1. Introduction to Block 2 – Court & Bail

Block 2 includes four units of competency:

NAT10861001 Support clients needing legal assistance

NAT10861003 Assist persons seeking bail

NAT10861004 Manage responsibilities for court appearances

NAT10861006 Ensure access and equity with Aboriginal and Torres Strait Islander clients in the legal system

NAT10861001 Support clients needing legal assistance

This unit describes the performance outcomes, skills and knowledge required to support the rights, interests and needs of Indigenous clients in need of legal assistance. The unit involves the communication of basic information about legal services and liaison between the client and legal system.

Preparing and making bail applications before a court requires sound knowledge of the bail laws. In New South Wales, the relevant legislation is the Bail Act 2013 (NSW) https://www.legislation.nsw.gov.au/#/view/act/2013/26

This unit describes the performance outcomes, skills and knowledge required to support Indigenous clients to prepare for and appear in court. It includes preparing for a plea in mitigation and communicating outcomes and available options to the client.

NAT10861006 Ensure access and equity with Aboriginal and Torres Strait Islander clients in the legal system

This unit describes the performance outcomes, skills and knowledge required to promote fair and equal access to legal services and hearings for Indigenous Australians in need of legal assistance, including recognizing and responding to those with disabilities, mental health, alcohol and other drug issues.

2. Responding to client entering legal system

What is the role of Aboriginal & Torres Strait Islander field officers?

The role of the field officer between organisations and across jurisdictions varies. In some jurisdictions, field officers may engage in advocacy at court, in other jurisdictions, this is not commonplace and may be restricted. Across all jurisdictions, the cultural expertise shared by field officers is invaluable to the quality of the legal services provided to clients.  

The Victorian Aboriginal Legal Service highlight the important role of client service officers:

“VALS maintains a strong client service focus which is achieved through the role of Client Service Officers (CSOs) who act as a bridge between the legal system and the Aboriginal and Torres Strait Islander community.”[1]

The Aboriginal Legal Service of Western Australia sets out the duties of court officers (field officers) in their jurisdiction as follows: 

Court Officers are Aboriginal people employed by ALSWA. One of the main duties of an ALSWA Court Officer is to represent Aboriginal and Torres Strait Islander people in the Court of Petty Sessions and Children’s Court. A Court Officer’s authority to appear in Court comes from a Certificate granted under Section 48 of the Aboriginal Affairs Planning Authority Act 1972 (WA).

The main responsibilities of a Court Officer are:

·       To represent clients in the Court of Petty Sessions and Children’s Court for pleas of guilty, not guilty, remands and bail applications;

·       To assist in ensuring strong and successful communication between ALSWA lawyers and clients. This includes acting as a bridge in communication when there are language barriers, to ensure complete understanding and ultimately the proper representation of clients;

·       To do regular prison visits;

·       To provide basic legal advice to clients on all legal issues;

·       To do community legal education and liaison within Aboriginal, Torres Strait Islander and wider communities”[2]

It is important to have a clear understanding of the role and responsibilities prescribed by the particular organisation that the field officer (or any other position) is to perform (and limitations) to ensure the role is performed effectively and clients are well served.

2.1. Meet with client and receive instructions or information

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 clients will be vital in obtaining information necessary to prepare their legal proceedings, inform clients of court procedures and respond to any questions or concerns they may have regarding their circumstances.  Further points to consider:

·      Appropriate location to meet with a client (including in outreach settings)

It is important to choose a safe and comfortable space to meet with a client. Different contexts that could be appropriate, depending on the client, include: an office space or a community centre room (if in outreach setting). Privacy is always important. It is important to be flexible, but to ensure both the practitioner and the client feel comfortable. In certain circumstances you should seek the permission of appropriate community members and/or organisations before entering a community and or using certain facilities within a community.

·      Consider who is in the room when you speak with the client

If a client arrives with family, friends or other support persons, it is advisable to ask to see the client alone first. The purpose of doing this is to ask the client in a private setting if they authorise anyone else being present when the interview is conducted. If you ask this question in the presence of family members, it can often be difficult for the client to say that they would rather be alone. Once you satisfy yourself that the client would like support persons present, it is then important to ensure that no-one present is a witness or potential witness in the case as this can have detrimental impacts for their case (e.g. contamination of evidence).

·      How to prepare for taking instructions

Ensure that there is writing material available to be able to take notes throughout the interview. It is often helpful, if time permits, to engage in conversation to establish rapport before diving into the core aspects of the legal matter. It is important to remember that the role of legal practitioners is to take instructions from the client. It is important to keep the interests of the client at the forefront of any interview.

·      Setting client expectations at first meeting

Setting appropriate expectations from the first meeting with the client is extremely important. For example, it is important to give realistic time frames on how long a case may take to resolve. How long a person may be at court that day. The lawyer should give advice which appropriately sets out the client’s options and possible outcomes in relation how the case may resolve. If the outcome may involve a serious impact upon the client (such as a jail penalty), it is important to deliver this advice sensitively with the time and space for the client to ask questions and understand their situation and options fully. Providing unrealistic or insensitive advice  perpetuates tensions that exist between client, or communities, and the legal justice system.

·      Explaining the role of a legal practitioner and the process that will follow the initial meeting

It is the role of a legal practitioner to listen to the client, to identify the legal issues, and advocate on behalf of them, in accordance with what the client instructs the lawyer to do. After the client has provided the practitioner with all of the relevant information, the practitioner will explain the next steps in the process and the client’s legal options  before the conclusion of the interview. The practitioner should remind the client of the time and place of the next court appearance and what is likely to happen on that day.  Providing the client with information to contact the field officer or practitioner (e.g. by providing a business card) and assuring the client that they should feel free to contact the practitioner if they have any questions is important. Make the client feel comfortable that they are entitled to call and have any issues clarified before the next court date. 

·      Full and correct recording of client personal details (especially contact details)

Ensure that all details provided by the client are documented correctly. This includes full name, address, date of birth and contact details. It is helpful to obtain the contact details of support persons or family members so that they can be called if there are any issues contacting the client. You should record if the client provides authority for you to talk about their case with any person or to contact support persons.

·      Safety of self and client during interview

If meeting outside of an office, ensure that other staff are aware of the meeting and location. If meeting within an office, become aware of safety devices, such as a duress button and exits. A common method of ensuring safety during an interview is having the practitioner sit closest to the door.

2.2. Duty of care and legal responsibilities

Duty to client

Practitioners have ethical duties to act in their client’s best interests. The duty requires the practitioner to be loyal to their client’s interests, subject to the obligations which lawyers have to the court and to justice. This is because practitioners are ‘officers of the court’. The Law Society of NSW has published a useful ‘Statement of Ethics”:

“We acknowledge the role of our profession in serving our community in the administration of justice. We recognise that the law should protect the rights and freedoms of members of society. We understand that we are responsible to our community to observe high standards of conduct and behaviour when we perform our duties to the courts, our clients and our fellow practitioners.

Our conduct and behaviour should reflect the character we aspire to have as a profession.

This means that as individuals engaged in the profession and as a profession:

·       We primarily serve the interests of justice.

·       We act competently and diligently in the service of our clients.

·       We advance our clients' interests above our own.

·       We act confidentially and in the protection of all client information.

·       We act together for the mutual benefit of our profession.

·       We avoid any conflict of interest and duties.

·       We observe strictly our duty to the court of which we are officers to ensure the proper and efficient administration of justice.

·       We seek to maintain the highest standards of integrity, honesty and fairness in all our dealings.

·       We charge fairly for our work.”[1]

Field officers and client service officers should also be aware and adopt standards consistent with this statement as well as observing and complying with internal codes of conduct and any ethical obligations which the organisation they work for requires to be upheld.

It is of great importance that any person who is not a lawyer is not to provide legal advice or act as a solicitor (this includes field officers, court officers and client service offers). Legal information can be provided, including court procedures, information about confidentiality and privacy, the role of the various people involved in the court process.

As a field officer, the role includes:

·      maintaining confidentiality and privacy of client information

·      avoiding conflict of interest

\Maintaining professional standards

·      Ensuring safety and welfare of client at all time

·      Acting honestly, fairly and with competence and diligence in the service of clients

2.3. Introduction to legal ethics

A legal practitioner is bound by the general principles of professional conduct.

Duty to the law: Legal practitioners are part of the administration of our legal system. They may not agree with some of it, and are entitled to lobby for its reform, but they must obey the existing laws.

Duty to the court: Legal practitioners must act with honesty, integrity and candour and must discharge all duties owed to a court or tribunal, including undertakings.

Duty to client: Legal practitioners must act with due skill and diligence, reasonable promptness and courtesy, while maintaining a client’s confidences and avoiding conflicts of interest.

Sometimes these duties may appear to be in conflict. Detecting ethical issues and avoiding breaches of ethical duties is best done by knowing what your ethical duties are so that potential breaches can be detected. Where an ethical issue arises, it is important to  seek appropriate advice.

2.4. What is professional negligence?

The Legal Service Commission of QLD provides a helpful summary of professional negligence: 

“Lawyers owe their clients a duty of care. Negligence is a failure to exercise the degree of care considered reasonable in the circumstances, resulting in financial or other loss.

Clearly, the mere fact that a lawyer fails to achieve what a client hoped to achieve with the lawyer’s advice and assistance does not, in itself, mean that the lawyer was negligent.

Equally clearly, lawyers do have a responsibility to their clients. A lawyer who fails to provide a legal service to a client with at least reasonable care and skill and whose failure causes the client to suffer a financial or other loss may well have breached his or her duty of care. The breach of that duty may amount to negligence and the client may be entitled to compensation for the loss.”[1]

2.5. Anti-discrimination

It is important to note that legal practitioners cannot fail to take on a client based on race or ethnicity, disability, gender and so on. This would be a breach of ethical obligations and may enliven anti-discrimination legislation.

A summary of Australia’s anti-discrimination law can be found on the Federal Attorney General’s website: https://www.ag.gov.au/RightsAndProtections/HumanRights/Pages/Australias-Anti-Discrimination-Law.aspx

3. Privacy, Confidentiality and Privilege

Office of the Privacy Commissioner^[1]

What is Privacy?

The word 'privacy' means different things to different people. Your idea of privacy is likely to be different from the ideas of your family and friends.

Types of privacy

The type of privacy covered by the Privacy Act 1988 (Cth) and is the protection of people's personal information. However, this is just one aspect of privacy. Other types of privacy can include territorial privacy and physical or bodily privacy and privacy of your communications.

The Office of the Privacy Commission generally handles privacy issues which involve a person's personal information. This can include privacy issues associated with information about location, health and body and communications with others.

3.1. What is personal information?

The Privacy Act 1988 (Cth) defines personal information as follows[1]:

personal information means information or an opinion about an identified individual, or an individual who is reasonably identifiable:

(a) whether the information or opinion is true or not; and

(b)  whether the information or opinion is recorded in a material form or not.

The Privacy Act 1988 (Cth) is a Commonwealth act and as such applies Australia-wide; however States and Territories all have additional privacy laws which can be accessed here:

https://www.oaic.gov.au/privacy/privacy-in-your-state/

3.2. Confidentiality v Privacy

“Confidentiality" and "privacy" are often used interchangeably, however:

‘they mean distinctly different things from a legal standpoint. To begin with, confidentiality refers to personal information shared with an attorney, physician, therapist, or other individual that generally cannot be divulged to third parties without the express consent of the client. On the other hand, privacy refers to the freedom from intrusion into one's personal matters, and personal information’[1]

A legal practitioner has an ethical duty to maintain communications and documentation relating to a client’s case confidential unless the practitioner is expressly authorised to disclose the information.

3.3. Legal professional privilege

Historically, at common law, legal professional privilege protected confidential communications between a lawyer and client from compulsory production in the context of court and similar proceedings.

The rationale for the creation of the privilege is the enhancement of the administration of justice by promoting free consultation and disclosure between clients and lawyers, and assisting in the production of information in litigation. On balance, this freedom is considered to outweigh the alternative benefit of having all information available to facilitate the trial process. In Baker v Campbell[1], Deane J described legal professional privilege as ‘a fundamental and general principle of the common law’. The protection only applies where it is intended for a proper purpose — communications made in furtherance of an offence or an action that would render a person liable for a civil penalty are not protected.

Until recent changes to the law, the communication that was sought to be protected had to be made for the sole purpose of contemplated or pending litigation or for obtaining or giving legal advice, as enunciated in Grant v Downs[2]. Following the enactment of s 118 and 119 of the Evidence Act 1995 (Cth), the ‘sole purpose’ test was replaced with a ‘dominant purpose’ test. Later, the High Court’s decision in Esso Australia Resources Ltd v Commissioner of Taxation[3] overruled Grant v Downs, holding that the common law test for legal professional privilege was the dominant purpose test.

The law protects disclosure of documents and communications which are subject to legal privilege from being disclosed, except in a number of circumstances (e.g. where the client waives privilege and allows the document to go into the public domain or of the document or communication made in furtherance of a fraud).

There are two primary limbs of privilege: litigation privilege and advice privilege.

Litigation privilege

·       Applies where there are actual or anticipated proceedings.

·       It can cover communications between the lawyer and third parties, as well as between lawyer and client.

Advice privilege

·       Applies in Australia to documents and communications between lawyer and client for the dominant purpose of seeking or giving legal advice.

·       For further information on the “dominant purpose” test, see Esso Australia Resources Limited v Federal Commissioner of Taxation (2000) 168 ALR 123.

Exceptions

Some lawyer-client communications will not usually attract privilege. For example:

·       Communications made for the purpose of facilitating a crime or fraud. See R v Cox and Railton[4].

·       A client’s name. See Southern Cross Commodities Pty Ltd (In Liq) v Crinis[5].

·       The fact that a client sought legal advice. See R v R[6].

However, remember that obligations of confidentiality may still apply to non-privileged communications. Confidentiality should always be considered before making disclosure.

3.4. Conflict of Interest

Recommendation 106 of the Royal Commission into Aboriginal Deaths in Custody:

“That Aboriginal Legal Services recognise the need for maintaining close contact with the Aboriginal communities which they serve. It should be recognised that where charges are laid against individuals there may be a conflict of interests between the rights of the individual and the interests of the Aboriginal community as perceived by that community; in such cases arrangements may need to be made to ensure that both interests are separately represented and presented to the court. Funding authorities should recognise that such conflicts of interest may require separate legal representation for the individual and the community” ^[1]

What is a conflict of interest?

Identifying Conflicts of interests are related to the duty of care to clients. That is, you act in your client’s best interest by ensuring that you do not have any conflicts of interest in relation to representing them and acting in their case. 

The NSW Office of the Legal Services Commission outlines the three main areas where conflicts of interest arise in legal cases:

Conflict with the lawyer’s own interests

Lawyers must keep their own business interests and investments, and the business interests and investments of their associates (e.g. relatives or business partners) separate from the interests of their clients. For example, a lawyer who advises clients to invest in a mortgage company in which the lawyer has a personal interest might be guilty of professional misconduct. Lawyers cannot borrow money from their clients. While they can make loans to clients there may be ethical problems if they do so in some circumstances. Further, the lawyer must not exercise any undue influence over a client for the benefit of the lawyer and/or their associates. The lawyer is entitled to fair payment for the legal services provided to the client — but no more. This means that a lawyer cannot draft a will for a client where the lawyer or an associate of the lawyer may receive a substantial entitlement. If it is apparent that a lawyer’s interests will be in conflict with the client’s interests, the lawyer must not accept the client’s retainer. Similarly, if a close associate of the lawyer stands to gain from an investment or other transaction by a client then the lawyer should not act for the client in that transaction. A lawyer who has already accepted instructions from a client should terminate the client’s retainer as soon as a conflict of interests is apparent.

