 17 is engaged by the forced eviction of people living in public space. In the absence of relevant jurisprudence from the HRC on the application of art 17 of the ICCPR to forced evictions, the chapter argued that the HRC should inform its interpretation of obligations under art 17 regarding forced evictions with the normative standards developed under art 11(1) of the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’). The HRC’s 2005 Concluding Observations indicate its preparedness to take such an approach. The chapter also informed its analysis by a review of the jurisprudence on forced evictions under art 8 of the ECHR. It appears to be arguable that art 17 is ‘engaged’ by the forced evictions of people living in the long

489 grass, particularly for people who can show that they have been living in the long grass for an extended period of time such that the long grass may be considered their ‘home’. However, the chapter argued that the interpretative approach to the meaning of ‘home’, particularly under art 8 of the ECHR, fails to adequately accommodate a concept of ‘home’ for people from more transient or nomadic lifestyles, relying as it does on being able to demonstrate ‘sufficient continuous links’ with a specific location. It urged that the HRC should adopt a more culturally relative concept that will ensure that people who do not view ‘home’ as a specific place for an extended period of time are not disproportionately denied human rights protections under art 17 of the ICCPR. Chapter Six also argued that the enforcement of DCC By-law 103 affects the private and family lives of people living in the long grass, particularly where it is demonstrated that people are living in extended family groupings and are engaging in cultural practices such that enforcement affects their capacity to express their ethnic identity as Indigenous peoples. Such a proposition is supported by the decisions of the European Court of Human Rights under art 8 in relation to the forced eviction of Gypsies and Travellers.

On the basis that art 17 is engaged by the forced eviction of people living in the long grass, Chapter Seven then assessed whether the HRC may find that this right has been violated. It confirmed that the moving on and forced eviction of people living in the long grass would operate as an ‘interference’ under art 17, and that this may also be a finding, even where a person has not had any kind of direct enforcement action taken against them. If people are sleeping in public places within the jurisdiction of the Darwin City Council (‘DCC’), they are at risk of prosecution, and are therefore affected by the by-law, particularly if they can provide evidence of ways in which they have had to negatively modify their behaviour in order to avoid enforcement action being taken against them.

It was then necessary to determine if the interference was ‘in accordance with the provisions, aims and objectives of the Covenant’, a general requirement identified by the Committee through its General Comment No 16: The right to Respect of Privacy,

490 Family, Home and Correspondence and Protection of Honour and Reputation.1525 A review of the jurisprudence did not indicate however that this requirement offers anything additional to the analysis.

The Committee would therefore need to determine if the forced eviction of people living in the long grass was either an ‘unlawful’ or ‘arbitrary’ interference. It could be argued that DCC By-law 103 is not ‘lawful’ interference under art 17 because it lacks sufficient specificity and predictability to determine the basis upon which enforcement action will be taken in a particular case. As noted above, council officers exercise wide discretion regarding the level of enforcement action taken under the by- law yet there are no provisions or policies to specify the basis upon which such discretion to be exercised. It may also be argued that the enforcement of DCC By-law 103 is unlawful on the basis that the forced evictions are occurring contrary to international law, particularly art 11(1) of the ICESCR, as indicated by the UN Special Rapporteur on Adequate Housing in his 2007 Final Report on his Mission to Australia. Chapter Seven argued that both arguments should be tested. However, the current jurisprudence of the HRC affirms that it is likely that the Committee would find that enforcement action by council officers under DCC By-law 103 is ‘lawful’ interference under art 17, on the basis that council officers are authorised to move on people who are offending against the by-law. To date, the Committee has made similar findings in all prior individual communications under art 17.

As with forced eviction cases under art 8 of the ECHR, the central question of whether the human right of a person living in the long grass has been violated by enforcement of DCC By-law 103 is likely to turn on the question whether the interference would be considered ‘arbitrary’ under art 17. Chapter Seven reviewed the jurisprudence of the Committee to show that, in order to avoid a finding of arbitrariness, the state must show that the interference pursued a ‘legitimate state interest’, afforded adequate procedural safeguards and also lead to a reasonable outcome.

1525 United Nations Human Rights Committee, General Comment No 16: The right to Respect of Privacy, Family, Home and Correspondence and Protection of Honour and Reputation UN Doc HRI\GEN\1\Rev 1 at 21 (1988).

491

The chapter explored some possible arguments regarding the legitimacy of a specific forced eviction, whilst acknowledging that DCC By-law 103 is likely to satisfy the requirement of pursuing a ‘legitimate state interest’ on the grounds of public health and protecting the rights and freedoms of others.

Drawing on the international norms regarding the prohibition on forced evictions, together with comparative human rights jurisprudence regarding forced evictions in other contexts, Chapter Seven asserted that DCC By-law 103 lacks adequate procedural safeguards to ensure that relevant considerations, including human rights issues, are taken into account in its enforcement process. On this basis, DCC By-law 103 may be considered an arbitrary interference on its face, lacking as it does any human rights limitations, nor provisions to guide the exercise of discretion in a particular case. It is also arguable that the by-law lacked procedural safeguards in its enforcement in a specific case unless it could be shown that, in practice, the council officer undertook consultation and necessary inquiries regarding availability of alternative accommodation and other humanitarian concerns prior to making the decision to move on the person living in the long grass.

Chapter Seven also presented the basis upon which it may be argued that a forced eviction of people living in the long grass may lead to an unreasonable outcome in a particular case. The chapter examined the standard of review of the reasonableness of government action under art 17 of the ICCPR in comparison to the Wednesbury unreasonableness public law ground of judicial review, the proportionality requirements under United Kingdom administrative law, and the assessment of unreasonableness and proportionality under art 8 of the ECHR as part of determining whether an interference was ‘necessary in a democratic society’ in a particular case. The chapter argued that the reasonableness test under art 17 is a wider basis for review whereby the HRC may independently assess proportionality of an interference taking into account the interests of the state balanced against the interests of the person affected. On the basis that a person’s human right is engaged, the Committee is to assess whether the interference was the least restrictive measure available. This basis of review may be similar to the emerging proportionality doctrine in the United Kingdom when a human right is engaged. The reasonableness test under art 17 may

492 however be contrasted with the Wednesbury unreasonableness test and the test under art 8 of the ECHR. The Wednesbury test of unreasonableness respects the authority of a government decision-maker unless it can be shown that the decision was manifestly absurd. Under jurisprudence emerging from the European Court of Human Rights regarding art 8, the state party is also to be afforded a wide margin of appreciation when assessing the proportionality of an interference, particularly if procedural safeguards were in place at the domestic level, with the European Court exercising a strictly supervisory function. The chapter argued that the wider scope of review by the HRC under art 17 is appropriate, particularly where it is exercising ‘original jurisdiction’ in a case such as Australia, where there is no domestic human rights review available.

Applying the reasonableness test under art 17, Chapter Seven then highlighted some of the likely factors that would need to be taken into account in assessing the reasonableness and proportionality of a forced eviction in a particular case. These factors include the unlawfulness and length of occupation, the availability of alternative accommodation and the impact of a forced eviction on a person’s ethnic identity, together with other relevant considerations, such as humanitarian concerns. The chapter again asserted that the Committee should be informed by the normative standards regarding the international prohibition on forced evictions in any assessment, giving heavy weight to the availability of alternative accommodation, and also the special status of Indigenous people as a vulnerable minority group. It argued that it is open to the Committee to find that, where a person will otherwise be homeless, the state would need to show that the eviction was the least restrictive measure available and unavoidable, and that reasonable measures had been taken to find adequate culturally appropriate accommodation, in order to avoid a finding of arbitrariness. It was acknowledged that this would represent a radical departure from the jurisprudence under art 8 of the ECHR, where the right of a property owner to repossess land has been virtually unassailable, especially if procedural safeguards have been afforded, leading up to the eviction.

Finally, Chapter Seven explored the positive obligations on Australia under art 17 if a violation is found to have occurred. It argued that legislative action would be required to domestically implement art 17 into Australian domestic law. In addition,

493 amendment to DCC By-law 103 is required to proscribe enforcement action which violates human rights and ensure sufficient specificity about the factors to be taken into account when exercising enforcement discretion. Available defences need to be expanded.

In addition to legislative action, the chapter makes the case for additional special measures to address the needs of Indigenous peoples as a vulnerable minority group. The special measures may include the adoption of a policy framework which implements reasonable measures to address the dire need for greater access to culturally appropriate housing, in light of the intense rates of homelessness being experience by Indigenous people in Darwin in the Northern Territory. In urging for such a finding, it would be appropriate to contrast the lack of policy frameworks currently available with those in place for Gypsy and Traveller communities in the United Kingdom, with their limitations.

Twelve years ago, George Banbuma, living in the long grass in Darwin, said,

We are not fighting to drink in a public place. We only ask that more land be made available for Aboriginal needs in Darwin.1526

At the time of writing, no additional land has been made available nor has there been any significant development of culturally appropriate housing. It is clearly arguable that the state has failed to put in place special measures to ensure that Indigenous people, as a vulnerable minority group, are afforded protection of their right to respect for their privacy, family and home which encompasses an obligation on the state to facilitate their traditional way of life.

As Chapter Seven argued, an individual communication to the HRC challenging the treatment of Indigenous people in public space in Darwin in the Northern Territory may at least lead to a finding that art 17 of the ICCPR is engaged. It seems intuitively incomprehensible that such a finding could not be open in light of the intense deprivations experienced by this population. However, the question of the evidence

1526 Letter from George Banbuma dated 1 October 1996 (Unsigned)

494 and circumstances that may lead to a finding of a violation is almost wholly untested in this jurisdiction.

The thesis has therefore endeavoured to scope out the various pathways that may lead to such a finding, seeking out relevant jurisprudence and sources that may be applied to this effort, whilst recognising the speculative quality of many of the contentions.

The adoption of human rights discourse to bolster the claims for more humane and respectful treatment of people who live in public space has become a primary advocacy tool in the Australian context. Some advocacy has proven to be persuasive at least in ameliorating the impact of the criminalisation of people under public space laws. Changes to fines enforcement procedures, and the exercise of court discretions are welcome reforms. However, to date, there have been few gains to directly challenge the impact of such laws on daily lives - moving people on like ‘animal’, ‘dog’ or ‘kangaroo’.1527 Such changes are difficult to achieve at a political level in the current public policy environment, as demonstrated by the re-enactment in 2005 of anti-begging laws in Victoria in the face of extensive lobbying, research, and human rights advocacy. It is suggested that the pursuit of strategic litigation is required to scope out the human rights limits of legislative and policy power when regulating public space.

This thesis has endeavoured to make a contribution to this task. It presents the case for interpreting the human right to respect for privacy, family and home in such a way as to afford people who live in public space greater dignity and respect - an entitlement to both procedural and substantive rights when faced with a forced eviction. The challenge remains to secure an adjudication regarding a public space law in a particular case.

1527 See W. Bartlett Day, Aboriginal Fringe Dwellers in Darwin, Australia: Cultural Persistence or a Culture of Resistance? (PhD Thesis, Department of Anthropology, University of Western Australia, 2001), 6.16: Another Parliament House protest, August 3rd 2001, quoting Dulcie Malimara, Protestor, Rally against Darwin City Council By-laws outside Parliament House, Darwin, Northern Territory, 3 August 2001.

