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Annual Report 2018 - 2019

Our policies help narrow the justice gap

To ensure access to justice for those most in need, we reviewed and amended our policies.

Our eligibility policies help us ensure that our limited resources are directed to areas of most legal need. We make changes to our policies in response to emerging demand in certain areas of law, and to ensure high-quality legal assistance remains available to disadvantaged and vulnerable people in NSW. In particular, this year, we made changes to ensure that people experiencing or at risk of domestic and family violence are able to access our services.

OBJECTIVE: Meeting clients' needs

Improving access to legal aid for victims of violence

In September 2018 we introduced a range of changes to ensure that people who are experiencing, or at risk of, domestic and family violence have access to legal services in line with the Legal Aid NSW Domestic and Family Violence Strategy 2016–2018.

The changes apply to most family law matters, including parenting, divorce, child support and property settlement matters. Importantly, we made changes so that people who are experiencing domestic and family violence will not be ineligible for legal aid for parenting and property matters on the basis that they are likely to receive a cash settlement. Where these clients do receive a cash settlement, they will not be required to pay any contribution on a specified protected amount. This protected amount recognises the difficulty people who have experienced domestic and family violence will often face in re-establishing a home following separation.

In criminal law matters, we introduced policy changes so that victims of domestic violence who have themselves been charged with domestic violence-related offences can be represented in defended hearings, even if there is no real possibility that they will be sentenced to a term of imprisonment. This change ensures these vulnerable clients can have access to a lawyer.

We undertook a comprehensive review of all Legal Aid NSW eligibility policies, drawing on evidence-based research to ensure our policies reflect the objectives of the Legal Aid NSW Elder Abuse Strategy 2018–2019. The review identified areas where we need to ensure our policies meet and clearly articulate the availability of legal aid to applicants who are experiencing, or at risk of, elder abuse, ensuring those who are most vulnerable can access legal assistance in family, civil and criminal law matters.

We also developed a new Domestic and Family Violence Strategy 2019–2020, which was approved by the Board in February 2019.

More flexibility for clients living on the NSW-Victorian border

We worked with Victoria Legal Aid to identify the legal issues faced by clients in cross-border communities and the barriers they experience when seeking timely legal assistance. The result was the Cross-Border Justice Report, which outlined how our two commissions would improve access to legal assistance along the NSW–Victorian border.

One of the recommendations made in the report was the development of a clear procedure for referring cross-border clients between the two legal aid commissions. Victoria Legal Aid and Legal Aid NSW have expanded our forum test guidelines so that applicants for a grant of legal aid who live within a defined cross-border “buffer zone” will be:

  • assessed under the broader nationwide forum test to determine which legal aid commission is responsible for their grant of legal assistance, and therefore, which lawyers would be able to assist them, or
  • able to instruct a lawyer to assist them, provided the lawyer’s principal place of practice is also within the buffer zone and the lawyer is appointed to the Victoria Legal Aid Family Law Panel if the application is made to Victoria Legal Aid or the Legal Aid NSW Family Law Panel if the application is made to Legal Aid NSW.

Removing the means test for children in all criminal law proceedings

Under changes commencing in July 2018, we removed the means test for children’s criminal law matters. This means all children charged with serious indictable offences can be represented in court under a grant of legal aid.

Legal aid where prisoners face detention beyond their sentence

In response to the introduction of the Terrorism (High Risk Offenders) Act 2017 (NSW), the Board approved making grants of legal aid available in relation to applications under that Act. The new laws mean an offender can be detained beyond the term of their original sentence, or subject to ongoing strict supervision and monitoring in the community. These are complex matters determined in the Supreme Court that can have significant ongoing consequences for people who have already served their sentence. Importantly, the legislation can apply to offenders who have never been convicted of a terrorism offence. Legal Aid NSW records indicate that so far, these applications have had a disproportionate impact on Aboriginal offenders, and offenders with mental health issues or cognitive impairment.

Helping protect the privacy of sexual assault survivors

Our specialist Sexual Assault Communications Privilege Service is a legal service that helps protect the confidential counselling notes and other confidential records of people who are victims of sexual assault. We expanded the range of circumstances in which legal aid is available for sexual assault communications privilege matters to include all criminal trials and apprehended violence order hearings, as well as civil proceedings. The changes mean that victims of sexual assault can be represented in these matters in a wider range of proceedings.

A clearer financially associated person test

This year we amended our financially associated person test. When we assess the assets and income of a person applying for legal aid as part of our means test, we also take into account the means of any financially associated person. A financially associated person is someone who could reasonably be expected to contribute to the applicant’s legal fees. Under the changes, we assess whether an applicant is financially associated with another person based on household type. The new definition is clear and removes any ambiguity as to who will be considered financially associated with an applicant. For example, an adult child who may have had to return to live with a parent because of domestic violence, will not be considered to be financially associated with their parent when applying for legal aid.

A new service type: extended legal assistance

Following a successful trial in civil law matters in 2017–18, we expanded our use of a new service type, known as extended legal assistance. The new service is provided by in-house lawyers and allows us to better assist clients to resolve their legal disputes early on, reducing the need for court or tribunal proceedings. It also ensures that we can assist clients with complex needs and multiple legal issues that substantially affect their ability to meet basic needs, such as housing and income support.

Forensic patients at the NSW Supreme Court

Where a person has been charged with an indictable offence but is deemed unfit to be tried by reason of a disability, such as an intellectual disability or mental illness, they will face a special hearing. Where the person is found, on the limited evidence available, to have committed the offence or an alternative offence, and where the court would have imposed a sentence of imprisonment if that matter had gone to trial, the court will nominate a “limiting term”. A limiting term is equivalent to a sentence. Under an amendment to the Mental Health (Forensic Provisions) Act 1990 (NSW), either the Minister for Mental Health or the Attorney General, or both, can apply to the NSW Supreme Court prior to the end of a forensic patient’s limiting term to extend the term for a period of up to five years. These applications are complex matters that have the potential to significantly impinge on the right to personal liberty of a particularly vulnerable group of people. In April 2019, the Board approved making legal aid available to ensure these clients are represented in these proceedings.

Changes in Commonwealth parole matters

Recent changes to the Commonwealth parole scheme mean that all parole decisions for federal offenders are discretionary. Previously, most federal offenders were sentenced to terms of imprisonment of less than 10 years and were eligible for automatic release under a recognisance release order, or on parole.

The Commonwealth Attorney-General, or their departmental delegate, is required to either make or refuse to make a parole order before the end of a federal offender’s nonparole period.

Since the changes, a number of prisoners have remained in custody at the end of their non-parole period. The Board has approved policy changes so we can assist our clients through extended legal assistance services to make submissions in relation to parole. The Board also approved the provision of grants of legal aid for representation in the NSW Local Court for parole order breach matters.

Year ahead iconThe year ahead

  • We will consider any necessary changes to our eligibility policies to ensure older people experiencing or at risk of elder abuse can access legal services.
  • We will implement changes to our contributions policy, and undertake a review of how those changes are working in practice to ensure they align with our Client Service Strategy and Grants Efficiency Review.