Highlights from our practice areas

Annual Report 2021 - 2022

We have three areas of legal practice: criminal law, family law, and civil law. Each practice includes specialist services. Staff from different practice areas regularly collaborate to better serve clients with multiple legal needs and to apply a wide lens to law reform initiatives. Increasingly, our specialist services follow a multidisciplinary model.

Criminal law

Our criminal law practice is the largest in Australia. It provides legal information, advice, minor assistance, extended legal assistance, duty services, and representation in criminal courts at each jurisdictional level across the state.

The practice offers community legal education throughout NSW and contributes to law reform initiatives. The Children’s Legal Service, Prisoners Legal Service (PLS), Drug Court Unit, High Risk Offender Unit, Indictable Appeals Unit, and the Commonwealth Crime Unit provide specialist criminal law services.

Fact file
Total staff:	302
Total expenditure on criminal law services:	$199.9M
Proportion of overall expenditure on criminal law services:	46.9%

Based on total casework, including extended legal assistance services.

Female	20.3%
Born in non-English speaking countries	8.5%
Interpreter required	3.1%
With dependants	4.7%
On Commonwealth benefits	46.9%
Aboriginal and Torres Strait Islander	21.4%
Aged under 18	7.6%
Aged 18 to 60	89.2%
Aged over 60	3.2%
Rural and regional*	59.5%

*Includes Newcastle and Wollongong

2017–2018	237,826
2018–2019	247,471
2019–2020	238,195
2020–2021	239,585
2021–2022	224,747

We provided 224,747 criminal law services to clients in 2021–2022.*

*Information services are not included in service counts in this section

26,162 Total legal representation:

In-house: 8,386
Assigned: 17,776

164,479 Total duty services:

In-house: 100,229
Assigned: 64,250

34,106 Total other services:

Legal advice: 28,089
Minor assistance: 5,883
Extended legal assistance: 134

Our dedicated Walama Unit was established in our Central Sydney office in May 2022. The specialist team comprises a small number of solicitors who work with advocates and a social worker to support clients to access and remain part of the Walama List Pilot at Sydney District Court.

The pilot provides an alternative sentencing procedure for eligible Aboriginal and Torres Strait Islander defendants. It introduces a First Nations narrative that informs the court about a client’s circumstances and formulates an appropriate and effective case plan before they are sentenced. The aim of the Walama List is to reduce rates of Aboriginal and Torres Strait Islander incarceration and reoffending. The List’s inauguration was marked by a ceremonial sitting of the NSW District Court on 4 April 2022.

Legal Aid NSW’s annual Criminal Law Conference was again a virtual event this year and was livestreamed to an audience of over 650 in-house and private lawyers over two days in early June 2022 from the Novotel Sydney Darling Square.

The conference was opened by NSW Attorney General the Hon. Mark Speakman SC and included a keynote speech on ‘When an accused goes into evidence’ from the Hon. Andrew Bell, Chief Justice of New South Wales. Other highlights included engaging panel sessions on sexual assault consent reforms, the Walama List and terrorism prosecutions. Several presentations were of particular practical relevance to Local Court and Children’s Court duty solicitors including sessions on child protection prohibition orders and the Child Protection Register – an area of increasing relevance to all practitioners.

The Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 implemented new affirmative consent reforms in NSW on 1 June 2022. The Act aimed to clarify consent provisions in the Crimes Act 1900, including that consent is a free and voluntary agreement that should not be presumed. The reforms implemented recommendations made by the NSW Law Reform Commission (LRC) in Report 148: Consent in relation to sexual offences. New jury directions about consent have also been introduced.

To ensure lawyers were well-informed and prepared for the reforms, we provided a range of training and resources throughout May and June 2022. This included a presentation and panel session providing an overview of the changes at the annual Criminal Law Conference, as well as webinars on the reforms presented by Public Defender Christine Mendes and University of Wollongong Professor Julia Quilter.

As a member of the EAGP Working Group, we worked with other stakeholders including the ALS, the Public Defenders and the Law Society of NSW to identify opportunities to improve the implementation of EAGP reforms. We aim to continue achieving the intended outcomes of the reforms – fewer late guilty pleas, resulting in fewer trials, fewer delays and reduced stress on those involved in criminal proceedings.

The scheme was evaluated in 2021 by the NSW Bureau of Crime Statistics and Research. The evaluation found that ongoing delays in briefs of evidence being served on the Office of the Director of Public Prosecutions by investigating police, delays in the charge certification process and lack of continuity in legal representation, contributed to an undermining of the scheme objectives.

Offices in the hard lockdown local government areas adapted quickly to digital ways of working in 2021 to maintain service delivery to clients in Western Sydney where access to courts and offices was limited.

Our Local Court practices at Liverpool, Blacktown, Bankstown, Fairfield, Burwood and Parramatta started working with digital-only files, digitising court documents for virtual court appearances and receiving briefs and fresh custody papers entirely electronically from police. Files were opened and closed without needing to archive or physically store any documents.

In June 2022 the Criminal Law Division contributed to the Independent National Security Legislation Monitor’s Review of Division 105A of the Criminal Code Act 1995 (Cth).

Division 105A establishes a scheme for the continuing detention or supervision of ‘terrorist offenders’, where a court is satisfied that a person poses an unacceptable risk of committing a serious terrorism offence if released into the community at the end of their gaol term.

Our evidence and submission to the review drew on the experience of the High Risk Offender Unit in representing the first respondent to a Commonwealth continuing detention order application in NSW, an Aboriginal man from the South Coast of NSW. We recommended legislative safeguards to ensure that the scheme is appropriately targeted to meet its intended objectives and to prevent the scheme impacting disproportionately on offenders with mental and/or cognitive impairment and on First Nations people.

An increasing number of our clients are charged with terrorism offences, have a designation as a national security inmate, come to the attention of authorities for their views or face terrorism related post-sentence orders. We have set up a community of practice aiming to bring together practitioners in this area of law to better facilitate the sharing of resources and provide peer support.

Successful appeal results in changes to federal sentencing law
Totaan v R [2022] NSWCCA 75 Our client pleaded guilty to a series of offences involving under-declaring or failing to declare Centrelink income over a period of approximately 10 years. During that period she had been the subject of emotional, financial, and physical abuse at the hands of her former partner, the father of her two children. Section 16A(2)(p) of the Crimes Act 1914 (Cth) provides that, when sentencing a federal offender, a court must consider ‘the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants’. During the sentencing proceedings, our client gave evidence about the hardship on her mother and her two young children should she be imprisoned. The sentencing judge applied existing caselaw to conclude that any hardship experienced by the applicant’s family was not exceptional and therefore did not take it into account. Our client was sentenced to four years gaol. A full bench of the NSW Court of Criminal Appeal (CCA) allowed our client’s appeal. The CCA held the sentencing judge erred by failing to take the hardship to third parties into account. The CCA found that hardship to a family member or dependant does not have to rise to the level of ‘exceptional’ and that prior cases were ‘plainly wrong’. The CCA reduced our client’s gaol term, and she was subsequently released on a good behaviour bond.

Successful appeal results in changes to federal sentencing law

Totaan v R [2022] NSWCCA 75

Our client pleaded guilty to a series of offences involving under-declaring or failing to declare Centrelink income over a period of approximately 10 years. During that period she had been the subject of emotional, financial, and physical abuse at the hands of her former partner, the father of her two children.

Section 16A(2)(p) of the Crimes Act 1914 (Cth) provides that, when sentencing a federal offender, a court must consider ‘the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants’. During the sentencing proceedings, our client gave evidence about the hardship on her mother and her two young children should she be imprisoned.

The sentencing judge applied existing caselaw to conclude that any hardship experienced by the applicant’s family was not exceptional and therefore did not take it into account. Our client was sentenced to four years gaol.

A full bench of the NSW Court of Criminal Appeal (CCA) allowed our client’s appeal. The CCA held the sentencing judge erred by failing to take the hardship to third parties into account. The CCA found that hardship to a family member or dependant does not have to rise to the level of ‘exceptional’ and that prior cases were ‘plainly wrong’.

