Highlights from our practice areas

In June 2022, we made a submission to the Independent National Security Legislation Monitor (INSLM) review into Division 105A of the Criminal Code Act (Cth), which allows two kinds of post-sentence orders to be made against Commonwealth terrorism offenders: continuing detention orders (CDO) and extended supervision orders (ESO). NSW is the only state or territory with its own post-sentence scheme aimed at terrorism, and we were the only legal aid organisation with specialist expertise in Commonwealth parole and terrorism post-sentence orders to provide a submission to the review. Our solicitors gave evidence at the public hearings held in Canberra, along with representatives from organisations such as the Australian Human Rights Commission and the Law Council of Australia.

The INSLM’s final report was published in March 2023 and acknowledged the value of our submissions and evidence as “most thorough and thoughtful”. The report made several recommendations consistent with our position, including that CDOs be abolished and rehabilitation and integration into society be a key goal of the legislation. 

The Parliamentary Joint Committee on Intelligence and Security has since commenced its own review into the operation, effectiveness, and implications of Division 105A. We have made a further submission endorsing the INSLM’s recommendations, calling for greater transparency in decision-making, disclosure and consideration of our international human rights obligations.

Restructure of the High Risk Offender Unit

The High Risk Offender (HRO) Unit was established in August 2018 to deal with increased high-risk offender applications following legislative changes in 2013 and 2017. These changes broadened the number of offenders eligible under the crimes HRO regime and introduced a new terrorism HRO regime.

The HRO Unit manages most of the HRO and terrorism HRO work in NSW, including in the Supreme Court of NSW. This work is often intense – it requires large briefs of evidence and covers complex legislation. Timeframes between filing an application and the hearing date are extraordinarily short, and the clients involved have confronting offending histories and complex needs.

Due to these challenges and growing demand, in 2022–23, we established the HRO Unit as an ongoing standalone unit with its own management structure and solicitor in charge. The unit now includes eight solicitors, a social worker, a paralegal, an office manager and a legal support officer.

Exonerating a 79-year-old victim of a drug mule scam

A US national with no criminal record, our client travelled to Sydney with her elderly disabled husband and her intellectually disabled adult daughter.

Border Force Officers found a large amount of methamphetamine and cocaine concealed in the lining of the suitcases she brought with her to Sydney. She was arrested and given 10 minutes to say goodbye to her husband and daughter, who were sent back to the US.

Her emails and phone messages contained extensive evidence that our client had been the victim of an elaborate scam. She believed she was coming to Sydney to collect an inheritance, and scammers had previously paid for her to travel to Africa, where she signed an “official funds classified document” and collected “gifts” in suitcases for the “payment officers” in Sydney.

Our client had significant health issues, including diabetes and high blood pressure, and spent nine difficult months in custody awaiting trial. The prosecution accepted that she was the victim of a scam, but argued that she became aware of the risk of drugs in the suitcases when she assumed custody of them in Africa. They also used lies our client told Border Force and the Australian Federal Police against her – lies the scammers had told her to repeat should she be questioned by authorities.

In April 2023, it took a jury less than one hour to acquit her and she went home to her husband the next day. We are currently assisting several other seniors in similar circumstances.

From 30 June 2022, we piloted a Defendant Portal at Bankstown, Blacktown, Mt Druitt, Sutherland and Penrith to make it easier for clients to access legal advice and representation from a Legal Aid NSW lawyer.

An accused person can access the portal by scanning a QR code on a pamphlet provided by the police at the time of charge or by using a link on the Legal Aid NSW website. They can enter their contact details and information about their case, which creates an intake record in our Client and Case Management System (CCMS). The relevant Legal Aid NSW office is notified and can schedule an appointment for them.

In November 2022, we launched our new robotic process automation to reduce the number of finalised crime files incorrectly left open in our client operational systems. Since its introduction, incorrectly open in-house files have been reduced by at least 79%.

BA v The King [2023] HCA 14

We lodged an appeal for our client, who had been charged with breaking, entering and committing a serious indictable offence. Our client was on the lease of the relevant property as a co-tenant but had moved out, removed most of his possessions and stopped paying rent.

The elements of a break and enter in section 112(1)(a) of the Crimes Act 1900 (NSW) require a trespass – that is, entry to the premises of another without lawful authority. We argued that under his tenancy agreement, our client had the right to enter the premises and to do so using the kind of force that would be called a "break" if he was not on the tenancy. He did not require consent to enter the property, regardless of whether he lived there at the time or entered the apartment by force.

The trial judge directed an acquittal, but the NSW Court of Criminal Appeal disagreed and allowed a Crown appeal. A majority at the High Court upheld our client’s appeal and acquitted him of the charge.

