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Annual Report 2015 - 2016

Highlights from our practice areas

Criminal law practice

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 our offices and 40 outreach locations.

Specialist advice, information, minor assistance, duty services and representation are provided through the Children’s Legal Service, Prisoners Legal Service, the Adult Drug Court of NSW and the Commonwealth Crime Unit.

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

Fact file
Total staff: 312
Total expenditure: $129.8M
Proportion of overall expenditure on criminal law services: 45.8%

Criminal law client profile

Based on total case grants and inhouse duty services

Bar chart for Criminal law client profile

We provided 475,097 criminal law services to clients in 2015–2016

Legal representation

Pie chart for Criminal law legal representations

Duty services

Pie chart for Criminal law duty services

Other services

Pie chart for Criminal law other services

Criminal law client services over 5 years

Bar chart for Criminal law 5 year client services

OBJECTIVE Access to justice

Early settlements are a significant saving to the justice system

The practice met its objective of conducting more committal matters across New South Wales. A committal is a hearing before a Magistrate for the purpose of deciding whether a person charged with an indictable offence should be committed for trial or sentence. It is a significant step in the process to conduct early negotiations or to test evidence. The addition of 10 regional positions means that we now represent clients in committals in over 20 additional Local Courts including Armidale, Bourke, Brewarrina, Broken Hill, Cobar, Condobolin, Goulburn, Grafton, Grenfell, Griffith, Lightning Ridge, Moree, Walgett and Young.

For example, starting in June 2016, twice a month, a lawyer travels to Moree to appear in committal matters, including for serious children’s indictable offences. Where clients plead not guilty, Legal Aid NSW endeavours to retain the matters at the quarterly District Court sittings, ensuring continuity of representation for our clients. The Aboriginal Legal Service (NSW/ACT) Ltd (ALS) provides office space for the Legal Aid NSW lawyer and we appear in many matters where the ALS is unable to for reasons of conflict.

Over 40% of clients represented by our committals practice at Goulburn had their matters finalised in the Local Court—a significant saving to the justice system.

As a result, a significant proportion of matters have been resolved by a plea to a less serious charge in the Local Court. For example, since January this year just over 40% of clients represented by the committal lawyer at Goulburn have had their matter finalised in the Local Court. In one instance, a charge of aggravated kidnapping was finalised within five months of charge with guilty pleas to two offences in the Local Court, as opposed to 12 to 18 months to have the matters finalised on indictment. Early settlements are a significant saving to the justice system.

A 13% increase in duty lawyer services

There was a substantial increase in the number of criminal law duty services, spread across most offence types and court locations. While this increase cannot be easily attributed to a single factor, there were large increases in driving offences, including driving under the influence of alcohol or drugs, possession and use of prohibited drugs, domestic violence-related offences and stealing from retail stores.

Early advice aims to minimise breaches of orders

A new service aims to resolve issues that may lead to Apprehended Domestic Violence Order breaches by actively engaging with clients who are subject to these orders. The Domestic Violence Defendants Advice Service provides defendants with prompt, flexible legal advice at an early stage.

OBJECTIVE Excellence in legal services

Targeted trial call-overs bring parties together earlier

Legal Aid NSW criminal lawyers worked with the Public Defenders to successfully negotiate matters with the Office of the Director of Public Prosecutions at special call-overs to allocate trial dates. Most recently in Parramatta, 30 legally aided matters that may have gone to trial were settled or resolved by a guilty plea. At the Wagga Wagga and Newcastle call-overs, a combined total of 90 legally aided matters were resolved at call-over.

Other criminal law initiatives

Other criminal law initiatives appear under the section headings:

Responding to changing laws

Amendments to importation provisions in the Criminal Code started in early 2016. These changed the fault element for attempt drug importation offences from knowledge to recklessness and recast offences relating to the importation of precursors such as ephedrine. These amendments altered decades of precedent and have significant evidentiary implications at trial. These changes have particularly impacted matters dealt with by the Commonwealth Crime Unit and the advice given to their clients when facing these types of charges.

Housing NSW changed its policy to enable clients in custody to maintain their current tenancy for six rather than three months. This has a huge impact on people serving shorter non-parole periods, many more of whom will now be able to return to secure accommodation immediately on release. This is an important factor in reducing recidivism.

By working collaboratively, the criminal law practice helps to achieve long-term rehabilitation for vulnerable clients.

