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Annual Report 2010 - 2011

Legal practice highlights

"Legal Aid NSW helped set up the new Hunter Drug Court— a therapeutic approach to rehabilitating people with drug addictions caught up in the criminal justice system."

Criminal law

The criminal law practice provides legal information, advice, minor assistance, duty services and representation in criminal courts at each jurisdictional level across the State. These services are provided from the Central Sydney office and 19 regional offices.

Specialist advice, information, minor assistance, duty services and representation are provided through the Children’s Legal Service, Prisoners Legal Service and Drug Court.

The practice provides community legal education throughout New South Wales and contributes to law reform initiatives.

Fact file
Total staff: 314
Total expenditure: $109.644 M
State: $102.480 M
Commonwealth: $7.164 M
47.63% of our overall budget was spent on criminal law services.
Major achievements

Priority 1: Social inclusion

Fortnightly information sessions for defendants in traffic and domestic violence proceedings were rolled out to nine Sydney metropolitan and four regional Local Courts.

Services to clients suffering intellectual disability and mental health problems in the Shoalhaven area were improved through the commencement of a pilot that makes the services of our Client Assessment and Referral Service (see Holistic services) available to private lawyers acting for legally aided clients.

We expanded our mixed model (inhouse and private lawyer) of service delivery for juveniles facing criminal charges at Hornsby and Sutherland Children’s Courts.

Priority 2: Access to justice

The Prisoners Legal Service in Parramatta used audio-visual links to provide criminal and family law advice and information to prisoners in the newly opened South Coast Correctional Centre.

A project officer was appointed to identify early intervention initiatives that may assist people charged or at risk of being charged with, criminal offences.

Legal Aid NSW helped to set up the Hunter Drug Court, the second of its kind in New South Wales. The Drug Court commenced on 7 March 2011 with two criminal lawyers and one administrative officer participating in the Drug Court team, helping address the connection between drug use and crime in the Hunter region. Demand increased for our services in the Court of Criminal Appeal practice (appeals relating to those charged with terrorist offences); Supreme Court Bails practice (to accommodate extra lists of juveniles seeking bail); Children's Court practice (to cover the redistribution of work following renovations to Hornsby and Sutherland Court complexes); and in the Commonwealth crime practice (to cover persons charged with people smuggling offences who are being prosecuted in New South Wales).

Our lawyers worked together with private lawyers to provide representation for 95 alleged people smugglers who have been transferred to New South Wales. See Private lawyers - their casework.

Legal aid is only available for traffic offences if there is a real possibility of a gaol penalty, or there are exceptional circumstances. To assist people who are not eligible for legal aid, we published Drugs, driving and you for people pleading guilty to a Driving Under the Influence of a Drug charge.

Priority 3: Integrated services

Since September 2009, Wollongong civil and criminal lawyers have been working collaboratively on cases where Centrelink is prosecuting a fraud alleged to arise from an overpayment of a benefit. In some cases this involved pursuing administrative review prior to the criminal matter and in others, civil lawyers reviewing Centrelink documents to assist criminal lawyers in criminal matters. An evaluation showed the pilot has delivered good outcomes for clients, and increased targeted community legal education for groups identified as at risk. There are plans to implement this approach in more offices and locations.

Responding to changing laws and amendments

From 1 October 2010 a new community sentencing option called Intensive Correction Order (ICO) became available.

ICOs are a replacement for periodic detention which was a form of imprisonment served mid-week or on weekends at particular gaols in the State.

An ICO can be imposed on an offender for a period of up to two years. It is an alternative to full- time custody, and unlike periodic detention, it is available over a much wider area of the State. Offenders serving an ICO can be subject to strict conditions, have to undertake community work and do educational and rehabilitative programs.

This sentencing option has the advantage of being available to a larger proportion of eligible offenders in regional areas of New South Wales. It does, however, require compliance with strict conditions, making the risk of breach action and then imposition of a full time custodial order high.

The NSW Sentencing Council will report annually on the use of the new orders and will review them after five years. In addition, the NSW Bureau of Crime Statistics and Research will be asked to measure how effective the orders are in reducing re-offending. Our criminal law practice is monitoring the breach rate.