495 If human rights laws do not deliver greater dignity and respect for the most vulnerable peoples, the human rights discourse becomes increasingly hollow. It is the task of lawyers, advocates and academics in collaboration with those groups seeking justice to ensure that the human rights agenda delivers for those who experience the most intense deprivations.

An individual communication to the HRC affords one option to pursue. A positive finding would at least bolster domestic advocacy claims for reform. Importantly, as noted above, since the commencement of this thesis, the right to respect for privacy, family and home has now been enacted in the ACT and Victoria, with positive signs of similar reforms in Tasmania, Western Australia and at Federal level. Under such laws, it is likely that specific eviction decisions of public authorities under public space laws will become reviewable on human rights grounds, as will the empowering legislation, at least to seek a declaration of incompatibility. The landscape for pursuing legal claims, based on human rights, at domestic level is opening up into clear view.

It is hoped that, when such laws become available, it is people like Johnny Balaiya, Dulcie Malimara, Bob Bunba, and George Banbuma who will be the first - and not the last - to benefit from their transformative potential.

[A]t the grassroots, when all else fails, people who are treated inhumanely look to law to recognise their rights, and to leverage power in their direction. They will continue to do so, and so they should – it is after all what the law is for.

The determination of the people in the community to use the law, sometimes as strangers, looking for justice, and the vision of what should be possible, serves as an inspiration and challenge for us all.1528

1528 Cassandra Goldie, 'Indigenous People and Public Space: The Use of 'Move On' Powers in Darwin, Northern Territory and Associated Legal Challenges' (2004) 17(1) Parity 86, 87.

496

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Lynch, Philip, 'Begging for Change: Homelessness and the Law' (2002) 26(3) Melbourne University Law Review 690

Lynch, Philip, 'Homelessness, Access to Justice and Legal Service Delivery: The PILCH Homeless Persons' Legal Clinic' (2004) 17(1) Parity 70

506

Lynch, Philip, 'Homelessness, Human Rights and Social Inclusion' (2005) 30(3) Alternative Law Journal 116

Lynch, Philip, 'Homelessness, poverty and discrimination: improving public health by realising human rights' (2005) 10(1) Deakin Law Review 233

Lynch, Philip, 'Human Rights and the Supported Accommodation Assistance Program (SAAP)' (2004) 17(1) Parity 21

Lynch, Philip, 'Human rights lawyering for people experiencing homelessness' (2004) 10(2) Australian Journal of Human Rights 59

Lynch, Philip, 'Public Policy Responses to Begging in Melbourne' (Public Interest Law Clearing House, 2005)

Lynch, Philip, 'The Homeless Persons Legal Clinic' (2002) 27(1) Alternative Law Journal 31

Lynch, Philip, 'The Utility of Human Rights to Homeless People and their Advocates' (2004) 17(1) Parity 10

MacKenzie, David and Chamberlain, Chris, 'Counting the Homeless 2001: Australian Capital Territory' (Swinburne University and RMIT University 2004)

MacKenzie, David and Chamberlain, Chris, 'Counting the Homeless 2001: New South Wales' (Swinburne University and RMIT University 2004)

MacKenzie, David and Chamberlain, Chris, 'Counting the Homeless 2001: Northern Territory' (Swinburne University and RMIT University, 2004)

MacKenzie, David and Chamberlain, Chris, 'Counting the Homeless 2001: Queensland' (Swinburne University and RMIT University 2004)

MacKenzie, David and Chamberlain, Chris, 'Counting the Homeless 2001: South Australia' (Swinburne University and RMIT University 2004)

MacKenzie, David and Chamberlain, Chris, 'Counting the Homeless 2001: Tasmania' (Swinburne University and RMIT University 2004)

MacKenzie, David and Chamberlain, Chris, 'Counting the Homeless 2001: Victoria' (Swinburne University and RMIT University 2004)

MacKenzie, David and Chamberlain, Chris, 'Counting the Homeless 2001: Western Australia ' (Swinburne University and RMIT University, 2004)

MacQueen, Chris, 'Developing a Vision to Address Indigenous Homelessness' (2003) (March) Australian Federation of Homelessness Organisations News 6

507 Market Equity Research and Strategy, 'Community Harmony Strategy Evaluation Report 2004' (Department of Community Development, Sport and Cultural Affairs 2004)

Marks, Greg, 'Australia, the Committee on the Elimination of All Forms of Racial Discrimination and Indigenous Rights' (2004) 6(7) Indigenous Law Bulletin 11

Markwell, Rita, 'Seques from the outside: sources of indigenous housing rights in international law' (2005) 6(13) Indigenous Law Bulletin 6

Maypilarna et al, 'Yolngu Longgrassers on Larrakia Land' (Charles Darwin University, 2004)

McCarron, Emily and Clarke, Sophie, 'Living in the Public Eye: Homelessness and Fines' (2006) 19(1) Parity 49

McCotter, Lucy, 'Providing Support t Homeless People with Legal Problems: Finding Strategies that Work' (2000) 13(6) Parity 8

McGlade, Hannah and Purdy, Jeannine, 'From theory to practice: or what is a homeless Yamatji grandmother anyway? Joan Martin v Homeswest' (1999) 11 Australian Feminist Law Journal 137

McLeay, Fiona, 'The pros of pro bono' (2005) Australian Law Management Journal 14

McLeod, Karen, 'The Homelessness and Street Offences Project' (2006) 19(1) Parity 62

McRae, Rowan and Nicholson, Dan, 'No place like home: Homelessness in Australia and the right to adequate housing' (2004) 10(2) Australian Journal of Human Rights 27

Memmott, Paul and Fantin, Shaneen, '"The Long Grassers": A Strategic Report on Indigenous "Itinerants" in the Darwin and Palmerston Area' (Paul Memmott & Associates, 2001)

Memmott, Paul, Long, Stephen and Chambers, Catherine, 'Categories of Indigenous 'Homeless' People and Good Practice Responses to Their Needs' (Australian Housing and Urban Research Institute, 2003)

Memmott, Paul, 'Public Place Dwelling Indigenous People: Alternative Strategies to the Law and Order Approach (Draft of 26 February 2004)' (Aboriginal Environments Research Centre, 2004)

Menner, Glenn, 'The Australian Social and Economic Rights Project (ASERP) - Lessons for Housing Rights Advocacy' (2004) 17(1) Parity 19

Menner, Glenn, 'The Right to Housing Under International Law - The Australian Social and Economic Rights Project ' (2000) 13(7) Parity Insert

Midgley, Beth, 'Achieving Just Outcomes for homeless people through the court process' (2005) 15(2) Journal of Judicial Administration 82

508 Midgley, Beth, 'Improving the Administration of Justice for Homeless People in the Court Process' (PILCH Homeless Persons Legal Clinic, 2004)

Millner, Felicity, 'Operation Shuteye: Youth Curfew in South Australia' (2003) 5(26) Indigenous Law Bulletin 6

Mills, June, 'Longgrass Association to be represented at Indigenous Homeless Forum' (2003) 1 Longgrass 7

Miloon Kothari, Report of the Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, Miloon Kothari, Addendum, Mission to Australia (31 July to 15 August 2006, UN Doc A/HRC/4/18/Add.2, (2007)

Mission Australia Research and Social Policy, 'Homelessness: What Australia says' (Mission Australia, 2002)

Monks, Shane, 'In Defence of the Use of Public International Law by Australian Courts' (2002) 22 Australian Year Book of International Law 201

Morgan, Wayne, 'Identifying Evil for What It Is: Tasmania, Sexual Perversity and the United Nations' (1994) 19 Melbourne University Law Journal 740

Morgan, Wayne, 'Passive/Aggressive: the Australian Government's Responses to Optional Protocol communications' (1999) 5(2) Australian Journal of Human Rights 22

Morgan, Wayne, 'Protecting Rights or Just Passing the Buck? The Human Rights (Sexual Conduct) Bill 1994 ' (1994) 1 Australian Journal of Human Rights 409

Mundell, Meg, 'Giving Voice to the Voiceless: Homelessness and Democracy' (2004) 17(1) Parity 94

National Association of Community Legal Centres, 'Submission to the Attorney-General Hon Philip Ruddock MP regarding the Internal Review of the Commonwealth Community Legal Services Program - CCLSP' (2007)

National Children's and Youth Law Centre and Defence for Children International - Australian Section, 'The Non-Government Report on the Implementation of the United Nations Convention on the Rights of the Child in Australia' (2005)

National Children's and Youth Law Centre and Defence for Children International - Australian Section, 'Submission to the Human Rights Committee concerning Australia's third and fourth periodic reports under the International Covenant on Civil and Political Rights ' (2000)

National Human Rights Network of the National Association of Community Legal Centres, 'Australian Non-government Organisations' Submission to the Committee on the Elimination of Racial Discrimination' (2005)

509 National Law Center on Homelessness & Poverty and National Coalition for the Homeless, 'Illegal to be Homeless: The Criminalisation of Homelessness in the United States' (2002)

Niarchos, Nicholas, 'Human Rights in Australia: A Retreat from Treaties' (Human Rights Committee of the Law Society of South Australia, 2004)

Nicholson, Dan, 'Australia's Obligations and the Human Right to Adequate Housing' (2004) 17(1) Parity 13

Nicholson, Dan, 'The Human Right to Housing in Australia' (Centre on Housing Rights and Evictions, 2004)

Nicholson, Sarah, 'Do Children and Young People have any Legal Rights?' (2000) 13(6) Parity 10

Nielsen, Marianne, 'Indigenous-Run Legal Services in Australia and Canada' (2006) 16(3) International Criminal Justice Review 157

Nissim, Rivkah, 'Little piece of heaven: Thoughts from Victorians on Housing as a Human Right' (Victorian Council of Social Services, 2004)

Nissim, Rivkah, 'There is no dignity living suspended like this ... The Victorian Housingt Rights Tribunal Volume ' (Victorian Council of Social Services, 2005)

Nowak, Manfred, UN Covenant on Civil and Political Rights: CCPR Commentary (2005) NT Shelter, 'NT Shelter Report on 2005 Regional Housing Forums' (2005)

Office of Crime Prevention, 'State Government Northbridge Strategy: Report on the Young People in Northbridge Policy; The Policy Three Years On - 2003-2006' (Western Australian Police, 2006)

O'Flaherty, Michael, 'The Concluding Observations of United Nations Human Rights Treaty Bodies' (2006) 6 Human Rights Law Review 27

O'Neill, Nick, Rice, Simon and Douglas, Roger, Retreat from Justice: Human Rights Law in Australia (2004)

Otto, Di, 'Homelessness and Human Rights: Engaging human rights discourse in the Australian context' (2002) 27(6) Alternative Law Journal 271

Otto, Di, 'Rethinking Homelessness' (2004) 17(1) Parity 6

Otto, Dianne and Lynch, Philip, 'Housing, homelessness and human rights' (2004) 10(2) Australian Journal of Human Rights 1

