by Alison Young* and James Petty**
Cities are perennially concerned with the promotion and maintenance of social order. Its opposite, disorder, is perceived as threatening and disruptive; changing and challenging the constructed atmospheres of public spaces and potentially making inhabitants and visitors feel unsafe.
Social disorder may be mundane and material, such as litter or broken windows, or it may be embodied in the figure of ‘the criminal’. Individuals whose lack of stable housing leads them to appear visibly homeless in public places frequently find themselves judged both for bringing with them material disturbance to a setting (perhaps because of the presence of their possessions or bedding) 1 or as a result of entrenched legal and cultural associations between homelessness and criminality.
There are two main factors underlying the ways in which homelessness and crime have been linked. First, although being without housing is not in itself a crime, there is a lengthy history, 2 in which activities associated with it have been regarded as crimes.3 Apparent reforms did not necessarily improve the legal situation of people experiencing homelessness: Tamara Walsh notes that although the Summary Offences Act 2006 abolished the old offence of vagrancy, it in many ways created a harsher environment for homeless individuals in Queensland.4 Public nuisance laws have also been used to target homeless individuals.5
In addition, there are numerous examples of the indirect criminalisation of homeless individuals, through the criminal law’s attention to behaviours necessitated by a lack of stable housing, or by poverty, or both.6 In Victoria, begging is still a criminal offence under s.49 of the Summary Offences Act 1966 (with a maximum penalty of one year’s imprisonment); seeking donations in public places can result in the accruing of considerable fines.7
Associating visibly homeless people with social disorder means that police tend to issue move‑on notices when they see people sleeping rough or seeking donations in public places.8 Other laws disproportionately applied to individuals experiencing homeless include indecent exposure laws: people might be arrested for going to the toilet or washing themselves in public (lacking the facilities for doing so in private). ‘Homelessness’ might not be a crime, but people experiencing homelessness are repeatedly forced into direct contact with the criminal justice system. The second factor contributing to the association of homelessness with crime arises from the way in which the news media represent people experiencing homelessness. At times, a lack of housing is depicted as putting people at risk of victimisation.
In 2014, Morgan Wayne (Mouse) Perry was killed while sleeping rough in Melbourne. Mouse’s homelessness was acknowledged in the media as rendering him vulnerable to the random attack perpetrated by his killer, Easton Woodhead.9 In May 2019, Courtney Herron was killed in Royal Park, Melbourne, where she had, at times, been spending the night. After an individual was arrested and charged with her murder, the headline in the Guardian newspaper stated: ‘Homeless man appears in court charged with murder of Courtney Herron’.10 Including the adjective ‘homeless’ in the headline means that Henry Hammond is from the outset defined by a lack of housing, and by the adverse associations that relate to individuals experiencing homelessness. The expression ‘homeless man’ indicates how ‘homelessness’ can provide shorthand context for criminal offending.
As with Mouse Perry, Courtney Herron’s homelessness is a key element in her vulnerability. News reports, however, tended to use expressions such as ‘of no fixed address’, rather than ‘homeless’, perhaps aware of the adjective’s negative associations.11 The result is a paradoxical duality, in which homelessness leads to victimisation, and yet also causes offending. On the whole, news reports tend to link homelessness with criminal conduct rather than victimisation. The consequences of this are significant. In Melbourne, negative news reporting proposed repressive council management policies, and the endorsement of disorder‑focused policing generating a ‘feedback loop’ that reinforced the idea of visible homelessness as a problem of social disorder. In January 2017, tabloid news coverage of a homeless encampment on Flinders Street routinely described inhabitants as drug dealers, criminals and troublemakers.12
Under pressure from the media and Victoria Police, the then Lord mayor of the City of Melbourne, Robert Doyle, announced a proposal for new local laws based on a claim that publicly homeless individuals and their possessions were impeding access for ‘legitimate’ users of the city and its spaces. After public consultations (in which 85 per cent of public responses were opposed to the amendments) 13, in September 2017 the City of Melbourne announced that it would not adopt the proposed changes to 5 its Local Laws.
Instead, the council announced a new formal Operating Protocol on homelessness.14 But little changed from the proposed Local Law amendments to the Protocol. The amendments would have installed enforceable limits on conduct and possessions; these are similarly present in the Protocol. The conduct, appearance and material belongings of homeless individuals within the City of Melbourne will still be judged according to notions of what is ‘appropriate’ and ‘reasonable’ in the public spaces of the city.
