Annual Report 2018 - 2019
Highlights from our practice areas
We have three areas of legal practice: criminal law, family law and civil law. Each practice includes specialist services. Although each practice is distinct, staff from different practice areas regularly collaborate to better serve clients with multiple legal needs and to apply a wide lens to law reform initiatives. Increasingly, our specialist services follow a multidisciplinary model.
Criminal law
Our criminal law practice is the largest criminal law practice in Australia. It provides legal information, advice and minor assistance, extended legal assistance, duty services and representation in criminal courts at each jurisdictional level across the state. These services are available at our offices and at 40 outreach locations.
The Children’s Legal Service, Prisoners Legal Service, the Drug Court Service, the Driver Reform Implementation Team and the Commonwealth Crime Unit provide specialist services. The practice offers community legal education throughout NSW and contributes to law reform initiatives.
| Fact file | |
|---|---|
| Total staff: | 422 |
| Total expenditure on criminal law services: | $184.3M |
| Proportion of overall expenditure on criminal law services: | 49.2% |
Criminal law client profile
Based on total case grants and in-house duty services
Criminal law services over five years
We provided 247,471 criminal law services to clients in 2018–19
Total legal representation: 24,020
Total duty services: 183,799
Total other services: 39,652
Information services are not included in service counts in this section. See How our key services tracked.
OBJECTIVE: Meeting clients' needs
Supporting vulnerable clients in parole matters
This year the Legal Aid NSW Board approved the availability of extended legal assistance for both NSW and Commonwealth parole matters, allowing our staff to provide a higher level of service to clients in these matters, particularly where expenditure for medical or other reports is required as part of the assistance.
Prior to the expansion of this service type, the inability to access disbursement costs such as psychological or other medical reports in complex parole matters was a barrier to the provision of services to some clients.
Expanding criminal law services in far-west NSW
This year, we based a Legal Aid NSW criminal lawyer in Broken Hill full-time. Previously, we provided a fly in, fly out service for committal and indictable proceedings in Broken Hill. By expanding our presence in Broken Hill we were able to improve continuity of service for clients, and complement other legal services in the region. We also significantly expanded our provision of in-house criminal law services in northwest NSW – see Expanding in-house services in remote NSW.
Developing a resource allocation model for criminal law
Senior criminal law staff worked closely with consultants to develop a resource allocation model and framework. This model will help us objectively assess current demand for criminal law services across the state and help us allocate our resources accordingly. We will pilot the new resource allocation model in select locations in 2019–20.
OBJECTIVE: Strong partnerships
Inter-agency partnership leads to greater protections for people with an intellectual disability
Legal Aid NSW collaborated with Diversity Services, at the NSW Department of Justice, and the Intellectual Disability Rights Service to develop policy and processes to support the new Justice Advocacy Service.
The Justice Advocacy Service is a support service that will help protect vulnerable people who are in contact with the NSW criminal justice system. It will provide support to victims, witnesses, suspects and defendants with cognitive impairment to exercise their rights and fully participate in the process. The service will be available to adults and young people.
OBJECTIVE: A fairer justice system
Additional staff to help ease District Court delays
We received additional funding as part of NSW Government measures to clear the NSW District Court backlog and address the anticipated increase in the number of court proceedings flowing from the Royal Commission into Institutional Responses to Child Sexual Abuse. These efforts included the appointment of additional District Court judges and extra sitting days.
We used this funding to increase the number of staff at locations where additional District Court sittings were expected to take place. We created 24 additional temporary roles, including a range of solicitor and administrative support roles. We will continue to roll out this funding in 2019–20.
Early appropriate guilty pleas reform: one year on
April 2019 marked 12 months since the introduction of the NSW early appropriate guilty pleas reform. The reforms included significant procedural changes for serious criminal cases in NSW aimed at enabling earlier decisions about the appropriate charges in a given case, and encouraging earlier negotiation between prosecutors and defence lawyers.
Before and since the introduction of the reform, we overhauled our own processes to provide better continuity of representation to clients charged with serious criminal offences. We received funding to employ additional staff and to brief counsel in a larger proportion of matters. Legal Aid NSW is represented on departmental committees that will play a role in monitoring and evaluating the implementation of the reform.
Relief for our client after a first overseas visit turns sour
Peter* is a Fijian national who travelled to Australia from Fiji for a two-month visit. It was the first time he had ever left Fiji. Some hours after Peter passed through Sydney International Airport, a suitcase weighing 30 kg and bearing his identification details was found abandoned in the baggage carousel area. Concealed in the suitcase was more than 15 kg of pure cocaine.
