M1 - Learner Manual

1. Introduction to Module 1 – Advocacy & Support

Module 1 includes three units of competency:

NAT10861002 Advocate for clients in need of legal assistance

CHCCOM002 Use communication to build relationships

NAT10861007 Utilise ethical standards when dealing with clients

NAT10861002 & CHCCOM002 

These units describe the knowledge and skills required to advocate for clients in need of legal assistance by applying specific workplace communication techniques to build and maintain relationships based on respect and trust.

The communication skills will be applied to target communication issues that may arise in the context of your advocacy work. These skills may be applied across a range of workplace contexts involving application of a range of communication strategies to address specific needs and issues, working with various levels of social and cultural diversity. 

 Specifically, we will be applying these skills in the context of dealing with Indigenous clients who need legal assistance. 

This unit covers the skills and knowledge required to apply accepted codes of ethics and professional standards to daily work requirements. Ethical codes and practices are an integral part of work and life. An understanding of the basic principles and standards to abide by are necessary to maintain an effective relationship with clients and/or colleagues. 

2. NAT10861002 Advocate for clients in need of legal assistance

This unit describes the performance outcomes, skills and knowledge required to advocate on behalf of an Indigenous client in need of legal assistance. This unit applies to those working within an organisation which provides services to Indigenous clients.

This section addresses the steps to identify the client rights and needs while conducting the first interview. It covers how to conduct client interview and what are the main issues that need to be addressed in order to avoid any ethical conflicts and to ensure client participation. Also it explores how to seek assistance during the process where required. 

Next the material explores the importance of delivering accurate and clear information to the client. This includes a consideration of the various options available to the client and the legal process associated with. Eventually, the material explores the ways by which to developing the right strategy to advocate on behalf of the client.

2.1. Clients in care, custody or in need of assistance

There is a range of different circumstances where you may need to help or advocate on behalf of your client. Depending where you are working your client will have different needs and you will need to use different types of advocacy skills to assist them. Your client may be an adult or a juvenile. As we have seen in previous units, the client interview is a really important step to help you to identify exactly what your client needs, what law is relevant and what steps you need to take to assist them. 

You may need to provide assistance across a range of legal practice areas. For example: 

• Care and Protection Law
• Criminal Law
• Elder Law
• Immigration Law
• Family Law
• Domestic Violence Law 
• Disability or Anti-discrimination Law 

Your client may be in care or custody or in need of assistance. In each different context your client will need legal advice and you may be asked to advocate on their behalf. Different needs arise depending on the client’s circumstances so you need to think about exactly what they need and what laws apply to their situation. 

What exactly do each of these terms mean?

2.2. Children in Care

In each state and territory in Australia there is legislation in place that gives power to a designated state department to intervene if a child is at risk or in need of care and protection. In NSW this department is called the Department of Child Protection^[1]. The relevant legislative instrument that governs the law in this area is called the Children and Young Persons (Care and Protection) Act (NSW) 1998.

In these cases, you may need to advocate on behalf of or assist your client with a range of issues. For example:-

• It may be that a parent or grandparent of a child who has been placed in the care of the Department comes to you for help. 
• They may need legal representation for their court case at the Children’s Court. 
• They may need you to write a letter to the Department about contact arrangements for a child. 
• They may have concerns about medical treatment for the child and ask you to provide the Department with some information about that.
• In some cases a lawyer in your office may be a ‘legal representative’^[2] for a child in care. In this example, you will be providing direct representation for the child and acting in their ‘best interests’.
• There may be an allegation of abuse of a child who is in foster care.

2.3. Elderly People in Care

In each state and territory in Australia there are laws in place that deals with issues that may arise for elderly people, broadly this is called Elder Law. This area of law applies to elderly people, including those who are in care in an aged care facility. A number of different laws may apply in this area depending on the issue that arises for your client. Some laws with be state or territory based, such as the Powers of Attorney Act 2003 (NSW) and the Guardianship Act 1987 (NSW)  . Some laws that apply will be Commonwealth, such as the Aged Care Act 1997 (Cth) and the Quality and Care Principles 1997 (Cth).

In these cases, you may need to advocate on behalf of or assist your client with a range of issues. For example:-

• An issue may arise about healthcare or accommodation.
• There may be an abuse allegation of an elderly person in an aged care facility.
• There may be a dispute or issue relating to a client’s will or estate.
• You may need to assist in relation to an Aged Care or Nursing Home Agreement.
• There may be a Guardianship issue. 

2.4. Police Custody

In each state and territory in Australia there is legislation in place that deals with the responsibilities of police and the rights of people who are in police custody. The key legislative instruments that govern this area of law are the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and the Law Enforcement (Powers and Responsibilities) Regulation 2005 (NSW)  . These laws proscribe important rules about treatment of person’s in custody and deal with a person’s legal rights, health and safety whilst in custody. The Bail Act 2013 (NSW)  is an important piece of legislation as it proscribes the procedures and processes relating to bail applications for a person in custody. You need to also be familiar with the Crimes Act 1900 (NSW)  as this will assist you with your client’s substantive matter. 

In these cases, you may need to advocate on behalf of or assist your client with a range of issues. For example:-

• Your client may ask you to make a bail application on their behalf.
• There may be an allegation of mistreatment of a person in police custody.
• The circumstances of their arrest may be relevant to the running of your client’s case.

2.5. Prison Custody

In each state and territory in Australia there is legislation in place that deals with the responsibilities of Corrective Services and the rights of people who are in prison custody. There are a lot of legislative instruments that are relevant to persons in custody, including the Crimes (Administration of Sentences) Act 1999 (NSW) and the Crimes (Interstate Transfer of Community Based Sentences) Act 2004 (NSW). The Department of Corrective Services^[1] is responsible for correctional services and programs for people in custody throughout NSW. These programs are directed toward reducing re-offending and also enhancing community safety. The Bail Act 2013 (NSW) is an important piece of legislation as it proscribes the procedures and processes relating to bail. You need to also be familiar with the Crimes Act 1900 (NSW)  as this will assist you with your client’s substantive matter. 

In these cases, you may need to advocate on behalf of or assist your client with a range of issues. For example:-

• You or the family may have a welfare concern about a client. 
• They may need to get some legal advice about their case.
• Your client may need some assistance in accessing support services or programs.
• There may be an allegation of mistreatment whilst in custody.
• Your client may need representation at their parole hearing. 

2.6. Immigration Detention

In Australia, Immigration Law is governed by Commonwealth legislation. If a person from another country is in Australia without a valid visa then they may be detained in immigration detention^[1].  The key piece of legislation that deals with this area of law is the Migration Act 1958 (Cth) and the Migration Regulations1994 (Cth). 

In these cases, you may need to advocate on behalf of or assist your client with a range of issues. For example:-

• You or the family may have a welfare concern about a client held in detention.
• Your client may need to get some legal advice about their visa application.
• Your client may need some assistance in accessing support services.
• There may be an allegation of mistreatment whilst in detention.

2.7. A Client ‘in need of assistance’

There is a range of legal issues that may arise for your client where they may be in need of some advice or some advocacy assistance. Your client may be in custody or they may be at liberty. Remember that often a person may have more than one legal issue at a time. For example, they may be on remand in prison custody for a criminal matter and also have an Apprehended Violence Order matter listed in court as well. The client may also need your assistance in arranging contact with their children who are in State care. 

In some cases, your client may have special needs arising from a disability, due to language or because they are an Indigenous or Torres Strait Islander person. This may impact upon their needs and the way that you communicate with them. For example, they may need a support person, an interpreter and / or you may need to take into account cultural considerations as part of your engagement. Remember also that juveniles have different needs to adults; in many cases there are special laws in place to ensure their rights are protected given their age and vulnerability.

Your client may need assistance from you in relation to any of the practice areas mentioned above. For example:

Domestic Violence 

In each state and territory in Australia there is legislation in place that deals with Domestic or Family violence. In NSW the Crimes (Domestic and Personal Violence) Act 2007 (NSW) is the key piece of legislation for this area of law. 

In these cases, you may need to advocate on behalf of or assist your client with a range of issues. For example:-

• You may need to provide legal advice to a victim about applying for an AVO.
• You may need to provide advice if there is an allegation that an AVO has been breached.
• You many need to refer your client to some support services.  

Disability Law

Anti-discrimination law based on a person’s disability is governed at both state and commonwealth level. In NSW the Disability Inclusion Act 2014 (NSW) deals with a range of human rights issues relating to persons living with a disability. At the commonwealth level there is the Disability Discrimination Act 1992 (NSW)  which promotes equal opportunity, rights and access for persons with disabilities. It may be that other legislation is also relevant such as employment or tenancy law. 

In these cases, you may need to advocate on behalf of or assist your client with a range of issues. For example:-

• You may need to give some advice around a discrimination issue.
• Your client may need a referral to some support services. 
• You may need to write a letter to advocate for some changes in the workplace.

Every client is unique: their legal issues, their circumstances and their needs are also unique. 

Whilst you need to know the law that applies in your case it is really important that you listen carefully to your client and clearly identify what it is that they need from you. Once you have done this you can work out what advocacy strategies will best meet these needs.

2.8. Identify client rights and needs

Why is advocacy important?

Advocacy is an important process that can help a client to realise and protect their human rights. You may be requested to support the client in exercising his/her rights. Examples of rights you could be asked to support include:

• The right to privacy and confidentiality;
• The right to respect and dignity;
• The right to quality services;
• The right to information to inform decision making;
• The right to choice and control;
• The right to make and resolve complaints;
• The right to non-discriminatory service; and
• The right to protection of legal and human rights, and freedom from abuse and neglect

Each of these rights should be protected and realised. However, people in care or custody can be vulnerable to exploitation by others and may not be able to protect their own legal interests. 

This may be due to lack of knowledge, understanding, mis-use of power and in some cases, as a consequence of unique vulnerabilities. Laws are in place to ensure that power is balanced with responsibility and rights can be protected through fair process. The role of the advocate is to know the law and to use a broad skill base, including effective communication, to assist their clients.

2.9. At the outset – the initial client interview

Advocacy skills may involve speaking, acting or writing on behalf of an individual (or group) who has limited ability to exercise his/her rights. They include in court and outside of court advocacy skills.

To advocate effectively you need to have skills that help you to carry out a basic assessment of your client’s needs and whether they require special assistance.  Once you have done this you can analyse what law applies to their case and then move on to making a plan about how to best advocate on their behalf.

This initial assessment as to whether or not a person requires special assistance involves three steps:

1. Making an initial, preliminary assessment looking for warning signs using basic questioning and observation of the client. 
2. If doubts arise, seeking a clinical consultation or formal evaluation of the client’s capacity.
3. Making a judgment about their needs and take proper action to provide assistance.

It is important to recognise clients’ needs in order to represent and assist them in making informed decisions. Understanding the nature of the person’s vulnerability and their special assistance they require is essential to ensuring: 

effective representation of that person; 

the court is aware of the nature of their needs and level of vulnerability; 

ensuring the client understands court proceedings which is essential to obtaining proper access to justice and protect their rights; 

appropriate referrals are made to ensure they receive appropriate assistance  

In some cases those identified needs are quite simple like the need to make a phone call to a family or to have access to proper clothing in custody however, they are essential for a person who is in custody. Sometimes clients are on medications and they need access to their medicine or they suffer physical disability and need proper instruments. 

On the other hand, some clients have more complicated needs in particular if their mental capacity is in doubt and they are not able to indicate what they want to achieve. There are some general warning signs that point to the need for further investigation but they are not exhaustive and should not be used as grounds for a definite diagnosis.^[1] These include:

• A client demonstrates difficulty with recall or has memory loss
• A client has ongoing difficulty with communications
• A client demonstrates a lack of mental flexibility
• A client is disoriented
• A client is in hospital or a residential aged care facility when instructions are taken
• A client is accompanied by many other friends, family or carers to interviews with the solicitor but is not given the chance to speak for themselves
• A client shows a limited ability to interact with the solicitor
• A client shows a limited ability to repeat advice to the solicitor and ask key questions about the issues

If you recognise any of these factors are present then this will help to inform you about how you can best communicate with the client, who you may need to refer them to and exactly how to develop an advocacy plan that will best meet their needs. 

