Annual Report 2020 - 2021
Highlights from our practice areas
We have three areas of legal practice: criminal law, family law and civil law. Each practice includes specialist services. 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, Drug Court Service, High Risk Offender Unit, Indictable Appeals Unit and Commonwealth Crime Unit provide specialist services. The practice offers community legal education throughout NSW and contributes to law reform initiatives.
| Fact file | |
|---|---|
| Total staff: | 296 |
| Total expenditure on criminal law services: | $193.8M |
| Proportion of overall expenditure on criminal law services: | 47.9% |
Criminal law client profile
Based on total casework, including extended legal assistance services.
| Female | 18.8% |
| Born in non-English speaking countries | 9.7% |
| Interpreter required | 3.5% |
| With dependants | 5.0% |
| On Commonwealth benefits | 47.8% |
| Torres Strait Islander Aboriginal and Torres Strait Islander | 18.7% |
| Aged under 18 | 8.1% |
| Aged 18 to 60 | 88.7% |
| Aged over 60 | 3.2% |
| Rural and regional* | 54.3% |
*Includes Newcastle and Wollongong
Criminal law services over five years
| 2016–2017 | 229,871 |
| 2017–2018 | 237,826 |
| 2018–2019 | 247,471 |
| 2019–2020 | 238,195 |
| 2020–2021 | 239,585 |
We provided 239,585 criminal law services to clients in 2020–2021.*
*Information services are not included in service counts in this section
Total legal representation: 28,953
Total duty services: 172,011
Total other services: 38,621
Successful deployment of the Back Up Duty Scheme Allocation System (BUDSAS)
In August 2020, we implemented a new work offer system for allocating criminal law duty work and urgent casework to private lawyers. The Back Up Duty Scheme Allocation System (BUDSAS) automates the process for offering Back Up Duty Scheme work to private lawyers, replacing manual processes. Private lawyers can now accept or reject offers of work via text message and all data is collected in one place.
For our in-house staff, this new system has reduced the time it takes to engage a back up lawyer by approximately 72 percent and creates a more efficient and transparent system for all stakeholders. This project was delivered under budget, as a collaboration between criminal law staff and the Information and Communications Technology (ICT) Division.
Decarceration measures during COVID-19
Criminal lawyers were instrumental in the sharp decline of the prison population. We lodged release and review applications for our clients in record numbers and were instrumental in facilitating changes in bail decisions and the review of previous remand decisions.
According to BOCSAR NSW Custody Statistics: Quarterly Update December 2020, the NSW prison population in December 2020 had declined by 6 percent, or 869 fewer adults, compared to December 2019. The prison population was equivalent to that of December 2016.
In making these applications and submissions on sentencing, we cited the risk of transmission of COVID-19 within the prison system and at court. To support such submissions, we commissioned expert reports from the Kirby Institute regarding the impact of COVID-19 on prisoners’ physical and mental health.
Our advocacy facilitated the making of useful case law which supported our decarceration efforts. Notably, the increasing number of people released to bail during COVID-19 did not see an increase in the crime rate.
Broken Hill office expansion
For many years there has been a diminishing number of private law firms based in Broken Hill available to do legal aid work. Vulnerable defendants facing serious criminal charges, including children and young people, were often poorly represented in court or were not represented at all.
In Far West NSW generally, an area of particularly high social disadvantage and legal need, defendants were often not referred to drug and alcohol rehabilitation and mental health supports, there were no criminal law advice services, and there was limited civil law outreach.
In November 2020, Legal Aid NSW opened a permanent office in Broken Hill. Two criminal lawyers undertake most duty services and represent clients on grants of legal aid at Broken Hill, Wilcannia and Wentworth courts.
Drug Court expands to Dubbo
Legal Aid NSW welcomed the announcement of state funding to expand the specialist Drug Court to Dubbo. Western NSW has been significantly impacted by the scourge of drug use, particularly ice. The announcement is an acknowledgment that drug use needs to be addressed as a major health issue, not just a criminal justice issue.
Expanding the Drug Court to Dubbo will ensure that a greater number of drug-dependent offenders in the region have access to appropriate treatment and rehabilitation. The expansion builds on the work of our Drug Court Unit who appear in the Drug Courts in Sydney, Parramatta and Toronto. Their work contributed greatly to the evidence base that justified this expansion.
Important decision on the admissibility of juvenile
criminal histories
Dungay v R [2020] NSWCCA 209
Our client pleaded guilty to a number of offences. On sentence, the Crown tendered our client’s criminal history, which disclosed offences he had committed as a child. The sentencing judge took these matters into account on sentence. Our client was sentenced to 12 years with a non-parole period of eight years.