Case studies iconCase studies

Rehab helps client stay off drugs

Our client was referred to the Hunter Drug Court after pleading guilty to two break and enter offences. After spending most of his 20s and 30s in custody, he celebrated his 41st birthday at Silverwater Correctional Centre, anticipating a gaol sentence of around three or four years.

When our client's partner was diagnosed with a life threatening illness and hospitalised, our client provided great moral and practical support. While completing the Drug Court Program, and despite the emotional toll of his partner's ill-health, our client put into effect the guidance that he was being given by the multi-disciplinary Drug Court team. Instead of lapsing into drug use and criminal behaviour, he successfully drew on the prevention strategies he had learnt while on the Program.

Promising rehabilitation for young offender with disabilities

Our Children’s Legal Service represented a 16-year-old boy with schizophrenia, an intellectual disability, and substance abuse disorder who had been charged with very serious offences of violence. The evidence against him was overwhelming, but there were ongoing issues with his fitness to stand trial and his capacity to enter a plea to the charges. Several psychiatric reports found him unfit to plead.

He was eventually found fit to enter a plea, having undergone much positive treatment and change during the legal process.

The sentencing court accepted our client had good prospects of rehabilitation. He was sentenced to imprisonment for three years, with a non-parole period of 20 months, much of which he had already served by the time of his sentencing.

He has been doing very well in the community and has permanent work.

The practice conducts cases in the higher courts, including precedent cases in the Court of Criminal Appeal.

Clarifying the meaning of ‘grievous bodily harm’

Swan v R [2016] NSWCCA 79

Mr Swan was convicted by a jury in the District Court of recklessly inflicting grievous bodily harm under the Crimes Act 1900, section 35(1) over an assault in Cessnock in 2013 and sentenced to imprisonment.

Mr Swan appealed his conviction to the Court of Criminal Appeal. The only issue on appeal was whether he had been convicted of the appropriate offence. He argued that the injuries did not amount to ‘grevious bodily harm’ and that he should have been convicted of the lesser charge of assault occasioning ‘actual bodily harm’.

The Court agreed, his conviction on the more serious charge was quashed, and a conviction on the lesser charge was entered. The more serious charge carried a standard non-parole period of five years imprisonment while the Court was not constrained by any standard non-parole period for the lesser offence.

In this decision, the Court of Criminal Appeal clarified what constitutes ‘grievous bodily harm’ and tightened the objective test for injuries alleged to be ‘grievous’. The Court rejected the suggestion that the personal, economic and social circumstances of the victim play any part in assessing the objective seriousness of injury.

Decisions such as these provide significant guidance to Courts, the Crown and defence lawyers in considering the appropriateness of a particular charge and in advising clients about an appropriate plea. This can assist in negotiations between the parties and ultimately in the avoidance of unnecessary trials.

Icon for The year aheadThe year ahead

  • Pursue more efficient ways of dealing with indictable matters in the Local Court as part of wider reforms.
  • Contribute to measures to reduce the District Court trial backlog.
  • Develop two health justice partnerships, ensuring that vulnerable clients with drug and alcohol issues have their legal issues identified earlier.

Family law practice

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 our offices and 109 outreach locations across the state.

Fact file
Total staff: 224
Total expenditure: $79.9M
Proportion of overall expenditure on family law services: 28.2%

Family law client profile

Based on total case grants and inhouse duty services

Bar chart for Family law client profile

We provided 189,721 family law services to clients in 2015–2016

Legal representation

Pie chart for Family law legal representations

Duty services

Pie chart for Family law duty services

Other services

Pie chart for Family law other services

Family law client services over 5 years

Bar chart for Family law 5 year client services

OBJECTIVE Access to justice

An increase in mediations, care and protection services and a strong domestic violence focus

We increased care and protection casework services by 18.2% and duty services in domestic violence and child protection court lists by 13%.

The practice increased the scope and volume of its services during the year:

  • 2,796 mediations held by our family dispute resolution service —the highest number ever achieved and a 4.5% increase on last year. Work was expanded to include mediations in child protection matters involving contact disputes, with over 50 of these sessions achieving excellent resolutions.
  • An 18.2% increase in our inhouse care and protection casework services, taking in an additional 152 new files compared to last year.
  • A 13% increase in our duty services in domestic violence and child protection court lists.
  • New domestic violence services, providing clients with wrap-around, trauma-informed assistance (See Safety for victims).
  • A new health justice partnership at Blacktown Hospital (See Western Sydney first).
  • An additional five specialist outreach services around the state for Aboriginal people.
  • Better access to family law services for people living in the Far West by employing an inhouse lawyer in Broken Hill.
  • A new duty service for matters under the Education Act 1990 in Mt Druitt Local Court, targeting disadvantaged clients.