The CCA reduced our client’s gaol term, and she was subsequently released on a good behaviour bond.

Representing prisoners in COVID-19-related isolation or prison lockdowns was one of our Criminal Law Division’s major challenges in 2021–2022. COVID-19 entered the mainstream NSW prison system in August 2021, prompting a statewide lockdown of all correctional centres in NSW.

Our in-house crime solicitors made bail applications as appropriate, noting the risk of transmission within the prison system and the impact of restrictive measures implemented within prisons to mitigate that risk.

Legal Aid NSW criminal lawyers continued to highlight in sentencing submissions their clients’ appalling experience in custody during the COVID-19 pandemic – which included lockdowns, isolation and quarantine.

The Criminal Law Division also commissioned a report from Professor Caroline Homer, Co-Program Director Maternal and Child Health at the Burnet Institute, on the risk of COVID-19 to pregnant women and their unborn babies and the impacts this may have on pregnant women in custody.

The PLS advocated on behalf of individual prisoners seeking early release to parole and for systemic measures that the State Parole Authority could take to reduce revocations of intensive correction orders or parole orders. The PLS also instituted Supreme Court judicial review proceedings on behalf of a number of prisoners at particular risk of COVID-19 in prison. The plaintiffs sought review of the Commissioner of Corrective Service’s refusal to grant early release to parole under the COVID-19 emergency power in section 276 of the Crimes (Administration of Sentences) Act 1999 (NSW). Two of our clients, including a pregnant First Nations prisoner, were ultimately released on leave permits because of the action.

We continued to advocate for improvements in accessing clients in custody through the contribution of case studies to the Inspector of Custodial Services’ review into the response to COVID‑19 in youth and adult custodial centres in NSW.

Legal Aid NSW’s audio-visual link team took part in an Inmate Mobile Phone Pilot, in which some inmates affected by COVID-19 isolation at Silverwater prison, were given phone access via Bluetooth headsets. Despite challenges getting access, our AVL team and the PLS called inmates every day who were otherwise extremely isolated from friends, family, support services and their lawyer.

Court Orders amended to reflect cultural considerations
State of New South Wales v De Vries (Final) [2022] NSWSC 247 We appeared in proceedings under the Crimes (High Risk Offenders) Act 2006 (NSW) brought against Glenn De Vries, a Gamilaraay man with significant complex needs including post-traumatic stress disorder and a cognitive impairment. The state of NSW was seeking an extended supervision order (ESO) which contained a series of complex and potentially confusing conditions. Any breach of an ESO condition carries five years gaol. The Supreme Court was asked to consider the appropriateness of the ESO conditions sought. By consent of the parties the conditions were simplified in plain English and explained through pictures. The conditions were also revised to reflect insights provided by Wiradjuri expert Aunty Glendra Stubbs, who provided a report to the court on the types of conditions that might be appropriate for an Aboriginal person and the support and management needed to help our client comply with them. The court agreed to impose conditions that were better adapted to our client’s cultural, family and cognitive circumstances and needs, and more likely to assist in achieving both the protection of the community and our client’s rehabilitation. The decision highlights the importance of First Nations expertise in appropriate framing of court orders and the benefits of plain English court orders – which can be more readily understood and are more likely to be complied with. The decision is particularly important given the high proportion of people with cognitive impairment in the criminal justice system.

Court Orders amended to reflect cultural considerations

State of New South Wales v De Vries (Final) [2022] NSWSC 247

We appeared in proceedings under the Crimes (High Risk Offenders) Act 2006 (NSW) brought against Glenn De Vries, a Gamilaraay man with significant complex needs including post-traumatic stress disorder and a cognitive impairment. The state of NSW was seeking an extended supervision order (ESO) which contained a series of complex and potentially confusing conditions. Any breach of an ESO condition carries five years gaol.

The Supreme Court was asked to consider the appropriateness of the ESO conditions sought. By consent of the parties the conditions were simplified in plain English and explained through pictures. The conditions were also revised to reflect insights provided by Wiradjuri expert Aunty Glendra Stubbs, who provided a report to the court on the types of conditions that might be appropriate for an Aboriginal person and the support and management needed to help our client comply with them. The court agreed to impose conditions that were better adapted to our client’s cultural, family and cognitive circumstances and needs, and more likely to assist in achieving both the protection of the community and our client’s rehabilitation.

The decision highlights the importance of First Nations expertise in appropriate framing of court orders and the benefits of plain English court orders – which can be more readily understood and are more likely to be complied with. The decision is particularly important given the high proportion of people with cognitive impairment in the criminal justice system.

In 2017 the Law Enforcement and Conduct Commission (LECC) commenced an investigation into the NSW Police Force’s (NSWPF) administration of the NSW Child Protection Register under the Child Protection (Offenders Registration) Act 2000 (NSW). The investigation found that serious problems had been evident with the register for 17 years. NSW Police had made over 700 incorrect decisions about who needed to be included on the register, or about the number of years for which people on the register were legally required to report. A second review in 2021 looked at actions taken to fix these issues.

The Criminal Law Division provided a submission to the second LECC review. The submission highlighted the inadequacy of letters sent by NSW Police to individuals who may have mistakenly been put on the register or given incorrect information by police about the length of their reporting periods. As a result of the LECC review, NSW Police agreed to send a further letter to these individuals providing more specific information and confirming whether the person has current reporting obligations.

The LECC report also highlighted our efforts to assist in the detection of errors on the register by developing training and resources for lawyers about the sex offender registration scheme. In August 2021 the Legal Aid NSW Board approved expanding the Extended Legal Assistance service to people seeking to correct errors in their registration status on the NSW Child Protection Register.

Additional PLS Magistrates were appointed in several Local Courts across NSW in 2022 including Albury, Port Kembla and Coffs Harbour. The aim of the Local Court expansion is to reduce pandemic-related delays in the Local Court. To support this initiative, additional criminal lawyers have been employed in relevant regional offices. Planning around placement of new roles was informed by the Crime Resource Allocation Model – a tool developed by our Business Reporting Unit which enables us to assess existing workload demands across regional crime practices and make sure that limited public funding for criminal law services is directed to those locations of greatest need.

Breaches of ICOs are a key driver of the incarceration of Aboriginal and Torres Strait Islander people.

The availability of ICOs was expanded as part of the 2018 NSW sentencing reforms. Breaches of ICOs are reported to the State Parole Authority (SPA) by Community Corrections officers. In many cases, breach action leads to revocation of the ICO and the offender’s return to custody. Legal Aid NSW has observed a substantial increase in revocation proceedings since the 2018 sentencing reforms even though many conditions such as community service, drug and alcohol testing, and home visits were paused during the pandemic. By mid-2019 more than 25% of ICOs were revoked.

Over the last year we engaged with Community Corrections and the SPA to identify opportunities to reduce the rate of unnecessary breaches and prevent returns to custody. In late 2021, an early ICO intervention pilot commenced with the Community Corrections’ Remote Service Delivery Team and the PLS. Community Corrections identified offenders at risk of breach action and, with consent, passed on the offender’s contact details so that the Prisoners Legal Service could provide advice and assistance to the offender. The aim of the pilot was to prevent breaches of ICOs and parole orders. The pilot was expanded to Dubbo in early June 2022 and will be reviewed in early 2023

Important Supreme Court decision on child protection registration orders
[redacted] v Commissioner of NSW Police [2021] NSWSC 1159 Our client was a 30-year-old man with diagnosed mental health problems and drug dependency. He had been in trouble with the police for minor but repeated offending. He had never been convicted of a child sex offence and so was not subject to automatic registration under the Child Protection Offenders Registration Act 2000 (NSW) (CPOR Act). However, the Local Court can also make an order under the Act if a sentence (apart from a non-conviction order) has been imposed for any offence, including a traffic violation, and the court is satisfied that ‘the person poses a risk to the lives or sexual safety of one or more children’. Orders place enormous restrictions on the liberty and privacy of the registrable person. The NSW Police applied to the Local Court for a child protection registration order against our client. The order was made in our client’s absence. The Magistrate made no reference or finding at all as to whether our client posed a risk to the lives or sexual safety of children. On appeal to the Supreme Court, Lonergan SCJ found that the original order was invalid. The Commissioner of Police conceded that there was jurisdictional error arising from the failure of the Magistrate to consider the mandatory requirements under the CPOR Act. The order was quashed and a series of convictions and sentences that had wrongly been imposed for breaching the order were also set aside. Our client spent more than six months in jail before his sentences were quashed. This case provides a reminder of the importance of courts carefully applying the CPOR Act given the significant incursion on civil liberties and increased risk of criminal liability involved.