When Peter returned to the airport to fly home, he was arrested and charged with importing a commercial quantity of a border-controlled drug. This offence carries a maximum penalty of life imprisonment. Peter was refused bail and remanded into custody.
Peter had travelled to Australia with another man from his community. Peter had told this man he wanted to travel to Australia to see if it was somewhere he could one day live. The man made all Peter’s travel arrangements and obtained his visa for him, and they travelled to Australia on the same flight. Although Peter was questioned by immigration officials on his arrival in Sydney, he was allowed entry into Australia. The other man was refused entry and he was returned to Fiji.
During pre-trial disclosure, it was revealed that the man he had travelled to Australia with had made many trips to Sydney in the months prior to Peter’s arrest, all for short stays of only a few days. It was also revealed that this man had transferred large amounts of money within Australia and within Fiji, although he had told immigration officials that his salary was $3,000 a year.
During the trial the prosecution provided copies of screenshots from the man’s telephone which showed communications with others about the trip to Australia that culminated in Peter’s arrest, including one communication with a third man that included references to arrangements for “the excess baggage”. It was revealed that this third man was on the same flight as Peter and his travelling companion, and had previously been the subject of investigation by the Australian Federal Police.
Peter’s instructions were that he did not take the 30 kg suitcase through check-in and did not know how it came to have his details on it. His time in custody in a foreign country with no family support was difficult, and he also suffered from health problems during this time. He waited 16 months for his matter to get to trial. The defence case was that he was used as a pawn by a criminal syndicate seeking to import a large amount of cocaine into Australia. He gave evidence at his trial and was cross-examined. A jury found Peter not guilty and he was able to return home to Fiji.
* Not his real name
Our casework clarifies a changing area of law
R v Pullen [2018] NSWCCA 264
Our appeal work resulted in a judgment that clarifies the new regime of intensive correction orders, which were overhauled under major NSW sentencing reforms that commenced in September 2018.
Our client had been convicted of driving offences and sentenced prior to the introduction of the reforms. He was originally sentenced to an intensive correction order for an aggregate period of 15 months. An intensive correction order is a custodial sentence that the court decides can be served in the community. The Crown appealed this sentence.
On appeal, our client was resentenced to an aggregate term of imprisonment of three years. The court then considered whether, in light of the recent changes to sentencing laws, an intensive corrections order or a sentence of full-time imprisonment was appropriate.
In its judgment, the court clarified that the key principle of community safety should prevail. The court articulated that where an offender’s prospects of rehabilitation are high and where their risk of re-offending will be better managed in the community, an intensive correction order may be available, and that community protection may be best served by ensuring that the offender avoids jail.
The court considered our client’s risk of re-offending and the steps he had taken towards rehabilitation and imposed an intensive correction order, subject to conditions, rather than a sentence of full-time imprisonment.
Reviewing cases in light of changes to the law
We established a review of sentences for prisoners who are currently serving a term of imprisonment after pleading guilty to federal offences. This review is informed by the decision of the NSW Court of Criminal Appeal in the matter of Xiao v R [2018] NSWCCA 4. In that decision, the full court determined that the sentence discount available for the utilitarian benefit of a guilty plea should extend to Commonwealth matters.
In light of Xiao v R, some prisoners may be entitled to a sentence reduction on appeal. Our review will identify and assess cases in which an appeal may be appropriate, before seeking advice from counsel as to the merit of pursuing an appeal in identified cases.
Monitoring access to justice for bail applicants
A new NSW Supreme Court practice note commenced on 3 June 2019 that introduces new procedural requirements for bail applications in the Supreme Court.
Legal Aid NSW has concerns that some elements of this practice note may have an impact on the ability of vulnerable clients in custody to apply for Supreme Court bail. We will continue to monitor the effects of the practice note.
OBJECTIVE: A highly capable workforce
Research finds in-house criminal lawyers are more efficient
Research by the Bureau of Crime Statistics and Research this year found that Legal Aid NSW lawyers were more efficient than private lawyers funded to do the same work.
The research, which was the first of its kind undertaken in Australia, analysed 34,218 criminal law grants of legal aid from 2012 to the end of 2016. It revealed that the type of representation provided to a defendant in legally aided indictable matters – that is, whether representation was provided by an in-house lawyer or assigned to a private lawyer – substantially affects the way a matter proceeds through the criminal courts. The research showed that clients whose grants were assigned to private lawyers were less likely to plead guilty, and where they did plead guilty, were more likely to enter guilty pleas later in proceedings.
