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Annual Report 2017 - 2018

Highlights from our practice areas

We have three legal practices—criminal law, family law and civil law. Each practice has specialist services. Characteristics and highlights appear under each individual practice. Although each practice is distinct they can 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: 388
Total expenditure: $138.8M
Proportion of overall expenditure on criminal law services: 43.43%

Criminal law client profile

Criminal law client profile chart

We provided 448,154 criminal law services to clients in 2017–2018

Criminal law legal representation pie chart

Criminal law duty serrvices pie chart

Criminal law other services pie chart

Criminal law client services over five years

Criminal law client services over 5 years chart

OBJECTIVE Access to justice

Successful implementation of criminal justice reforms

In October 2017, the NSW Parliament passed legislation to reform the criminal justice system. In collaboration with key justice sector partners, we implemented necessary systems and processes for the early appropriate guilty plea reforms, a new sentencing framework and changes to parole, changes to the high risk offender scheme and driver disqualification reforms. We developed and delivered training and information to lawyers and the public, redesigned our workforce, reviewed and changed panel and fee structures for private practitioners and delivered community outreach across NSW.

Expanded legal service delivery in remote NSW to improve client access to legal assistance

In response to significant client disadvantage in the region, Legal Aid NSW expanded in-house criminal law services to seven locations in the Orana and North West of NSW.

Clients with criminal law matters at Bourke, Brewarrina, Cobar, Coonamble, Nyngan, Lightning Ridge, and Walgett at the Children’s Courts and Local Courts, and Bourke and Coonamble District Courts will now receive assistance from in-house solicitors based initially at the Dubbo regional office.

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) provided 1,039 advice services, 212 minor assistance services and 15,268 duty services.

OBJECTIVE Excellence in legal services

Implementing reforms arising from the Indictable Appeals Review

Legal Aid NSW is in the final phase of implementing a number of recommendations resulting from the 2016 Legal Aid NSW Indictable Appeals Review. We amended the Legal Aid NSW guidelines for criminal law matters for the appropriate use of limited public legal aid funds in sentence appeals, and to clarify the approval required for applications for legal aid for criminal appeals to the High Court. We also reviewed and amended the Selection Criteria for applicants to the Appellate Criminal Law Barrister Panel, and the Practice Standards for barristers on this panel.

Engaging with the criminal justice community

In 2017 we launched a criminal law podcast series with 16 episodes released in 2017–2018 and over 3000 downloads. The podcast includes interviews between staff and justice sector colleagues about changes to criminal law and procedure, as well as tips on advocacy and issues commonly faced by criminal lawyers.

Responding to changing laws and amendments

The Early Appropriate Guilty Pleas reform came into effect on 30 April 2018 and significantly change the way serious criminal matters are dealt with in the court system by refocusing activity from the District Court to the Local Court.

The Early Appropriate Guilty Pleas Implementation Team worked with a range of stakeholders to develop new fee and panel structure arrangements for private practitioners, design and implement necessary systems changes, produce resources and train in-house staff and private practitioners across NSW.

We also produced a new resource, Have you been charged with a serious offence? to explain the changes.

Under the Road Transport Amendment (Driver Licence Disqualification) Act 2017 which commenced in October 2017, an eligible person disqualified from driving who has served the relevant offence-free period can apply to the Local Court for the removal of their existing periods of disqualification.

We established a Driver Reform Implementation Team to produce information resources for lawyers and members of the public. The materials include brochures, fact sheets, website pages and a handbook designed for the legal profession.

We provided training on the reform to criminal lawyers across NSW and provided assistance and duty representation to over 400 applicants. We also provided outreach clinics and services in 15 regional and remote areas of NSW, including Broken Hill, Wilcannia, Bourke, and Brewarrina.

In response to sentencing and parole reforms which will start on the 24 September 2018, we designed a training package for in-house and private practitioners, as well as a number of justice sector partners.