On appeal to the NSW Court of Criminal Appeal, we argued that some of our client’s offences committed as a juvenile should not have been taken into account because of restrictions on admissibility of a juvenile’s criminal history under the Children (Criminal Proceedings) Act 1987 (NSW). Section 14 of that Act prohibits the recording of a conviction against a child under the age of 16 years. The recording of a conviction against a child over 16 is discretionary. In our client’s case, the criminal history tendered on sentence had included convictions before he turned 16.
The Crown conceded this point. Our client was re-sentenced to an aggregate term of 10 years with a non-parole period of six years and six months.
This case provides an important reminder to sentencing courts that criminal histories of adult offenders should be carefully scrutinised to identify whether there are matters in the juvenile history which are not admissible on sentence.
Prisoners Legal Service successfully opposes attempt to quash decision
Attorney-General of NSW v George [2020] NSWSC 1621
The Prisoners Legal Service (PLS) regularly represents inmates seeking parole at hearings before the State Parole Authority (SPA). This includes applications for parole on the ground of “manifest injustice”, where refusal of parole can be reconsidered if the original decision was made on the basis of false, misleading or irrelevant information, or where a matter that was relevant to the original decision is no longer relevant.
Our PLS client was initially refused parole in 2019 because he needed to participate in an external leave program in preparation for his return to the community. However, in March 2020, all external leave programs were suspended because of COVID-19. PLS applied on their client’s behalf to the SPA under the manifest injustice provision, arguing that participation in external leave was no longer a relevant consideration for the SPA. The SPA agreed and granted our client parole.
The NSW Attorney General challenged the SPA’s decision in the Supreme Court of NSW. In upholding the SPA decision, the court rejected the Attorney General’s narrow characterisation of the manifest injustice provision. The court found that the suspension of external leave programs enlivened the manifest injustice provision and that the SPA was not required to make an explicit finding to that effect. The court emphasised that it should not adopt a “fine-tooth comb” approach when considering the reasons of a body such as the SPA.
Memorandum of Understanding (MOU) for providing papers in Children’s Court matters
A new MOU was negotiated with NSW Police to improve how police provide court papers to our Children’s Legal Service.
When a young person indicates they want help from Legal Aid NSW, their court papers will be transferred automatically from the Police Charge Management System and Court Matter File Management System to Legal Aid NSW via email. This will allow our Children’s Legal Service to engage with young people before court and divert them from the court system where appropriate. It will also mean our lawyers can engage with the young person without the need for them to physically attend court.
This MOU builds on the collaboration we had with NSW Police when COVID-19 restrictions necessitated better digital access to first appearance bail court papers. It is an important step toward improved digital coordination and systems integration between our organisations.
The MOU will be piloted at Parramatta Children’s Court from the first quarter of 2021–2022.
A simplified Crime Resource Allocation Model
The last decade has seen an unprecedented increase in workloads as prosecutions increase and criminal matters have become more complex. To accurately measure workloads across the criminal law practice, and to make sure that we have the right staff in the right locations, we worked with the Business Reporting Unit on a simplified Crime Resource Allocation Model. The model relies on service, expenditure and staffing level data, and will initially be tested in regional offices.
Improving efficiencies in high risk offender litigation
We worked with colleagues in the Crown Solicitor’s Office on measures to streamline applications to the Supreme Court of NSW under the Crimes (High Risk Offenders) Act 2006 (NSW) and the Terrorism (High Risk Offenders) Act 2017 (NSW). These matters are complex, involve large volumes of evidence and often come before the court within very short timeframes. The efficient conduct of these matters requires considerable cooperation between legal representatives. Standardised processes and practical steps taken by the Crown Solicitor’s Office and Legal Aid NSW have led to greater efficiencies in high risk offender litigation, including a significant reduction in material filed.
Review of solicitor advocate guidelines
In-house solicitor advocates perform the most senior litigation roles of all Legal Aid NSW lawyers. Solicitor advocates also provide ongoing professional leadership and mentoring to other lawyers and staff. The role of solicitor advocate provides a career and development opportunity to staff who wish to pursue a career as an advocate and is also an invaluable service to clients.
In consultation with solicitor advocates and their managers, the Advocates Guidelines were reviewed and updated to provide greater clarity about reporting lines, obligations, and matter allocation, including priority matters for a solicitor advocate’s practice.
