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Annual Report 2016 - 2017

Highlights from our practice areas

We have three legal practices—criminal law, family law and civil law. Each legal practice has a number of specialist services. Their characteristics and highlights appear under each individual practice. Although distinct practices, in some cases, the practice areas collaborate to help clients with multiple legal needs.

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 35 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 Service 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: 304
Total expenditure: $134.9M
Proportion of overall expenditure on criminal law services: 44.0%

"Early pleas saw more matters going to sentence rather than trial—a benefit for all parties and for the justice system."

Criminal law client profile

We provided 444,258 criminal law services to clients in 2016–2017

Criminal law client services over five years

OBJECTIVE Access to justice

Holistic services provided to young people

Our lawyers appearing for young people in criminal matters ensure that other legal and social needs are not neglected. This year, criminal lawyers at the Children’s Legal Service (CLS) made 81 referrals to the civil law practice as well as referrals to other legal and social support services. Referrals were most commonly made in relation to out-of-home care issues, complaints against police and insurance and debt problems.

Case study

Young person gets her life back on track

Kim’s mother had complex issues and several of Kim’s siblings had been removed by Family and Community Services (FACS). When Kim’s relationship with her mother deteriorated, her mother placed an apprehended violence order (AVO) on her and eventually Kim was charged with breaching the AVO. When Kim attended the Children’s Court she was homeless. FACS was offering Kim a placement at a refuge which was several hours away from Sydney and all of Kim’s support networks. She had no money as Centrelink had suspended payments because Kim could not provide an address for the Centrelink form.

The CLS lawyer worked together with the Children’s Civil Law Service and Children’s Court Assistance Scheme to obtain immediate crisis accommodation. With the assistance of those services Kim obtained a refuge placement within Sydney, had her Centrelink payments reinstated with backpay, obtained casework support at her new placement and re-engaged with schooling with transition to a local high school.

OBJECTIVE Excellence in legal services

Positive impact on outcomes for defendants, victims, witnesses and the criminal justice system

We identified the impact of an expanded in-house committals practice that was introduced last year.

The recruitment of ten additional lawyers has allowed Legal Aid NSW to expand the reach of its in-house practice to new regional and remote committal courts, and to increase the proportion of committal matters dealt with at courts already serviced.

Data shows that committal matters dealt with by in-house lawyers that conclude by way of a guilty plea are resolved at an earlier stage.

The cost of preparation of a trial is avoided where a plea of guilty is entered at an early stage. The defendant benefits from greater certainty and the victim benefits by avoiding a prolonged court matter. Efficiencies for the criminal justice system are created as fewer matters are committed for trials that ultimately do not run, contributing to a reduced trial backlog.

Committal pilot reduces District Court workload

Legal Aid NSW has an agreement with the Office of the Director of Public Prosecutions (ODPP) to work together in plea charge negotiations at the committal stage of proceedings in order to encourage appropriate early guilty pleas.

This year, our Burwood lawyers and the ODPP Burwood Pilot Group (Sydney) applied a unique approach to the agreement, meeting regularly to negotiate a broad range of offences with varying degrees of complexity.

As a result, more matters were finalised early, and fewer matters were committed to the District Court. Of those committed, a greater number were committed for sentence rather than trial. This represents savings in time and money for all parties and for the justice system.

OBJECTIVE Strong partnerships

Key information for remand prisoners

In response to the significant number of calls from prisoners to Legal Aid NSW and LawAccess NSW, and to assist in managing prisoner expectations surrounding our services, Legal Aid NSW developed a brochure for remand prisoners—I am in prison on remand—how can Legal Aid NSW help me? This resource explains the legal process in basic terms and sets out what prisoners on remand can expect from Legal Aid NSW, including how to contact us. The brochure will be given to each new prisoner with the gaol’s induction booklet as part of the prisoner intake process.