Graphs showing the breakdown of total Criminal Law client services

Graph showing the breakdown of Criminal Law client profile   Graph showing the 5 year trend in Total Criminal Law client services

Planning ahead

Year ahead

Establish the Commonwealth Crimes Unit for the defence of people charged with Commonwealth crime matters and particularly people-smuggling offences.

Provide assistance to defendants in domestic violence proceedings at one metropolitan and one regional court.

Develop more early intervention initiatives to improve services to people charged, or at risk of being charged, with criminal offences.

Key challenge

Developing early intervention services for people charged, or at risk of being charged, with criminal offences and testing new ways of helping clients avoid an escalation of their problems.

 

Criminal Lawyers - their casework

Case 1 - Eligible for the Drug Court

The 2009-2010 Annual Report referred to a case of Hilzinger which clarified eligibility for the Drug Court where the offence charged involved some degree of violence. It was noted that the decision of the Drug Court was subject to appeal in the Court of Appeal. The Court of Appeal handed down its decision in May 2011. The Court of Appeal held that the test applied for eligibility to the Drug Court requires the elements of the offence to be considered. Conduct will be considered in limited circumstances. The Court of Appeal was strongly influenced by the fact that the Drug Court can in its discretion refuse to accept a person if it considers all the circumstances of the offending mean they are not a proper person to be allowed onto the program.

This decision may see the scope of eligibility and how it relates to referred offences to the Drug Court being expanded. This will allow more clients access to the Drug Court Program where they may previously have been excluded.

Case 2 - Doorway to education

A 16-year-old pleaded guilty to serious offences. When he was sentenced in the Supreme Court the presiding judge found no special circumstances under s 19(3) of the Children (Criminal Proceedings) Act 1987 which would allow him to remain in a juvenile justice centre after the age of 18. We filed a Notice of Motion in the Supreme Court arguing the availability of educational and therapeutic programs in juvenile detention centres provided special circumstances. Our client had been studying for his HSC and was not able to complete his HSC in a classroom environment in adult custody. The young person was returned to juvenile justice custody so that he could complete the HSC.

Case 3 - Client rebuilds his life

Our client was charged with a series of offences committed over a year. He experienced drug addiction and homelessness and had a physical disability, at times sleeping rough. Despite a long criminal record, including significant periods in custody, this client had never undertaken drug rehabilitation.

He was referred to the Magistrates Early Referral Into Treatment Program, undertook detoxification and subsequently spent several months in a rehabilitation centre.

He returned to court after successfully completing the program, a changed person. He had addressed the underlying issues of his drug addiction. He was commended by the Magistrate and felt positive about finding a home. He received a number of good behaviour bonds, where he may otherwise have been facing a further custodial sentence.

Case 4 - Holistic help

A client with an intellectual disability who has schizophrenia had lived with his mother in the family home until she obtained an order evicting him due to frequent verbal arguments. He began living on the streets and was later charged with breaching the court order.

The duty solicitor arranged for funds to be provided by the mother to pay rent for new accommodation and other costs. The order was also amended to allow contact with his mother.

Meanwhile our Homeless Legal Outreach Service helped find accommodation and our social workers made arrangements for the Criminal Justice Support Network to support our client. His charges were ultimately dismissed under s 32 of the Mental Health (Forensic Provisions) Act 1990 and he was accepted for case management by Ageing, Disability and Home Care.

There is more information about criminal law cases and achievements on the Legal Aid NSW website in the Our work in action section

Family law

"We increased our minor assistance services in family law by 37.1%."

The family law practice provides legal advice, minor assistance, duty services and case representation in Commonwealth family law matters, including child support matters, and in state care and protection matters at 20 locations across the State.

Outreach services are provided in 65 locations where there are no Legal Aid offices. Family lawyers also undertake law reform and community legal education.

Early intervention and family dispute resolution services are provided across New South Wales.

Fact file
Total staff: 227
Total expenditure: $66.498 M
State: $18.306 M
Commonwealth: $48.192 M
28.89% of our overall budget was spent on family law services.
Major achievements

Priority 1: Social inclusion

We expanded our outreach services to 19 new locations throughout New South Wales after they were identified as a means of providing services to clients most at risk of social exclusion.

We introduced ‘minor assistance clinics’ as a way of improving services to people most at risk of social exclusion who would not otherwise be entitled to aid but need help to advocate on their own behalf.

