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Annual Report 2014 - 2015

Highlights from our practice areas

Criminal law

Our criminal law practice provides legal information, advice and 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 20 regional offices, and 40 outreach locations.

Fact file
Total staff: 270
Total expenditure: $122.0M
State: $110.6M
Commonwealth: $11.4M
Proportion of overall budget spent on criminal law services 47.40%

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.

OBJECTIVE: Access to justice

Resolution in lower court avoids lengthy trials

Lawyers in the Committals Unit resolved serious indictable matters through careful analysis of the evidence and appropriate negotiations with lawyers from the Office of the Director of Public Prosecutions. A high number of matters were resolved in the Local Court. Complex matters that may have gone to trial were settled and appropriate outcomes achieved.

Changing laws were explained to the community

New information brochures this year explained the new mandatory interlock orders, penalties for driving without a valid licence and guidance with indictable appeals.

Reviewing prisoner sentences

We concluded our review of sentences containing a possible judicial error as a consequence of the Muldrock judgment and were successful in a number of cases. See Reviewing prisoner sentences for details.

Representing clients facing federal indictable charges

The Commonwealth Crime Unit represented clients facing Commonwealth indictable charges, such as drug importation, money laundering and fraud. In 2014-2015, the unit represented a number of clients targeted by internet scammers to become unsuspecting drug mules. Clients spent years believing they were part of a legitimate business proposal and often sent money overseas to cover expenses. When they agreed to bring documents, gifts or other items to Australia, drugs were hidden in their luggage. Of the seven matters finalised in the last year, four have resulted in acquittals, two matters did not proceed and one client was convicted.

Other criminal law initiatives

Details of other projects from the criminal law practice appear in this chapter under the section headings:

Criminal law client services: snapshot

Chart showing 5 year trend in Criminal law services Chart showing Criminal law client profile

Case study

Precedent for attributing intellectual disability to the reasonable person

R v Thomas [2015] NSWSC 537

Our client was a man with intellectual disability charged with an unlawful and dangerous act after he punched his frail and terminally ill mother in the head resulting in her death.

He was found unfit and came before the Supreme Court for a special hearing. There was no doubt that the punch was deliberate, that it significantly contributed to the death of the deceased, and that it was unlawful. The substantial issue was whether the punch was dangerous. The test is whether a reasonable person, that is, an ordinary member of the community in the position of the accused would have realised that the act was dangerous. This is an objective test and there had been no precedent for attributing an intellectual disability to the 'reasonable person'.

The Court's view was that in assessing whether the act was dangerous, it was unacceptable to judge the actions of a person with intellectual disability by the standards of the vast majority of citizens.

The Court assessed dangerousness "upon a consideration whether a reasonable person possessed of a moderate intellectual disability rendering that person with extremely poor information processing speed and impaired conceptual reasoning abilities with knowledge that the deceased was weak and frail as a result of a debilitating illness would have realised that striking her to the left side of the face at least once would expose her to a risk of serious injury."

Our client was acquitted of manslaughter and found on the limited evidence to have recklessly inflicted grievous bodily harm.

The case establishes that the objective reasonable person test, when applied to a person with intellectual disability, should be a reasonable person with an intellectual disability.

Responding to changing laws and amendments

The Criminal Procedure Amendment (Domestic Violence Complainants) Act 2014 presented significant change to evidence in domestic violence offences. The Act allows Police to take the statement of an alleged domestic violence victim by video or audio recording, and use this recording as all or part of their 'evidence in chief', or main evidence. These recorded statements must not be provided to clients. The legislation determines the receipt, storage and disposal of these statements and has required changes to our processes.

The year ahead

Expand our inhouse capacity to conduct more committal matters across New South Wales.

Develop new initiatives to improve access to legal services in correctional facilities through the use of technology, in partnership with Corrective Services NSW.

Introduce a range of initiatives to address the serious District Court backlog, including a state-wide Memorandum of Understanding between Legal Aid NSW and the Office of the Director of Public Prosecutions, for the earliest possible resolution of committal matters.