Otto, Dianne and Lynch, Philip, 'UN Special Rapporteur on Adequate Housing: Questionnaire on Women and Adequate Housing: An Australian Submission' (University of Melbourne & Public Interest Law Clearing House 2002)

510

Otto, Dianne and Wiseman, David, 'In search of 'effective remedies': Applying the International Covenant on Economic, Social and Cultural Rights in Australia' (2001) 7(1) Australian Journal of Human Rights 5

Otto, Dianne, 'Addressing Homelessness: Does Australian's indirect implementation of human rights comply with its international obligations?' in Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone (eds), Protecting Human Rights: instruments and institutions (2003)

Parry, The Sources and Evidences of International Law (1965)

Popovic, Jelena, 'Homelessness and the Law: A View from the Bench' (2004) 17(1) Parity 53

Pritchard, Sarah, 'Breaking the national sound barrier: communicating with the CERD and CAT Committees' (1999) 5(2) Australian Journal of Human Rights 67

Public Interest Law Clearing House and Council to Homeless People (Victoria), 'Homelessness and the Law - Towards a Workable Solution' (2000)

Queensland Public Interest Law Clearing House, 'Homeless Persons' Legal Clinic Funding Application to Minister for Communities, Disability Services and Seniors to expand legal services for Homeless Queenslanders' (2005)

Rabsch, Michelle, 'A Homeless Persons Legal Service for New South Wales' (2004) 17(1) Parity 68

Raynor, Moira, 'Northbridge Curfew' (2003) 5(27) Indigenous Law Bulletin 9

Redfern Legal Centre and Rentwatchers, 'The Human Right to Adequate Housing in Australia: A Report to the United Nations Committee on International Covenant on Economic, Social and Cultural Rights, April 1999' (1999)

Richardson, Amy, 'The Erosion of Housing in Australia: From a Right to a Privilege' (2004) 17(1) Parity 92

Rieckert, Julian, McCarthy, Freyha and Kee, Chian, 'Privacy Law and Homeless People ' (2004) 17(6) Parity 47

Ross, Randal, 'Indigenous Legal Services Restructured' (2006) Indigenous Law Bulletin 29

Sackville, Ronald, 'Homeless People and the Law' (Commission of Inquiry into Poverty, 1975)

Sackville, Ronald, 'Homelessness, Human Rights and the Law' (2004) 17(1) Parity 4

511

Sackville, Ronald, 'Homelessness, Human Rights and the Law' (2004) 10(2) Australian Journal of Human Rights 11

Sackville, Ronald, 'Opinion: Homeless People and the Law' (2000) 13(6) Parity 24

Sanders, Jane, 'Darkness at the Break of Noon: The Fall and Fall of the Public Domain' (2006) 19(1) Parity 64

Sanders, Jane, 'Youth + Street = Crime??' (2000) 13(6) Parity 9

Sanders, Jane, 'Youth Homelessness: 10 Years on from the Burdekin Report' (1999) 8 Human Rights Defender 12

Save the Children, 'Denied a Future? Volume 3' (The Save the Children Fund, 2001)

Schafer, Arthur, 'Down and Out in Winnipeg and Toronto: The Ethics of Legislating Against Panhandling' (Caledon Institute of Social Policy, 1998)

Scheinin, Martin, 'The Proposed Optional Protocol to the Covenant on Economic, Social and Cultural Rights: A Blueprint for UN Human Rights Treaty Body Reform - Without Amending the Existing Treaties' (2006) 6 Human Rights Law Review 131

Schetzer, Lou and Forell, Suzie, 'Legal Needs of Homeless People Project of the NSW Law and Justice Foundation' (2004) 17(1) Parity 43

Senate Select Committee on Mental Health, 'A national approach to mental health – from crisis to community' (Commonwealth of Australia, 2006)

SGS Economics & Planning, 'Levers to Promote Affordable Housing in the Northern Territory ' (2007)

Sheldon, John, 'NT Update: Public Order and Anti-Social Conduct Act (NT)' (2001) September RIGHTS NOW 9

Shelter NT, 'Home Territory - The Community View' (Shelter NT, 2003)

Shelter WA and Tenants Advice Service, 'Report to the Western Australian Homeless Person’s Legal Advice Clinic Steering Committee' (2006)

Skiotis, Fionn, 'The Housing is a Human Right Project' (2004) 17(1) Parity 16

South Australia Council of Social Services, 'Curfews as a Crime Prevention Measure' (2007)

Spencer, Sarah, 'Gypsies and Travellers: Britain's Forgotten Minority' (2005) 4 European Human Rights Law Review 335

Spitzer, Anita, 'Homelessness and Disability' (2004) 17(1) Parity 79

512 Stagoll, Eve, 'A Homeless Sanctuary: Australia's Treatment of Refugees and Asylum Seekers' (2004) 17(1) Parity 90

Standing Committee on Legislation, 'Report 4: Criminal Investigation Bill 2005, Criminal Investigation (Consequential Provisions) Bill 2005 and Criminal and Found Property Disposal Bill 2005' (Western Australian Legislative Council 2006)

Steiner, Henry J and Alston, Philip, International Human Rights in Context (2 ed, 2000)

Stojcevski, Victor, 'Access to Legal Assistance for Homeless People' (2004) 7(1) Parity 61

Stubbs, Julie, 'Domestic Violence, Laws and Homelessness in Australia' (2004) 17(1) Parity 41

Tasmanian Law Reform Institute, 'A Charter of Rights for Tasmania' (2007)

Tay, Simon and Yen, Goh Chien, 'Economic social and Cultural Rights in ASEAN: A Survey' (Friedrich Ebert Stiftung, 2001)

Taylor, Monica and Walsh, Tamara (eds), 'Nowhere to go: The impact of police move-on powers on homeless people in Queensland ' (2006)

Taylor, Monica, 'Moving-On Homelessness: The Impact of Police Move-On Powers in Public Space' (2006) 19(1) Parity 60

Territory Housing, 'Territory Housing Annual Report 2000 - 2001' (Northern Territory Government, 2001)

Territory Housing, 'Territory Housing Annual Report 2006/7' (Northern Territory Government, 2007)

Thomas, Brendan, Policing Public Order: Offensive Language & Behaviour, The Impact on Aboriginal People (1999) at 17 November 2003

Tobin, John, 'Finding Rights in the 'Wrongs' in our Law' (2005) 30(4) Alternative Law Journal 164

UNANIMA International, Congregation of Sisters of the Good Shepherd and International Presentation Association, 'Australian NGO Shadow Report on Trafficked Women in Australia' (2006)

United Nations Human Settlements Programme and Office of the High Commissioner for Human Rights, 'Housing Rights Legislation: Review of International and National Legal Instruments' (2002)

Various, 'Open Letter to Larrakia Nation and Marla Elders' (2004) (4) Longgrass Magazine 3

513 Victorian Bar Council, 'PILCH - Lawyers Doing it for Free in the Public Interest' (1999) 167 In Brief: The Fortnightly Newsletter of the Victorian Bar Council 1

Walker, Kristen, 'International Human Rights Law and Sexuality: Strategies for Domestic Litigation' (1998) 3 New York City Law Review 115

Walsh, Tamara, Overruling the underclass: Homelessness and the law in Queensland (PhD Thesis, Queensland University of Technology, 2005)

Walsh, Tamara and Klease, Carla, 'Down and Out? Homelessness and citizenship' (2004) 10(2) Australian Journal of Human Rights 77

Walsh, Tamara, '"Waltzing Matilda" One Hundred Years Later: Interactions Between Homeless Persons and the Criminal Justice System in Queensland' (2003) 25 Sydney Law Review 75

Walsh, Tamara, 'Defending Begging Offenders' (2004) 4(1) Queensland University of Technology Law & Justice Journal 58

Walsh, Tamara, 'From Park Bench to Court Bench: Developing a response to breaches of public space law by marginalised people' (Faculty of Law, Queensland University of Technology, 2004)

Walsh, Tamara, 'From Park Bench to Court Bench: Update January 2006' (2006)

Walsh, Tamara, 'Homelessness, Public Space and the Law in Queensland' (2006) 19(1) Parity 43

Walsh, Tamara, 'Housing as of Right' (2003) 2(June/July) Australian Association of Social Workers Queensland Branch Newsletter 11

Walsh, Tamara, 'Inequality before the law: Legal Issues Confronting People who are Homeless' (2004) 17(1) Parity 41

Walsh, Tamara, 'No Offence: The Enforcement of Offensive Language and Behaviour Offences in Queensland' (TC Beirne School of Law, University of Queensland, 2006)

Walsh, Tamara, 'No Vagrancy: An examination of the impact of the criminal justice system on people living in poverty in Queensland' (TC Beirne School of Law, University of Queensland, 2007)

Walsh, Tamara, 'Nuisance to the public or nuisance to the police' (2004) Proctor 24

Walsh, Tamara, 'Offensive language, offensive behaviour and public nuisance: Empirical and theoretical analyses' (2005) 24(1) University of Queensland Law Journal 123

Walsh, Tamara, 'Social Security or Social Exclusion? ' (2005) 18 (1) Parity 79

514

Walsh, Tamara, 'The Legal Needs of Homeless People in Queensland ' (2006) 19(2) Parity 5

Walsh, Tamara, 'The overruled underclass: The impact of the law on Queensland's homeless people' (2005) 28(1) University of New South Wales Law Journal 122

Walsh, Tamara, 'The Queensland Special Circumstances Court ' (2007) 16(4) JJA 223

Walsh, Tamara, 'Who is the 'Public' in Public Space? A Queensland Perspective on Poverty, Homelessness and Vagrancy' (2004) 29(2) Alternative Law Journal 81

Walsh, Tamara, 'Won't pay or can't pay? Exploring the use of fines as a sentencing alternative for public nuisance type offences in Queensland' (2005) 17(2) Current Issues in Criminal Justice 217

White, Robert and Alder, Christine (eds), The Police and Young People in Australia (1994)

Williams, George, A Charter of Rights for Australia (2007)

Williams, George, Human Rights under the Australian Constitution (2002)

Willimans, T, 'Private Gypsy Site Provision ' (ACERT 1997)

Winford, Stan, 'A New (Legal) Threat to Public Space: The Rise and Rise of the ASBO' (2006) 19(1) Parity 55

Winford, Stan, 'The Fitzroy Legal Service/Drug Outreach Lawyer Project' (2004) 17(1) Parity 64

Women's Rights Action Network Australia, 'Australian NGO Shadow Report on the Implementation of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)' (2005)

Womens Rights Action Network Australia, 'Mandatory Sentencing: Patterns of Gender and Racial Discrimination caused by the Northern Territory and Western Australia Mandatory Sentencing Legislation' (2000)

Women's Rights Action Network Australia, 'Retreating from the Full Realization of Economic, Social and Cultural Rights in Australia: A Gendered Analysis' (2000)

Yarrawonga mob, 'Forced Eviction at Yarrawonga' (2004) (4) Longgrass Magazine

Yates, Judith, Wulff, Maryann and Reynolds, Margaret, 'Changes in the supply of and need for low rent dwellings in the private rental market' (Australian Housing and Urban Research Institute, 2004)