The findings are testament to the commitment of our criminal lawyers and the important role they play in making efficient and effective legal representation available to vulnerable clients.
Podcast proves a popular resource for lawyers
A podcast series first produced by Legal Aid NSW in 2017 with a focus on criminal law has now been listened to more than 13,000 times, and has proven to be a highly valued resource for criminal lawyers and non-lawyers alike.
This year, we collaborated with a range of experts to produce new podcast episodes on topics including foetal alcohol spectrum disorder, Section 32 applications, social media evidence and prosecution disclosure. The podcast continues to be a popular mode of delivering innovative professional development to our staff and private lawyers.
The year ahead
- We will pilot a resource allocation model for our criminal law matters to better support staff and target our resources.
- We will put more lawyers where they are needed to support additional sittings of the NSW District Court.
- We will monitor the impact of the new NSW Supreme Court bail practice note on vulnerable clients.
- We will monitor the implementation of the criminal justice reforms.
Family law
Ours is the largest family law practice in Australia. It provides legal information, advice and minor assistance, extended legal assistance, duty services, dispute resolution and case representation in family law matters. Its work includes child support, care and protection and domestic violence-related matters. These services are available at our offices and at 108 outreach locations.
| Fact file | |
|---|---|
| Total staff: | 304 |
| Total expenditure on family law services: | $83.2M |
| Proportion of overall expenditure on family law services: | 22.2% |
Family law client profile
Based on total casework, including extended legal advice services, and in-house duty services.
Family law services over five years
We provided 62,593 family law services to clients in 2018–19
Total legal representation: 11,772
Total duty services: 13,523
Total other services: 37,298
Information services are not included in service counts in this section. See How our key services tracked.
OBJECTIVE: Meeting clients' needs
Providing services to disadvantaged groups
We provided services for vulnerable people experiencing family breakdown:
- We increased the number of duty services we provided in family law and care and protection matters by 7.0% from 12,636 in 2017–18 to 13,515 in 2018–19 – our highest number of duty services ever in this area of law.
- We provided 5,118 duty services to victims of domestic and family violence through our specialist Domestic Violence Unit, a 13% increase on the previous year.
- Legal Aid NSW strengthened its presence in Griffith, partnering with private practitioners through the Regional Outreach Clinic Program to increase the frequency of family law advice clinics from fortnightly to weekly.
- Newcastle-based family and civil lawyers worked with the Public Interest Advocacy Centre’s Homeless Persons’ Legal Service to offer a new weekly advice clinic and community lunch in Raymond Terrace.
- Our Early Intervention Unit established a new outreach service at Berkeley, in the Illawarra region, to improve access to legal advice for people unable to travel to Wollongong.
- We established a new outreach service in Grafton, delivered by an Indigenous family lawyer, to provide legal support to Aboriginal clients in a more flexible and culturally appropriate way, and to ensure more Aboriginal children in out-of-home care remain on country.
- We expanded the family law services we provide in Moree in response to strong local demand.
Supporting our clients’ non-legal needs
Many of our family law clients have complex non-legal needs, and legal needs that span a range of areas of law, and we aim to reflect this in the services we provide. Our specialist Domestic Violence Unit lawyers work side by side with social workers. Our Domestic Violence Unit also works closely with other specialist services across Legal Aid NSW, including services that provide specialist immigration law and tenancy support. In 2019, the Australian Government allocated new funding to bring financial support workers into our Domestic Violence Unit. Financial stress can be a significant barrier for victims of family and domestic violence when they are attempting to leave a violent relationship. Addressing the immediate financial problems that may arise when relationships end supports victims to leave abusive partners, live independently, provide for their children and recover financially.
The most vulnerable clients targeted for in-house casework
We developed the Vulnerable Family Law Client Guidelines to allow us to consistently prioritise and target in-house services to our most vulnerable clients. During a seven-month pilot, there were 264 clients who were identified as vulnerable clients under the guidelines and received a grant of aid.
We learned that of our vulnerable clients:
- 24.6% had low literacy levels
- 85.9% were unable to identify and understand the details of the legal issues they faced, or were unable to navigate systems and processes to resolve the issues, and
- 20.1% had difficulty participating in systems and processes to resolve their legal issues because of where they lived.
Our vulnerable clients also had complex needs:
- 61.4% had matters involving a child at risk of harm or abuse.
- 65.5% had multiple legal issues.
- 26.5% had legal issues relating to the care and protection of children.
- Two clients had legal issues relating to forced marriage.
Of the 264 clients, 70.9% were assisted by in-house lawyers.