Case studies iconCase Study

DM pleaded not guilty to importing a marketable quantity of a border controlled substance. The offence carries a maximum penalty of 25 years imprisonment. DM was an Australian citizen in his 60s with no criminal record.

DM had met various persons on an internet dating site and had been offered the opportunity by some of them to travel overseas and bring back “cleaning chemicals” for an amount of money. He was given various assurances by the organisers that there was nothing illegal about the items he would be bringing into Australia. He travelled to Thailand as directed and upon his return to Australia, he was searched and a marketable quantity of heroin was found in his possession.

Preparation for the trial involved the examination of thousands of emails between our client and the organisers. Our client gave evidence at the trial and our case was that at no time did he know or have a substantial suspicion that there were drugs concealed in the items he imported. After spending a year in gaol awaiting trial, the jury returned a verdict of not guilty.

Case studies iconCase study

The Commonwealth Crimes Unit represented an elderly Vietnamese-Australian man charged with importing a commercial quantity of pseudoephedrine in various food packages. The offence carries a maximum penalty of 25 years gaol.

Pseudoephedrine is used in the manufacture of methamphetamine and is freely available in Vietnam. Our client maintained that he was asked by a man he knew through friends in Vietnam to bring the items back for family members and was at no time suspicious that there was anything sinister hidden in the food packages. The packages appeared to be professionally sealed and attracted no suspicion to the objective observer. The client had lived in Australia for many years.

The client reported on bail for over a year before his trial. The jury returned a not-guilty verdict, and the client was extremely relieved and grateful for the assistance given.

Case studies iconCase study

Driver disqualification removal scheme in action

MG had been disqualified from driving until 2036.

The majority of his disqualification periods arose from offences of Driving Whilst Disqualified and Habitual Traffic Offender Declarations. At the time we assisted MG, he had not been behind the wheel of a car since November 2013, but with another 20 years of disqualifications to serve, he was still to pay a hefty price for his past offending. MG had undertaken several rehabilitative measures. In 2014 he completed the Drug Court program, and this began a long journey of self-improvement.

In 2015 and 2016, he completed a number of TAFE courses to obtain qualifications in the construction industry. In 2016 and 2017 he started and completed a number of parenting courses. However, the inability to drive continued to be a significant barrier for MG.

In mid-2017, he took over the full-time care of his three children, who were all under the age of three. MG was taking the children to and from day-care two days a week and this involved a 40-minute walk each way in addition to a bus ride.

The Legal Aid Driver Reform Implementation Team assisted MG and prepared an application to have his remaining disqualification periods removed. To take instructions, a member of the team travelled out to a local Community Centre close to MG’s home. The Disqualification Removal Application was heard at a Local Court in late January. The magistrate granted the application and did not require any further submissions in support of the written application.

MG has now applied for and been issued with a drivers licence.

calendar iconThe year ahead

  • Design and implement a resource allocation model for crime.
  • Progress work on our service model for priority client groups, especially prisoners and Aboriginal people.
  • Implement sentencing and parole reforms.

Family law practice

Fact file
Total staff: 289
Total expenditure: $83.4M
Proportion of overall expenditure on family law services: 26.15%

Family law client profile

Family law client profile chart

We provided 193,240 family law services to clients in 2017–2018

Family law legal representation pie chart

Family law duty services pie chart

Family law other services pie chart

Family law client services over five years

Family law client services over 5 years chart

OBJECTIVE Access to justice

Providing more services to disadvantaged groups

We expanded our family law services to children, Aboriginal people and domestic violence victims. Achievements included:

  • A 25% increase in family law duty services provided as a result of greater services for families affected by family violence and provided 12,636 duty lawyer services – the highest number ever.
  • A new Domestic Violence Unit on the Central Coast launched to provide legal and non-legal support services enabling women experiencing domestic violence to protect themselves and their children.
  • New health justice partnerships at Coffs Harbour Hospital, the Sydney Children’s Hospital at Westmead and the Drug and Alcohol Rehabilitation service at Rozelle.
  • Over 7,650 high quality integrated duty lawyer and family violence support services provided in four Family Court registries as part of the Family Advocacy and Support Service (FASS).
  • New guidelines for the identification of vulnerable family law clients developed to enable the better prioritising and referring of vulnerable clients from advice and duty services to in-house casework services.
  • Support of the pilot of a specialised Indigenous List at the Federal Circuit Court, Sydney registry.
  • Family law staff contributed to Legal Aid’s submission on the review of the Child Protection (Working with Children) Act and advocated for the creation of a new category of people to be exempted from the operation of the Act. This led to the creation of the Continuing Residence Approval– which allows young people leaving out of home care to remain in their placement even if they are unable to obtain a Working With Children Check.
  • In collaboration with the Centre for Children and Young People at Southern Cross University, a Good Practice Guide for lawyers working with children to provide a stimulus for Independent Children’s Lawyers (ICLs) and others to reflect on the way they currently engage with children.
  • Four new publications to explain and promote the work of the FASS.

Settling matters outside of court

Our family dispute resolution service helps people to resolve their disputes without going to court. Mediations focus on what’s best for children.

2,911 mediations have been held by our family dispute resolution service—the highest number of mediations we have ever held.

OBJECTIVE Excellence in legal services

Resources for domestic violence workers

We reviewed and improved domestic and family violence (DFV) resources and tools for staff accessible through the DFV staff intranet page, including resources to build the capability of staff to screen for DFV, assess risk, plan for client safety and manage high risk matters in a safe way. A new risk assessment tip sheet was developed and distributed across the Family Law Division.

Addressing the backlog of Family Court matters

The Federal Circuit Court announced a series of callovers in 2017–2018. The purpose of the callover is for the court to find out which matters will be ready to go ahead on the scheduled date, and parties in family law matters listed for a trial are required to attend court over a short timeframe. Our staff attended a number of callovers as a result.

OBJECTIVE Strong partnerships

Our Family Law Division created new Health Justice Partnerships at Coffs Harbour Hospital, the Sydney Children’s Hospital at Westmead and the Drug and Alcohol Rehabilitation service at Rozelle.

Staff from the Family Law Division participated in the Supreme Court Adoptions Working Party, the NCAT Consultative Forum and Community Services Sub-Committee and the Law Society’s Children’s Legal Issues and Family Issues Committees.

We continued to work with partners across the NSW and Commonwealth Government to finalise the referral pathway for underage forced marriage matters across NSW.

We continue to strengthen referral relationships and partnerships with Australian Federal Police and NSW Police including through DFV, forced marriage and technologyfacilitated abuse initiatives and training with NSW Police.

We established partnerships with WESNET to provide safe phones to people experiencing DFV; and with Dress for Success to provide clothes, shoes, jewellery and other items to people experiencing DFV.

A new approach to guardianship orders

We worked with Family and Community Services and the Children’s Court to trial a new approach to guardianship orders under the Children and Young Persons (Care and Protection) Act and in response to a forecast by the Department of Family and Community Services (FACS) of a significant number of new applications. We provided face to face training and webinars for in-house staff and care and protection panel lawyers on guardianship orders. We also produced a new resource explaining the guardianship process for people who want to be a guardian of children.

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 and amendments

Since 2013, the Family Law Division has been acting for people impacted by forced marriage and sought changes to the law to better protect victims of forced marriage. The forced marriage issue was covered in the NSW Legislative Council inquiry into Modern Slavery. The Family Law Division, via the Policy,Planning and Programs Division, contributed to the NSW Legislative Council inquiry into Modern Slavery in NSW making some recommendations that went to the issue of the way that forced marriage will be dealt with in the proposed NSW and Commonwealth responses to Modern Slavery.

In 2016, Legal Aid NSW established the NSW and Commonwealth Government Working Group to Prevent Forced Marriage and a Family Law Division representative chairs this group. At the end of 2016, arising from this work, Legal Aid NSW wrote to the then Commonwealth Attorney- General proposing that the Commonwealth implement a form of civil protection for victims of forced marriage called Forced Marriage Protection Orders.