Family law

Our family law practice provides legal advice, information, minor assistance, duty services, dispute resolution and case representation in family law matters, including child support and care and protection matters at 21 offices and 111 outreach locations across the state.

Fact file
Total staff: 225
Total expenditure: $70.3M
State: $19.7M
Commonwealth: $50.6M
Proportion of overall budget spent on family law services 27.30%

OBJECTIVE: Access to justice

More people in regional areas were able to access services

The practice increased the scope of its services, including:

  • expanding services to regional areas by introducing new family law outreach services in Auburn, Woongarah, Taree, Forster, Forbes, Parkes and Broken Hill; and new duty lawyer services to Wauchope Federal Circuit Court, and the care list in Parkes, Forbes, Orange and Mudgee Courts;
  • increasing inhouse casework services by 23 per cent in Commonwealth matters and 16 per cent in State matters, taking on an additional 593 new files inhouse compared to 2013-2014;
  • increasing minor assistance services to rural and regional clients by 18 per cent; and
  • developing a new alternative dispute resolution model for care and protection matters - in response to Safe Home for Life reforms (see Safe Home for Life reforms).

More information for the community

We provided:

  • family law resources for the community, including five new child support fact sheets, 30 minute webinars on issues including child support, divorce and domestic and family violence, and divorce classes in community languages; and
  • family law and child protection information for children and young people, including an upgrade of the Best for Kids website to be launched next financial year (see CLE highlights).

High number of cases settled through mediation

"We conducted 2,676 mediations with a success rate of 80 per cent."

Our family law dispute resolution service undertook 2,676 mediations compared with 2,726 last year. The success rate was 79.9 per cent compared to 79.7 per cent last year. For many clients, this meant avoiding the stress and expense of going to court.

Services for multicultural clients

We improved access to the legal system for culturally diverse clients through our partnership with Settlement Services International (see Compelling evidence shows we are making a difference) and the engagement of a specialist caseworker who conducted complex litigation, including on matters involving forced marriages (see Supporting a unified response to forced marriage).

More Aboriginal people represented

Family law inhouse advice services provided to Aboriginal clients increased by 19 per cent.

We increased our inhouse grants to Aboriginal clients by 18 per cent as a result of targeted early intervention initiatives and improvements to the accessibility of dispute resolution services to Aboriginal clients.

Other family law initiatives

Details of other projects from the family law practice appear in this chapter under the section headings:

Responding to changing laws and amendments

We established new legal services in response to reforms introduced under the Child Protection Legislation Amendment Act 2014, including early intervention and alternative dispute resolution services.

Family law client services: snapshot

Chart showing 5 year trend in Family law services Chart showing Family law client profile

CASE STUDIES

The following case studies illustrate the complex nature of casework within the family law practice.

Case 1

Securing child support for a mother and her son

A mother, recently arrived in Australia with her eight-year-old son, was worried about receiving financial support from her exhusband who remained overseas. Within weeks, her husband was receiving a compensation settlement from his Australian insurer.

We filed proceedings during the Christmas period and negotiated a settlement, ultimately securing a payment of over $120,000 by way of property settlement and future child support for the mother.

Case 2

Breast feeding injunction overturned on appeal

Jackson & Macek: [2015] FamCAFC 114

A mother sought our assistance after her former boyfriend, who was subject to a current apprehended violence order and on a 12-month bond, took their infant son and refused to return him. We drafted an application for recovery of the son.

Our client's recovery application was successful. However, the judge issued an injunction preventing our client from breast-feeding the child at all. Our client's appeal to the Full Court of the Family Court was successful and the breast-feeding injunction was overturned.

Case 3

Young woman moved into safe living

We represented a 15-year-old girl in care proceedings. She had been sexually abused by her brother and was placed in a residential care placement where another young person threatened her multiple times and was violent towards her. Some of these incidents involved significant damage to property and our client was taken to hospital by police for psychiatric admission.

She told us that she was frightened and no longer wished to live in the same placement as the other young woman. Family and Community Services (FaCS) opposed this.