Minor assistance covers work done in advice sessions such as simple correspondence and phone calls. The impact of this change can be seen by the 37.1% increase in minor assistance undertaken for clients.

An Early Intervention Unit was established with additional funding under the National Partnership Agreement. The Unit helps people resolve legal issues as early as possible and stay out of the court system by providing free specialist legal advice and assistance. It has already reached an additional 15 towns in rural areas where people had difficulty accessing family law services.

Priority 2: Access to justice

A pilot commenced at Parramatta Family Court registry, where the court directly refers matters to Legal Aid NSW for family dispute resolution, allowing parties to resolve their disputes without the need for further intervention by the courts.

We launched a pilot of alternate dispute resolution (ADR) in care and protection proceedings involving 100 matters referred from Bidura Children’s Court at Glebe, and have facilitated a number of mediations in District Court appeals.

Almost 13% of family law clients were Aboriginal, a proportion that has been rising steadily for the last few years. Family lawyers regularly attend Aboriginal Legal Service (NSW/ACT) offices and in the Campbelltown area, Aboriginal communities have much better access to family law services following the appointment of an Aboriginal Field Officer (see Priority client groups - Aboriginal people).

We introduced new family law services to Broken Hill in response to a regional need identified by the Far West Community Legal Centre.

We trained 10 lawyers from culturally and linguistically diverse backgrounds as mediators. See Client diversity.

Graphs showing total Family Law client services

Family Law client profile graph Total Family Law client services 5 year trend 

Planning ahead

Year ahead

Make sure more people in New South Wales have access to family law services by expanding Early Intervention Unit outreach and duty services and increasing outreach locations.

Launch four DVDs on family law topics and an interactive website to ensure information and advice about family law is accessible and available to clients, particularly those who are most disadvantaged.

Key challenge

Ensuring that our clients have access to a full range of early intervention legal services before their family law problems escalate. We will achieve this by expanding family law outreach locations and advice services, increasing the duty services provided in court registries, and continuing to integrate family dispute resolution processes into our services.

Family lawyers – their casework

Case 1 - Fast intervention

Our client is a refugee from Sudan and the mother of a small child. After the father took the child from her care, our client was sent to the Family Court registry in Parramatta and referred directly to the duty scheme offered by our new Early Intervention Unit.

An urgent application and affidavit were sent to the Australian Federal Police to ensure that the child could be placed on the Airport Watch List. The next day a Federal Magistrate ordered an ex-parte recovery order that was enforced by the Australian Federal Police who found the child and returned her to her mother.

Our Orange office picked up the matter and is representing the client under a grant of legal aid.

Case 2 - Child support

Our client is the sole carer of a 12-year-old girl with multiple physical and intellectual disabilities. Her daughter uses a wheelchair full time and a communication board to speak. Our client has to deal with the physical challenges of caring for her daughter in addition to the communication and learning difficulties associated with her daughter’s intellectual disability. This caring role will continue for the foreseeable future.

Our client’s former husband was not making regular financial contributions to his daughter, despite having the capacity to do so. The Court reassessed the situation and issued an order for $240,000 to be paid to our client.

Case 3 - An end to violence

Our client is the mother of two small children, who fled an abusive relationship in another state, taking her children to live with her mother. From a very young age, she had lived with her partner who regularly beat her.

There was little evidence corroborating the family violence except from our client’s mother.

The matter was defended with the father seeking a shared care arrangement.

We successfully obtained final orders that gave our client sole parental responsibility. The father was to have no contact with the children. An injunction restraining him from coming within 500 metres of our client or the children meant the young family could live free from violence and abuse.

Case 4 - Boys free to live their own lives

We acted for an Aboriginal father of two teenage boys. The mother had not been involved in her children’s lives for over 10 years. The children were heavily involved in a cultural group and had offers to travel overseas to showcase their culture; however the mother refused to sign the passport applications and went underground.

After months of trying to find the mother and serve her with court documents, orders were made in the exact terms we sought.

We helped our client change the youngest child’s name so that the passport application could be lodged. After that, the children were free to travel.

There is more information about family law cases and achievements on the Legal Aid NSW website in the Our work in action section.

Civil law

"We increased our minor assistance services in civil law by 37.6% – the result of more early intervention and outreach programs."

