ࡱ> FHCDEg kbjbjVV r<r<K$""""\~"uIbbbbb111HHHHHHH$KMVI19.j111Ibb/I'>'>'>1bbH'>1H'>'>G&HbC\8fHHEI0uIHN=$N(HNH811'>11111II'>111uI1111N111111111 : CHAPTER 2 GOVERNMENT RESPONSES TO YOUTH HOMELESSNESS No person...shall wander about and lodge in any barn, outhouse or shed, or in any deserted or unoccupied building, or in the open air, not having any visible means of subsistence, unless he shall give a good account of himself. (Tasmanian Police Offences Act, Section 8.) INTRODUCTION 2.1 Until the 1970s, assistance for the homeless was primarily provided by private charitable organisations without government funding. The vast majority of homeless people were older single men. The youth refuge movement is of comparatively recent origin. A decade ago crisis accommodation in Sydney was generally the province of hostels, mostly operated by Church or other charitable agencies...It became clear, however, that this style of accommodation was unacceptable to the numbers of inner city homeless youth...' The Commonwealth Government passed the Homeless Persons' Assistance Act in 1974 with the intention of subsidising the construction and/or running of temporary accommodation centres for the homeless. These centres were to be established by welfare organisations, community-based organisations and local government authorities. 2.2 During the late 1970s welfare agencies noticed a marked increase in the numbers of homeless young people and children, male and female, seeking assistance. At the 1978 Conference of Welfare Ministers, the State Ministers urged the Commonwealth Government to provide funding to assist in meeting the increasing demand for emergency accommodation for homeless adolescents. 2.3 At that time, it was generally perceived that two major changes in Australian society were responsible for the increase in homelessness among young people. One was the changing nature of the Australian family. For example, the Senate Standing Committee on Social Welfare noted: The family unit is undergoing various changes. The structure of the family is altering, the family is becoming more mobile, values are changing and greater social pressures are having to be home.' The Standing Committee cited the following 'dramatic changes to the family' which occurred during the 1970s: a substantial decline in formal marriages; a substantial increase in divorces; an increase in remarriages involving at least one divorced partner; a substantial increase in sole parent families as a proportion of total families; an increasing number of mothers entering the workforce; a growing tendency for young people to leave home to establish themselves independently prior to marriage; and a decline in the extended family network and increased isolation of the nuclear family.' 2:4 The Standing Committee also identified the pressures of an overwhelmingly materialistic society on families and young people as factors contributing to family breakdown and even, for young people, homelessness. A very high percentage of our homeless youth are coming from broken families or families undergoing crisis.' 9 2.5 The second major change causing youth homelessness to increase dramatically during the 1970s was economic recession. The Standing Committee perceived the problem as follows: Traditionally it has been accepted that parents will support their children both financially and emotionally throughout their school years and until such time as they become employed and independent. Most young people make the transfer to independence with solid family support and little recourse to outside assistance. With high levels of unemployment and inflation and, more particularly, the steady rise in the average duration of unemployment, more and more families are finding it increasingly difficult to assist their children financially beyond school years.' 2.6 Not only was the transition to independence occurring earlier, and because of a failure of family support, but the independent young person also faced economic crisis and was often without the mewls to establish a stable independent living situation. Youth unemployment increased from 3.7% in 1971 to 20.3% in 1987. While 16 and 17-year-olds were eligible for the Federal Unemployment Benefit, the unemployment rate was considerably lower than for adult unemployed.' Under 18-year-olds also received reduced rates of Sickness and Special Benefits.' NATIONAL STUDIES AND PROGRAMS: BACKGROUND Study Into Homelessness and Inadequate Housing: 1984-85 2.7 In August 1985 the Commonwealth Department of Housing and Construction published a report, Study into Homelessness and Inadequate Housing, commissioned in April 1984 from Coopers and Lybrand W.D.Scott, consultants. The consultants were asked to address: the causes, incidence and effects of homelessness and inadequate housing in Australia; the characteristics, preferences and needs of those who die homeless or inadequately housed; and the major deficiencies in the supply of appropriate accommodation to those in need of assistance,9 2.8 The consultants identified the key issues in youth homelessness as `low incomes and associated gaps in housing services'.' The major recommendation of the consultants, across all homeles;s and vulnerable groups, was that: Government should rationalise and make more generous the income support available to low income people, especially in relation to housing costs... If income maintenance is increased, tenants will have added ability to pay rent and this will facilitate expansion by both State housing authorities and private rental suppliers. This solution is to be preferred for several reasons: it fosters the efficient use of national housing stock; it reverses the distortion of resources away from the needs of low income groups; it enables low income groups to make choices rather than respond only to the most heavily subsidised supplier; its real costs will be lower although its budgetary costs could be higher." Youth Services Scheme 2.9 In response to the increase in youth homelessness, the Commonwealth Government established the Youth Services Scheme for a pilot period of three years from 1 July 1979. Federal funds of $3 million over that period were to be matched by the States and Territories. Over the period, a total of just over $5.5 million was allocated to the Scheme. The Scheme sought to provide short-term accommodation to young people in need of emergency shelter and support services to assist them to move into stable living situations. This objective was to be achieved: by providing beds for temporary accommodation either in specific purpose facilities, boarding arrangements in private homes or by other means as approved; by employing support and counselling personnel; and by providing material assistance in the form of loans, subsidies or guarantees to assist young people to obtain long-term accommodation. Youth homelessness was basically perceived as a temporary crisis. 10 2.10 By June 1982 there were 75 agencies funded under the Youth Services Scheme. There were 52 youth refuges throughout Australia and 23 other services. Senate Standing Committee on Social Welfare: Report on Homeless Youth 2.11 In August 1982 the Senate Standing Committee on Social Welfare published its Report on Homeless Youth.' The Standing Committee was critical of the focus of the Youth Services Scheme on youth refuges and stated that 'the most effective response to this problem is to provide medium and long term accommodation' which would eliminate much of the demand for refuges. Nevertheless, the Standing Committee recommended, the system of refuges should be retained but rationalised to ensure that they were located in areas of demand." 