Criminal Law Regional Program Coordinator Stephen Lasker, Criminal Law Deputy Director Rob Hoyles, criminal lawyer Helen Shaw, Criminal Law Director Annmarie Lumsden, and Senior Legal Project Officer Harriet Ketley at the Legal Aid NSW Criminal Law Conference 2021.
Legal Aid NSW High Risk Offender Unit successfully opposes application
State of New South Wales v GB by his Tutor [2020] NSWSC 913
Our High Risk Offender Unit appeared in a last-minute application brought by the State of NSW for an extended supervision order in relation to GB, an 18-year-old Aboriginal man from the Yuin nation.
GB had a mild intellectual disability and a lengthy history of severe abuse and neglect. He spent most of his adolescence in custody. He suffers from post-traumatic stress disorder and had been diagnosed with a myriad of other mental health conditions including schizophrenia, substance use disorder, and conduct disorder. He had self-harmed on a number of occasions.
The State alleged that GB was a terrorism activity offender, because of his historical association with certain youths in custody and an adult who had espoused violent extremist ideas in the past. GB had never committed a terrorist offence. The “index offences” for the purpose of the State’s application were personal violence and property damage offences committed as a juvenile, for which he had been sentenced to a control order by the Children’s Court.
The State’s application was dismissed at the preliminary hearing on the basis that there was insufficient evidence to establish that GB posed an unacceptable risk of committing a serious terrorism offence. The court expressed concern that orders were being sought to criminalise and curtail the movements and rights of an 18-year-old man, in custody for offending as a minor, who had significant mental illness and cognitive impairments.
The year ahead
- We will pilot new contractual arrangements with private lawyers to ensure we are delivering quality criminal law services in the most cost-effective and efficient manner.
- We will review and update the Back Up Duty Scheme (BUDS) guidelines to provide private lawyers with clear and transparent service guidelines.
- We will advocate for ways to reduce unnecessary incarceration of Aboriginal and Torres Strait Islander people.
- We will identify ways to improve consistency and accuracy of the data we collect about criminal law services.
- We will advocate for greater safeguards in high risk offender laws to reduce the harsh and disproportionate impact of such regimes on Aboriginal and Torres Strait Islander people and people with disability.
Family law
Legal Aid NSW is home to the largest family law practice in Australia. It provides legal information, advice and minor assistance, extended legal assistance, early resolution assistance, duty services, dispute resolution and case representation in family law matters. The practice also provides community legal education throughout NSW and contributes to law reform initiatives.
The Early Intervention Unit, Domestic Violence Unit, Child Support Service, Appeals and Complex Litigation Unit, and Family Dispute Resolution Unit provide specialist services. These services are available at our offices and outreach locations.
| Fact file | |
|---|---|
| Total staff: | 243 |
| Total expenditure on family law services: | $93.8M |
| Proportion of overall expenditure on family law services: | 23.2% |
Family law client profile
Based on total casework, including extended legal assistance and early resolution assistance services.
| Female | 60.3% |
| Born in non-English speaking countries | 8.2% |
| Interpreter required | 3.6% |
| With dependants | 33.6% |
| On Commonwealth benefits | 58.1% |
| Torres Strait Islander Aboriginal and Torres Strait Islander | 19.1% |
| Aged under 18 | 34% |
| Aged 18 to 60 | 63.9% |
| Aged over 60 | 2.2% |
| Rural and regional* | 66.1% |
*Includes Newcastle and Wollongong
Family law services over five years
| 2016–2017 | 63,627 |
| 2017–2018 | 64,492 |
| 2018–2019 | 62,593 |
| 2019–2020 | 61,202 |
| 2020–2021 | 65,016 |
We provided 65,016 family law services to clients in 2020–2021.*
*Information services are not included in service counts in this section
Total legal representation: 12,160
Total duty services: 11,233
Total other services: 41,623
Guardians ad Litem in care and protection matters
This year has been especially challenging for lawyers working within the care and protection jurisdiction. The case of GR v The Department of Communities & Justice and Ors [2020] NSWSC 1622 concluded that children who were parties to proceedings and lacked the capacity to instruct a legal representative were required to have a Guardian ad Litem appointed to instruct the independent legal representative. The decision of Re Oliver [2021] NSWChC 1 further compounded the issue and led to a determination that all children were parties to proceedings.
The Guardian ad Litem panel was unable to meet the demand and hundreds of matters were unable to proceed due to the lack of guardians available for appointment. We engaged in advocacy with all relevant stakeholders for urgent law reform and solutions to assist with resolving this issue.
We needed to rapidly consider the effect of these decisions and conduct complex litigation in the Children’s, District and Supreme Courts (including in the parens patriae jurisdiction and Court of Appeal).