Conflict with the interests of another client

As long as there is no dispute or disagreement between the parties to a legal transaction, the parties can both instruct the same lawyer. This may be convenient for both parties and it may save them costs. For example, a lawyer might act for the co-executors of a will. However, lawyers should avoid taking instructions from more than one party if there is any potential for a dispute. For example, acting for both the buyer and seller of a property is unwise although permitted. A lawyer can accept instructions from more than one party to any proceedings or transaction only if each of the clients:

·      is aware that the lawyer is intending to act for the others as well

·      understands that the lawyer might not be able to give all of the information relevant to the matter to all of the parties

·      accepts that the lawyer will not give one client advice that is against the interests of another client, and

·      consents to the arrangement.

If it appears to the lawyer, or to any of the parties, that the interests of the parties are in conflict, the lawyer should stop acting for all of the parties. However, a lawyer may continue to act if an effective information barrier has been established.

Conflict with the interests of a former client

A lawyer must not act for a new client against the interests of a former client if:

·      the lawyer has confidential information about the former client, which is relevant to the new proceedings, and

·      it is reasonable for the former client to think there is a real possibility that the information would be used against them.

Unless:

·      the former client gives informed written consent to the lawyer acting; or

·      an effective information barrier has been established”[2]

If there is any doubt about whether a conflict of interest exists, the best practice is to refer a client to another service or practice which has capacity to assist them. Some different referral services include:

·      Legal Aid Commission

·      Aboriginal Legal Service

·      Private representation

·      A Community Legal Centre

·      NSW Bar Association or NSW Law Society Pro Bono Scheme

The actual referral process itself will vary depending on the organisation in which you are working and the nature of the client’s issues/needs.

4. Interviewing clients

Communicating according to Aboriginal cultural approaches

When a lawyer needs to obtain information from an Aboriginal or Torres Strait Islander 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. Some key issues to consider:

·      Identify whether an interpreter is needed

·      Take time and establish trust

·      Understand that silence is part of the process

·      Direct eye contact may be inappropriate

·      Asking questions indirectly

·      Allow clients to speak in their own time.

The Northern Territory Law Society has published a “Indigenous Protocols for Lawyers” which is a good aid for introducing cultural competence for non-Aboriginal practitioners:

https://www.lawsociety.com.au/sites/default/files/2018-03/indigenous_protocols_for_lawyers_0.pdf

4.1. Respect and Sensitivity

The Aboriginal Services Branch of the Department of Community Services provide the following guidance in their practice resource ‘Working with Aboriginal People and Communities":

·      “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” ^[1]

·      “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”^[2]

The same practice resource provides guidance on being aware of and properly validating a client’s feelings. Be aware that the person brings to the interview emotions and often, a significant degree of stress. It is helpful to building the relationship with the client to spend some time in the interview, asking the person how they are and acknowledging their feelings.

4.2. Preparing client statement

If you are tasked with gathering information from a client, it is best to clearly type this information. You should approach the task by allowing the client to give a full narrative in their own words. Capture the words of the client in the document. Once the client has had a chance to tell the story, try to identify any gaps that might exist and ask open questions to prompt the client to give further information about those issues, if they can.

It is best if the client’s account of events can be put into chronological order. This will assist the lawyer to understand the sequence of events. If appropriate, you could use headings. For example, you might use dates as headings. In a case, for example, involving an illegal arrest by police, the following headings may assist:   Events leading up to arrest, Client’s account of what happened when arrested, what followed the arrest, Impact of the arrest on the client. Thinking about the framework of the interview by considering the topics you wish to cover, will ensure you address the necessary issues to understand the client’s case and effectively document the information for the legal representative.

If the document is a statement by the client, at the end of the conference, print the document, date it and ask the client to sign it as a record. You should also sign the document and clearly print your name on it as a record that you assisted in the preparation of the document. A copy should be placed on the file and ask the legal practitioner if it is appropriate to provide a copy to the client.

4.3. Accurately complete required reports and records

It is always important to note down communications with the client or relevant witnesses/people involved in the matter. In addition to enabling the lawyer to get a better understanding of the client’s circumstances, it will also assist the client to better recall the circumstances. It is also important as a means of protecting the legal service if any disputes arise about what a client said to a legal service.

It is necessary to obtain written authority from the client if the client wants to lawyer to discuss the case with relevant people. Be mindful of any ethical issues and the duty to avoid conflicts of interest when discussing a client’s case with others, even when a client says that you may do so. 

Familiarise yourself with workplace policies and procedures. Take the time to read internal policies. This will ensure you are best placed to deliver appropriate services in line with the functions of your organisation.

Be aware of the forms and records that need to be kept and complete them properly. This is important for maintaining a high level of professional standards but also to ensure the information which is required is at hand. 

4.4. Identify client legal issues and determine if matter is to be retained internally

An essential skill of a legal practitioner is being are able to identify the nature of the client’s problem, and into which area of law it falls (e.g. civil, family, or criminal). 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 the area of law relevant  to their issue. This will be an important factor in relation to whether the client’s case can be retained internally, that is, does your organisation represent people in relation to the legal issues identified?

Determining whether a case can be retained internally, or if it needs to be referred externally will also be determined by whether any conflict of interest arises. An organisation’s own policies and guidelines also need to be consulted to determine if a case can be kept internally or not. 

Sometimes, a person may be experiencing multiple legal issues. In these circumstances, it should be considered whether one service can deal with the matters as a whole or if the client requires assistance form more than one service.

There are obvious practical benefits to maintaining a client’s legal matters with one service, if possible. This also may assist the client to feel less overwhelmed by their complex legal needs.

4.5. Liaise between client and legal system

Sentencing options in Criminal Proceedings 

Alternative sentencing options (NSW)

In New South Wales, the Crimes (Sentencing Procedure) Act 1999 (NSW) sets out the sentencing options. On 24 September 2019, major reforms were introduced. In addition to full-time imprisonment, the court may also impose: Community Release orders (CRO), Community Corrections orders (CCO) and Intensive Corrections orders (ICO).

Offenders who are put on a CCO or an ICO are typically required to adhere to a number of "conditions," which may include:

• To be of good behaviour, not commit any further offences
• Supervision by the community corrections
• Abstain from the use of alcohol or the use of any drugs.
• Engage in treatment programs
• Community service
• Home detention (ICO only)

If a CRO, CCO or ICO is breached, the order may be revoked and the person re-sentenced to a more severe penalty.

4.6. The consequence of a breach of bail

When a client is granted bail, they sign an acknowledgment of the bail and its conditions and the client is released. If the client does not comply with a condition of the bail, they are in breach of their bail. A failure to comply with a bail condition is not an offence but it can lead to the bail being arrested by police and bail being reconsidered by the court.

The police are to consider alternatives to arresting a person for breach of bail before proceeding to arrest, however, a client should be advised that if they do breach their bail, they may be arrested and have their bail refused. Bail conditions should be strictly complied with.

Failing to appear at court (as required when on bail) is a criminal offence.

4.7. Remarks of the Magistrate and the legal practitioner

Maintaining clear and accurate written records of court appearances and conferences with the client and the legal practitioner is essential for later explaining the outcome and clarifying issues for the client. Use plain language, ask the client to explain to you what they understand to be the outcome to be confident they understand what has taken place.

A lot of legal jargon is used in court. An important role in assisting clients is to ensure they understand exactly what happened in court. Make sure you understand the legal language used by the Magistrate (and the practitioner) and if you are unsure, ask the legal practitioner to clarify what the terms mean. Some example of legal jargon commonly used, include:[1]

There are many more examples. The NSW Communities and Justice website is helpful to consult if you need to clarify a legal term: https://www.lawaccess.nsw.gov.au/Pages/representing/lawassist_legalwords.aspx

4.8. Respond to client questions with accuracy and clarity

The legal system may be complex, so it is important to provide advice and information to the client that is in plain language, that is easy to understand. This is to assist clients who may have less of an understanding of, or exposure to, the legal justice system. It is necessary for the lawyer to provide clear explanations to any questions asked by the client. Repeating important aspects of advice given to the client may be beneficial or providing information or advice in writing may also assist.

It is important to take the time to allow the client to ask questions. It is important to convey information clearly. If the client does not understand information or does not have the opportunity to ask questions to clarify matters, the information is of little value to them. Listening to a client’s question is a window into understand whether they understand the information provided. Answering a client’s questions clearly is not only helpful and necessary to provide appropriate assistance, it’s also a way of demonstrating to the client that you care about their needs which assists with building rapport and trust. 

5. Assist persons seeking bail

A person who requires assistance at court or who is in police custody or detained in a correctional facility may, of course, be experiencing a significant degree of stress and anxiety. Clients may be even more vulnerable because of other reasons, for example, they may be experiencing symptoms of a mental illness or a cognitive disorder, they may have an intellectual disability or they may be a young person.

Understanding the nature of the person’s vulnerability and understanding the special assistance they require is a priority role and responsibility of legal advocates.  In addition, the role of the legal advocate is to:

• advise their client about the court procedure and ensure that the court is aware of the nature of the client’s vulnerability
• ensure that the client understands the court proceedings which is essential to obtaining proper access to justice
• ensure that the client understands the legal rules around bail and have any queries answered
• inform the client about possible conditions/options if bail is granted
• make necessary referrals to ensure they receive appropriate assistance including an interpreter if the accused is from a non-English speaking background.

5.1. Types of bail applications (NSW)

There are 3 types of bail applications which a court may determine:

• a release application:  a release application is where the accused person is in custody and asks the court to grant bail (or to dispense with bail)[1]
• a detention application: the prosecutor may make an application for the accused to be refused bail or ask for their bail to be revoked where the person is on bail, or to ask the court to impose bail conditions.[2] 
• a variation application: any “interested person” (including the prosecutor, accused, complainant in a domestic violence matter and the Attorney General) may apply to vary the conditions of the accused person’s bail.[3] For example, the accused may apply to the court to vary their bail by reducing their reporting conditions from every day to 3 days per week or they may vary the address at which they reside.  

For the purpose of this course, we will focus on release applications.

5.2. Decision of the court (NSW)

Upon hearing a release application, the court may make one of the following decisions[1]:

• release the person without bail for the offence
• dispense with bail for the offence
• grant bail for the offence, which may be either with or without conditions (i.e. conditional or unconditional release)
• refuse bail for the offence.

5.3. The legal tests for release applications (NSW)

When a court hears a release application, there are two questions it must ask:

The first issue which needs to be determined is whether or not the offence is a “show cause offence”. Bail must be refused for a show cause offence unless the accused person shows cause why his or her detention is not justified.[1] You can work out whether the offence is a “show cause” offence by referring to section 16B of the Bail Act: https://www.legislation.nsw.gov.au/#/view/act/2013/26/part3/div1a/sec16b

If the person applying for bail does show cause (or if the offence is not a show cause offence), the court must then ask whether the person presents an unacceptable risk. The court is to refuse bail if it is satisfied that there is an unacceptable risk that the accused person, if released from custody will[2]: 

• fail to appear at any proceedings for the offence, or
• commit a serious offence, or
• endanger the safety of victims, individuals or the community, or
• interfere with witnesses or evidence

If there are no unacceptable risks the court must grant bail, release the person without bail, or dispense with bail.

When assessing whether a bail concern exists, the court is to consider the factors set out in section 18 of the Bail Act 2013 (NSW) which include:

• the accused person’s background, including criminal history, circumstances and community ties
• the nature and seriousness of the offence
• the strength of the prosecution case
• whether the accused person has a history of violence
• whether the accused person has previously committed a serious offence while on bail
• whether the accused person has a history of compliance or non-compliance with court orders
• whether the accused person has any criminal associations
• the length of time the accused person is likely to spend in custody if bail is refused
• the likelihood of a custodial sentence being imposed if the accused person is convicted of the offence
• if the accused person has been convicted of the offence, but not yet sentenced, the likelihood of a custodial sentence being imposed
• if the accused person has been convicted of the offence and proceedings on an appeal against conviction or sentence are pending before a court, whether the appeal has a reasonably arguable prospect of success
• any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment
• the need for the accused person to be free to prepare for his or her appearance in court or to obtain legal advice
• the need for the accused person to be free for any other lawful reason
• the conduct of the accused person towards any victim of the offence, or any family member of a victim, after the offence
• in the case of a serious offence, the views of any victim of the offence or any family member of a victim, to the extent relevant to a concern that the accused person could, if released from custody, endanger the safety of victims, individuals or the community
• the bail conditions that could reasonably be imposed to address any bail concerns.

5.4. Flow chart of the two tests for a release application

If the offence for which the accused is applying for bail, is not a “show cause” offence, Step 1 does not apply, and the court need only consider whether the accused presents an unacceptable risk (Step 2, below).

In determining whether the person has “shown cause”:

Step 1: has the accused person shown cause as to why his or her detention is not justified?

If the answer to this question is no - bail will be refused.

If the answer to this question is yes - the court will then determine step 2

Step 2: does the person present an unacceptable risk? (taking the section 18 matters into account)

If the answer to this question is yes - bail will be refused

If the answer to this question is no - the court must ask whether there are any conditions which must be imposed to address any bail concerns.

If conditions are required - conditional release

If no conditions are required - unconditional release 

6. Taking appropriate information and instructions from the client

The following notes are a guide to understanding some of these major issues and the sorts of detailed instructions you should obtain from a client. These will likely be the points the representative will argue in the application to the Court. Please note that every application is different and that you should carefully go through the factors set out in section 18 above to work out which issues are relevant to your case and then tell the court about those issues.

The offence

The strength of the prosecution case, the circumstances of the offence and the maximum penalty and likelihood of a custodial penalty are all important considerations.

If the Crown case is strong, the Court may be of the view that this is an incentive for the person not to attend Court, particularly if the likely outcome is gaol. However, if the person has a viable defence (which is made clear by pointing out holes in the prosecution case) the Court may think the person will attend Court to defend their case and, in their interest, should be released to prepare their case.

Background and community ties

Issues you would raise here include where the accused has lived and for how long, family and community ties, the accused’s employment, and any other supports the accused has in the community.

Likelihood of appearance at Court

A person’s criminal record will be relevant here. You need to address any breaches of bail or failure to appear on the accused’s criminal history. If a person has no ‘fail to appears’ or breaches, this is a strong argument that the person has demonstrated they are likely to appear. The availability of a surety and how much the surety is able to put up is also a very important. If the person was using alcohol or other drugs at the time of the alleged offences but is now in a rehabilitation program, this would be a strong factor in favour of their likelihood of appearing at court and protection of the community. 

Protection of the community

The Court will need to make an assessment about whether the accused is likely to commit further offence whilst on bail. The accused’s criminal record is usually a central focus of this consideration. 

Protection of the alleged victims

This is of particular concern if the charge is one involving violence, including domestic violence. Proximity of the alleged victim’s place of work and residence will be important and whether or not any threats have been made or potential for unwanted contact.

Accused’s interests

It is very important to take full instructions from the person applying for bail in relation to how being in custody affects them and their family as these issues may persuade the Court in some circumstances to release the accused on appropriate conditions.

Some issues which may be taken into consideration include: the accused’s ability to prepare their defence, maintaining employment, family responsibilities, mental or physical health issues, conditions in custody and distance from family whilst in custody will all be relevant to this aspect of the bail determination.

6.1. Explaining bail process to client

Bail is the release from custody of a person charged with an offence on the basis that they sign an undertaking to turn up to court to answer the charge which they face.

Bail may be granted unconditionally or on conditions that the accused person agrees to certain orders which the police or court thinks are necessary to protect the community and ensure the person’s attendance at court.

The police may grant or refuse bail at the station following a person being charged. If the person is refused bail by the police, the person may make a bail application to the court.

Local and District Court decisions can be reviewed by the Supreme Court. In NSW a Court is to refuse to hear a second bail application where a previous application has been made unless there are grounds for a further application for bail (this does not apply if the accused was unrepresented when the first bail application was made).

The bail determination is a very important step in the criminal process. The refusal of bail has a significant impact upon many issues including a person’s ability to conduct their defence, conviction rates, and the size of remand populations.[1]

Sentencing outcomes may be more limited for a person who is sentenced whilst on remand. For example, the person refused bail does not have the opportunity to engage in rehabilitation programs within the community to demonstrate their prospects of rehabilitation when facing sentence. A person who is on remand also has more limited access to drug and alcohol programs than sentenced prisoners which creates further disparities between those on bail and those on remand by virtue of being refused bail.

