Freedom of speech and the right to participate for homeless
people – forgotten freedoms for the forgotten people
By Louis Schetzer, Senior Policy Officer, Homeless Persons’ Legal Service, Public
Interest Advocacy Centre
“Any situation in which some men prevent others from engaging in the
process of inquiry is one of violence… to alienate humans from their own
decision making is to change them into objects.”
- Paulo Freire, Brazilian educator and philosopher
This year there has been considerable community discourse regarding what has
been described as one of the traditional core human rights: freedom of expression
and thought. Australia’s new Human Rights and Freedoms Commissioner, Tim
Wilson has asserted that freedom of expression is one of the four foundation human
rights, and one of the “forgotten freedoms”.1 Attorney General George Brandis has
also been a vociferous advocate of the need to refocus on “the forgotten freedoms”.2
And while there has been significant attention devoted to the “forgotten freedom” of
expression for tobacco companies, high profile tabloid journalists, outlaw bikers and
Holocaust deniers, there has been next to no focus on the ability of the most
disadvantaged and marginalised people in our community to exercise their freedom
of expression. Therefore, in this climate of burgeoning in interest the right to freedom
of expression, one may ask what does this mean for those who are homeless or at
risk of homelessness? It is submitted that for this disadvantaged group, freedom of
expression also requires promotion and respect for their right to participate in public
affairs.
Freedom of expression for marginalised people
Homeless people and those at risk of homeless are often the subject of media
commentary. There is constant policy analysis of their plight, and attention given to
aspects of their situation, whether it be mental illness, addiction, susceptibility to
excessive contact with the criminal justice system, histories of domestic violence and
abuse, inability to access crisis accommodation services, or lack of access to
affordable housing. However, given their marginalisation in society, their lack of
access to mass media opportunities, and a lack of ability to marshal significant media
or political influence to be able to significantly weigh into debates on the public policy
1
2
Wilson, Tim (2014), ‘The Forgotten Freedoms’, Speech to the Sydney Institute, 13 May
2014.
Brandis, George (2014), ‘The Freedom Wars’, Speech to the Sydney Institute, 8 May
2014.
1
issues that directly affect them, the question of freedom of expression for homeless
people and those at risk of homeless takes on a more nuanced character.
For marginalised groups such as homeless people and those at risk of homeless,
their right to freedom of expression is almost symbiotically linked to their right to
participate in public affairs. This right is well established in international human rights
law. Article 25 of the International Covenant on Civil and Political Right (ICCPR)
states that every citizen shall have the right and the opportunity, without
unreasonable restriction to take part in the conduct of public affairs, directly or
through freely chosen representatives.3 The underlying principle of the right to
participation is that every individual should have the freedom and capacity to be
involved in decision making that affects her/his interests.
For people who are homeless or at risk of homelessness, this right has several
different dimensions. Homeless people are often the subject of decision making that
affects their interests, whether in a service setting, accessing support services,
through case-management practices, and of course, at the government and public
policy level. The right to participate relates not only to the need for an individual to be
an active agent and participant in decisions and processes that significantly affect
her/his interests, but also to be an effective and engaged participant in society in
order to defend her/his interests and to help foster a society that advances her or his
interests.
Obviously, the most common political expressions of this right are the right to vote
and stand for elections, the freedoms of association and assembly. According to the
United Nations Human Rights Committee (UNHRC) General Comment No. 25, the
right to participate in public affairs as enshrined in Article 25 lies at the core of
representative, democratic government.4
However, the UNHRC has also recognized that the right to participate in public
affairs is broader than the right to vote or the freedom of association. The Committee
stated in General Comment No. 25 that taking part in the conduct of public affairs
can also be undertaken by individuals and groups exerting influence through public
debate and dialogue with their representatives or through their capacity to organise
themselves. Such participation is supported by ensuring freedom of expression,
3
4
International Covenant on Civil and Political Rights, opened for signature 16 December
1966, 999 UNTS 171 (entered into force 23 March 1976) ratified by Australia on 13
August 1980 (entered into force for Australia on 13 November 1980, except article 41,
which entered into force for Australia on 28 January 1993). The full text of the ICCPR is
available at: <http://www2.ohchr.org/english/law/ccpr.htm>.
United Nations Human Rights Committee General Comment No. 25, paragraph 1.
2
assembly and association.5 This recognises the broader principle encompassed by
the right, namely that all citizens should be involved in decision-making processes
that affect them.
The Committee also noted that for the right to participate in public affairs to be