Following the pilot, an evaluation by the Legal Aid NSW Planning and Review Unit found that the Vulnerable Family Law Client Guidelines complemented existing matter allocation processes. The evaluation also confirmed the importance of meeting clients’ non-legal needs as well as their legal needs.
In 2019–20 we will clarify our definition of ‘vulnerable’ under the guidelines, and trial a new approach to workload, benchmarking and teamwork to keep more vulnerable family law client casework files in-house.
Settling family law matters outside court
Our family dispute resolution services help people to resolve their disputes earlier in proceedings, and without going to court. Where disputes relate to the care of children, mediations focus on the children’s best interests.
In 2018–19, we held 2,879 lawyer-assisted mediations, making Legal Aid NSW the largest provider of legally assisted dispute resolution mediations in Australia. This included 100 lawyer-assisted alternative dispute resolution conferences in child protection matters, a 34 percent increase compared with the previous year. Our mediations remained an effective means of resolving legal disputes, with a settlement rate of almost 80 percent.
This year, specialist Legal Aid NSW staff, family dispute resolution practitioners and child consultants developed a model aimed at supporting children to better participate in mediations. A pilot of the child-inclusive practice model has begun and will continue in 2019–20.
In September 2018, Mercer Australia reviewed and made recommendations about the future of family dispute resolution services at Legal Aid NSW. Following a period of consultation, we will make changes to the way we operate family dispute resolution services in 2019–20. Over the next five years, we will make changes in relation to technology and systems, and will consider new areas of alternative dispute resolution.
Protecting the rights of people affected by adoption
We began offering an Adoptions Duty Service at the NSW Supreme Court, and now represent an increasing number of birth parents and other relatives who wish to contest the making of an adoption order. We have also provided resources, training and support to lawyers in legally aided matters and are building competence among our own staff in this area of law. Cases in which we acted this year have contributed to the development of law in this area. Adoption law is an area of law we expect to continue to grow, and will be a focus for our family law practice in 2019–20.
Mediation gives a mother a voice and keeps children connected to culture
We held a mediation session for Caroline*, an Aboriginal woman from western NSW, under section 86 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). Her children had been removed from her almost a decade earlier. Representatives of the nongovernment organisation that managed the children’s out-of-home care attended the mediation.
In the years since her children were removed, Caroline had made significant changes in her life, but had not had recent contact with her children due to difficulties with the children’s carers.
At the time of mediation, her eldest child had returned to live with her and her younger children had been placed with alternative carers.
Caroline was concerned that her children’s connection with their Aboriginal culture and identity was at risk of being lost.
At the mediation, we supported her to speak about the importance of her children growing up knowing their family, opening a dialogue about cultural planning that had not previously been prioritised.
* Not her real name
High Court considers whether a sperm donor may be a legal parent
Masson v Parsons [2019] HCA 21
In a case that illustrates the complex nature of casework we undertake, Legal Aid NSW appeared as the independent children’s lawyer in an appeal to the High Court from a judgment of the full court of the Family Court of Australia concerning parenting orders under the Family Law Act 1975 (Cth).
In 2006, Robert Masson* provided his semen to a friend, Susan Parsons*, so that she could conceive a child through artificial insemination. At trial it was found that Mr Masson intended to father the child and provide her with ongoing care and support, and his name appeared on her birth certificate. Although the child had always lived with Ms Parsons and Ms Parsons’ partner, Mr Masson remained involved in the child’s support and upbringing and enjoyed a close relationship with her. The primary judge concluded that he was a parent of the child for the purposes of the Family Law Act.
Under the Status of Children Act 1996 (NSW) Mr Masson was presumed not to be the child’s parent because she was conceived through artificial insemination. According to that Act, this presumption could not be rebutted. Although there are specific provisions in the Family Law Act relating to who are the parents of children born through artificial insemination, the father did not fall within those provisions. The full court of the Family Court held that the NSW legislation was applicable in family law proceedings, and that for this reason, the father was not the legal parent of the child.
By grant of special leave the father appealed to the High Court. Legal Aid NSW represented the children in both the special leave application and the appeal. Our position was that the NSW legislation did not apply, and that unless expressly modified, “parent” has its ordinary meaning in the Family Law Act and that, in the circumstances of this case, the father was the child’s parent. The High Court agreed with this position.
This is a landmark decision that clarifies the meaning of “parent” under the Family Law Act in cases involving artificial conception. It highlights the changing nature of the modern family and the extent to which this is recognised and accommodated under legislation.
Since the judgment was delivered, our Child Support Service has adapted its practices to clarify policy about the application of child support legislation to children conceived as a result of an artificial conception procedure.
