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Annual Report 2011 - 2012

Highlights from our practice areas

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 operate 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 offers community legal education throughout New South Wales and contributes to law reform initiatives.

Fact file
Total staff: 318
Total expenditure: $120.851M
State: $110.991M
Commonwealth: $9.860M
49.4% of our overall budget was spent on criminal law services.

Major achievements

Priority: Access to justice

Commonwealth crime

The Commonwealth Crime Unit was established for the defence of people charged with Commonwealth crimes, particularly people smuggling. These are Commonwealth offences where the accused are usually detained on Christmas Island and, if charged, transferred to various States and Territories to be prosecuted. Many of the accused are fishermen from remote parts of Indonesia. The majority are eligible for legal aid.

See New challenges, more clients for our criminal lawyers for more details.

Criminal law client profile

Sentence review

The criminal law practice established the Standard Non- Parole Period Unit to review the sentences of people currently in gaol whose sentence may be affected by a 2011 High Court decision. See New challenges, more clients for our criminal lawyers.

Social security prosecutions

The Wollongong Legal Aid office conducted a pilot under which the criminal and civil sections cooperated to identify potential defences, matters that could be withdrawn and civil remedies in social security prosecutions. While the number of social security prosecutions diminished significantly in 2011–2012 due to a number of factors, staff from criminal law and civil law practices continued to refer appropriate matters for alternate action to that of a criminal prosecution.

Young people

Lawyers answered 18,736 calls to the youth hotline, advising 8,259 young people about their legal rights and provided minor assistance to 3,196 of them. Legal Aid NSW advocated for law reform in the area of youth detention (see Young people) and organised workshops in schools and juvenile justice centres about crime prevention (see Community legal education).

Domestic violence

In a pilot at Mt Druitt Local Court, advice and minor assistance was provided to defendants to gain more workable orders and, potentially, reduce breaches. From the beginning of the trial in November 2011 to 30 June 2012, 162 defendants received help. Legal Aid NSW is investigating a second trial site.

Over the year our lawyers also worked closely with other support services for defendants, such as The Men’s Shed, to link defendants to appropriate non-legal services for help with financial, gambling and other problems.

Criminal law client services

Priority: Excellence in legal services

Responding to changing laws and amendments

The NSW Law Reform Commission undertook a comprehensive review of the bail and sentencing laws. Legal Aid NSW submitted a report on bail to the NSW Government (see Bail and sentencing) for consideration and is consulting on the sentencing review.

Criminal law services 5 yeasr trend

Planning ahead

Year ahead

Complete the review of sentences of all eligible serving prisoners whose sentences involved a standard nonparole period.

Respond to the proposed legislative reform to the right to silence and implement any practical changes required.

Evaluate the domestic violence pilot at Mt Druitt and commence a similar pilot at a second site.

Key challenge

Maintaining quality legal services which meet client needs in a changing legal environment, and in tight economic circumstances.

 

Criminal law cases : The people we help

Case 1: New beginning for Iraqi refugee

The Children’s Legal Service appeared for a young person charged with malicious damage to property. He had an extremely traumatic background and had been sexually assaulted. He also had other health and behavioural issues.

While his offences were relatively minor, he was refused bail and became hysterical in custody. With the help of his Children’s Legal Service lawyer, he was allowed bail and given a conditional order that did not involve a conviction. The young person has not been in trouble since.

The combined efforts of the Department of Juvenile Justice, Children’s Legal Service and Ageing, Disability and Home Care, which devised a support plan, achieved an excellent outcome and genuine improvement in this young man’s life.

Case 2: High Court sets aside inconsistent sentences

A case ending in the High Court began with two men being found guilty of cultivating a large commercial quantity of cannabis, and a third man guilty of knowingly taking part in the supply of a commercial quantity of cannabis leaf. The last received a lesser sentence than the other two, who had pleaded guilty. The Crown appealed the adequacy of the sentences received by the two men. On appeal, the Court of Criminal Appeal found the sentences inadequate and increased them.

On appeal to the High Court, special leave to appeal was granted on the ground that the Court of Criminal Appeal’s decision created a disparity between the new sentences imposed on appeal and the sentence imposed on the third man, which was not subject to Crown appeal.

The High Court allowed the appeal and set aside the higher sentences. In effect it disapproved of the Court of Criminal Appeal creating a greater disparity in sentences in the course of dealing with the Crown appeal.

Case 3: Charges dismissed against threatened man

Our client was a 20-year-old man of Pakistani background. His family fled from Iraq to Syria and later came to Australia as refugees. He was charged with credit card fraud. He had no previous criminal record.