2.12 The Standing Committee was also critical of the levels of income support for homeless young people. The junior Unemployment Benefit in 1982 represented about 12% of average weekly earnings, causing 'serious hardships for other unemployed youth, not just those who are homeless'. The Standing Committee recommended that 'an allowance equivalent to the difference between the over 18 years of age unemployment benefit rate and the junior unemployment benefit rate should be made available to...wiemployed youth under 18 years of age' including: those who have had to establish themselves, for one reason or another, away from the family or statutory home; those whose family's financial circumstances are such that the additional benefit would enable the family to remain together as a unit rather than the young person being forced into possible homelessness.'5 2.13 The Standing Committee also considered the issue of youth access to public sector housing. ...homele,,ss youth are an integral part of our community and their rights to public housing should be recognised. However, the needs of one group should always be seen in the context of the needs of all other groups...it is accepted that low income families should receive preference over homeless youth when it comes to the allocation of low cost public housing.I6 Evaluation of the Youth Services Scheme 2.14 Also in 1982, the Youth Services Scheme was evaluated by a National Committee consisting of representatives from: the Department of Social Security, Office of Child Care; the Department of Employment and Industrial Relations, Office of Youth Affairs; the Department of Community Welfare Services (Victoria); and the Department of Youth and Community Services (New South Wales). The Committee's Report, One Step Forward, was published early in 1983.'' 2.15 The evaluation revealed that in most States approximately 60% of requests for accommodation were not met. The figure in Queensland, the Northern Territory and the A.C.T. was under 30%2' However, the services were often successful in reuniting young people with their families. Following an overview of the services provided under the Scheme and a profile of the young clients of those services, the Committee concluded that there remained unmet 'a pressing need for provision of services which will give on-going support to assist the youth and the family to sustain the reunion; and also, there is a need for on-going support to youth who go on to independent situations to help them to sustain those situations'.'9 2.16 Thus the Committee realised that 'the provision of emergency accommodation is a necessary first step towards the resolution of the homeless situation, but it is only one step forward. The funding of additional facilities and other types of assistance is also needed to complete the process of establishing homeless youth in stable living situations'." It is most disturbing to this Inquiry that we are making the same observation more than five years later. In the intervening period the situation has become urgent. Indeed, for many homeless children and young people it has become desperate. Ministerial Review 2.17 The Youth Services Scheme pilot program was extended for a further 12 months during which time the Departments of Social Security and Education and Youth Affairs conducted a further review of crisis and youth accommodation. The recommendations of this review focused on the administration of the Scheme, finding that 'there is no logical basis for current arrangements, where some programs are administered and funded by the Commonwealth and others administered and cost shared by States' .2 It was decided, therefore, to shift the administration of the Scheme to the States within agreed guidelines, with co-ordination to be effected by Commonwealth-State committees. Funding was still to be shared between the States and the Commonwealth. FEDERAL-STATE ACCOMMODATION PROGRAM Supported Accommodation Assistance Program 2.18 A second change decided upon in late in 1983 was to bring all Commonwealth crisis accom- modation programs together under a Supported Accommodation Assistance Act, which was passed by the Commonwealth Parliament in 1985.22 The Youth Supported Accommodation Program (YSAP) was thereafter brought under the umbrella of the Supported Accommodation Assistance Program (SAAP) along with the General Supported Accommodation Program (GSAP) and the Women's Emergency Services Program (WESP). 2.19 SAAP was introduced in all States on 1 January 1985. The YSAP sub-program was designed to provide services for: ...persons of not less than 12 years of age nor more than 25 years of age, and their dependants who are homeless as a result of crisis and who need support to move towards more appropriate accommodation, including independent living where possible and appropriate." - 2.20 SAAP is funded by the Federal and State Governments, with the greater proportion of funding coming from the Commonwea1th.24 Minimum Commonwealth contributions in each full year of SAAP were allocated as follows. 2.21 The Commonwealth could allocate additional funds if it chose, a' and in fact did increase funding substantially over the period of the Program. The total was to be distributed among the three sub-programs as determined in consultation with each State.26 2.22 The States agreed to contribute the following minimum amounts. Funding for the Youth Supported Accommodation Program increased from $14.5 million in 1984-85 to $21.7 million in 1986-87. 2.23 SAAP provides recurrent funding assistance, to cover wages and administration costs, to organisations (primarily community-based organisations and some local government authorities) to provide supported accommodation services including refuges, hostels and half-way houses. Organisations may also receive funding for related services including counselling and advocacy services, drop-in or day centres, meal services and child care services. SAAP does not provide funds for the construction, purchase or improvement of buildings. Such capital funds are available through the Crisis Accommodation Program (CAP) (see Chapter 16, Commonwealth-State Housing Agreement). Total expenditure of $40.79 million over the three years 1984-85 to 1986-87 went to purchasing or improving SAAP services. Almost one-third of this sum, $12.25 million, was expended on YSAP services." 2.24 By 1987 there were 718 SAAP-funded services operating 1,139 outlets across Australia. The vast majority of these services provided accommodation (either short-term or crisis shelters, medium or longer-term shelters or community placement schemes) with 8,127 beds in 795 accommodation outlets and an additional 255 beds attached to 221 non-accommodation outlets and to 34 outlets whose type was unknown. Under YSAP there were 1,525 beds in 232 accommodation outlets during 1986." Non-accommodation SAAP services included: detached housing support workers, regional co-ordinators, day and drop-in centres, rape crisis centres, information and referral services." YSAP services in 1986-87 were located as follows.  