* Court-assigned pseudonyms
OBJECTIVE: Strong partnerships
Facilitating mediations between birth parents and adoptive parents
We worked with Family and Community Services NSW to develop a model for pre-adoption mediation, and have now facilitated six mediations for adoption matters before the courts. These are matters in which the relationship between birth parents and prospective adoptive parents is crucial. Mediation provides an avenue for facilitated resolution that protects and develops relationships.
OBJECTIVE: A fairer justice system
Protecting victims of family violence from direct cross-examination
This year we prepared to administer a scheme on behalf of the Australian Government to protect victims of family violence from being cross-examined directly by perpetrators, in light of amendments to the Family Law Act 1975 (Cth).
From September 2019, in certain family law proceedings in which allegations of family violence have been raised, a court may determine that personal cross-examination should be prohibited. Personal cross-examination refers to a party asking questions of another party or witness directly, rather than having a lawyer ask the questions.
Direct cross-examination by an alleged perpetrator can re-traumatise victims of domestic violence and affect their ability to give clear evidence. The fear of being directly cross-examined by a perpetrator may also influence victims’ willingness to pursue their legal entitlements.
Legal aid commissions have received specific funding to provide legal representation to parties in these matters through the Commonwealth Family Violence and Cross- Examination of Parties Scheme. Where a ban applies, Legal Aid NSW will arrange for funding to be provided to a lawyer from our panel of lawyers who have agreed to undertake this work. These lawyers have received specific training on domestic and family violence, trauma-informed practice, risk assessment and evidence gathering.
OBJECTIVE: A highly capable workforce
Setting the bar for independent children’s lawyers in family law courts
We designed and launched a national online training program for family lawyers across Australia seeking to work as independent children’s lawyers.
The first phase of the program is a package of online training modules, including lecture-style videos and papers delivered by leading subject matter experts on legal and social science topics relevant to the work of independent children’s lawyers. More than 120 lawyers had already completed the first phase of the program by 30 June 2019.
In phase two, trainees have the opportunity to participate in face-to-face workshops run by legal aid commissions across Australia. The first workshop under phase two took place in Canberra in March 2019.
Victim of domestic violence reunited with her baby
Mariana* attended a Legal Aid NSW advice clinic asking for help reuniting with her baby, who had been taken from her by a middle-aged Australian man to his home in regional NSW. The man had arranged for Mariana and her baby to travel to Australia on a tourist visa, before abandoning her at Sydney airport and taking the baby with him. The baby was still breastfeeding. Mariana was a victim of domestic violence and had no telephone, accommodation, money or means of support in Australia, and her visa was due to expire in a matter of days.
Within hours of her arrival at our advice clinic, our lawyer had secured temporary accommodation for Mariana and an order from a family law court for the return of her child. Legal Aid NSW staff offered practical and logistical support to ensure Mariana was reunited with her baby as soon as possible, before connecting her with a specialist lawyer from the Legal Aid NSW Domestic Violence Unit for further support.
* Not her real name
The year ahead
- We will contribute to the Legal Aid NSW priority client framework by co-designing a more multidisciplinary approach to working on complex family law files and caseload benchmarks.
- We will clarify our vulnerable client definition, and begin a two-year trial aimed at keeping more vulnerable client matters in-house.
- We will provide high-quality services to clients in adoption matters with a focus on ensuring appropriate arrangements and support for children post-adoption.
- We will collaborate with the Commonwealth Attorney- General’s Department to implement improvements to the family law system by responding to the report and recommendations of the Australian Law Reform Commission following its review of the family law system, and by trialling new approaches, such as a new mediation program for small asset property disputes.
- We will administer the Family Violence and Cross- Examination of Parties Scheme in NSW.
- We will expand the capacity of our dedicated Domestic Violence Unit to offer financial counselling, to better support victims of domestic violence and improve their financial security.
Civil law
Ours is the largest publicly funded civil law practice in Australia. The work of our lawyers is wide-ranging. We focus on civil legal problems that can trigger contact with the criminal justice system, homelessness, family breakdown or acute financial hardship. We practise in 12 areas of law including housing, fines, social security, consumer protection, mental health, employment and human rights.
We provide civil law advice in our offices and at 181 outreach locations. We also provide duty services at the Administrative Appeals Tribunal, the NSW Civil and Administrative Tribunal, the Mental Health Review Tribunal and the Youth Koori Court.
| Fact file | |
|---|---|
| Total staff: | 285 |
| Total expenditure on civil law services: | $49.0M |
| Proportion of overall expenditure on civil law services: | 13.1% |
Civil law client profile
Based on total casework, including extended legal advice services, and in-house duty services.