515 Youth Affairs Council of Victoria Inc., 'Young People's Response to 'A good night for all: Options for Improving Safety and Amenity in Inner City Entertainment Precincts'' (2005)

Zifcak, Spencer, 'The New Anti-Internationalism: Australian and the United Nations Human Rights Treaty System' (The Australia Institute, 2003)

516 2 Case Law

Ahmedabad Municipal Corporation v Nawab Khan Gulab Khan & Ors AIR 1997 SC 152 Ain O Salish Kandro (ASK) & Ors v Government of Bangladesh & Ors, (Kallyanpur Bosti Case) 19 BLD (1999) 488 W.P. NO-7585/2003 Akdivar and Others v Turkey (1997) 23 EHRR 143 Al-Kateb v Godwin (2004) 208 ALR 124 Almitri Patel v Union of India AIR 2000 SC 1256 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Avon CC v Buscott [1988] 1 All ER 841

B v B (1997) 21 Fam LR 676 Bakhtiyari v Australia, Communication No 1069/2002, UN Doc CCPR/C/79/D/1069/2002 (2003) Beard v United Kingdom [2001] 33 EHRR 442 Blecic v Croatia [2004] ECHR 397 Brown v The Members of the Classification Review Board of the Office of Film and Literature (1997) 145 ALR 464 Buckle v New Zealand, Communication No 858/1999, UN Doc CCPR/C/70/D/858/1999 (2000) Buckley v United Kingdom (1997) 23 EHRR 101 Byahuranga v Denmark, Communication No 1222/2003, UN Doc CCPR/C/82/D/1222/2003 (2004)

Canepa v Canada, Communication No 558/1993, UN Doc CCPR/C/59/D/558/1993 (1997) Cannock Chase District Council v Kelly [1978] 1 WLR 1 CCSU v Minister for the Civil Service [1985] AC 374 Chapman v United Kingdom (2001) 33 EHRR 399 Chichester DC v First Secretary of State & Ors [2005] 1 WLR 279 (CA) Civ Div)) City of Cape Town v Rudolph & Ors (Unreported, High Court of South Africa, Cape of Good Hope Provisional Division, Selikowitz J, 6 January 2006) City of Cape Town v Various Occupiers of the Road Reserve of Appellant parallel to Sheffield Road in Phillipi (Unreported, High Court of South Africa Cape of Good Hope Provincial Division, Blignault and Erasmus JJ, 30 September 2003) City of Johannesburg v Rand Properties (Pty) Ltd & Ors 2007 (1) SA 78 (W) Clarke v Secretary of State for the Environment, Transport and the Regions and Tunbridge Wells BC [2001] EWHC 800 Admin Codona v United Kingdom (Unreported, European Court of Human Rights, Casadevall P, Bratza J, Bonello J, Pellonpaa J, Garlicki J, Borrego Borrego J, Mijovic J, O'Boyle SR, 7 February 2006) Coeriel v The Netherlands, Communication No 453/1991, UN Doc CCPR/C/57/1, 23- 35 (1994) Connors v United Kingdom [2004] ECHR 223 Coronel v Columbia, Communication No 778/1997, UN Doc CCPR/C/76/D/778/1997 (2002) Coster v United Kingdom [2001] ECHR 44

517 Cyprus v Turkey (2002) 35 EHRR 30

Dahanayake v Sri Lanka, Communication No 1331/400, UN Doc CCPR/C/87/D/1331/2004 (2006) Davis v Tonbridge [2004] EWCA Civ 194 De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Land and Housing [1999] 1 AC 69 Demades v Turkey [2003] ECHR 416 Diergaardt et al v Namibia, Communication No 760/1997, UN Doc CCPR/C/69/D/760/1997 Dietrich v R (1992) 177 CLR 292 Dodd and Ors v Hampshire County Council (Unreported, Court of Appeal (Civil Division), McCowan LJ, 20 December 1993) Dogan v Turkey (2005) 41 EHRR 15 Dudgeon v United Kingdom [1981] ECHR 5 Dumont de Chassart v. Italy, Communication No 1229/2003, UN Doc CCPR/C/87/D/1229/2003 Dzemajl et al v Yugoslavia, Communication No 161/2000, UN Doc CAT/C/29/ (21 November 2002)

E B v New Zealand, Communication No 1368/2005, UN Doc CCPR/C/89/D/1368/2005 (2007) Eatson v United Kingdom (Unreported, Application No 39664/98, European Court of Human Rights (Third Section), Admissibility Decision, 30 January 2001) El Dernawi v Libyan Arab Jamahirya, Communication No 1143/2002, UN Doc CCPR/C/90/D/1143/2002, (2007)

Federated Anti-Poverty Groups of BC v Vancouver (City) 2002 BCSC 105 Fei v Columbia, Communication No 514/1992, UN Doc CCPR/C/57/1 (1995) Foley v Padley (1984) 154 CLR 349 Francis Coralie Mullin v The Administrator, Union Territory of Delhi (1981) 68 All India Reporter SC 746

García v Colombia, Communication No 687/1996, UN Doc CCPR/C/71/D/687/1996 (2001) Gillow v United Kingdom (1989) 11 EHRR 335 Government of South Africa and Others v Grootboom 2001 (1) SA 46 Goyma v Moore [1999] 154 FLR 298

Harrow LBC v Qazi [2003] UKHL 43 Hopu and Bessert v France, Communication No 549/1993, UN Doc CCPR/C/60/D/549/1993/Rev 1 (1997) Huamán v Peru, Communication No 1153/2003, UN Doc CCPR/C/85/D/1153/2003 (2005) Hughie Smith (On Behalf of the Gypsy Council) v Maria Buckland [2007] EWCA Civ 1318 CA (Civ Div)

Inquest into the death of Mulrunji (Coroner's Court, Palm Island & Townsville, Acting State Coroner Clements, 27 September 2006)

518 Jones v City of Los Angeles (Unreported, United States Court of Appeals for the Ninth Circuit, 14 April 2006)

Kalam and Others v Bangladesh and Others 21 BLD (HCD) (2001) 446 Kartinyeri v The Commonwealth (1998) 152 ALR 540 Khatun v United Kingdom (1998) 26 EHRR CD 212 Kioa v West (1985) 159 CLR 550 Kone v Senegal, Communication No 386/1989, UN Doc CCPR/C/52/D/386/1989 (1994)

Lange v Australian Broadcasting Commission (1997) 189 CLR 520 Lee v United Kingdom [2001] ECHR 46 Leeds City Council v Price [2006] 2 WLR 570 Levy v Victoria (1997) 189 CLR 579 Lisa Smith, Mary Ellen Reilly, Julia Reilly v The Secretary of State for Trade and Industry, London Development Agency [2007] EWHC 1013 (Admin) QBD (Admin) Loper v New York City Police Department 1999 F 2d 699 (1993) 704 LP v Czech Republic, Communication No 946/2000, UN Doc CCPR/C/75/D/946/2000 (2002)

Mabo v Queensland [No 2] (1992) 175 CLR 1; 66 ALJR 408 Madafferi v Australia, Communication No 1011/2001, UN Doc CCPR/C/81/D/1011/2001 (2004) Malone v United Kingdom [1985] 7 EHRR 14 Marzari v Italy [1999] 28 EHRR CD 175 Mentes et al v Turkey (1998) 26 EHRR 595 Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 Monaco de Gallicchio v Argentina, Communication No 400/1990, UN Doc CCPR/C/OP/5, 47-51 (1995) Moreno Gomez v Spain (2005) 41 EHRR 40 (ECHR)

Newcrest Mining Ltd v Commonwealth (1997) 190 CLR 512 Niemietz v Germany (1992) 16 EHRR 97 Nulyarimma v Thompson [1999] FCA 1192

Olga Tellis v Bombay Municipality Corporation AIR (1986) SC 180 Oneryildiz v Turkey (48939/99) [2002] ECHR 491 (18 June 2002) O'Rourke v United Kingdom (App No 39022/97), Decision of 26 June 2001

Pinkney v Canada, Communication No 27/1977, UN Doc CCPR/C/14/D/27/1977 (1981) Police v Sayshouthinh (Unreported, Liverpool Local Court, Brydon W, 24 May 2002) Port Elizabeth Municipality v Various Occupiers 2004 (12) BCLR 1268 Porter v First Secretary of State and South Bucks DC [2004] UKHL 33 Pregelj v Manison [1987] NTSC 76

R (Fuller) v Chief Constable of the Dorset Constabulary [2002] 3 All ER 57 R (Maughan) v Leicester City Council [2004] EWHC 1429 R (on application of O'Brien and others) v Basildon District Council [2006] EWHC 1346

519 R (on the Application of James Casey) v Crawley Borough Council [2006] EWHC 301 (Admin) R v Avon County Council Ex parte Hills (1995) 27 HLR 411 R v Avon County Council Ex parte Valentine (Unreported, Court of Appeal, Dillon LJ, 12 April 1994 R v Brent LBC Ex parte McDonagh (1989) 21 HLR 494 R v Brighton and Hove Council Ex parte Marmont [1998] JPL 670 (QBD) R v Gloucester County Council Ex parte Dutton (1991) 24 HLR 246 R v Hampshire County Council Ex parte Dodd (Unreported, Queen's Bench Division (Crown Office List), Harrison J; 16 May1995) R v Hereford and Worcester CC Ex parte Smith (Unreported, Court of Appeal, Mann LJ, 7 April 1993) R v Hillingdon London Borough Council Ex parte Pulhofer [1986] AC 484 R v Kensington and Chelsea Royal London Borough Council, Ex parte Bayani (1990) 22 HLR 406 R v Kerrier District Council Ex parte Catherine Uzell (1996) JPL 837 R v Leeds City Council Ex parte Maloney (1997) 31 HLR 552 R v Lincolnshire Ex Parte Atkinson (1996) 8 Admin LR 529 R v London Borough of Hillingdon Ex parte McDonagh [1999] 1 PLR 22 R v Metropolitan Police Ex parte Small (Unreported, Crown Office List, Collins J, 27 August 1998) R v Secretary of State for the Environment Ex parte Ward (Unreported, Queen's Bench Division (Crown Office List), Pill J, 27 May 1994) R v Shayler [2003] 1 AC 247 R v The Forest of Dean District Council Ex parte Grenfell (Unreported, Queen's Bench Division (Crown Office List), MacPherson of Cluny J, 19 March 1996) R v The Mayor and Burgesses of the London Borough of Lambeth Ex parte Doris Esi- Atitoe (Unreported, Queen's Bench Division, Kennedy LJ, 13 June 1996) R v Wolverhampton Metropolitan Borough Council Ex parte Dunne (1997) 29 HLR 745 R (Margaret Price) v Carmarthenshire CC [2003] EWHC 42 Admin Re Coster and Another's Application (Unreported, Court of Appeal, Henry LJ, 6 May 1994) Ramsey v Australia, Case No 655/1995, Discontinued Residents of Bon Vista Mansions v Southern Metropolitan Local Council (2002) 6 BCLR 625 (High Court Witsatersrand Local Division) Robinson v California, 370 US 660 (1962) Rodriguez v Spain, Communication No 1213/2003, UN Doc CCPR/C/89/D/1213/2003 (2007)

