When Housing Determines Freedom: Rethinking Bail and Parole Justice

This article examines how the justice system reinforces existing social inequalities by tying liberty to housing status. In Tasmania and across Australia, individuals experiencing homelessness or unstable accommodation are more likely to be denied bail or parole -not because of increased risk, but because they lack a fixed address. The piece argues that such practices amount to institutional discrimination and calls for urgent reform to ensure that access to freedom is not determined by economic circumstance.

‘The justice system tends towards conserving and reproducing our current social antagonisms and injustices, including poor people in their place.’[1]

In Tasmania, as is the case across this nation, if you are homeless, or have unstable accommodation, then the legal system punishes you. You may not get bail. You may not get parole. In other words you are deprived of your liberty simply for living on the streets or couch surfing.

If, however, you are a member of the bourgeoisie and have somewhere to live then you are rescued from the awfulness of detention.

This is what Karl Marx got right about the legal system-it maintains the status quo.

The law needs reform. It is scandalous to think that a judicial officer or a parole authority is not going to grant you freedom because you have no address to provide the court or the board.

It could be said that by insisting you have accommodation the authorities are upholding the right to housing. But that is not why they want you to provide an address.

It is, in part, so police can conduct curfew checks. Or that they can make it a condition of your bail or parole you must live at a particular address.
In an era when homelessness is the order of the day for so many people who are disadvantaged in a myriad of ways the current bail and parole laws and standards are simply a form of institutionalized discrimination.

And the idea of a ‘suitable address’, often used by parole authorities when considering a person’s liberty is itself problematic. It is a concept laden with judgement by individuals and systems that see ‘suitable’ in a particular way. It is completely subjective.

You cannot preach ‘equality before the law’ and day after day discriminate against a particular group in the community who, through no fault of their own, are the victims of the failure by governments to treat housing as an enforceable human right.

We should reform bail laws and practices so that if you do not have a ‘suitable address’ that is not a barrier to obtaining bail. And parole authorities need also to recognize that liberty cannot be denied simply because of a person’s bad luck and the failure of society to ensure they are housed.

The current system is a matter of choice, reflecting the values of a particular class in society.

It does not have to be this way.

As Palesa Rose MadiI and Lubabalo Mabhenxa argue; ‘A fixed residential address and the ownership of assets, while different, are both indicators of an accused’s economic status, and adjudicating bail applications on this basis discriminates against accused persons and runs counter to international human rights provisions and constitutional rights.’[2] They are writing in the South African context where the constitution includes a strong human rights charter. But their observation is accurate in the Australian context.

But it is not only the requirement for housing in bail hearings that is problematic it is the fact individuals who have short term housing, or who are living in a room in a property, and who are not given bail will lose that accommodation.

As one person in the criminal justice system put it;

‘That’s one of the key things that we always get down at the Magistrates’ Court. Someone comes in on custody. It’s, ‘look, I need bail to keep my house. If I’m on remand, my house is going to be trashed. My property’s going to be stolen or I’m going to go into arrears and I’m not going to be able to keep my place.’
This quote illustrates the point McNamara and colleagues make which is that homelessness ‘may not only diminish the chance of a person being granted bail, it can be a result of bail refusal.’[3]

To focus on Tasmania instead of the government proposing, at it is, ‘tougher’ bail laws, it should end the discrimination against those who are marginalised in society. Amend the Bail Act so that lack of a residential address is at its highest only a minor or secondary factor in deciding bail. And parole authorities should not refuse parole simply on the basis that a returning citizen has very limited accommodation options, including short term ones.

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[1] Richard Garside,’ Living in poverty is punishment itself’, (2020) Centre for Crime and Justice Studies https://www.crimeandjustice.org.uk/living-poverty-punishment-itself

[2] Madi, Palesa Rose, & Mabhenxa, Lubabalo, ‘Possibly unconstitutional? The insistence on verification of address in bail hearings’ (2018) 66 South African Crime Quarterly, 19

[3] McNamara L, Quilter J, Walsh T and Anthony T (2021) Homelessness and contact with the criminal justice system: Insights from specialist lawyers and allied professionals in Australia, (2021) 10(1) International Journal for Crime, Justice and Social Democracy 112, 120.

April 2026

Greg Barns SC
Barrister, Republic Chambers