16.0 - Homeless Persons & Special Circumstances Diversion Pilots (Brisbane only)
Queensland's public order offences
The Summary Offences Act 2005 (Qld) generally outlines the most common public space offences, including but not limited to:
- Public nuisance - section 6;
- Begging in a public place - section 8;
- Being drunk in a public place - section 10; and
- Trespass - section 11.
Public order laws are likely to affect homeless persons disproportionately because their behaviour invariably occurs in public - that is to say, public spaces often constitute a homeless person's place of residence. Thus, many common activities of daily living, such as toileting, become a public order offence because those activities occur in public. Police officers regularly enforce these laws against persons who are evidently underprivileged and deprived of life's most basic necessities.
Chapter 2 Part 5 of the Police Powers and Responsibilities Act 2000 (Qld) authorises a police officer to direct a person to ‘move-on', or to give another direction where the person, amongst other things, causes anxiety to another, or where the person is disorderly, indecent or offensive. The refusal to observe the officer's lawful direction is another offence that commonly derives from a person's refusal to ‘move-on'. Under section 79, a person must not contravene an officer's direction, in the absence of a reasonable excuse, and may be liable to a fine of 40 penalty units.
The Homeless Persons Court Diversion Program
The Homeless Persons Court Diversion program diverts homeless persons from the criminal justice system. Magistrates at the Brisbane Arrest Courts may refer persons charged with public order offences to specialised health and accommodation services where satisfied that their homelessness is related to their offence.
Special Circumstances List
In addition, the Brisbane Magistrates Court also has a ‘Special Circumstances Court'. This specialist court hears cases referred to by other Magistrates or Court Liaison Officers and hears cases involving persons charged with relatively minor offences, and where those persons are judged to have ‘special circumstances' including impaired decision making capacity, homelessness, the presence of a mental illness and/or substance abuse issues. Such cases are most commonly disposed of via discharges and adjournments, usually with treatment and welfare conditions attached, and through the cooperation of relevant social workers who will refer defendants to local social support agencies.
Lawyers may therefore seek to have clients placed on ‘Special Circumstances List', in order to access a therapeutic alternative to the usual court processes and sentencing outcomes for defendants charged with simple offences.
Criteria for Eligibility
The defendant:
- Must be 17 years or older;
- Must appear to have a decision-making impairment;
- Must appear to have either a mental health issue, intellectual disability or brain/neurological disorder; and
- Must plead guilty to an offence that arises in the context of a public order regulation.
It is suggested that lawyers make sentencing submissions, in appropriate circumstances, that shy away from the imposition of imprisonment, and, fines, which homeless and/or mentally ill persons invariably have little prospect of paying. Rather, lawyers should make submissions toward alternative sentences, such as court supervision and referral to an agency that provides social services, in order to address the underlying issues contributing to the offending behaviour.