A significant amount of time was devoted to supporting and training in-house and private lawyers to understand the impacts of the decision.
We worked with the Guardian ad Litem panel to assist more than 15 in-house allied professionals and a further 20 family dispute resolution practitioners to be appointed to the panel. This required cross-divisional cooperation and intensive training to prepare allied professionals and lawyers.
In late June 2021, amendments were made to the Children and Young Persons (Care and Protection) Act 1998 (NSW) to rectify the problem identified in the case of GR, although it is expected that the flow-on effects of this case will continue to be felt in 2021–2022.
Increase in services to victims of domestic and family violence
The Domestic Violence Unit (DVU) pivoted to provide flexible and innovative service delivery to assist families impacted by domestic and family violence. In response to the shift to remote service delivery, we introduced video advice appointments for clients.
This year saw continued high demand for services, with the DVU receiving over 7,470 telephone calls and 4,520 email referrals, a significant increase from the pre-COVID annual average of 1,000 telephone calls.
We saw an increase in technology-facilitated abuse, particularly during the lockdown periods when victims of violence were often forced to remain under the same roof as perpetrators. To ensure client safety, we introduced comprehensive, up-front technology abuse screening that diverted clients at high risk for urgent assistance to the DVU social workers.
We continued our partnership with WESNET to provide safe phones to women, with 29 safe phones being provided to clients in 2020–2021.
The DVU worked in partnership with courts and key external stakeholders such as WDVCASs and NSW Police to ensure high-quality, targeted services continued to be provided to families impacted by domestic and family violence, particularly during periods where the courts were closed.
Assisting on a complex application for divorce
The Domestic Violence Unit (DVU) assisted a client with a complex application for divorce where there were significant concerns for the client’s safety and a high risk of lethality. The DVU was successful in obtaining orders to dispense with service, along with orders for suppression, non-publication, and sealing and sanitising the court file.
The client lived overseas and was subjected to horrific physical, verbal, emotional, and sexual abuse at the hands of her father and brothers from a young age. As the client grew up, the violence increased – she was regularly beaten, assaulted, and controlled.
When she turned 21, she was forced to marry. She did not meet her husband until the day of their wedding ceremony. She fled to Australia and was granted asylum.
Following her divorce, the DVU assisted the client to change her name and start a new life in Australia. The DVU financial counsellors assisted her with budgeting and the DVU social workers helped make sure she was supported with her non-legal needs.
New family dispute resolution initiatives
We have seen an overall increase in referrals and mediations held by the Family Dispute Resolution Unit in past years. In addition, court-ordered mediations have increased by approximately 40 percent over the last year.
The increase in workload has led to some delays which have been managed and overcome. One of the strategies used was the implementation and integration of a checklist automation system which was launched at the end of 2020. This created efficiencies and streamlined the checklist process.
This year we saw an increased reliance on the use of technology, in particular, online and telephone mediation. The Family Dispute Resolution Unit worked with the Information and Communications Technology Division to develop the unit’s technological skills, create a platform for online mediation (to date, 23 online mediations have taken place), and ensure home offices are able to support additional telephone mediation needs.
Child Support Service assists a vulnerable mother
In June 2021, the Child Support Service provided support to a mother who had been overpaid family tax benefit in circumstances beyond her control.
Joanie* and her husband separated in 2016. They have five children, four of whom have disabilities. Joanie was assessed as entitled to only receive the minimum rate of child support, because her husband’s income appeared to be very low. Joanie collected nothing from her husband who she described as controlling and difficult to talk to about financial matters.
In 2020, Joanie’s husband lodged several year of tax returns, which showed his income was much higher than the provisional incomes previously used to work out his child support obligation. As a result, Joanie was entitled to substantial arrears of child support. When Joanie approached us, she was owed child support of $52,000 and had a $16,000 family tax benefit debt, because she was deemed to have received the child support arrears from her husband.
After we contacted Centrelink, Joanie’s family tax benefit debt was cancelled, as they recognised she had not in fact received any child support and it was unreasonable to expect Joanie to start court action to collect the child support arrears.
*not her real name
Independent Children’s Lawyer (ICL) allocations
The Legal Aid NSW Gosford and Wagga Wagga offices trialled a new approach to the allocation of ICL matters. They obtained additional information from the court about the matter to facilitate better decision-making about the allocation of matters, retaining the more complex matters in-house and making targeted allocations to panel ICLs. The project has seen the speedy appointment and acceptance of ICLs within a 48-hour period.
