Submission to City of Melbourne regarding public camping in the CBD

The City of Melbourne Councillors will tonight be asked to vote on a proposed by-law change that would ban any type of public camping in the central business district (CBD) and also make it illegal for people to leave any item unattended in public.

We provided a submission to the City of Melbourne earlier today, strongly advocating against the proposed by-law change.

Submission

This submission is made on behalf of the Fitzroy Legal Service. We have been operating to assist the community through free or low cost/legally-aided legal services for over forty years. We have extensive longitudinal experience providing legal services to the urban poor involving thousands of persons affected by the following circumstances:

  • Homelessness
  • Mental health
  • Alcohol or drug dependence
  • Family violence
  • Trauma related to childhood violence
  • Insecure and/or unsafe tenancy

These circumstances are frequently if not universally interconnected.

Preliminary matters

Criminal laws in the Summary Offences Act 1956 are already relied upon to prosecute the offence of beg alms. Aggressive begging may be covered by other serious criminal offences such as assault. Criminal laws may also be used where obstruction of a road or pathway in a legal sense (that is, preventing use and movement of pedestrian or other traffic).

There is no evidence base to our knowledge that indicates that risk to the public in terms of violence is concentrated in the homeless community. We suggest that evidence if sought from Victoria Police will not bear this out.

It is a criminal offence to be in possession of drugs or to use drugs.

Existing by-laws are already relied upon to remove ‘structures’ that provide shelter from rain and the elements and confiscate these items. Councillors will recall on the coldest day of winter in 2016 such makeshift shelters were removed from Enterprise Park where rough sleepers had congregated.

Where infringements are imposed on homeless people, an exemption may be sought on the following grounds – homelessness, mental health, drug dependence. The use of court time, legal services, and police resources in prosecuting and reviewing these infringements is substantial.

Safety issues for people sleeping rough

It is our experience, and we would expect uncontroversial, that persons without secure housing are exposed to violence threats and intimidation. The CBD has CCTV in operation and is well lit, which permits for higher levels of safety for people sleeping rough. This is relevant to all homeless people, but we reinforce its importance in relation to women, young people, many of whom are or have been wards of the State, and the elderly. In our work with homeless community in Melbourne City to enable submissions to the Royal Commission into Family Violence, all persons interviewed connected the experience of family violence to homelessness.

It is entirely disingenuous to refer to the experience of homeless as ‘camping’. The removal of blankets and bedding from persons experiencing homelessness, and the imposition of laws that in any way further traumatise and reinforce that the lives of those experiencing homelessness are not worthy of preservation and dignity should be opposed strongly as a matter of principle. For many persons experiencing homelessness, sleeping in the day time is considered safer than sleeping in the night time.

The discouragement of the spirit of charity is also a breach of the rights of the people of Melbourne who seek to show compassion and care, as opposed to judgment towards those experiencing psychological, emotional and financial hardship. The increase in numbers of persons sleeping rough is symptomatic not of a moral failure of those affected, but of other issues including the following:

  • Lack of safety amenity and security in transitional housing
  • Lack of long term affordable housing
  • Severe long term psychological damage caused by family violence
  • Barriers to housing for those with psychiatric illness
  • Waiting lists for rehabilitation services

We could provide many case studies, but within the limitations of time present one only.

X is a young homeless woman who was assisted by us in partnership with Launch Housing. X was placed in the Gatwick and paid the rent to do so. Within one to two weeks her only asset, being a car gifted to her, had been stolen, used to commit crimes, impounded by police, and she was in fear for her life. X has returned to homelessness. X has experienced multiple sexual assaults, rape, violence and theft as a result of her inability to access stable accommodation as she is a recipient of benefits and does not have a formal employment history.

Right to life

Section 9 of the Charter of Human Rights and Responsibilities protects the ‘right to life’. European jurisprudence imposes a positive obligation to protect life, or take steps to do so. It remains an open question as to how the right to life operates in Victoria. However, it is relevant to consider whether a positive obligation to protect should inform public authorities in decision making and allocation of resources. This is certainly the case for the population generally, and we would contend the drug using population should not be excluded from that commitment.

The Judicial College Charter of Human Rights Bench Book states:

If the positive obligation exists, it is likely based on the requirement in s 38 that public authorities must give proper consideration to a Charter right when making a decision. This may require public authorities, such as Victoria Police, to have regard to the right to life in their actions and decision-making. This, in turn, may imply a positive obligation to safeguard the lives of people within Victoria.

Recommendation

We strongly recommend that changes to by-laws are not endorsed. We strongly recommend a review of the actual options available in terms of housing are explored by Councillors so that an informed personal understanding of the circumstances, experiences, conditions and options available to homeless people currently residing in the City of Melbourne’s streets are understood.

We note that it is our expectation that the CEO Sleep Out will be covered by the same laws as those the Council seeks to impose on the homeless community of Melbourne. No blankets, no bedding.

We request humbly that as a matter of conscience Councillors consider their personal responsibility in the position of power to the most vulnerable residents of Victoria.

Meghan Fitzgerald
Lawyer/Manager Social Action Law Reform & Policy