Each State and Territory has its own legislation relating to bail. Each jurisdiction has differences in relation to the legal tests and procedures, however, there are general themes in relation to the main considerations a Magistrate or Judge considers when making a bail determination.

These include:

·      the likelihood of the accused appearing at Court

·      the protection and safety of victims and the community

6.2. Bail options and conditions

Options and conditions can range from being light (e.g. simply residing at a particular residence) to being very onerous (e.g. conditions which have the effect of placing the accused under house arrest except for attending Court) depending upon what the Court thinks is necessary to mitigate any “unacceptable risk”.

The Bail Act 2013 (NSW) sets out the conditions which the Court may impose when granting bail and include: 

·      Conduct requirements: E.g.: reporting, residence, attendance at particular services

·      Security requirements (surety provided by the accused or by another person)

·      Character acknowledgments

·      Accommodation requirements (for children only)

When proposing conditions, it is also important to think about issues which the Court will have concern about and try to propose conditions to overcome any concern the Court may have.

For example, if the accused has an alcohol or other drug dependence and their prior offending has been related to alcohol or other drug use, the Court may think there is an “unacceptable risk” that the accused may commit a serious offence. To mitigate this risk, it may be appropriate to arrange (after seeking instructions) for the accused to be assessed for a residential rehabilitation service. If the accused is assessed as suitable and willing to enter the program, then the Court may grant bail to the accused on condition that they enter in into the treatment program and comply with all directions of that service (conduct requirements).

6.3. Consequences of breaches in bail conditions

It is an offence to fail to appear in court, without reasonable excuse, in accordance with a bail undertaking. The maximum penalty is three years gaol and/or fine[1].

Significantly, if a "fail to appear" offence is on the accused’s record, it may have an adverse effect on any future bail application. Additionally, the client may forfeit any security that they, or heir family or friends, may have lodged as a bail condition.

If the accused is granted bail which is very strict or difficult to comply with, the accused may make an application to the Court to vary the conditions of bail. 

7. Alternative outcomes to prison sentencing (NSW)

In New South Wales, the Crimes (Sentencing Procedure) Act 1999 (NSW) sets out the sentencing options. On 24 September 2019, major reforms were introduced. In addition to full-time imprisonment, the court may also impose: Community Release orders, Community Corrections orders and Intensive Corrections orders. The sentencing options in NSW from most lenient to most severe are as follows:

Options (i) to (ii) do not involve a criminal conviction

i.               Section 10(1)(a): unconditional dismissal of charges

ii.              Section 10(1)(b)/Section 9(1)(b): discharging the person under a conditional release order (CRO)

iii.             Section 10(1)(c): discharging the person on condition that the person participate in an intervention program

All other options which follow include the recording of a conviction

iv.             Section 10A: conviction with no other penalty: https://www.legislation.nsw.gov.au/#/view/act/1999/92/part2/div3/sec10a

v.              Fines: Section 15: https://www.legislation.nsw.gov.au/#/view/act/1999/92/part2/div4/sec15

vi.             Community release order (CRO) (with a conviction): Section 9(1)(a):  https://www.legislation.nsw.gov.au/#/view/act/1999/92/part2/div3/sec9

vii.           Community Corrections Order (CCO): Section 8: https://www.legislation.nsw.gov.au/#/view/act/1999/92/part2/div3/sec8

The following options (viii) and (ix) are terms of imprisonment:

viii.         Intensive Corrections order (ICO): Section 7: https://www.legislation.nsw.gov.au/#/view/act/1999/92/part2/div2/sec7

[an ICO is a term of imprisonment served in the community – subject to certain conditions, such as engaging in particular programs, being supervised by community corrections]

ix.            Full time Imprisonment

NSW Legal Aid Commission has put together a package of information which carefully explains the sentencing options in NSW: https://www.legalaid.nsw.gov.au/for-lawyers/resources-and-tools/sentencing-reforms

Offenders who are put on a CCO or an ICO are typically required to adhere to a number of "conditions," which may include:

• to be of good behaviour, not commit any further offences
• supervision by the community corrections
• abstain from the use of alcohol or other drugs
• engage in treatment programs
• community service
• home detention (ICO only).

If a CRO, CCO or ICO is breached, the order may be revoked, and the person re-sentenced to a more severe penalty.

Circle Sentencing

The Circle Court is available to some Aboriginal and Torres Strait Islander offenders, depending on the nature of their offence and aims to enhance their respect for, and thus their compliance with, the law through the self-determined process.

In towns where Circle Courts operate, Indigenous offenders may be referred to the Circle Court for sentence following a plea of guilty. The court comprises a magistrate, police prosecutor, the victim and local Aboriginal Elders, all of whom have a voice in relation to the sentencing of the offender. The court must operate within normal sentencing guidelines prescribed by legislation.

Further resources relating to circle sentencing:

·      NSW Judicial Commission: https://www.judcom.nsw.gov.au/education/education-dvds/circle-sentencing-in-nsw/

·      Creative Spirits: https://www.creativespirits.info/aboriginalculture/law/circle-sentencing

·      ABC News February 2019: https://www.abc.net.au/news/2018-09-04/circle-sentencing-to-be-reviewed-for-first-time-in-10-years/10198802

Restorative Justice

The term ‘restorative justice’ implies the notion of the offender making amends to the victim. It refers to approaches to sentencing and punishment which aim to get the offender to take responsibility for their crime through the process of direct interaction with the victim via a conference. This objective facilitates the victim being given a voice and also hearing the offender express remorse and apologise for their actions. Examples of sentencing processes which embody the notion of restorative justice are:

• Youth Justice Conferencing
• Circle Sentencing of Indigenous offenders

Mental Health Diversion (NSW)

In addition to the sentencing options at law in the Local Court, clients must also be advised in appropriate cases about the possibility of making an application in relation to section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW). This section allows for a person who is mentally ill or suffering from a mental health condition or cognitive impairment to be diverted from being dealt with at law. The court may discharge the person (with or without conditions) if it determines that it would be more appropriate to deal with the defendant in accordance with section 32 than in accordance with law. There are also other diversionary options available for mentally ill persons (section 33).

Section 32: https://www.legislation.nsw.gov.au/#/view/act/1990/10/part3/sec32

Section 33: https://www.legislation.nsw.gov.au/#/view/act/1990/10/part3/sec33

The Intellectual Disability Rights Service has developed a helpful step-by-step guide for making a section 32 application: https://idrs.org.au/resources/section-32/

8. Conflicts between Aboriginal & Torres Strait Islander cultural needs & bail requirements

The Aboriginal Legal Service provides an important telephone advice service (custody notification service - CNS) which is staffed by ALS lawyers to give legal advice and check on the person’s welfare. In some circumstances the lawyer assisting can help to negotiate bail for the person in custody with the custody manager. Police are required under the NSW Law Enforcement (Powers and Responsibilities) Regulations 2016 (NSW)   to notify the Aboriginal Legal Service NSW/ACT when an Aboriginal or Torres Strait Islander person is taken into custody (see regulation 37: http://classic.austlii.edu.au/au/legis/nsw/consol_reg/learr2016542/s37.html)

There is a distinct lack of culturally appropriate diversion programs, mental health and alcohol and other drugs programs which would support an Aboriginal and Torres Strait Islander person applying for bail. The lack of programs was recognised in the 2017 ALRC Pathways to Justice report (see recommendation 5-2) at this link to the report: https://www.alrc.gov.au/publication/pathways-to-justice-inquiry-into-the-incarceration-rate-of-aboriginal-and-torres-strait-islander-peoples-alrc-report-133/1-introduction-to-the-inquiry-18/

The Australian Law Reform Commission in its Pathways to Justice Report (2017) comprehensively discusses issues relating to bail and culture in Part 2 of its report which can be found at this link: https://www.alrc.gov.au/publication/incarceration-rates-of-aboriginal-and-torres-strait-islander-peoples-dp-84/2-bail-and-the-remand-population/background-28/

Further resources:

Denning-Cotter (2008), Bail Support in Australia, Indigenous Justice Clearing House: https://www.indigenousjustice.gov.au/wp-content/uploads/mp/files/publications/files/brief002.v1.pdf

9. Preparing bail application information

The most common situation where you will be required to assist someone with a bail application is if the person is in custody having been refused bail by the Police. In these cases, you are permitted to make a verbal application for bail. Effective interviewing skills and assessment of the law are essential to providing your client with accurate legal advice and making the best bail application on their behalf.

There are a number of forms available on the Local Court website, for example in cases where a person wants to have their bail reviewed or for a Supreme Court Bail application.  See here under the heading “Bail Forms”.

Local Court Forms:

http://www.localcourt.justice.nsw.gov.au/Pages/forms_fees/forms.aspx

Supreme Court forms:

http://www.supremecourt.justice.nsw.gov.au/Pages/sco2_formsfees/SCO2_forms/SCO2_forms_subject/crime_bail_forms.aspx

You must always ensure that your client understands the law in relation to bail, especially the importance of putting forward the best application you can. There are some situations where seeking a short adjournment to provide the court with some relevant supporting documentation may be in your client’s interests.

10. Bail options and rights of juveniles in the justice system

Where bail has been refused by a police officer, the child will be brought before the court as soon as practicable. Most bail conditions are in the form of meeting certain conditions rather than a surety of money.  However, conditions imposed cannot be unreasonable or unrealistic. Factors taken into account are education, health and wellbeing and the likely effect of exacerbating problems at home.

It is important to make contact with family and support persons prior to making the bail application to identify the most appropriate bail proposal for the child and, where possible, have the family or support persons attend court. The Juvenile Justice officers may also be an important source of assistance as well as any youth services which provide assistance to young persons in custody. 

11. Personnel involved in bail applications

The Local Court tends to be less formal than the Supreme Court in relation to procedures for bail applications. The following material details the process you can expect at a bail hearing.

1. The accused person will be brought to Court
2. The legal representative will mention the matter (in the Local Court it would be indicated that bail is sought. In the Supreme Court, the Court will be aware that the bail application is listed as they are listed weeks in advance).
3. The prosecution will hand up their material (usually the police facts, the accused’s record (if they have one) and sometimes witness statements and a letter from the officer in charge stating their views on bail & the Judge or Magistrate reads this material
4. The accused’s representative hands up any evidence which they seek to rely upon (e.g. support letters) and this material is then read
5. The Judge/Magistrate will ask the Prosecutor what the prosecution's attitude is, to bail (they will either oppose or consent or say they don’t wish to be heard)
6. The Judge/Magistrate will then ask you to make your submissions on bail
7. The prosecution will have an opportunity to make submissions
8. The Judge/Magistrate then makes their determination about the application and gives reasons granting or refusing bail. If bail is granted, the conditions of bail will be made clear in the judgement.

If bail is granted, the person will be released once the conditions have been met and bail undertaking signed.

If bail is refused, the person is remanded in custody until the matter is next mentioned at Court.

12. Preparing instruction for legal representatives to make a bail application

Preparing instruction for legal representatives to make a bail application

The Legal Representative needs to have all relevant information and any relevant evidence to ensure they can make the best bail application on behalf of their client. If you are working as a legal advocate, it is your role to help to ensure all relevant material is on the file, this includes supporting documentation such as a letter from a doctor or rehabilitation centre.

Evidence to support bail proposals (e.g. where a person will live or who they will see for counselling) are usually higher in the Supreme Court than the Local Court. It is advisable that evidence is obtained to strengthen your bail application, for example:

• It may be advantageous to call one of the accused’s parents to give evidence if the bail proposal is that the accused lives with their parents whilst on bail. This gives the Judge the opportunity to see that the parent is a responsible person who takes Court orders seriously and will help the accused to comply with bail
• Obtaining letters from employers or other support networks to prove that the person has community ties
• Obtaining medical information from doctors to show if the accused suffers from a physical illness or mental health issue
• Obtaining letters from sureties to confirm they are an acceptable person and to advise the Court of the sums of money they are willing to forfeit

13. Additional articles and resources

·      Weatherburn and Holmes (2017), Indigenous imprisonment in NSW: A closer look at the trend, BOCSAR:  https://www.bocsar.nsw.gov.au/Documents/BB/Report-2017-Indigenous-Imprisonment-in-NSW-BB126.pdf

·      Willis (2017) Bail support: A review of the literature. Research Reports no. 4. Canberra: Australian Institute of Criminology. https://www.aic.gov.au/publications/rr/rr004

14. Gather and record relevant information to advise client

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 clients 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.

Utilise effective communication techniques to determine client knowledge and understanding of the circumstances

Always keep in mind that the legal system is complex, and a client may not be 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 understand 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’.

Giving clients a hypothetical scenario similar to their own circumstances is a further method of testing their level of understanding. An example of this would be asking a client, ‘if you had a bail condition to report to police Monday, Wednesday and Thursday and you didn’t report on Wednesday because you were working late, could the police arrest you for breaching your bail?’

Follow statutory and workplace guidelines when conducting a client interview

Client interviews are conducted following guidelines of confidentiality and conflict of interest, and it is essential that these are explained to the client (see ILACSA501A for further information about this). It is vital to listen to all the information that the client shares and to make the client feel comfortable in the interview.

Record client responses in an appropriate format

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.

Debrief Post Interview

The debrief with the client 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 practitioner 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.

14.1. Advise client on court procedures and options

Identify and acknowledge client’s issues and needs

One of the greatest challenges a legal practitioner/interviewer has is building and maintaining rapport. Consequently, if a client has specific needs, or certain goals, it is important to make the client aware that they have been acknowledged.

Some common needs of a client may include:

·      Family: custody of children, separation proceedings (divorce and property settlement)

·      Civil: consumer rights, tenancy, neighbour disputes

·      Criminal: criminal charges, breach of bail, AVOs

It is important to be aware that clients often present with a similar set of, often intergenerational, underlying economic and social issues, for example:

·      Drugs and alcohol

·      Mental health

·      Homelessness

·      Lower socio-economic status

·      Poor educational outcomes

·      Low job prospects

·      Broken families

·      Domestic violence victim, witness or both

·      Criminal history

Refer client and/or client issues to appropriate practitioner

If appropriate, legal practitioners can refer a client to a service that is better suited to their needs, or has capacity to assist them. Some different referral services include:

·      Aboriginal Legal Services

·      Legal Aid Commissions

·      Private representation

·      Community Legal Centres

·      Law Society solicitor referral service and pro bono schemes

·      Bar Association Pro Bono Scheme

·      Self-represented (which is a last resort)

Additionally, a practitioner can refer internally, such as to a solicitor who specialises in family law, if it is a family law matter.

Identify and explain available options to the client for their court appearance, case strategy, plea/s and potential outcomes

An essential skill of a legal practitioner is being 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.

For example, in a criminal matter, a practitioner would advise their client in relation to the strength of the prosecution case and the client’s option to plead guilty or not guilty, and what the likely outcomes of both of those pleas would be.

The client can plead guilty at any time from the first mention in Court or at a later time up until their matter has been determined by way of a hearing or trial. A person can change their plea to guilty, even if they have pleaded not guilty at an earlier time.[1]

If the client pleads not guilty, then the defendant indicates that they wish to defend the charge and the case may be determined by the hearing of evidence either in the Local/Magistrates’ Court before a Magistrate or in a higher court, depending on the seriousness of the charge.

Summary matters and indictable charges that the Director of Public Prosecutions (DPP) decide not to have dealt with in the District Court, are dealt with in the Local/Magistrates’ Court. Strictly indictable matters must be dealt with in the District or Supreme Courts. The DPP may, in some circumstances, decide to elect to have some charges dealt with in the District Court if they are of the view that they are of sufficient seriousness and the Local/Magistrates’ Court does not have enough power to sentence the offender for the charge.

In all other states and territories apart from NSW charges which are dealt with in the District/County or Supreme Court all commence in the Local/Magistrates’ Court and are transferred to the higher Court in proceedings which are called a “committal”. A Magistrate “commits” a matter to the higher court if it is satisfied that there is sufficient evidence to prove the charges. The Judge of the District/County or Supreme Court finalises the matters either by presiding over a trial if the matter is defended or at a sentence hearing if the person is convicted after trial or if the person pleads guilty.

