Aboriginal and Torres Strait Islander clients

Annual Report 2023–24

Introduction

Aboriginal and Torres Strait Islander people experience heightened levels of disadvantage and are one of the most over-represented groups in our justice system as a result.

The Aboriginal Client Services Strategy 2019–2023 and 2024–2028 commit us to delivering culturally appropriate services to Aboriginal and Torres Strait Islander people and communities and increasing the number of Aboriginal and Torres Strait Islander clients we support.

Development of the Aboriginal Client Services Strategy 2024–2028

Building on learnings under our previous strategy, with a focus on the priority reforms within the National Agreement on Closing the Gap, the Aboriginal Services Branch has developed and launched the new Aboriginal Client Services Strategy 2024–2028 to replace the previous 2019–2023 strategy.

The new strategy is an overarching framework that guides Legal Aid NSW in the development of projects and programs that impact Aboriginal and Torres Strait Islander clients. It reshapes and embeds our commitment to centring Aboriginal and Torres Strait Islander clients within our service delivery. It intersects with the Legal Aid NSW Strategic Plan 2023–2028, the Best Practice Standards for Representing Aboriginal Clients and the Aboriginal Cultural Safety Framework.

The strategy aims to meaningfully adapt the way Legal Aid NSW services are delivered to Aboriginal and Torres Strait Islander people and communities.

Aboriginal Field Officer Program

Aboriginal field officers (AFOs) increase access to justice for Aboriginal and Torres Strait Islander people by engaging with the community, attending community outreach with lawyers and offering community legal education. AFOs work with lawyers to support Aboriginal clients not only with their legal matters but their unmet underlying social needs.

The Aboriginal Field Officer Program is an integral way Legal Aid NSW ensures our services for Aboriginal and Torres Strait Islander clients are culturally appropriate and responsive. AFOs ensure that Aboriginal communities across the state understand how to access Legal Aid NSW services and that our service delivery is collaborative and holistic.

Over the past two years, Legal Aid NSW has invested in this program to ensure our services are tailored to meet the needs of our Aboriginal and Torres Strait Islander clients as part of our commitment to the National Agreement on Closing the Gap. In 2023–24, we made important improvements to the AFO program.

New coordinator role supports AFOs statewide

An AFO coordinator role was created to provide guidance, support and mentoring to AFOs and to ensure the program is supported by best practice project and stakeholder management.

Increasing statewide AFO coverage

We added new AFO roles in Broken Hill, Blacktown, Lismore, Wagga Wagga and the inner city Local Courts. We now have 14 of these roles across the state in both regional and metropolitan areas.

Co-design of AFO guidelines

Our AFO guidelines were developed and endorsed in early 2024 to enhance understanding of the program. The guidelines are targeted at AFOs, solicitors in charge, lawyers and other internal staff to ensure that we deliver collaborative services to Aboriginal clients in a culturally appropriate and informed way.

The guidelines also provide helpful support for regional offices that may be onboarding a new AFO in an area where staff haven not worked with one before.

Best Practice Standards for Representing Aboriginal Clients

We reviewed and updated the Best Practice Standards for Representing Aboriginal Clients in 2023–24 to reflect our ongoing commitment to providing trauma-informed, culturally appropriate, high-quality and adaptable services tailored to meet the needs of Aboriginal and Torres Strait Islander people.

The updated standards provide both in-house and private practitioners with practical information and guidance on topics that may directly impact their representation of Aboriginal and Torres Strait Islander peoples.

Aboriginal Women on Remand Pilot

As part of our commitment to addressing the over-representation of Aboriginal women in the remand population, we developed the Aboriginal Women on Remand Pilot (AWRP), delivered by the Criminal Law Division.

The AWRP aims to fast-track Aboriginal women to an assessment for Supreme Court bail and provide a holistic model of service delivery and triage for Aboriginal women who are in custody waiting to appear before the court.

The AWRP team works closely with stakeholders and community organisations to reduce delays and resolve criminal law matters quickly, as well as to organise priority referrals to residential rehabilitation or other community support services where required.

Ensuring fair police procedures for an Aboriginal client

Mann v R [2023] NSWCCA 256

Mr Mann was a 22-year-old Indigenous man with an intellectual impairment and a vulnerable person under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), known as LEPRA, which sets out police powers in NSW.