In June 2018, the Australian Government announced that they would implement Forced Marriage Protection Orders via amendment to Commonwealth law. This proposal has received bi-partisan support at Commonwealth level.

Case studies iconCase study

Successful outcome for young Aboriginal mother via collaborative work

SL, a young Aboriginal mother, initially saw duty lawyers in the Early Intervention Unit (EIU) after another woman retained her children aged four and eight months. The EIU and Lismore Legal Aid office prepared and filed documents on SL’s behalf and obtained orders for her children to be returned. The EIU provided social and legal support to SL and liaised with Police on her behalf to achieve an excellent outcome for this particularly vulnerable client.

Case studies iconCase study

Multi-disciplinary approach helps to keep DV victim safe

SS and WS were together for eight years and have a two year old son. WS was very controlling of SS and would use violence and intimidation against her in order to get his way. SS left the relationship but the abuse continued.

SS attempted Family Dispute Resolution with the assistance of her Domestic Violence Unit (DVU) lawyer. An agreement was reached regarding care of the child however, following mediation WS continued to attempt to exert extreme control over SS. SS feared for her life.

SS met with our social worker and solicitor, and made a plan to report this abuse to the police. The social worker accompanied SS to the police station and advocated for SS so the police would agree to take her statement. Police then charged WS and took out a provisional Apprehended Domestic Violence Order (ADVO) for her protection and the protection of their child with a no contact order. A final ADVO is now in place for her protection. She also received assistance from Staying Home Leaving Violence to upgrade the security of her home.

Case studies iconCase study

Family Law Division has success in significant judgement in gender dysphoria case

In Re Kelvin [2017] FamCA 78–the Full Court of the Family Court were asked to decide on the Family Court’s involvement in the authorisation of Stage 2 medical treatment for children and young people diagnosed with gender dysphoria. Legal Aid NSW acted as Independent Children’s Lawyer for Kelvin, a 17 year old transgender male. In a unanimous decision, the Full Court found that it is no longer necessary to apply to the Court for a determination of whether a child is Gillick competent where there is no controversy or disagreement about the treatment between the child, the parents and the treating medical practitioners. Gillick competence is a term used in medical law to decide whether a child (under 16 years of age) is able to consent to his or her own medical treatment, without the need for parental permission or knowledge.

calendar iconThe year ahead

  • Develop a new Legal Aid NSW Domestic and Family Violence Strategy.
  • Implement family law service improvements in regional NSW including those arising from the Victoria/NSW cross-border project, family law components of the North West Strategy.

Civil law practice

Fact file
Total staff: 248
Total expenditure: $43.0M
Proportion of overall expenditure on civil law services: 13.48%

Civil law client profile

Civil law client profile chart

We provided 261,791 civil law services to clients in 2017–2018

Civil law legal representation chart

Civil law duty services pie chart

Civil law other services pie chart

Civil law client services over five years

Civil law client services over 5 years chart

OBJECTIVE Access to justice

Helping people at risk of homelessness

The NSW Homelessness Strategy 2018–2023 sets out the NSW Government’s plan for a comprehensive approach to prevent and improve the way we respond to homelessness.

This year we brought together our Housing and Homeless outreach specialist lawyers together to provide a coordinated response to the Strategy. The lawyers work on preventing homelessness for clients at risk of eviction as well as removing barriers to housing for people who are homeless. This includes challenging tenant blacklists, and social housing decisions that prevent our clients applying for housing because of debts arising from domestic violence or behaviour arising from mental illness.

Our homeless outreach solicitors helped over 700 homeless people and over 500 people at risk of homelessness. We saved or extended more than 25 tenancies, removed 10 blacklists and housed 10 clients.