Important Supreme Court decision on child protection registration orders

[redacted] v Commissioner of NSW Police [2021] NSWSC 1159

Our client was a 30-year-old man with diagnosed mental health problems and drug dependency. He had been in trouble with the police for minor but repeated offending. He had never been convicted of a child sex offence and so was not subject to automatic registration under the Child Protection Offenders Registration Act 2000 (NSW) (CPOR Act).

However, the Local Court can also make an order under the Act if a sentence (apart from a non-conviction order) has been imposed for any offence, including a traffic violation, and the court is satisfied that ‘the person poses a risk to the lives or sexual safety of one or more children’. Orders place enormous restrictions on the liberty and privacy of the registrable person.

The NSW Police applied to the Local Court for a child protection registration order against our client. The order was made in our client’s absence. The Magistrate made no reference or finding at all as to whether our client posed a risk to the lives or sexual safety of children.

On appeal to the Supreme Court, Lonergan SCJ found that the original order was invalid. The Commissioner of Police conceded that there was jurisdictional error arising from the failure of the Magistrate to consider the mandatory requirements under the CPOR Act. The order was quashed and a series of convictions and sentences that had wrongly been imposed for breaching the order were also set aside. Our client spent more than six months in jail before his sentences were quashed.

This case provides a reminder of the importance of courts carefully applying the CPOR Act given the significant incursion on civil liberties and increased risk of criminal liability involved.

We will place more staff in Dubbo to support the expansion of the NSW Drug Court to far west NSW.
We will support commitments to Closing the Gap targets on reducing adult incarceration by trialling early intervention services for offenders on parole and subject to intensive correction orders.
We will work with Youth Justice NSW and other stakeholders to pilot measures to reduce unnecessary short-term remand rates for children and young people.
We will develop a quality assurance framework to support and sustain high standards of service delivery by our in-house criminal lawyers.

Family law

Legal Aid NSW is home to the largest family law practice in Australia. It provides legal information, advice and minor assistance, extended legal assistance, early resolution assistance, duty services, dispute resolution and case representation in family law matters. The practice also provides community legal education throughout NSW and contributes to law reform initiatives.

The Early Intervention Unit, Domestic Violence Unit, Child Support Service, Appeals and Complex Litigation Unit, and Family Dispute Resolution Unit provide specialist services. These services are available at our offices and outreach locations.

Fact file
Total staff:	231
Total expenditure on family law services:	$97.4M
Proportion of overall expenditure on family law services:	22.9%

Based on total casework, including extended legal assistance and early resolution assistance services.

Female	61.7%
Born in non-English speaking countries	8.4%
Interpreter required	3.6%
With dependants	24.7%
On Commonwealth benefits	59.4%
Aboriginal and Torres Strait Islander	19.6%
Aged under 18	30.1%
Aged 18 to 60	67.3%
Aged over 60	2.6%
Rural and regional*	66.1%

*Includes Newcastle and Wollongong

We provided 58,848 family law services to clients in 2021–2022*

*Information services are not included in service counts in this section

9,473 Total legal representation:

In-house: 1,499
Assigned: 7,974

13,154 Total duty services:

In-house: 11,011
Assigned: 2,143

36,221 Total other services:

Legal advice: 26,706
Minor assistance: 6,921
Extended legal assistance: 96
Early resolution assistance: 2,498

In 2021–2022, we developed a blueprint about the future direction of our Family Law Division. It prioritises our most vulnerable and disadvantaged clients, ensures our services are culturally safe and accessible, and provides greater consistency. The blueprint identified care and protection as our key priority and helped articulate the purpose of our Family Law Division: to keep families safe and functional.

The blueprint articulates our commitment to meeting Closing the Gap targets by reducing the overrepresentation of Aboriginal and Torres Strait Islander children in out of home care and keeping women and families safe from domestic and family violence. To address these goals, we established the Family Law Service for Aboriginal Communities.

Our new specialist team FamAC, has been created to provide outreach, casework, community legal education and duty services at court to Aboriginal and Torres Strait Islander communities. The FamAC team also supports and trains other family law and care and protection lawyers who work with Aboriginal and Torres Strait Islander families and advocates on systemic issues that affect those families.

A solicitor in charge and two solicitors have been appointed to roles in the team and funding has been secured for the team’s expansion. The team has already started providing outreach services in Moree.

In 2021–2022, we implemented better screening for domestic and family violence and revised our Priority Client Guidelines to help staff better identify and prioritise vulnerable clients to ensure they receive representation from an in-house lawyer wherever possible.

Clients who are Aboriginal or Torres Strait Islander people, are children, have a disability, are experiencing domestic and family violence, are at risk of forced marriage or human trafficking, live in a remote area, identify as LGBTQI+, or have other vulnerabilities, are now prioritised for an in-house service.

In addition, we implemented an interdisciplinary approach to casework in some locations, providing wrap-around legal and social support to help clients engage more fully in the legal process.

We made it easier for clients to get our help by introducing a new pathway to representation in Family Dispute Resolution (FDR) mediation, which is now administered through Early Resolution Assistance. This pathway does away with the need for a client to complete a complex application for legal aid and makes representation in a Legal Aid NSW FDR conference more accessible.
Legal Assistance for Families: Partnership Agreement (LAFPA)

In June 2022, the Family Law Division executed the LAFPA with the Department of Communities and Justice (DCJ) and the Aboriginal Legal Service

following 12 months of consultation. The agreement will introduce a new process allowing DCJ to refer families they work with for legal advice at the earliest opportunity. The new process prioritises early intervention and alternative dispute resolution, ensures a more collaborative relationship through regular meetings and embeds electronic processes for service. This piece of work will greatly assist Legal Aid NSW to contribute to work aimed at meeting Closing the Gap targets.

The Family Law Division led Legal Aid NSW’s response to the Family is Culture Legislative Reform Discussion paper. The Family is Culture Review Report released in 2019 is arguably the most important report in relation to the NSW child protection system. The report proposes whole-system reform to create a culturally safe experience for Aboriginal families.

In developing our response, consultations with staff across the Family Law Division were held to share experiences, ideas and case studies, and workshop new initiatives and progressive ways to ensure the child protection system is fit for purpose. It is likely that legislative amendments will now be introduced in three stages commencing in 2022.

On 1 September 2021 the Federal Circuit Court and the Family Court of Australia merged to form the Federal Circuit and Family Court of Australia (Divisions 1 and 2), creating a variety of new rules and processes.

To support both in-house and panel lawyers, the Family Law Division organised virtual training to help family lawyers prepare for these changes.

Support with child support debts
We recently assisted an Aboriginal man who approached us at a WHOS Health Justice Partnership at Lilyfield where he was undergoing a residential drug and alcohol rehabilitation program. The man has adult children and had accumulated $8,000 worth of penalties for a small amount of child support he owed. We advised our client that he needed to pay his child support debt and we could then ask Child Support to consider his special circumstances and waive the penalties. The man readily agreed to a payment plan to repay the child support and we successfully made an application to waive the penalties. Our client was so happy, telling our solicitor that he would now have more money to spend on his grandchildren each week.

Support with child support debts

We recently assisted an Aboriginal man who approached us at a WHOS Health Justice Partnership at Lilyfield where he was undergoing a residential drug and alcohol rehabilitation program. The man has adult children and had accumulated $8,000 worth of penalties for a small amount of child support he owed.

We advised our client that he needed to pay his child support debt and we could then ask Child Support to consider his special circumstances and waive the penalties. The man readily agreed to a payment plan to repay the child support and we successfully made an application to waive the penalties. Our client was so happy, telling our solicitor that he would now have more money to spend on his grandchildren each week.