The Protocol prohibits the gathering of groups of people sleeping rough in close proximity, specifies a ‘reasonable’ amount of possessions (namely, ‘two bags which can be carried’, and ‘bedding like a sleeping bag, blanket or pillow’), and stipulates that ensuring unimpeded movement within and enjoyment of public space by members of the public is its primary aim. That criminalisation and the promotion of conventional notions of social order are the overriding objectives of the Protocol can be seen in the naming of Victoria Police as the council’s partner. Within one month, police had used the Protocol guidelines to arrest 18 people in the central business district (CBD).15
2018 saw the election of a new Mayor in the City of Melbourne, Sally Capp, who campaigned around issues of support for homeless people in the municipality. After her election, the council announced that the ‘Doyle‑era crackdown’ on homeless people was to be abandoned. The reasons given, however, were not that the policy had been harshly restrictive of the rights of homeless individuals.
Rather, according to a report by council officers, ‘groups of people sleeping rough in close proximity have been positively managed by local laws officers and police, as has the amount and types of belongings left unattended in public spaces’.16
The partnership of council staff and police, authorised by a Protocol that links visible homelessness via alleged impact on amenity to social disorder, means that the activities of rough sleepers and the presence of their possessions are still regulated by an association of homelessness with criminal conduct, resulting in a feedback loop that fuels news coverage, law, policy and policing.
The City of Melbourne’s recent approach to homelessness in public places confirms that. Firstly, a drive for social order in public spaces still dominates policy approaches. Secondly, the inclusion of the police in partnership with councils and homelessness service providers has become seen as normal, rather than contradictory, regressive or counter‑productive; and finally, the conjoining of homelessness, social (dis) order and criminality regrettably still makes ‘sense’ to those responsible for the governance of city spaces.
* Francine V. McNiff Professor of Criminology, School of Social and Political Sciences, The University of Melbourne
** Honorary Fellow in Criminology, School of Social and Political Sciences, The University of Melbourne
1. The increasing intensity of policing the appearance of public spaces is described in Young A and Petty J 2019, ‘On visible homelessness and the micro‑aesthetics of public space’, Australian and New Zealand Journal of Criminology. <https:// doi.org/10.1177/0004865818823945>
2. Kimber J 2013, ‘Poor laws: a historiography of vagrancy in Australia’, History Compass, vol.11 no.8, pp.537–550.
3. Walsh T 2007, No Vagrancy: An Examination of the Impact of the Criminal Justice System on People Living in Poverty in Queensland, University of Queensland, St Lucia.
4. Walsh T 2006, ‘Homelessness, public space and the law in Queensland’, Parity, vol.19, no.1 pp.46–48, at p. 46.
5. Walsh T 2016, ‘Ten years of public nuisance in Queensland’, Criminal Law Journal. vol.40, pp. 59–73.
6. Walsh T 2011, Homelessness and the Law, The Federation Press, Annandale.
7. Adams L 2014, ‘Asking for change: tackling begging with enforcement in Melbourne’, Parity, vol.27, no.9, pp. 24–26.
8. Porter J 2014, ‘Law update: police’s extended move on powers in Victoria’, Parity, vol. 27 no.9, p. 23.
9. Toscano N 2015, ‘Friends of ‘Mouse’ Perry shocked at not guilty verdict for his killer’, The Age, 2 November, <https://www. theage.com.au/national/victoria/homelessvictims- friends-see-injustice-in-killer-beingfound- not-guilty-20151102-gkp24b.html>
10. Martin L 2019, ‘Homeless man appears in court charged with murder of Courtney Herron’, The Guardian, 27 May, <https:// www.theguardian.com/australia-news/2019/ may/27/homeless-man-charged-with-ofcourtney- herron?CMP=share_btn_tw> 11. Ibid.
12. Booker C and Dow A 2017, ‘Melbourne CBD rough sleepers are pretending to be homeless: Victoria’s top cop Graeme Ashton’, The Age, 19 January: <http:// www.theage.com.au/victoria/melbournecbd- rough-sleepers-are-pretending-tobe- homeless-victorias-top-cop-grahamashton- 20170119-gtune7.html>
13. Council for Homeless Persons 2017, 10 things Melbourne Council could do instead of homeless bans. Retrieved from <https://www.chp.org.au/10- things-melbourne-council-coulddo- instead-of-homeless-bans/>
14. City of Melbourne 2017, Operating Protocol to Address Rough Sleeping online at <https://www.melbourne. vic.gov.au/community/health-supportservices/ social-support/Pages/ homelessness-and-local-laws.aspx>
15. Masanauskas J 2017, ‘Police arrest 18 people in new policy to deal with professional beggars and homeless camps’ Herald Sun, 2 November, <http:// www.heraldsun.com.au/news/victoria/ police-arrest-18-people-in-new-policyto- deal-woth-professional-beggarsand- homeless-camps/news-story/ ac3b2357910e4386e951e8aeb754a5bf> (accessed 19 February 2018).
16. Quoted in Lucas C 2018, ‘Melbourne City Council to formally drop Doyle-era crackdown on homeless’, The Age, 21 June: <https://www.theage.com.au/ politics/victoria/melbourne-city-councilto- formally-drop-doyle-era-crackdownon- homeless-20180621-p4zmys.html>