The Children's Court held that FaCS had not addressed our client's permanency planning needs and found that the current arrangements were in breach of Articles 19 and 39 of the United Nations Convention on the Rights of the Child in that her living arrangements were exposing her to violence.

FaCS provided a new care plan that our client live with her paternal aunt until the age of 16, and later be placed in semi-independent living arrangements. Our client consented to the final orders.

The year ahead

Establish a dedicated Domestic Violence Unit to better meet the legal and social needs of women and children affected by domestic and family violence.

Establish new family law early intervention outreach services in a health setting.

Provide duty services and case representation to support the new Hunter Children's Court Service commencing in July 2015.

Expand our inhouse capacity to conduct more appeals and complex matters by establishing a specialist unit to focus on complex litigation in higher courts.

Develop and deliver a new community legal education program on domestic violence for new and emerging communities.

Launch and promote the new Best for Kids website.

Civil law

Our civil law practice provides legal advice, minor assistance, duty and casework services to people through the Central Sydney office and 16 regional offices and 140 outreach locations.

Fact file
Total staff: 140
Total expenditure: $33.7M
State: $20.4M
Commonwealth: $13.3M
Proportion of overall budget spent on civil law services: 13.10%

Civil law problems, if left unsolved, can have a far-reaching negative impact on people's lives. That impact can range from health problems to family breakdown and contact with the criminal justice system. The civil law practice focuses on legal issues that impact most on disadvantaged communities, including tenancy and housing, debt, employment, social security and access to essential social services.

The practice directs its services to the people who are most disadvantaged in accessing legal services. They 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.

This year the Productivity Commission highlighted the effectiveness of our work in assisting people with everyday legal problems, noting that Legal Aid NSW was "providing leading practice with its civil law divisions and services" (Report of Inquiry into Access to Justice Arrangements, September 2014).

OBJECTIVE: Access to justice

Expanded employment law services expose systemic issues

Across New South Wales, 3,811 employment law advice and 1,574 minor assistance services were provided, a substantial increase of 29 per cent and 27 per cent respectively on last year.

There are now five employment lawyers who provide specialist services across the State, and also support and train other civil lawyers to undertake employment law work. Eighteen employment law clinics currently operate in various metropolitan and regional offices, delivering services in a way that meets the needs of the various local communities.

The employment law service has also undertaken major litigation matters in the Fair Work Commission and Federal Circuit Court of Australia. Not only have these matters successfully asserted the rights of the workers involved, the litigation has also highlighted in the public sphere the systemic employment law problems that confront many vulnerable workers - such as exploitation, discrimination and victimisation for exercising workplace rights.

Quick response to emergency flooding

Following storms and flooding in the Hunter and Central Coast regions in April 2015, Legal Aid NSW provided face-to-face legal services at four disaster recovery centres, as well as telephone advice through the LawAccess NSW Disaster Response Hotline. This included 347 advice and 170 minor assistance services to storm affected residents, mainly in the areas of insurance and tenancy laws. Lawyers identified broader issues and negotiated with industry on our clients' behalf to achieve early resolution and prevent further harm. See case study below.

Case study

Insurer agrees to ex gratia payment for severely disadvantaged family

One client was a full time carer to her three adult children, all with disabilities. Their home was severely damaged in the Hunter storm in April 2015, and was unliveable. The home and contents policy was in her ex-husband's name, and had lapsed three months before due to non-payment of premium. Her ex-husband suffers from severe mental and physical illnesses, and had been in and out of hospital for six months. With the ex-husband's permission, we made submissions to the insurer for an ex gratia payment on the basis of long-term loyalty and extenuating circumstances. The insurer agreed.

Civil law client services: snapshot

Chart showing 5 year trend in Civil law services Chart showing Civil law client profile

Legal services for homeless people

Legal Aid NSW operated more than 20 clinics across the State that deliver legal outreach services to people who are homeless or at risk of becoming homeless - often in conjunction with health and housing services. Issues included cut off social security benefits and disputes with Housing NSW.