Forming a new health justice partnership
The Early Intervention Unit commenced a new health justice partnership in Port Macquarie, supported by the Legal Aid NSW Port Macquarie office. This is a general advice clinic at the Port Macquarie Base Hospital under a Memorandum of Understanding between Legal Aid NSW and Mid North Coast Local Health District. The clinic is serviced by an Early Intervention Unit family lawyer in a generalist capacity, with referral links back to the Legal Aid NSW Port Macquarie office and other areas of the organisation for specialist advice and casework.
Appeals and complex litigation
Our Appeals and Complex Litigation Unit continued to represent both children and parents in complex international parenting disputes. During 2020–2021, we conducted a number of cases under the Hague Convention on the Civil Aspects of International Child Abduction, in particular Department of Communities and Justice & Mangal [2021] FamCA 118, Department of Communities and Justice & Ruiz [2021] FamCA 98, and Department of Communities and Justice & Rodwell [2021] FamCA 164.
Tailoring our services to meet families’ unique needs
We acted for a non-English speaking client who was the victim of significant family violence and was solely parenting six children. Her husband had purchased a property interstate in his sole name and had the wife’s name on the mortgage. The husband relocated overseas, had rental payments forwarded to him directly, and made no contribution to the mortgage.
We were successful in obtaining orders for our client to act as trustee for sale, prior to the bank foreclosing on the property. Ultimately, our client received 100 percent of the sale proceeds of the property to assist her in caring for the children.
The year ahead
- We will implement a new direction in family law, focusing on children and Aboriginal and Torres Strait Islander clients.
- We will review and change the ways in which we allocate work in family law and care and protection matters to ensure that children receive high-quality representation.
- We will implement an Aboriginal Service Model.
- We will establish a free call 1800-number for people calling our Domestic Violence Unit.
- We will continue to trial a multidisciplinary approach to casework.
- We will provide training and support to our staff, private lawyers and partners on the impact of the merger of the Family Court and Federal Circuit Court.
- We will continue to manage the increase in demand for our domestic and family violence services and prioritise these clients for representation by our in-house practice.
Civil law
Ours is the largest publicly funded civil law practice in Australia and the work of our civil lawyers and allied professional staff is wide-ranging. We practise in diverse areas of law including housing, human rights, social security, consumer protection, disaster recovery and insurance, employment, immigration and visa cancellation, NDIS, mental health, fines, coronial inquests, and the sexual assault communications privilege. The civil law practice includes dedicated services for Aboriginal and Torres Strait Islander communities, children, refugees, prisoners, older people experiencing elder abuse, and communities affected by disaster.
We provide civil law advice in our offices, by phone and at 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: | 213 |
| Total expenditure on civil law services: | $40.5M |
| Proportion of overall expenditure on civil law services: | 10.0% |
Civil law client profile
Based on total casework, including extended legal assistance services.
| Female | 52.6% |
| Born in non-English speaking countries | 14.3% |
| Interpreter required | 7.2% |
| With dependants | 4.1% |
| On Commonwealth benefits | 51.3% |
| Torres Strait Islander Aboriginal and Torres Strait Islander | 29.9% |
| Aged under 18 | 5.0% |
| Aged 18 to 60 | 70.7% |
| Aged over 60 | 20.0% |
| Rural and regional* | 48.5% |
*Includes Newcastle and Wollongong
Civil law services over five years
Based on total casework, including extended legal assistance and early resolution assistance services.
| 2016–2017 | 76,877 |
| 2017–2018 | 80,388 |
| 2018–2019 | 79,692 |
| 2019–2020 | 67,653 |
| 2020–2021 | 55,869 |
We provided 55,869 civil law services to clients in 2020–2021.*
*Information services are not included in service counts in this section
Total legal representation: 1,420
Total duty services: 14,390
Total other services: 40,059
Our response to floods
When heavy rainfall caused major flooding across NSW in March 2021, particularly on the Mid North Coast and in the Hawkesbury Nepean regions, our Disaster Response Legal Service (DRLS) was able to immediately respond using the new service model.
DRLS lawyers attended recovery centres and outreach hubs for the equivalent of 275 days and provided 815 legal services to flood-affected people. Thirty-two percent of all services were about housing issues, and 55 percent of those services related to flood issues in residential parks. DRLS lawyers provided 144 legal services to caravan park residents in North Haven, Port Macquarie, Dunbogan and Wilberforce, making up 17.5 percent of all services.
From 9 March to 30 June 2021, the DRLS delivered community legal education (CLE) at 30 community recovery meetings and mobile hubs across seven local government areas to over 500 flood-affected community members.