The civil law practice provides legal advice, minor assistance, duty and casework services to people through a practice in Central Sydney and 13 smaller practices in regional offices.

It has unique expertise in delivering cost-effective services to disadvantaged communities in a broad range of general law.

Civil law problems, if left unsolved, can have a far reaching impact on people’s lives. The impact can range from health problems to family breakdown and contact with the criminal justice system. The civil law program focuses on areas that have the most impact on people’s lives, including tenancy and housing issues, debt, social security and refugee and migration issues and other breaches of fundamental rights.

The program also directs its services towards people who are at most disadvantage in accessing legal services. This includes those living in rural and remote areas, homeless people and the elderly, people with a mental illness or other serious health issues, Aboriginal people, and people experiencing severe financial hardship.

Fact file
Total staff: 185
Total expenditure: $27.155 M
State: $19.933 M
Commonwealth: $7.222 M
11.79% of our overall budget was spent on civil law services.
Major achievements

Priority 1: Social inclusion

In 2010, Legal Aid NSW commissioned a review of the Central Sydney Civil Law Advice Service to achieve a more targeted, efficient and consistent civil law advice service – not just in Central Sydney but across the whole of Legal Aid NSW. The new approach that came out of that review has been implemented in three Legal Aid offices as pilot sites – Central Sydney, Coffs Harbour and Penrith – and will be trialled for six months before being rolled out to all offices. As a result of training and better resourcing, the service is working more efficiently. The waiting time for civil law appointments has been reduced from 4-5 weeks to just over 2.5 weeks. The attendance rates are also noted to be improved.

The Mortgage Hardship Service (MHS), now in its second year, provides advice and representation to people who are experiencing difficulty with their mortgage because of severe financial hardship. A key aim of the Program is to reach clients as soon as possible in the mortgage repossession process. This was pursued by building strong relationships with community workers and organisations likely to encounter people experiencing financial stress.

An independent evaluation by the Law and Justice Foundation of NSW in 2011 showed that the MHS has reached:

  • between 50%-60% of clients before the lender had issued a Statement of Claim; and
  • between 37%-40% before they had received a default notice.

This enabled 52% of clients (based on a sample study) to save their home (in contrast to research by the Australian Housing and Urban Research Institute, which concluded only a minority of severely stressed mortgagors sought advice, and of those who did, it was often too late to save their home).*

Also responding to an area of growing demand, our Government Law Section, specialising in social security, immigration and veterans’ law, assisted greater numbers of temporary visa holders where relationships have broken down because of family violence. See Civil lawyers - their casework.

Priority 2: Access to justice

The civil law practice focused on early intervention through timely advice and minor assistance in 2010-2011, providing much needed legal services to the most disadvantaged communities in areas such as fines and debt. This has directly resulted in a 37.6% increase in minor assistance services.

Expanding programs for Aboriginal people in the areas of victims’ compensation, Stolen Wages and wills was a priority, as was expanding outreach programs (see Priority client groups - Aboriginal people and Rural and regional outreach programs) and conducting community legal education.

Other priority client groups included older people, homeless people and people with a mental illness (see Priority client groups). Civil lawyers provided advice clinics in 17 gaols across New South Wales, providing advice on topics such as debt, fines and tenancy.

Our publishing program helped provide assistance to people with financial problems. Publications included:

  • a second edition of the Mortgage Stress Handbook, for people in danger of losing their homes – a national publication in partnership with the Consumer Credit Legal Centre;
  • The Credit Law Toolkit, distributed nationwide to financial counsellors, also in partnership with the Consumer Credit Legal Centre; and
  • Fined Out (3rd ed.) for people with fines debts in partnership with the Inner City Legal Centre and Redfern Legal Centre.

We also improved the quality of our employment law services, assisting workers with unfair dismissals, termination, redundancy entitlements, underpayment of wages and discrimination in the workplace.

Priority 3: Integrated services

We forged a national partnership that launched a new and innovative style of advocacy - the National Bulk Debt Project - on 18 May 2011. The project helps Australians who are totally reliant on social security (or who have no income) to ensure their money is used for food, shelter and household bills by collecting clients with debts owed to certain debt collectors and credit providers, and negotiating bulk waivers.