Note: In NSW now Defendants charged with indictable offences no longer have the right to a Committal Hearing. Instead, the Magistrate’s role is now limited to overseeing the procedural steps required under the Criminal Procedure Act 1986. This means ensuring a brief of evidence is served on the defendant or their lawyer, ensuring that a charge certificate is filed and served on the defendant or their lawyer, and ensuring that a case conference is held between the prosecution and the defence (if the defendant is represented) and that a case conference certificate is subsequently filed with the court. The accused person must then enter a plea to each of the charges that prosecution is proceeding with and the Magistrate will commit the matter for trial or for sentence (Section 55).

Summary or indictable matters which are dealt with in the Local/Magistrates’ Court are either finalised by a defended hearing before a Magistrate or a sentence hearing before a Magistrate. The procedures set out below are those relating to matter finalised in the Local/Magistrates’ Court (which represents the vast majority of charges which come before the Courts).    

Pleading guilty:

·      After a client pleads guilty, depending on the seriousness of the matter or if the defendant wishes to gather documents or other material to assist their case on sentence. The matter may be adjourned for a period for this to happen. Examples of the sorts of document which may be ordered or obtained:

-       A pre-sentence report (Court ordered document which sets out the person’s background and issues contributing to their offending as well as assessing whether they are eligible for community based sentencing options e.g. community service). This assessment is prepared by Probation and Parole, or the equivalent Department in other states and territories.

-       Psychiatric or Psychological reports

-       Character references  

·      If the person is on bail and there have not been any issues with the person complying with their bail, they will likely remain on bail until the next Court date.

·      If client has limited criminal history and the facts of the offence are not too serious, then the Magistrate may sentence the client at the first appearance

Pleading not-guilty:

·      Magistrate adjourns the matter, usually for 6 weeks, for a ‘brief of evidence’ to be served. Police may sometimes be granted more time from the Court to collect their evidence, particularly if the evidence includes testing of drugs or DNA evidence which can, in some cases, take a significant period of time to be obtained.

·      Once the client’s legal representative receives the brief of evidence from the police, the legal representative will contact the client to take further instructions on the charge.

·      At the next court date the client will need to either confirm the plea of not guilty after which the matter will be set for hearing (some weeks later), or enter a plea of guilty.

·      After hearing Magistrate will find client either guilty (and therefore the client will be sentenced) or not guilty and dismiss charges without the matter going on client’s criminal record.

It is also relevant to note that there are also provisions for defendants to be diverted from the general criminal justice system. A sound understanding of the diversion options in the court system within which you are assisting clients is essential to achieving the best possible result for the client. For example, circle sentencing for Indigenous clients, youth justice conferences for young people and the Drug Court.

Importantly, it is also important to understand the options available for people with mental health issues. For example, in NSW, it is important to work out whether a client suffering from a mental health condition may be eligible to be diverted from the criminal justice system under s32 of the Mental Health (Forensic Provisions) Act 1990 (NSW). The effect of a person being dealt with under this section is that they are “discharged” or not required to have the matter dealt with in the usual way of pleading guilty or not guilty and will receive no record for their charge on the condition that they comply with a mental health treatment plan for a certain period of time.

14.2. Visit court room with client and explain court room procedures

The court operates under strict, traditional rules and everyone behaves very formally. It is important that the client understand court etiquette, particularly if they have not had any experience in a courtroom before.

Everyone that appears in court should[1]:

·      Dress neatly

·      Turn off their mobile phone

·      Take off hats and sunglasses

·      Not eat, drink or chew gum

·      Sit quietly

·      Not speak to any member of the jury in the District Court or Supreme Court.

To acknowledge the judge or magistrate, everyone should:

·      Stand whenever the depositions clerk or bailiff calls ‘all rise’ as the magistrate or judge enters or leaves the courtroom and take a seat only once the magistrate or judge does so themselves.

·      Bow their head to acknowledge the magistrate or judge every time they enter or leave the courtroom

·      Address the magistrate or judge as ‘Your Honour’.

When inside the courtroom a defendant should:

·      Stand up whenever the judge or magistrate is speaking to them and maintain eye contact

·      Speak clearly and read from notes if needed.

14.3. Prepare and present detailed case notes, client instructions and other relevant material to the practitioner

Most of the case notes that will be useful will be obtained from client interviewing. Thus, it is necessary to make clear notes, during and also following the conclusion of the interview, in order to advance the clients wishes to the practitioner and ensure the file contains all relevant information. It is important to present the information in a clear and concise manner.

Keeping a written record[1]

One of the most useful things a practitioner can do is to help the client write a detailed record of the whole story. It may not be appropriate to try to do this at the first interview, 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 a practitioner must keep asking questions to fill in the detail. Who else was there then? Did they say anything?

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

When the practitioner has the full story, they can work through to see where the problems lie and begin to work out what information is needed and how the problems might be resolved.

Additionally, it is useful to keep a written record, as if a client complains about the practitioner or another colleagues conduct, there will be physical evidence of what actually occurred.

It is also important to keep file notes/case notes. For example if in court a practitioner is asked by the Magistrate the name of the client’s treating psychiatrist, then they are able to automatically check on the file note.

15. Initiate court process

File pleadings and other documents at the court registry

Pleadings are formal claims, defences and replies stated in documents throughout the court process. Originating processes are filed by the plaintiff and served on defendants within any limitation periods. More key documents must be filed at the court. Practitioner/client should obtain a ‘sealed copy’ of the relevant document after filing. This is a copy of the document that the court registry has stamped with the court seal indicating that the document has been formally filed at court.

There are different regulations for criminal and civil matters.

For a criminal matter the police or DPP will file their documents with the court to initiate court process.

For a civil matter the client (if a plaintiff) would need to file a statement of claim. If the client were the defendant, then they would be required to file a notice of appearance or defence.

A statement of claim is a document that is made up of a number of elements:

·      Type of claim: such as a mercantile claim (money lent) or sale of goods and services (work done)

·      Relief claimed: a monetary amount

·      Pleadings and particulars of the claim: specific details of the circumstances leading to the statement of claim

Seek leave to appear

A person has a right to appear before a Court if they are qualified as a solicitor and have a current practising certificate. Note: There are some jurisdictions where there are special rules in place for non-solicitors to appear in court. For example, in Western Australian Aboriginal Court Officers have the right to appear in court in certain matters. They hold a special certificate that gives them permission to do this.

In some Courts, a person who is not a solicitor may “seek leave” to appear. That is, ask for special permission to appear in a matter when they do not hold a current practising certificate.

The procedure for seeking leave to appear is:

·      stand when your matter is called by the Magistrate or when it is your turn to mention your matter

·      announce your appearance and ask the Court for leave to appear. For example,

·      ‘Your Honour, my name is Mr Morris, field officer with the Aboriginal Legal Service. I seek your Honour’s leave to appear in the matter of [state your client’s name].’

The Magistrate may immediately grant you leave to appear or they may ask you questions about what is happening with the matter and why you are appearing (rather than the solicitor in charge of the case). Some Magistrate may grant a person leave to appear on a mention, for example, but not on a bail application where it is presumed greater legal knowledge or training may be expected. A Magistrate may also refuse to grant leave.  

Prepare and submit request for adjournment, hearing date, call over or mention, as appropriate

When you appear in a court matter, you may need to request an adjournment, call over or hearing date, or another mention date It is important that you understand what each of these mean.

Adjournment: To suspend a court hearing to a future specified day. If an adjournment is granted, it will usually be for two or three weeks, but it can be longer depending on the reason. During this time, you should make sure you do everything you can to be ready for your next appearance in court.[1]

Call over: A call-over is a meeting where the Judge and the lawyers for both sides discuss any pre-trial issues. For example, a witness may need to give video evidence as they will be overseas at the time of the trial. Or the defence counsel might make a case for some evidence to be excluded. Alternatively, at some local courts, you might have to appear before a registrar who will ask you how you intend to plead. A trial date is set.[2]

Mention: In Magistrates' Court criminal matters, the first day on which a matter is listed at court. A case can only be heard on the mention day if it is a plea of guilty. There are no witnesses at the first mention and the magistrate makes all decisions based on the information presented.[3]

Hearing: A summary hearing will take place if the accused pleads not guilty to the charge(s). At this hearing, both parties present their case to the Court and a magistrate will determine the outcome.[4]

The process at a Hearing[5]

Prosecution case

·      the prosecutor will outline the evidence

·      each witness is led to the witness box and asked to swear an oath or make an affirmation to tell the truth

·      the prosecutor may question each witness to obtain their evidence, which is called the evidence in chief of the witness

·      the magistrate may ask each witness a few questions.

Defence case

When the prosecutor is finished questioning their witnesses

·      the defence lawyer or the defendant may then question (cross-examine) the witness to confirm or contest their evidence

·      the prosecutor may re-examine each witness to clarify anything

·      the defence lawyer may then submit there is no case to answer

·      if the magistrate finds that there is not enough evidence the case will be dismissed

·      if the magistrate decides there is a case to answer the defence lawyer can then call defence witnesses and the whole process will be repeated.

Final submissions

When all witnesses are questioned, the prosecutor and the defence lawyer will address the magistrate to sum up their cases. These are called submissions, and are usually given verbally but in some cases, you may need to provided written submissions to the court. If this happens you will be given directions as to when the documents need to be filed with the court registry.

The decision

After hearing all the evidence, the Magistrate may find the defendant:

Not guilty - the magistrate will dismiss the charges against the defendant

Guilty - the magistrate will decide on the penalty or set a sentence hearing.

After the decision, the magistrate will adjourn the court and the depositions clerk will call ‘all rise’ as the magistrate leaves the courtroom.

Contact opposing parties and negotiate an outcome or potential settlement, where possible

There are often many ways to resolve a dispute. Negotiation is one of them. It's usually better to sort out problems away from the court. Court can be costly, stressful, time consuming and may not lead to the outcome you want. Going to court should be a last resort. Legal practitioners should act in the best interests of the client, and work to ensure the best, most efficient and cost effective outcome.

Negotiation is the process where the client and the person they are in a dispute with each set out what they want and try to reach agreement. This can be done in writing or by talking to each other (provided there are no court orders preventing this). Often, negotiation can occur with the assistance of legal representation.[6]

In civil matters, if a practitioner considers settlement to be an appropriate method for their client, and the client is agreeable, they should contact the legal representation of the opposing party. This may be in writing or face-to-face. The practitioner should discuss with the opposing lawyer the prospect of negotiation. If the other party is agreeable, a date should be set up for the parties to negotiate an outcome, as opposed to going to court.

In criminal matters, it may be appropriate to, subject to your client’s instructions, to enter into a charge negotiation with the Police or the DPP. This usually involves writing representations to the Police or DPP. Each negotiation is different and depends on the facts of the case. You may for example request to have a charge or charges withdrawn, to amend the facts, to substitute a less serious offence in exchange for a plea of guilty.

16. Prepare for a plea in mitigation

Explain the sentencing procedure to client

After a defendant has pleaded guilty, or if a charge is proved following a hearing, the magistrate will have to decide what sentence to impose. All defendants are given the opportunity to say something about the sentence that the magistrate should impose, and to tell the magistrate about their background and personal circumstances. This is called "presenting a plea in mitigation".

·      Plea: that which is alleged, urged or pleaded in defence or justification^[1]

·      Mitigation: a reduction or attempt to secure a reduction in damages or punishment^[2]

It is necessary to explain what the likely outcomes will be if the client pleads guilty or not guilty. This is clearly dependent on the facts of the matter.

The plea in mitigation is one of the most common occurrences in the criminal justice system.^[3]

It is important to note that the legislation that guides sentencing is the Crimes (Sentencing and Procedure) Act 1999 (NSW). Section 21A of the Act sets out the aggravating and mitigating factors of the matter which help to determine the sentencing outcome. Additionally section 22 states that a guilty plea is to be taken into account in sentencing; a person who pleads guilty as opposed to not-guilty, will be rewarded with anywhere up to a 25% reduction on their ultimate sentence. Moreover, the various divisions of the Act give specific guidance on aspects of sentencing: Custodial sentences (Division 2), Non-Custodial sentences (Division 3) and Fines (Division 4).

Some of the things that may be raised in a Plea in Mitigation include:

·       An explanation of the facts and circumstances of the offence

·       Whether anyone else participated in the offence

·       The age, criminal record and personal background of the defendant

·       The work history and current employment situation of the defendant

·       The obligations of the defendant to support a family or other people

·       The defendant's health now or at the time of the offence (if it is relevant)

·       Whether drugs or alcohol influenced the offence, in some cases the prospect of rehabilitation or engagement with counselling services

·       Whether the defendant cooperated with the police when he or she was arrested, and whether or not the defendant pleaded guilty straight away and

·       Whether the defendant is sorry about what happened (i.e. any remorse shown by the offender for their actions).^[4]

Assist the practitioner to explain the range of possible penalties and/or sentences to client

In the justice system, there is a range of penalties available to a defendant, varying in severity. Although generally each crime has a maximum penalty allocated to it, this can be increased if there is aggravating circumstances. The final penalty will be dependent on a number of factors:

·       The seriousness of the crime

·       The effect on the victim

·       The offender’s circumstances

·       The offender’s criminal history

·       Whether the offender has cooperated with police.

Options could include monetary fines of various amounts, bonds or even imprisonment.

Obtain comparative sentencing results and communicate these to client as required

You can help the client to prepare for what may happen in court by explaining outcomes that have happened in similar cases. You will help the client to grasp the potential outcome by sharing information about  a similar matter, with similar facts, a judge in the same court gave a penalty/sentence of X. This will assist them in deciding whether to plead guilty or not guilty.

In some matters, particularly where the offence is serious, or where the offence is infrequently dealt with in the local court it is worthwhile looking at, and if appropriate tendering, a copy of the Judicial Commission of NSW statistics. These statistics are useful for considering what the range of results are for certain offences, and where this matter might fall within the range. Where the pool of matters dealt with in the local court is large, then the statistics can be even more persuasive to a magistrate, in that the sentence they wish to impose may fall outside of the range reflected in the statistics.

Moreover, it is always useful to be aware of relevant case law that may touch upon the offence for sentence and provide some guiding principles on sentencing when dealing with a particular kind of offence. Examples of this are particularly guideline judgments such as Re Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999[5] regarding high range drink driving offences, or R v Ponfield[6]regarding break, enter and steal offences.

(http://www.criminalcle.net.au/attachments/Sentencing_Advocacy_in_the_Local_Court.pdf )

An important principle that applies in sentencing offenders in criminal matters is called the parity principle.[7] This principle requires of consistency and equality before the law – the treatment of like cases alike, and different cases differently: Green v The Queen.[8]

Gather further information and instruction from client relevant to the plea

If any of the following points apply to the client, it may be of assistance if the practitioner includes them in the plea in mitigation. To do this, the client may need to provide specific documentation, such as health records, enrolment in a rehabilitation program, character references or client’s criminal record.

·      They have a good explanation for committing the offence

·      They were not involved in the offence as much as some others (you were not the "ring-leader")

·      It was a one-off mistake

·      They are young and inexperienced

·      They have no criminal record or if they have a record, it contains nothing similar to the present offence

·      They have support from family and friends which will help to ensure they don't get into trouble again

·      They have done, are doing, or will do, things to help themselves so they won't get into trouble again, for example no longer associate with certain people, do an anger management course, get debt management advice, or get treatment for alcohol or drug use problems

·      They co-operated with police

·      They have apologised to the victim of their offence

·      They are responsible for supporting their family or other people[9]

Assist the practitioner to prepare the plea for submission

To ensure effective case management, particularly in preparing pleas, it is very important that files are tidy and organised in a consistent way. It is imperative that any file notes are dated, and clearly identify the solicitor giving the advice and the para-legal assisting.

All file notes should include a brief summary of the legal problems and/or questions the client has, followed by detailed notes of the advice given and/or referrals made.