Other family law initiatives

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

Responding to changing laws

We developed initiatives to respond to changes to the Child Protection (Working with Children) Act 2012 which have impacted upon many authorised carers and the children in their care. Legal Aid NSW has developed a number of resources and training programs to support lawyers dealing with this amendment.

We worked with the Supreme Court of NSW to develop clear and consistent practice directions for adoption proceedings in New South Wales. On 1 July 2016, the Supreme Court of NSW issued the first Practice Note in relation to Adoption. This important initiative provides links to forms, precedents and resources and will greatly assist parties and their legal representatives to understand the case management of adoption proceedings in New South Wales.

We contributed to the development of a Cultural Care Plan for use in the Children's Court for indigenous children and children from diverse cultural backgrounds. The plan aims to ensure appropriate planning around the cultural identity of children found to be in need of care and protection in New South Wales.

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

Case studies iconCase studies

Aboriginal elder supported to retain care of nephews

Civil and Administrative Tribunal NSW— Matter of BXQ v Children’s Guardian [2016] NSWCATAD 102

Our Dubbo office represented an Aboriginal elder, who was given parental responsibility for three of his nephews in 2004. He was refused a working with children’s check clearance because of a notification against him in 2007 for allegedly inappropriately disciplining children in his care. He maintained that the report related to one of the older (now adult) nephews who had substantial behavioural difficulties at the time.

We sought a review of the decision before the NSW Civil and Administrative Tribunal. We obtained expert evidence to show that the elder posed no risk to the safety of children. The Tribunal stayed the decision to refuse the working with children check clearance and our client’s nephews remained in his care.

Supreme Court ruling on termination of pregnancy

Application of a Local Health District; Re a Patient Fay [2016] NSWSC 624

A Local Health District applied to the Supreme Court for urgent review of a decision of the NSW Civil and Administrative Tribunal to refuse an application for special medical treatment for a 19-year-old woman with an intellectual disability.

Fay was almost 22 weeks pregnant. She had preeclampsia with severe hypertension in pregnancy and was at risk of death, renal failure and cerebral haemorrhage. Given the serious health risks, her medical team recommended a termination of pregnancy. Fay and her mother were unwilling to consent to the termination, unless a life-threatening situation came into play.

The treating team considered that by then it would be too late, and questioned Fay’s capacity to give consent.

The Judge appointed a Legal Aid NSW lawyer as the young woman’s separate representative, to consider Fay’s capacity to instruct a lawyer. Our lawyer formed the view that Fay was unable to provide instructions.

The critical issue before the Court was whether Fay had capacity to understand the nature of the risks to her health and her capacity to give consent.

When Fay’s condition worsened, the Court reconvened at the hospital. The Judge gave permission for the procedure to be carried out. In giving his decision, the Judge commented on the importance of the separate representative’s interview.

Ayesha becomes a ward of the Court for protection from forced marriage

Our client grew up in Pakistan with her father. Ayesha (not her real name) moved to Australia to live with her mother and step father. While on a trip to Pakistan, Ayesha's mother pressured her to marry. When Ayesha refused, her mother assaulted her and took her passport away before returning to Australia without her.

Ayesha was assisted to return to Australia. Legal Aid NSW helped obtain orders to prevent Ayesha from being taken out of Australia to be married. When Family and Community Services (FaCS) declined to take Ayesha into care, we applied to the Supreme Court for Ayesha to become a ward of the court.

This is the first case where a young person has made their own application to successfully become a ward of the court.

FaCS then filed an application in the Children's Court to take Ayesha into care. We represented Ayesha in these proceedings.

Ayesha ultimately decided that she wished to return to her father's care in Pakistan. Orders were made in the Supreme Court, Federal Circuit Court and Children's Court for this to happen.

At this point, Ayesha decided to return to her father’s care in Pakistan. Our social worker prepared a wishes report expressing Ayesha’s views for the Court.

