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Annual Report 2011 - 2012

Advocating for reform

One of the corporate priorities of Legal Aid NSW is improving access to justice through reforms to the legal system.

Legal Aid NSW is regularly invited to contribute our expertise grounded in legal practice, to the development of legal and public policy.

Law reform submissions provide an opportunity to comment on how changes to the law or government policies may impact on our clients. They improve the community’s confidence in the justice system by making sure the perspectives of our clients are included in decisions about changing laws. The day-to-day interaction of legal and non-legal staff with clients builds a unique perspective on the likely impact of law or policy reforms on our clients.

"We made 46 submissions, advocating for reform where the legal system can affect the lives of disadvantaged people."

In 2011–2012, the Legal Policy Branch coordinated 46 submissions on law reform references, proposed legislation and reviews of legislation. See Appendix 8 for details.

In addition, Legal Aid NSW staff participated in a number of New South Wales and Commonwealth Government inter-agency policy and law reform committees.

Major achievements

Priority: Access to justice

Young people

One of our focus areas under this priority is advocating for reform where the legal system impacts significantly on the lives of disadvantaged people, particularly young people in detention.

In the last 12 months, Legal Aid NSW made several submissions regarding issues impacting on children and young people.

Two were in relation to children detained and charged with people smuggling. Our submission on the Crimes Amendment (Fairness to Minors) Bill (Cth) 2011 recommended that there be a statutory obligation on the Department of Immigration and Citizenship to provide all people held in immigration detention for criminal investigation with immediate access to a lawyer.

Our submission to the Australian Human Rights Commission Inquiry into the treatment of individuals suspected of people smuggling offences who say they are children called for urgent reform to abolish wrist x-rays for age determination. We also argued for legislation to clarify that in age determination hearings a person is assumed to be under 18 if they so claim, unless the prosecution proves otherwise beyond reasonable doubt.

In response to the Statutory Review of the Children and Young Persons (Care and Protection) Regulation 2000 (NSW), Legal Aid NSW submitted it should be mandatory to provide a child or young person aged 12 years or above with independent legal advice when an order for sole parental responsibility is considered by the Children’s Court.

Legal Aid NSW also participated in the Department of Attorney General and Justice Advisory Committee for the Review of the Young Offenders Act 1997 (NSW) and the Childrens (Criminal Proceedings) Act 1987 (NSW). Our submission advocated that the approach to offending by children and young people should focus on diversion and recognise that detention is an option of last resort.

Bail and sentencing

Two significant Legal Aid NSW submissions were in relation to references from the NSW Attorney General to the NSW Law Reform Commission. Our submission on bail noted the steady rise in the remand population in New South Wales over the last 10 years, and the imposition of onerous bail conditions on defendants that, in combination with police compliance checking practices, have increased the number of bail breaches being dealt with by the courts.

The NSW Law Reform Commission is conducting a review of the Crimes (Sentencing Procedure) Act 1999 (NSW) through a series of Question Papers. Our submission in response to Question Papers 1 to 4 emphasised that the task of weighing up the diverse circumstances of the offence and of the offender in order to reach the most appropriate sentence is best achieved by the exercise of judicial discretion.

General

We advocated for the rights of consumers in insurance matters, particularly in relation to natural disasters such as floods. In September 2011, we made a submission to the House of Representatives Standing Committee on Social Policy and Legal Affairs Inquiry into the operation of the insurance industry during disaster events.

Our submission recommended that the Australian Securities and Investments Commission investigate the claims handling processes of insurers during the 2010–2011 natural disasters, particularly the rejection and withdrawn claims rates in the Queensland floods, and monitor the insurance industry claims handling processes during disaster events.

We participated in a number of inter-agency policy and law reform committees including:

  • the Legal Assistance Services Review, making recommendations on measures that could improve the delivery of legal assistance services to the New South Wales community; and
  • the Licence Disqualification Working Party, which considered options for addressing the problem of long-term licence disqualification, especially its impact on rural and remote communities, including Aboriginal communities with acute needs.

Planning ahead

Year ahead

Work with other Government agencies to contribute to law reform and develop alternative sentencing options to divert vulnerable defendants from the criminal justice system.

Key challenge

Using existing resources to harness our practice experience to influence changes to the law.