Successful start to health justice partnership

In February 2017, Legal Aid NSW and the Western Sydney Local Health District Drug Health Service started a Health Justice Partnership (HJP) at the Methadone Clinic at Blacktown Hospital (See case study).

Other criminal law initiatives appear under the section headings:

Responding to changing laws and amendments

In August 2016, the Criminal Procedure Act 1986 was amended to expand the number of break and enter offences that can be finalised in the Local Court. Break and enter offences committed in company where the total value of the stolen property does not exceed $60,000 are now in Table 1, which means they stay in the Local Court unless the prosecution or the defendant elects to have them committed to the District Court. Legal Aid NSW lawyers at courts throughout New South Wales have revised their advice to clients on these offences.

It is anticipated that this legislative change will reduce the trial backlog in New South Wales.

Legal Aid NSW lawyers appear for clients in higher court cases that clarify points of law or set legal precedents. In some cases, decisions are mitigated or overturned.

Case studies

High Court emphasises the need to prove a child appreciates their actions were morally wrong

RP v The Queen [2016] HCA 53

In late 2016, the High Court handed down its first full consideration of the doctrine of doli incapax (the presumption of criminal incapacity for children) in the decision of RP v The Queen [2016] HCA 53. The age of criminal responsibility in New South Wales is 10 years. No child younger than this can be charged with a crime. At common law, a child between 10 and 13 is presumed to be incapable of forming a criminal intent. The prosecution must rebut this presumption as an element of their case with evidence that the child knew that their actions were seriously, criminally wrong. RP was 12 years old at the time of the offence.

RP was represented in the High Court proceedings by the same Legal Aid NSW lawyer who had instructed in his District Court trial in 2014 and in the Court of Criminal Appeal. In the High Court proceedings, the lawyer instructed senior and junior counsel with extensive appellate experience. The lawyer supported RP and his family through more than two years of legal proceedings.

The High Court overturned the decision of the Court of Criminal Appeal and RP was acquitted, having spent 11 months of a two year and six months sentence in adult custody.

The High Court restated the principles of doli incapax, emphasising the need for the prosecution to prove that the child appreciated their actions were morally wrong rather than an awareness of mere naughtiness. The majority of four judges stated that proof of this cannot be based solely on evidence of the act charged.

Re-sentence ordered to correct earlier errors

LD v R [2016] NSWCCA 217

LD was a juvenile when he committed a home invasion in the company of three adult co-offenders. The victim was wounded inside his home during the offence.

LD pleaded guilty on the first day of trial and was sentenced to a total term of three years’ imprisonment with a non-parole period of 18 months.

A severity appeal was heard in the Court of Criminal Appeal. The Crown conceded an error in that the sentencing judge failed to apply the provisions of the Children (Criminal Proceedings) Act 1987 (the Act). In particular, there was no background report, no consideration of the particular principles relevant to children, including the importance of the principle of rehabilitation in sentencing children, and no requirement to deal with the offence according to law as it was not a ‘serious children’s indictable offence’ as defined by the Act.

On the day of the hearing, the Court allowed the appeal and directed that the matter be remitted to the District Court for re-sentence. LD was re-sentenced to a fixed term, commencing on the day he went into custody and ending on the date of re-sentence—a period of one year and 23 days.

The year ahead

  • Ensure a greater understanding of how to deal with clients living with mental health issues through all criminal law staff participating in mental health training.
  • Provide advice clinics and representation at 10 remote and regional locations as part of the Government’s driver disqualification reforms.
  • Implement the New South Wales Government’s package of early appropriate guilty plea reforms

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 95 outreach locations across the state.