In 2021–2022, the Family Dispute Resolution (FDR) team delivered 3,078 mediations, the highest number of mediations ever held in a financial year and a 5% increase on the previous highest number.

Available data shows that FDR has seen an increase in referrals to the Court Ordered Mediations Program (COMP), which reflects the confidence courts place in the service. We also saw an increase in referrals and a 35% increase in mediations held under the Commonwealth Property Pilot, performing 110 mediations over the last 12 months.

This year we delivered 17 training sessions to a total of 1,009 staff and 812 panel lawyers, often making these sessions available as recordings.

We trained 39 new independent children’s lawyers (ICLs) through the three phases of the national ICL training program and trained new solicitors to undertake work in the Federal Circuit and Family Court of Australia as part of the Family Violence and Cross-Examination Scheme.

We developed and rolled out specialist training for lawyers new to care and protection, delivering sessions to 100 in-house staff. We also developed a mandatory training package focused on child representation involving senior care practitioners and Children’s Court registrars, clinicians and Magistrates, and delivered this package to 79 participants.

The 2021 Legal Aid NSW Family Law and Care and Protection Conference brought together more than 450 lawyers, judges, community sector professionals and experts from across NSW. The conference’s theme challenged attendees to ‘do things differently for vulnerable families’ – and the event was also done differently. It was the division’s first ever entirely virtual conference and took place mid-lockdown.

Speakers attended both virtually and in-person, and audiences participated from around the state in an event described by attendees as ‘informative’, ‘impressive’, and ‘fantastically facilitated’. An impressive line-up of speakers included Judge Elizabeth Boyle of the Federal Circuit and Family Court of Australia, Children’s Court of NSW President Judge Peter Johnstone, Federal Circuit and Family Court of Australia Deputy Chief Justice Robert McClelland and recent Legal Aid NSW alumna and now Federal Circuit and Family Court of Australia Judge Kylie Beckhouse.

In May 2022, we joined with the DCJ, the Children’s Court and the Office of the Children’s Guardian to host the Child Protection Legal Conference. Held over two days at the International Convention Centre, over 600 delegates attended in-person and online to hear from a range of international and local speakers on the topic of ‘My Life, My Story, My Culture’. Sessions focused on doing things differently for Aboriginal families, advocacy, cross-over kids and hearing the voices of children in care proceedings.

Our mediator panel was consolidated and reduced in 2021–2022 to ensure that all Family Dispute Resolution panel members have the skills, qualifications and experience required to continue to undertake high-quality mediation services for legal aid clients.

A competitive recruitment was also undertaken, which resulted in the appointment of a number of highly skilled and experienced mediators in central Sydney and across the regions.

Abduction of women and children to countries that are not signatories to the Hague Convention is a significant issue for Legal Aid NSW’s clients, especially vulnerable culturally and linguistically diverse clients. We have been working on enhancing Legal Aid NSW’s capacity to assist these clients, and ran an interim hearing in 2021–2022 which considered the concept of habitual residence in cases where a child is stranded in another country without their mother.

We have also looked at legal, practical and strategic visa and passport issues for clients and have had good results in a number of cases. We will continue this work over the next 12 months.

Helping a young man in care return to New Zealand
The Coffs Harbour family law team acted for a 13-year-old boy this year who was originally from New Zealand. He came to Australia and was passed between family members for a few years until no one was available to care for him, resulting in him being dropped off at a police station. We have worked with DCJ to support him to return to live in New Zealand with his older sister. As arrangements were made for the transition, he was originally in a group home. Following negotiations, he was granted a temporary placement where he had a much more positive relationship with his carers. We liaised with a New Zealand care lawyer to ensure that his sister’s home was appropriate. We successfully obtained an order for the young person to be placed in care to 18 years, with long-term care arrangements to be transferred to the New Zealand care team for management. A carer from NSW accompanied him on the trip to ensure he felt safe on the journey.

Helping a young man in care return to New Zealand

The Coffs Harbour family law team acted for a 13-year-old boy this year who was originally from New Zealand. He came to Australia and was passed between family members for a few years until no one was available to care for him, resulting in him being dropped off at a police station.

We have worked with DCJ to support him to return to live in New Zealand with his older sister. As arrangements were made for the transition, he was originally in a group home. Following negotiations, he was granted a temporary placement where he had a much more positive relationship with his carers.

We liaised with a New Zealand care lawyer to ensure that his sister’s home was appropriate. We successfully obtained an order for the young person to be placed in care to 18 years, with long-term care arrangements to be transferred to the New Zealand care team for management. A carer from NSW accompanied him on the trip to ensure he felt safe on the journey.

We continued to provide flexible and innovative service delivery to assist families impacted by domestic and family violence in 2021–2022. We experienced unprecedented demand for these services – our Domestic Violence Unit (DVU) received over 11,245 telephone calls, over 5,500 email referrals, and provided 7,460 duty services, 1,750 advice services and 1,530 minor advice services.

The DVU upgraded its telephone system to a 1800 hotline number with several features, such as call routing and a call back function, in response to this unprecedented number of calls. The team worked in partnership with the Family Law Courts, Local Courts and key external stakeholders such as the the Women’s Domestic Violence Court Advocacy Service (WDVCAS) and police to ensure that high-quality, targeted services continued to be provided to families impacted by domestic and family violence despite the impacts of COVID-19 – particularly during periods when courts were closed.

Supporting a victim of coercive control
Tien* experienced extreme coercive control perpetrated by her ex-husband. Her marriage was characterised by a long and unreported history of domestic and family violence, including physical, sexual and emotional abuse. Tien’s ex-husband used gaslighting and manipulation to undermine her relationship with their child and to isolate Tien from her family, friends, and community. Tien separated from her ex-husband after his behaviour escalated and a neighbour called the police following a serious violent incident. Tien’s ex-husband was charged with domestic violence-related offences and an apprehended domestic violence order (ADVO) was made for Tien’s protection. Tien was referred to the Domestic Violence Unit urgently by WDVCAS after her ex-husband attended her home in breach of the ADVO and took their young child. The DVU attempted to negotiate the child’s return, and assisted Tien with an urgent recovery application. Following an ex-parte interim hearing, Tien’s child was returned to her. No orders were made for the child to spend time with his father due to unacceptable risk of harm. Tien is engaged with the WDVCAS and a DVU social worker to assist with her non-legal needs, including risk assessment and safety planning. *not her real name

Supporting a victim of coercive control

Tien* experienced extreme coercive control perpetrated by her ex-husband. Her marriage was characterised by a long and unreported history of domestic and family violence, including physical, sexual and emotional abuse. Tien’s ex-husband used gaslighting and manipulation to undermine her relationship with their child and to isolate Tien from her family, friends, and community.

Tien separated from her ex-husband after his behaviour escalated and a neighbour called the police following a serious violent incident. Tien’s ex-husband was charged with domestic violence-related offences and an apprehended domestic violence order (ADVO) was made for Tien’s protection.

Tien was referred to the Domestic Violence Unit urgently by WDVCAS after her ex-husband attended her home in breach of the ADVO and took their young child. The DVU attempted to negotiate the child’s return, and assisted Tien with an urgent recovery application.

Following an ex-parte interim hearing, Tien’s child was returned to her. No orders were made for the child to spend time with his father due to unacceptable risk of harm. Tien is engaged with the WDVCAS and a DVU social worker to assist with her non-legal needs, including risk assessment and safety planning.

*not her real name

We work with external agencies to provide community legal education, advocate for changes to the law, and refine our ways of working to make the biggest impact for vulnerable families. In 2021–2022:

the Domestic Violence Unit (DVU) continued its partnership with the Department of Communities and Justice to provide education about domestic violence to religious and community leaders
the DVU partnered with NSW Police and services such as WDVCAS to provide training to domestic violence operatives about domestic and family violence alongside victim-survivors
our staff gave evidence on then-proposed federal family violence orders in the Senate Legal and Constitutional Affairs Legislation subcommittee
we supported the Law Society of NSW to develop Working with clients affected by domestic and family violence, a guide for family law practitioners which was released in October 2021
our Early Intervention Unit established an internal Health Justice Partnership Community of Practice to help improve services
staff participated in and chaired a huge number of working groups including the Greater Sydney Family Law Pathways Network, the national Forced Marriage Consultation Group, the LGBQTIA+ People on Temporary Visas Experiencing Violence Community of Practice, the Legal Aid NSW Family Violence Specialist Network and the National Family Advocacy and Support Services Community of Practice.

