Offences Related To Homelessness (Tas)

Homelessness is a rising issue in Tasmania. Although homelessness is no longer a criminal offence in Tasmania, people without housing continue to be disproportionately involved in the criminal justice system. For instance, charges that relate to the use of public space, such as trespass and public nuisance, are more commonly laid against homeless people. At the same time, homeless people are also more vulnerable and liable to be victims of personal violence offences and sexual offences. This article explains the impact of the criminal justice system in Tasmania on homeless people and their engagement with law enforcement.

Categories Of Homelessness In Tasmania

Homelessness can be divided into three broad categories: primary, secondary and tertiary. “Primary” homelessness means that the person has no conventional accommodation because they are sleeping rough on the streets or in improvised dwellings, such as tents. “Secondary” homelessness is experienced by people who frequently move between temporary shelters, including refuges and couch surfing. “Tertiary” homelessness occurs when someone stays in accommodation that does not meet minimum community standards for permanent housing, such as temporary caravan parks.

Homelessness In Tasmania

People become homeless for a variety of reasons, including poverty, poor mental health, domestic violence and substance abuse issues. Until the early twentieth century, Tasmania had vagrancy laws that made it unlawful to have no visible means of support. This offence was punishable by a term of imprisonment. Parents without a visible means of support could have their children committed to the state under child welfare legislation.

There are laws that expressly target the activities of many homeless people. For instance, a homeless person can be charged with offences such as loitering, sleeping in public places or begging. Because a homeless person may have nowhere else to go, the very act of being without a safe and secure place to live can constitute a criminal act. The police often do not enforce these laws in recognition of the lack of other options available to homeless people. However, sometimes law enforcement undertakes short term ‘crackdowns’ that particularly focus on prosecuting these offences. This is often prompted by a mandate to ‘clean up the streets’ before an event or department review.

Trespassing

It is an offence under the Police Offences Act 1935 for someone to trespass onto another person’s property. A homeless person can easily fall foul of this provision while sleeping near a private dwelling or in an abandoned building. A breach of this offence is liable for a maximum of five penalty units or six months imprisonment.

In 2019, the police charged Launceston homeless man Harry Kourakas with trespassing after he was caught ‘dumpster-diving’. In 2020, the Magistrates Court heard his case and fined him $250. This conviction has prompted calls for changes to how the criminal justice system treats homeless people. One suggestion is to create a specialist homelessness court, as the traditional courts have little flexibility to take special circumstances into account. Specialist courts can reduce re-offending rates and decrease the incidence of incarceration.

Other Laws

There are several other laws that disproportionately impact homeless people, such as laws that prohibit drinking in public and public urination. While these laws do not directly target the homeless, they have little choice but to carry out these private activities in a public space. Being constantly visible in public places means that people experiencing homelessness have an increased risk of committing these offences.

The police often enforce laws differently when it comes to homeless people. The attitude of law enforcement officers to the homeless, and their increased visibility means they are more likely to be charged with public drunkenness, jaywalking and public transport offences. The police are particularly more inclined to enforce ‘stop and search’ powers on the homeless.

Sentencing and Bail

The homeless are disproportionately issued with fines and tickets, and community correction and ‘anti-social behaviour’ orders. When monetary tickets are issued, it is likely to only increase the homeless person’s contact with the criminal justice system as they are unlikely to have the funds to pay the fine.

In general, a homeless person has greater difficulty navigating the criminal justice system and struggles to comply with sentencing requirements. When a person charged with a criminal offence applies for bail, they must provide the court with a residential address where they would reside while on bail. The court usually grants bail on the condition that the accused reside at a particular address, often with a curfew. A homeless person may have difficulty obtaining bail because they lack a secure residential address.

The criminal law team at Go To Court can answer any further questions on homelessness and the criminal justice system in Tasmania. Please contact the team or call 1300 636 846 for legal advice on this or any other matter.

Author

Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first-class honours from the University of Tasmania, a Bachelor of Laws with first-class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade of working in higher education, Nicola joined Armstrong Legal in 2020.
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