There are a number of other techniques that advocates can use to provide a comfortable environment for clients. This will help to maximise their ability to understand the discussion and to accommodate any disabilities or impairments they may have. These include giving clients more time to read documents, putting a client at ease and providing aids where the client has hearing or vision impairments, support persons or interpreter. 

2.10. Research Client Rights

Once you have conducted your first client interview you should have a much clearer picture about what the legal issue is and what steps need to be taken to assist them. An important thing to always consider when you are looking at the law is what human rights are relevant here. Different cases will require you to consider different types of human rights.

For example, are we concerned about:-

• Child protection 
• Protecting someone from being intimidated or put in fear
• Procedures relating to communication 
• Court procedures 
• Police Powers
• Access to information

Understanding the relevant law that applies in your client’s case will put you in the best position to assist them.

Issues you will need to consider include:

Can they take their case to court? 

Who is the other party? 

Do we need to write a letter? 

Do we need to file documents? 

Do we need to negotiate? 

Who has the power to help us? 

Who is making decisions that affect our client? 

Thinking about all these questions will help you to better understand who you can help you client exercise their rights. 

3. Case Study : Criminal Case

At the heart of our common law is a person’s right to refuse to answer questions put by people in authority, and to refuse to accompany those in authority to any particular place unless they have been formally arrested. Those rights, however, can be, and have been, eroded by laws made in parliament. Police powers have been extended by legislation, and a complex set of rules has evolved in an effort to strike a balance between protecting people’s rights and liberties and ensuring effective law enforcement.

The following section details some of the issues and relevant laws that may apply in a criminal case to assist an advocate in working out how to help a client protect their rights.

3.1. Limitation on police power before arrest

There are no special provisions in the Crimes Act 1914 (NSW) or Evidence Act 1995 (NSW) requiring Aboriginal people under arrest to be treated any differently when being interrogated by police. NSW police powers to arrest, detain, search and issue directions are generally the same for Aboriginal people as they are for non- Aboriginal people (Crimes Act 1900 (NSW), Pts 10, 10A and 10B). However, each State and Territory has related legislation in this regard. In NSW, Law Enforcement (Power and Responsibilities) Act2002 (NSW) (LEPRA) contains specific limitations on police powers to arrest, detain, search or issue directions. 

Some of the limitations in relation to Aboriginal people are: 

1. An Aboriginal person who has been arrested can be detained for questioning for up to two hours. This may be extended to eight hours, with a magistrate’s approval, if the offence being investigated is punishable by imprisonment for more than 12 months.
2. The investigating police must notify an Aboriginal legal aid organisation when an Aboriginal person is arrested. The person is entitled to have a legal practitioner present to give advice during questioning. 
3. If the person is arrested more than once in 48 hours, the investigation period for each arrest is reduced by the period of the previous investigations. 
4. At the end of the investigation period the person under arrest must be released, either unconditionally or on bail, or brought before a magistrate as soon as practicable. 
5. A person who has not been arrested may not be detained against their will. 
6. The person being investigated must be cautioned, in a language in which they can communicate with “reasonable fluency”, that they do not have to say anything during questioning. In some circumstances an interpreter is needed. The person must be told of their right to communicate with a friend, relative or lawyer, and be allowed to do so. If practicable, the caution should be recorded. 
7. An Aboriginal person under arrest is entitled to have a friend or support person present during questioning

Prior to arrest, police officers have the power to demand the name and address of any person: 

in relation to certain motor traffic and drug offences

where the police hold a reasonable suspicion that the person: 

was a witness to a crime 

has stolen goods in their car 

has a dangerous implement, or 

possesses or is consuming alcohol in a public place.

3.2. At the police station

A person who has been arrested will be taken to a police station. Then a custody manager (a senior officer) gives the person a form explaining their rights and advising (cautioning) them that they are not obliged to answer questions. At this stage the police must tell the person why they are being detained; give the person the opportunity to get legal advice (either at their own expense or, if appropriate, from the Legal Aid Commission or the Aboriginal Legal Service); and give the person the opportunity to communicate privately with a friend or relative. The only time police may not permit communication is where there is a reasonable fear that it might lead to an accomplice escaping or evidence being destroyed.

Police have the power to detain a person, who is lawfully arrested, for the purpose of investigation for a “reasonable time”. The matters to be taken into account in determining what is a “reasonable time” are set out in the act. The maximum time period which a person in NSW can be detained is 4 hours, unless a warrant is granted to extend this time period for up to an extra 8 hours. 

The LEPRA allows police to detain a person found intoxicated in a public place who is behaving in a disorderly manner, or is likely to cause injury or damage property, or is in need of physical protection. People may be detained for up to eight hours in a police station, but must be released earlier if they cease to be intoxicated, or a responsible person is prepared to care for them. There is no court appearance since drunkenness is no longer a criminal offence. 

There are time periods which are to be disregarded when calculating what is a “reasonable time” and these include things such as arranging equipment for investigation, communicating with friends, relatives or lawyers.  There are a whole range of other “time-outs” which are listed in section 117 of the Act. 

Any detention after arrest is to be counted towards any future  sentence a person is to serve. 

Part 9 also sets out the nature of the cautions which must be given and information regarding a person rights in custody (s122) as well the following rights/matters: 

Right to communicate with friend, relative, guardian or independent person and Australian legal practitioner (s123)

Right of foreign national to communicate with consular official (s124)

Circumstances in which certain requirements need not be complied with (s125)

Provision of information to friend, relative or guardian (s126)

Provision of interpreter (s128)

Right to reasonable refreshments and facilities (s130)

As soon as the detention period is over the person must be: 

• released, or 
• taken before a magistrate to be formally charged, or 
• given a court attendance notice and police bail (see Bail section below). 

Additionally, the LEPRA Regulation set out in r.33 extra provisions for Aboriginal and Torres Strait Islanders person as follows:

Legal assistance for Aboriginal persons or Torres Strait Islanders

 (1)  If a detained person is an Aboriginal person or Torres Strait Islander, then, unless the custody manager for the person is aware that the person has arranged for a legal practitioner to be present during questioning of the person, the custody manager must:

(a)  immediately inform the person that a representative of the Aboriginal Legal Service (NSW/ACT) Limited will be notified:

(i)  that the person is being detained in respect of an offence, and

(ii)  of the place at which the person is being detained, and

(b)  notify such a representative accordingly.

If a person who has been arrested doesn’t want to say anything to police, this attitude should be made clear and never changed. Name and address should be stated, and every other question answered with words such as “I do not want to say anything at this stage”. There should be no change to this reply, even if the police ask about the reason for this attitude. 

It may be in the interests of a person who has been arrested to make a statement or participate in a recorded interview, if there is a valid explanation for the behaviour in question (for example, in the case of a charge of theft, if the owner’s consent had been given). Whatever the circumstances, it is important to seek legal advice before making a statement.

3.3. Forensic Evidence

Forensic Evidence

There become a time where a person in custody might be required to give forensic evidence. Following the introduction of the Crimes (Forensic Procedures) Act 2000 (NSW), there are clear rules as to how police may obtain bodily samples for forensic purposes. A distinction is made between intimate and non-intimate procedures. 

Non-intimate procedures 

A non-intimate sample might consist of: 

• fingerprints
• hair 
• nail scrapings 
• body moulds 
• photographs (s 3(1)). 

A non-intimate procedure can be carried out under an order from a senior police officer (Crimes (Forensic Procedures) Act 2000 (NSW) s 17).

Intimate procedures 

An “intimate forensic procedure” includes: 

• examination of the genitals 
• taking a sample of blood, saliva or pubic hair 
• taking dental impressions (s 3(1)). 

To carry out such procedures the police officer must have either: the consent of the person from whom they wish to obtain the sample, or a court order (ss 7, 22). A sample that has not been obtained in accordance with the Act is not admissible as evidence in court (s 82). 

Intimate procedures and Aboriginal people 

If the police wish to carry out an intimate procedure on an Aboriginal person, an interview friend (a support person chosen by the person) must be present when the person is asked for their consent, unless they have expressly and voluntarily waived their right to have an interview friend present. The police must also inform the person that the relevant Aboriginal legal service will be notified of the proposal to ask for consent (s 10). An interview friend or legal representative must be present when the procedure is being carried out on an Aboriginal person (s 55).

Reasons for the provisions 

The special provisions in relation to Aboriginal people arise in part from an inquiry by the NSW Legislative Council Standing Committee on Law and Justice into the Crimes (Forensic Procedures) Act 2000 (NSW)  . The Aboriginal and Torres Strait Islander Commission and the NSW Aboriginal Land Council made submissions to this inquiry, pointing out that bodily samples are used by Aboriginal people for spiritual purposes and as a result Aboriginal people may be particularly reluctant to give such samples.

3.4. Bail

Bail is the authority to be at liberty for an offence until the proceedings for the offence finish. Bail can be granted to any person accused of an offence or where a person is required to appear in court as a witness but has been arrested to secure their attendance. Whether or not bail is required at all, whether it will be granted, and any conditions that are to apply, are decided soon after the person has been charged, first by a police officer and later by a court. Subject to certain conditions that decision can be revisited or appealed. 

Once granted, bail continues until revoked or varied. If bail is granted to a person in custody they are released once any pre-release conditions are met. The right to bail is dealt with in the Bail Act 2013 (NSW). Section 17(3)(j) of the Bail Act 2013 (NSW) requires the bail authority to take into account any special vulnerability or needs the accused person has being an Aboriginal or Torres Strait Islander when considering bail.^[1]

3.5. Seeking Assistance

A good advocate can identify relevant personnel or agencies who can assist them. This is often a government department such as the Police, Immigration or Child Protection departments. Personnel from within these departments are always a good place to start so that you can find out as much information you can about the case, and potentially do some negotiation at an early stage. It may be that your client is already engaged with a number of services and this is relevant to your advocacy strategy. You may need to call a Police Officer, a case worker or probation and parole officer. You may need to write a letter to a Departmental Representative or a psychologist or Youth Worker. You may need information or you may need to request a letter of support. In some cases a Department representative may not be aware of the services your client is working with. If you get support letters and share them this may help to change their view about an issue in dispute. 

It may also be important to make an appropriate referral for your client to another service. This may be a support service such as a counselling or some other specialist service. In some cases it may be another legal service. 

4. Aboriginal Legal Services

Aboriginal legal services were established in the 1970s. The ALS offers free legal advice and representation for Aboriginal and Torres Strait Islander people. ALS lawyers work in the areas of criminal law, family law and children’s care and protection law. For civil law matters they give information and referrals to other service providers. There is no means test except for contested family law hearings.

In 2006 the six Aboriginal legal services in NSW and ACT were amalgamated to form a single service, called the Aboriginal Legal Service (NSW/ACT) Limited (ALS), which continues to be an Aboriginal community controlled organisation. There are 23 offices in NSW and ACT in metropolitan and regional areas.

5. The Provision of Legal Information to the Client

It is imperative to understand what outcomes the client believes can be delivered as well as their expectations. It is also imperative the client understands what expectations their lawyer may have of them, and what they will be required to do to ensure their matter progresses satisfactorily. Once a common understanding is reached a strong communication relationship can begin.

The following list provides communication recommendations specifically for lawyers interacting with clients. These involve the following:

1. Keep up regular communication with clients – notify them of any developments and updates to progress. 
2. Make every effort to explain things clearly.
3. Legal terms and processes that are common to lawyers but foreign to most clients may need to be explained. Seek feedback that demonstrates clients have understood key terms or processes.
4. Establish practice management systems that enable efficient procedural responses to queries and complaints. 
5. Keep all matters confidential and refuse to act for anyone else if doing so may compromise that confidentiality. 

Effective communication also involves being considerate of a client’s concerns and priorities and practising good management and administration.