2.25 It is clear that SAAP in general, and YSAP in particular, have continued to focus on the provision of crisis or refuge accommodation. This was borne out by the evidence to this Inquiry (see Chapter 15, Youth Supported Accommodation Program). It is clear that the earlier calls for greatly increased medium to long-term supported and unsupported accommodation services and for support to reuniting families have gone largely unheeded. SAAP REVIEW 2.26 The five-year SAAP Agreement is due to terminate on 30 June 1989. An evaluation of the Program was undertaken during 1987 by a Review Team which reported in January 1988.'' The Review asserted that its recommendations for the future of SAAP were made in the context of a worsening situation for the homeless: 'structural changes in society likely to lead to homelessness have escalated'." While considerable improvements have been made in income security arrangements for families, people reliant on pensions and benefits are still likely to face considerable hardship, particularly in their search for affordable housing. Although the expenditure on public housing has increased significantly during the last 5 years, there are still major shortfalls, exacerbated by many years of limited spending on public housing. The high cost to State Housing Authorities of rent rebates, which limits the amount of CSHA funds available for capital expenditure is a matter for concern. On this basis, the waiting lists for public housing are likely to grow beyond their present unacceptable levels. Governments at both State and Federal level are initiating major public education campaigns about domestic violence and incest, which are likely to increase the number of women and girls who leave a violent home situation and seek support in a refuge. While both Federal and State governments are moving towards community based, non-institutional care for the aged and disabled, experience would suggest that those without secure housing and support networks may be likely to drop through the safety net and seek refuge in a SAAP shelter. Overall, the picture is one of continuing structural problems which are likely to keep the numbers of those homeless, in crisis, and in need of secure accommodation and support networks, at a high level." 2.27 Four major recommendations of the Review formed the basic framework within which more specific recommendations were designed. They were: The Review recommends the continued existence of the Supported Accommodation Assistance Program, after the expiry of the current agreement in June 1989, and continued significant growth in funding to reflect the likely increased demand on the program. The Review recommends that administrators monitor the parallel development of a range of other housing, health and welfare programs to ensure that SAAP is part of a continuum of support and accommodation programs designed for individual need. The Review recommends the continuation of the structure of the present program with Commonwealth and State governments providing resources to non-government and local government service providers. The Review recommends that SAAP aim at improving outcomes for the individual client; resources must be allocated with this priority in view. 2.28 With respect to young people, the Review noted that the YSAP target group of 12 to 25-year- olds was very diverse in terms oE potential relationship to State welfare departments; needs for support; access to income support; and living skills and experience. In short, young people under 18 years are legally minors while those 18 and over are adults. The Review was concerned that 'young people under 18 years should not be placed in the same accommodation outlet as those over 18%34 The two age groups should be seen as two separate target groups; young people 13 to 18 and young adults 18 to 25. Moreover, the Review recommended expansion of YSAP services as follows: a number of strategically-placed crisis refuge/shelters continue to be funded; expansion of medium term support models and other options with more flexible time frames be encouraged; and services be encouraged to be more flexible and experimental in determining time limits for men." FEDERAL INCOME SUPPORT PROVISIONS May Economic Statement 1987 2.29 Further changes to the system of income support for young people were foreshadowed in the Federal Government's May Economic Statement in 1987. The junior Unemployment Benefit was to be abolished from 1 January 1988 and replaced for 16 and 17-year-olds by a Job Search Allowance (JSA). The JSA was set at $25 per week unless the recipient was either from a low-income family (determined on a parental income test) or established that he or she was homeless. In either case the JSA could be paid up to a maximum rate of $50 per week (that is, the equivalent of the former junior Unemployment Benefit). For homeless young people, the JSA might be supplemented by the Young Homeless Allowance (YHA) of $26 per week. The waiting period for JSA was extended from six weeks to 13 weeks for both school and tertiary education leavers. A further six week qualifying period applied to the YHA (see Chapter 14, Income Support for Homeless Young People) 2.30 The expressed aim of the Government in introducing the Job Search Allowance was to encourage young people to search more actively for jobs. Unfortunately, teenage unemployment remained at around 20% for the rest of 1987 and much of 1988, there was still an unemployed to job vacancy ratio of at least 15:1 and employer incentives to hire and train young people were drastically cue At the same time, student places at tertiary institutions were not being increased. (It has been estimated that, in 1987, 100,000 people were turned away from TAFE courses nationally and between 13,000 and 20,000 were turned away from colleges and universities because of a lack of student places.)" It is, therefore, uncertain What effect the new youth income support structure has had either on the job search behaviour of young people or on their decision whether to remain longer in formal education. We do know something of its impact on young homeless people (see Chapter 14, Income Support for Homeless Young People). Moreover, we can speculate on the additional stress placed on sole parents and their children by the abolition of the Supporting Parents Benefit in respect of children 16 and over, and the contribution that change may make to the numbers of homeless young people. STATE WELFARE RESPONSES 2.31 The child welfare and juvenile justice systems have operated alongside these large-scale national initiatives, often in ways which have been unsympathetic to them and their aims. Individual homeless children and young people have felt the presence of these systems in various ways. In Chapter 10, 鱨վ in the Care of the State, the point is made that, for many children, involvement with these systems is the commencement of their progress towards homelessness. Here some of the more traditional options for the child welfare and juvenile justice systems in dealing with homeless children are set out. Child Welfare 2.32 Almost by definition, children who are homeless, and many who are at risk of becoming homeless, are liable to the operation of child welfare