Orders were made in the Supreme Court, Children's Court and Federal Circuit Court to enable Ayesha to return to her father's care in Pakistan.

One day Ayesha would like to come back to Australia to attend University.

Icon for The year aheadThe year ahead

  • Develop a new model of legal service delivery aimed at assisting high conflict families in the family law system to resolve their disputes.
  • Implement new representation services under the National Partnership Agreement, including early resolution assistance and other services.

Civil law practice

Our civil law practice helps people resolve legal problems such as housing, employment, debt and Centrelink problems. Civil law advice clinics operate in our offices and 169 outreach clinics across New South Wales.

Civil lawyers are also on duty to provide assistance at the Administrative Appeals Tribunal, Mental Health Review Tribunal and NSW Civil and Administrative Appeals Tribunal (tier 1 and 2).

Fact file
Total staff: 179
Total expenditure: $39.6M
Proportion of overall expenditure on civil law services: 14.0%

Civil law client profile

Based on total case grants and inhouse duty services

Bar chart for Civil law client profile

We provided 244,534 civil law services to clients in 2015–2016

Legal representation

Pie chart for Civil law legal representation

Duty services

Pie chart for Civil law duty services

Other services

Pie chart for Civil law other services

Civil law client services over 5 years

Bar chart for Civil law 5 year client services

OBJECTIVE Access to justice

Services expanded into communities and tribunals

We increased our outreach locations from 140 to 169 to reach more people in the community.

This year, the Civil Law Service for Aboriginal Communities expanded civil law services to Aboriginal people across New South Wales. The team delivered tailored outreach in more than 15 communities, including Lake Cargelligo, Murrin Bridge, Condobolin, Bourke, Brewarrina, Moree, Boggabilla, Toomelah, Tabulam, Maclean, Coraki, Box Ridge, Malabugilmah, Yamba, and Mt Druitt. The service is expanding to reach more communities on the South Coast and in Western New South Wales.

Duty services were extended in the Administrative Appeals Tribunal to include matters being resolved at the tier 1 stage to more registries of the NSW Civil and Administrative Tribunal (NCAT). A service was also provided at the appeal panel of NCAT in tenancy matters.

Students at private colleges were easy prey

We helped over 190 clients with complaints about VET FEE-HELP providers breaching consumer laws. The results we achieved included having clients unenrolled from courses, having the VET FEE-HELP debt remitted or having their enrolment and course credits transferred to a more appropriate course provider.

The practice also worked with the Department of Education and the Australian Competition and Consumer Commission to advocate for systemic changes and to raise awareness of this issue through community legal education.

OBJECTIVE Strong partnerships

Law clinics in health settings catch problems early

Many civil law problems arise from the combination of poverty and vulnerability that may be compounded by a change in financial circumstances or health status. The practice has adopted an integrated service model— partnering with community and health organisations who are best placed to identify legal problems early and provide wrap-around and coordinated support in community settings. The practice is involved in 10 health justice partnerships across New South Wales in community and hospital settings, including:

  • RedLink— located in the Redfern public housing estate, which provides a health, housing, legal, and wellbeing program. A weekly law clinic, in partnership with Redfern Legal Centre, helps residents with legal issues such as fines, tenancy, debt and credit and family relationships.
  • Miller Health Justice Partnership— a weekly clinic at Bidyari Aboriginal Health Centre in the suburb of Miller, an area of profound disadvantage with a high Aboriginal population. A lawyer and a South West Sydney Local Health District psychologist and social worker provide an integrated service to clients.

Clearing outstanding fines debt

The Work and Development Order (WDO) Service helps people to clear their fines through unpaid work, courses, counselling, treatment programs and other activities. The service is a partnership between Legal Aid NSW, the Aboriginal Legal Service (NSW/ACT) Ltd, State Debt Recovery and the Department of Justice.

Clients who are eligible for a Work and Development Order (WDO) include people who have mental illness, cognitive impairment, intellectual disability or serious addiction, as well as people who are experiencing homelessness or acute financial hardship.

Lawyers provide legal services and community legal education at fines clinics and outreach events in metropolitan and regional locations.

In the past four years, 45,000 WDOs have been undertaken by vulnerable clients across New South Wales, clearing more than $55 million in outstanding fines debt. Around 1,700 service providers are now participating in the scheme and have integrated WDOs into their regular operations. A recent evaluation of the WDO scheme by the NSW Department of Justice found the WDO Service at Legal Aid NSW to be highly effective.