We also provided over 100 tailored CLE sessions to community and health workers. This targeted training for frontline workers was delivered to key agencies including Service NSW, Resilience NSW and local councils to assist them to identify and refer legal problems that emerged from the floods.
The DRLS also advocates for improved practices. Our lawyers identified insurance issues and engaged with regulators and industry to achieve better outcomes. We identified the inadequacy of legislative protection for residents in caravan parks that had become uninhabitable and made a submission to NSW Fair Trading.
The work of the DRLS received significant media attention during the year, including a segment on The Today Show.
Refugee Service introduces general advice
In February 2021, the Refugee Service formally transitioned to a general advice service. Clients are seen by one lawyer who provides advice and referrals for a range of legal problems. In just four months, there was a significant increase in clients presenting with multiple legal problems across all three areas of law.
Refugee Service Manager Lyn Payne said, “For our clients, connecting with just the one person has been incredibly fruitful. We get to know the clients and they come to trust us enough to disclose information that can be highly sensitive and retraumatising. There is also a benefit for the lawyer who becomes connected to clients and their families, which assists us in providing an improved holistic service.”
Assisting women on temporary visas experiencing domestic violence
The restrictions of COVID-19 have seen a significant increase in women experiencing domestic violence requiring our help. Women on temporary visas are particularly vulnerable as they are often not eligible for any social security supports and assessment of their cases by the Department of Home Affairs can take a long time.
This year our immigration lawyers helped many people who experienced family violence to present their cases effectively to the Department of Home Affairs. We helped over 50 people, predominantly women, to secure permanent visas for themselves and their children, allowing them to stay indefinitely in Australia and to access social supports.
Additional Commonwealth funding in 2021–2022 will allow us to help more women. The funding will be used to recruit an additional immigration lawyer and legal support officer.
Protecting vulnerable clients from returning to risks of domestic violence
In 2020–2021, we ran a successful High Court case raising public interest considerations for protection visa applicants at risk of domestic violence in their home country. This case challenged the Department of Home Affairs’ practice of determining applications on the papers instead of interviewing applicants.
Our client had experienced domestic violence in Fiji and she feared that she would continue to be abused if she returned. She was unrepresented and had limited education and English skills so had been unable to adequately express her protection claims. The Department refused her protection visa application without an interview, and she was one day late in seeking review of the Department’s decision to the Administrative Appeals Tribunal (AAT). As a result, the AAT did not have jurisdiction to hear the matter. The only available avenue was an application to the High Court for judicial review of the Department’s decision. The matter was conceded in our client’s favour the day before the hearing. Our client now has the opportunity to be interviewed and have her protection claims properly considered.
Preventing homelessness
Our housing services increased significantly this year with the effects of the COVID-19 pandemic, consecutive disaster events, and a renewed focus on clients at risk of homelessness. This work is being delivered across our practice by the housing team, client specialist teams such as the Civil Law Service for Aboriginal Communities (CLSAC), homeless outreach solicitors, and all regional offices.
1. Successful housing litigation in mandatory termination matters
We were successful in expanding the interpretation of the exceptions to mandatory termination for social housing tenants. We identified cases where the exception to mandatory termination was interpreted too narrowly, or the burden of proof was too difficult, resulting in eviction. After successful appeals to the NSW Civil and Administrative Tribunal of the original terminations, two of our clients who were highly vulnerable and at risk of homelessness maintained their housing.
2. Collaborating with crime
We worked with our criminal law colleagues to reduce client time in custody and the risk of losing a social housing tenancy by providing letters of support for either bail or sentencing. Social housing tenants are not permitted to be absent from their property for more than six months. If evicted, they can be blacklisted. Our support letters explained the social housing policies and requested that they be considered.
3. Protecting tenancies in remote communities
Since September 2020, CLSAC has advised and represented Aboriginal land council tenants in Toomelah and Boggabilla facing termination proceedings in the NSW Civil and Administrative Tribunal. Fourteen tenancies at risk of termination were saved. This was achieved by proactively monitoring hearing lists and liaising with community contacts to ensure that affected tenants had access to legal advice and assistance. Through this work, CLSAC has developed a referral protocol with housing providers to ensure that all tenants at risk of termination receive independent legal advice.
4. Housing assistance for Aboriginal women in custody during COVID-19
CLSAC worked closely with Corrective Services NSW to ensure that Aboriginal women in custody continued to receive civil law services. With teleconference and audio-visual technology, we maintained fortnightly advice clinics to provide advice and casework assistance to Aboriginal women regarding civil law issues with a focus on housing.