File notes must be dated and clearly identify the solicitor giving the advice and/or the para-legal assisting.

Gathering documents regarding any mitigating factors surrounding the matter would be necessary to assist in preparing the file note for the plea. This may include records from a treating psychiatrist, other, health record or documents outlining enrolment in a rehabilitation program.

17. Communicate outcomes to the client

Analyse court rulings and explain to client

When it comes to deciding on the appropriate sentence for the client, the options available to the court will depend on the offence that has committed. Some offences can attract no more than a fine, while others are serious enough for imprisonment to be an option. For certain offences the court has no option and must impose a minimum fine or a minimum term of imprisonment. Some offences are State offences and others are Commonwealth offences and this also affects what the court can do when it sentences the client.

The following is a list of the sentencing options available in the Magistrates’ Court for State offences:

·      No penalty

·      Conditional Release Order

·      Fine

·      Community Based Order with or without community service work or other requirements

·      Intensive Supervision Order with or without community service work or other requirements

·      Suspended term of imprisonment

·      Conditional suspended term of imprisonment (option if appearing in the Drug Court)

·      Immediate imprisonment.[1]

After your matter has been dealt with and the sentence handed down it is important that you speak with your client. In some cases this will mean going down to the court cells for an interview. You will need to take this opportunity to explain what occurred in court, what the sentence was, appeal options and respond to any questions  your client may have.

Identify the client’s responsibilities and available options for action consistent with court rulings

After any sentence, but particularly after the imposition of a jail sentence, it is a wise practice to speak to the client to discuss the result and consider, if appropriate, the possibility of appeal. If the client is not happy about the Magistrate’s decision, they can appeal. Appeal can be made against the conviction and or sentence or both. Leave to appeal can be made up to three months after the date of conviction and sentence. The client can lodge the appeal form at court (or from jail if they have received a jail sentence). There is a fee for lodging an appeal form. They must lodge the appeal within 28 days of the sentence/conviction date. In some circumstances this can be extended to three months with the permission of the Supreme Court. The appeal process is set out in the Crimes (Appeal and Review) Act 2001 (NSW), predominately in section 11.

If you have been sentenced to a short gaol sentence, appeals bail (bail granted while you are awaiting an appeal on conviction or sentence) may be given. With longer prison sentences, appeals bail is very hard to obtain.[2]

A practitioner must explain the client’s rights, but also their responsibilities. If for example, the client has to pay a fine, the practitioner will explain how the client will undertake the payment process. It is necessary to ensure the client is aware of their obligation to pay the fine within a certain time frame. In some situations, there may be payment plan options available for people who suffer from financial hardship. It is important that you explain these options and refer your client to obtain the correct forms to make such an application.

Example of Appeals form on following page:

IV

Criminal Appeal Act 1912

NOTICE OF APPEAL

or

NOTICE OF APPLICATION FOR LEAVE TO APPEAL

(Rule 23C of the Criminal Appeal Rules requires this notice to be accompanied by a statement of the grounds for appeal, written submissions in support of the appeal, a certificate of availability of transcript and exhibits, and a statement nominating the solicitor and counsel acting for the appellant)

NAME OF APPELLANT:____________________________________________________________

Date of Birth: _______________________

                                                                                    M.I.N.: ____________________________

                                                                                    CNI: ______________________________

                                                                                    Lower Court File No: _________________

THE APPELLANT APPEALS AGAINST:                          -    CONVICTION ONLY

-    CONVICTION AND SENTENCE

-  SENTENCE ONLY

PLEA ENTERED:                                                           -    GUILTY

-    NOT GUILTY

DETAILS OF COURT OF TRIAL:                                     -    SUPREME COURT

-    DISTRICT COURT

AT (Location):                                                             _________________________________

NAME OF JUDGE:                                                        _________________________________

DATES OF TRIAL AND SENTENCE HEARINGS:             _________________________________

                                                                                    _________________________________

DATE OF SENTENCE:                                                   _________________________________

CONVICTED OF (LIST ALL OFFENCES):            _________________________________

                                                                                    _________________________________

LONGEST SENTENCE:                                                  _________________________________

NON-PAROLE PERIOD:                                                            _________________________________

IF HELD IN CUSTODY, LOCATION OF GAOL:               _________________________________

IF NOT IN CUSTODY, RESIDENTIAL ADDRESS:            _________________________________

LEGAL REPRESENTATIVE:                                            _________________________________

(List name and address.  If seeking legal aid, an                                _________________________________

application must be sent to the Legal Aid Commission                                 _________________________________

of NSW)                                                                                   _________________________________

DOES APPELLANT WISH TO BE PRESENT AT HEARING OF APPEAL?              YES/NO

SIGNED (by appellant or solicitor or counsel):                       _________________________________

DATE:                                                                          _________________________________

Explain responsibilities and available options to the client and assist them to make their decision on preferred option

It may be that your client wishes to appeal their conviction or their sentence. You will need to provide them with advice about important court timeframes for filing documents, and the merits of the option and the appeals process.

The judge may increase the sentence should he or she consider the existing one too lenient. (Section 20(2)(b) Crimes (Appeal and Review) Act 2001 (NSW) allows the court to vary a sentence; section 3 defines this to include increasing it).

However, most practitioners would be aware of the “Parker warning” or “Parker direction”, a well-established rule of procedural fairness which requires the judge to warn the appellant of the intention to increase the sentence. Parker warnings may be very general, and the judge is only required to indicate that he or she is considering an increased sentence.

If a practitioner receives a Parker warning, they must take immediate instructions from their client, who will probably instruct them to seek leave to withdraw the appeal. Leave is required to withdraw an appeal[3] and is almost always granted even though the court is not bound to grant it.[4]

18. Children in the Courts

There are special courts that deal exclusively with court matters relating to children, these are called Children’s Courts. These courts have special jurisdiction to deal with children who have court matters relating to the Criminal Law or Child Protection matters. The Magistrates, lawyers and other support staff are specially trained to ensure children feel safe and understand the proceedings.

Criminal Law

In Criminal Law children are usually referred to as ‘juveniles’ and this jurisdiction is governed by special juvenile justice principles that are different to the adult jurisdiction based around diversion, rehabilitation and custody being used as a measure of last resort.

The Children’s Court deals with the following criminal cases: -

·       “Criminal cases where the defendant was under 18 years of age at the time of the alleged offence.

·       Traffic cases where the defendant is not old enough to hold a driver’s license or permit, or where the Children’s Court is dealing with other related criminal offences.

·       Breaches of parole, and in some cases the eligibility of children and young persons for release on parole”.[1]

There is special legislation that governs some aspects of this jurisdiction in NSW such as the Young Offenders Act 1997 (NSW) and the Children (Criminal Proceeding) Act 1987 (NSW). The principles of the Bail Act 2013 (NSW) equally apply to children.

Care and Protection

In the Care and Protection jurisdiction the court deals with matters relating to the care and protection of children and young people under the age of 18 years. These court cases occur when the relevant state Department has concerns about the safety, welfare and well-being of a child and / or concerns that they are at risk of harm. They may have either already taken steps or may want to take intervening steps to protect the child. In many cases the court may require that they have representation by a special lawyer who is an independent legal representative. The main piece of legislation that governs this area in NSW is the Children and Young Person’s Care and Protection Act 1998 (NSW).  Chapter 6 of this Act deals with Court Procedure and Chapter 2, Part 2 deals with special guiding principles that apply to Aboriginal and Torres Strait Islander children, specifically in relation to self-determination, family involvement in decision-making and placement principles.

19. Customary Law Recognition in Australia

Customary law in Australia relates to the systems and practices amongst Aboriginal Australians which have developed over time from accepted moral norms in Aboriginal societies, and which regulate human behaviour, mandate specific sanctions for non-compliance, and connect people with the land and with each other, through a system of relationships. Customary laws are passed on by word of mouth and are not codified (nor can they be easily codified). In addition, they are not singular throughout Australia — different language groups and clans have different concepts of customary law, and what applies within one group or region cannot be assumed to be universal.

History of Customary Law

The customary laws of Aboriginal and Torres Strait Islander peoples were given little recognition by the legal system until recently. When the English colonised Australia, they ignored ownership of land. This continued until quite recently, assisted by the legal fiction that Australia was terra nullius (land belonging to no-one) at the time of colonisation. The legal argument was that Australia was “settled” (because it was, effectively, vacant) rather than conquered.

Places where Customary Law is Recognised

As a result of the High Court decision in Mabo in 1992 there is now limited recognition of Aboriginal ownership and use of land (native title). As well, customary law has some limited influence in the sentencing of some Aboriginal Indigenous offenders and in areas such as family relationships and the protection of sacred sites.

In particular customary law is often recognised in the following situations:

Through the courts:

·       Judicial responses and discretion;

·       Sentencing discretions;

·       Criminal law in the assigning of criminal responsibility;

·       Compensable injury;

·       Traditional marriage; and

·       Interrogation rules through trial.

Through legislation:

·       Grant of land rights and native title;

·       Protection of sites and sacred sites;

·       Hunting and fishing rights;

·       Aboriginal traditional marriages;

·       Aboriginal child care practices;

·       Traditional distribution on death; and

·       Aboriginal courts.

Sourced on 3/8/22: https://www.timebase.com.au/support/legalresources/Customary_Law_Recognition_in_Australia.html

20. Aboriginal Land Rights (Northern Territory) Act. 1976

In December 1976 the federal parliament passed the Aboriginal Land Rights (Northern Territory) Act. It was the first legislation in Australia that enabled First Nations peoples to claim land rights for Country where traditional ownership could be proven.

For almost 200 years First Nations peoples had been losing rights to their lands as white settlers encroached. This Act was the first step to enabling First Nations peoples to regain these rights.

Colonisation of Australia

First Nations people’s rights to land have been challenged ever since the British arrived to occupy the Australian continent. Despite resisting the occupation, many communities were no longer able to live on Country.

In the Northern Territory the occupation was largely through pastoral leases and many communities managed to retain connection to Country through pastoral work, although conditions on the worst stations meant that Aboriginal workers were treated little better than slave labour.

Pushing for land rights

In 1963 the federal government announced, with no consultation with Yolngu people, that it would excise a portion of their homeland in north-east Arnhem Land for the construction of a bauxite mine.

The Yolngu sent a bark petition to the House of Representatives insisting that their land rights be respected. The government initiated an inquiry but ultimately disregarded the Yolngu’s requests and the mine went ahead.

In 1966 the Gurindji people at Wave Hill cattle station in the Northern Territory went on strike, demanding an increase in wages and the return of a portion of their homelands from the lessees (Vestey Brothers). In the first year of the strike, the Gurindji moved 20 kilometres from the cattle station settlement back to their traditional country at Daguragu.

The move highlighted a symbolic shift away from demands around wages and working conditions to a focus on the Gurindji’s need to control their homelands again.

Their struggle went on for nine years during which time the Gurindji and their supporters campaigned tirelessly around the country, bringing the issue of Aboriginal land rights to the fore of the public agenda.

Woodward Commission

Eventually, as part of its successful 1972 federal election campaign, the Labor Party made Aboriginal land rights part of its platform. Labor leader Gough Whitlam said at the launch of the campaign: ‘We will legislate to give Aboriginal land rights – because all of us as Australians are diminished while the Aborigines are denied their rightful place in this nation’.

This was in stark contrast to the previous coalition government, which in January 1972, announced the implementation of a system of 50-year general purpose leases to First Nations communities for Country that First Nations peoples considered to be their traditional homelands.

This decision led to the wave of action by Indigenous rights protesters and the establishment of the Aboriginal Tent Embassy in Canberra.

The Labor Party was elected and in 1973 Prime Minister Whitlam appointed Mr Justice Woodward to investigate suitable ways to recognise Aboriginal land rights in the Northern Territory.

In April 1974 Justice Woodward handed down the final report of the Aboriginal Land Rights Commission, which recommended ‘the provision of some basic compensation in the form of land for those Aborigines who have been irrevocably deprived of the rights and interests which would otherwise have been inherited from their ancestors’.

The commission recommended procedures for First Nations peoples to claim land and that such property should be held under inalienable freehold title whereby it could not be acquired, sold, mortgaged or disposed of in any way – and insisted that mining and other development should only take place on First Nations land with the consent of First Nations landowners.

Land Rights Act 1976

In mid-1975 the Whitlam government had introduced legislation to parliament based extensively on Woodward’s recommendations. However, before the Bill could be passed the government was dismissed in the November 1975 constitutional crisis.

The December 1975 election brought the Malcolm Fraser led Coalition to power with a landslide victory. Fortunately, the new government had promised to continue the push for Aboriginal land rights.

In December 1976 the Aboriginal Land Rights (Northern Territory) Act was passed with historic bipartisan support. It was the first legislation that allowed for First Nations peoples to claim land title if traditional association could be proven.

·       Four land councils were established under the Act:

·       the Central Land Council, responsible for the southern half of the Northern Territory

·       the Northern Land Council, responsible for the northern half of the territory

·       the Tiwi Land Council, responsible for Bathurst and Melville Islands

·       the Anindilyakwa Land Council, responsible for Groote Eyland and Bickerton Island.

Currently, about 50 per cent of the Northern Territory and 85 per cent of its coastline is recognised as being owned by First Nations groups.

Sourced on 3/8/22: https://www.nma.gov.au/defining-moments/resources/aboriginal-land-rights-act

21. Aboriginal Legal Service

NATSILS is the national peak body of Aboriginal and Torres Strait Islander legal services who operate across Australia.

NATSILS represents and is the national voice of community-controlled Aboriginal and Torres Strait Islander Legal Services. We advocate at the national level for the rights of Aboriginal and Torres Strait Islander peoples within the justice system and work to ensure that our peoples have equitable access to justice.

The first community-controlled Aboriginal and Torres Strait Islander Legal Services (ATSILS) were established 50 years ago to provide culturally competent legal assistance services to Aboriginal and Torres Strait Islander peoples.

NATSILS members include:

·       North Australian Aboriginal Justice Agency

·       Aboriginal Legal Service of Western Australia

·       Aboriginal Legal Rights Movement, South Australia

·       Victorian Aboriginal Legal Service

·       Aboriginal and Torres Strait Islander Legal Service (Qld) Ltd

·       Aboriginal Legal Service (NSW/ACT) Limited

·       Tasmanian Aboriginal Legal Service

Sourced on 3/8/22: https://www.natsils.org.au/

The Aboriginal Legal Service (ALS) in NSW/ACT

Aboriginal activists and lawyers established the Aboriginal Legal Service (ALS) in 1970 in the Sydney suburb of Redfern. It was staffed by volunteers who provided free legal advice and representation to the Aboriginal people of inner Sydney.

In 1971, the service received its first government grant for the salaries of a full-time solicitor, a field officer and a secretary. In 2010, 18 lawyers were working for the ALS.

The service was Australia's first free legal service, setting the model for mainstream community legal aid. There are now legal services all across Australia.

The ALS assists Aboriginal people in many ways in and outside the courtroom:

·       Custody Notification Service. By law, the police must notify the ALS when an Aboriginal person is arrested. The lawyer speaks with the person and gives advice.

·       Prisoner Support Unit. The Prisoner Support Unit aims to prevent Aboriginal deaths in custody by visiting and checking in with prisoners. It assists in their rehabilitation, provides crisis support, helps prisoners stay in contact with their families and when they are released in unfamiliar towns.

·       Community legal education. The ALS develops, produces and delivers community legal education activities.

·       Aboriginal Field Officers. Field Officers assist ALS lawyers in talking to Aboriginal clients and families, arrange for referrals, and provide law and social justice education in the community.

·       Family Violence Officers. The ALS works with people who have become victims of family violence. Family Violence Officers can also arrange referrals.

·       Law reform. The ALS advocates for the protection of the rights of Aboriginal people, in particular coronial reform and other advances in the criminal justice system.