Civil law services over five years
We provided 79,629 civil law services to clients in 2018–19
Total legal representation: 1,287
Total duty services: 15,806
Total other services: 62,536
Information services are not included in service counts in this section. See How our key services tracked.
OBJECTIVE: Meeting clients' needs
Protecting our clients’ rights at work
Lawyers specialising in employment law were able to help almost 60 clients recover more than $650,000 in lost wages and compensation during 2018–19. We assisted clients with claims relating to unfair dismissal, underpayment of wages and entitlements, and workplace discrimination.
Helping more people with disability access the National Disability Insurance Scheme
We receive funding from the Department of Human Services to provide legal representation to clients with National Disability Insurance Scheme (NDIS) cases before the Administrative Appeals Tribunal in some circumstances. This year, we granted aid in 88 of these cases. Our advocacy resulted in decisions that clarify the responsibility of the National Disability Insurance Agency to fund a person’s health support where the need for that support is directly linked to the person’s disability.
We amended our policies to allow legal aid to be granted where a client is experiencing disadvantage and would likely realise a substantial benefit from legal representation, even if the case does not raise a complex or novel legal issue. This change ensures that Legal Aid NSW can continue to target services to priority clients and is expected to lead to an increase in demand for representation services in 2019–20.
We established a specialist National Disability Insurance Scheme Service to support people with disability whose cases fall outside our guidelines for representation. We will expand this service in 2019–20 with additional staff in Penrith and Coffs Harbour.
Life-changing intervention for client on brink of homelessness
Susan* had been diagnosed with post-traumatic stress disorder. She successfully applied for a credit card with a $5,000 limit, even though at the time of her application, she was unable to work and was reliant on the Disability Support Pension. Over the next three years, Susan’s bank sent her successive invitations to increase her credit to $16,500. When Susan approached us for help, she was facing severe financial hardship as a result of a large credit card debt, and was at risk of becoming homeless. Our advocacy led Susan’s bank to waive the credit card debt. Our civil lawyer also identified that Susan could claim a total and permanent disability benefit through her superannuation fund, and assisted her in making an application. The fund agreed to pay the client $121,000 – a life-changing result for our client.
* Not her real name
Serving those who have served our country
The Veterans’ Advocacy Service is a statewide specialist service providing targeted legal advice, assistance and representation to current and former members of the Australian Defence Force and their dependants, about their entitlements. The service has the largest practice in veterans’ entitlements claims in Australia. In 2018–19 the service helped clients access a combined $1.4 million in compensation for diseases or injuries suffered in connection with their service.
In December 2018, Robert Cornall AO provided his Veterans’ Advocacy and Support Services Scoping Study Report to the Australian Government. It recommended that legal aid commissions provide free legal advice and assistance through a Veterans’ National Legal Service and a Veterans’ National Legal Helpline, with Legal Aid NSW as the lead agency with responsibility for the overall development and management of the national service. This would mean all veterans in Australia, regardless of means, would be eligible for free legal assistance and representation at the Administrative Appeals Tribunal and Federal Court in matters under the Veterans’ Entitlements Act 1986 (Cth) and the Military Rehabilitation and Compensation Act 2004 (Cth). At the time of writing, the Australian Government had not yet released its response to the Cornall report.
Preventing vulnerable tenants from becoming homeless
The Legal Aid NSW Housing Appeals Service gives legal help to clients who have received final orders from the NSW Civil and Administrative Tribunal. Between 2017–18 and 2018–19, the level of legal advice delivered by the service increased by 25 percent.
We represented social housing tenants in four out of every five appeals we lodged this year. Most appeals involved eviction orders. Legal Aid NSW was successful in, or settled, all 20 appeals in which we represented the appellant at hearing.
OBJECTIVE: Strong partnerships
Vulnerable clients cleared $43 million in fines
Our Work and Development Order Service grew in 2018–19. Work and development orders are made by Revenue NSW to allow vulnerable people who cannot pay their fines to clear their debts by participating in approved activities, including drug and alcohol or mental health treatment, vocational courses, counselling, mentoring programs or volunteering. Legal Aid NSW has helped pioneer the Work and Development Order Scheme, which was first piloted in 2011. One in five participants in the program is Aboriginal, and it is of particular value to people in regional NSW, who are disproportionately affected by driver licence suspension due to unpaid fines.