laws as being 'in need of cart and protection' or 'neglected' under the various terms used in State child welfare legislation.38 In Queensland, Western Australia and Tasmania the 'offences' of being 'uncontrollable' or 'exposed to moral danger' are still retained.' In South Australia and Victoria a child who is not under the adequate supervision or control of an adult may be deemed to be in need of care. In New South Wales the legislation includes 'substantial and presently irretrievable breakdown' in the relationship between the child and a parent as one of the grounds on which a child may be considered 'in need of care." These provisions, although less stigmatising than references to an 'uncontrollable' or 'uncontrolled' child, authorise intervention simply because the child is not under adult supervision, without reference to whether, because of this, intervention is actually needed. In the A.C.T.," the Northern Territory," and in Victoria if the 鱨վ and Young Persons Bill 1987 is passed, something further than the absence of supervision is required to justify intervention. The child must also be shown to be suffering some form of harm as a result or to be causing harm to others. 2.33 The intention of these laws is to advance the interests of the child. Nonetheless, they authorise major interventions in the lives of children, which affect their rights to liberty, privacy and family life. There is considerable evidence that these laws are experienced by children as coercive and even punitive rather than as a source of help. Being 'uncontrollable', in particular, is referred to by children themselves," police" and welfare workers" as an 'offence' which children are 'charged with': It is not accurate to describe child welfare applications as `charges'.' Yet, as one witness noted, there is a fine line between welfare and correctional services for many young people.' 234 The coercive use of welfare legislation has decreased in most jurisdictions in recent years. One witness noted that, for the most part, children at risk are no longer dealt with as 'uncontrollable' or 'exposed to moral danger'. Instead, they are now more often ignored, at least until they come into conflict with the criminal law. There has been a move from 'child saving' to 'child blaming'.49 Coercive powers of the kind described nonetheless warrant attention. For most homeless young people, the dominant image of 'the welfare' remains coercive, with the consequence that they avoid seeking assistance.' Also, the movement away from coercive intervention as a policy is not uniform or irreversible, as indicated by recent developments in New South Wales (see Chapter 3, Developments Since the Inquiry Began). 2.35 Legislation in all States and Territories authorises police and welfare officers to take children thought to be in need of care into custody.s' However, as Ian O'Connor noted in his report for the Inquiry, it is important not to see the police role as solely coercive. In most communities police are the only 24 hour 'social service' available." Several witnesses were particularly positive about police responses to homeless youth where a specialist Juvenile Aid Bureau has been established." 2.36 In evidence to the Inquiry, on the other hand, some parents complained that they had not received sufficient assistance from police and/or welfare authorities to have their run-away children returned to them.s4 Evidence to the Inquiry concerning the experience of homelessness shows clearly that it is in the interests of children to grow up within their families if at all possible. Governments ought to encourage and assist children to remain within or return to the family. Indeed, governments are required to do so by international law (see Chapter 4, The Rights of the Child). 2.37 This does not mean, however, that parents are entitled to have their child returned to them against his or her will where the child is sufficiently mature to make an independent decision. All individuals have the right, under international law, to liberty of the person and freedom of choice of residence." Obviously, these rights do not apply to younger children, who are not prepared for independent living, in the same way as to adults. The child's right to 'special protection'" means that until children develop the capacity to exercise their own rights in a meaningful way, others must exercise these rights on their behalf, and provide guidance as their capacity develops. These responsibilities fall primarily upon the family. This is explicitly recognised in the Draft Convention on the Rights of the Child, currently being prepared by the United Nations, which provides that: States Parties shall respect the responsibilities, rights, and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present .Convention." This also means, however, that children who have developed sufficient understanding of the issues involved have the right to choose their own residence and, though they should be encouraged and assisted to return home, they may not be forced to do so. 2.38 The common law does not recognise a right to compel children to return home. The courts have refused, since at least the nineteenth century, to order that a child be returned home against his or her will, having once reached 'the age of discretion'." According to the common law, therefore, a child can leave home once he or she has 'sufficient intelligence and understanding to make up his [or her] own mind."9 2.39 Child welfare legislation in Australia does not give police any additional power to return children home beyond that given by the common law, except pursuant to court orders (which may direct that the child reside in a particular place or be subject to the supervision of specified persons)." Nonetheless, the Inquiry heard evidence that young homeless people are sometimes in practice compelled to return home by police.' For younger children this may be legally justified; for older children it will not necessarily be so. 2.40 Police, correctly, see returning a child home as preferable in many cases to taking the child through the court system and exposing the child to the risk of institutionalisation.' However, evidence to the Inquiry clearly shows that most homeless children leave their homes because of severe conflict in the family and that a significant number leaves home at least partly because of abuse within the home. 2.41 The Inquiry is concerned, therefore, by the statements of the New South Wales Minister for Family and Community Services announcing changes to child welfare legislation in that State and giving Family and Community Services officers and police the power to 'return street kids and runaways under 16 to their families wherever appropriate'." The relevant State legislation does not, in fact, give any such power: rather it provides that children apprehended may be placed in the temporary care of the Department pending a care application to a court." The intention, however, appears to be to return children home unless they can prove they have been abused. As one witness pointed out, there is a need for police and others to encourage negotiation between the runaway child and the parents, to effect a reconciliation if possible, rather than automatically and compulsorily returning the child to the home." 2.42 If the child or young person is not returned home, there are few accommodation alternatives available to the police. The Inquiry was concerned by evidence from witnesses in many places that children apprehended by police, whether on criminal charges or under child welfare law, are sometimes held for some time in police cells." 