Until July 2022, duty services at Lithgow Local Court were provided exclusively by private practitioners under the Duty Solicitor Scheme. As part of the local court expansion, an additional full-time Magistrate was allocated to the Lithgow/Mudgee circuit and duty services transitioned to the Legal Aid NSW in-house Back Up Duty Scheme (BUDS) model.

The in-house crime team at our Orange Office now manages the duty list with valuable support from private practitioners onboarded to the BUDS.

We were delighted to see the Children’s Legal Service Conference return on 13 May 2023 at the NSW Teachers Federation Conference Centre.

Legal Aid NSW Children’s Legal Service Solicitors Tim Khoo and Claudia Cejas discussed Digital Evidence Access Orders, while fellow Children’s Legal Service Solicitor Rhiannon O’Donoghue presented on essentials for criminal lawyers working with clients in out-of-home care.

The program also included presentations from the President of the Children's Court Her Honour Judge Ellen Skinner, Executive Director Youth Justice Paul O'Reilly, Public Defender Rose Khalilizadeh and Magistrate of the Local Court of NSW Debra Maher.

Legal Aid NSW continued to see an increase in demand for the support we provide through Family Advocacy and Support Services (FASS) in 2022–23.

FASS helps men and women impacted by domestic and family violence to solve their legal and non-legal problems and navigate the family law system. Our lawyers work alongside social support staff from Women’s Domestic Violence Court Advocacy Services and other organisations to provide an integrated legal and social support service. The effectiveness of the FASS was recognised by a national $85 million funding boost in the 2022–23 budget. It was expanded to an additional 14 locations across NSW and services every Federal Circuit and Family Court of Australia (FCFCOA) registry and circuit location in the state. In-person services are now available to families in regional and remote NSW, and dedicated mental health support is embedded in the service.

A launch of these expanded offerings was held in Dubbo in June 2023 and was a fabulous showcase of the work of the service. It was attended by representatives from Legal Aid NSW, executives from the FCFCOA, the Judiciary, Dugald Saunders MP, local practitioners and representatives from domestic and family violence services. The Commonwealth Attorney-General, Mark Dreyfus KC MP provided a video address.

When the FCFCOA’s Specialist Indigenous List expanded from Sydney to Lismore and Coffs Harbour in 2023, FASS partnered with the Family Law Service for Aboriginal Communities (FamAC) to provide holistic legal and social support services to Aboriginal and Torres Strait Islander families.

Legal Aid NSW can now support multiple parties in these matters, enabling family members to access culturally safe legal services, specialist social support if they are experiencing mental health issues or domestic and family violence, and support services through the assistance of an Aboriginal Field Officer.

A key focus for our Family Dispute Resolution (FDR) Unit in 2022–23 was the Commonwealth Property Mediation Pilot. A total of 699 referrals were received for the pilot, which uses a two-mediation model that includes funding for the second party.

Since early 2023, the FDR Unit has developed and trialled new property documents and processes to focus on disclosure in property mediation and improve outcomes for clients.

The Australian Institute of Family Studies released an independent evaluation in August 2022 and was positive about the model and the work done by legal aid commissions. It reported that every dollar spent returned $4.69 in social and economic benefits. The report called the model a “prudent and efficient means of assisting parties to resolve property arrangements.”

On 1 July 2022, FDR transitioned to an online-first model for mediation, with face-to-face mediation continuing to be an option in relevant circumstances.

Before this, FDR saw a significant trend towards shuttle mediations, where parties speak only to the mediator and not to each other, and mediations are held over the phone. Outcomes for these mediation types saw a lower agreement rate.

Data from 2022–23 shows that 87% of FDR mediations were held online, with the percentage of online matters increasing monthly. Settlement rates for online mediation are comparable to in-person models and higher than telephone mediation outcomes. Online shuttle mediations also have a higher agreement rate than those held by phone. Feedback from clients, mediators and solicitors continues to be positive.  

Child reunited with mum

We assisted a young Australian mum who travelled with her husband and one-year-old to another country with the intention of staying for a year. COVID-19 then interfered, and they were stuck overseas. The couple then separated, and the court ordered that the child live with their mother and spend five hours per week with their father. The child’s father then took them to another country, and our client contacted the Legal Aid NSW Early Intervention Unit. We could not assist at the time, because Australian courts have no jurisdiction when a child is outside Australia. We prepared a court application in case the father and child returned to Australia, and when they did, we filed the court application seeking that the child be placed on the airport watch list. Due to visa issues, it took weeks for our client to return home. When she landed, we filed another court application seeking a recovery order. The child is now safely back with our client.

The Early Intervention Unit resumed outreach services at the drug and alcohol recovery program We Help Ourselves (WHOS) in 2022–23 in conjunction with the Civil Law Consumer Team. They provide a much-needed and highly valued in-person service each Wednesday at WHOS Lilyfield and a phone service to clients in Newcastle, Penrith and Goulburn.