S v United Kingdom (1986) 47 DR 274 Savigny v France, Communication No 1283/2004, UN Doc CCPR/C/85/D/1283/2004 (2005) Secretary of State for Education v Tameside MBC [1977] AC 1014 Selçuk and Asker v Turkey (1998) 26 EHRR 477 Shirin Aumeeruddy-Cziffra v Mauritius, Communication No 35/1978, UN Doc CCPR/C/12/D/35/1978 (1981) Shropshire County Council v Wynne (1997) 96 LGR 689

520 Simmering v Darwin City Council (2001) Human Rights and Equal Opportunity Commission, Reference Number 2012012FC:R, Complaint of Stella Simmering dated 6 December 2001 Simmons v First Secretary of State [2006] JPL 575 Smith v United Kingdom [2001] ECHR 45 Société Colas Est v France [2002] ECHR 421 South Cambridgeshire District Council v Dan Flynn [2006] EWHC 1320 Stankova v Slovakia (Unreported, European Court of Human Rights, Bratza P, Casadevall, Bonello, Traja, Pavlovschi, Sikuta and Jirvela JJ, and Early R, 9 October 2007) Stewart v Canada, Communication No 538/1993, UN Doc CCPR/C/58/D/538/1993 (1996) Sultanova et al v Uzbekistan, Communication No 915/2000, UN Doc CCPR/C/86/D/915/2000 Surrey Heath Borough Council v Rooney & Ors [2005] EWHC 1922 (QB)

Tanbridge District Council v Delaney and Ors [2000] 1 PLR 11 Tcholatch v Canada, Communication No 1052/2002 , UN Doc CCPR/C/89/D/1052/2002, (2007) Toonen v Australia, Communication No 488/1992, UN Doc CCPR/C/50/D/488/1992 (1994)

Van Hulst v Netherlands, Communication No 903/2000, UN Doc CCPR/C/82/D/903/2000 (2004)

Ward v Hillingdon LBC [2001] HRLR 40 [2001] EWHC Admin 91 QBD (Admin Ct) West Glamorgan County Council v Rafferty [1987] 1 WLR 457 Wiggins v United Kingdom (1978) 13 DR 40 Winata v. Australia, Communication No 930/2000, UN Doc CCPR/C/72/D/930/2000, (2001)

Young v Australia, Communication No 941/2000 (6 August 2003)

521

522 3 Legislation

Age Discrimination Act 2004 (Cth) Amendment of Darwin (Control of Public Place) By-laws 1988 Anti-Discrimination Act 1977 (NSW) Anti-Discrimination Act 1991 (Qld) Anti-Discrimination Act 1992 (NT) Anti-Discrimination Act 1998 (Tas) Anti-social Behaviour (Miscellaneous Amendments) Act 2006 (NT) Anti-social Behaviour (Miscellaneous Amendments) Act 2006 (NT) Anti-social Behaviour Act 2003 (UK) Australian Constitution

Bombay Municipal Corporation Act 1888 By-laws of the Municipality of Darwin 1959

Canadian Charter of Rights and Freedoms, The Constitution Act 1982, being Schedule B to the Canada Act, 1982 (UK) 1982, c 11 (the Charter), in force on 17 April 1982 Caravan Sites Act 1968 (UK) Caravan Sites and Control of Development Act 1960 (UK) Charter of Human Rights and Responsibilities Act 2006 (Vic) Child Welfare Act 1947 (WA) Children Act 1989 (UK) Children and Community Services Act 2004 (WA) Constitution of India 1950 Constitution of the Republic of South Africa 1996 Crimes Legislation Amendment (Police and Public Safety) Act 1998 (NSW) Criminal Code Act 1924 (Tas) Criminal Investigation Act 2006 (WA) Criminal Justice and Public Order Act 1994 (UK) Criminal Law Amendment (Simple Offence) Act 2004 (WA)

Darwin (Control of Public Places) By-laws 1987 Darwin City Council By-laws 1994 Disability Discrimination Act 1992 (Cth) Discrimination Act 1991 (ACT)

Equal Opportunity Act 1984 (SA) Equal Opportunity Act 1984 (WA) Equal Opportunity Act 1995 (Vic)

Fines and Penalties (Recovery) Act 2002 (NT)

Highways Act 1980 (UK) Housing Act 1996 (UK) Housing and Regeneration Bill 2007 (UK) Housing Law 1975 (Guernsey) Human Rights Act 1993 (NZ)

523 Human Rights Act 1998 (UK) Human Rights Act 2004 (ACT) Human Rights Amendment Bill 2007 (ACT) Human Rights and Equal Opportunity Commission Act 1986 (Cth)

Infringements Act 2006 (Vic) Intoxicated Persons Act 1979 (NSW)

Justice Legislation Amendment (Group Criminal Activities) Act 2006 (NT) Justices Act 1928 (NT)

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) Law Enforcement Legislation Amendment (Public Safety) Act 2005 (NSW) Legislation Act 2001 (ACT) Legislative Standards Act 1992 (Qld) Liquor Act 1978 (NT) Liquor Control Reform Act 1998 (Vic) Liquor Control Reform Amendment Bill 2007 (Vic) Local Government Act 1993 (NT)

Migration Act 1958 (Cth) Mobile Homes Act 1983 (UK)

Native Title Act 1993 (Cth) Northern Territory (Self-Government) Act 1978 (Cth)

Police Act 1892 (WA) Police Offences Act 1935 (Tas) Police Offences Amendment (Public Drunkenness) Act 2000 (Tas) Police Powers (Public Safety) Act 2005 (Tas) Police Powers and Responsibilities Act 2000 (Qld) Police Powers and Responsibilities and Other Legislation Amendment Act 2003 (Qld) Prevention of Illegal Eviction from and Unlawful Occupation of Land Act 1998 (South Africa) Privacy Act 1988 (Cth) Public Order and Anti-Social Conduct Act 2001 (NT)

Race Relations Act 1976 (UK) Racial Discrimination Act 1975 (Cth)

Sex Discrimination Act 1984 (Cth) Special Purposes Leases Act 1979 (NT) Special Purposes Leases Ordinance 1953 (NT) Subordinate Legislation Act 1989 (NSW) Summary Offences (Loitering) Amendment Bill 2003 (SA) Summary Offences Act 1923 (NT) Summary Offences Act 1953 (SA) Summary Offences Act 1966 (Vic) Summary Offences Act 1988 (NSW) Summary Offences Act 2001 (NT)

524 Summary Offences Act 2005 (Qld) Sydney Harbour Foreshore Authority Regulation 2006 (NSW) Sydney Harbour Foreshore Regulation 1999 (NSW)

Terrorism (Police Powers) Act 2005 (SA) Town and Country Planning Act 1990 (UK) Trespass Act 1987 (NT)

United States Constitution

Vagrancy (Repeal) and Summary Offences Amendment Act 2005 (VIC) Vagrancy Act 1966 (Vic) Vagrants, Gaming and Other Offences Act 1931 (Qld) Veteran's Entitlement Act 1986 (Cth)

525

526 3 Treaties and International Instruments

African Charter on Human and Peoples' Rights, adopted 27 June1981, OAU Doc CAB/LEG/67/3 rev 5, 21 ILM 58 (1982) (entered into force on 21 October 1986)

American Convention on Human Rights, opened for signature on 22 November1969, 1144 UNTS 123 (entered into force 18 July1978)

Charter of the United Nations, adopted 26 June 1945, entered into force 24 October 2045, as amended by GA Res 1991 (XVII) 17 December 1963, entered into force 31 August 1956 (557 UNTS 143); 2101 of 20 December 1965, entered into force 12 June 1968 (638 UNTS) 308); and 2847 (XXVI) of 20 December 1971, entered into force 24 September 1973 (892 UNTS 119)

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85, (entered into force 26 June 1987)

Convention on the Elimination of All Forms of Discrimination Against Women, opened for signature 18 December 1979, 1249 UNTS 1334 (entered into force 3 September 1981)

Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969)

Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, UN Doc A/61/611 (not yet in force)

Convention on the Rights of the Child, opened for signature 20 November 1989, 28 ILM 1448, (entered into force 2 September 1990)

European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221, ETS 5 (entered into force September 1953)

High Commissioner for the promotion and protection of all human rights, GA Res 48/141, UN Doc A/RES/48/141

Implementation of General Assembly Resolution 60/251 of 15 March 2006 Entitled "Human Rights Council", UN Doc A/HRC/1/L.4/Rev.1 (2006)

International Convention for the Protection of all Persons from Enforced Disappearance, opened for signature 6 February 2007, UN Doc A/61/488 (not yet in force)

International Convention on the Protection of the Rights of All Migrant Workers and of Their Families, opened for signature 18 December 1990, UN Doc A/45/49 (entered into force on 1 July 2003)

527 International Covenant on Civil and Political Rights, First Optional Protocol, opened for signature 16 December 1966, 999 UNTS 302 (entered into force 23 March 1976)

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)

International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 999 UNTS 3 (entered into force 3 January 1973)

Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, opened for signature 25 May 2000, UN Doc A/54/49, (entered into force 12 February 2002)

Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 10 December 1999, UN Doc A/54/49 (entered into force 22 December 2000)

Optional Protocol to the Convention on the Rights of Persons with Disabilities, opened for signature 30 March 2007, UN Doc Doc A/61/611 (not yet in force)

Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, opened for signature 25 May 2000, UN Doc A/54/49, entered into force 18 January 2002

Optional Protocol to the Covenant Against Torture and Cruel Inhuman or Degrading Treatment opened for signature 18 December 2002, GA Res A/RES/57/199

Optional Protocol to the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 302 (entered into force 23 March 1976)

Resolution 1993/77 on Forced Evictions, United Nations Commission on Human Rights, UN Doc E/CN 4/RES/1993/77 (1993)

Resolution 1997/6 on Forced Evictions, UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, UN Doc E/CN 4/SUB 2/RES/1997/6 (1997)

Resolution 1998/9 on Forced Evictions, UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, UN Doc E/CN.4/SUB.2/RES/1998/9 (1998)

Resolution 2004/28 on Prohibition of Forced Evictions, Commission on Human Rights, 66th sess, UN Doc E/CN 4/2004/L 11/Add 3 (2004)

Resolution on the Human Rights Council, GA Res 60/251, General Assembly, 60th sess, UN Doc A/RES/60/251 (2006)

United Nations Committee on Economic, Social and Cultural Rights, General Comment No 7: Forced Evictions, UN Doc E/1998/22 (1997)

528 United Nations Committee on Economic, Social and Cultural Rights, General Comment No 4: The Right to Adequate Housing, UN Doc E/CN4/1991/4 (1991)

United Nations Human Rights Committee, General Comment No 16: The right to Respect of Privacy, Family, Home and Correspondence and Protection of Honour and Reputation UN Doc HRI\GEN\1\Rev 1 at 21 (1988)

United Nations Human Rights Committee, General Comment No 31: Nature of the General Legal Obligations Imposed on States Parties to the Covenant, 80th Sess , UN Doc CCPR/C/21/Rev 1/Add 13 (2004)