It is important that your client is given accurate legal advice and information about their options so that they can make an informed decision, and provide their lawyer with instructions on that basis. Legal advice includes information about what laws apply, and what a person’s rights and responsibilities are in a particular situation. It may be that a lawyer provides a combination of written and oral legal advice to assist a person in making a decision. 

Depending on the type of case there may be a range of advocacy options available. For example:-

A lawyer may firstly try to negotiate on behalf of their client to resolve a matter without the need to go to court. 

In other cases, mediation, family dispute resolution or conciliation may be an option. Obviously there are some cases where the case must be resolved in court. 

There are also options available during a court case. The client must clearly understand their rights and different strategies available so that they can instruct their lawyer about how they want their case run. 

It some cases it may be appropriate to write a submission to a government department. This can be done on behalf of an individual or in some cases it may be on behalf of a group of affected people. 

In some cases there may be an issue that arises in relation to a conflict of interest. Usually this matter is resolved at the beginning of a case when an organisation first agrees to assist a person. However, there are some cases where a conflict of interest arises after the first meeting or whilst the case is on foot. If this happens it is very important that this information is clearly communicate to the client and an appropriate referral is made so that they can access assistance from another legal service. 

There are other situations where it may be appropriate to refer your client to another service who may be better placed to assist. It may be that they have special needs or vulnerabilities. It may be that the organisation has specialist skills that can best help your client. For example:- 

• Your client may have a mental health problem and need assistance from a specialist service before you can help them.
• You may need to refer you client to a counselling service or domestic violence support service.
• The Australian Human Rights Commission might be in a better place to conciliate a Disability Discrimination matter. 
• Your client may need to detox from drugs or alcohol before they can provide instructions and properly understand your legal advice. In which case a referral to an appropriate service is required. 
• Your client might feel comfortable engaging with Indigenous Service providers. 
• Your client may be a juvenile and need to be referred to some youth services. 
• A homeless client will need to be referred to some crisis accommodation services. 

In each of these examples you would need to explain your concerns with your client and provide them with the information about the referral service. They may or may not wish you to make the referral. In your discussion with them you need to reiterate your confidentiality obligations and seek permission to disclose any information and to act on their behalf in any way. Once you have made the referral make sure you provide your client with all the important information they will need to follow up on the referral. 

6. Advocating on behalf of the client

Once you have met your client and identified their needs you will need to think about the best advocacy strategy or plan you can put in place to assist your client. As already mentioned, you may need to draw on resources from both inside and outside your office. In many situations you will find that there are many relevant stakeholders, organisations or individuals who may end up playing an important part you achieving your advocacy goals. 

You may need to convene a staff meeting to brainstorm what the best way is to approach the case. By doing this you can discuss ideas, the law and your client’s instructions with your colleagues. They may have some suggestions or experiences that can help you with our case and / or you may decide to collaborate and work together on a case. 

You may need to contact support services, institutions, family or the employer of your client. They may have important information that could help your client. They may be able to give evidence in a court case or prepare a support letter. A support letter may be helpful in a court case but it may also be an essential part of a negotiation process. Remember you must make sure you have asked your client for permission before you contact anyone on their behalf. It is best to get written permission. Usually your employer will have some pro forma consent documents ready for your client to sign. It is a good idea to have this at hand and get them signed at your first client interview. It is also important to be clear about the scope of the authority your client has given you. For example, they may give you permission to contact their employer but they may not want you to disclose any material detail about their case. You must ensure you comply with all your ethical duties at all times, especially relating to maintaining client confidentiality. 

Your client’s legal issue will play a big part in shaping the kind of advocacy plan that is appropriate. 

For example:-

• If your client is on remand waiting for a trial in their District Court you would expect that a key part of your advocacy plan will relate to the running of the trial. It may be that you need an interpreter to do your job properly. You would need to be open to negotiating with the Police and / or DPP. Some custodial issues may also arise that require your attention. 

• If your client has drug and alcohol addiction issues and some other legal issues you would expect to refer them to some support services as part of your advocacy plan. In many cases you may not be able to get reliable instructions until the person gets some help and is sober. 

• If your client is a victim of domestic violence you would expect to provide them with legal advice around obtaining an AVO. You may refer them to the police and specialist Domestic Violence or Counselling Services. You may write a letter to these support services providing them with important background material and a case history.

• If your client is a concerned grandmother of a five year old who is state care you would expect to provide her with some general advice. You would need to get information from her about which departmental office is involved and you would need to locate the caseworker to get some of the preliminary information to start making an advocacy plan.

• If your client comes to because they feel they have been discriminated in the workplace based on their disability you would expect to give them some general legal advice about their options. You may end up referring them to the Australian Human Rights Commission. 

As you can see, in each of these cases a slightly different approach is required. The common theme is that issues are often complex and require a multi-faceted approach to be effectively resolved. You will need to engage with different government personnel, organisations and individuals. In some cases, a client’s family may be heavily involved. 

Legal problems generally take some time to resolve, sometimes months and years. For this reason it is really important to maintain good communication with your client and provide them with updates about the progress of your advocacy initiatives and their case. This can be done verbally (documented with a file note) or via letter. A mixture of both forms of communication may be appropriate in some cases. There will be some clients who have literacy issues, so you will need to ensure you keep this in mind and preference verbal communication. 

7. CHCCOM002 Use communication to build relationships

This unit describes the skills and knowledge to apply specific communication techniques to establish, build and maintain relationships with clients, colleagues and other stakeholders based on respect and trust.

This unit applies to work across a range of workplace contexts where workers at all levels may communicate with individuals and/or groups both in person and in writing. 

7.1. What is communication? Why is it important?

We use communication skills in our everyday life. Sometimes we are unaware that we are communicating, as we use both verbal and non-verbal communication skills. 

Communication helps us to say something, tell someone something, ask for some information or to get an idea across to someone else. It can also help us to understand what the other person is saying to us, what they need us to understand. 

Communication is a two-way street. Effective communication often requires both parties to be actively engaged in the process.

In the context of Advocacy, communication is an essential part of your work. You will need to effectively communicate with a range of people, including:

Your client

Court personnel

Departmental personnel

Your colleagues

Service providers 

Counsellors

Police Officers

Lawyers

Family members

Each situation will require you to draw on different communication skills. Think about who your audience is and ask yourself:

What do they need? 

Why are you communicating with them? 

What are you trying to achieve? 

Do you need more information? 

Where can you find that information? 

Do you need to speak to someone? 

Do you need to write to someone? 

What law is relevant? 

What human rights are relevant? 

What assistance do they need?

Thinking about all these questions will help you to target your communication so that you can achieve your goals, and ultimately assist your client with their goals. 

The following section of this Learner Guide provides further information on communication.

7.2. Making a great first impression

It takes just a quick glance, maybe three seconds, for someone to evaluate you when you meet for the first time. In this short time, the other person forms an opinion about you based on your appearance, your body language, your demeanour, your mannerisms, and how you are dressed. 

With every new encounter, you are evaluated and yet another person's impression of you is formed. These first impression can be nearly impossible to reverse or undo, making those first encounters extremely important, for they set the tone for all the relationships that follow. 

So, whether they are in your career or social life, it's important to know how to create a good first impression. The following are some useful tips to help you do this. 

Be on Time

Someone you are meeting for the first time is not interested in your "good excuse" for running late. Plan to arrive a few minutes early. And allow flexibility for possible delays in traffic or taking a wrong turn. Arriving early is much better that arriving late, hands down, and is the first step in creating a great first impression. 

Be Yourself, Be at Ease

If you are feeling uncomfortable and on edge, this can make the other person ill at ease and that's a sure way to create the wrong impression. If you are calm and confident, so the other person will feel more at ease, and so have a solid foundation for making that first impression a good one. 

You can explore your own relaxation techniques to find out how to calm that adrenaline!

Present Yourself Appropriately

Physical appearance matters. The person you are meeting for the first time does not know you and your appearance is usually the first clue he or she has to go on. But it certainly does not mean you need to look like a model to create a strong and positive first impression. 

The key to a good impression is to present yourself appropriately. They say a picture is worth a thousand words, and so the "picture" you first present says much about you to the person you are meeting. Is your appearance saying the right things to help create the right first impression? Start with the way you dress. What is the appropriate dress for the meeting or occasion? In a business setting, what is the appropriate business attire? And ask yourself what the person you'll be meeting is likely to wear. 

For business and social meetings, appropriate dress also varies between countries and cultures, so it's something that you should pay particular attention to when in an unfamiliar setting or country. Make sure you know the traditions and norms. And what about your grooming? Clean and tidy appearance is appropriate for most business and social occasions. 

Appropriate dressing and grooming also help you feel "the part", and so feel calmer and more confident. Add all of this up and you are well on your way to creating a good first impression. 

A Word about Individuality

The good news is you can usually create a good impression without total conformity or losing your individuality. Yes, to make a good first impression you do need to "fit in" to some degree. But it all goes back to being appropriate for the situation. If in a business setting, wear appropriate business attire. If at a formal evening social event, wear appropriate evening attire. And express your individuality appropriately within that context. 

A Winning Smile!

There is nothing like a smile to create a good first impression. A warm and confident smile will put both you and the other person at ease. So smiling is a winner when it comes to great first impressions. But don't go overboard with this – people who take this too far can seem insincere or can be seen to be "lightweights." 

Be Open and Confident

When it comes to making the first impression, body language as well as appearance speaks much louder than words. Use your body language to project appropriate confidence and self-assurance. Stand tall, smile (of course), greet with a firm handshake. All of this will help you project confidence and encourage both you and the other person to feel better at ease. Almost everyone gets a little nervous when meeting someone, which can lead to nervous habits or sweaty palms. By being aware of your nervous habits, try to keep them in check. 

Small Talk Goes a Long Way 

Conversations are based on verbal give and take. It may help you to prepare questions you have for the person you are meeting for the first time beforehand. Or, take a few minutes to learn something about the person you meet for the first time before you get together. Is there anything that you know of that you have in common with the person you are meeting? If so, this can be a great way to open the conversation and to keep it flowing. 

Be Positive

Your attitude shows through in everything you do. Project a positive attitude, even in the face of criticism or in the case of nervousness. Strive to learn from your meeting and to contribute appropriately, maintaining an upbeat manner and a smile. 

Be Courteous and Attentive

It goes without saying that good manners and polite, attentive and courteous behaviour help make a good first impression. In fact, anything less can ruin the one chance you have at making that first impression. One modern manner worth mentioning is "turn off your mobile phone". What first impression will you create if you are already speaking to someone other than the person you are meeting for the first time? Your new acquaintance deserves 100% of your attention. Anything less and you'll create a less than good first impression. 

7.3. Communicating effectively with clients and co-workers

Creating and nurturing a strong rapport with a client is key to the ongoing relationship. 

Listed below are 8 Steps for consideration:

1. Research the client. Learn about the client. Look into the history of the client, the current issues, and the names of key stakeholders and other contacts..

2. Identify client needs and wants. This is accomplished by employing the dual processes of interacting with the client while also making use of background research. Using both approaches makes it possible to meet identified needs while anticipating future needs and presenting the client with a solution. 

3. Maintain multiple lines of communication that the client may use.  Multiple options means that clients who do not care for telephone calls and prefer the convenience of communicating via email or texting can participate in ongoing interaction on their terms. 

4. Provide full disclosure when interacting with a client. This means focusing on providing a complete answer in response to customer queries and concerns. Be honest in those communications and set reasonable expectations for getting back to clients if you need to do some research before making a response. Doing so leaves the impression that what the client thinks matters greatly and that the client is in fact your priority. 

5. Actively seek client feedback. Always listen carefully and respond in a manner that lets the client know you understand the suggestions or critiques that have been offered. Thank the client even if the comments are negative. 

6. Avoid arguing with a client. Even if the client is operating under a false assumption or incomplete information, acknowledge that you understand what the client is conveying. Repeat the key points and ask if you have grasped the particulars properly. Then set a specific date and time to get back to the client with answers. This makes it possible for the client to feel that he or she has been heard and helps to set reasonable expectations for some type of resolution to take place. 