Fact file
Total staff: 235
Total expenditure: $84.5M
Proportion of overall expenditure on family law services: 27.6%

Family law client profile

We provided 189,704 family law services to clients in 2016–2017

Family law client services over five years

OBJECTIVE Access to justice

Providing more services to especially disadvantaged groups

The practice expanded its services to children, Aboriginal people and domestic violence victims. Achievements included:

  • a 13 per cent increase in our duty services in domestic violence and child protection court lists
  • an 18.3 per cent increase in advice sessions to people identifying as Aboriginal after introducing five new specialist outreach services across New South Wales
  • new outreach advice locations in South West Sydney targeting communities disproportionately affected by domestic and family violence
  • a new advocacy and support service for families affected by domestic and family violence (New approach to keep children and families safer)
  • new health justice partnerships at the Royal Hospital for Women and the Sydney Children’s Hospital Network at Randwick
  • advice to Aboriginal clients as part of the new Federal Circuit Court Indigenous List Days at the Sydney Registry
  • publications that explain the adoption process for birth parents.

Settling matters out of court

Our Family Dispute Resolution Service helps people to resolve their disputes without going to court. Mediations focus on what is best for the children.

This year, 2,801 mediations were held with a successful settlement rate of 80.7 per cent.

Mediations are highly skilled negotiations that cover a range of family law areas.

Other family law initiatives

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

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

Case studies

Birth and adoptive parents agree on adoption plan

The mediation took place between a birth mother, Family and Community Services, Crown Solicitors and the prospective adoptive parents. The children had been removed and parental responsibility was with the Minister. At the beginning of the mediation the mother did not consent to the adoption and was only seeking contact arrangements.

Eventually, a positive agreement was reached, gaining the mother’s consent to the adoption plan. The birth and adoptive parents agreed to contact arrangements, and Family and Community Services agreed to pay for flights and accommodation for the parties.

High Court case recognises children’s wishes

Bondelmonte v Bondelmonte & Anor [2017] HCA 8

We participated in an appeal to the High Court of Australia, from a decision of the Full Court of the Family Court of Australia.

The father lodged the appeal and the mother did not participate in the appeal. We took conduct of the matter on behalf of the second respondent—the Independent Children’s Lawyer. The appeal raised important issues around the role of the Independent Children’s Lawyer, the conduct of interim hearings and the way in which children’s wishes and views should be placed before the Court.

The appeal was dismissed with costs in favour of Legal Aid NSW.

This case attracted national interest and was the subject of a Law Report episode on Radio National.

Court supports young person's right to decide gender identity

Quinn [2016] FamCA 617 (29 July 2016)

Legal Aid NSW was the children's legal representative for Quinn, a young person born female who identifies as male and has dressed as a boy from the age of four. Quinn's parents made an application to the Family Court for a declaration that Quinn, aged 15, is competent to consent to male chest reconstruction surgery for the purpose of treatment for gender dysphoria. Quinn had not commenced treatment until a late stage which meant he had developed an E-cup breast which caused physical and psychological discomfort.

Family and Community Services intervened and submitted that because the proposed treatment did not follow the usual course, there was a dispute within the meaning of Re Jamie, which required the Court to make the decision of whether the treatment was in Quinn’s best interest. The Court disagreed and declared that Quinn was competent to make decisions about his own surgery.

Responding to changing laws and amendments

In December 2016, amendments to the Crimes (Domestic and Personal Violence) Act 2007 (the Act) came into effect. The Act allows domestic violence orders to be made by the Children’s Court of its own motion, or at the request of Family and Community Services or a child representative. It is another important mechanism to protect children from domestic violence. We trained our staff and worked with the Children’s Court to implement new processes.

The year ahead

  • Work with Family and Community Services and the Children’s Court to improve legal services to parents and children in Guardianship Order matters.
  • Develop a new approach to highly vulnerable clients who come into early contact with our services but who need to be transitioned carefully into our casework services.

Civil law practice

Our civil law practice helps people resolve legal problems that impact on their everyday lives. Civil law advice clinics operate in our offices and 164 outreach clinics across New South Wales.

Duty services are available at the Administrative Appeals Tribunal, NSW Civil and Administrative Tribunal and Mental Health Review Tribunal.