effectively guaranteed, governments need to implement positive measures to
overcome specific difficulties for certain groups of people, including illiteracy,
language barriers, poverty, or impediments to freedom of movement.6 This comment
recognises that all individuals in society are not equally able to exercise their right to
participate, their freedom of expression and their freedom of assembly, unless there
are specific measures and programs designed to overcome particular barriers and
difficulties with which some people are confronted. Importantly, the Committee’s
comment attributes responsibility for implementing these measures with government
bodies.
Developing a human rights approach to addressing poverty and homelessness
When considered in the light of public policy responses to poverty and homelessness,
the right to participate in public affairs goes to the very core of a human rights based
approach to addressing homelessness and to poverty reduction. Homeless people
and those at risk of homelessness must be considered as the principal actors and
strategic partners for developing public policy responses to addressing
homelessness. Such an approach can be compared with the “needs-based”
approach which so often underpins government policy response to these issues, or
the “charity based” approach which often characterises the activities of large welfare
and faith-based organisations involved in developing responses to homelessness
and poverty.
Unlike the “needs-based” approach or the “charity-based” approach, where those
people who are homeless, in poverty or otherwise marginalised are seen as passive
recipients of policy or welfare interventions, the “human rights approach” considers
these individuals to be entitled to assistance, and should be active agents and
participants in the service provision and policy processes that will impact on their
welfare and interests. Importantly, the human rights approach recognises that the
process of their participation works to empower them to claim their rights.
5
6
Ibid, paragraph 8.
Ibid, paragraph 12.
3
This empowering aspect of active participation was recognised by the UN Special
Rapporteur on extreme poverty and human rights in 2013, when she reported to the
UN Human Rights Council:
Human rights based participation is an important tool to empower people living in
poverty by allowing them to exercise their voice to influence relevant decisionmaking processes.7
The Special Rapporteaur unambiguously asserted in her report that people living in
poverty are entitled to participate in the design, implementation and monitoring of
poverty interventions and other policies, programmes and interventions that affect
their lives. In addition, this entitlement extends to holding accountable those who
have obligations and duties to ensure that they are able to exercise their right to
participation.8
For people living in poverty, which obviously includes those who are homeless or at
risk of homelessness, the right to freedom of expression is inextricably linked to their
right to participate in public affairs. Given their marginalisation from the usual media
by which their exercise of their freedom of expression can be conveyed to
government and policy makers, the right to participate and duty on government to
provide the necessary mechanisms by which they can actively participate in policy
design and implementation becomes the essential vehicle by which their freedom of
expression is effectively realised and effected.
For organisations involved in specialist legal service delivery to people who are
homeless or at risk of homelessness, the involvement of consumers in the design,
development and evaluation of those services is one way in which the right to
participate can be given effect. However, given that these services are also critical in
identifying appropriate law reform and policy responses to the legal and human rights
issues that manifest in their casework, the right for homeless consumers to
participate in this activity is equally important.
StreetCare – a case study in homeless consumer participation in law reform
and policy advocacy
In 2009, as part of its Homeless Persons’ Legal Service (HPLS) project, the Public
Interest Advocacy Centre (PIAC) established its homeless consumer advisory
committee, StreetCare, in recognition of the importance of giving homeless people
7
8
Report of the Special Rapporteur on extreme poverty and human rights, Magdalena
Sepúlveda Carmona, UN General Assembly, Human Rights Council 23rd Session, 11
March 2013, A/HRC/23/36, paragraph 72.
Ibid, paragraph 80.
4
an opportunity to exercise their right to take part in the conduct of public affairs, as
enshrined in Article 25 of the ICCPR. PIAC believes that the active involvement of
those who are or have been homeless leads to the development of more effective
public policy in response to issues facing homeless people, as well as assisting in
the empowerment of participants.
StreetCare is made up of nine people who have recent experience of homelessness.
The members reflect the diversity of homelessness in NSW, and include men,
women, transgender people, young people, and representatives from inner Sydney,
outer suburbs and rural and regional areas. StreetCare enables PIAC to obtain direct
input from homeless people into its policy advocacy. StreetCare also provides a
mechanism for PIAC to engage actively with other people who are homeless or at
risk of homelessness, to facilitate their input into public policy and law reform
initiatives.
Over the last four years StreetCare members have been involved in government
policy advisory committees, giving advice to the highest levels of the NSW
Government on such issues as:

The reform of specialist homelessness services in NSW;

The development and implementation of the revised Protocol for Homeless
People in Public Places, guiding the appropriate methods of interaction
between law enforcement officials and homeless people;

The need to improve services from Housing NSW customer service operators
and staff of specialist homelessness services for homeless people with
mental illness;

The lack of transitional support services for people exiting in prison without
stable, long-term accommodation supports;

Homelessness awareness training for NSW police;

The appalling conditions in unlicensed boarding houses and the need for
stronger regulation of the boarding house sector.
StreetCare members have represented homeless people on the NSW Premier’s
Advisory Council on Homelessness, and the NSW Department of Family and
Community Services expert panel overseeing the reforms of specialist homelessness
services. Members also meet quarterly with senior officials of the NSW Department
of Family and Community Services and Centrelink to discuss the effectiveness and
opportunities for improvement of service operations and outreach services for
homeless people.
5
StreetCare members have also assisted in undertaking various consultation projects
involving direct engagement with other homeless people. In particular, over the last
two years, StreetCare and PIAC’s HPLS have undertaken the following homeless
consumer consultation projects:

Beyond the Prison Gates - the purpose of this project was to identify the
experiences of homeless people who had recently been released from prison.
The project involved conducting interviews with 26 people who had exited
from prison in the previous two years into homelessness.

Somewhere over the rainbow… - this project sought to present the views and
opinions of consumers with mental illness and experiences of homelessness,
regarding the difficulties and challenges they faced in exiting homelessness.
The project involved the conduct of three focus groups of 25 people in total
who had lived experience of mental illness and homelessness.
One of the unique aspects of these consultation projects was the involvement of
StreetCare members in the design, implementation and development of key themes
for the consultation focus groups and interviews. The involvement of StreetCare
members in the conduct of the consultation focus groups and interviews was an
essential ingredient in allowing participants to be open and expansive in their
comments, given their own experiences of homelessness and mental illness and the
difficulties they have encountered in securing housing.
These projects resulted in the presentation of reports documenting the views and
experiences of homeless consumers to NSW Government, and have been
instrumental in key reforms regarding additional resources for transitional
accommodation for people exiting correctional institutions, mental illness awareness
training for frontline staff of Housing NSW and specialist homelessness services, and
greater promotion of the automated rental deduction scheme for people in public
housing.
Conclusion
The rights to freedom of opinion and freedom of expression are indispensable for the
full development of the person, and are therefore considered essential for any
society. In referring to them as two of the foundation freedoms, the Human Rights
Commissioner is echoing the sentiments of the UNHRC, which consider them to
constitute the foundation stone for every free and democratic society.9
9
United Nations Human Rights Committee General Comment No. 34, paragraphs 2-3.
6
However the UNHRC also considers that these freedoms are closely related to the
right to participate in public affairs, with freedom of expression providing the vehicle
for the exchange and development of opinions. The Committee states that freedom
of expression is a necessary condition for the realisation of the principles of
transparency and accountability that are essential for the promotion and protection of
human rights and is integral to the enjoyment of the right to participate in public
affairs.10
However, for the most disadvantaged and marginalised in our community, the rights
to freedom of expression and to participate in public affairs are not accessible without
active, well-resourced facilitation and enabling. As part of its duty to ensure respect
for these foundation freedoms, the State has an obligation to ensure that those most
marginalised in society are enabled to exercise these freedoms on an equal footing
to all others. Consumer participation and engagement projects such as the
StreetCare Homeless Consumer Advisory Committee are strategies by which
homeless people have been so enabled to exercise their rights to freedom of
expression and participation in public affairs.
For more information about StreetCare visit their website:
http://www.piac.asn.au/projects/StreetCare/introduction
You can also view a short video about the StreetCare and hear from the members:
https://www.youtube.com/watch?v=X2d5Vml-z-w&feature=c4overview&list=UUYfo3ze0ZdUYmXAAWSQkUsQ
10
Ibid, paragraphs 3-4.
7