In 2018–19, clients cleared more than $43 million in debt through the Work and Development Order Scheme. Our Work and Development Order Service continued to support sponsors to participate in the program. The service delivered 288 community legal education events and 10 sponsor forums across NSW, reaching more than 2,000 people. In 2019, Family and Community Services NSW became a work and development order sponsor in seven districts across NSW. This will allow all young people and vulnerable families who are engaged with Family and Community Services caseworkers to have access to the Work and Development Order Scheme.
We also established a dedicated referral pathway between the Work and Development Order Service and Revenue NSW.
Reaching vulnerable older people living in social housing
We partnered with health, legal and community services including the Seniors Rights Service and the Australian Centre for Disability Law to launch a civil law outreach service at Surry Hills Community Connect, a multidisciplinary service hub at the Northcott housing estate in Surry Hills, in inner Sydney. More than 60 percent of the legal advice services we provided through this outreach were delivered to vulnerable older residents.
Delivering civil law training to partners around NSW
Civil lawyers specialising in human rights delivered workshops around regional NSW to in-house civil lawyers as well as staff from community legal centres and the Aboriginal Legal Service (NSW/ACT). This training focused on police torts. The training was very well received as regional staff are often unable to access training in Sydney. Regional training across other civil practices areas will be expanded in 2019–20.
OBJECTIVE: A fairer justice system
Evaluating specialist civil law services
Legal Aid NSW is the largest provider of mental health legal advocacy services in Australia for involuntary mental health patients, their family members and advocates, and people detained in the civil and forensic jurisdictions. This year we began a review of our specialist Mental Health Advocacy Service, led by former mental health commissioner John Feneley, to ensure we have a robust, relevant and sustainable model for providing mental health legal services that meet client needs. The final report of the review will be delivered in 2019–20.
We evaluated our Children’s Civil Law Service (CCLS) and Civil Law Service for Aboriginal Communities (CLSAC). The CCLS works to address the civil law needs of young people aged 10 to 18 who have complex needs and contact with the criminal justice system. CLSAC is dedicated to the legal needs of Aboriginal clients, particularly those living in regional and remote NSW and Aboriginal women in custody.
The evaluations found that these services were extremely effective in delivering legal and social outcomes for clients with complex needs. The recommendations will inform service delivery to vulnerable groups across Legal Aid NSW, and forms part of our commitment to a model of continuous service improvement.
The CCLS evaluation identified five protective factors that “appear to be enhanced by the support young people receive from the CCLS, contributing to their wellbeing and positive long-term outcomes”. The CLSAC evaluation resulted in 27 recommendations relating to areas including service growth, community engagement and leadership.
Trauma-informed help for Stolen Generations survivors
Our specialist Civil Law Service for Aboriginal Communities continued to lead service delivery to Stolen Generations survivors with applications to the NSW Stolen Generations Reparations Scheme. Their advocacy has resulted in a new approach to assessing applications, which has allowed more Stolen Generations survivors to access reparations, with many more awaiting review of initial refusals. As at 30 June 2019, our civil lawyers had assisted 186 clients with their claims under the scheme.
A call to action on unfair insurance hurdles
We produced a report in collaboration with Cancer Council NSW and Cancer Voices NSW capturing the experiences of Australian cancer survivors and other people living with health conditions who had struggled to access insurance products.
The Health Conditions and Insurance Project was funded by Legal Aid NSW to better understand the experience of people living with health conditions when accessing general and life insurance products. It included a survey of people with health conditions, including cancer, multiple sclerosis, cardiovascular disease and lung disease, who had experience with insurance. It also included a literature review, consultation with consumer and industry representatives, and analysis of case law, legislation and codes of practice.
The resulting report, entitled What’s the risk? Access to insurance for people living with health conditions, found that two thirds of those surveyed reported difficulties obtaining insurance. It also found that people with health conditions were frequently unaware of their legal rights in relation to insurance claims.
Landmark decision in favour of client with disability
Burchell and National Disability Insurance Agency [2019] AATA 1256
Civil lawyers specialising in National Disability Insurance Scheme matters acted in an important case that could affect the lives of thousands of Australians living with dysphagia, a life-threatening swallowing condition.
In June 2019, the Administrative Appeals Tribunal ruled that the National Disability Insurance Agency (NDIA) was wrong to deny our client – a 34-year-old man who had cerebral palsy resulting in dysphagia – funding for thickening fluids requested by his speech pathologist which helped him swallow safely.
The decision means the NDIA must fund vital swallowing supports for people living with dysphagia, which had argued these supports should be provided by the states. The ruling has the potential to impact on people with disabilities more broadly by overturning the tribunal’s previous interpretation of the law regarding which responsibilities belong to the NDIS and which to the states.