This year, the Legal Aid NSW Elder Abuse Service (EAS) partnered with the Central Coast Women’s Domestic Violence Court Advocacy Service (WDVCAS) to increase referrals for legal advice and assistance for older people experiencing abuse. Almost 10% of WDVCAS clients are over 65 years old.

The EAS and WDVCAS delivered a half-day training session to 55 local service providers highlighting the differences between domestic violence and elder abuse and the different responses required. This partnership complements the EAS partnership with the NSW Police Force aimed at improving the identification of and response to elder abuse.

Sweeney v He [2022] NSW SC 655; Sweeney v He [2023] NSWCA 68

Legal Aid NSW supported a client through judicial proceedings to save her from losing her home to her ex-partner, who lived with her in a property purchased by her son in 2013 and made regular rent payments. After the relationship breakdown, the client left to stay in crisis accommodation. Her ex-husband stayed in the property until the NSW Civil and Administrative Tribunal made eviction orders, and then our client returned to the property.

In 2021, our client’s ex-husband commenced proceedings seeking a declaration that the property was held in trust for himself and our client under an oral agreement. Our client and her son both denied this agreement existed.

We appeared in the Supreme Court of NSW, which found in favour of our client and her son, deciding the property was purchased for the benefit of the son and that payments were made as rent. The ex-husband appealed to the Court of Appeal on several grounds, including that our client’s counsel did not put allegations to him in cross-examination. The court dismissed the appeal, saving our client’s home.

These proceedings were important as the Court of Appeal reviewed the rule of evidence in Browne v Dunn, which states that if you intend to contradict the evidence of a witness, they must be given a chance to explain or comment while they are still in the witness box. This rule ensures fairness to all the parties in the proceedings. The Court’s decision clarified that when considering how this principle is applied, it must consider the case of the parties in its entirety, including issues raised at each stage of the proceedings. Explicit notice or warning to the witness is not always necessary to comply with this rule.

In December 2022, the federal government announced that the Administrative Appeals Tribunal (AAT) would be abolished and replaced with a new federal administrative review body.

Harnessing our extensive experience representing applicants before the AAT in social security, immigration, NDIS and veterans matters, we participated in consultations with the Attorney-General's Department and contributed to the National Legal Aid submission on these reforms. We identified barriers to fair administrative review in the current system and proposed recommendations to ensure a fair, transparent, accessible and inclusive system.

Our Human Rights Team continues to pursue strategic advocacy on the standard of health care provided to people in NSW prisons. Prisoners are entitled to receive equivalent health care to people in the community but are often not given the care they need.

This year, we delivered a presentation to Health Care Complaints Commission staff and met with staff from the NSW Ombudsman’s office about improved access to health care for prisoners. We also advocated on behalf of prisoners to a delegation of the United Nations Subcommittee on Prevention of Torture who were visiting Australia and presented a report on the health of prisoners to Justice Health and other members of the Justice Health and Legal Partnership Forum.

As part of this work, we also made a detailed supplementary submission to the Disability Royal Commission. Our submission drew on our practice experience and highlighted systemic failures in providing timely, appropriate and quality healthcare and disability support, which in some cases resulted in serious health consequences or neglect.

In late 2022, the Legal Aid NSW Sexual Assault Communications Privilege Service (SACPS) was invited by Rape Crisis England & Wales to present at an online briefing about a proposal to include a sexual assault communications privilege in the UK Victims Bill.

The event was hosted by two British Members of Parliament and attended by 13 Members of Parliament and over 100 policy makers. SACPS spoke from experience about the protections available for sexual assault survivors in NSW, and the processes and scope covered by our legislation.

The presentation referred to four Sexual Assault Communications Privilege cases heard by the NSW Court of Criminal Appeal, as well as various law reform commission reviews, and the fact that all three significant amendments to the legislation had been to widen its scope and strengthen protections. We also addressed concerns that limiting access to notes made by counsellors working with rape survivors would result in unfair convictions and excessive appeals.

Catastrophic flooding devastated communities across NSW in 2022, causing homelessness and financial hardship. In July 2022, the Hunter, Central Coast, Greater Sydney and Hawkesbury regions were impacted. Some communities were impacted for the fourth time in 18 months. From September 2022, widespread flooding across the North West, Central West and Riverina Murray caused further destruction.

The magnitude of these new disasters, compounded by the dire legal need still facing flood-affected communities in the Northern Rivers, required an adaptive and flexible approach to reach as many impacted people as possible. The statewide Disaster Response Legal Service (DRLS) mobilised once again, offering a 1800 helpline, legal help at recovery centres, community legal education and a dedicated website with self-help tools.