鱨վ as young as 11 are put in watch houses and detention centres because there is no appropriate accommodation for them. The most recent one that I know of was an II-year-old boy in a country watch house for three days and three nights. He had not been charged with an offence; he was labelled uncontrollable., he was crying and terrified at the thought of having to go back." 2.43 The Inquiry was informed that children are often remanded by the 鱨վ's Courts in custody in a juvenile institution or centre while their case is being dealt with because of a lack of any more appropriate accommodation options," even where the court and professionals involved in the case recognise that this is not an appropriate response." This remand may be prolonged, often because welfare services have insufficient resources to provide the reports required by the court without substantial delays." 2.44 In some cases children awaiting appearance on child welfare matters are detained in cells or institutions designed for offenders:I' Detention of any sort, but particularly in cells, is not an appropriate or acceptable response where a child's only crime is to be homeless." Where inappropriate remand occurs, the state agencies of police, court and related services are not seen by the young person as a source of support, rather as a source of oppression." There is clearly a need for other accommodation options to be available to courts, police and other interveners to enable them to respond more appropriately to the needs of homeless children.74 2.45 The Inquiry was told that many young people actively avoid 'the welfare' because they are fearful of the consequences of contact. Most fear being 'put in a home'.' In fact there has been a trend away froth the use of institutions in recent years." This is in principle a positive step, although it has not been accompanied by the provision of sufficient alternatives." 2.46 Rates of institutionalisation, however, are still high in both Western Australia and the Northern Territory." The legislative and policy changes in New South Wales already referred to appear very likely to reverse the decline in the number of children and young people in institutions in that State, given the lack of other facilities.'9 Particular concern was expressed to the Inquiry regarding children in country areas where there is a marked lack of other options.8 It was pointed out to the Inquiry that many State wards, detained in institutions because of a lack of more appropriate placement options, run away, making themselves homeless. In these cases, State intervention is actually producing homelessness rather than securing care and protection for children." 18 2.47 The Inquiry did not set out to conduct a full review of institutions for youth. Many witnesses, however, expressed concern that young homeless people are detained in secure institutions." In the Inquiry's view, where homelessness is the only ground for intervention or where abuse or neglect has occurred, detention is not justified and in itself violates the rights of the child. 2.48 The Inquiry also heard evidence that institutions fail to provide adequately for children with particular needs: children with intellectual or physical disabilities, emotionally or mentally disturbed children, sexually abused children, children with drug problems, or children of non-English speaking background." Particular concern was expressed about the inappropriateness of institutions for Aboriginal children, and about the large number of Aboriginal children in institutions." 2.49 Institutions are also a very expensive means for providing services to children.'" Where institutions are effectively the only option available, yet limited resources rule out institutionalisation, the result is that the State fails to intervene to provide any effective assistance at all." There will be little benefit in legislation providing a range of options and specifying that the least restrictive alternative is to be adopted, if the only options in fact available to the court are an institution or nothing. Evidence to the Inquiry indicates that this is often the case." A representative of the Aboriginal 鱨վ's Service in New South Wales noted that, in particular, there is a lack of Aboriginal placement options for courts to consider for Aboriginal children.'8 Juvenile Justice 2.50 Vagrancy: Queensland, Western Australia and Tasmania still have laws which enable police to arrest people who appear to have 'insufficient lawful means of support', and provide for fines or imprisonment if they cannot prove to a court that their means of support are lawful." The Inquiry was told of instances of the use of these 'vagrancy' laws against homeless children: We had a young person arrested on Wednesday for vagrancy because he was picked up wandering the streets, had nowhere to go, and he was kept in the lock-up. Sometimes it is for their own protection. Sometimes they are being severely harassed... This one was 15." 2.51 Vagrancy laws are not intended to punish poverty or the failure to maintain a certain standard of living. Rather they are based on the assumption that a person with insufficient lawful means of support is likely to resort to unlawful means.9' These laws, therefore, seek to prevent the commission of crime. However, to punish people because they might commit crimes, rather than for crimes they are proved to have committed, is clearly a breach of fundamental human rights." Moreover, there is considerable evidence that vagrancy laws are in fact used to penalise people simply for being poor and homeless. Using vagrancy laws against homeless children is neither a permissible means of preventing crime nor an acceptable means of extending them the protection which is their right. 2.52 Street Offences: Evidence presented to the Inquiry clearly indicated that homeless children are very likely to become involved with the criminal justice system." Horneless children on the streets are highly visible targets for policing. 94 For this reason, and because they lack secure private space in which to conduct their lives, they are likely to come into conflict with the law on such matters as offensive behaviour, indecent language, or offences relating to drunkenness." They are also highly visible targets for drug law enforcement." This high visibility and disproportionately high rate of contact with the police is particularly" pronounced in the case of Aboriginal young people." There is a particular need for policing of laws on public order to be sensitive to the situation faced by homeless children. This has not always been the case." 2.53 Numerous witnesses informed the Inquiry that young homeless people may often be forced into criminal activity by their lack of a legitimate source of adequate income." Even the search for a secure place to sleep can involve offences such as trespass.' The Inquiry received evidence that some young homeless people are even committing offences in order to be arrested as a means of obtaining some form of accommodation.'' 