In his defence he told the Court that he had been recruited to commit the fraud by a man who had threatened both him and his family and produced a gun. His co-accused supported the claim. Our client feared for his safety because, when he was 15, he had been kidnapped, interrogated and tortured by another religious sect.

There was other independent evidence to support the allegation of a person recruiting and threatening young people in the area of his arrest. The charges were dismissed on the basis of duress. The Court accepted that our client genuinely believed that the threats would be carried out and that a reasonable person of the same age and sex would have been unable to resist them.

Family Law

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

In addition, early intervention and family dispute resolution services are provided.

The practice also undertakes law reform and community legal education.

Fact file
Total staff: 226
Total expenditure: $64.237M
State: $17.884M
Commonwealth: $46.353M
26.3% of our overall budget was spent on family law services.

Major achievements

Priority: Access to justice

Clinics drive impressive growth

Minor assistance services for clients increased by 78% this year. The result was due to expansion of minor assistance clinics by the family law practice to improve services to people not entitled to legal aid but needing advocacy assistance.

Family law client profile

Early intervention

The Early Intervention Unit helped people deal with their legal problems before they became more serious, resulting in an increase in duty lawyer services delivered at Parramatta, Sydney, Newcastle and Dubbo family court registries to self-represented litigants. Outreach services were provided at 25 locations across New South Wales, including Parkes, Forbes, Cowra, Bowral, Mittagong, Goulburn, Cessnock, Grafton, Moss Vale, Kiama, Queanbeyan, Singleton and Wyong.

Information and education play an important role in early intervention. We reached out to clients through social media and offered information and resources on family law in Australia through an interactive website Best For Kids.

The site had 21,796 page views in 2011–2012. See also Best for Kids.

Family law client services

"We conducted a record 2,586 family dispute resolution conferences, reaching settlement in over 79.4% of matters."

Family dispute resolution

This year the Family Dispute Resolution Service conducted a record 2,586 conferences (mediations), reaching full or partial settlement in over 79.4% of matters (full table in Appendix 7). The conferences aim to facilitate early dispute resolution. Also increasing (by 16%) were grants for litigation intervention conferences – lawyer assisted mediation processes for matters in the late stages of litigation.

In 2011 the service began a court ordered mediation pilot at the Family Court Registry in Parramatta. Legal Aid NSW conducted 129 matters under this pilot of which 44% reached full agreement and 38% interim agreement. As a result, the Court saved around 110 days of hearing time.

Family law services 5 year trend

The service conducted over 85 mediations in matters referred from Bidura Children’s Court. The mediations involved family members, legal representatives for children and the Department of Family and Community Services.

Having received a tick in the Australian Institute of Criminology evaluation, the dispute resolution service for care and protection matters has continued beyond the pilot timeframe.

Priority: Excellence in legal services

Responding to changing laws and amendments

Legal Aid NSW contributed to legislation and policy in the care jurisdiction, including through participation in the Children’s Court Advisory Committee and the Children’s Court Working Group. We gave our comments on a number of Practice Notes, which govern practice and procedure in the Children’s Court, including those on case management and the Children’s Court Clinic.

The family violence amendments to the Family Law Act 1975 (Cth) commenced in June 2012. Legal Aid NSW had earlier made submissions on the reforms. The new definition of family violence categorises a broader range of behaviours as constituting family violence and recognises its complex and pervasive nature. The family law practice received training on the impact of these amendments and is keeping a close watch for any emerging trends or issues.

Family courts must now take account of the nature of an Apprehended Violence Order and the circumstances under which it was made when considering issues relating to family violence. Local Court Practice Note (2) may also impact on the changes and result in greater collaboration between the family and crime practices on family violence matters.

Planning ahead

Year ahead

Expand family law advice and minor assistance services to Aboriginal people in rural and regional areas.

Increase the reach of family law services to clients from culturally and linguistically diverse communities.

Improve the ability of people with family law matters to resolve their matters without having to go to court.

Expand the Parramatta mediation pilot to the Sydney Family Courts Registry.

Key challenge

Maintaining both the quality and quantity of family law services delivered across New South Wales in times of significant economic constraint.

Family law cases: the people we help

Case 1: Family heritage at stake

Help from Legal Aid NSW brought a father and son back together and enabled the son to connect with his Aboriginal heritage.

The father, an Aboriginal man with previous substance abuse problems and a gaol record, contacted our Coffs Harbour office when his son and former partner disappeared from the area. The father had spent regular time with the boy and wanted the relationship to continue. On her part, the boy’s paternal grandmother was keen that he learn about Aboriginal culture.

Legal Aid NSW lodged a court application and the mother and boy were located in Grafton. Extensive negotiations and a Legal Aid conference with a skilled family dispute resolution practitioner followed. As a result, the boy, now aged three, spends time with his Aboriginal family each week.

