Abstract

Begging is a criminal offence in most Australian States and Territories. It is a strict liability offence, and thus the bases upon which those arrested for begging may defend the charge are limited. Most people charged with begging plead guilty and incur a penalty, and very few decisions in relation to the offence of begging are appealed or reported. The criminalisation of begging is unjust and unwarranted. Begging is directly associated with extreme poverty and homelessness, and common justifications for the retention of begging offences, including safety fears, aesthetics and mere annoyance are unpersuasive. In view of the fact that there seems to be little prospect of the removal of the offence of begging from Australian statute books, this paper suggests a number of bases upon which a charge of begging might be defended. It argues that the criminal law defence of necessity may be available to demonstrate that the resort to begging was proportionate to the peril of being unable to meet material needs such as food and shelter. It also raises constitutional arguments upon which the criminalisation of begging may be challenged, making use of the implied freedom of political communication and rule of law principles. Further, it provides an analysis of the various provisions of international human rights law which the criminalisation of begging contravenes.

Highlights

  • The act of begging constitutes a criminal offence in most Australian States and Territories including Victoria, Queensland, South Australia, Western Australia, Tasmania and the Northern Territory with penalties ranging from a fine of $50 to two years’ imprisonment.[1]

  • Social action campaigns aimed at persuading State and Territory governments to repeal begging offences in Australia have met little success

  • This paper suggests some legal and quasi-legal bases upon which a charge of begging might be defended, including the use of the defence of necessity, constitutional arguments relying on the freedom of political communication and rule of law principles, and arguments based on international human rights law

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Summary

INTRODUCTION

The act of begging constitutes a criminal offence in most Australian States and Territories including Victoria, Queensland, South Australia, Western Australia, Tasmania and the Northern Territory with penalties ranging from a fine of $50 to two years’ imprisonment.[1] In each of these jurisdictions, begging, ‘beg alms’ or loitering with intent to beg is framed as a strict liability offence, that is, mens rea need not be proved in order to establish the offence. Part IV will outline some potential bases upon which it may be argued that the criminalisation of begging is unconstitutional, and Part V will demonstrate the ways in which the offence of begging contravenes international human rights law

A Public Safety
B Public Annoyance
THE DEFENCE OF NECESSITY
A Freedom of Political Communication
B The Rule of Law
CONTRAVENTIONS OF INTERNATIONAL HUMAN RIGHTS LAW
A The Right to Freedom of Expression
B The Right to Liberty
C The Right to Equality Before the Law
D The Right to Freedom From Discrimination
CONCLUSION
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