7.  Use the client’s name in all types of communication.   The salutation should always reflect the preferences of the client. This means that if the client prefers to be addressed with the use of a title and a surname that is the approach you will use. Only use first names if the client has given permission to do so. 

8.  Be honest with the client at all times. Attempts to earn trust by making commitments that cannot be kept will only hurt the client relationship. As the client grows to trust your honesty and integrity, the relationship will deepen over the years, and be of great value to everyone concerned.

7.4. Conducting interviews

There are three key steps for conducting a client interview:

Explain the purpose and format of interview to the client 

Following statutory and workplace guidelines when conducting a client interview- confidentiality and conflict of interest[1]

Record client responses in an appropriate format

Explain the purpose and format of interview to the client 

When a lawyer first meets a client, he/she needs to interview the client and gather facts about their problem in order to understand the client’s needs and assist the client in making an informed decision. Interviews with client’s will be vital in obtaining information necessary to prepare their legal proceedings, inform clients of court procedures and respond to any questions or concerns the client may have regarding their circumstances. 

The structure of an interview can vary. It can range from an informal first point of contact to a relatively formal meeting. Your interview may also vary in nature, from meeting with a client in person, to speaking with a client over the phone and what is becoming increasingly popular, interviewing a client via video conference. Regardless of the nature of formality of the interview, it is of upmost importance to ensure the client feels comfortable. Building rapport is essential, and first impressions are very important. It is necessary to gauge how you will structure the interview based on the needs of the client, which is particularly relevant for Indigenous clients.

Following statutory and workplace guidelines 

Client interviews must be conducted bearing in mind principles of confidentiality and conflict of interest. It is essential these principles are explored and where necessary explained to the client before or at the commencement of any legal interview. 

Dealing first with confidentiality, lawyers generally cannot be forced to disclose information which has been communicated, orally or in writing, for the ‘dominant purpose’ of giving or obtaining legal advice. There is also the client’s legal professional privilege. The principle of legal professional privilege is designed to promote the right of a client to communicate with a lawyer for the ‘dominant’ purpose of obtaining advice in relation to legal or administrative proceedings. It is intended to create an environment in which clients will give a full and frank disclosure of all the circumstances of the situation. 

However, there are exceptions to this duty of confidentiality. Lawyers are required to disclose information where:

communication is made by the client to the solicitor for the purpose of being guided or helped in committing a crime; or 

there is a duty under legislation or common law to disclose information (for example, search warrants).

Another important principle of legal representation is that legal practitioners must seek to avoid representing a client where to do so would give rise to a ‘conflict of interest’. A conflict of interest would exist where a legal practitioner’s duty to one client conflicts with their duty to another (as distinguished from a conflict of interests between the solicitor and client). Generally, the rules of courts require that parties who are in conflict with each other have separate legal representatives. A conflict of duty can arise in a range of situations and works against the lawyer’s duty to use all the relevant information to further the interests of one client while maintaining the confidentiality of another. Conflict of duty issues can be a serious problem in country areas, where there is sometimes only one solicitor available and often results in one of the clients having to find legal advice in another town.

A conflict of interest can also arise in relation to a previous client. Solicitors have an obligation not to breach the confidentiality of a prior client. This can be a problem in large firms and because practitioners commonly move between firms. Some firms have developed the concept of ‘Chinese walls’, or ‘information barriers’ whereby procedures are established to prevent information held by one solicitor being communicated to others in the office. Courts have not always accepted this as a legitimate means of avoiding a conflict of interests. 

Also, a solicitor should not act for a person if they themselves have a particular interest in a matter, which they could put before their duty to act in the best interests of their client.

Record client responses 

It is important to take notes about important details throughout the interview, but not write down everything the client says. Names and dates are often important to write down as the client is talking given that they can be easily forgotten or confused over time. However, the interviewer must remain focused on the client, with their head up and keeping eye contact (if appropriate). After the conclusion of the interview, the interviewer can then include more detail in their notes while all of the information is still fresh. You may also consider at times video or voice recording an interview with a client, but these are less commonly used techniques and would certainly require permission.

In some circumstances, to properly prepare for a court case, it may be necessary to take a formal statement from the client in which the client’s version of events is recorded word for word and the client signs the statement as a true record of their instructions   

7.5. Giving feedback and advice

An essential skill of a legal practitioner is being are able to identify the nature of the client’s problem, and what area of law it falls into e.g. civil, family, or criminal. A practitioner should have an approximate idea following the initial interview with the client. After the client has provided the practitioner with all of the relevant information, the practitioner will explain the next steps in the process before the conclusion of the interview. This is dependent on what area of law their matter will come under. 

Further steps taken by the practitioner may range from informing the client that the practitioner will discuss their matter with an instructing solicitor, or other relevant personnel. The practitioner may, if appropriate, also remind the client that their next court appearance is on a specified date. The practitioner may request the client to return with more information or specific documentation. Finally, the practitioner will provide the client with their business card and letting them know that they will contact them within 7 days, or for the client to call if they have any questions or have any information to add. 

More on debriefing the client after an interview

Debriefing a client after interview is essentially explaining ‘where to from here?’ After the client has provided the interviewer with all of the relevant information to take preliminary instructions with, the interviewer will explain the next steps in the process before the conclusion of the interview. In a criminal context, this may be ensuring that a client is aware of their current bail conditions, or what would happen if they breached bail. The practitioner may explain what is likely to happen at the next court date and the approximate time frames for proceedings.

Additionally, the interviewer will inform the client what steps they will take on behalf of the client. Such as, they may discuss their matter with an instructing solicitor, or other relevant personnel. If relevant, they may organise rehabilitation services or liaise with a psychologist. Moreover, the practitioner will indicate anything the client needs to do for them, such as complete an application form, send through relevant documents, contact any particular services, or to come into the office for a further appointment at a given time. 

7.6. Demonstrating respect

Communicating with Aboriginal people

From: I tried to tell them: criminal law multi-media training kit^[1]

Lawyers are trained in the adversarial method of seeking information: asking direct and specific questions and expecting – indeed, demanding – direct and specific answers. However, when a lawyer needs to obtain information from an Aboriginal person, it will need to be in a way that which acknowledges Aboriginal cultural approaches to obtaining information, which tend to be in a way indirect means rather than by a confronting style of questioning. 

• Establish trust – take time
• Silence as part of the process
• Direct eye contact is discomforting
• Is the person ‘bicultural’
• Aboriginal English
• Interpreter needed?
• Ask questions indirectly

Respect and Sensitivity^[2]

Respect is very important in every social structure in Aboriginal communities. Respect for Elders, the land, animals and ancestors are fundamental aspects of Aboriginal culture.

Be sensitive to the use of nonverbal communication cues which are a part of Aboriginal communication patterns. The use of silence does not mean Aboriginal people do not understand, they may be listening, remaining non-committal or waiting for community support.^[3]

7.7. Communicating with clients with disabilities

Source: Ontario Education Services Corporation. (n.d.). Tips on Serving Customers with Disabilities. Retrieved from http://www.alcdsb.on.ca/aboutus/pdf/accessibility/accessibilitytipbooklet.pdf accessed 4/8/14 

7.8. If communication breakdown occurs

If you experience communication breakdown with a client, that is you can no longer communicate effectively with that client, it is often appropriate to consider referring them to an alternative staff member. Communication breakdowns can occur for any number of reasons. You may be finding it difficult to contact a client by any means (e.g. phone, e-mail, mail, etc.), you may have had a disagreement with a client who no longer wishes to talk to you or alternatively your organisation may not be able to do exactly what your client expects but the client blames it on yourself. In any event, often a client might respond better if referred to an alternate staff member who may be in a better position to build a positive rapport. This may not always be possible, then you must do your best to personally respond to the concerns of the client and find a way to defuse the communication breakdown. This is often achieved by making the client feel heard, like the client is a name not just a number.

In certain circumstances you may not be able to mend the relationship with a client. In the event of a complete communication breakdown ensure you provide the client with sufficient information to engage any alternative service that may be able to assist them with their problem/s.

When it comes to communicating with both staff and clients, you should always respect and consider any difference in views in a way that values and encourages their contributions equally 

7.9. Ensuring communication represents the organisation

Presenting a positive image of your organisation[1]  

It is very important that you represent your organisation in a positive way at all times. This is particularly important if you are a key service organisation, as the organisations members and community need to have confidence and trust in you - the people who protect their community.

The first thing you can do in order to represent your organisation in a positive way is to be professional. The public will expect to see you dressed in a certain way; for example, if your organisation has a uniform you will need to be wearing it correctly at all times when representing your organisation in public. 

You will need to follow the organisation’s procedures on addressing people, distributing information, answering the telephone, etc.

It is important for you to realise that when you represent your organisation, you are representing the whole organisation. The way one person acts will reflect on the entire organisation.

Members will take notice and form judgments on the image you present. This includes taking notice of your attitude, appearance, facial expressions, the way you address people, tone of voice, courtesy toward others and your overall level of professionalism.

It can help if you: 

are sincere & helpful

use the person's name or title 

avoid sarcasm and flippancy

suppress temper outbursts

answer phone calls, emails, letters, etc promptly

make sure all equipment is in a clean and serviceable condition

be helpful when asked questions

7.10. Contributing to the implementation of effective communication strategies

Always keep in mind that the legal system is complex, and a client is often not as familiar with specific legal terminology and procedure. Therefore it is essential to continually clarify any advice given to the client, and ask questions to ensure that they are understanding the information provided. 

Another technique to ensure mutual understanding between interviewer and client is to repeat what the client has just discussed with you, such as ‘my understanding of your situation is x, y and z”. This technique is known as ‘active listening’.

Facilitating access to interpretive and translation services 

Most organisations you work in should have policy and/or procedures regarding the provision of services to culturally and linguistically diverse (CALD) clients. This is especially so in the case of clients not capable of communicating in English. There are people from many different cultures who speak many different languages living all throughout Australia. Each of these people will face legal dilemmas over the course of their lives. All people in Australia have the right to fair and equal access to services (whether it be legal or social services). This right of equal treatment has been entrenched in various pieces of state and Federal legislation (e.g. the Anti-Discrimination Act 1977 (NSW) and the Racial Discrimination Act 1975 (Cth)). 

In a legal context, all are equal before the Australian legal system. As such, courts all over Australia must have services appropriate to provide a fair and just experience for people of all genders, races, ages and people of any mental and physical capacity. In Ebatarinja v Deland (1998) 194 CLR 444 at 545 Gaudron, MgHugh, Gummow, Hayne and Callinan JJ (of the High Court of Australia) said that:

“on a trial for a criminal offence, it is well established that the defendant should not only be physically present but should also be able to understand the proceedings and the nature of the evidence against him or her,” and that “if the defendant does not speak the language in which the proceedings are conducted, the absence of an interpreter will result in an unfair trail.”[1]

The following information is useful for clients who have difficulty speaking English yet are engaging with the court system in NSW.[2]

Contacting courts or tribunals by telephone 

If you or someone you know needs an interpreter when you contact a court or tribunal, use the free Translating and Interpreting Service (TIS). Call 131 450 and tell them the telephone number you need to contact. An interpreter will call the number while you are on the phone and translate what the person on the line says to you. 

Need an interpreter for court? 

For some types of proceedings, the court or tribunal can arrange interpreters. The court or tribunal can also bear the costs of interpreters. Examples of matters in which the court or tribunal can arrange an interpreter include: 

Criminal proceedings 

Applications for an AVO; or breach of an AVO 

Administrative Decisions Tribunal proceedings 

Care proceedings in the Children’s Court

Proceedings in the Coroner’s Court

Proceedings in the Industrial Relations Commission

Appeals of any of these matters 

If you are not sure whether an interpreter can be arranged for you, contact the registry of the courthouse or tribunal which you will be attending. 