Case 2: Kids stay with mum

At risk of permanently losing her three young sons, a mother asked Legal Aid NSW to represent her in care proceedings in the Children’s Court. The Department of Family and Community Services had removed the children from her care because of concerns about her mental health, drug use, past violent relationships and housing. The department argued that the boys should not be returned due to the mother’s poor progress since their removal.

Following a defended hearing, the Court found that the mother had taken significant steps towards working out her problems. This meant that there was a realistic possibility that each child could be restored to her care.

If our client stays on track, she will be welcoming home her three boys.

Case 3: Safe from a forced marriage

A sixteen-year-old girl contacted our Campbelltown office anxious to prevent her parents from taking her to Lebanon for an arranged marriage. She later changed her instructions so she could travel to Lebanon for her sister’s wedding, the sister being over 18 years old.

To protect the girl, orders were made under the Marriage Act 1961 (Cth) which effectively made any marriage she contracted in Lebanon illegal in Australia. It is now likely that new legislation will be introduced as a result of the case.

Civil Law

The civil law practice provides legal advice, minor assistance, duty and casework services to people through the Central Sydney office and 13 regional offices. It has unique expertise in delivering cost-effective services to disadvantaged communities in a broad range of general law areas.

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, refugee and migration issues and other breaches of fundamental rights.

The practice also directs its services towards the people who are most disadvantaged in accessing legal services. These include people living in rural and remote areas, homeless people, the elderly, people with a mental illness or other serious health issues, Aboriginal people and people experiencing severe financial hardship.

Fact file
Total staff: 187
Total expenditure: $31.190M
State: $22.181M
Commonwealth: $9.008M
12.7% of our overall budget was spent on civil law services.

Major achievements

Priority: Access to justice

Privacy for victims of sexual assault

The Sexual Assault Communications Privilege Service (SACPS) at Legal Aid NSW commenced in October 2011. An Australian first, SACPS assists victims of sexual assault to keep their therapeutic records, including counselling notes, confidential. It recognises that these records are therapeutic, not investigative, and that disclosure of sensitive personal information in court can significantly further harm the victim and undermine confidence in sexual assault proceedings.

Since start up SACPS has assisted, often at short notice, more than 60 complainants to assert the sexual assault communication privilege, that is, prevent use of their counselling records in court unless in the public interest.

Fixing fines

Legal Aid NSW established a new specialist service to give legal advice and assistance to people with fines debt.

Civil lawyers conducted a fines campaign in regional New South Wales, encouraging disadvantaged people to get on-the-spot help with their fines and other debts.

See Fixing fines debt for the excellent results achieved and early evaluation.

Social security

We increased our minor assistance services in social security law by 102% as part of an effort to help people resolve issues at an early stage.

This year we worked with Centrelink to improve early referral for legal advice of agency customers who owe a Centrelink debt and are being investigated for social security criminal offences. In conjunction with TAFE NSW and Centrelink, we worked on a pilot financial and legal literacy program as a pathway to divert social security debtors from the criminal justice system.

Civil law client profile  Civil law client services

Employment law

Lawyers in the civil law practice received special training to deliver employment law services. As a result, the number of employment law advice services increased by 40% (to 108 per month), and minor assistance increased by 94% (to 31 per month). Services focused on early intervention and assisting people, especially those at risk of long-term exclusion from the workforce, before they reach the conciliation stage at Fair Work Australia.

Bulk Debt Project

This joint project with Victoria Legal Aid and West Heidelberg Community Legal Centre assists people on Centrelink benefits who are in longterm financial hardship and have no prospect of repaying their debts. To date, $7.1 million of debt has been waived. The project is continuing for a further year.

We are working with the financial services industry (banks, debt collectors, credit providers) to provide a sustainable solution for people in long-term hardship with debts they cannot pay.

Helping during natural disasters

Our lawyers were on the ground assisting local residents with flood insurance claims in Moree, Griffith and Wagga Wagga following heavy rains in February and March, 2012. A letter box drop in the worst affected areas in the Riverina led to a sharp increase in requests for advice at our Wagga Wagga office.

Mental health

The Mental Health Advocacy Service (MHAS) provides legal representation for people who appear before the Mental Health Review Tribunal (MHRT) and the Guardianship Tribunal.

Civil law services 5 year trend

This year we introduced new policies to allow us to provide representation for patients at MHRT hearings where approval is sought by the hospital for electro-convulsive therapy to be administered to the patient.

In 2011–2012 inhouse MHAS lawyers provided over 3,200 duty services and 900 advice services.

Private lawyers provided a further 9,800 mental health duty services for Legal Aid NSW clients. Legal Aid NSW made 537 grants of aid for matters before the Guardianship Tribunal, an increase from 310 in 2010–2011.