Sourced on 3/8/22: https://www.creativespirits.info/aboriginalculture/law/australias-first-aboriginal-legal-service

Today the ALS is made up of over 200 staff across 24 offices throughout NSW and the ACT. The ALS does legal work in Criminal law, children’s Care and Protection law and Family law. We assist Aboriginal and Torres Strait Islander men, women and children through representation in court, advice and information, and referral to further support services.

After the apology in 2007, the number of Aboriginal children in out-of-home care is nine times higher than the rate for non-Aboriginal children. Aboriginal children taken from their homes are the most vulnerable children in our society. The ALS has dedicated Care and Protection Lawyers and Field Officers who work with child protection matters.

Of the 2,608 people who have died in custody since 1979–80, almost one-fifth were Aboriginal or Torres Strait Islander. Rates of Aboriginal deaths in custody remain high.

Despite only making up 3% of the Australian population, Aboriginal and Torres Strait Islander people make up 28% of the adult-prison population. These statistics continue to impact on Aboriginal communities throughout NSW and ACT.

Sourced on 3/8/22: https://www.alsnswact.org.au/about#:~:text=The%20Aboriginal%20Legal%20Service%20opened,to%20rule%20over%20our%20communities.

22. Community Legal Centres

Community legal centres (CLCs) are independent non-government organisations that provide free legal services to people and communities, at time when that help is needed most - particularly to people facing economic hardship and discrimination.

Community legal centres provide a safety net to prevent people's legal problems from escalating. Without early legal advice, families can break down and health problems can escalate; people can be unnecessarily evicted and can lose their jobs.

Sourced on 3/8/22: https://www.clcnsw.org.au/what-are-community-legal-centres

In 1975 a group of lawyers, volunteers, academics, social workers and community activists met in Redfern to explore the concept of “community control of legal services”. This group came together to advocate for the idea that everyone should be able to access justice, regardless of financial means. This was the impetus for the birth of community legal centres in NSW.

Two years later, in response to the scarcity of legal services for disadvantaged and marginalised people, the Redfern Legal Centre was established. The centre had one paid lawyer, supported by volunteers largely from the student body of UNSW. It provided free services to anyone who walked through the door, there was no means or merits testing. The centre was accountable to the community, to a committee led by community members, volunteers, lawyers and students. If there was no legal solution to injustice the centre fought for reform.

Generalist community legal centres soon developed in Parramatta and Marrickville with strong involvement from law students at Sydney and Macquarie University. In the 1980s Bob Ellicott QC helped to establish the Inner-City Legal Centre, which was supported by large law firms committing pro bono support to the centre. A fifth centre was opened at Kingsford by UNSW to provide opportunities for new law students to gain experience and to serve the community.

It soon became apparent that generalist community legal centres could not service all areas of legal need. Demand for assistance from the community in some areas required more focus and specialised response than generalist legal advice could provide. So, specialist community legal centres developed to cater to specific legal need and specific groups in areas including disability rights, immigration, tenancy, welfare rights, seniors rights, environmental law to meet community needs.

Centres realised that they needed centralised support for common issues, rather than working as individual centres. In 1990 NSW Community Legal Centre’s Secretariat was established after advocacy from centres. The secretariat supported the work of the centres and advocated on their behalf. The Secretariat became the Combined Community Legal Centres Group NSW in 1999, before changing its name and constitution to Community Legal Centres NSW in 2009. Community Legal Centres NSW is an independent peak body governed by a board elected by members and drawn from community legal centres. In 2018 its constitution was updated to enable board member positions from independent experts (not necessarily from community legal centres).

Community legal centres are now recognised and established as a core part of the legal assistance sector in NSW. The movement is still growing, and still committed to access to justice for all.

Sourced on 3/8/22:  https://www.clcnsw.org.au/history-of-CLCs

Community legal centres are community-embedded organisations that can provide you with free help for your legal problems. We do not generally work in criminal law although we do provide lots of legal services and support to victims/survivors of DV. For assistance with criminal law issues please go to the Aboriginal Legal Service or Legal Aid NSW.

We provide legal information and legal assistance in areas such as:

·       Domestic violence

·       Family violence

·       Sexual violence

·       Family law

·       Traffic fines

·       Credit & Debt

·       Housing

·       Employment

·       Discrimination

·       Centrelink

·       Wills

·       Victims Compensation

·       Police complaints

and more.

Community legal centres are not part of government. We do not provide your information to government or police, and we are bound by our professional obligations and community ethics to keep your information private.

There are 40 community legal centres in NSW - from Lismore to Nowra, Broken Hill to the Sydney metropolitan. Three of these centres are Aboriginal-controlled organisations:

Wirringa Baiya Aboriginal Women’s Legal Service (state-wide, but based in Marrickville): http://www.wirringabaiya.org.au 

Warra Warra Legal Service at Broken Hill: https://www.warrawarra.org

Thiyama-li Family Violence Service (Walgett, Bourke and Moree): https://thiyamali.com.au

There are also some specialist state-wide community legal centres that run Aboriginal programs, like the Indigenous Women’s Legal Program at Women’s Legal Services NSW, Mob Strong Debt Help at the Financial Rights Legal Centre, and Aboriginal Tenants Advice and Advocacy Services at the Tenants’ Union of NSW.

Apart from these Aboriginal community controlled centres and specialist services that operate Aboriginal programs, you can also find generalist community legal centres in communities right across New South Wales.

There are about 31 Aboriginal people employed across 22 community legal centres in NSW in roles such as Solicitors, Paralegals Community Legal Education Officers, Community Development Workers, Children’s Court Assistance Scheme Workers, Legal Information Officers, Administrators, Financial Legal Advocates, Program Coordinators, and Centre Managers.

Sourced on 3/8/22:  https://www.clcnsw.org.au/find-legal-help-aboriginal-people

Aboriginal Legal Access Program

The Community Legal Centres NSW Aboriginal Legal Access Program makes a significant contribution to access to justice for Aboriginal and Torres Strait Islander people in NSW by:

·       Embedding cultural safety into the framework of community legal centres;

·       Improving the numbers of Aboriginal staff in the legal sector, and thereby strengthening community connections to civil and early intervention legal services;

·       Role modelling employment pathways and culturally appropriate settings for legal education;

·       Delivering legal information and advice; and

·       Developing and supporting relationships between community legal centres and local Aboriginal community controlled organisations and groups, including developing MOUs with the ALS and with Tranby College.

Sourced on 3/8/22:  https://www.clcnsw.org.au/index.php/Aboriginal-Legal-Access  

23. Legal Aid

Legal Aid in Australia

There are eight legal aid commissions in Australia, one in each state and territory. The purpose of legal aid commissions is to provide vulnerable and disadvantaged Australians with access to justice.

Our society invests in a necessarily complex system of justice, a system of institutions - the courts, tribunals and other related agencies - to protect rights, ensure civil liberties and enforce civic responsibilities. If access to these institutions was reserved only for wealthy citizens, the confidence of the broader community in our system of justice would be undermined. Without a strong system of justice the rule of law would be compromised and without the rule of law we would not have the rights and liberties we all enjoy.

Our democratic society therefore depends on the premise that all Australians are equal before the law, a premise which needs to be understood in relation to the question of access. Legal aid commissions play a defining role in achieving equality before the law by striving to ensure that all citizens, including those who can't afford to pay, have access to the legal services they need to obtain justice.

Commissions provide access to justice by providing the following types of legal assistance:

• financial assistance to enable people who cannot afford a lawyer to be legally represented in court proceedings and other cases;
• duty lawyer services for people appearing at court on the day without a lawyer;
• information and advice about legal rights, responsibilities and remedies, and
• education programs to inform the community about the law and legal remedies.

State and Territory Legal Aid Commissions:

• Victoria Legal Aid
• Legal Aid New South Wales
• Legal Aid Queensland
• Legal Aid Western Australia
• Northern Territory Legal Aid Commission
• Legal Aid Commission of Tasmania
• Legal Services Commission of South Australia
• Legal Aid ACT

Sourced on 3/8/22:  https://www.legalaidact.org.au/

Legal Aid NSW

Legal Aid NSW is a statewide organisation providing legal services to socially and economically disadvantaged people across NSW. We are the largest legal aid commission in Australia and employ over 1,300 staff. We deliver legal services in most areas of criminal, family and civil law. Find out more about our services.

Legal Aid NSW was established in 1979, when it was known as the Legal Services Commission, before becoming the Legal Aid Commission of NSW in 1987. The Legal Aid Commission was renamed Legal Aid NSW in 2006.

We provide legal services across NSW through a statewide network of 25 offices, two satellite offices and 243 regular outreach locations. We offer telephone advice through our free legal helpline LawAccess NSW.

We work in partnership with private lawyers who receive funding from Legal Aid NSW to represent legally aided clients. We also work closely with community legal centres, the Aboriginal Legal Service (NSW/ACT) and pro bono legal services. We strive to support clients and improve access to justice through initiatives such as the Cooperative Legal Service Delivery Program and by supporting and administering funding for the state’s 29 Women’s Domestic Violence Court Advocacy Services and 32 community legal centres. We collaborate with other agencies providing social and support services to disadvantaged and marginalised people, helping us deliver integrated services to address clients’ legal and non-legal needs.

Sourced on 3/8/22:  https://www.legalaid.nsw.gov.au/about-us/who-we-are

Legal Aid NSW provides legal services to disadvantaged clients across NSW in most areas of criminal, family and civil law.

Legal Aid NSW also assists people experiencing domestic and family violence.

Our services include:

·       free legal advice to disadvantaged people about issues that affect them. Call LawAccess NSW on 1300 888 529 to find out if you can get legal advice.

·       legal representation for eligible clients, provided through duty services and case grants for ongoing representation

·       family dispute resolution services to parties in a family law dispute

·       free workshops and webinars for the public and community organisations

·       free legal information written in plain English to help people resolve their legal problems

·       specialist services for particular groups in the community.

We work in partnership with private lawyers who receive funding from Legal Aid NSW to represent our clients.

We administer funding for a range of community partnership programs.

We also take a broader role in identifying opportunities to improve access to justice for our most disadvantaged clients. We contribute to law and policy reform by writing submissions and policy papers on issues that affect our clients.

Sourced on 3/8/22:  https://www.legalaid.nsw.gov.au/what-we-do

24. Barriers to Accessing the Justice System

Aboriginal people and access to civil law remedies

It is well known that Aboriginal people are over-represented in our criminal justice system. What is less-well recognised, or analysed, is the evidence that they do not access civil remedies as often as other Australians.

In 2004 the Law and Justice Foundation published the Data Digest, the first report on its Access to Justice and Legal Needs Program. The report is a compendium of service usage data from NSW legal assistance and dispute resolution services between 1999 and 2002 and identifies a number of interesting points in respect of Indigenous people's access to legal services. First, it shows that the proportion of enquiries from Aboriginal people comprised four per cent of all those received by duty solicitors at Legal Aid NSW. The equivalent figure at NSW community legal centres was five per cent. Both figures increased steadily between 1999 and 2002. This is disproportionately high for a group that represents just 1.9 per cent of the state's population. However, inquiries by Indigenous people to the Legal Aid NSW Advice Service were about two per cent of all inquiries, a figure that has not altered significantly since 1999.

The areas of greatest interest with inquiries to the Legal Aid NSW Advice Service were the areas of crime (accounting for 36 per cent of inquiries) and family law (31 per cent of inquiries). However, considering that Indigenous people are overrepresented at much higher rates in the criminal justice system and as victims of racial discrimination, Indigenous people should be accessing these services at a greater rate than what these statistics indicate. In its report on public consultations for the same project, the Law and Justice Foundation identified the following barriers confronting Indigenous people in accessing legal aid services:

·       a reluctance to involve outsiders in matters that are considered private;

·       a lack of awareness of Indigenous people of the scope and ability of the law to resolve certain types of problems;

·       the limited ability of the law and traditional legal approaches to resolve problems that in many cases involve not just legal but also significant political, historical and cultural issues;

·       the reliance on documentary evidence to substantiate legal claims and its reluctance to accept or rely on anecdotal or oral evidence by Aboriginal people;

·       long term distrust of and previous negative experience with the legal system;

·       the formality of the legal system and its services;

·       lack of cultural awareness, sensitivity and compassion among justice system staff and legal service providers;

·       lack of confidence in confidentiality, support and empathy in accessing Legal Aid NSW services;

·       lack of Aboriginal personnel;

·       lack of relationship between Legal Aid offices and local Aboriginal communities;

·       intimidation in approaching legal services;

·       lack of awareness of the services of Legal Aid NSW;

·       the need to book Legal Aid services;

·       location of Legal Aid offices;

·       and lack of public transport to Legal Aid's offices.

Distrust of the legal system is just one barrier to overcome when encouraging Aboriginal people to explore their civil law rights.

Many do not have adequate education or knowledge of government agencies, whilst others cannot overcome an inherent distrust of public servants. Facing any legal system and its formalities is a daunting experience for everybody, not just Aboriginal people. However, it becomes yet more frightening for those people who only know of a system involving the police and criminal charges. The fear, and often misunderstanding, by some Aboriginal people that the law is only for responding to police charges leaves our people with many civil law matters being unpursued or unresolved. Civil matters such as welfare rights, housing, discrimination law, consumer rights, credit and debt, employment law, motor accidents compensation, crimes compensation, social security, intellectual property, negligence and family law are just some of the areas of law where avenues for redress are perceived as so far removed from the familiar criminal justice system that they are simply not worth worrying about. The NSW Legal Aid Commission, community legal centres and the Aboriginal legal services provide a valuable service to our people, often without adequate funding or due recognition. However, when accessing these particular services, Indigenous people are sometimes confronted by a lack of cultural awareness, sensitivity or compassion on the part of the solicitors. Unfortunately, this may get worse before it gets better. It will be exacerbated by the proposed Aboriginal legal services tendering scheme because Indigenous lawyers are under-represented in law firms and community legal centres. Aboriginal legal services, under-resourced as they are, have necessarily focused their efforts on helping Indigenous people ensnared by the criminal justice system. Many ALS offices simply do not have the requisite knowledge base or resources on hand to assist Aboriginal people in civil law matters - especially in rural and regional areas of the state. Consequently, an Indigenous family may live with injuries for which they will never be compensated, become involved in unjust financial arrangements, accept racial vilification or suffer under adverse administrative decisions. Domestic violence, residence and contact disputes and abduction of children are rarely dealt with by the Aboriginal legal services. Whilst the Aboriginal and Torres Strait Islander legal services in metropolitan Sydney employ a family law solicitor from time to time, services in far western NSW and north-western NSW generally have not had family lawyers and do not usually act in such matters. At present the Legal Aid Commission has an arrangement with the ALS, whereby LAC officers visit the ALS office at Blacktown to provide advice to clients in civil law matters. These officers attend each fortnight on a Friday and, on average, address inquiries from three Indigenous people per visit. Unfortunately, these outcomes can be directly attributed to the ALS prioritising their case loads and directing their allocated funding to the high number of criminal law matters that they handle.

Too many Indigenous people simply do not know anything about potential civil remedies. In the past, Indigenous people were subjected to racist and discriminatory treatment and had no alternative but to accept it. Sadly, this acceptance is intergenerational. Many Aboriginal people today are still unaware that they have equal rights and may have civil remedies available to them. There are a number of ways highlighted by the Law and Justice Foundation through which all lawyers can help to bring some balance into the civil law arena for Aboriginal people. The first is to rebuild trust and confidence in the legal system generally and the profession in particular. One way to achieve this is to employ more Indigenous lawyers at the front line of the Legal Aid Commission, the community legal centres, the Aboriginal legal services and especially in those law firms who are involved in the legal services tendering process. Education of Aboriginal culture and history needs to go further for the legal profession. Most importantly we all need to ensure that Aboriginal people are themselves educated and are aware that there are civil law services in place available to them. It has been 35 years since a collective body consisting of both Aboriginal and non-Aboriginal people established the Redfern Aboriginal Legal Service. This group founded the ALS in response to the continual police harassment of Aboriginal people and the lack of legal representation afforded to them. After its establishment, the ALS provided an advocate for Aboriginal people and produced a dramatic shift in the dynamics of the criminal justice system. It provided a substantial reduction in miscarriages of justice but more importantly it provided the initial steps towards equality and Aboriginal empowerment in the NSW justice system. This positive change would not have occurred without the support and assistance of volunteer white lawyers and Aboriginal people working together for a common cause. The injustices and disadvantages faced by Aboriginal people in the criminal jurisdiction motivated and inspired those in 1970 to act and bring about a level of equality. The time has come for our generation to continue that legacy and not let civil law be a casualty of that battle.