Universal Declaration of Human Rights, GA Res 217A(III), UN Doc A/810, 71 (1948)

United Nations Declaration on the Rights of Indigenous Peoples, GA Res 61/295, UN GAOR, 61st sess, UN Doc A/RES/47/1 (2007)

Vienna Convention on the Law of Treaties (1969) ATS 1974 No 2

529

530 4 Other Sources

AAP, Aboriginal elders to outlaw humbug (2004) News Limited at 15 March 2004

ABC 7.30 Report, Australia headed for bottom of the human rights barrel (2000) at 20 July 2006

ABC 7.30 Report, Qld police face violent arrest claims (2006) at 17 February 2008

ABC News Online, Indigenous advocate criticises move-on powers (2007) Australian Broadcasting Commission at 11 May 2007

ABC News Online, Million-dollar plan targets Darwin's homeless (2008) at 20 February 2008

ABC News Online, Support for Port Augusta dry zone declaration (2005) Australian Broadcasting Commission at 3 May 2007

ABC News Online, Tough stance on anti-social behaviour defended (2007) Australian Broadcasting Commission at 11 May 2007

ABC News, Census proves housing crisis dire: ALP (2007) Australian Broadcasting Commission at 3 September 2007

ABC News, Counting begins in NT Election (2005) Australian Broadcasting Commission at 26 August 2007

ABC News, HIA predicts housing crisis to last years (2007) at 19 July 2007

ABC News, Housing Affordability: BBQ stopper and election issue (2007) Australian Broadcasting Commission at 3 September 2007

ABC News, Ministers urge action on 'housing crisis' (2007) Australian Bureau of Statistics at 3 September 2007

ABC Online, AM - Port Augusta dry zone strategy working (2007) Australian Broadcasting Commission at 3 May 2007

531

ABC Online, Brendan Nelson joins the Insiders (2007) at 16 December 2007

ABC Online, Darwin council considers showers for 'dirty itinerants' (2005) at 5 July 2007

ABC Online, Northern Territory CLP leader advocates 'zero tolerance' policy (2005) Australian Broadcasting Commission at 9 September 2007

ABC Online, Police to maintain Operation CitySafe (2007) Australian Broadcasting Commission at 9 September 2007

ABC Online, Rental shortage 'to worsen' (2006) at 27 December 2006

ABC Television, Message Stick, The Longgrasses (2005) at 26 December 2006

Aboriginal & Torres Strait Islander Commission, Zero Tolerance Policing: Law and Justice (2003) Aboriginal & Torres Strait Islander Commission at 17 November 2003

Aboriginal and Torres Strait Islander Legal Services (Queensland South), 'Submission to the CMC Review of Public Nuisance ' (2006)

Aboriginal and Torres Strait Islander Social Justice Commissioner Dr William Jonas AM, 'Evolving law and order policy - A rights perspective' (Paper presented at the ATSIC Forum The Royal Commission into Aboriginal Deaths in Custody — Unfinished Business, 2 November 2001)

Aboriginal Legal Service of Western Australia, Submission to Inquiry into the Criminal Investigation Bill 2005, 27 July 2006

ACT Shelter, 'Launch of the Housing is a Human Right Campaign, 11am Thursday 16th March, Canberra Museum and Gallery' (Press Release, 16 March 2006)

ACTCOSS, 'Comment on the Standing Committee on Legal Affairs' Inquiry into Police Powers and Crown Control' (Australian Capital Territory Council of Social Services, 2005)

Additional Information pursuant to Committee Decision: Australia, UN Doc CERD/C/347 (1999)

Albrechtsen, Janet, The nomadic ideal is killing the Indigenous (2006) The Australian at 22 December 2006

532

Anand, Hon Dr Justice A, 'The Domestic Application of International Human Rights Norms' (Paper presented at the Judicial Exchange on Access to Justice, Mumbai, India, 14-16 November 2003)

Application for Sleeping Out Permit, Marked No 1, Four Applicants, 9 June 1999

Application for Sleeping Out Permit, Marked No 2, Six Applicants, Undated

Application for Sleeping Out Permit, Marked No 3, Six Applicants, 9 June 1999

Application for Sleeping Out Permit, Marked No 4, Four Applicants, 9 June 1999

Attorney General of Western Australia, 'Human Rights Report Completed' (Press Release, 20 December 2007)

Australian Bureau of Statistics, '1996 Census: Homeless Enumeration Strategy (Evaluation of the Field Objective)' (Census Working Paper 91/1, Australian Bureau of Statistics, 1997)

Australian Bureau of Statistics, 4705.0 - Population Distribution, Indigenous Australians, 2001 (2002) Australian Bureau of Statistics at 3 June 2007

Australian Bureau of Statistics, A Brief History of Australia's National Statistical Office (2002) Australian Bureau of Statistics at 18 February 2004

Australian Bureau of Statistics, 'Australian Standard Offence Classification (ASOC) 1234.0' (1997) at 6 May 2007

Australian Federation of Homelessness Organisations, 'Submission to the Productivity Commission First Home Ownership Inquiry' (2003)

Australian Labor Party, '2007 National Platform Chapter 13: Respecting Human Rights and a Fair Go for All' (2007)

Australian Labour Party, ALP 2007 National Platform: Chapter 13: Respecting Human Rights and a Fair Go For All (2007) Australian Labour Party at 20 October 2007

Australian Minister for Foreign Affairs, Alexander Downer, Attorney-General, The Hon Daryl Williams AM QC MP, Minister for Immigration and Multicultural Affairs, The Hon Philip Ruddock MP, 'Improving the Effectiveness of United Nations Committees' (Press Release, 29 August 2000)

533 Baldry, Eileen and Maplestone, Peter, 'Homelessness/social problems & Criminal Justice' (Paper presented at the Beyond Punishment Public Seminar, Sydney, 19 June 2002)

Barker, Anne, Long grassers protest NT sleeping laws (2002) ABC News Online at 21 September 2002

Barker, Anne, NT Announces Crack Down on Gang Violence (2006) Australian Broadcast Commission at 13 October 2007

Carrick, Damien, Homelessness and the Law - Part 2 (2002) Australian Broadcasting Commission

Carter, Chris, 'Street beggars hitting businesses', Northern Territory News (Darwin), 11 April 2003, 2

Carusi, Livia, 'Rights Rhetoric to Rights Culture - Transforming the Dream into Reality' (Paper presented at the 3rd National Homelessness Conference 'Beyond the Divide', Brisbane, Queensland, 6 - 8 April 2003)

Centre on Housing Rights and Evictions, 'Civil and Political Rights in Kenyan Informal Settlements: Submission to Human Rights Committee' (2005)

Ceresa, Maria, 'Long grassers feel the hand of Stone', The Weekend Australian 30 - 31 May 1998, 6

Coates, Richard, Inquiry into Human Rights (Mandatory Sentencing of Juvenile Offenders) Bill 1999: Submission by the Northern Territory Legal Aid Commission (1999) Northern Territory Legal Aid Commission at 11 May 2007

Committee on the Elimination of Racial Discrimination, Decision 2(54) on Australia: Australia, UN Doc A/54/18, para 21(2) (1999)

Commonwealth Department of Family and Community Services, 'The Number of Homeless Falls, Says New Report' (Press Release, 24 December 2003)

Commonwealth of Australia and Australian Capital Territory, 'SAAP V Bilateral Agreement in Relation to the Supported Accommodation Assistance Program' (2006)

Commonwealth State Housing Agreement Bilateral Agreement between The Commonwealth of Australia and The Northern Territory 1999 - 2003, operative from 1 July 1999

Complaint Letter from Darwin Community Legal Service on behalf of Johnny Balaiya to The Anti-Discrimination Commissioner, 29 May 2002

534 Concluding observations of the Committee against Torture: Australia, UN Doc CAT A/47/44 (1992)

Concluding observations of the Committee on Economic, Social and Cultural Rights: Australia, UN Doc E/C12/1993/9 (1993)

Concluding observations of the Committee on Economic, Social and Cultural Rights: Australia, UN Doc E/C.12/1/Add.50 (2000)

Concluding observations of the Committee on Economic, Social and Cultural Rights: Dominican Republic, UN Doc E/C 12/1990 (1990)

Concluding observations of the Committee on the Elimination of Discrimination against Women: Australia, UN Doc CEDAW/A/43/38 (1988)

Concluding observations of the Committee on the Elimination of Discrimination against Women: Australia, UN Doc CEDAW/A/49/38 (1994)

Concluding observations of the Committee on the Elimination of Discrimination against Women: Australia, UN Doc CEDAW/A/50/38 (1995)

Concluding observations of the Committee on the Elimination of Discrimination against Women: Australia, UN Doc CEDAW/C/AUL/CO/5 (2006)

Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/C/304/Add.101 (2000)

Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc A/32/18 (1977)

Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/A/34/18 (1979)

Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/A/37/18 (1982)

Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/A/39/18 (1984)

Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/A/43/18 (1988)

Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/A/49/18 (1994)

Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/C/AUS/CO/14 (2005)

Concluding observations of the Committee on the Elimination of Racial Discrimination: Australia, UN Doc CERD/A/46/18 (1991)

535

Concluding observations of the Committee on the Rights of the Child: Australia, UN Doc CRC/A/53/41 (1998)

Concluding observations of the Committee on the Rights of the Child: Australia, UN Doc CRC/C/Add 268 (2005)

Concluding observations of the Human Rights Committee: Australia, UN Doc CCPR A/38/40 (1983)

Concluding observations of the Human Rights Committee: Australia, UN Doc CCPR A/43/40 (1988)

Concluding observations of the Human Rights Committee: Australia, UN Doc CCPR A/55/40 (2000)

Concluding Observations of the Human Rights Committee: Kenya, UN Doc CCPR/CO/83/KEN, (2005)

Darwin City Council Decision No 16\5318 (13/03/95)

Darwin City Council Decision No 17/1228 (25/02/97) (13/03/95)

Darwin City Council, '2000-2001 Annual Report' (Darwin City Council, 2001)

Darwin City Council, Council and Committee Meetings (2008) at 20 February 2008

Darwin City Council, Darwin City Council Website (2006) at 27 December 2006

Darwin City Council, Itinerants Policy - Adopted on 25 February 1997, Reviewed on 12 June 2007 (2007) at 4 September 2007

Darwin City Council, 'Letter from Tim Merrigan, Regulatory Services Supervisor, Darwin City Council to Darwin Community Legal Service, 21 June 1999' (1999)

Darwin City Council, Licences, Permits, Etc - Public Interest Policy - Adopted on 25 February 1997, Reviewed on 12 June 2007 (2007) Darwin City Council at 4 September 2007

Darwin City Council, 'Public Places Procedure Incorporating General By Law Work' (2007)

Darwin City Council, 'Regulatory Services Monthly Report for September 2003' (Report No 03C0409 PC:kl, Darwin City Council, 2003)

536

David, Elvin, 'Human Rights and Property Law. Towards a New Jurisprudence?' (Paper presented for the Blundell Memorial Lectures, June, 2006)

Department for Communities and Local Government, 'Gypsy and Traveller Accommodation Needs Assessments - Guidance' (2007)

