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). …………………………………………………………… ……………………………………..……………… ……….……………………...…….… Signature Witness Date The University recognises that there may be exceptional circumstances requiring restrictions on copying or conditions on use. Requests for restriction for a period of up to 2 years must be made in writing. Requests for a longer period of restriction may be considered in exceptional circumstances and require the approval of the Dean of Graduate Research. FOR OFFICE USE ONLY Date of completion of requirements for Award: THIS SHEET IS TO BE GLUED TO THE INSIDE FRONT COVER OF THE THESIS ii TABLE OF CONTENTS Originality Statement iv Copyright Statement v 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 i 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? ii 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 iii 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.’ Signed: …………………………………….. Date: ………………………………………. iv COPYRIGHT STATEMENT 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. Signed ……………………………………………........................... Date ……………………………………………........................... 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. Signed ……………………………………………........................... Date ……………………………………………........................... v 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.