Inquests

The State Coroner adopted suggestions for recommendations in a range of matters conducted by the Coronial Inquest Unit. As highlighted in the case study below (Case 3), matters included deaths in detention.

Other projects

The Offshore Asylum Seeker Project and Older Persons’ Legal and Education Program are reported in the Section Collaborating with our partners.

Priority: Excellence in legal services

Responding to changing laws and amendments

The Mental Health Act 2007 will be reviewed in the coming year. Our Mental Health Advocacy Service has already provided preliminary advice to the Minister for Mental Health and will contribute further to this important review. The Service is also preparing for statewide introduction of the 2007 changes to the Inebriates Act 1912.

In an important change to social security law, tougher qualification criteria were introduced for the Disability Support Pension. We gave evidence to the Senate Community Legislative Committee on the changes.

Recent improvements to national credit laws have started to filter through to customers, with a generally safer and fairer lending environment. We are also noticing consumers taking advantage of their financial hardship rights by lodging more applications with their lender or external dispute resolution schemes. For our clients this means more suitable lending practices in the market place and improved access to justice.

Following the significant natural disasters of 2011, the first tranche of improvements have been made to the insurance market, including a common definition of flood and enhanced obligations in the General Insurance Code to guarantee consumers their right to make a claim on a policy (regardless of whether the insurer thinks the claim would ultimately be paid). These reforms should make a difference for people who incur loss or damage arising from natural disasters. The civil law practice will closely monitor this as part of its overall response to disaster events.

Planning ahead

Year ahead

Develop innovative ways of assisting people to resolve civil law problems, especially in relation to debt and consumer protection.

Implement a statewide community legal education program to raise awareness of civil law issues and areas covered by this practice.

Increase our services to young people.

Monitor the impact of the introduction of the impact of income management in Bankstown.

Provide legal help to older Aboriginal people in regional areas.

Key challenge

Managing the increasing and unmet demands in civil law through partnerships with other services and innovative models of service delivery.

Civil law cases: the people we help

Case 1: Home repossession avoided

Commonwealth Bank of Australia v Wales [2012] NSW SC 407

When the bank served our client, who was in financial hardship, with a statement of claim seeking to repossess her home, she contacted the Financial Ombudsman Service (FOS) for help.

The bank contacted Ms Wales in order to resolve the dispute, and the parties made an agreement which reflected little concession to hardship. There was no reduction in the amount of payments (in fact, the repayment schedule increased) and seemingly there was no extension of the period of the contract.

The bank did not direct our client to its designated procedure for considering hardship variations, and did not even explain that there was a designated procedure.

Legal Aid NSW took the matter to the Supreme Court. The Court found the bank did not appropriately invoke the mechanism for making a hardship variation, depriving our client of her opportunity to have the hardship application determined by the FOS or the Court.

The Court set aside the default judgment entered against our client for possession of her home.

This precedent decision has implications at a national level for lenders who fail to adhere to their obligations to consider a customer’s financial hardship. Also for the first time, external dispute resolution was acknowledged by the Court as a central forum for the resolution of financial hardship disputes.

Case 2: Overturning a Centrelink decision to raise debt

Our client lives in regional Australia. She was being investigated by Centrelink, which alleged that she was in a marriage-like relationship but claiming benefits as a single person and asked her to repay over $156,000.

Our client had multiple serious health issues and found it very difficult to attend appointments. A legal aid lawyer travelled to her home and arranged for her to be assessed by a social worker from our Client Assessment and Referral Service. The case was difficult, complicated and challenging with hundreds of pages of evidence to consider.

The Administrative Appeals Tribunal found that she was not a member of a couple throughout the relevant period. If the tribunal had found otherwise, our client could have faced criminal proceedings and the prospect of a gaol sentence.

Case 3: Evidence prompts detainee welfare recommendations

We represented the families at inquests into the apparent suicides of three detainees at Villawood Immigration Detention Centre. All had occurred in a three-month period in late 2010 and were heard together.

In the first inquest, a Fijian man facing immediate deportation threw himself from a balcony when officers forcibly attempted to remove him from the Centre. In the second, an Iraqi man who suffered from a depressive illness hanged himself. The health service had noted his depression but had not considered his condition serious. In the third, a man facing deportation on criminal charges in the UK hanged himself. Immigration authorities had been warned that he might take his own life.

Legal Aid NSW obtained crucial expert evidence from a consultant psychiatrist and persuaded the State Coroner to make a number of broad-ranging recommendations. These included procedures for aborting removals where self-harm or suicide is threatened; better communication by service providers on detainee welfare; improved training for mental health staff; and a review of clinical governance procedures.