Lawyers in our regional offices continued to work with local agencies in 2021–2022, allowing them to be accessible and to develop personal connections to valuable service providers in their area.

The team in Wagga Wagga has worked with DCJ since the beginning of 2022 to implement early intervention referral processes and to ensure all parents in care proceedings are represented.

The Wollongong family team continues to play an active role with the Illawarra Southern Highlands Family Law Pathways Network, and the Lismore family law team is part of the Tweed Domestic Violence Integrated Response Committee (DVIRC), Lismore DVIRC and Kyogle Anti-Violence Alliance. The Lismore team participates in interagency meetings attended by health and community workers, police, council members, Momentum Collective, Lucy’s Project and other interested groups.

Assisting a young woman caring for her siblings
Our Bankstown office is assisting a young Aboriginal woman in parenting proceedings who has been the carer for her siblings for several years. We helped her file a recovery order application when the children were retained by their father, which caused significant concern for their safety. The children were then returned to our client’s care. Complex family dynamics, intergenerational trauma, and multiple social issues are involved in this matter, and created stressors during the court proceedings. Our client has experienced significant family violence in two relationships, Centrelink issues and severe financial hardship. She has been at risk of homelessness, and has struggled with debts, minor criminal charges, and mental health difficulties. We took a holistic and multi-disciplinary team approach. Our social worker engaged with the client to advocate for her with various services, resulting in her being able to pay off her rental arrears and retain her home, obtain food vouchers for essentials, apply for financial support from Victims Services, obtain her Centrelink payment, and apply for a priority housing transfer due to safety concerns in her current property. The team took a flexible and sensitive approach throughout the legal process. A solicitor has been able to arrange assistance from our criminal law team regarding our client’s criminal law matters and our client has maintained engagement with her solicitor and social worker throughout the proceedings. Our client is currently engaging well with supports and has both children in her care as the court proceedings continue.

Assisting a young woman caring for her siblings

Our Bankstown office is assisting a young Aboriginal woman in parenting proceedings who has been the carer for her siblings for several years. We helped her file a recovery order application when the children were retained by their father, which caused significant concern for their safety. The children were then returned to our client’s care.

Complex family dynamics, intergenerational trauma, and multiple social issues are involved in this matter, and created stressors during the court proceedings. Our client has experienced significant family violence in two relationships, Centrelink issues and severe financial hardship. She has been at risk of homelessness, and has struggled with debts, minor criminal charges, and mental health difficulties.

We took a holistic and multi-disciplinary team approach. Our social worker engaged with the client to advocate for her with various services, resulting in her being able to pay off her rental arrears and retain her home, obtain food vouchers for essentials, apply for financial support from Victims Services, obtain her Centrelink payment, and apply for a priority housing transfer due to safety concerns in her current property.

The team took a flexible and sensitive approach throughout the legal process. A solicitor has been able to arrange assistance from our criminal law team regarding our client’s criminal law matters and our client has maintained engagement with her solicitor and social worker throughout the proceedings. Our client is currently engaging well with supports and has both children in her care as the court proceedings continue.

We will trial the LAFPA early intervention referral process in three locations and roll it out across the state.
We will expand FASS duty lawyer services across all Federal Circuit and Family Court of Australia circuit locations, allowing us to better serve vulnerable clients.
We will partner with the Civil Law Division to expand the Aboriginal Women Leaving Custody program to deliver family law, care and protection and domestic violence legal support.
We will establish a holistic, wrap-around legal and social support service to Aboriginal parents experiencing mental health issues (delivered by FamAC).
We will consult with the FDR Aboriginal mediator panel and with the community to develop and implement a trial mediation model that is more culturally appropriate and safe for Aboriginal families.

Civil law

Ours is the largest publicly funded civil law practice in Australia and the work of our civil lawyers and allied professional staff is wide-ranging. Our civil practice covers housing and tenancy, human rights, social security, consumer protection, disaster response and insurance, employment, discrimination, immigration, visa cancellation, the NDIS, mental health law, fines, coronial inquests, and the Sexual Assault Communications Privilege Service (SACP). We have dedicated services for Aboriginal and Torres Strait Islander communities, children, refugees, prisoners, veterans, older people experiencing elder abuse, and communities affected by disasters.

We provide civil law services in our offices, by phone and at outreach locations. We also provide duty services at the Mental Health Review Tribunal and Youth Koori Court.

Fact file
Total staff:	216
Total expenditure on civil law services:	$43.8M
Proportion of overall expenditure on civil law services:	10.3%

Based on total casework, including extended legal assistance services.

Female	52.6%
Born in non-English speaking countries	15.3%
Interpreter required	8.4%
With dependants	2.7%
On Commonwealth benefits	50.2%
Aboriginal and Torres Strait Islander	28.4%
Aged under 18	5.0%
Aged 18 to 60	72.9%
Aged over 60	16.2%
Rural and regional*	49.2%

*Includes Newcastle and Wollongong

2017–2018	80,388
2018–2019	79,692
2019–2020	67,653
2020–2021	55,869
2021–2022	52,963

We provided 52,963 civil law services to clients in 2021–2022.*

*Information services are not included in service counts in this section

1,412 Total legal representation:

In-house: 790
Assigned: 622

12,574 Total duty services:

In-house: 1,035
Assigned: 11,539

38,977 Total other services:

Legal advice: 30,151
Minor assistance: 7,905
Extended legal assistance: 919
Early resolution assistance: 2

In February and March 2022, catastrophic floods impacted thousands of people in the Northern Rivers, Clarence Valley and Hawkesbury regions, causing homelessness and financial hardship. Legal Aid NSW immediately mobilised the Disaster Response Legal Service (DRLS), and the response is ongoing. From 1 March to 30 June 2022 we provided over 2,700 legal services.

The magnitude of this disaster required an adaptive and flexible approach to reach as many communities as possible. The DRLS service model developed after the Black Summer bushfires was activated, offering a 1800 helpline, legal help at recovery centres, community legal education and a dedicated website with self-help tools.

Legal Aid NSW coordinated the statewide legal assistance sector disaster response with community legal centres, tenants’ advice and advocacy services, Justice Connect, the Law Society of NSW and the NSW Bar Association. We also worked with the NSW Tenants Union and the Financial Rights Legal Centre’s Insurance Law Service who provided specialist legal and strategic input.

Given the scale and geographic spread of the floods, Resilience NSW established 11 recovery centres and 25 recovery assistance points across NSW. We combined our resources with the Northern Rivers Community Legal Centre and the Western Sydney Community Legal Centre and local tenancy services to maximise our presence at recovery centres. This collaboration was essential in ensuring that the worst-impacted communities could access frontline legal help. Together we staffed recovery centres, responded to emerging systemic issues and shared training and resources to ensure clients received consistent, trauma-informed services.

We regularly engage with industry, regulators and government to advocate for improved practices and reform in the aftermath of a disaster, particularly where a decision has had a disproportionate impact on disadvantaged members of the community.
During the 2022 floods, the DRLS and the Northern Rivers Community Legal Centre identified an issue with the eligibility criteria for the NSW Government’s Back Home Grant. The definition of homeowner, taken from the Real Property Act 1900 NSW, excluded caravan owners who lived in Residential Land Lease Communities (caravan parks) and paid site fees, many of whom had lost everything in the floods.

As a result of our advocacy, Service NSW revised its guidelines to make eligible caravan owners entitled to $15,000 for structural damage in addition to $5,000 for contents.

