Defending Begging Offenders

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.