To request an interpreter, contact the relevant registry. If possible, do this at least one week before the date you need to attend court.  If you are in court or in a tribunal, tell the judicial officer that you need an interpreter. An interpreter will be arranged for your next court or tribunal appearance. 

Arranging your own interpreter 

For most civil proceedings, you must arrange and pay for your own interpreter. You can arrange an interpreter through the NSW Community Relations Commission Language Services Unit, or any accredited independent interpreting service. You can search for interpreters by language and location on the website of the National Accreditation Authority for Translators and Interpreters (NAATI). 

Interpreters for court and tribunal proceedings must have at least a Level 3 accreditation from NAATI. 

Translation services 

If you need documents translated for a court or tribunal matter, you can arrange a translator through the NSW Community Relations Commission Language Services Unit, or any accredited independent translator. 

The Department of Immigration and Citizenship provides a free translation service for non-English speaking people settling permanently in Australia. This service can be used only by eligible people in the first two years after entry to Australia. 

Provide coaching in effective communication 

How to influence others: Convincing others to say “Yes”

You've come up with a fantastic idea for a new project. Now you need to convince others to support it. So, how can you get everyone to support your idea?

Influencing others is challenging, which is why it's worth understanding the psychological principles behind the influencing process. 

Below are some principles for consideration:

Reciprocity

As humans, we generally aim to return favours, pay back debts, and treat others as they treat us. According to the idea of reciprocity, this can lead us to feel obliged to offer concessions or discounts to others if they have offered them to us. This is because we're uncomfortable with feeling indebted to them. 

For example, if a colleague helps you when you're busy with a project, you might feel obliged to support her ideas for improving team processes. You might decide to buy more from a supplier if they have offered you an aggressive discount. Or, you might give money to a charity fundraiser who has given you a flower in the street.

Commitment (and Consistency)

Psychologists say that we have a deep desire to be consistent. For this reason, once we've committed to something, we're then more inclined to go through with it.

For instance, you'd probably be more likely to support a colleague's project proposal if you had shown interest when they first talked to you about their ideas.

Social Proof

This principle relies on people's sense of "safety in numbers." 

For example, we're more likely to work late if others in our team are doing the same, put a tip in a jar if it already contains money, or eat in a restaurant if it's busy. Here, we're assuming that if lots of other people are doing something, then it must be OK.

We are particularly susceptible to this principle when we're feeling uncertain, and we're even more likely to be influenced if the people we see seem to be similar to us. 

Liking

We are more likely to be influenced by people we like. Likability comes in many forms – people might be similar or familiar to us, they might give us compliments, or we may just simply trust them.

Companies that use sales agents from within the community employ this principle with huge success. People are more likely to be influenced people like themselves, from friends, and from people they know and respect.

Authority

We feel a sense of duty or obligation to people in positions of authority. This is why advertisers of pharmaceutical products employ doctors to front their campaigns, and why most of us will do most things that our manager requests.

It is important for people to feel that you have some control over the situation and feel more secure in participating in a new project if you have support from authority figures in the community.

Scarcity

This principle says that things are more attractive when their availability is limited, or when we stand to lose the opportunity to acquire them on favourable terms.

When you're using approaches like those listed above, make sure that you use them honestly – by being completely truthful, and by persuading people to do things that are good for them. A good reputation takes a long time to build, but you can lose it in a moment!

How to Apply these Principles

You can use these principles whenever you want to influence or persuade others. 

First make sure that you understand the people in your audience and that you know why you want to influence them. 

Think about your ultimate objectives, and decide which principles will be most useful in your situation.

We will now explore some strategies you can use with each principle.

Reciprocity

To use reciprocity to influence others, you will need to identify your objectives, and think about what you want from the other person. You then need to identify what you can give to them in return.

Remember that you can sometimes use this principle by simply reminding the other person of how you have helped them in the past. 

Commitment

Here, try to get people's commitment early on, either verbally or in writing.  For example, if you're building support for a project, talk about ideas early on with stakeholders, and take their comments and views into account.

Social Proof

You can use this principle by creating a "buzz" around your idea or product.  For example, if you're trying to get support for a new project, work on generating support from influential people in your community. (These may not always be who you think they are!)  Encourage people to talk about it using social media. 

Liking

To build good relationships, ensure that you put in the time and effort needed to build trust and rapport with the people you wish to engage in your project and behave with consistency.

Develop your emotional intelligence and active listening skills, and remember that there is no "one-size-fits-all" approach when it comes to relating to others. 

Also, don't try too hard to be liked by others – people can always spot a phony!

Authority

Here you can use both your own authority, and the authority of others, as influencers.

When you use your own authority, be careful not to use it negatively. 

To use authority, get support from influential and powerful people, and ask for their help in backing the idea. 

Scarcity

With this principle, people need to know that they're missing out if they don't act quickly.

This principle can be trickier to apply within your community if you're trying to influence others to support your ideas or projects. You can, however, use urgency to get support for your ideas. 

For example, you can highlight the possible urgent consequences of the problem that your idea helps to solve.

The Six Principles of Influence were created by Robert Cialdini, and published in his 1984 book, "Influence: The Psychology of Persuasion."

7.11. Using specific communication techniques

Listening is one of the most important skills you can have. How well you listen has a major impact on your job effectiveness, and on the quality of your relationships with others.

We listen to obtain information

We listen to understand

We listen for enjoyment

We listen to learn

Listening Skills: obtaining all relevant information during client interview^[1]

Validate Feelings

Always deal with the emotions first. Sometimes people are overwhelmed by their emotions but are embarrassed at the same time. Make sure they know that you believe their emotions are valid. You may not agree with everything they are saying, but you can always acknowledge how they feel.

For example ‘I can see how much this has upset you’ or ‘I’m sorry this has been a terrible experience for you.’

Don’t try to give advice about what they should have done. This is not the time.

Reflect the fact

‘While they are telling you their story, take note of the main facts (who was involved, when and where did it happen).

Don’t worry about trying to get the facts straight until the person seems a little calmer – this will happen if they feel their emotions have been accepted as valid.

Once the person has calmed down – then you can try to get the facts of the matter straight. When they have finished with their story, go back over it with them, at first just focus on the main facts, leaving out all the extra detail that is not essential. ‘So, let’s go back, what happened was you…’

Later you will need to go over all the finer details to make sure you get the whole story correctly described. You may need to do this a couple of times before it is finished.  This is because when people are upset they often tell a story in a way that might leave important bits out. They may forget details or may be too embarrassed…’

Lots of detail will be irrelevant. Sometimes offensive behaviour may have been very upsetting but is not illegal. This may mean that nothing can be done, or it may just mean there are no legal tracks but there may be community and individual tracks that are worthwhile following.’

Keep a written record^[2]

‘One of the most useful things you can do is to help the Complainant write a detailed record of the whole story – particularly if you think it may involve legal tracks. It may not be appropriate to try to do this when they first come to see you, especially if they are distressed, but it is important to do it as soon as possible to make sure they don’t forget important details.’

‘It may help to get them to provide other details of the day when the incident happened, what the weather was like? How did they get to the place where the incident occurred, Did they drive? Who else was there? Questions like these will help the person remember the details of the incident.

When they describe the actual incident keep asking questions to fill in the detail. Who else was there then? Did they say anything?

When the whole story is written down, get the person to go over it again to see if they remember anything else.

When you have the full story, you can work through to see where the problems lie. They you can begin to work out what information you need and how you might solve the problem.

In communities where there is a pattern of problems with a particular person or organisation, for example a store or health clinic, it is very useful for someone, perhaps from a community organisation, to keep a regular record of incidents. Make a note of the date, what happened and who was involved. Even if some incidents seem petty it may become important later to establish an ongoing pattern of behaviour.’

Analyse the Problem

Once you know what actually happened, the next step is to analyse the incident to work out why this was a problem. It is important to find out what should have happened in order to be clear as to exactly what the problem is, and how it can remedied. Ask yourself:

What should have happened?

Were there any laws broken?

Sometimes it is not a matter of laws being broken, but that proper procedures were not followed.

Active Listening

Much of being a good listener and responding to client’s needs appropriately has to do with a skill known as ‘active listening’. 

…. Becoming an Active Listener[3]

There are five key elements of active listening. They all help you ensure that you hear the other person, and that the other person knows you are hearing what they say.

1. Pay Attention

Give the speaker your undivided attention, and acknowledge the message. Recognize that non-verbal communication also "speaks" loudly. 

Look at the speaker directly (if culturally appropriate).

Put aside distracting thoughts. 

Don't mentally prepare a rebuttal!

Avoid being distracted by environmental factors. For example, side conversations.

"Listen" to the speaker's body language.

2. Show That You're Listening

Use your own body language and gestures to convey your attention. 

Nod occasionally.

Smile and use other facial expressions. 

Note your posture and make sure it is open and inviting. 

Encourage the speaker to continue with small verbal comments like yes, and uh huh.

3. Provide Feedback

Our personal filters, assumptions, judgments, and beliefs can distort what we hear. As a listener, your role is to understand what is being said. This may require you to reflect what is being said and ask questions.

Reflect what has been said by paraphrasing. "What I'm hearing is," and "Sounds like you are saying," are great ways to reflect back. 

Ask questions to clarify certain points. "What do you mean when you say." "Is this what you mean?" 

Summarize the speaker's comments periodically

Tip:

If you find yourself responding emotionally to what someone said, say so, and ask for more information: ‘I may not be understanding you correctly, and I find myself taking what you said personally. What I thought you just said is XXX; is that what you meant?’

4. Defer Judgment

Interrupting is a waste of time. It frustrates the speaker and limits full understanding of the message. 

Allow the speaker to finish each point before asking questions.

Don't interrupt with counter arguments.

5. Respond Appropriately

Active listening is a model for respect and understanding. You are gaining information and perspective. You add nothing by attacking the speaker or otherwise putting him or her down. 

Be candid, open, and honest in your response. 

Assert your opinions respectfully. 

Treat the other person in a way that you think he or she would want to be treated.

‘It is important to know when it is necessary to refer a conflict to external dispute resolution bodies’

7.12. Facilitating discussions

When you are meeting with a client it is very important to ensure that the client feels comfortable and that they are in a safe environment. Often when meeting to discuss legal issues with a client they may be nervous. These nerves could be due to a lack of familiarity with the type of legal issues they are encountering, a lack of trust of authority (often in the context of criminal legal proceedings) or it may be due to the sensitive nature of the problems they are encountering. In any event, part of your role when providing services to a client will be to ensure you gain the client’s trust. This may take a little longer for some clients than others. This is why the first interaction with a client is extremely important. It is this initial meeting where the client will form their first impressions of your service and decide whether they can confide in you fully when discussing their problems. Building rapport by making a client feel safe, comfortable and like they are not only being heard but understood, is a good way of getting the client professional relationship off to a good start.

Once you have established a positive rapport with the client you can begin extracting the relevant information that you need in order to provide them an effective service. The best way to begin this process is often with open ended questions that allow the client to tell their story. You should not continually interrupt the client to clarify information. Rather take appropriate notes, engage in active listening and clarify any relevant information after you have given the client an opportunity to tell you everything they feel is important.

To enhance your client’s ability to fully explore all issues relevant to their problem/s, it is also important that you maintain continuing and open communication. Some clients may be overly demanding, wanting to speak with you everyday 2-3 times a day. Obviously this will not be possible and it is not fair to spend all of this time over-servicing one client if it is to the detriment of the service you are providing your remaining clients. Yet it will often be possible to maintain a sufficient level of communication with clients using a combination of phone conversations, letters and face-to-face meetings. This will often leave the client feeling that they are receiving an effective service and are able to discuss any important issues with you. 

7.13. Encouraging all group members to participate equally

Principles of Planning Group Activities

Participation in activities depends on reward

For the members to remain involved and interested over long period of time, they must receive satisfactory rewards. The two kinds of rewards possible are gratification of member’s need for such things as dominance, friendship, intimacy, opportunity to test ideas, and so forth; and satisfaction with group accomplishment of tasks.