We delivered frontline legal services where they were needed most: at recovery centres established by Resilience NSW (now the NSW Reconstruction Authority) in 102 locations across 46 LGAs.

In 2022–23, the DRLS provided over 2,780 legal services. These outcomes were only possible with the assistance of Legal Aid NSW civil lawyers, Aboriginal Field Officers and staff from specialist teams including CLSAC.

We co-ordinated the response with our partners in the legal assistance sector, including community legal centres, tenants’ advice and advocacy services, Justice Connect, the Law Society of NSW, the NSW Bar Association, the NSW Tenants Union and the Financial Rights Legal Centre’s Insurance Law Service.

Helping clients clean up after the floods

The major floods across NSW left many houses and people’s belongings water-logged and damaged. As soon as people could access their homes, they returned to be confronted by the massive task of cleaning up their communities. Many local councils offered free rubbish removal services, but people were cautious about getting rid of their belongings as they had been advised not to remove anything until insurance assessors had conducted inspections. Due to the magnitude of damage, assessor visits were likely to be weeks away. This situation resulted in piles of damaged belongings outside people’s homes, causing further trauma for the community and creating a potential health hazard.

The DRLS worked with individual clients, Resilience NSW and community workers to inform residents of their legal rights and reassure them that they did not need to wait for assessor visits before they could get rid of their flood-affected items. The DRLS advised clients that they could take photographs or videos of damaged household goods and take advantage of council clean-ups to get rid of the debris immediately.

The DRLS raised this as a systemic issue with the Insurance Council of Australia (ICA). The ICA confirmed that the advice to the community was correct and sent communications to the insurers in question and to its other members to ensure they were not advising residents to delay removing debris while waiting for insurer assessments.

Insurance win enables client to rebuild their home

The DRLS assisted a client whose home was destroyed in the January 2020 bushfires. Her insurance claim was denied as the insurer alleged she failed to disclose relevant information when she took out insurance in the days before her property was destroyed. After an unsuccessful internal dispute resolution complaint, the DRLS challenged this decision in the Australian Financial Complaints Authority (AFCA). After a lengthy process of collecting evidence and drafting submissions, AFCA made a determination in our client’s favour in October 2022, finding that the insurer failed to establish an exclusion under the policy and was required to settle the claim.

The sum insured was $400,000. However, after further negotiation, we persuaded the insurer to pay additional benefits under the policy, such as temporary accommodation, debris removal, inflation cover and interest, on top of the sum insured. Our client received $573,621.

For almost three years, without access to insurance funds or temporary accommodation, our client had been living in a shed on her property with two dogs, no kitchen and an outdoor bathroom. She intends to stay on her property and use her insurance claim funds to rebuild. Our client says she can now finally see a future for herself.

Many inmates experience challenges managing their finances and affairs while in custody. In 2022, the Prisoners Civil Law Service published a Power of Attorney Kit for people in prison, containing a factsheet about Powers of Attorney and the forms inmates need to appoint and revoke a power of attorney.

The Housing Specialist Team has pioneered using the Bugmy Bar Book in civil proceedings relating to housing matters. Bugmy v The Queen is a criminal case and authority for the principle that a client’s history of disadvantage is relevant to assessing moral culpability during sentencing. Each chapter of the Bugmy Bar Book includes extracts from major reports and leading academic research about social issues, and chapters are regularly admitted into evidence in sentencing matters.

The Housing Team have now implemented the Bugmy Bar Book into civil practice. Chapters can be used persuasively to show that the circumstances of homelessness can be both a cause and consequence of involvement with the criminal justice system and that the impacts of homelessness include poor physical health and mental health. Templates have been developed for use in the NCAT and first-tier appeals to the Department of Communities and Justice – Housing.

Immigration Service gets client home in time for Christmas

Our Immigration Service represented a client before the General Division of the Administrative Appeals Tribunal (AAT) in the visa cancellation matter Bishop and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4446. The client was a New Zealand citizen but had been living in Australia for 47 years and did not know he was not an Australian Citizen until his visa was cancelled. He had a traumatic upbringing with periods of homelessness as a teenager. He had a large family in Australia, including three children, two of whom have a serious genetic disorder and another with a learning disability. The client did not have any connection with New Zealand.

The client’s visa was cancelled when he was sentenced to 12 months in prison for assault and breach of bail. He had never been in custody prior to this offence. We represented the client in an appeal of the visa cancellation before the AAT and obtained expert evidence that showed how the client’s upbringing had contributed to his offending. We were able to persuade the AAT that our client had a low risk of reoffending, that the impact of the client’s removal on his children would be substantial and that the impact on his mental health would be significant. The AAT decided in our client’s favour, and he was released from custody with a visa to return home to his family in time for a Christmas Eve breakfast.