We have received funding for another year from the National Partnership Agreement on Homelessness to continue these legal services.

Debt was reduced through plans, waivers and volunteer work

The Work and Development Order Scheme (WDO) is a partnership between Legal Aid NSW, the Aboriginal Legal Service (NSW/ACT), the NSW Department of Justice and State Debt Recovery. In 2014-2015 it assisted people in New South Wales to work off more than $17.5 million in fines debt, with over $40 million being worked off since the start of the project. An events-based approach such as Bring your Bills Days attracted large numbers of people seeking assistance.

Legal Aid NSW provided 2,799 advice services and 4,866 minor assistance services to clients in WDO and fines matters in 2014-2015. Almost 14 per cent of these advice services were delivered to Aboriginal people, compared with 8.6 per cent in 2013-2014.

The service worked with State Debt Recovery this year to look at finding better ways of reaching young people.

In another project-the Bulk Debt Project-it was more efficient to negotiate unrecoverable debt cases in bulk with debt collectors rather than assisting people with no capacity to pay one by one. To date, we have resolved nearly $18 million of unrecoverable debt over the course of the project.

Case study

Greater protection for social housing tenants

New South Wales Land and Housing Corporation v Diab [2015] NSWCA 133 was an important win for social housing tenants in New South Wales. The Court of Appeal found that debt arising from retrospective rental subsidy cancellation was not rental arrears and so not could be grounds for eviction for non-payment of rent.

In 2011, Mr Diab's rental subsidy was cancelled back to 1993 creating a debt in excess of $100,000. Housing NSW alleged that Mr Diab's two adult sons had been living with him and that he had failed to disclose this to Housing NSW. Housing NSW applied to the NSW Consumer and Administrative Tribunal for termination of the tenancy based on rental arrears. These arrears were solely the result of the backdated subsidy cancellation as Mr Diab had always paid the rent on time. The Tribunal has historically found that they were unable to look behind the cancellation of rebate because it is not within the scope of the Residential Tenancies Act 2010, and had terminated the rental subsidy based on the large amount of rental arrears.

We successfully argued that the landlord's grant of the rental rebates, and our client's payment of the reduced rent had varied the tenancy agreement. The effect of this variation meant that the amounts of the unpaid rebates were not properly characterised as 'rent arrears' and that Mr Diab had therefore not failed to pay rent in accordance with his obligations. This argument was accepted and this case now protects social housing tenants from eviction on these grounds.

Our networks reached more Aboriginal clients

"The practice increased its legal advice services to Aboriginal clients by 29 per cent, and its case grants and duty services to Aboriginal clients from seven per cent last year to nine per cent this year."

The practice increased its services to Aboriginal communities through a number of strategies, including expanding the scope of the new Civil Law Service for Aboriginal communities (see New service assists Aboriginal people) and working closely with the Aboriginal Legal Service (NSW/ACT) in the area of fines and debt (see Debt was reduced).

Civil lawyers participated in regional initiatives (see Collective enterprise and local service know-how meet client needs) such as wills clinics for Aboriginal people and visits to Bourke and Brewarrina during Law Week. Aboriginal Field Officers in civil and family law helped to reduce barriers between Legal Aid NSW services and Aboriginal communities (see Aboriginal Field Officers). These efforts have contributed to an increase of 29 per cent in civil law legal advice.

Other civil law initiatives

Details of other projects from the civil law practice appear in this chapter under the section headings:

Responding to changing laws and amendments

The practice responds to inquiries and proposed law reform across diverse areas of law. This year these areas included the inquiry into reparations for victims of Stolen Generations, the review of the Australian Consumer Law, and a review into consumer protection for particular credit products.

The year ahead

Provide more services to Aboriginal communities in regional and remote areas.

Improve our ability to collect data on outcomes to make sure we are reaching those who need our services most.

Forge partnerships with health and community support services so we can reach clients at an earlier stage.

Provide specialist expertise in National Disability Insurance Scheme matters.