The service achieved positive outcomes for many clients by assisting them to retain social housing properties whilst in custody, appealing housing requirements that prevent former tenants being rehoused, and getting women restored to the housing waitlist where their applications were closed while they were in custody or homeless.
Providing evidence at Royal Commissions
Two lawyers from our Mental Health Advocacy Service (MHAS) gave evidence at the Disability Royal Commission public hearing in February 2021. The hearing considered issues facing people with disability, predominantly cognitive and psychosocial disability, in the criminal justice system. The compelling evidence presented by MHAS staff on the particular case of a long-term MHAS client received significant media coverage.
On 31 July 2020, our senior consumer lawyer gave evidence at the Royal Commission into National Natural Disaster Arrangements. She addressed our experience in coordinating legal services to victims of disasters who often experience problems with insurance, tenancy and debt.
Collaborating for a fresh start
Roberson v New South Wales Land and Housing Corporation [2021] NSWCATAP 94
Our client Ms Roberson was in prison when her Legal Aid NSW criminal lawyer referred her to civil lawyers for help with a letter to support her bail application. She had been charged with supplying small amounts of drugs from her social housing property. Ms Roberson has complex post-traumatic stress disorder following a long history of domestic violence, and had a history of illegal drug use and homelessness before she was offered social housing
Ms Roberson had been in recovery but upon being exposed to high levels of drug activity in her new social housing complex and being in fear of those involved in drug supply, she relapsed back into drug use.
We provided a letter to her criminal lawyer in support of a bail application, arguing that a prolonged absence in custody would put her at risk of losing her housing. The charges also triggered her landlord to terminate the lease for “illegal use” of the premises. We represented Ms Roberson in the NSW Civil and Administrative Tribunal (NCAT) proceedings and then on appeal. The NCAT Appeal Panel found that the Tribunal had made a decision that was strongly against the weight of the evidence, and that Ms Roberson would suffer undue hardship if evicted. The termination was overturned.
Since the proceeding finalised, our client has been pursuing her priority transfer so that she can have a fresh start in a new area.
Supporting Work and Development Order sponsors
The Work and Development Order (WDO) Service launched an online sponsor toolkit for WDO sponsors. The toolkit includes checklists, practical guides and templates to support WDO sponsors to effectively administer the WDO scheme. In addition to making the scheme more accessible for sponsors, the resources provide clarity on the scheme’s guidelines and build the capacity of sponsors to understand and comply with their obligations.
Over 2,530 WDO sponsors in government, community and health settings across NSW help disadvantaged people clear unpaid fines through activities such as education, counselling, volunteering, and health treatment.
Enhancing civil law services for children
This year our Children’s Civil Law Service (CCLS) delivered a package of service delivery reforms in response to a 2019 evaluation of the service, including:
- a practice framework, which articulates new objectives, principles of practice and eligibility criteria
- a program logic
- guidelines for exiting clients from CCLS, and
- a youth casework manual.
In 2020–2021, the Department of Communities and Justice committed to continue funding for CCLS to provide services to the Youth Koori Court until 30 June 2022. CCLS is funded to employ a senior lawyer, a paralegal and a youth caseworker to support participants in the Youth Koori Court.
Funeral insurance targeting Aboriginal communities
This year we acted for clients who purchased funeral insurance from a private company that targeted Aboriginal communities with a product made to look like it was both community-based and Aboriginal. We continued to act for many Aboriginal clients seeking refunds of the premiums they have paid for years, achieving successful outcomes through complaints to the Australian Financial Complaints Authority.
Recouping funeral insurance costs
Our client bought funeral insurance for herself and her seven children. She paid for insurance for her family for 16 years, believing she was contributing to a community fund that helped Aboriginal families pay for funerals. Over the years, she contributed over $25,000. We assisted her to make a complaint to the Australian Financial Complaints Authority and the company was ordered to refund all premiums in full in May 2021.
Stolen Generations Reparations Scheme
In 2020–2021 we provided 68 services to clients in relation to Stolen Generations Reparations Scheme eligibility and review options. This assistance includes applications to the scheme as well as reviews of decisions where applicants have been refused.
We have advocated for changes to the scheme’s eligibility criteria which has resulted in a more expansive approach by Aboriginal Affairs NSW and a greater number of applicants being successful. We also created a number of educational resources, including posters and postcards, in order to spread the word about the scheme’s existence and its upcoming end date in 2022.
Death in custody inquests
Our Coronial Inquest Unit has responded to increased demand for representation at death in custody inquests. Appearing on behalf of bereaved families, our advocates argue for systemic improvements within the prison system, particularly in relation to custodial health and the mental health treatment of inmates.