2.54 Prostitution: Many homeless children and young people engage in prostitution, as a result of their lack of an adequate income (see Chapter 5, The Experience of Homelessness). Prostitution as such is not illegal. However, it may involve the commission of various offences, particularly for prostitutes working on the streets. Depending on policing practices, the laws relating to offensive behaviour may be applied to soliciting for purposes of prostitution. In addition there are specific laws dealing with soliciting." Male homosexual acts, including acts of prostitution, are illegal in Tasmania, Western Australia and Queensland, and are also illegal in New South Wales and the Northern Territory if conducted in public places or if one of the participants is under 18. The Inquiry was told of homeless children as young as 13 being arrested and detained for soliciting." These anti-soliciting laws give police considerable discretionary power. The Inquiry received evidence that some homeless children have been forced to pay bribes to police, in order to be allowed to work as prostitutes." If this is true, the law enforcement authorities have failed in their duty to provide homeless children the special protection which they require and instead are actually exposing them to additional exploitation. 2.55 There are also laws which attempt to protect rather than penalise children in relation to prostitution. With the exception of Victoria, however, there is no comprehensive provision applying to children between 16 and 18." The Inquiry was told that the effectiveness of these laws is limited because young people are afraid to approach the police with evidence. I know of cases that have not reached the police because of all sorts of fears. ..They are afraid. They are frightened of welfare workers. They are frightened of police. They are frightened of parents. They are frightened of anybody, and so they tend to want to run away." The major reason for children being unwilling to approach the authorities for help concerning exploitation and abuse is a fear that seeking help will lead to institutionalisation."77 Far from protecting the rights of these children, the possibility of inappropriate coercive intervention under child welfare laws prevents them seeking and receiving protection from exploitation and abuse. 2.56 Alcohol-related Offences: The Inquiry was told throughout Australia that use, and abuse, of alcohol is extremely common among homeless children and young people. This, again, exposes them to the criminal law in many States. As one witness pointed out, the fines imposed for under-aged drinking can seriously overburden homeless children who have inadequate, if any, income. I have sat with a young woman who was going to commit suicide because she could not pay her fines...she said, 'What am I going to do? I just can't pay them. I just can't live like this.'...and she was thinking seriously of committing suicide." Some magistrates recognise that fines are 'not an option' for someone who is homeless and unemployed," but evidence to the Inquiry indicates that not all magistrates are sufficiently sensitive to the needs of homeless children. Indeed without adequate legal representation the magistrate may not even be made fully aware of a child's situation. 2.57 The Inquiry is concerned that young people should not be detained in police cells, either on criminal charges relating to drinking or under non-criminal provisions such as the New South Wales Intoxicated Persons Act 1979. The Inquiry heard evidence that police in some areas are aware of the inappropriateness of holding alcohol-affected children in police cells, but lack any more suitable alternative for homeless children, who cannot simply be taken home." This is of particular concern in relation to Aboriginal young people, considering that alcohol appears to have been a factor in a significant number of recent Aboriginal deaths in custody. A child psychiatrist told the Inquiry that an increase in the number of Aboriginal young people in adult detention facilities is likely to be accompanied by a fall in the average age of Aboriginal people who die in custody.'" For these young Australians, arrest or detention related to drinking may be quite simply a matter of life and death."' CONCLUSION 2.58 Our approach in this Inquiry has been different from most of those mentioned above in several respects. First, based on the Federal legislation establishing the Commission, it commenced from a statement of children's rights rather than from a consideration of needs largely divorced from rights. The relevant principles of the Declaration of the Rights of the Child, and our interpretation of them, are set out in Chapter 4. Second, we have taken a holistic approach to the issues raised by the existence of homeless children in our society. We are concerned to address the full range of needs of children who are both actually homeless and at serious risk of becoming homeless. A major focus is on the provision of accommodation and of income support, but we also address support services to enable 'at risk' families to remain together and services to enable young people for whom it is appropriate to move rapidly into stable independent living situations. 2.59 Effective action is urgently needed to address this problem. Such action cannot be half-hearted , or poorly planned. Homeless children and young people are dying in some cases and suffering horrific abuses of their rights in many others. Homelessness itself is a denial of rights theoretically guaranteed to our children and young people by the Commonwealth. This Report must be the catalyst for a serious and sustained response if this nation is to consider itself civilised. Notes I. S.13, Homeless 鱨վ's Association, at 3. Report on Homeless Youth, (Parliamentary Paper No. 231/1982), at 2. Id, at 2-3. Id, at 4. Id, at 5. Ibid. From 1975 to 1982 the junior Unemployment Benefit (for 16 and 17-year-olds) was fixed at $36 per week. The adult rate rose over that period from $36 per week to $58.10 per week. As at June 1983, Unemployment Benefit for 16 and 17-year-olds was $45 per week while for people 18 and over it was $73.60 per week. The Special Benefit, granted at the Department's discretion, could be paid to a person aged 11 to 15 who was ineligible for Unemployment Benefits but in need. Study into Homelessness and Inadequate Housing (Cwth Departmant of Housing and Construction, 1985) at I. Id, at 57 ld, at 3. Report on Homeless Youth (Parliamentary Paper No. 231/1982). Id, at 39. Ibid. Id, at 65. Id, ail'. One Step Forward: Youth Homelessness and Emergency Accommodation Services (1983). Id, at 4. Id, at 75. Id, at 7 Senator Grimes, Minister for Social Security, Hansard (Senate) (1983) vol.100, 2761 at 2762. Ibid. C. Chesterman, Homes Away From Home: Final Report of the National Review of the Supported Accommodation Assistance Program (1988) at 11. Supported Accommodation Assistance Act 1985 (Cwth), Schedule, cl 12. Id . cl 10(3). Id, cl 10(6). Homes Away From Home, op dl, at 23. Id, at 16. Id, at 17. Id, at 16. C. Chesterman, Homes Away Front Home: Final Report of the National Review of the Supported Accommodation Assistance Progrcen (1988). Id, at 35. /c/, at 35-36. Id, at 51. Id, at 55. The Community Employment Program and 'Job Start' were