Helping vulnerable clients gain access to the National Disability Insurance Scheme

The Department of Social Services continued to fund Legal Aid NSW to provide legal representation to clients in complex and novel NDIS matters before the Administrative Appeals Tribunal. This year there was a significant increase of matters, from 37 matters the previous year to 167. We established a new specialist team of solicitors and a paralegal within the Government Law Team who have assisted in the majority of these matters and built capacity of regional staff to run these matters. This work has resulted in people with significant disabilities gaining access to the NDIS as well as obtaining funding for much needed disability supports and services.

Delivering services to refugees on the settlement journey

This year was the first full year of operation for our Refugee Service. The Service (3 civil lawyers, a family lawyer, a community engagement officer and legal support officer) provides legal services to newly arrived refugees, and aims to provide a holistic service through its majority bilingual staff.

On the frontline for disaster assistance

Legal Aid NSW is the Government’s lead agency to provide legal services to people affected by natural disasters. Following the devastating bushfires in Tathra in March 2018, civil lawyers from across the state attended the disaster recovery centre for over four weeks and assisted over 60 families, many of whom had lost everything. See page 26 for more information.

OBJECTIVE Excellence in legal services

A milestone in cleared 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. This year the WDO Service provided targeted outreach in collaboration with other Legal Aid NSW teams including the Civil Law Service for Aboriginal Communities and the Driver Disqualification Reform teams.

The WDO Service works closely with WDO sponsor organisations and health practitioners. In response to sponsor growth and demand we expanded our WDO webinar program, introduced masterclasses and held sponsor forums in 17 communities across NSW including Wollongong, Ulladulla, Mildura, Deniliquin, Grafton, Dubbo, Moree, Coonamble, Nowra, Taree, Wagga Wagga, Griffith, Bega, Batemans Bay, Newcastle and Sydney.

This year 28,456 new orders were approved and $34,797,351 in fines debt was cleared.

We also achieved two major WDO milestones. In October 2017 the scheme reached $100 million in cleared fines debt for vulnerable clients and in May 2018 we celebrated approval of the 100,000th WDO.

Work and Development Order Service staff

Staff from the Work and Development Order Service

Targeted work with prisoners

Legal Aid NSW civil lawyers work with prisoners at high risk of reoffending with the aim of resolving legal problems (such as housing, unpaid fines and debt) that contribute to this risk.

This year we increased services to prisoners with a regular audio visual link clinic; and with outreach clinics in the 10 newly established High Intensity Program Units (HIPUs) across NSW as part of the NSW Government’s Strategy to Reduce Reoffending.

We also provided support to prisoners released on parole as part of the On TRACC (Transition Reintegration and Community Connection) program. We also expanded our outreach to Junee, Manus and Bathurst Correctional Centres with a focus on consumer law.

OBJECTIVE Strong partnerships

Working together for a more holistic service

We engage in cross divisional referrals to give a more comprehensive legal service to our clients who may have civil, criminal and family law issues. Our holistic service encompasses family law services such as the Domestic Violence Unit to specialist immigration, consumer and housing law teams. Our Children’s Legal Service and the Children’s Civil Law Service work closely with the Human Rights team to monitor and respond to policing problems faced by young people. Our Outreach, WDO and Civil Law Services for Aboriginal Communities teams worked closely with crime solicitors in the Driver Disqualification Reform Team to ensure that our clients’ fines and other debts can be dealt with at the same time as the driving disqualifications.

Prison Health Project

We joined forces with the Public Interest Advocacy Centre to improve access to quality and timely healthcare for prisoners and to increase the accountability of prison health services. This year, we received 33 referrals mostly relating to unreasonable delay in seeing a doctor or lack of access to medications and mental health services. We assisted clients to lodge complaints to Justice Health and Forensic Mental Health Network, and to the Health Care Complaints Commission. We continue to work with senior policy and agency decision-makers to address systemic issues.