Department for Communities and Local Government, 'Local authorities and Gypsies and Travellers: a guide to responsibilities and powers' (2007)

Department for Communities and Local Government, 'Planning for Gypsy and Traveller Caravan Sites Circular (ODPM 01/2006): Regulatory Impact Assessment', June 2006

Department for Communities and Local Government, 'Planning for Gypsy and Traveller Caravan Sites Circular (ODPM 01/2006)' (2006)

Department of the Attorney General, A WA Human Rights Act (2007) at 20 October 2007

Department of the Environment Circular 18/94: Gypsy Site Policy and Unauthorised Camping

Department of the Environment, Transport and the Regions and Home Office of the United Kingdom, 'Managing Unauthorised Camping: A Good Practice Guide' (1998)

Devereux, Annemarie, 'International Human Rights Law: It's Relevance to Australian Practice' (Paper presented at the NSW Young Lawyers Seminar, Sydney, 22 August 2002)

Dixon, David, 'Beyond Zero Tolerance' (Paper presented at the 'Mapping the Boundaries of Australia's Criminal Justice System' 3rd National Outlook Symposium on Crime in Australia, Canberra 22-23 March 1999)

Dyer, Paul, 'Go Home: Itinerants told by their own people', Northern Territory News (Darwin), 15 April 2003, 1

Eastman, Kate, 'International Human Rights Treaties and the Common Law' (Paper presented at the National Community Legal Centre Conference, Sydney, 9 September 1998)

Editorial, 'Drunks and politics', Northern Territory News (Darwin), 15 April 1997,

Editorial, 'Editorial', The Daily Telegraph 2005,

Editorial, 'Elders must act', Northern Territory News (Darwin), 5 March 2003, 12

Editorial, 'Where Can They Sleep?' Northern Territory News (Darwin), 26 March 1996,

537

Email from Bill Day to Author, 26 July 2002

Email from Bill Manallack, Coordinator of Adelaide Housing Legal Clinic to Author, 14 January 2008

Email from Bruce Porter, Director, Social Rights Advocacy Centre to the Author, 10 September 2007

Email from Chris Chamberlain, Associate Professor, RMIT University to Author, 7 October 2006

Email from Denis Nelthorpe to the Author, 21 October 2007

Email from Eric Sidoti to the Author, 8 December 2007

Email from James McDougall, Director, National Children's and Youth Law Centre to the Author, 10 September 2007

Email from Leilani Farha to the Author, June 2007

Email from Malcolm Langford, Senior Legal Officer, Centre on Housing Rights and Evictions to Author, 6 September 2006

Email from Maree Williamson, CSHA Section, Housing Support Branch, Commonwealth Department of Family and Community Services to the Author, 19 March 2004 (Number 1)

Email from Michael Carey, QPILC Homeless Persons' Legal Clinic to the Author, 22 August 2007

Email from Monique Hitter, Acting Director, Civil Law Division, Legal Aid Commission of New South Wales to the Author, 21 August 2007

Email from Phil Lynch to the Author, 20 August 2007

Email from Robin Banks, Director, Public Interest Advocacy Centre to the Author, 10 September 2007

Email from Toni Vine Bromley, Executive Officer, NT Shelter to the Author, 20 December 2006

English, Caitlin, 'Legal Services to Homeless People in the United States' (Paper presented at the Homelessness and the Law Forum, Melbourne, Victoria, 2000)

Evans, Simon, 'The Victorian Charter of Rights and Responsibilities and the ACT Human Rights Act: Four Key Differences and their Implications for Victoria' (Paper presented at the Australian Bills of Rights: The ACT and Beyond Conference, Australian National University, Canberra, 21 June 2006)

538

Facsimile from Jarry Kovarik, Office of the Minister for Health Services to Anti-Social Behaviour Sub Committee, 25 September 1995

Federal Minister for Housing, Tanya Pilbersek, 'Minister announces homelessness white paper steering group members' (Press Release, 13 February 2008)

Fernandes, Kenneth, 'Why Not Involve the Homeless? Housing Rights and Community Building' (Paper presented at the 3rd National Homelessness Conference 'Beyond the Divide', Brisbane, 6 - 8 April 2003)

Friends, Families and Travellers, Guide to the Law (2006) at 31 October 2006

Gilbert + Tobin Centre of Public Law, Homelessness Legal Rights Project Website (2008) University of New South Wales at 2 February 2008

Goldie, Cassandra, 'Legal Aid and Access to Justice in Australia' (Paper presented at the Role of Legal Aid to Promote Access to Justice for Marginalized in the Context of Human Rights, Hotel Sahid, Jakarta, Indonesia, 21 April 2006)

Goldie, Cassandra, Submission to the UN Special Rapporteur on Adequate Housing: Official Visit to Australia - August 2006 (2006 ) at 2 January 2007

Gypsy & Traveller Law Reform Coalition, Gypsy & Traveller Law Reform Coalition at 15 August 2006

Gypsy & Traveller Law Reform Coalition, 'The Human Rights Act and Gypsies and Travellers' (Undated)

Hanover Welfare Services, 'New research shows the public believe homeless people only have themselves to blame' (Press Release, 19 October 2006)

Homeless Persons' Legal Clinic et al, 'Homelessness and Human Rights in Australia: Submission to the Supported Accommodation Assistance Program (SAAP IV) National Evaluation' (2003)

Hughes, John, 'Homelessness & Crime: Community housing issues and the criminal justice system' (Paper presented at the Garma Festival 2001, Yirrkala, Northern Territory, 2001)

539 Human Rights and Equal Opportunity Commission, A statistical overview of Aboriginal and Torres Strait Islander peoples in Australia (2004) at 2 February 2004

Human Rights and Equal Opportunity Commission, 'Adelaide City Dry Area' (Press Release, 30 September 2002)

Human Rights and Equal Opportunity Commission, 'Allegations of Discrimination in Townsville' (Press Release, 1 May 2003)

Human Rights and Equal Opportunity Commission, 'Townsville Indigenous people at risk' (Press Release, 26 June 2003)

Incerti, Kate and Matthews, Lauren, 'Persons-Bricks-Homes: Partnerships to realising Housing as a Human Right' (Paper presented at the Australian Association of Social Workers National Conference 2003 'Cooperating for Social Justice', Canberra, Australian Capital Territory, 29 September 2003)

Interview with Chris Chamberlain, Associate Professor, RMIT University (Telephone Conversations, 19 November 2003)

Interview with Neil Dyer, Supervisor, Regulatory Services Section, Darwin City Council (Darwin, 31 October 2003)

Jenny Hardy, Deputy Director, Northern Territory Legal Aid Commission, 'Submission to Joint Committee of Public Accounts and Audits re: Indigenous Law and Justice Inquiry' (2004)

Jonas, William, 'The Royal Commission into Aboriginal Deaths in Custody - 12 Years Later' (Paper presented at the Indigenous Corrections Conference, Adelaide, South Australia, 17 October 2003)

Jonathan Harley, Cronulla: Six Weeks On (2006) 7.30 Report, Australian Broadcasting Commission at 26 January 2006

Karvelas, Patricia, Let Aborigines be nomads: Dodson (2006) at 22 December 2006

Kennedy, Adam and Robertson, Euan, '2001 Census: Housing' (Census Paper No. 03/02, Australian Bureau of Statistics, 2003)

Kriston Hilton, Coordinator, Homeless Persons Legal Clinic, and Representative of the National Association of Community Legal Centres Human Rights Council., Fifth session. 11 to 18 June 2007, Organizational meeting,19 to 22 June 2007 at the Palais des Nations in Geneva, Switzerland, Live Webcast, 12 June (2007) at 20 October 2007

540

Langford, Ben, Call for grog cops (2008) Northern Territory News at 28 January 2008

Langford, Malcolm and Plessis, Jean du, 'Dignity in the Rubble? Forced Evictions and Human Rights Law ' (Centre on Housing Rights and Evictions, 2005)

Leeder, Diana, 'Just for the record...' Northern Territory News (Darwin), 12 September 1996,

Legislative Assembly for the ACT, Hansard, 8 December 1999, 3998 (Mr Humphries, Leader of the Opposition)

Letter from Darwin Community Legal Service to Lord Mayor George Brown, 4 December 2001

Letter from Darwin Community Legal Service to Tim Merrigan, Regulatory Services Supervisor, Darwin City Council, 22 June 1999

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541 Liberal Party South Australia, Libs to Give Police Power to Move on Loiterers (2005) at 28 January 2006

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548

Wilson, Ashleigh, 'Labor to lock up habitual drunks', The Australian 2 June 2005, 6

549 JOHNNY BALAIYA’S TRUE STORY

C 1930 – 2008

My name is Johnny Balaiya. I am about 70 years of age. I was born at Yilan, near Ji- marda, I belong to Burarra clan. We come from the mouth of the Blyth River also known as Gu-panga, in Arnhem Land. When I was about 12 years of age, there was family fighting and so I went to the Mission at Milingimbi. I do not remember when that was. I walked to Milingimbi with two other boys, one boy was Burarra - the other one was Matai.

In Milingimbi, I remember seeing Japanese planes fly over and bombing. The Australian Army was there and they took black people [both Burrara and Matai] to go to war. I walked from Milingimbi then by canoe back to Blyth River and then back to Maningrida. I remember the Australian Army taking black people to war at Maningrida as well. I was too young to go. I was about 13 years old.

When I was at Maningrida, one of our family came around and told me about Darwin. He told me that he had just been to Darwin and that there was a big mob of tucker there, and shelter. A lot of people had been taken from all over Arnhem Land to Darwin by the Army for shelter. I took five or six family. We were all from different clan and we walked from Maningrida to Darwin where many of my relatives were already.

We swam across the East Alligator River. We could tell if crocodile came near by their heat. We walked all day for about a month to get to Darwin. I knew the way to go because the sun goes down near Darwin and that is the way. We went through Oenpelli and then near Jabiru and Pine Creek. It was a rough road. We stopped at Berrimah Reserve. It was in the bush and the Army was there. There were people from all over - Burarra, Matai, all walking to get there. I stayed there and then I went to Bag Tom Harris saw us boys, he was the camera man [projectionist] at the Star Cinema and asked us to work. He was like my father. He taught me English. I wanted to go to school and I went to school for about a week. The school was a missionary

551 school at Bagot for both Balanda and Black. But Tom Harris wanted me to work so he took me out of school to work. He was short of people to work at Bagot. We were cleaning and working at the cinema. There was a group of us and we did the cleaning. I was selling tickets.

My first job there in Darwin was working at the East Point Golf Course. We built it from bush, digging holes and cleaning up the trees. I lived in a house at the golf course, and Tom Harris looked after me. After I stopped for the day working at the golf course, I would go to sell tickets at the Star Cinema in the evening. Also, I used to work as a carpenter at Bagot, and build houses there. Some of those houses are still there. Tom Harris would bring movies to show at Bagot. He would come most nights. He has a son, young Tom Harris. He had two daughters Susan and Jill. I was learning English from Tom Harris and his kids. Those kids were teaching me English and they learn Burarra too.