Relying on this expertise, we prepared an extensive submission and appeared to give evidence before the Select Committee on the High Level of First Nations People in Custody and Oversight and Review of Deaths in Custody in October 2020. Our submissions were adopted in many respects by the Select Committee, including calls for a broader review of delays in coronial inquests, advocating for positive improvements to the coronial system, and for improvements in cultural competency.
Securing a waiver of Centrelink debts
Fletcher; Secretary, Department of Social Services and (Social services second review) [2021] AATA 577 (19 March 2021)
We secured a waiver of Centrelink debts totalling $131,915 when the Administrative Appeals Tribunal (AAT) agreed there were special circumstances that justified waiving the debt in full.
Our client Mrs Fletcher applied for the Disability Support Pension (DSP) in 2010 after being diagnosed with a serious medical condition. She declared her husband’s earnings in the application, but Centrelink failed to take his earnings into account when assessing her eligibility for the DSP. On the basis of this error, Mrs Fletcher was granted DSP at the maximum rate and this mistake went undetected for eight years. When the error was identified, Mrs Fletcher’s DSP was cancelled, and Centrelink sought to recover the payments she had received.
Legal aid was granted to represent Mrs Fletcher in the General Division of the AAT. The evidence showed that a significant contributing factor to the debt was the fact that Centrelink only sent seven letters to Mrs Fletcher about her DSP throughout the entire period, and there was no correspondence at all from July 2013 to November 2018. The AAT found that most of those letters were misleading and confusing.
Although the AAT was unable to find the debts were caused solely by Centrelink’s administrative error, the Senior Member held that Centrelink’s initial error, as well as misleading correspondence and failure to make enquiries were all “special circumstances”. When combined with Mrs Fletcher’s continuing ill-health, the resulting impact of her husband’s health, and their overall financial hardship, the AAT decided to exercise its discretion to waive the entire debt.
Improving responses to elder abuse
The Legal Aid NSW Elder Abuse Service (EAS) is a three-year Commonwealth funded service and the first service of its kind in NSW. It is a general, interdisciplinary service offering legal and social work support. One of the aims of the service has been to identify issues that act as barriers for older people to speak out about elder abuse.
In 2020–2021, the EAS assisted 123 clients with legal problems such as granny flat arrangements, recovery of money loaned through informal financial arrangements, Centrelink, guardianship, financial management, powers of attorney, and Apprehended Violence Orders (AVOs).
Informed by their casework, the EAS prepared law reform proposals that reflect the lived experiences of their clients, with a focus on:
- improved options for older clients to remove abusive adult children from the family home
- more accessible remedies for victims of financial abuse
- harmonisation of national Powers of Attorney
- safer banking options for older people, and
- working with police to improve the identification and response to elder abuse.
Western Sydney social security advice clinic
After a successful trial, we established a permanent social security advice clinic at the Legal Aid NSW Blacktown office. This clinic services the three Western Sydney offices in Parramatta, Blacktown and Penrith. Solicitors have found it helpful to have a specialist service to refer clients to, but also report the value of direct contact with social security experts to build their capability and support their casework in this area of practice.
Reaching the veteran community
In September 2020, the Veterans’ Advocacy Service (VAS) introduced quarterly webinars on veterans’ law to increase our engagement with Ex-Service Organisations (ESOs). We facilitated and presented at four webinars this year. The feedback from ESOs has been extremely positive and has resulted in an increase in enquiries and referrals for advice.
Working with allied professionals
We continue to expand our allied professional workforce, which includes social workers in the Elder Abuse Service and Children’s Civil Law Service, a community development officer in the Refugee Service and financial counsellors in the Civil Law Service for Aboriginal Communities and the Consumer Law team.
In 2020 we employed a financial counsellor to assist clients impacted by the bushfires, and to support our work with clients with significant debt and in financial hardship. Over 2020–2021, the financial counsellor achieved close to $457,000 of debts waived for 31 clients, with amounts ranging from $3,000 to over $120,000.
The year ahead
- We will implement the general advice model across our services.
- We will review and refine the Work and Development Order model to improve access to the scheme for disadvantaged clients.
- We will triage and prioritise civil law services to prisoners.
- We will continue to advocate for improvements to the coronial system in NSW and its impact on the prevention of deaths in custody.
- We will expand assistance to women on temporary visas experiencing domestic violence and employ an additional immigration lawyer and legal support officer.
- We will implement a regional communication strategy to enable communities affected by the closure of outreach services during COVID-19 to access civil law services remotely.