The WDO Service partnered with Local Courts NSW and State Debt Recovery on a three-month pilot project to increase participation in the WDO scheme in the Mt Druitt area. Mt Druitt has the highest fines debt by postcode in New South Wales, at around $17 million as of 24 March 2016. Mt Druitt Local Court staff help assess client eligibility for a WDO and make on the spot referrals to State Debt Recovery through a designated hotline. Clients are then linked to suitable WDO sponsors in the community by State Debt Recovery or Legal Aid NSW.

Keeping young people out of the criminal justice system

Working in partnership with the Aboriginal Legal Service (NSW/ACT) Ltd, lawyers provided a dedicated duty service for the Youth Koori Court pilot at Parramatta Children’s Court, dealing with issues like housing and debt. See Youth Koori Court pilot. We contributed to new guidelines outlining alternative ways of responding to the behavioural issues of young people in residential care. See Helping stop young people's drift.

Responding to changing laws

Although the legislative changes were made in December 2014, the mandatory visa cancellation regime is continuing to impact on our work. Since the changes there has been close to a doubling of advice and minor assistance in this area, predominantly dealing with clients who are in custody or immigration detention. We are also dealing with more requests for representation to challenge decisions in the Administrative Appeals Tribunal (AAT) or Federal Court.

Our work in relation to the National Disability Insurance Scheme continued to grow as the scheme was rolled out across New South Wales. We conducted numerous community legal education sessions to community and other workers, consulting stakeholders and the National Disability Insurance Agency, as well as arguing test cases in the AAT which seek to clarify the practical application of the scheme.

The following cases illustrate the range of legal problems that are undertaken in this practice. In some matters, the good outcomes bring benefits for the broader community and help achieve systemic change.

Case studies iconCase studies

Unfair business practices target Aboriginal communities

We assisted clients in dispute with traders operating in Central West New South Wales who provide rental contracts for household goods. One trader engaged in unlicensed trading, providing contracts mainly to Aboriginal communities that failed to meet responsible lending obligations, failed to meet disclosure requirements, and breached the 48% cap on interest. This resulted in consumers paying up to 370% of the value of the goods.

For 55 clients with 280 lease contracts between just two traders we:

  • settled 81 disputes relating to 280 contracts and recovered over $237,000 of overpayments for our clients
  • negotiated a further 13 disputes with the first trader
  • worked with the Australian Securities and Investments Commission (ASIC) to address the systemic conduct identified. We understand ASIC are now working towards an outcome for other affected clients.

Compensation for sexual harassment victim

Our client was a 20-year-old woman with anxiety and depression. While working as a waiter in a restaurant chain she was sexually harassed by a co-worker. She reported the incidents to her employer, who took no action to address the situation and reduced her shifts. We negotiated a settlement at a mediation before the NSW Anti-Discrimination Board. Our client received compensation and the employer agreed to train their staff and management about sexual harassment, discrimination and bullying.

Debt waived for a victim of family violence

Donna is a young single mother who sought our help to deal with $25,000 worth of debts incurred during a violent domestic relationship. Donna was on Centrelink benefits, lived in a regional area, suffered from a mental illness and had experienced sexual abuse as a child. She wanted to go bankrupt as she could not see how she could pay her debts. Given her age, bankruptcy would have affected her ability to obtain private rental and access to credit when she got back on her feet. We negotiated with her creditors to waive her debts on the basis of her current personal circumstances. Donna is now debt free.

Decision to evict a mother of nine successfully overturned on appeal

In December 2015, the NSW Civil and Administrative Tribunal terminated our client’s tenancy and ordered her to pay over $8,000 in rental arrears. Our client is a mother of nine children living in Aboriginal social housing in a remote Aboriginal community. She was one of a large number of tenants the landlord was attempting to evict from their properties.

We sought a stay of these orders so our client and her children could remain in their home.

We also represented our client in an appeal against the decision. The termination and money orders were overturned by the NSW Civil and Administrative Tribunal Appeal Panel. The Panel upheld the appeal, setting aside the original orders and dismissing the original application for termination.

Other civil law initiatives

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

Icon for The year aheadThe year ahead

  • Improve civil law services in Western Sydney, particularly in the Blacktown/Mt Druitt areas.
  • Develop and implement a civil law state-wide service delivery plan for prisoners.