After that, I worked on the rice in Humpty Doo. I lived at 16 Mile camp. I worked pulling the rice and driving the tractor. I also worked on the rice at Tortilla. I worked for Mr Hunter. I then went back to Bagot being a carpenter to build houses. A lot of Burarra were there and it was a Burarra camp. We had three or four houses at camp. I was in charge of the Burarra houses. There were lots of different clan there. Mr White was the first Government. Mr Moore was the second Government. We had sticks and bottles and stuff. Some government people were bad. Mr Moore was bad. He sent many Aboriginal people away because they were drinking. He went to kill King George. I saw King George, his wife and two kids when I was in Darwin. He came to see what Aboriginal people looked like.

King George wanted to meet the Aborigines, so after a while he came to Bagot to meet us. This was after the war. Then I settled down and worked as a carpenter, stayed at Bagot. I would look after family who came to Darwin, I told them where to go to get work. I was like an interpreter. I would translate about looking for a job. When people came from different country, desert country people too, I would look after them. I looked after all these people, their parents and grandparents. I taught other black people to do carpentry.

552 I left after a while, and went to work on the road. I started from Adelaide River, then Pine Creek, building the Stuart Highway. . This was for two or three years. I would sleep where we were working. We also built the airstrip at Fannie Bay. I can’t remember which year. I had my Burarra/Matai team, four or five boys. Some of my boys stayed in town and were working at different places. Jackie Marroonburra stayed working as a carpenter at Bagot. I would come back to look after them. I was like a supervisor.

I got a job for Molok driving the government boat from Darwin to Gu-panga. I would organise my people when they wanted to travel between Darwin and Gu-panga. Some people would go on the boat, with Molok to Gu-panga. Some of the old people didn’t want to go on the boat, so I walked with them from Gu-panga to Darwin. If people were sick, I would organise them to come on the boat to Darwin.

Then I went to Milingimbi and stayed there for a while. I had married family there. I didn’t work at Milingimbi. I went back and stayed for four years at Blyth River, Gu- panga, on the beach with my family. Then a few people started to move back to Darwin, I took off by foot with my family - about six boys - walking about a month to get to Darwin.

I have children Judy Hayes, Jill Cooper, Helen Mardarlidj, Michael [Gilbert] Humphrey, first daughter passed away. Judy has one son living [Dion Cooper] at Palmerston. Judy had two boys and three girls. Jill’s children are Justin Cooper, Edward Cooper, Dean Cooper, and William Cooper, who has passed away. Helen had two boys. I have about 10 great-grandchildren so far. My children were born at the old hospital that was near Mindil Beach.

When I left Gu-panga my wife and children stayed there. I left to go and get some work. I took about eight people with me and we walked. I was in my 30's, about 35. We got to Berrimah, because I knew where to take my family. They did not know about drinking. I knew about drinking from a big bottle, ‘Coolabah’. I told family not touch it. I said, ‘No, we don’t touch it.’ Family will hate you for that. I took family to Bagot and lived there. I thought it was alright to stay. It was OK at Berrimah, but I decided to go to Bagot when I got back, and everyone was happy. I had family at both places.

553 I had a job at Winnellie building a warehouse. There was loose iron and I had to patch it up a bit. I had three or four boys working. My old workmates told me about the job at Winnellie. Some of those boys were no good for working because they were drinking too much. I also went back working at the airstrip. I lived at Bagot for a couple of years and then I went back home on the boat. I went back because of family, but my wife wanted me to go back for the kids.

We had big meetings at Maningrida with Mr Hunter and Mr Sweeny. I was talking for the people to make the roads right through from Maningrida to Ramingining. Another outstation Ji-marda, other side of mouth of the Blyth River - I went there and worked there building the airstrip. I worked at different outstations. I went to Maningrida and worked on roads to get to different outstations. I went to Dum Dum outstations and worked there. I had to finish things off in Arnhem Land, so when all the roads were finished I come back here to Darwin. Because all the things that I learned in Darwin I used when I was working back at the communities, I had fresh ideas thinking about what could be done. But family didn’t want this to happen. I helped to build the houses. I fixed houses for Balanda [white people]. They asked me how I knew. I told them I learned this in Darwin.

Ji-bena was another outstation [about 20-30ks from Gu-panga]. I would go back to men's business to take care of things with my children. I lived at Bagot for a long time with my wife and kids, maybe five or six years. The cinema was a job first, then East Point. I was the boss and I would talk to the Balanda for other people and would speak for the others. I had my own work mates, they were family. I got about three or four people. Some have passed away and some live at Maningrida now – Jackie Marroonburra, Michael Walupirra are still alive. Raymond Walupirra has passed away. I used to organise jobs for my people, to organise them for the Balanda.

After Humpty Doo working on the rice I came back to Darwin and some bloke asked us to do fishing for him. I moved around a lot fishing different places and camping where we fished. From Tree Point, Shoal Bay, Lee Point and Kulaluk were places we stayed. We called all that place ‘Gullawu.’ We fished at East Arm to Elizabeth River. I know all that area, just like my own country. I moved a lot, camping all over and worked as well. I was also working and counting money for the Berrimah shop.

554 Most of my life I have lived in Darwin, this is my home. I have lived all over Darwin in many different camps. I did go back to Bagot about seven or eight years ago but there was too much drinking there. When I came back things were worst, everyone was drinking. I left. They were running amok. I didn’t want those things to happen. All hell broke lose. I camped at Lee Point but Balanda and some policemen came and told us to leave. There was an old lady there who was dying. I told them. ‘You have to take my mother to hospital,’ but she died there.

I stayed at Fish Camp for a while but there was too much arguing. Then I came out this way. That’s why I came here to Pipeline Camp. I want to be quiet. I have been at Pipeline camp for about the last four years. In about November 2000 I got evicted from that camp because the land was going to be used for private development. A Balanda person gave me a Trespass Notice. They did not use an interpreter. They told me I had to move.

The bulldozers came when I was there. They did not explain to me what was happening. One of the housing men, a tall guy, came up and told me I had to be moved because buildings were going to happen. I asked, ‘Where is my pick up?’ and I was told I was going to be moved. They gave me a lift with my family and my things to the other Pipeline. It was a government truck that brought me. The government man did not tell me what to do. They just brought me here. I stayed here because I don’t want to be with drinkers. I just want to keep away from trouble. I am now camping on land known as, ‘Balaiya Pipeline Camp.’

I am a senior Aboriginal man and am known by many family from many places, including Alice Springs, Tennant Creek people. My family know to find me where I now am. If I move a lot, my family will not find me. Burarra is my first language, Djinung is my mother’s language, I also speak some English but only when Balanda speak with me. I do not understand everything of what Balanda say when they talk to me, those hard words that I do not understand. I am a black Aboriginal man.

I have family all over - Ramingining, Maningrida, Milingimbi. I have family responsibility. There are many family members with whom I have responsibilities that I must meet. I have responsibilities for ceremonies. I know everything. I have

555 responsibility for young boys. They let me know what is happening at Gu-panga and I send word about what must be done. I need to be able to tell them stories.

I give a stable place for family to come and to be safe. I do not like drinkers to be in my place. If drinkers come, and make trouble I make them leave. I tell them to go. I don’t like nuisance people in my camp. My grandchildren come and I talk to them, I tell them stories about the past. I have many things that I have talked about with my grandchildren whenever they come. I tell them family stories to make them understand about Darwin, not to drink, and I have seen what not to do.

I am tired. I am tired of being moved by Balanda from place to place. I am tired of being told by Balanda that they will get me a house, and a place to stay and nothing happens. I get sick. Sometimes health workers come from Danila Dilba and check up on me, I get shaky and tired sometimes. I do not like to walk long distances. I have to use a puffer sometimes to help me breathe, when I get short wind. I have cataracts, I'm worrying about. I have eye doctor at Royal Darwin Hospital. I get money from Centrelink.

I do not have any land. My things include an old tent, two mattresses and cooking things. I live in a caravan which is owned by Darwin Area Housing Association. I have a keycard. I have three dollars in the bank. I hold money for my family so they don’t drink it. I need a place to live and be secure and which is right for me to live as a black Aboriginal man. I need a place that lets me live in the way of my culture. I need a place where I can sit quietly. I want to stay in this place until I die.

I need a place where my family can sit down quietly and look after me, and I can look after them. I do not like people making a lot of noise, making the radio too loud and making trouble in my camp. This is not my way. This is Balanda way. I can’t go to 15 Mile, no, no, too much drinking and fighting. There is like Bagot or One Mile Dam. I don’t want family to come when drinking.

I need a shelter with a roof to stop the rain, and some walls to stop the wind. I need a bigger place, lounge room for families to come with a big veranda for the breeze to sit outside during the dry season. I need the shelter to be raised a bit from the ground for when the rain comes so that I can stay dry. I need a fence to stop people from coming

556 who are not welcome in my camp. I need a big fence to stop people coming, and to protect my dogs from going to places where they are not allowed to go. I need to lock the house to stop drinkers from taking things. I need clean water for drinking and cooking, for washing hands and staying clean. I have always wanted tap water to use to have a shower and a bath. I need electricity for lights, my radio, TV, and for cooking. During the Wet Season the trees are too wet to make a fire, to make food.

I need a place which is right for me welcoming family to come and stay with me for a while. I have usually about four or five people who need to be able to stay with me most of the time. I also need a place where more people can come to stay for shorter times. Young family people stay with me too I need a place which allows for families come to visit me, sit down for a while, make my tea, collect fire wood, and look after me. I will not let them stay if they are drunk and fight. I tell them to go. The good family can stay and the bad ones can go. I let people stay when they are tired and need a place to rest or when they are visiting from many places.

I need to stay around this place where I have been a long time. I am an old man, I cannot keep moving around anymore. Many people know this is where I am. If I move a long way, people will not find me. I will not be able to honour my family responsibilities. I need a place where the rubbish can be taken away. I want to tidy up my place but I am an old man. I need help for the rubbish to be taken away. I need a place where I can keep the grass low. When the wet comes, the snakes come - the children are not safe because of the snakes. I need to be able to see who is coming.

I do not want to live in a unit like Kurringal. I do not want a unit because I am a black man and I do not live like that. I feel comfortable living out here, a space of my own. If I live in a unit like that, I know that I will be moved out within a month. There will be too much humbug with people coming from all over town who are drunk and who will not go away. I know there will be trouble and I do not want trouble. I will not be able to welcome family who come to stay with me because it will be too small. I will have too much worry trying to look after the place.

Where I am now, without shelter, I get wet many times, and get sick. I do not have electricity. If I get wet, I get cold. Where I stay, I can be moved on at anytime. This makes me worry. I am worried about what's happening. It's too dark. I don’t have a

557 telephone. If I had a phone, I could call the police when there is trouble. If there is trouble, I have to walk to the police to get help.

Where I am, I am told I cannot get help with water from the Aboriginal Development Foundation because I stay on Crown land. I use the pipeline water. I have to turn it back on to get water. Now pink signs are up, and I think that I will be moved on again. I do not know where I can go.1529

1529 Statement taken by this author at Pipeline Camp in Palmerston in the Northern Territory in 2001, in preparation for legal proceedings.

558