Assisting flood victims
We assisted an elderly client during the February 2022 floods who attended the Lismore Recovery Centre. His home was inundated, and he needed temporary accommodation near his medical specialists and General Practitioner due to multiple health issues. Our client wanted a lump sum payment for a temporary dwelling on his property so he could be close to medical services and supervise the rebuild of his home. In response to the floods, the Lismore City Council amended its policies to allow temporary dwellings on land without a Development Application (DA) for up to two years. Eleven weeks after the flood, our client’s insurer had not paid anything towards his temporary accommodation or paid his benefit for lost contents. Even though he was covered for flood and his benefit included temporary accommodation, he had to rely on friends for a place to stay. Legal Aid NSW wrote to the insurer to try to resolve the matter. After 14 days without a response despite follow up, we lodged a dispute with the Australian Financial Complaints Authority (AFCA). Three days after lodging the dispute the client’s full temporary accommodation benefit and the total loss amount for contents were paid. The client was happy and relieved as the situation had caused him a great deal of stress.

Assisting flood victims

We assisted an elderly client during the February 2022 floods who attended the Lismore Recovery Centre. His home was inundated, and he needed temporary accommodation near his medical specialists and General Practitioner due to multiple health issues.
Our client wanted a lump sum payment for a temporary dwelling on his property so he could be close to medical services and supervise the rebuild of his home. In response to the floods, the Lismore City Council amended its policies to allow temporary dwellings on land without a Development Application (DA) for up to two years.

Eleven weeks after the flood, our client’s insurer had not paid anything towards his temporary accommodation or paid his benefit for lost contents. Even though he was covered for flood and his benefit included temporary accommodation, he had to rely on friends for a place to stay.

Legal Aid NSW wrote to the insurer to try to resolve the matter. After 14 days without a response despite follow up, we lodged a dispute with the Australian Financial Complaints Authority (AFCA). Three days after lodging the dispute the client’s full temporary accommodation benefit and the total loss amount for contents were paid. The client was happy and relieved as the situation had caused him a great deal of stress.

Public Health Order fines

During 2021–22, 58,403 fines were issued for breaches of Public Health Orders amounting to $51,848,440. The 10 local government areas most affected by these fines, adjusted for population size, were Brewarrina, Coonamble, Gilgandra, Moree Plains, Walgett, Bourke, Gunnedah, Sydney, Cumberland and Blacktown. Seven of these communities are in remote locations with high Aboriginal populations.

In December 2021 our Work and Development Order (WDO) Service partnered with Revenue NSW to hold an online WDO sponsor forum in Central West and Far West NSW. Information about Public Health Order fines and the ability to clear them through the WDO Service was provided to over 45 WDO sponsors, advocates and organisations so they could support their communities in reducing the impacts of fines debt. Similar community legal education was delivered to a further 773 lawyers, advocates and community workers across NSW.

COVID-19 employment advice

We responded to a significant increase in demand for legal advice for employment-related issues resulting from COVID-19, providing over 270 COVID-19-related advice services out of a total of 1,538 for the year.

Many of our metropolitan and regional outreach services resumed face to face, including most of those run by our Civil Law Service for Aboriginal Communities (CLSAC).

We embraced new outreach opportunities – CLSAC partnered with the Family Law Service for Aboriginal Communities to establish a new joint outreach service in Moree, an area of significant legal need. The outreach was well received by the community and a great success, with more than 20 Aboriginal clients helped at each visit.

In line with our strategic plan, we developed a model for the Work and Development Order (WDO) Service. The WDO Service assists eligible clients to clear unpaid fines through participation in activities or treatment programs, and recruits and trains WDO sponsors.

After 10 years of operation, our aim was to increase access to WDOs for clients who need them most and align WDO operations with our client service framework. Our new model establishes clear service principles to ensure consistent delivery across NSW and allows for variation according to the client’s level of vulnerability and the barriers they experience. We have also improved our data and planning processes to ensure that services are targeted to regions and clients with the greatest need.

The Work and Development Order (WDO) Service partnered with the Cooperative Legal Service Delivery Program (CLSD) and the Advocacy Law Alliance to develop the CLSD Third Party Referral Project in 2021–2022. The project enables a third party CLSD service to sponsor eligible people to participate in WDO activities, improving access in remote and regional areas where approved sponsors can be hard to find.

Our General Advice Model trains and supports civil lawyers to provide basic family and criminal law advice when requested by clients, with support from specialist colleagues when needed.

In 2021–2022 the model was implemented by participating teams, with civil lawyers providing nearly 600 generalist services to clients in the last quarter. Teams report that being equipped to assist clients with a broader range of issues is professionally rewarding and means that disadvantaged clients, including those in remote locations and/or experiencing homelessness, are receiving immediate help for family and criminal law issues they would otherwise be unlikely to pursue.

Successful Stolen Generations Reparations Scheme outcome
Our client came to us for assistance after being twice declined a Stolen Generations Reparations Scheme payment. He was declined as his date of removal was after the 2 June 1969 cut-off. Our client told us that he had grown up on an Aboriginal mission and was raised by his father after his mother died when he was young. He recalled being taken when he was in kindergarten and started school somewhere else before going back to his father and being taken again. We obtained our client’s admission record and documents. When reviewing them we noted that whilst the court date was after the end of the scheme, the decision to remove had been made several weeks prior and delayed while staff were waiting on availability in the children’s home. We argued that this made our client eligible for the scheme based on the date that he was committed to care. Aboriginal Affairs said that they had some documents that alluded to our client and his four siblings being temporarily removed at that time, and this combined with the later removal being within time was sufficient to be awarded the payment. The client’s siblings also made successful applications for reparations with assistance from our Civil Law Service for Aboriginal Communities.

Successful Stolen Generations Reparations Scheme outcome

Our client came to us for assistance after being twice declined a Stolen Generations Reparations Scheme payment. He was declined as his date of removal was after the 2 June 1969 cut-off. Our client told us that he had grown up on an Aboriginal mission and was raised by his father after his mother died when he was young. He recalled being taken when he was in kindergarten and started school somewhere else before going back to his father and being taken again.

We obtained our client’s admission record and documents. When reviewing them we noted that whilst the court date was after the end of the scheme, the decision to remove had been made several weeks prior and delayed while staff were waiting on availability in the children’s home. We argued that this made our client eligible for the scheme based on the date that he was committed to care. Aboriginal Affairs said that they had some documents that alluded to our client and his four siblings being temporarily removed at that time, and this combined with the later removal being within time was sufficient to be awarded the payment.

The client’s siblings also made successful applications for reparations with assistance from our Civil Law Service for Aboriginal Communities.

During 2021–2022, we received Commonwealth funding to provide advice and representation services to women in Australia on temporary visas who left a relationship because of domestic and family violence. The Immigration Law team and our Domestic Violence Unit provided over 130 advice and minor assistance services, over 30 grants of aid and extended legal services, and obtained six permanent visas for women.

In November 2021, the collapse of the Aboriginal Community Benefit Fund (ACBF)/Youpla, a major funeral insurance provider, left thousands of Aboriginal consumers without funeral benefits.

We provided a significant number of services to affected clients and helped 207 to make successful complaints about ACBF’s conduct to the Australian Financial Complaints Authority. We successfully advocated for a reduction in the administrator’s fees and provided advice and education to Aboriginal communities and workers to help them understand the impacts of liquidation.

Legal Aid NSW raised concerns about the liquidity, conduct and regulation of ACBF companies since 2014. We are now advocating to government for fair compensation for Aboriginal consumers and working with consumer advocates on the Save Sorry Business campaign.

The Civil Law Service for Aboriginal Communities (CLSAC) successfully advocated for a one-year extension of the SGRS, originally due to end on 30 June 2022, because of the impacts of COVID-19. CLSAC will continue to raise awareness in Aboriginal communities about the scheme through community education efforts, and to help Stolen Generation survivors gather evidence and make submissions.

In December 2021, the Children’s Civil Law Service (CCLS) received permanent funding to continue partnering with the Aboriginal Legal Service (NSW/ACT) to provide wrap-around services to Aboriginal young people appearing in the Youth Koori Court at Surry Hills and Parramatta.