Group works and employing energy on felt problems

The only matters on which group members will expand energy are those which they feel are problems, things about which they have feelings which they must deal with. Therefore, the survey of problems suggested by members is the starting point of the group activities.

Leadership is by team

Leadership is an important factor in group activities. This should be within the group. This kind of leadership encourages free expression of feelings and opinions and guides the group into action.

Membership should be based of willingness to work and not ideology

The basis of participation in group activities should be willingness to work in group. As long as there is willingness to work on problems ideological differences can be settled or avoided.

Activities should be problem centred

Members of the group must know that what, they are organising and doing, is for their welfare and for the solution of the problems.

Strategies for encouraging participation[1]

Within any large group of people you will generally find that there is someone who is quiet and keeps to themselves. This may be due to:

• the nature of the person
• a lack of confidence
• a lack of knowledge in the area being discussed
• them not being able to get a word in
• other members of the group being overbearing 

You will not always be able to get this person to be more involved, but there are a few things you can try to help encourage them to have input.

• Provide them with information on the subject prior to the meeting.
• Ask open questions to the whole group, but direct your eye contact away from those members who are constantly holding the floor.
• Manage discussions so everyone has the opportunity to have input.
• Speak to the person before and after the meeting to see if you can find out why they do not have input into discussions.
• Give that person a job in an area they know about and are confident in talking to others about.

7.14. Contributing to and following objectives and agendas

Writing agendas[1]

An agenda is more than just a list of 'things to do' or 'things to be dealt with.' The content of your agenda will depend on the type of meeting you are holding. All participants should have the opportunity to:

contribute to the agenda

include questions and concerns raised by the membership

consult with executive and chairperson

refer to the preceding meeting's business, including all those items which required follow-up.

When writing your agenda the order should be carefully planned. A well planned agenda can: 

provide a logical guide

bring harmony and efficiency to a meeting

help restrain participants from speaking out of context.

The content of your agenda should not be too brief or vague. It is useful to include a brief reason for why each topic has been included. The content of your agenda will vary depending on the type of meeting you are holding. 

Formal meetings: 

have more detail

use formal language

have a more structured layout

contain cross references to other meeting documents.

Less formal meetings: 

are more brief 

use less formal language 

could contain jargon and concepts specific to the meeting audience.

An agenda will usually contain:

welcome – general

apologies / attendance

minutes of previous meeting

correspondence

business arising

general business 

topics for information

general business 

topics for discussion / resolution

other business

next meeting.

An agenda may also contain:

suggested time allocations

possible draft motions

types of action required

responsible agents

additional space for notes.

When developing your agenda and getting it ready to print and distribute: 

use an easy to read font so users can see which items are most important

use a hierarchy of fonts

leave plenty of white space

limit the use of bold and italic text formatting

avoid the use of underlining

it may be useful to number the agenda items 

star items if necessary

provide an estimate of the time allocated

clearly write the commencement time, time of any known adjournment and the conclusion time

schedule breaks (morning tea, lunch).

Facilitating group discussions[2]

When facilitating group discussion in your meetings, consider the following:

outline the issues

clarify motions and amendments, especially after prolonged debate

guide and regulate debate

move the discussion forward

keep the group focused

progress through the agenda efficiently ensuring all items are covered

summarise progress at regular points during and at the conclusion of the meeting

put each question to a vote.

If things start to get a bit volatile and difficult, you should:

stay calm

focus on the facts

try to see both sides of the argument

never make personal comments

use humour sparingly

know the procedures

call for a break

if need be, close the meeting.

You should also be aware of non-verbal feedback. This may include:

where participants sit

who they sit with and who they avoid

how they sit (posture)

eye contact

gestures

fidgeting

wandering eyes

yawning

repeatedly glancing at clock / watch

frowns, scowls, grimaces, etc

shuffling feet 

throat clearing 

7.15. Engaging Facilitation Skills

DEMONSTRATING LEADERSHIP

            Letting the group know who’s in charge

Demonstrating leadership clearly identifies who will serve as the group leader and allows group members to know that someone is in charge who will provide guidance, support, and structure for the group. In many group settings, demonstrating leadership makes participants feel more comfortable, particularly when combined with an overview of the flow of the meeting or activity.

CREATING AN OPEN ENVIRONMENT

            Inviting people of be a part of the group

A primary task of a group leader is to welcome new members to the group and make them feel included. A facilitator needs to ensure that each member of the group is welcomed and feels that they will be a valued participant in the group’s activities. If a group member has a perception that everyone in the group knows the “secret handshake” and they are being excluded because they are not “in the know,” they will feel like an outsider and may be reluctant to participate.  A facilitator also must be aware of cultural differences between group members and actively work towards helping all members feel safe within the context of the group setting. 

ENCOURAGING CONNECTIONS

            Helping people get acquainted and connected

In order to feel connected to a group, participants need to get to know one another and see what they have in common. Each of us bring distinct backgrounds, interests, and values with us and will feel more comfortable in groups if we encounter similar others. In order to feel connected to a group, members need to get to know one another and see what they have in common. Unfortunately, similarities are not always readily apparent and part of group facilitation is making it easier for similar people in a group to find each other and to share their common ground in a way that helps them feel invested in the group.

BUILDING GROUP RAPPORT

Facilitating a sense of teamwork and unity

One of the challenges of being a group facilitator is creating camaraderie and good will within the group. As a result, a leader must encourage positive interactions that make the participants feel good about being part of the group. If each group member feels connected to only one other, a facilitator has succeeded at encouraging connections but has not yet built group rapport. Group rapport goes beyond individual social contact to create a bond between each member and the group as a whole.

DEFINING GROUP IDENTITY

Establishing the group purpose and personality

Every group has an identity and an atmosphere. A facilitator can set the tone for defining what the group is all about and what it will feel like to be a participant. Most individuals would only want to join a group if they knew the purpose of the group and what it would feel like to be involved. As a result, a key component of group identify is guiding the group in the establishment of a sense of purpose. At the same time, the facilitator needs to foster a “feel” or personality for the group that can be as important a part of its identify as its name or mission statement.

7.16. Informing Facilitation Skills

PROVIDING INFORMATION

            Presenting facts, resources, knowledge, theories, or data

One of the basic tools of group facilitation is providing the group with pertinent information that they do not already have. This information might include facts, resources, knowledge, theories, or data. However, this skill may not be as easy as it seems. A facilitator needs to make sure that they understand what information is necessary before jumping in with answers. Knowing something is only the first step in being able to teach it. 

Providing information puts the leader in an authoritative role that may detract from positive group dynamics or interactions. In addition, when leaders become less confident with their repertoire of diverse skills, providing information tends to be a fallback position. Facilitators need to be aware that providing information is one of many skills and should not be overused.

GATHERING INFORMATION AND EXCHANGING KNOWLEDGE

Asking questions, gathering data, surveying ideas, and encouraging the exchange of information

A facilitator often needs to collect information from the group participants. A group leader may assume that they know more than other group members.  Although this assumption often is correct, it may not always be helpful. The group may benefit if the leader looks to the group first to tap its collective wisdom. 

After gathering information, the facilitator may want to fill in the gaps with their own knowledge. Gathering information allows the facilitator to build group knowledge and to discover new ideas that they may not have considered. Encouraging group members to teach what they know is an important strategy to foster the exchange of knowledge between members.

CLARIFYING IDEAS OR CONCEPTS

            Making sure everyone is on the same wavelength

Clarifying ideas or concepts involves making sure that there is a common understanding within the group. Complete agreement may not be necessary, but as a group shares information and chooses a direction, the facilitator must confirm that all the group members understand what is being said or agreed on—that everyone is “on the same page.” 

CONCEPTUALIZING THE GROUP’S EXPERIENCE

Using outside formal concepts to describe what’s going on in a group

Being a facilitator sometimes involves using formal concepts to describe group processes as a way for the group to reflect on itself. Sharing models, theories, or other knowledge can sometimes help a group to understand itself, resolve problems, and make progress. 

Conceptualizing brings the group’s attention back to the leader. Therefore, a facilitator should carefully observe the group before addressing the group’s experience with outside knowledge. If a group leader can introduce theories, models, or strategies in a thoughtful way, this information can help move the group toward a higher level of understanding and performance.

PROVIDING FEEDBACK BASED ON OBSERVATIONS OF GROUP PROCESS

Sharing personal perceptions about group dynamics in order to facilitate awareness and change

Sometimes it is important for the facilitator to monitor group dynamics and inform the group about itself. One way that this can occur is for a group leader to provide feedback based on observations of group process. Group process refers to patterns of behaviour that occur in groups. For example, one member may dominate discussions, two factions may conflict, or the group may get distracted by trivial concerns. When a facilitator observes these (or other) group dynamics, they may find it helpful to share what they perceive in order to facilitate awareness and change.

8. NAT10861007 Utilise ethical standards when dealing with clients

This unit covers the skills and knowledge required to apply accepted codes of ethics and professional standards to daily work requirements. Ethical codes and practices are an integral part of work and life. An understanding of the basic principles and standards to abide by are necessary to maintain an effective relationship with clients and/or colleagues. 

8.1. Professional and ethical standards in legal representation

Lawyers and legal services have obligations to practice law according to certain standards with respect to their clients. Standards vary across states and territories of Australia, however there are a number of notable similarities. 

The major standards and points of legal professional responsibility to clients are:

1. Competence and promptness
2. Duty to account
3. Fiduciary duties
4. Confidentiality
5. Conflicts of interests
6. Duty to the Court

Competence and promptness

Competence: The general standard of care for those practising law is to exercise the care, skill or diligence which would be expected of a reasonably competent legal practitioner under similar circumstances.

Promptness: Unreasonable delay can amount to professional misconduct. The reason it can lead to misconduct is because it causes unnecessary expenses for the other side, which is unfair and against the public’s interest.

Duty to account

A major source of complaints against lawyers by clients is a failure of communication. In many circumstances this involves lawyers not being courteous and failing to communicate or follow instructions. 

A lack of communication can sometimes be a breach of a lawyer’s professional duties. In R v Szabo [2000][1], the client discovered that his defence counsel had been in a relationship with the Crown Prosecutor. This information was not given to the client and the Court of Appeal ordered a new trial.

Fiduciary duties

The relationship between a client and a solicitor is said to be a fiduciary relationship. A fiduciary is an individual in whom another (the client) has placed their trust and confidence to manage and protect property or money. The fiduciary has an obligation to act for the client’s benefit.

Lawyers may breach their fiduciary duty to clients, which can result in professional negligence or professional misconduct.

Confidentiality

In Spincode Pty Ltd v Look Software Pty Ltd [2001][2], it was held that “the relationship between lawyer and client is one of confidence that obliges a solicitor not to disclose information obtained during the course of the relationship without the express or implied approval and consent of the client”.

In order to uphold and maintain the trust of your client it is vital that all communication between the solicitor and the client remains within that relationship.

A breach of this confidence is not only unethical and contrary to the nature of the profession but more importantly will affect the solicitor’s relationship with current and future clients.

Conflicts of interest

Legal practitioners must make all attempts to avoid the situation where their duty to a client conflicts with their duty to another client (e.g. avoiding misuse of information obtained in confidence during dealing with a previous client), their duty to the court (ultimately prevails over duty to client) or a personal interest the practitioner may have in the proceedings (e.g. drawing up a will in which the practitioner is a beneficiary). A couple of common law examples of the latter kind of conflict of interest are where a solicitor guarantees a loan  made to their client (Maguire and Tansey v Makaronis (1997)[3]) and where the solicitor has business dealings with their client (Law Society of NSW v Harvey [1976][4])

Before beginning to act for a new client, it is important that a legal practitioner determine the following questions:

Have all interested parties to the proceedings been identified?

Have all members of the representing law firm registered any personal interest held outside the office (e.g. any relation to the client, any financial interest in the client’s affairs, any prior knowledge of the client that may adversely affect your firm’s representation?) 

Is the firm, by whatever means, in possession of confidential information regarding any of the interested parties to the proceedings?