Health justice partnerships and a collaborative approach helping our most vulnerable clients

We established a health justice partnership (HJP) with We Help Ourselves Therapeutic Community (WHOS), a residential drug and alcohol treatment program. The partnership involves regular civil and family law clinics by the Civil Outreach WDO team and Early Intervention Unit as well as a program of legal education provided by the Community Legal Education Unit.

We also established an HJP with Marathon Health, the only health service providing a dedicated service to Aboriginal people in Kelso.

OBJECTIVE Supporting our people

Partners in legal excellence

This year we introduced the Civil Law Legal Excellence Program in partnership with the Law Society of NSW. The program supports our in-house staff to develop the technical legal skills and expertise required for our diverse and unique practice. It comprises a series of modules to cater to varying levels of skill and experience across the Division. Modules include Case Theory and Initiating Action, Negotiation Skills, Drafting Affidavits and Advanced Advocacy.

Responding to changing laws and amendments

Access to Justice for the Stolen Generations

Following the commencement of the NSW Government’s Stolen Generations Reparation Scheme in July 2017, the Civil Law Service for Aboriginal Communities (CLSAC) led service delivery to Stolen Generations survivors alongside staff in regional offices and the Community Legal Education Branch.

We provided advice, representation and referral services to Stolen Generations survivors to assist them to make claims under the scheme, referring them to private solicitors to pursue other avenues of compensation and to other support services. We have helped over 150 clients in this way including a client who was initially refused payment because the Aboriginal Welfare Board was not involved in her removal. We helped her to seek a review and she received $82,000 in reparations and funerals assistance payment.

Case studies iconCase study

Procedural fairness for forensic patients

The Mental Health Advocacy Service and the Human Rights Team often worked together to ensure legislation is applied in a fair manner. Our client a forensic patient had been detained for over three and a half years. The State of NSW sought to extend our client’s forensic status for further three years by seeking a variation of the existing order. This approach circumvented accepted practice and our interpretation of the legislation. The variation procedure also requires a lower level of scrutiny. We successfully argued that the State should file a summons commencing fresh proceedings. The Court agreed with our reasoning that a strict interpretation of the legislation is required where a person’s liberty is at stake, and particularly in circumstances where the person has a mental illness, is not guilty of a criminal offence and their detention is preventative.

Case studies iconCase study

NDIS funding for our client increased by over 100%

We represented the parents of a two year old who suffered a severe brain injury which resulted in spastic quadriplegic cerebral palsy. She also suffers from seizures, visual/hearing impairment, feeding intolerance, poor weight gain and episodes of severe irritability. She has three older siblings and both parents work. In the first year, her parents received $86,000pa NDIS funding to cover support workers to help them meet her personal care needs. In the second year this was reduced to $69,000pa. We helped them to appeal to the AAT, seeking additional money to enable them to provide the 24/7 care their daughter requires. Following a two day hearing, the AAT increased the funding for support workers to assist with the child’s care to approximately $200,000 pa.

Case studies iconCase study

Resisting evictions on the basis of hoarding

Our housing team represented an Aboriginal mother at the NSW Civil and Administrative Tribunal (NCAT) Appeal Panel and successfully reinstated her social housing tenancy. When she approached us, the NCAT had already terminated our client’s tenancy on the basis of her hoarding and squalor issues and that she had not engaged with support services. We lodged an appeal and a stay on the eviction orders so she could stay in her home until the Appeal was decided. We also connected the client with support services who assisted her to clean up the property and agreed to provide ongoing support to maintain the property in a healthy condition. Based on these improvements the landlord agreed to set aside the eviction orders and allow the tenant to remain in the home. Not only did this intervention prevent the client, her partner and their teenage son becoming homeless, the involvement with services and the improved condition of the property increases the likelihood of FACS restoring our client’s other children to her.

calendar iconThe year ahead

  • Increase and expand our Extended Legal Assistance services to vulnerable clients.
  • Strengthen the Civil Law Division’s referral networks within and outside Legal Aid NSW.
  • Seek out opportunities to work with allied health and other professionals to provide comprehensive assistance to our clients.