On arrest, he was asked by the investigating detective to participate in a recorded interview. He sought advice from Aboriginal Legal Service (NSW/ACT) Limited who, on the client’s instructions, advised the police that Mr Mann did not wish to participate. The detective then asked Mr Mann’s mother, his nominated support person under LEPRA, if he wished to be interviewed. His mother confirmed that he did not.

The detective nevertheless proceeded to conduct the interview. Of the 38 offences of which he was subsequently convicted at trial, 13 were solely on the basis of admissions Mr Mann made during this interview. The trial judge found that the interview and admissions were improperly obtained under s138 of the Evidence Act 1995 (NSW). The trial judge admitted the interview into evidence despite the objections of Legal Aid NSW lawyers. In his view, the interview was of great importance to the Crown case and was highly reliable.

On appeal, the NSW Court of Criminal Appeal found that the evidence was improperly obtained and should have been excluded. The court said pressuring a vulnerable person into taking part in an interview was a significant departure from minimum standards of police conduct and ‘substantially improper’. It further said that the fact that many of the offences could only be made out based on self-admissions did not justify admission, and the desirability of admitting the evidence did not outweigh the undesirability of admitting it in light of the manner in which it was obtained.

The court allowed the appeal, and Mr Mann was acquitted of 13 convictions. A re-trial was ordered on the remaining 20 counts to which he had pleaded not guilty.

Expansion of the Aboriginal Women Leaving Custody Service

We successfully expanded the Aboriginal Women Leaving Custody (AWLC) Service to several regional correctional centres. The service is a partnership between our Family Law Service for Aboriginal Communities and Civil Law Service for Aboriginal Communities, which together expanded to the Mid North Coast Correctional Centre. Family law services also expanded to Clarence, Wellington, and Broken Hill.

The service addresses the unique challenges of Aboriginal women in custody as they reintegrate into society post-incarceration. It supports women in reconnecting with children and resuming parenting arrangements upon leaving custody, and it helps them save existing tenancies or access housing, among other legal issues.

Winha-nga-nha List

The Family Law Division was involved in developing and implementing the Winha-nga-nha List, a dedicated court list for Aboriginal and Torres Strait Islander families launched at Dubbo Children’s Court on 7 September 2023.

The list aims to improve engagement and self-determination through early conversations with families and is supported by earlier referrals for legal advice from the Department of Communities and Justice (DCJ) under the Legal Assistance for Families: Partnership Agreement (LAFPA).

Our commitment to this culturally safe process is underscored by our role in the Indigenous Care List Working Group, the establishment of a temporary Grade V position for implementation support, and the ongoing involvement of the Family Law Service for Aboriginal Communities (FamAC) team.

Family Law Service for Aboriginal Communities expands services

The FamAC team now offers support at additional Federal and Family Court of Australia registries with Specialist Indigenous Lists (SILs). It provides primary duty services in Sydney, Newcastle, Port Macquarie, Coffs Harbour and Lismore with the assistance of Family Advocacy and Support Services (FASS). FamAC also provides ongoing legal representation to Aboriginal parents and children in the SILs.

FamAC offers both legal and non-legal support to Aboriginal people involved in parenting matters or seeking to keep children with kin and connected to their communities.

FamAC has three Aboriginal field officers and a specialist caseworker who can provide in-court support in the SILs and Winha-nga-nha List and provide support to Aboriginal people to access culturally appropriate services.

Supporting underserved communities on outreach

The Civil Law Service for Aboriginal Communities (CLSAC) expanded its services to Wilcannia in 2023–24 in collaboration with the Broken Hill Legal Aid office, significantly improving access to legal assistance for Aboriginal people in Far-Western NSW. In 2023–24, we helped approximately 50 clients in Wilcannia, who totalled 7 percent of the local population.

We supported several clients who had been targeted by predatory sales of solar panels to Far-Western Aboriginal communities to reduce their debts and get refunds.

The year ahead

We will continue to implement the Aboriginal Client Strategy 2024–2028.
We will further develop and enhance the Aboriginal Field Officer Program by training staff on our Aboriginal field officer guidelines.
We will continue to support key Closing the Gap initiatives. We will create a standalone team to support clients who are part of the Walama List, support the expansion of circle sentencing, implement the Sacred Stories Program, continue to support the Aboriginal Women on Remand Program (AWRP) and support the expansion of the Sydney Drug Court.