Duty to the Court

The various codes of legal ethics and professional responsibilities across Australia make it clear that a legal practitioner’s duty to the court and to the administration of justice is paramount. What this means in practice, is that a legal practitioner’s duty to the court must prevail to the extent of any inconsistency with any other duty the practitioner may owe[5].

In Incorporated Law Institute of NSW v R D Meagher, Isaacs J made the following statement which is important in reflecting on the role of the lawyer in society:

“…There is therefore a serious responsibility on the Court – a duty to itself, to the rest of the profession, to its suitors, and to the whole of the community to be careful not to accredit any person as worthy of public confidence who cannot satisfactorily establish his right to that credential”[6]

8.2. Identifying and Interpreting relevant codes, policies and procedures for client representation and communication

There are a number of documents that determine the roles and responsibilities of legal professionals when providing services to clients. Some of the more prominent documents are as follows:

1. Organisational codes of conduct
2. Statutory codes
3. Non-statutory professional standards
4. Workplace policies

Organisational codes of conduct

A code of conduct is intended to be a central guide and reference for users in support of day-to-day decision making. It is meant to clarify an organisation's mission, values, and principles, linking them with standards of professional conduct. As a reference, it can be used to locate relevant documents, services and other resources related to ethics within the organisation. [1]

A well-written and thoughtful code also serves as an important communication vehicle that "reflects the covenant that an organisation has made to uphold its most important values, dealing with such matters as its commitment to employees, its standards for doing business and its relationship with the community."[2]

A code is also a tool to encourage discussions of ethics and to improve how employees/members deal with the ethical dilemmas, prejudices and grey areas that are encountered in everyday employment. A code is NOT a substitute for relevant rules, standards, policies but a complement.

Codes of conduct offer an invaluable opportunity for responsible organisations to create a positive public identity for themselves which can lead to a more supportive political and regulatory environment and an increased level of public confidence and trust among important constituencies and stakeholders.[3]

Aboriginal Legal Service (ALS) ‘Code of Conduct’

Excerpt from the ALS NSW/ACT Ltd website….

ALS has a responsibility to its stakeholders to ensure the professional and ethical conduct of its employees. As such it is important that prospective applicants understand the core values of our Code of Conduct policy as the standard of conduct required. These core values are: 

• Treat all the people that we come in to contact with respect and dignity 
• Uphold the law, respect community standards, and act accordingly 
• Use ALS property responsibly and in the best interests of ALS and its reputation, and 
• Accept that we are responsible for our actions and accountable for the consequences. [4]

Statutory codes of conduct

Created and amended by the Government, statutory codes of ethics set forth the legislative obligations of legal practitioners across Australia when engaging in the provision of legal services. In New South Wales, the two core pieces of statutory code regulating the legal profession are the Legal Profession Act 2004 (NSW) and the Legal Profession Regulation 2005 (NSW). In short, these documents seek to ‘serve the administration of justice and protect clients of law practices and the public generally. [They] also seek to facilitate the regulation of legal practice on a national basis across State and Territory borders.’[5]

Currently, each state in Australia has its own version of legal statutory codes of ethics. Importantly though, in 2015 the Legal Profession Uniform Law was introduced, creating a common  legal services market across NSW and Victoria, encompassing almost three quarters of Australia’s lawyers. The Legal Profession Uniform Law Act 2015 came into effect on 1 July 2015. This legislative scheme aims to harmonise regulatory obligations while retaining local performance of regulatory functions.

Privacy and The Privacy Act 1988 (Cth)

Section 2A:

The objects of this Act are: 

to promote the protection of the privacy of individuals; and 

to recognise that the protection of the privacy of individuals is balanced with the interests of entities in carrying out their functions or activities; and 

to provide the basis for nationally consistent regulation of privacy and the handling of personalinformation; and 

to promote responsible and transparent handling of personal information by entities; and 

to facilitate an efficient credit reporting system while ensuring that the privacy of individuals is respected; and 

to facilitate the free flow of information across national borders while ensuring that the privacy of individuals is respected; and 

to provide a means for individuals to complain about an alleged interference with their privacy; and 

to implement Australia's international obligation in relation to privacy. 

The Privacy Act 1988 (Cth) sets down the law in relation to confidentiality and privacy in Australia. Australians have the right to know why information is required of them and how that information is going to be used. [6] The Act is comprised of 13 Australian Privacy Principles[7] that have been developed to govern the collection, storage, use, and disclosure of personal information by Federal and ACT government Agencies. Among other things, the Act addresses the management of personal information in an open and transparent way, the use and disclosure of personal information, the integrity of personal information (including the quality and security of personal information) and how to deal with requests for access to and/or correction of personal information.[8]

Non-statutory Professional standards

Though not legislation and unenforceable before a court of law, all Australian states through their respective Law Societies, have implemented a binding code of professional standards[9]. In an attempt to create a single, uniform set of rules governing the practice of law and the Australian legal profession, the Law Council of Australia has developed the Australian Solicitors Conduct Rules 2011 (‘the ASCR’). It is hoped that adoption of the ASCR by all Australian states will ensure that all of Australia’s solicitors are bound by a common set of professional obligations and ethical principles when dealing with their clients, the courts, their fellow legal practitioners and other persons. 

The ASCR cannot cover all possible dilemmas or scenarios, but the ethical principles that are enshrined in the ASCR provide the framework for legal practitioners to deliver competent and quality legal service to clients. These non-statutory professional standards must be read in conjunction with the common law and equity (branch of law focused on fairness).

Workplace policies

Given the growing complexity of client’s needs and a greater emphasis on the accountability and efficiency of service providers, almost all organisations, big or small, should have at least the most basic of workplace policies. These policies may deal with anything from workplace conduct, human resource management and workplace safety, to information storage, cultural awareness and complaint resolution processes. In an organisation providing legal services such as Legal Aid New South Wales and the Aboriginal Legal Service for example, it would be important to immediately familiarise yourself with their conflict of interest, client eligibility and client confidentiality policies. 

Well-written workplace policies:

are consistent with the values of the organisation

compliment legislation relevant to the workplace (e.g. Privacy Act 1988 (Cth), Workplace Health & Safety 2011 (Cth), Fair Work Act 2009 (Cth) & Public Services Act 1999 (Cth)).

demonstrate that the organisation is operating in an efficient and professional manner

ensure uniformity and consistency in decision-making and operational procedures

add strength to the position of staff when possible legal actions arise

save time when a new problem can be handled quickly and effectively through an existing policy

foster stability and continuity

maintain the direction of the organisation even during periods of change

provide the framework for business planning

assist in assessing performance and establishing accountability

clarify functions and responsibilities[10]

are non-discriminatory, as well as embrace equality and diversity

8.3. Researching and applying duty of care requirements towards clients and other stakeholders- the tort of negligence

An introduction to tort law

The term ‘torts’ is applied to a miscellaneous and more or less unconnected group of civil wrongs other than breach of contract. The law of torts is concerned with the compensation of losses suffered by private individuals in their legally protected interests. Unlike criminal proceedings which are commenced by the police, proceedings for a breach of a tort law are brought by an individual against another individual or organisation. Torts may serve to protect a person’s interest in his or her bodily security (e.g. the torts of battery, assault & false imprisonment), tangible property & financial resources (e.g. the torts of trespass & negligence), use of land (e.g. tort of nuisance) or reputation (e.g. tort of defamation).

In the course of providing legal services to a client, either in the capacity of a legal practitioner or a legal support office, you owe the client a duty of care. Duty of care here refers to the obligation of the party providing the legal service/s to avoid causing damage or loss to the client, where that damage or loss could have been reasonably foreseen. Understanding the concept of negligence and the various elements of the tort is important when purporting to provide any type of services to a client, especially those of a professional nature.   

What is negligence?

Legally speaking, negligence is a failure to take reasonable care to avoid foreseeable harm to other people or their property. This is not to say that negligence is a failure to achieve perfection. The law recognises there are certain accidents that are unavoidable and for which legal blame should not be allocated. However, negligence may result from a ‘failure to exercise the degree of care and skill that could reasonably be expected in the circumstances from someone with the particular profession’s training, skill and experience’[1].

Elements of Negligence

Defendant owed a duty of care to the plaintiff to take reasonable care to prevent him/her from suffering injury, loss or damage.

There was a breach of the duty of care by failing to adhere to the standard of care expected.

The breach of duty caused damage to the plaintiff and damage that was of a kind which was reasonably foreseeable (i.e. was not too remote)

These principles were laid down in the English case of Donoghue v Stevenson [1932][2] and were adopted in Australian law in Grant v Australian Knitting Mills in 1933 by the High Court. 

In every case involving negligence, the Plaintiff must establish 3 elements:

Did the defendant owe the plaintiff a duty of car?

Is it reasonably foreseeable that the defendant’s act or omission could have caused harm to the plaintiff (or the class of person to whom the plaintiff belongs)?

Is there sufficient proximity between the defendant and the plaintiff?

The duty of care test is objective: whether an ordinary, reasonable person in the circumstances of the defendant could have foreseen that loss or injury could occur.

Was there a recognised relationship? Such as employer-employee, manufacturer-consumer, lawyer-client, doctor-patient.

Did the defendant breach that duty of care?

The Court will consider the following factors in deciding whether a duty of care has been breached:

• Likelihood of injury (in negligence, a person cannot be liable for failing to take precautions against an unforeseeable risk[3])

• Gravity of harm

• Degree of effort to eliminate the risk

• Social worth of Defendant’s conduct

• Accepted standard (the defendant’s conduct is to be judged by the standard of care that a prudent person would have exercised in the circumstances).

Did the breach cause the damage?

The defendant’s wrongful act must have caused or contributed to the harm for which the plaintiff seeks damages. Determining questions of causation can prove difficult in a great many circumstances. As an example, on the way to work person A accidentally runs over a cat, five minutes later person B stops to tend to the cat, person B arrives late to work and is fired as a result, is person A then the cause of person B being fired? In certain ways one might think this is so, yet in other ways it seems a ridiculous conclusion to draw.  Determining whether the actions or omissions of one person/organisation are the cause of particular damage or loss to another person/organisation for the purpose of establishing legal liability is a complex task. 

One approach the courts in Australia have taken over the years is the application of a ‘but for’ test- ‘but for’ the act or omission of person A, person B would not have suffered the injury or loss in question. Put differently, ‘If the damage would have occurred notwithstanding the negligent act or omission, the act or omission is not a cause of the damage and there is no legal liability for it[4]’. Another way the courts have addressed the question of causation, is by determining whether it was reasonably foreseeable that person A’s actions would have caused the harm or loss experienced by person B in the given circumstances. [5]This test holds the same as the objective test in the breach of duty. 

Negligence in legal practice

Lawyers owe their clients a duty of care. Clearly, the mere fact that a lawyer fails to achieve a client’s desired outcome does not, of itself, mean that the lawyer was negligent. However, a lawyer who fails to provide a legal service to a client with at least reasonable care and skill, causing the client to suffer financial or other loss, may well have breached his or her duty of care. Breach of this duty may amount to negligence and the client may be entitled to compensation for the loss.[6]

Further to this, a legal practitioner may be in breach of a statutory code or professional standard impacting on the jurisdiction(s) in which they operate. In Queensland, the Legal Profession Act 2007 refers to unsatisfactory professional conduct as including “conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner”. [7] The Act also goes on to define professional misconduct as involving a substantial or consistent failure to reach that same standard. This is therefore generally more serious and less likely to be a “one-off”, accidental oversight or failure. [8] Breach of these rules may result in disciplinary action by the relevant regulatory body (e.g. suspension, disqualification or termination of practicing certificate).

How the tort of negligence impacts on legal support staff (i.e. field officers, paralegal officers, and administrative officers) 

We owe a duty of care to others in a great many different circumstances throughout our lives. In a professional context, it is mainly the responsibility of the employer (i.e. the organisation) to ensure that employees are aware of relevant codes of conduct and professional standards. Where there is an alleged breach of confidentiality or negligence on the part of a legal support officer, typically the employer will be vicariously liable for the employee’s action. Regardless, it makes a great deal more sense for complainants/applicants to go after employers, as they generally have more money than respective employees. The usual elements of negligence apply in the context of any role you may fill in a legal organisation. All legal support workers should be aware of the duty they owe their clients and must be capable of performing those duties to a reasonable professional standard. 