Fact file
Total staff: 195
Total expenditure: $42.6M
Proportion of overall expenditure on civil law services: 13.9%

"We reached out to the most disadvantaged communities and tailored our services so that they can deliver the most impact."

Civil law client profile

We provided 254,301 civil law services to clients in 2016–2017

Note: The 24.5 per cent drop in minor assistance reflects changes to the counting rules under the new National Partnership Agreement.

Civil law client services over five years

OBJECTIVE Access to justice

Helping tenants stay in their homes

In 2016–2017, lawyers advised 872 people about termination of a tenancy; 207 of those were public tenants. We provided 219 instances of minor assistance to tenants at risk of eviction from a public tenancy and made 27 grants of aid.

We established a service for tenancy matters before the Appeal Panel of NSW Civil and Administrative Tribunal (NCAT). In just under 12 months, this service has advised more than 125 tenants. More than half of matters relate to eviction orders. We represented 21 clients in their NCAT appeals with seven social housing tenancies and three private tenancies retained, two clients getting more time to move out, and three clients receiving increased compensation.

Casework increasing under National Disability Insurance Scheme

Under an agreement with the Department of Human Services, Legal Aid NSW provides legal representation to clients with “complex and novel” National Disability Insurance Scheme (NDIS) matters before the Administrative Appeals Tribunal.

This work includes conducting conferences and hearings in the Tribunal, Federal Court litigation and extensive legal education to lawyers, community workers and others about the NDIS.

Referrals under the MOU have been steadily increasing. In 2016–2017, we received 37 referrals of complex cases compared with 10 in 2015–2016. We have accepted all referrals.

Delivering services to refugees on the settlement journey

We established the Refugee Service in February 2017 to assist refugees to learn about their rights and obligations under the law (See Delivering services to refugees).

Health and insurance cover

In March 2017, Legal Aid NSW launched a survey for the Health Conditions and Insurance Project, looking into how people’s health affects their ability to access insurance. We received over 250 completed surveys, showing that 75 per cent of people with an insurance problem did not seek legal advice or lodge a complaint.

We provided legal advice and assistance to people with an ongoing legal issue.

Rapid response to natural disasters

Legal Aid NSW is the Government’s lead agency to provide legal services to people affected by disasters. Assistance is given in relation to insurance claims, credit commitments, and tenancy, employment and social security issues. The disaster recovery centres in Murwillumbah and Lismore were open for eight weeks and lawyers attended both centres seven days a week. Most people were unable to afford flood cover (having received quotes for premiums of up to $16,000) and insurers denied cover on the basis that flood caused the damage to the properties. We provided over 289 advices to clients and at least 70 per cent of those clients are expected to need additional follow up assistance.

Private training college disputes

We assisted clients with complaints about VET FEE-HELP providers to obtain reversals of enrolments, have debts remitted, or have enrolments and course credits transferred to a more reputable course provider. We worked closely with the Department of Education and the Australian Competition and Consumer Commission in their investigations of providers. We assisted 120 clients with their complaints.

OBJECTIVE Excellence in legal services

Expanding duty advice services at tribunals

The practice expanded duty advice schemes to operate at the Administrative Appeals Tribunal (both tiers); NSW Civil and Administrative Tribunal (in the Consumer and Commercial Division, Administrative and Equal Opportunity Division and the Appeal Panel) and the Fair Work Commission.

Clearing fines debt

The Work and Development Order (WDO) Service diverts vulnerable people from the fines enforcement system and enables them to clear debt by taking part in a wide range of activities or treatment programs. Located across four regional and two metropolitan locations, specialist fines lawyers and paralegals lead WDO expansion in areas of high fine debt and social disadvantage. During 2016–2017, 485 new sponsors came on board, bringing the total to 2,198 sponsors across New South Wales.