Although the exact number of people who may be affected by the decision is unknown, there are approximately 100,000 people living with dysphagia in Australia.
Keeping vulnerable ratepayers out of court
Our strategic advocacy helped create statewide reform, with the introduction of new hardship guidelines for local councils. Research by the Law and Justice Foundation of NSW found that local councils suing for unpaid rates is one of the highest volume matters in the NSW Local Court. Many councils have no hardship policies, while others have hardship policies but do not apply them.
Legal Aid NSW lawyers worked with the NSW Department of Justice and the Office of Local Government to develop a consistent, best-practice approach to council rates collection that would encourage early referral of vulnerable clients with rates debts to appropriate support services. The project resulted in the publication of new Debt Management and Hardship Guidelines by the Office of Local Government. Councils are now formally required to work with people experiencing financial hardship who have unpaid rates to get on payment plans or access other hardship support, instead of taking vulnerable ratepayers to court.
Help for vulnerable family at risk of homelessness
Roseanne*, an Aboriginal woman with a learning disability, was living in social housing with her elderly mother and six of her children, two of whom have special needs. Roseanne is a single mother who has experienced family violence. When her landlord sought to terminate her lease because of damage her children had caused at the property, this vulnerable family faced homelessness.
The NSW Civil and Administrative Tribunal agreed to terminate Roseanne’s tenancy pursuant to the Residential Tenancies Act 2010 (NSW). Under this law, where a social housing tenant is found to have seriously breached a tenancy agreement by causing property damage, the tribunal has no discretion not to terminate the tenancy unless an exception applies.
We helped Roseanne appeal the termination decision, arguing that the tribunal had failed to properly consider the undue hardship that would be suffered by the children in the household if the tenancy were terminated.
We were able to provide evidence that Roseanne was working with support services to help her care for her children and to keep her home safe, clean and free from further damage. These services were committed to providing ongoing support to the family and had helped to repair the damage to the property.
The appeal panel found that the tribunal had made an error of law, in that it had not provided adequate reasons for a finding that the children would not suffer undue hardship. The termination order was set aside and when the matter was remitted, the tribunal found an exception did apply, and it did have discretion to refuse to terminate the tenancy. Roseanne and her family have remained in their home and are receiving ongoing social support.
* Not her real name
OBJECTIVE: A highly capable workforce
Creating a western Sydney hub for civil law
Civil lawyers based in Penrith, Blacktown and Parramatta combined to operate as a single western Sydney civil unit. This allowed for more effective service-planning across western Sydney and resource-sharing to support the high demand for services in this region.
Among the key achievements of this newly formed unit were:
- an increase in the proportion of Aboriginal civil law clients in the region from 4.9 percent in 2017–18 to 7.5 percent in 2018–19
- the expansion of an existing health justice partnership at Blacktown Hospital, which previously provided family law advice only
- the establishment of an advice clinic at the Dillwynia Correctional Centre High Intensity Program Unit (see Partnership helps prepare prisoners for more information about our work in High Intensity Program Units)
- the creation of two places for two students undergoing professional legal training, and
- the establishment of a direct referral pathway for community workers who work with priority client groups.
Vulnerable domestic worker compensated after “morally repugnant” dismissal
Buenaobra v Anwar Alesi [2018] FWC 4311
Our employment law specialists acted for a domestic worker employed in the private Sydney home of a consul of the Republic of Iraq. The worker had been recruited on a temporary work visa and was sending money to the Philippines to support her family. She was summarily dismissed after she asked for payslips and for her pay to be deposited into her bank account, and her employer withdrew sponsorship of her visa. We filed an application for unfair dismissal at the Fair Work Commission on her behalf. The employer defended the application and raised a jurisdictional objection on the basis that they had consular immunity. The Fair Work Commission found that our client was unfairly dismissed in “morally repugnant” circumstances, and awarded the maximum compensation remedy of 26 weeks of pay under the Fair Work Act 2009 (Cth).
In its decision, the Fair Work Commission commented that domestic workers brought into Australia from countries like the Philippines were “peculiarly unempowered, marginalised and potentially ripe for exploitative employment practices if employed by diplomatic personnel who do not have a proper appreciation of the application of Australian employment laws or who flout Australian employment laws”.
The year ahead
- We will establish the Elder Abuse Service and trial a generalist lawyer model.
- We will respond to the evaluations and reviews of specialist services.
- We will launch a major consumer law initiative involving superannuation insurance.
- We will expand our National Disability Insurance Scheme Service to regional NSW.