abolished and funding to education and training was reduced by $130 million: S.106, Youth Affairs Council (SA) A Fair Deal for Young People: Principles and Proposals, at 1. Ibid. This is so whether the law focuses on the needs of the child: 鱨վ (Care and Protection) Act 1987 (NSW), s.10; Community Welfare Services Act 1970 (Vic), s.31; 鱨վ's Protection and Young Offenders Act 1979 (SA), s.12; 鱨վ's Services Ordinance 1986 (ACT), s.71; Community Welfare Act 1983 (NT), s.4; or uses more elaborate, morally loaded and anachronistic definitions of situations warranting intervention: 鱨վ's Services Act 1965 (Old), s.46; Child Welfare Act 1947 (WA), s.4; Child Welfare Act 1960 (Tas), s.31. In Victoria it has been observed that the way in which the legislation in that State is currently drafted makes it almost inevitable that a homeless young person will be considered in need of care and protection so as to justify state intervention: H.Cannichael, Vic Legal Aid Commission, Transcript at 1034. The 鱨վ and Young Persons Bill 1987 (before the Vic Parliament in 1988) adopts the view that homelessness per se should not justify court intervention. Such intervention would only be warranted if the child was also in need of protection. In practice, however, this would be easy to establish concerning most homeless children, so that in most cases the position under the new law would not be significantly different: S.94, H.Carmichael, at 21. 鱨վ's Services Act 1986 (Qld), s.60; Child Welfare Act 1947 (WA), s.32; Child Welfare Act 1960 (Tas), s.33. In Tat action based on a child being 'uncontrollable' can only be taken by parents. In Old and WA, police are also given power to intervene on this basis. 鱨վ's Protection and Young Offenders Act 1979 (SA), s.12; Community Welfare Services Act 1970 (Vic), s.31. 鱨վ (Care and Protection) Act 1987 (NSW), s.10. 鱨վ's Services Ordinance 1986 (ACT), s.71. Community Welfare Act 1983 (NT), s.4. Tony, Transcript at 146: 'When I was 13 I was charged with uncontrollable.' M. Hill, NT Community Police, Transcript at 1642. E. Coates, WA Department of Community Services, Transcript at 809, referred to 'charges' of being uncontrollable, although noting that these are now uncommon. J. v. Lieschke (1987) 69 Australian Law Reports 647. C. Franks, Healthy Aboriginal Life Team Alice Springs (NT), Transcript at 1756. S.10, I. O'Connor, at 2. I. O'Connor, Most of us have got a lot to say and we know what we are talking about'. 鱨վ's and Young People's Experiences of Homelessness (1988) at 130. 鱨վ (Care and Protection) Act 1987 (NSW), s.60: s.60(1A), inserted in 1988, is specifically directed at homeless children and authorises their apprehension so long as they are thought to be in need of care; Community Welfare Services Act 1970 (Vic), s.32 (and see also 鱨վ and Young Persons Bill 1987 (Vic), c1.68); 鱨վ's Services Act 1965 (Qld), s.49; 鱨վ's Protection and Young Offenders Act 1979 (SA), s.19; Child Welfare Act 1947 (WA), s.29; Child Protection Act 1974 (Tas), s.3A though this applies only to children who it is suspected have been subjected to 'cruel treatment' - in other cases a warrant must be applied for under the Child Welfare Act 1960 (Tas), ss.32, 40; 鱨վ's Services Ordinance 1986 (ACT), s.73; Community Welfare Act 1983 (NT), s.11. In the ACT and the Northern Territory, and in Victoria if the 鱨վ and Young Persons Bill is passed, such action is only permitted if it is reasonably necessary to safeguard the welfare of the child. O'Connor, op cit, at 138. K. Hanavan, Harrison House Southport (Qld), Transcript at 384; B.Feil, LASA Youth Centre Canberra, Transcript at 523. See H. Bentinck, Parents Who Care Novvra (NSW), Transcript at 1846. Universal Declaration of Human Rights, Articles 9, 13; International Covenant on Civil and Political Rights, Articles 9, 12. Declaration on the Rights of the Child, Principle 2; International Covenant on Civil and Political Rights, Article 24. Article 5. This Article was inserted at the initiative of the Australian delegation, with the support of the Human Rights and Equal Opportunity Commission. R. v. Howes (1860) 121 English Reports 467. Gillick v. West Norfolk Area Health Authority [1985] All England Law Reports 402, at 422-423 per Lord Scartnan. In Hawkins v Hawkins (1940) 42 Western Australian Law Reports 86, the Supreme Court of Western Australia refused to make an order declaring a 16-year-old boy 'uncontrollable' simply for refusing to live at home. This approach has not always been followed, however, particularly concerning girls. G. Davies, Uniting Church Community Youth Services (WA), Transcript at 726. B. Feil, LASA Youth Centre Canberra, Transcript at 523. Press Release, 11 May 1988. 鱨վ (Care and Protection) Act 1987 (NSW). G, Davies, Uniting Church Community Youth Services (WA), Transcript at 726. S. Boyle, Youth Legal Service (WA), Transcript at 713; G.Benn, WA Legal Aid Commission, Transcript at 823; N.Clay, Wollongong Youth Refuge (NSW), Transcript at 1801. These cells were described by one witness as generally being 'like lions dens': M.McMahon, WA Department of Community Services, Transcript at 892. A. McMillan, Youth Advocacy Centre Brisbane, Transcript at 217. H. Carmichael, Vic Legal Aid Commission, Transcript at 1043. S.94, H. Carmichael, Vic Legal Aid Commission, at 14. Id, at 11. H. Carmichael, Vic Legal Aid Commission, Transcript at 1046. C. Penn, Youth Advocacy Centre Brisbane, Transcript at 230. S.94, H. Carmichael, Vic Legal Aid Commission, at 15. The United Nations Standard Minimum Rules for the Administration of Juvenile Justice, Rule 13, indicate that, in order that detention of children should be a last resort, alternatives to detention should be provided for. O'Connor, op cit, at 130; M.O'Neil, National Youth Coalition for Housing, Transcript at 16. The number of children in wardship in NSW decreased from 4,750 in 1976-77 to 2,806 in 1986-87: NSW Department of Youth and Community Services, Annual Report 1987, cited by P.Tynan, Centacare Newcastle (NSW). Transcript at 1914. M. Davenne, Moruya Youth Accommodation Group (NSW), Transcript at 1878; F.Wright, Student Welfare Co-ordinator Geelong (Vic), Transcript at 1234. WA in September 1987 had 2,360 children in care, of whom 1,067 (45%) were Aborigines. Rates of juvenile incarceration are even higher in the Northern Territory: M.Rayner, Transcript at 639. P.Molan, NSW Magistrate, Transcript at 1904. M.Thck, Alderman, Taree Council (NSW), Transcript at 1955. H. Carmichael, Vic Legal Aid Commission, Transcript at 1043-44. J. Trocano, Whose Care and Protection Collective (Vic), Transcript at 939; K.Lyall, Young Women's Housing Collective Melbourne, Transcript at 1025; H.Carmichael, Vic Legal Aid Commission, Transcript at 1052. See S.94, H.Carmichael, Vic Legal Aid Commission, at 16. H. Shearer, Central Australian Aboriginal Child Care Agency Alice Springs (NT), Transcript at 1736; M.Rayner, Transcript at 640. See also Chapter 12, The Situation of Aboriginal 鱨վ and Young People. The Inquiry was told that it costs an average of $850 per week to keep a child in a juvenile institution: D.Annis-Brown, Youth Accommodation Association (NSW), Transcript at 34. N. Clay, Wollongong Youth Refuge (NSW), Transcript at 1804. The principle that the least restrictive alternative should be adopted, and therefore that institutionalisation should be a last