A CCLS duty lawyer conducts a legal health check with every young person in the Youth Koori Court to identify and help with any legal issues they have, including debts and fines, policing and out of home care. A CCLS youth caseworker helps the young person with their non-legal needs, which may otherwise present barriers to resolving their civil law needs.
Partnerships to support regional communities with policing issues

The Human Rights Group worked in partnership with the Kempsey-Nambucca Cooperative Legal Services Delivery (CLSD) program and other stakeholders in Kempsey, including Kinchela Aboriginal Boys Home Corporation, on the Mid-North Coast Policing Project in 2021–2022.

We conducted broad consultations, delivered information and legal education to community groups on civil law rights and remedies, developed and delivered specialised training for regional criminal lawyers and Aboriginal field officers, and created referral packs to improve access to civil law services for Aboriginal communities with concerns around policing issues.

Elder abuse is a complex and confronting issue for many of our older clients. Most perpetrators are family members, making it hard for clients to speak out.

Our Elder Abuse Service (EAS) partnered with the NSW Police Force to develop and deliver training to improve the identification of and response to elder abuse, and to develop effective referral pathways. Evaluation of the training was overwhelmingly positive, and the program has been approved for another three years.

The two most common types of elder abuse reported to the Elder Abuse Service this year were psychological and financial abuse, often occurring together. Overwhelmingly, financial abuse was committed by adult children. In the last financial year, the EAS recovered or secured over $1.8 million of client’s funds and equity in property.

World Elder Abuse Awareness Day

Our Elder Abuse Service (EAS) focuses on supporting First Nations communities. Mingaletta is an Aboriginal community hub based in Umina with its own Elders group. This year the EAS partnered with the Older Persons Mental Health Service and Community Health to deliver an Elders event at Mingaletta for Elder Abuse Day with lunch, information and free health checks. It was an opportunity to raise awareness about elder abuse and create connections.

Lawyers from our Veterans’ Advocacy Service (VAS) gave evidence to the Royal Commission into Defence and Veteran suicide in May 2022 about the challenges experienced by veterans trying to access their entitlements, covering the complex legislative environment, processing delays and errors.

We provided written submissions to the Royal Commission examining the complexity of the processes involved, particularly for those veterans with severe mental health conditions, as well as the lack of access to health professionals, especially in regional areas, and the loss of lump sum benefits and compensation for veterans with addictions.

The Royal Commission’s interim report will be delivered at the end of August 2022.

The Defence Force Ombudsman’s Scheme of reparation and support for those who were abused while serving in the Defence Force closed on 30 June 2022. In the past three years the Veteran’s Advocacy Service (VAS) assisted 24 veterans to make applications for reparation, resulting in payments of more than $400,000. The VAS conducted an awareness campaign to alert veterans the scheme was ending.

Poor awareness and understanding amongst professional participants in the criminal justice system around the protection of counselling records afforded to sexual assault victims under the Criminal Procedure Act 1986 (NSW) remains an ongoing issue adversely affecting victims.

Our Sexual Assault Communications Privilege Service (SACP) delivered an active program of education this year, running 13 training sessions for healthcare workers, private panel lawyers running SACP matters, Office of the Director of Public Prosecutions lawyers and the Family Violence Specialist Network.

The SACP Service published The Sexual Assault Communications Privilege – Review of Legislation, Case Law and Practical Guidance on Seeking SACP Material for use by the Criminal Law Division, and a flyer for General Practitioners to help them better understand and respond to domestic and family violence.

Supporting a client to keep her social housing placement
King v NSW Land and Housing Corporation [2022] NSWCATAP 165 Our client was a 57-year-old Aboriginal woman facing termination of her social housing tenancy for noise and nuisance. Her neighbour had complained that she was interfering with their right to peace, privacy and quiet enjoyment. Our client had a diagnosis of schizophrenia with serious comorbidities and was on a community treatment order. The incidents were manifestations of her illness. Given the complexity of her conditions, her treating psychiatrist reported that her life was at serious risk if she became homeless. NCAT terminated the tenancy at first instance on the basis that she had breached her tenancy agreement by causing noise and nuisance. The legislation requires the Tribunal to consider the ‘circumstances of the case’ when deciding whether to terminate a tenancy. The Tribunal had decided that Ms King’s personal circumstances, including the fact that she was a social housing tenant, did not carry significant weight. The case was won on appeal, with a finding that the Tribunal had applied the wrong legal test by failing to take into account a mandatory consideration, namely the circumstances of the case. Relevant circumstances included our client’s vulnerabilities, the fact that she was living in a social housing tenancy and the likely effect of the termination on her life. This decision sets a precedent that will benefit all NSW tenants with mental health illnesses and reduce the risk of homelessness for social housing tenants.

Supporting a client to keep her social housing placement

King v NSW Land and Housing Corporation [2022] NSWCATAP 165

Our client was a 57-year-old Aboriginal woman facing termination of her social housing tenancy for noise and nuisance. Her neighbour had complained that she was interfering with their right to peace, privacy and quiet enjoyment. Our client had a diagnosis of schizophrenia with serious comorbidities and was on a community treatment order. The incidents were manifestations of her illness. Given the complexity of her conditions, her treating psychiatrist reported that her life was at serious risk if she became homeless.

NCAT terminated the tenancy at first instance on the basis that she had breached her tenancy agreement by causing noise and nuisance. The legislation requires the Tribunal to consider the ‘circumstances of the case’ when deciding whether to terminate a tenancy. The Tribunal had decided that Ms King’s personal circumstances, including the fact that she was a social housing tenant, did not carry significant weight.

The case was won on appeal, with a finding that the Tribunal had applied the wrong legal test by failing to take into account a mandatory consideration, namely the circumstances of the case. Relevant circumstances included our client’s vulnerabilities, the fact that she was living in a social housing tenancy and the likely effect of the termination on her life. This decision sets a precedent that will benefit all NSW tenants with mental health illnesses and reduce the risk of homelessness for social housing tenants.

In April 2022, the Civil Law Division employed a second financial counsellor. Based in the Consumer Law team, they provide invaluable help to clients struggling to pay bills, fines and debts. They also support civil lawyers in financial hardship matters to provide a more holistic service to clients.

Financial counsellors assist clients like Susan, who is a veteran in her mid-twenties. She has a mental health condition resulting from her service and receives a military pension. Susan was experiencing financial hardship and being chased by debt collectors for over $20,000. A regional office referred her to our financial counsellor and working collaboratively with a civil lawyer, we successfully advocated to have Susan’s debt waived.

Counsellors also help clients like Martha, a victim of family violence and financial abuse, who had many debts in her name and inaccurate listings on her credit report due to her ex-partner’s fraudulent and coercive conduct. After working with our financial counsellor, the debts were waived and her credit report is now clear.

Removing barriers to protection for asylum seekers
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 63 This was a landmark decision by the full Federal Court in a legally complex case involving asylum seekers who arrived by boat to Ashmore Reef. The judgment opened pathways to protection and permanent residence for over 2,000 asylum seekers. In essence, the judgment meant that they would no longer be prevented from applying for a visa without ministerial approval. The minister sought special leave to appeal to the High Court against this judgment, but special leave was refused on 10 December 2021 in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 & Ors [2021] HCATrans 217 (10 December 2021). This decision enables our client, a Vietnamese asylum seeker, to validly apply for a partner visa. While living in Australia he met and formed a long-term relationship with an Australian citizen. The judgment means he can be sponsored by his Australian citizen partner for a partner visa without having to seek the Minister’s permission. Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15 We filed proceedings in the High Court in its original jurisdiction for a Turkish asylum seeker who sought protection in Australia based on her sexual orientation. The Department of Immigration was on notice that our client was homeless and experiencing a serious mental illness, yet her protection visa application was refused without an interview. Amongst other things, the delegate queried the credibility of the applicant’s claims because of her perceived lack of engagement with the department, such as her failure to attend an interview and respond to letters. Proceedings had to be commenced in the High Court because she missed the strict time limits to seek review in the AAT due to her mental illness and homelessness. The High Court held that it was legally unreasonable to refuse a protection visa in circumstances where a homeless applicant with mental health issues and limited access to email was confused by unclear communications from officers of the department.

