By Paul Gregoire and Ugur Nedim
Prior to the unfolding of the colonial project in Australia, the British legal system enacted laws to govern the working poor. This framework consisted of vagrancy laws, master and servant laws, which upheld the power of employers, and poor laws that provided state charity.
According to Swinburne University lecturer Dr Julie Kimber, on establishing the penal colonies on this continent, the British authorities adopted and adapted vagrancy and master and servant laws, while any concern for charity was relegated to the private sector.
In her 2013 paper Poor Laws: A Historiography of Vagrancy in Australia, Dr Kimber sets out that in adopting British-style vagrancy laws, NSW and the other colonies provided local colonial authorities with powers to deal with the “free and recently-freed population”.
In Britain, vagrancy laws had set up a dichotomy between the “deserving and the undeserving poor”, Kimber posits. Being the focus of vagrancy laws, the undeserving poor became increasingly associated with society’s moral decay, as well as a growing criminal underclass.
The Colony of NSW passed An Act for the Prevention of Vagrancy and for the Punishment of Idle and Disorderly Persons, Rogues and Vagabonds in 1835. These laws empowered authorities to imprison the jobless, sex workers, habitual drinkers, and whites who associated with First Nations people.
The criminalisation of idleness
Vagrancy is the state of homelessness. A vagrant is said to source money via begging.
However, the vagrancy laws rolled out in mid-19th century NSW had a much wider reach, being used to not only imprison the jobless, but also those who would later be arrested under laws pertaining to consorting or prohibition.
The discretionary nature of vagrancy laws meant that police officers would apply them to people that in their opinion they were specifically drafted to target with – in other words, the undeserving poor.
The early NSW vagrancy laws were replaced by the Vagrancy Act 1902 (NSW). Section 4 of that legislation provided a long list of offences, including having no visible means of support, being a non-Indigenous person who consorts with Aboriginal people, being a sex worker or an habitual drinking.
Further offences included being the owner of a house where “reputed thieves” or the jobless frequented, begging, exposing oneself in public, gambling, carrying a weapon, resisting arrest, escaping from prison, uttering or publishing offensive language or content and breaching the peace.
By this stage in the evolution of vagrancy laws, it’s plain to see that the state of being homeless and jobless has been categorised as a crime that’s associated with a wide range of antisocial behaviours, as well as petty street level crime.
The Vagrancy Act stood until the enactment of the Summary Offences Act 1970 (NSW). It contained five divisions of offences, including those relating to public places, vagrancy and public assemblies. Many of the offspring of these laws now sit within the Summary Offences Act 1988 (NSW).
Modern anti-vagrancy laws
While vagrancy is no longer illegal in Australia, the related practice of begging is still a crime in most Australian jurisdictions. And while begging was decriminalised in NSW in 1979, laws designed to penalise the homeless and the undeserving poor continue to be discretionarily enforced in NSW.
These days, laws governing behaviour in public places continue to be used to target certain groups. The decision as to how these laws are applied is left to the discretion of NSW police: an institution built upon the myth of the undeserving poor and the actual overpolicing of First Nations people.
Although the highly-prejudicial law of public drunkenness was revoked in this state in 1979, section 198 of the Law Enforcement (Powers and Responsibilities) 2002 (NSW) allows police to move on an intoxicated person, who is posing a risk and acting “disorderly”.
Another power that disproportionately affects people on the street is the basic move on order. Section 197 of the LEPRA provides NSW police officers with the ability to direct a person to leave a public place under a range of scenarios, with the accompanying threat of penalty for noncompliance.
NSW police can issue a move on order when a person is obstructing another person, people or traffic, if they’re harassing or intimidating anyone, if they’re likely to cause a “person of reasonable firmness” to be fearful, or if they’re suspected to be in a public place to sell or buy illicit substances.
These days, NSW police officers are incentivised to distribute move on orders. Under the COMPASS program, police management provides each local area command with targets of the minimum number of move on orders officers should issue over a 12 month period.
The undeserving poor
Despite vagrancy no longer appearing on the books, the state of having “no visible means of support” continues to be policed and criminalised in many ways and the idea of the undeserving poor is applied by ministers as a political tool and by police to enforce a now unconscious malice.
This was displayed in the way that as soon as the COVID-19 pandemic lockdowns caused hundreds of thousands to lose their jobs, the Morrison government rose the rate of the unemployment benefit for the first time in a quarter of a century.
This meant that the new jobless – the deserving poor – were able to survive on a payment that sat just above the poverty line. Whereas now, the government is dropping the rate back to half the poverty line, so those who remain jobless – the undeserving poor – will have to go without.
Another vestige of past vagrancy laws are the NSW consorting laws, which were revamped in 2012. Section 93X of the Crimes Act 1900 (NSW) makes it a crime to continue associating with at least two convicted criminals after police warn an individual against doing so.
The subject of the order doesn’t have to have a criminal record of their own.
Ostensibly enacted to deal with bikie gangs and organised criminals, the NSW Ombudsman review of the consorting laws found they were mainly being applied to Aboriginal people and people experiencing homelessness.
Indeed, vagrancy appears to be the product of an unjust society that chooses not to provide for all, but rather punishes those it doesn’t support. And while vagrancy as an offence no longer exists, the system has only become more sophisticated in how it criminalises it and its associated behaviours.