resort, is embodied to some extent in legislation in a number of jurisdictions. Legislation in NSW, Qld and the ACT, and proposed legislation in Vic, provides for a hierarchy of options; i.e. the court must be satisfied that less restrictive options such as supervision orders would be inappropriate before it can commit the child to wardship or to an institution: 鱨վ (Care and Protection) Act 1987 (NSW), s.73(2); 鱨վ's Services Act 1965 (Old), s.52, s.60(5); 鱨վ's Services Ordinance 1986 (ACT), s.83(3); 鱨վ and Young Persons Bill 1987 (Vic), s.86. Legislation in the NT does not explicitly provide for such a hierarchy, but requires the court, before making one of the available orders, to satisfy itself that no other order would be appropriate: Community Welfare Act 1983 (NT), s.43(7). Even under these legislative models, however, the court exercises considerable discretion and institutionalisation remains a real possibility. J. Trocano, Whose Care and Protection Collective (Vic), Transcript at 940; L. Upham, Youth Advocacy Centre Brisbane, Transcript at 237; K.Hanavan, Harrison House Southport (Qld), Transcript at 380; S.94, H.Carmichael, Vic Legal Aid Commission, at 19-20; P.Molan, NSW Magistrate, Transcript at 1902. A. Wheidon, Aboriginal Child Care Agency (NSW), Transcript at 50. Vagrants. Gaming and Other Offences Act 1931 (Q1d), s.4(1)(i); Police Act 1892 (WA), s.65(1); Police Offences Act 1935 (Tas), s.5. The Tasmanian Police Offences Act, s.8(1)(i), also contains a provision which appears specifically designed to victimise homeless people for being homeless: 'No person shall ... wander about and lodge in any barn, outhouse, or shed, or in any deserted or unoccupied building, or in the open air, not having any visible means of subsistence, unless he shall give a good account of himself'. This offence carries a penalty of $100 or 6 months imprisonment. In SA, although the offence of vagrancy has been abolished by the Police Offences Amendment Act 1985 (SA), it remains an offence to 'habitually consort' with persons having no visible lawful means of support (Police Offences Act 1953 (SA), s.13) so that young homeless people may still be arrested for being part of a group of vagrants. D. Elliott, Townsville Sharehouse (Qld), Transcript at 425. Zanetti v. Hill (1962) 108 Commonwealth Law Reports 433. at 441 per Kitto J. International Covenant on Civil and Political Rights, Article 9 (right to liberty of the person and freedom from arbitrary detention); Article 14(2) (right to be presumed innocent until proven guilty). O'Connor, op cit, at 149. A. McMillan, Youth Advocacy Centre Brisbane, Transcript at 217. K. Robinson, Young Women's Shelter Hobart, Transcript at 1507. G. Davies, Uniting Church Community Youth Services (WA), Transcript at 725. I. Horrocks, Aboriginal Legal Service (WA), Transcript at 667; G.Davies, Uniting Church Community Youth Services (WA), Transcript at 722. See also 1.0'Connor and C.Tilbury, The Legal Aid Needs of Youth, (1986) at 21 on the over-representation of Aboriginal youth in the criminal justice system. O'Connor, op cit, Chapter 8. C. Harris, Youth Affairs Council (NSW), Transcript at 57; T. More, Developmental Youth Services Association (NSW), Transcript at 63; T. Bourne, Lifeline Sydney, Transcript at 389; I. Boyson, Southside Youth Refuge (ACT), Transcript at 587; C. Keogh, Council of Social Services (WA), Transcript at 659; M. Hill, NT Community Police, Transcript at 1646; P. Molan, NSW Magistrate, Transcript at 1901. See also Chapter 5, The Experience of Homelessness and Chapter 7, The Costs of Youth Homelessness. P. Molan, NSW Magistrate, Transcript at 1901. B. Ivinson, Northern Australian Aboriginal Legal Aid Service Darwin, Transcript at 1638, 1641. See also Chapter 5, The Experience of Homelessness. In Victoria, the Prostitution Regulation Act 1986, although presented as a measure to 'decriminalise' prostitution, provides that a person must not 'solicit or accost any person in a public place, or loiter in a public place' for the purposes of prostitution: s.5. In NSW, the Summary Offences Act 1988 prohibits soliciting 'within view from' a school, hospital, church or dwelling, in addition to the previous prohibition of soliciting in a public street 'near' any school, church, hospital, or dwelling. It also creates a separate offence of soliciting in such a way as to harass or distress the person solicited. The Act creates a new offence of taking part in an act of prostitution in or within view from a church, school, hospital or public place or within view from a dwelling, or in a vehicle in a public place. Previously, and elsewhere, most such activities could be dealt with under the laws on offensive and indecent behaviour. K. Swanton, Sydney Area Health Service, Transcript at 149. W. Crews, Wayside Chapel Sydney, Transcript at 187. In NSW, the Attorney General, Mr Dowd, has announced that he intends to give police specific powers to deal with child prostitution. Apart from clarifying and making more certain powers to enter and search premises, the major substantive change proposed is to extend the application of the law to children between 16 and 18 as is the case in Victoria. The 鱨վ's Interest Bureau (SA) called for similar legislation for SA in a submission to the Inquiry: S.70. G. King, Cairns Anglican Youth Services (Qld), Transcript at 446. It has been reported that child prostitution continues to be a problem even in Victoria despite the comprehensive powers available to police: The Australian, 4 August 1988 at 5. M. O'Neil, National Youth Coalition for Housing, Transcript at 16; F. Maas, Australian Institute of Family Studies, Transcript at 913-914; J. Ttocano, Whose Care and Protection Collective (Vic), Transcript at 942; K. Lyall, Young Women's Housing Collective Melbourne, Transcript at 1025. L. Rundle, Karinya Young Women's Shelter Launceston (Tas), Transcript at 1580. P. Molan, NSW Magistrate, Transcript at 1902. M. Hill, NT Community Police, Transcript at 1648. Ill. E. Hunter, Transcript at 868. 112. S.33, Youth Legal Service (WA). 11 TABLE 1: AGENCIES UNDER THE YOUTH SERVICES SCHEME BY STATE/ TERRITORY New South Wales22Victoria22Queensland11South Australia5Western Australia7Tasmania6Northern Territory1A.C.T.1Total75 12 TABLE 2: COMMONWEALTH FINANCIAL COMMITMENT TO SAAP BY STATE/TERRITORY (PER ANNUM) NSW$9,606,00035.3%Vic$4,430,00016.3%Qld$4,241,00015.6%SA$3,149,00011.6%WA$3,096,00011.4%Tas$1,788,0006.6%NT$932,0003.4%Total$27,242,000100% Source: Supported Accommodation Assistance Act 1985 (Cwth), Schedule, clause 10(2). TABLE 3: COMMONWEALTH FUNDING FOR SAAP 1984-1989 YearFunding ($'000)% Increase1984-8627,5391985-8657,061107.21986-8773,81129.41987-8887,88719.11988-89104,73119.2 Source: Expenditure Statement from the Cwth Department of Community Services and Health. TABLE 4: STATE FINANCIAL COMMITMENTS TO SAAP BY STATE/TERRITORY (PER ANNUM) NSW$6,611,40034.7%Vic$3,238,00017.0%Qld$3,225,90016.9%SA$1,928,10010.1%WA$2,251,40011.8%Tas$1,176,2006.2%NT$ 640,8003.4%Total$19,071,800100% Source: Supported Accommodation Assistance Act 1985 (Cwth), Schedule, clause 12(1). 13 TABLE 5: YSAP SERVICES BY STATE/TERRITORY (1986-87) New South Wales99Victoria61Queensland32South Australia42Western Australia25Tasmania6Northern Territory3A.C.T.6Total274 Source: C. 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