Sourced on 3/8/22:  http://classic.austlii.edu.au/au/journals/NSWBarAssocNews/2005/48.pdf

The Law Society of Western Australia makes the following recommendations on access to justice to address the overrepresentation of Indigenous people within Western Australia’s judicial system:

1. Improve funding to Community Legal Centres (CLCs), in particular to the Aboriginal Legal Service of Western Australia (ALS) and the Family Violence Prevention Legal Service (FVPLS) The overrepresentation of Indigenous people within our judicial system is largely due to limited access to justice. The funding of CLCs has been proven to greatly reduce incarceration rates. In relation to Indigenous people, dedicated legal services are the preferred and most culturally appropriate provision of community legal services. Research shows that Indigenous people, and in particular women, are dissuaded from approaching mainstream legal services, with language barriers and cultural sensitivity being the main reasons for this. Greater funding to Indigenous legal services, such as ALS and FVPLS would provide greater access to justice for Indigenous people and would greatly decrease their incarceration rate.

2. Improve funding for interpretation and translation services within the Courts, allowing Indigenous people to communicate with the Court in their native Australian language. For some Indigenous people, English is a second language. This creates confusion and misunderstandings in the legal system and procedures. Justice would be improved if Indigenous people were given better access to interpretative and translation services in relation to judicial proceedings. Indigenous people could be granted a statutory right to have interpreting services available at all stages of the judicial proceedings, as is the case in certain areas of Canada. They could also have the statutory right to lodge documents and correspond with the court in their native languages, as is the case in certain areas of Norway. In order to do this, funding for interpretation and translation services within the court must be improved.

3. Improve funding for Indigenous judicial and corrective service staff. It has been proven in the Rangatahi Youth Courts of New Zealand that the incorporation of cultural beliefs and practices into court procedure places greater expectations on Indigenous offenders and causes greater remorse. The effect that these practices have had on court proceedings can also be applied to other areas of the judicial system. By using Indigenous judicial and corrective service staff, an element of cultural expectation can be applied to the offender and used to encourage better social behaviour in the future. It also improves communication between accused persons and the corrections system, allowing the accused to better understand the reasoning behind what is happening, and for the judicial and corrective service staff to better understand the offending behaviour.

Sourced on 3/8/22:  http://www.lawsocietywa.asn.au/wp-content/uploads/2015/10/2017OCT06_LawSociety_BriefingPapers_AccessJusticeIssues_ATIPIA.pdf

25. Legal Needs of Indigenous People

The Law and Justice Foundation of NSW has published a paper which summarises findings from the Legal Australia-Wide (LAW) Survey showing that Indigenous Australians had high prevalence of multiple legal problems and government, health and rights problems. They were also less likely to have finalised their legal problems.

The Conclusion of the paper is as follows:

The LAW Survey demonstrated that Indigenous respondents had increased prevalence of multiple legal problems, and they had increased levels of government, health and rights problems. Indigenous people also had low levels of finalising their legal problems. Given their level of disadvantage, it is noteworthy that the LAW Survey did not find a greater number of associations involving Indigenous status. It is possible that methodological issues, such as the small numbers of Indigenous respondents interviewed and the underestimation of the level of Indigenous disadvantage, may have militated against observing a greater number of significant associations. Nevertheless, given their disadvantage and tendency to experience multiple legal problems, Indigenous people are likely to benefit from a more holistic or client-focused approach to their problems, including a coordinated response across legal and other human services. Furthermore, their lower levels of finalising legal problems suggest that they may sometimes have a reduced capacity to achieve legal resolution and may require considerable legal and non-legal support to do so.

Reducing multiple disadvantage for Indigenous people is a whole-of-government goal in Australia. For example, the National Integrated Strategy for Closing the Gap in Indigenous Disadvantage outlines targets for reducing disadvantage in the areas of life expectancy, early childhood, health, education and employment. A multitude of small-scale initiatives have been introduced at the national and state/territory level to address these targets (Department of Families Housing Community Services and Indigenous Affairs 2011). Although such initiatives often extend to disadvantage in access to justice, they tend to focus on criminal rather than civil justice, given the overrepresentation of Indigenous people in the criminal justice system (ABS 2011; SCRGSP 2007; Snowball & Weatherburn 2006).  In fact, it has been observed that Aboriginal and Torres Strait Islander Legal Services across Australia tend to focus on criminal law matters, and there is a paucity of Indigenous legal services for family and civil law (Cunneen & Schwartz 2008; Joint Committee of Public Accounts and Audit 2005; Senate Legal and Constitutional References Committee 2004). The present results more firmly entrench civil and family legal needs among the multiple legal needs that should be addressed for Indigenous people. The results suggest that the scope of Aboriginal and Torres Strait Islander Legal Services need to be broad enough to comprehensively address criminal, family and civil law needs. They suggest that multidisciplinary initiatives that aim to reduce Indigenous disadvantage should also include the aim of increasing legal capability and effectively meeting legal needs in all areas of law, including civil and family law.

Sourced on 3/8/22: http://www.lawfoundation.net.au/ljf/site/templates/UpdatingJustice/$file/UJ_25_Legal_needs_of_Indigenous_people_FINAL.pdf

26. Legal Support for People with a Disability

The Disability Royal Commission

A Royal Commission is an investigation, independent of government, into a matter of great importance. Royal Commissions have broad powers to hold public hearings, call witnesses under oath and compel evidence. Royal Commissions make recommendations to government about what should change. Each Royal Commission has terms of reference, which define the issues it will look into.

The Disability Royal Commission was established in April 2019 in response to community concern about widespread reports of violence against, and the neglect, abuse and exploitation of, people with disability. These incidents might have happened recently or a long time ago.

The Disability Royal Commission will investigate:

·       preventing and better protecting people with disability from experiencing violence, abuse, neglect and exploitation

·       achieving best practice in reporting, investigating and responding to violence, abuse, neglect and exploitation of people with disability

·       promoting a more inclusive society that supports people with disability to be independent and live free from violence, abuse, neglect and exploitation.

The Disability Royal Commission will investigate and report on experiences and conditions in all settings and contexts, including:

·       schools

·       workplaces

·       jails and detention centres

·       secure disability and mental health facilities

·       group homes or boarding houses

·       family homes

·       hospitals

·       day programs

The Disability Royal Commission gathers information through research, public hearings, the personal experiences people tell us about and submissions, private sessions, and other forums.

We will deliver a final report to the Australian Government by 29 September 2023. In this report, the Royal Commission will recommend how to improve laws, policies, structures and practices to ensure a more inclusive and just society.

Sourced on 4/8/22:  https://disability.royalcommission.gov.au/about-royal-commission

Your Story Disability Legal Support

A free legal advisory service is available to help you interact with the Disability Royal Commission. Your Story Disability Legal Support is independent from the Royal Commission. It provides free legal advice to:

·       people with disability

·       their families

·       carers

·       supporters and

·       advocates.

Your Story Disability Legal Support is funded by the Australian Government and is delivered by National Legal Aid and the National Aboriginal and Torres Strait Islander Legal Services.

Some of the reasons you might want to contact Your Story Disability Legal Support include:

·       You want to use the name of an organisation or person in your story

·       You have a confidentiality or non-disclosure agreement that stops you sharing some, or all, of your story

·       You are concerned about payback if you share your story

·       You are worried that you or someone else will be unsafe, lose access to services or employment, or your rights will be affected

·       Your story talks about current or past court matters

·       Your story talks about something you did, that you should not have done or think may be illegal

·       You are registered to speak at a Royal Commission community forum

·       You want support to get ready for a private session with the Royal Commission.

Legal financial assistance

You may be able to get financial support for reasonable legal costs when you are:

• being called, or granted leave to appear, as a witness at a hearing of the Royal Commission
• being requested to attend, or attending an interview of the Royal Commission
• complying with a notice to give information or a statement in writing that will be used as evidence in the Royal Commission, and/or
• complying with a notice to produce issued by the Royal Commission.

If you have been called by the Royal Commission in your personal capacity you will be eligible for legal financial assistance. If your organisation has been called, you may be eligible for legal financial assistance, subject to an assessment of whether the organisation can meet the cost of its legal representation without incurring serious financial difficulty.

The legal financial assistance scheme is administered by the Attorney-General's Department, independently of the Royal Commission.

Sourced on 4/8/22: https://disability.royalcommission.gov.au/counselling-and-support/legal-services

First Nations People

If you are an Aboriginal or Torres Strait Islander (First Nations) person with a disability, and you have experienced violence, abuse neglect or exploitation, the Royal Commission would like to hear from you. We also want to hear from families, friends, and support people of First Nations people with disability.

·       violence – if someone is hurting you physically

·       abuse – if someone is treating you badly

·       neglect – if someone is not helping you the way they are supposed to help you

·       exploitation – if someone is taking advantage of you.

There are many ways to get involved with the Royal Commission. You can:

·       write or record your story in a submission

·       meet with a Commissioner in a private session (registrations closed 30 June 2022)

·       come to a community forum, or

·       participate in a public hearing.

Sourced on 4/8/22: https://disability.royalcommission.gov.au/share-your-story/first-nations-people

First Peoples Disability Network Australia (FPDN)

We are First Peoples Disability Network Australia (FPDN) – a national organisation of and for Australia’s First Peoples with disability, their families and communities. Our organisation is governed by First Peoples with lived experience of disability.

We proactively engage with communities around Australia and advocate for the interests of Aboriginal and Torres Strait Islander people with disability in Australia and internationally. We follow the human rights framework established by the United Nations Convention on the Rights of Persons with Disabilities, to which Australia is a signatory, and the United Nations Declaration on the Rights of Indigenous Peoples.

First Peoples with disability and their families are amongst the most seriously disadvantaged and disempowered members of the Australian community. We give voice to their needs and concerns and share their narratives of lived experience.

We work for the recognition, respect, protection and fulfilment of the human rights of First Peoples with disability and their families.

We work within a social model of disability, in which we understand ‘disability’ to be the result of barriers to our equal participation in the social and physical environment. These barriers can and must be dismantled. The social model stands in contrast to a medical model of disability, which focuses on diagnosis.

We were born of the efforts of advocates who were working from the early 1980s to bring attention to the specific needs of First Peoples with disability and their families.

Our journey has been long and difficult. Because of the intersection of race and disability, we have had to confront and overcome apathy, neglect and prejudice, both in the general community and in our own communities. That struggle continues.

FPDN was established informally in 2010 and registered as a public company limited by guarantee in 2014. Our founders are the leaders of the Aboriginal disability movement and have been working to uphold the rights of our people since the 1960s.

Sourced on 4/8/22: https://fpdn.org.au/about-us/

National Disability Advocacy Program

The National Disability Advocacy Program (NDAP) provides people with disability with access to effective disability advocacy that promotes, protects and ensures their full and equal enjoyment of all human rights enabling community participation.

Advocacy for people with disability can be defined as speaking, acting or writing with minimal conflict of interest on behalf of the interests of a disadvantaged person or group, in order to promote, protect and defend the welfare of and justice for either the person or group by:

• Acting in a partisan manner (i.e. being on their side and no one else's);
• Being primarily concerned with their fundamental needs;
• Remaining loyal and accountable to them in a way which is empathic and vigorous (whilst respecting the rights of others); and
• Ensuring duty of care at all times.

Approaches to disability advocacy can be categorised into six broad models being:

• Citizen advocacy: matches people with disability with volunteers.
• Family advocacy: helps parents and family members advocate on behalf of the person with disability for a particular issue.
• Individual advocacy: upholds the rights of individual people with disability by working on discrimination, abuse and neglect.
• Legal advocacy: upholds the rights and interests of individual people with disability by addressing the legal aspects of discrimination, abuse and neglect.
• Self advocacy: supports people with disability to advocate for themselves, or as a group.
• Systemic advocacy: seeks to remove barriers and address discrimination to ensure the rights of people with disability.

NDAP agencies can also assist with issues that may arise with the National Disability Insurance Scheme (NDIS) or with service providers.

26.1. Unfitness to Plead Project

Aboriginal and Torres Strait Islander People with Disability in the Criminal Justice System

There is a lack of understanding, services and support for Aboriginal and Torres Strait Islander people with disabilities in the criminal justice system. This can lead to people becoming caught up with police, courts and in prison. ‘Unfitness to plead’ laws are supposed to protect people with disabilities in the criminal justice system. They are used when a court decides that a person cannot participate in criminal proceedings because of her or his disability. They can lead to good things, like a person being connected to disability services rather than prison. But they can lead to detention without an end date. It’s clear we need to change to law to prevent indefinite detention, but we also need to make sure the supports are available on the ground. Aboriginal and Torres Strait Islander people with disabilities who come into contact with the criminal justice system need to be connected to appropriate support. This is especially the case for young people with disabilities in contact with the criminal justice system. In 2015-17, researchers collaborated with the Victorian Aboriginal Legal Service and the North Australian Aboriginal Justice Agency for the ‘Unfitness to Plead Project’. The Project aimed to help develop supports for Aboriginal and Torres Strait Islander clients with cognitive and mental health disabilities. This brochure shares some of the findings and includes comments from Aboriginal and Torres Strait Islander researchers, professionals and activists involved with the project.

Legal Services Need Workers Who Understand Disability

Disability advocates can be co-located at Aboriginal and Torres Strait Islander legal services. The first activity that needs to happen, or frankly should have happened yesterday, is there needs to be disability advocates co-located with Aboriginal legal services around the country actually, because the legal profession, the Aboriginal legal sector and the community legal sector is overwhelmed by the work they have to do from a legal perspective. The researchers developed this kind of support program with active input and training from members of Deaf Indigenous Community Consultancy, First Peoples Disability Network, and other Aboriginal and Torres Strait Islander researchers and advocates. A ‘Disability Justice Support Person’ was co-located at the Victorian Aboriginal Legal Service and the North Australian Aboriginal Justice Agency. The Unfitness to Plead Project tries to make sure Aboriginal and Torres Strait Islander people with disabilities not only have the right communication access and supports but the physical presence of an advocate and interpreter to assist their understanding of the justice system.

There Are High Levels of Stress, Loss, Grief and Trauma in Aboriginal Communities which Increase Likelihood of Disability

Aboriginal communities are greatly affected by loss, grief, trauma and economic disadvantage. This comes from generations of Aboriginal people experiencing racism, dispossession, forcible removal of children, poor education, overcrowded housing, a lack of appropriate health care, early loss of family and community members, over-policing, and high rates of incarceration. It has a big impact on the health and wellbeing of many Aboriginal people. We have high rates of unresolved intergenerational trauma, which has led to disability, alcohol-related disability, brain injury and mental health issues. Put it this way.  When I first met [the support person] I was hidden underneath a table … I was actually in a foetal position under the table and they got me out.  That's how bad my anxiety was.  When [the support person] came on the scene I've never gone back under a table.

We Need Better Supports for Aboriginal and Torres Strait Islander People with Disabilities in the Community

Aboriginal people with mental and cognitive disability who have been in prison can feel isolated and disconnected from family, often face discrimination and have no access to appropriate community-based supports. They are more likely to have early and regular contact with police. We need better education and information for police, teachers, lawyers, magistrates, health, corrections, disability and community service providers regarding understanding and working with Aboriginal and Torres Strait Islander women and men with cognitive impairment and complex support needs. We should be intervening as early as possible in a child’s life to identify and address disabilities, and support their parents to care for their child as much as possible. It is a travesty that in 2016 we can have over representation in the criminal justice system because we haven’t prevented or addressed early health, developmental vulnerabilities or intergenerational trauma in the first 2 years of life.  We do not need prison solutions for health issues.