In a record year for WDOs, 23,122 new orders were approved and $27,647,442 in fines debt was cleared. Since WDOs were introduced in 2012, a total of 74,179 orders have been approved reducing outstanding debt by $89,977,737 cleared (to 30 June 2017).

Responding to changing laws and amendments

Large numbers of clients who owe a Centrelink debt were experiencing issues with Centrelink's new automated online debt system. We established a partnership with LawAccess NSW, the Welfare Rights Centre and Illawarra Legal Centre to provide urgent advice and assistance, advising clients on how to challenge the debts, obtain government information such as employment records and Centrelink files, and how to appeal.

We gave evidence to a Senate Community Affairs Committee inquiry into Centrelink’s online compliance intervention system, raising issues that impact on our clients such as problems with how debts are raised, their lack of timeliness, and the improper imposition of a 10 per cent penalty to debts.

Other civil law initiatives

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

The following cases illustrate how civil law problems can seriously impact on people’s lives, but also how legal assistance can help turn people’s lives around.

Case studies

Debt waived for client fleeing domestic violence

We helped a woman in Silverwater Women’s Correctional Centre save her tenancy. She was a 40-year-old Aboriginal woman with a history of domestic violence, homelessness, substance abuse and mental health issues. She was subjected to ongoing and life-threatening violence while in her Housing NSW property. Our client obtained an apprehended domestic violence order, fled the property and stopped paying the rent. Housing NSW obtained orders to terminate her tenancy because of rental arrears and classified her as an unsatisfactory former tenant. She had a rental arrears debt of $5,570. Her appeal was refused so we appealed to the Housing Appeals Committee who agreed that her tenancy should be reinstated as her absence was caused by domestic violence. They also recommended that the debt be waived. Housing NSW accepted the recommendation.

Client wins access to national disability insurance

Our client, Mr T, suffered from cardiomyopathy, sleep apnoea, Crohn’s disease, grand obesity, chronic anxiety and depression. The National Disability Insurance Agency (NDIA) rejected his application to join the NDIS on the basis that his obesity and depression were not permanent and that the remaining conditions were “health conditions” not disabilities. We assisted Mr T to obtain additional diagnostic materials and an occupational therapy assessment. We wrote submissions to the NDIA arguing that Mr T's morbid obesity and depression were permanent and resulted in substantially reduced functional capacity in the areas of mobility and self-care, and he therefore met the disability requirements to become a participant in the NDIS. The NDIA conceded the appeal and the NDIA decision was set aside. The matter only required one preliminary case conference at the Administrative Appeals Tribunal.

Legal Aid NSW secures precedent-setting tenancy win

Angela Violet v Mohsen Ghaderi-Araghi

Legal Aid NSW assisted a client to retain damages for the non-economic loss he suffered by being made homeless by his landlord. The client, a 65 year old man, was made homeless after his landlord illegally evicted him by changing the locks at the premises he rented.

Legal Aid NSW acted for our client in the landlord’s appeal against a decision of the NSW Civil and Administrative Tribunal (NCAT) to award him compensatory damages for loss of enjoyment of the property.

The case raised an important public interest matter regarding the power of Courts and Tribunals to award damages for non-economic loss caused by loss of enjoyment of residential premises. The Civil Liability Act 2002 (CLA) generally restricts damages for non-economic loss when they amount to personal injury damages. The NCAT Appeals Panel accepted our submissions that damages for being made homeless as a result of an illegal eviction amount to damages for discomfort and loss of enjoyment, and are therefore not subject to the restrictions of the CLA.

The result in this case has potentially wide-ranging implications for our clients, particularly tenants who suffer non-economic losses caused by breaches to their right to quiet enjoyment of premises

The year ahead

  • Increase our capacity to provide advice, representation and community legal education in relation to NDIS issues as the Scheme rolls out to additional locations.
  • Contribute to developing the New South Wales Homelessness Strategy.
  • Enhance services to clients with complex needs, including through partnerships