 Employees are generally protected by their employer as long as they follow policies and reasonable instruction. Where an employer will not be vicariously liable for damage or loss incurred by a client, is when an employee acts outside the course of their employment..[9] Particular circumstances where an act is outside the course of employment include:

Passion and resentment – A barmaid threw a glass filled with beers at a customer as she was angry at this foul behaviour[10]

Unconnected acts – employee on a ‘frolic of his/her own’[11]

Employer prohibitions – express limits on conduct within sphere of employment[12]

Criminal acts of employees – employer may still be liable usually considered a personal issue.[13]

Vicarious Liability

Vicarious liability refers generally to a situation where someone is held responsible for the actions or omissions of another person. In a workplace context, an employer can be liable for the acts or omissions of its employees, provided it can be shown that these actions took place in the course of their employment. If those actions are found to be unlawful, both the employee responsible for the action/s and the employer or principal may be held responsible. That is, unless an employer can show that ‘all reasonable steps’ were taken to reduce liability or that the employee was acting in a personal capacity (i.e. they were acting outside the course of their employment).^[14]

What does ‘all reasonable’ steps mean?

‘All reasonable steps’ is not defined in the legislation as what is reasonable for a large corporation may not be reasonable for a small business. Rather it is worked out on a case-by-case basis. This means employers must actively implement precautionary measures to minimise the risk of employees acting in an unlawful manner in the course of their employment.

8.4. Criminal negligence

Civil negligence, such as that discussed above, is very different from criminal negligence. Criminal negligence is not an offence in itself, it is rather a factor considered by courts when deciding the guilt of an accused for certain defined criminal offences (e.g. manslaughter by criminal negligence, negligent driving, causing grievous bodily harm by a negligent act or omission, etc.). Criminal negligence requires a greater degree of culpability than civil negligence.  

In order to be found guilty of a criminal offence generally, an accused must be shown to possess a guilty state of mind (‘mens rea’) at the time of committing the offence. For example, where it can be shown that an accused physically assaulted a victim, it must further be proven that the accused had an intention to assault the victim. If for example, an accused was going to shake a person’s hand and in doing so accidentally crushed it, he will not be guilty of assault. If however, the prosecution can prove that in shaking the person’s hand, the accused had the intention to crush it, then it’s likely they will be guilty of assault.

There are certain offences however, where the requirement of the accused possessing a guilty mind or criminal intent is not necessary. In some instances, recklessness or negligence will satisfy the mental element of a crime. To convict an accused of criminal negligence the prosecution must still prove the three elements of negligence as set out above, but they must go further and prove that the particular negligence was of such a serious degree that it amounted to a crime.

Following are some examples of criminal negligence: 

A person who drives 40 km/hr over the speed limit in a really dangerous way and who causes a car accident and injures.

A person who breaks texting-and-driving laws and who causes an accident whilst typing a text message resulting in someone’s death.

A nurse in a nursing home who forgets to feed a patient who cannot feed himself, causing the patient to starve to death.

A caregiver in a hospital who isn't paying attention and who gives someone a deadly dose of a medication.

A doctor who prescribes addictive drugs to a known drug addict because he gets paid for his services.

8.5. Determining and applying appropriate cultural protocols and processes when dealing with Aboriginal and Torres Strait Islander clients

“Dealing with white fella law is like playing football when the other team and the umpire are applying basketball rules. Not only have the goal posts been moved but there is not even a goal post anymore”.

                                                          (Observation by Anangu1 about the Australian legal system)

Explaining your role to the client

You should explain your role as a lawyer or field officer to your client at the first opportunity. 

This may be done by:

• Defining who your client is and who your client is not, 
• Defining what the matter is and your role in taking instructions and acting on those instructions
• Explain the private and confidential nature of your communications with the client
• Do not make promises to the client that you are not able to commit to

Using Plain English

Firstly, check whether or not you need an interpreter. 

Ensuring that you use Plain English when speaking and writing is one of the keys to ease the stress that you and your client may experience. For example, don't overuse legal expression or terminology. You should ask your client how they wish you to communicate with them when you are not able to see each other face to face. 

Sometimes it may be easier for you to communicate with your client in written Plain English rather than spoken, as some clients may have someone whom they can ask to help them read your letter or translate it for them.

Recognition and respect of relevant customs and heritage

While cultural protocols vary from community to community and individual to individual, there are many that communities have in common. Some examples of common protocols to respect are listed below.

Kinship

It is always important to ask and to listen carefully to what you are told about the use or not, of the names and images of deceased people.

For many Aboriginal people, kinship systems not only imply who is related to whom but also how they must act towards each other in particular circumstances. For example, do not pressure your client to talk about someone if they seem unable to offer you any information about that person. If you do, you may be forcing them to speak about somebody of whom they must not speak. 

• Avoidance Relationships

There are some persons of whom, for example, a male client may have an avoidance relationship with, which prevents them from talking to or addressing that person, or even being in the same room as that person. Obviously an avoidance relationship of this sort will have a significant impact on the person's ability to communicate with you, regarding the person with whom the avoidance relationship applies. It may be best to make yourself aware of the avoidance relationship, and find out from your client who is an appropriate person from whom to seek information or to take a statement etc. 

• Eye Contact

In certain circumstances sustained eye contact is considered rude and disrespectful. This is not a custom that applies to all Aboriginal communities. During your initial contact with a client take notice of how they act and respond accordingly. If you are unsure about a particular custom, it is often appropriate to simply ask the client how they would like you to act. 

• Sorry business

When a person has passed away there are certain obligations that family members need to fulfil. These vary from region to region and between communities. It is usually important that people participate in funerary ceremonies called sorry camps. These obligations are stronger, depending upon the proximity of the relationship of the client to the deceased. It is highly advisable to avoid visiting a community or engaging a community member during the course of sorry business.

Visiting a community

While each community is different, often the cultural protocols will be similar. You should gather as much information as you can about the community before you go there. 

For example it may often be useful to speak to Aboriginal and Torres Strait Islander people you know who live at or visit that community to find out what the community is like.

It is always considered a matter of respect to communicate with the community well before you arrive to arrange the date of your arrival, to explain in advance your business, and to ensure that your business is able to be dealt with by the community on the day you propose to attend. 

• Communicating

If your client lives in a remote or regional community, they may have to collect their mail from a post office many kilometres away or from their community centre. In certain communities, the public telephone may be the only one to be shared by everyone. It may only work between certain hours when the generator is switched on. It is advisable to ensure a communication portal is set up with the client.

When engaging any Aboriginal and Torres Strait Islander client for the first time, it is very important that you enquire about their literacy and numeracy levels. This may be a confronting question to ask, but it is necessary. It is important your client is able to read and comprehend any correspondence you, the police or the court may send them. [1]

8.6. Principles of non-discrimination, equality and diversity

“In Australia, national and state laws cover equal employment opportunity and anti-discrimination in the workplace. You're required by these laws to create a workplace free from discrimination and harassment. It is important employers and employees understand their  rights and responsibilities under human rights and anti-discrimination law. By putting effective anti-discrimination and anti-harassment procedures in place in your business you can improve productivity and increase efficiency.

The Australian Human Rights Commission has a range of fact sheets to help you develop effective policies and best practice guidelines. The Fair Work Ombudsman provides education and assistance for employees and employers on preventing discrimination in the workplace.

Taking on people facing barriers to employment is often overlooked by employers and can be a useful way of diversifying the skill set within a business. There are funding and incentive schemes available for businessesthat support people with a disability, Aboriginals and Torres Strait Islanders, the long-term unemployed and the mature-aged.[1]”

Examples of anti-discrimination legislation in Australia:

• Age discrimination Act 2004 (Cth)
• Sex discrimination Act 1984 (Cth)
• Racial discrimination Act 1975 (Cth)
• Disability Discrimination Act 1992 (Cth)
• There are also various state-based pieces of anti-discrimination legislation (e.g. Anti-discrimination Act 1977 (NSW)

8.7. References and Recommended Reading

Answers.com, (2014). Derivative Tort. [online] Available at: http://www.answers.com/topic/derivative-tort [Accessed 29 Sep. 2014].

Barry, R. (ed.). (2007). The Law Handbook (10th edition). Sydney, NSW: University of New South Wales Press Ltd.

Business.gov.au, (2014). Equal employment opportunity & anti-discrimination | business.gov.au. [online] Available at: http://www.business.gov.au/business-topics/employing-people/Pages/equal-employment-opportunity-and-anti-discrimination.aspx [Accessed 14 Oct. 2014].

Dr Bill Edwards An Introduction to Aboriginal Societies, This book has a lot of material on Anangu societies. (It is usually available through University bookshops at Adelaide and Uni SA).

Driscoll, Dawn-Marie and W. Michael Hoffman, Ethics Matters: How to Implement Values-Driven Management, 2000

Ethics.org, (2014). Ethics Resource Center. [online] Available at: http://www.ethics.org/resource/why-have-code-conduct [Accessed 7 Oct. 2014].

Humanrights.gov.au, (2014). Employer Responsibilities: A Guide to Vicarious Liability. [online] Available at: https://www.humanrights.gov.au/employer-responsibilities-guide-vicarious-liability [Accessed 26 Sep. 2014].

Industrialrelations.nsw.gov.au, (2014). Workplace policies and procedures - NSW Industrial Relations. [online] Available at: http://www.industrialrelations.nsw.gov.au/oirwww/Employment_info/Managing_employees/Workplace_policies_and_procedures.page [Accessed 2 Oct. 2014]

Kraft, D. (2014). Breach of Professional Ethics. [online] Work - Chron.com. Available at: http://work.chron.com/breach-professional-ethics-17344.html [Accessed 29 Sep. 2014].

Kulilpai, Putana, (2004) ‘Interpreting for Pitjantjatjara people in Courts by the Reverend Dr Bill Edwards, Volume 14 Journal of Judicial Administration page 99 Law Book Company. 

Law Society of New South Wales. (n.d.). Legislation and Rules. [online] Available at https://www.lawsociety.com.au/ForSolictors/professionalstandards/Ruleslegislation/index.htm, [Accessed 8/10/14]

Law Society of South Australia. 2010. Lawyers’ Protocols for Dealing with Aboriginal Clients in South Australia. [ONLINE] Available at: http://www.lawsocietysa.asn.au/PDF/ProtocolAboriginal and Torres Strait IslanderClients.pdf. [Accessed 26 September 14].

Legal Aid Queensland. 2011. Best practice guidelines for lawyers providing legal services to Aboriginal and Torres Strait Islander Clients. [ONLINE] Available at: http://www.legalaid.qld.gov.au/services/Aboriginal and Torres Strait Islander-Queenslanders/Documents/bpg-Aboriginal and Torres Strait Islander.pdf. [Accessed 26 September 14].

Legal Services Commission, (2014). Fact Sheet 3. [online] Available at: http://www.lsc.qld.gov.au/__data/assets/pdf_file/0009/97749/FACT-SHEET-3-Negligence-June-2012.pdf [Accessed 29 Sep. 2014].

Principles of Stakeholder Management, The Clarkson Centre for Business Ethics, 1999

Quizlaw.com, (2014). Criminal Law - What is a strict liability crime?. [online] Available at: http://www.quizlaw.com/criminal_law/what_is_a_strict_liability_c.php [Accessed 29 Sep. 2014].

See Aboriginal Legal Service, (2014). Field Officer roles are Aboriginal and Torres Strait Islander identified. [online] Available at: http://www.alsnswact.org.au/media/BAhbBlsHOgZmSSIhMjAxMy8wMS8yMy8yMl8zOV8xMF8xMThfZmlsZQY6BkVU/22_39_10_118_file [Accessed 26 Sep. 2014].