Our partners are Victoria Legal Aid and West Heidelberg Community Legal Service. The first national registration of clients opened on the project’s website on 30 June 2011.

*AHURI Research and Policy Bulletin, The great Australian nightmare: Mortgage default and repossession, Issue 128, July 2010

Graphs showing total Civil Law client services

Civil Law client profile graph  Total Civil Law client services 5 year trend graph

Responding to changing laws and amendments

In November 2010 the High Court decided that, contrary to the Government position, people arriving by boat to the Australian mainland were entitled to have access to the Australian courts to review decisions regarding their refugee status. This has led to a huge demand for representation for ‘irregular maritime arrivals’ in seeking judicial review of decisions that they are not refugees.

We are working with other legal aid commissions and the NSW and Victorian Public Interest Law Clearing Houses to develop a national approach to providing assistance for people in these circumstances.

Following a series of natural disasters, we contributed to a project called ‘A Fair Go In Insurance - consumer reform in insurance’. This project is a coalition of consumer advocacy and legal aid organisations that has released 12 recommendations for reform of the insurance industry. Recommendations include mandatory information for insured persons; a standard definition of ‘flood’; the clear statement of insurance exclusions; the extension of unfair terms law to insurance contracts; the timely determination of insurance claims; and expert involvement in the determination of flood risk.

The collaboration led to important meetings with Commonwealth ministers to put forward the consumer view of improving insurance outcomes, particularly in relation to flood claims.

We were also invited to be on the panel of the National Disaster Insurance Review and facilitated a consumer response to further inquiries into natural disasters and insurance. 

Planning ahead

Year ahead

Provide outreach services to communities that have a high level of need.

Secure funding to extend the Mortgage Hardship Service for two more years.

Review the improved civil law advice service pilot before rolling it out to all Legal Aid NSW offices.

Provide advice and minor assistance to clients in regional and rural New South Wales in relation to fines and Work Development Orders.

Implement early intervention strategies in other areas vital to successfully making those connections. of law such as fines, disputes with Centrelink and debt.

Promote systemic solutions in response to Centrelink prosecutions.

Continue to deliver effective litigation services in order to effect systemic change especially in areas that impact on people’s lives such as insurance disputes and judicial review of decisions regarding refugee status.

Key challenge

It can be difficult to reach the most disadvantaged and vulnerable clients, particularly in regional areas. Building relationships with local service providers is vital to successfully making those connections.

Civil lawyers – their casework

Case 1 - Immigration and family violence

We acted for a woman who had been granted a temporary partner visa and whose marriage had broken down because of violence by her husband. The Department of Immigration and Citizenship refused her application for permanent residence after an independent expert said there was ‘no history of regular violence and she did not seem fearful about her safety.’ We represented her successfully at the Migration Review Tribunal and she has been granted permanent residence.

Case 2 - Court fees

In November 2010, the Commonwealth introduced a new fees regime for Commonwealth courts and tribunals. Previously the fee was nil if the applicant could show financial hardship or where legal aid was granted. The changes allowed for a deferral of the full fee for a short period of time or a reduced fee. These changes have a major impact on disadvantaged people who are not able to pay even the reduced fee or have no prospect of being able to pay the deferred fee. We challenged this in the Federal Court (Rosson v Tesoriero [2011] FCA 449) where the Judge held that the Court continues to have a broad discretion to permit an application to be filed even if the relevant fee is unpaid.

That discretion may be exercised in circumstances where the person claims to be unable to pay the fee because of financial hardship, although a decision about whether or not to exercise discretion will still need to be made on the facts of each case.

The decision means that impecunious applicants still have a means of lodging valid review applications in the federal courts.

Case 3 - Social security

Our client had received a compensation award for injuries suffered in a work accident. As a result she was ineligible to receive any Centrelink income support during the ‘preclusion period’ from January 2009 until June 2012. By February 2010 the funds had been exhausted and she had no income and was unable to work due to her injuries. We represented her in the Administrative Appeals Tribunal where an agreement was mediated for the preclusion period to end in February 2011 due to ‘special circumstances’– poor physical and mental health, dire financial circumstances, her previously undiagnosed intellectual impairment, and the imminence of homelessness.

There is more information about civil law cases and achievements on the Legal Aid NSW website in the Our work in action section.