Removing barriers to protection for asylum seekers

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 [2021] FCAFC 63

This was a landmark decision by the full Federal Court in a legally complex case involving asylum seekers who arrived by boat to Ashmore Reef. The judgment opened pathways to protection and permanent residence for over 2,000 asylum seekers. In essence, the judgment meant that they would no longer be prevented from applying for a visa without ministerial approval.

The minister sought special leave to appeal to the High Court against this judgment, but special leave was refused on 10 December 2021 in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CBW20 & Ors [2021] HCATrans 217 (10 December 2021).

This decision enables our client, a Vietnamese asylum seeker, to validly apply for a partner visa. While living in Australia he met and formed a long-term relationship with an Australian citizen. The judgment means he can be sponsored by his Australian citizen partner for a partner visa without having to seek the Minister’s permission.

Plaintiff S183/2021 v Minister for Home Affairs [2022] HCA 15

We filed proceedings in the High Court in its original jurisdiction for a Turkish asylum seeker who sought protection in Australia based on her sexual orientation. The Department of Immigration was on notice that our client was homeless and experiencing a serious mental illness, yet her protection visa application was refused without an interview. Amongst other things, the delegate queried the credibility of the applicant’s claims because of her perceived lack of engagement with the department, such as her failure to attend an interview and respond to letters.

Proceedings had to be commenced in the High Court because she missed the strict time limits to seek review in the AAT due to her mental illness and homelessness. The High Court held that it was legally unreasonable to refuse a protection visa in circumstances where a homeless applicant with mental health issues and limited access to email was confused by unclear communications from officers of the department.

The Legal Aid NSW Government Law team partnered with Macquarie University this year, hosting four students each semester as part of Macquarie’s clinical legal program.

The 12-week placement provided students with the opportunity to observe and assist lawyers in all aspects of preparation for a migration case. Two participating students were subsequently employed by Legal Aid NSW.

Securing review rights for National Disability Insurance Scheme participants
QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 (18 October 2021) The Full Federal Court of Australia set aside a decision of the Administrative Appeals Tribunal (AAT) that narrowed the tribunal’s jurisdiction to review supports provided to participants of the National Disability Insurance Scheme (NDIS). The court’s decision was an important win for NDIS participants and was welcomed by disability advocates around the country. Our client was a young boy with autism spectrum disorder who applied to the AAT for review of the supports included in his NDIS plan in July 2019. Our client was seeking supports including increased funding for therapies and support workers. In April 2021, the AAT determined it did not have jurisdiction to review these supports as they were not specifically raised by our client at an internal review conducted by the National Disability Insurance Agency (NDIA). The AAT’s decision had widespread implications for NDIS participants seeking review of their plans by the tribunal. It created particular difficulties for people with limited ability to articulate their support needs and for people whose needs changed during the course of tribunal proceedings. Our client was granted legal aid to appeal the AAT’s decision to the Federal Court of Australia as a test case. In the meantime, there were 12 AAT decisions on the issue, many of which reached conflicting conclusions as to the scope of the tribunal’s jurisdiction. Prior to our client’s appeal being heard, the NDIA reached the view that the AAT’s decision was incorrect. The full court agreed to set aside the AAT’s decision by consent and published reasons given the public importance of the case, which confirmed that the AAT has jurisdiction to review all of a participant’s support needs.

Securing review rights for National Disability Insurance Scheme participants

QDKH, by his litigation representative BGJF v National Disability Insurance Agency [2021] FCAFC 189 (18 October 2021)

The Full Federal Court of Australia set aside a decision of the Administrative Appeals Tribunal (AAT) that narrowed the tribunal’s jurisdiction to review supports provided to participants of the National Disability Insurance Scheme (NDIS). The court’s decision was an important win for NDIS participants and was welcomed by disability advocates around the country.

Our client was a young boy with autism spectrum disorder who applied to the AAT for review of the supports included in his NDIS plan in July 2019. Our client was seeking supports including increased funding for therapies and support workers. In April 2021, the AAT determined it did not have jurisdiction to review these supports as they were not specifically raised by our client at an internal review conducted by the National Disability Insurance Agency (NDIA). The AAT’s decision had widespread implications for NDIS participants seeking review of their plans by the tribunal. It created particular difficulties for people with limited ability to articulate their support needs and for people whose needs changed during the course of tribunal proceedings.

Our client was granted legal aid to appeal the AAT’s decision to the Federal Court of Australia as a test case. In the meantime, there were 12 AAT decisions on the issue, many of which reached conflicting conclusions as to the scope of the tribunal’s jurisdiction. Prior to our client’s appeal being heard, the NDIA reached the view that the AAT’s decision was incorrect. The full court agreed to set aside the AAT’s decision by consent and published reasons given the public importance of the case, which confirmed that the AAT has jurisdiction to review all of a participant’s support needs.

Develop the Civil Law Blueprint to determine the future direction and priorities of the Civil Law Division.
Implement NLAP funding for the new Respect at Work Legal Service to address sexual harassment and discrimination, expand mental health services and the Aboriginal Women Leaving Custody program.
Deliver civil law services to the new Youth Koori Court in Dubbo.
Continue to provide services to communities impacted by the 2022 floods.
Establish a civil law practice in our Broken Hill office.
Review our disaster response model to ensure it is scalable, flexible and can meet the ever-increasing demand for legal help in the aftermath of widespread disasters.

The unprecedented frequency, intensity, and geographic spread of natural disasters across NSW in the past 18 months has created an exponential increase in demand for legal services. We will seek to develop a sustainable resourcing model to respond to those demands.

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Highlights from our practice areas

Criminal law

26,162 Total legal representation:

164,479 Total duty services:

34,106 Total other services:

Family law

9,473 Total legal representation:

13,154 Total duty services:

36,221 Total other services:

Civil law

1,412 Total legal representation:

12,574 Total duty services:

38,977 Total other services:

Public Health Order fines

COVID-19 employment advice

World Elder Abuse Awareness Day

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Highlights from our practice areas

Criminal law

Criminal law client profile

Criminal law services over five years

26,162 Total legal representation:

164,479 Total duty services:

34,106 Total other services:

New Walama Unit

Annual Criminal Law Conference

Training on new consent laws

Improving Early Appropriate Guilty Plea (EAGP) reforms

Digital practices trial

Review of the Commonwealth high risk offender regime

New terrorism community of practice

Advocacy on behalf of prisoners impacted by COVID-19

Law Enforcement and Conduct Commission’s review of the sex offender register

Supporting the Local Court expansion

Working with Community Corrections to reduce breaches of intensive correction orders (ICOs)

The year ahead

Family law

Family law client profile

Family law services over five years

9,473 Total legal representation:

13,154 Total duty services:

36,221 Total other services:

Developing our family law blueprint

Family Law Service for Aboriginal Communities (FamAC)

Priority client guidelines

Family Dispute Resolution

Family is Culture Legislative Reform Discussion paper

Merger of the Federal Circuit Court and Family Court

Mediation numbers rise

Delivering training to the family law sector

2021 Legal Aid NSW Family Law and Care and Protection Conference

Child Protection Legal Conference

Ensuring high-quality mediators

Appeals and Complex Litigation Unit

Supporting families impacted by domestic violence during the pandemic

Working with partner agencies to achieve change

Local links support families in regional hubs

The year ahead

Civil law

Civil law client profile

Civil law services over five years

1,412 Total legal representation:

12,574 Total duty services:

38,977 Total other services:

Responding to the flood crisis

Addressing systemic issues in disaster recovery

Responding to the COVID-19 pandemic

Public Health Order fines

COVID-19 employment advice

Resumption of outreach

Work and Development Order service model

Improving regional access to Work and Development Orders

Civil lawyers implement the General Advice Model

Domestic violence and immigration

Responding to the collapse of the Aboriginal Community Benefit Fund/Youpla

Extension of the Stolen Generations Reparations Scheme (SGRS)

Holistic services at the Youth Koori Court

Partnering with police to address elder abuse

Financial abuse of older people

World Elder Abuse Awareness Day

Royal Commission into Defence and Veteran Suicide

End of Defence Force Ombudsman’s Scheme

Protecting sexual assault victims

Expanding financial counselling services

Clinical placement program for Macquarie University Law Students

The year ahead

Key challenge