Culturally-Appropriate Support for Aboriginal and Torres Strait Islander People with Cognitive and Communication Disabilities

The interaction of people with cognitive and mental health disability and the justice system has been identified by the Australian Government as an issue of national concern, but the unique nature of disability and social circumstances affecting Aboriginal and Torres Strait Islander people requires a trauma-informed and rights-based approach to disability justice which is led by Aboriginal and Torres Strait Islander people. The work is often overwhelming due to the complexities, not only of the legal system, but also those of culture, community and the disability itself. Effective communication skills are very different with Aboriginal people. There are various subtleties that will be often miscommunicated. The availability, the access, and the right to have information told to you is a human right. Culturally-informed support that is designed and developed by Aboriginal and Torres Strait Islander people is required to make sure that the support is relevant and effective.

What Can Be Done?

1. Self-Determination

Aboriginal leaders, lawyers, workers, services and community members aspire to be self-determining in supporting the most disadvantaged people in their communities. The capacity in Aboriginal communities and legal services to support people with disabilities needs to be fostered, and Aboriginal-led knowledge and solutions appropriately supported and resourced.(1)

2. Accessible Justice

The criminal justice system needs to be designed so it can be used by Aboriginal and Torres Strait Islander people with disabilities and all people with disabilities, so they can participate and get the support they need. The criminal justice system can be modified to be more accessible to persons with disabilities. Courts and lawyers can use plain language, interpreters and disability advocates can be provided, and space can be made to include elders and family members.

3. Co-Locate Disability Support Workers in Aboriginal and Torres Strait  Islander Legal Services

Formal supports for Aboriginal and Torres Strait Islander people with disabilities (whether they are victims, accused persons, or in prison) would help them access the justice system on an equal basis with others. A formal support person can improve outcomes, including helping a person to communicate, secure their rights and get connected to relevant support in the community.

4. Change Unfitness to Plead Laws

Current unfitness to plead laws need to be changed to make sure Aboriginal and Torres Strait Islander people with disabilities can’t be detained with no end in sight, or get ‘lost in the system’. Laws in every State and Territory need to make sure that Aboriginal and Torres Strait Islander people with disabilities who are accused of a crime get the same opportunity as anyone else to challenge the case against them, but with the support they need to participate.

5. Education

Better education and information on Aboriginal and Torres Strait Islander people with disability, including mental health issues and complex needs, is needed for police, teachers, education support workers, lawyers, magistrates, health services, corrections, disability and community service providers, and so on.

(1) Eileen Baldry, Ruth McCausland, Leanne Dowse and Elizabeth McEntyre, A Predictable and   Preventable Path: Aboriginal People with Mental and Cognitive Disabilities in the Criminal Justice System (University of New South Wales, 2015).

Sourced on 4/8/22: https://socialequity.unimelb.edu.au/__data/assets/pdf_file/0003/2477037/Unfitness-to-Plead-Project-ATSI-Legal-Services-Brochure.pdf

27. Legal Support for People with a Mental Health Issue

Mental Health Advocacy Service 

The Mental Health Advocacy Service at Legal Aid NSW provides free legal advice about mental health and guardianship law.

You or your mob can call LawAccess NSW on 1300 888 529 for information and advice about any mental health or guardianship law problem.

Relatives and friends are also welcome to call for information.

How can the Mental Health Advocacy Service help you?

We can help you if you have to appear before the Mental Health Review Tribunal (‘the Tribunal’) or the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) or you have been kept in a hospital under the Mental Health Act. We can also help you by giving advice over the telephone about these things and some other related matters like financial management orders and community treatment orders.

Mental Health Review Tribunal

If you have been kept in a hospital under the Mental Health Act you may appear before the Mental Health Review Tribunal (‘the Tribunal’). This Tribunal conducts mental health inquiries, makes and reviews orders and has some appeals about the care of people with a mental illness. A lawyer can act for you in the inquiry.

Your lawyer can also tell you about:

• going to hospital under the Mental Health Act;
• inquiries and hearings in front of the Tribunal;
• financial management orders;
• community treatment orders; and
• appeals.

The Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT)

The Mental Health Advocacy Service can advise, and sometimes act for people appearing before the Guardianship Tribunal.

Call LawAccess NSW on 1300 888 529 as soon as you know the date you have to appear at the Guardianship Tribunal. We need as much time as possible before the hearing date to talk to you and arrange for someone to act for you.

What if I am in hospital?

If you are in hospital and seeing the Tribunal for the first time, a lawyer will come to see you first. Our lawyers, or private lawyers paid by Legal Aid NSW go to each hospital in New South Wales where people are kept under the Mental Health Act.

A lawyer will also visit you if you are kept in hospital and will be seeing the Tribunal about:

• keeping you for a longer time
• having your money managed by the NSW Trustee and Guardian.

Sometimes a lawyer can act for you if:

• the hospital or community mental health centre is asking for a community treatment order (CTO) for you, and
• you ask us to represent you.

There are other times when a lawyer can represent you including when you want to leave hospital and the doctor won’t let you.

You can call the Mental Health Advocacy Service if you don’t understand what is happening to you. We will pay for the call if you are outside Sydney.

Call LawAccess NSW on 1300 888 529 for information and advice about any mental health or guardianship law problem.

Sourced on 4/8/22: https://www.legalaid.nsw.gov.au/publications/factsheets-and-resources/mental-health-advocacy-service

Mental Health Coordinating Council

Mental Health Coordinating Council champions community-based mental health services to support better outcomes for people living with mental health conditions. We work to strengthen mental health organisations by advocating to government and key decision makers, delivering sector-leading resources and tools, and providing quality training for the mental health workforce.

The Mental Health Coordinating Council has published a Mental Health Rights Manual. Extracts from Chapter 8 Section B: Aboriginal People in NSW living with mental health conditions, are provided below:

Terminology varies across documents and contexts. This manual refers to First Nations people as Aboriginal people in recognition that they are the original inhabitants of NSW. The use of ‘Torres Strait Islander’ and ‘Indigenous’ is only used when quoting the Commonwealth Government.

Aboriginal and Torres Strait Islander peoples, like other Australians, have community and family members living with mental health conditions. Different cultures have very different conceptualisations of mental health. Use of the term ‘mental health’ can act as a barrier to engaging with Aboriginal people, and the concept of ‘recovery’ is somewhat foreign to people whose perspective of mental health embraces the mind, the body and the environment as inseparable, preferring to use the term ‘social and emotional wellbeing’.

For Aboriginal people, social and emotional wellbeing includes connection to family, community, ancestry, culture, spirituality and land. Conceptualisations of mental health will differ from community to community.

Aboriginal peoples are more likely to experience disadvantage in Australian society. This is reflected in the level of poverty Aboriginal people and communities experience. They often have poor access to basic services, including health services, when compared to non-Aboriginal Australians. It can be challenging for an Aboriginal person to seek help from a mental health system that may not understand their culture, family obligations or unique community structures. If an Aboriginal and/or Torres Strait Islander person has had previous negative experiences with government systems or authority figures, it may take time for that person to develop trust with a mental health professional.

This section highlights some mechanisms and services that are available to Aboriginal people that work to maximise fair access to mental health care, treatment and support in NSW.

You will find information on:

• Racial discrimination
• Why it is important to consider culture in relation to mental health and mental illness
• Health and support services for Aboriginal people with mental health conditions
• Stolen Generation issues: reparations, healing and tracking down lost relatives ; and
• Where to find legal assistance.

It is acknowledged that while Aboriginal communities share cultural believes, they also remain diverse and individual.

8B.1: Racial discrimination and Aboriginal people

If you are discriminated against when you are trying to access services (including health services), you can use anti-discrimination law to complain about it, possibly to get compensation, and prevent it from happening again.

If the discrimination you experience is because of your mental health condition, click here to find out more about what you can do.

If the discrimination is because you are Aboriginal or Torres Strait Islander, this is called racial discrimination.

There are two laws that apply to racial discrimination that happens in NSW:

• The Racial Discrimination Act 1977 (Cth) that applies to discrimination that happens anywhere in Australia, including NSW; and
• The Anti-Discrimination Act 1977 (NSW) that applies to discrimination that happens in NSW.

These laws make it unlawful to discriminate against a person because of their race in a range of areas of life, such as work, provision of goods and services, housing, access to public places and education.

There are similar laws in each state and territory, some of which are called anti-discrimination laws, others of which are called equal opportunity laws. You can find out more about these laws here.

In NSW, the Anti-Discrimination Board (ADB) investigates racial discrimination complaints made under the Anti-Discrimination Act 1977 (NSW), and tries to resolve such complaints by conciliation, a process which tries to reach an agreement between the person who has made the complaint and the person or organisation against whom the complaint has been made. If no agreement is reached, then the ADB may refer the matter to the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal for determination by an independent Tribunal.

The ADB has Aboriginal Outreach Program which helps Aboriginal people deal with discrimination. This program has Aboriginal staff members and provides a culturally appropriate service. More information is available here or through the ADB’s enquiries line on 1800 670 812*.

At a national level, the Australian Human Rights Commission (AHRC) is responsible for dealing with complaints of discrimination under the Racial Discrimination Act 1977 (Cth). Like the ADB, the AHRC will investigate the complaint and try to resolve such complaints by conciliating an agreement between the parties to the complaint. If an agreement cannot be reached, the person making the complaint then has the option of making an application to the Federal Circuit Court of Australia or the Federal Court of Australia for determination of the complaint.

The AHRC also has a specific race discrimination unit and Aboriginal and Torres Strait Islander Social Justice Unit that undertake policy and advocacy activities in relation to race discrimination and social justice for indigenous peoples.

Click here for information about racial discrimination from the Australian Human Rights Commission and from the Anti-Discrimination Board.

Complaints to the ADB should generally be made within twelve (12) months of the actions that you believe were unlawful discrimination. Complaints to the AHRC should generally be made six (6) months of the actions that you believe were unlawful discrimination. You should ask the ADB or AHRC for more information about the time limit for your particular complaint.

To find more information about how to seek legal assistance, click here.

8B.3: Mental health services for Aboriginal and Torres Strait Islander peoples

There are specific services available to help Aboriginal people living with mental health conditions in NSW:

• Aboriginal Mental Health Workers
• First Peoples Disability Network NSW
• Aboriginal Medical Services
• Medicare Indigenous Access Scheme
• Closing the Gap Pharmaceutical Benefits Scheme

To find information about health services for Aboriginal and Torres Strait Islander people in NSW follow this link to the Aboriginal Health and Medical Research Council of NSW website.

If you are an Aboriginal person seeking help for mental health issues, you may wish to ask if you can bring a family member or support person to appointments with you.

8B.3.6: Further resources for social and emotional wellbeing

For more information about the social and emotional wellbeing (including mental health needs) of Aboriginal and Torres Strait Islander people and communities, visit the websites below:

• Yarn Safe, by headspace, including the Mental Health and wellbeing page.
• Australian Indigenous Health InfoNet provides information and a list of programs for Aboriginal and Torres Strait Islander people.
• Social and Emotional Wellbeing and Mental Health Services in Aboriginal Australia: this Australian Psychological Society website provides information and allows you to search a health service near you.
• iBobbly suicide prevention app: a free and confidential suicide prevention app designed especially for Aboriginal and Torres Strait Islander people to use on mobile phones or tablet devices. Therapy is delivered in a culturally relevant way. iBobbly can be downloaded from the iTunes App Store (IOS) or on Google Play (Android)

Sourced on 4/8/22: https://mhrm.mhcc.org.au/chapters/8-people-with-mental-health-and-co-existing-conditions/8b-aboriginal-people-in-nsw-living-with-mental-health-conditions/  

28. Legal Support for People with an Alcohol or Other Drug Issue

Walama Court

The Aboriginal Legal Service (NSW/ACT) Limited (‘ALS’) welcomes the wide-ranging recommendations of the Special Commission of Inquiry's Report into the Drug ‘Ice’, saying only a ‘paradigm shift’ away from a criminal justice lens to a health-based response will help address the devastation caused by drugs.

Importantly, the Inquiry found that NSW Government action must be grounded in an ‘understanding of Aboriginal definitions of health and wellbeing; the importance of family, community, culture and Country to Aboriginal health and wellbeing; the impacts of colonisation and racism on the health of Aboriginal people; the effects of trauma experienced personally, intergenerationally and culturally; the disproportionate effects of socioeconomic disadvantage; and the principles of self-determination.

Chief Executive Officer Karly Warner said the ALS had long-campaigned for many of the Inquiry’s 109 recommendations, such as the expansion of the highly-successful Youth Koori Court into regional areas of NSW and the implementation of the Walama Court proposal.

“We welcome the Inquiry’s acknowledgement of the important role of culturally-specific courts in providing holistic and wraparound support for our communities. We know that courts that involve Elders, Aboriginal community controlled organisations and culturally-appropriate members, provide the most effective support for our mob. We call on the NSW Government to act without delay to establish a Walama Court in NSW – an Aboriginal-specific court that can deal with drug and alcohol matters.”

“The ALS is pleased that the Inquiry has acknowledged the need for a health-focused response to address the use of ‘Ice’.

“Community-designed and community-led diversionary programs, together with advice from drug and alcohol experts, will address the underlying issues that result in substance abuse and provide much-needed support and counselling to ensure Aboriginal people and their families get the help they need.

“The greater use of culturally-specific courts like the Youth Koori Court and Walama Court, as well as a Family Drug Treatment Court, would also allow people to receive treatment in the community, reducing the risk of them getting stuck in the quicksand of the justice system and recognising the crucial role that connection with Aboriginal culture plays in healing.”

Ms Warner said the ALS supports calls for greater funding for drug and alcohol services and rehabilitation programs for Aboriginal people.

“The NSW Government must act without delay to implement the Inquiry’s important recommendations to ensure there is greater prevention, diversion and rehabilitation initiatives to support our communities, particularly in regional areas.”

Sourced on 4/8/22: https://www.alsnswact.org.au/als_welcomes_renewed_calls_for_walama_court_and_greater_support_for_communities

The District Court of NSW has published a Walama List Fact Sheet. Extracts appear below:

WHAT IS WALAMA?

‘Walama’ is a word from the Dharug language meaning ‘come back’ or return.  In the context of the Walama List, it is a coming back to identity, community, culture, and a healthy, crime-free life. The Walama List will provide a therapeutic and holistic approach to sentencing eligible Aboriginal and Torres Strait Islander offenders. Walama will achieve this by working with Elders and respected community members, government, and non-government services to address underlying needs and risk factors related to offending behaviour. The Walama List aims to reduce re-offending, keep communities safe and reduce the overrepresentation of Aboriginal and Torres Strait Islander peoples in the criminal justice system.

WALAMA LIST OBJECTIVES

• Reduce the risk factors related to re-offending.
• Reduce the rate of breaches of court orders.
• Reduce the overrepresentation of Aboriginal and Torres Strait Islander persons in custody in NSW.
• Increase community participation and confidence in the criminal justice system; and
• Increase compliance with court orders.
• Facilitate a better understanding of any underlying issues which may increase the likelihood of re-offending.

WHO CAN PARTICIPATE IN WALAMA LIST?

The Walama List Pilot will start in the NSW District Court at the Downing Centre in 2022. It will be a sentencing court only for adult Aboriginal and Torres Strait Islander offenders with matters before the NSW District Court. Eligibility for the Walama List requires that the offender:

• has sentence proceedings listed in the NSW District Court Downing Centre
• is descended from an Aboriginal person or Torres Strait Islander, identifies as an Aboriginal person or Torres Strait Islander, and is accepted as such by the relevant community
• has pleaded guilty to the offence(s)
• has signed an Agreed Statement of Facts on Sentence; and
• consents to having their matters dealt with in the Walama List.

WHAT HAPPENS IN THE WALAMA LIST?

Walama List proceedings will involve Elders and other Respected Persons (ERPs) in sentence proceedings and is a critical component of a community-led sentencing approach. The Walama List is set up by a Practice Note of the NSW District Court. The ERPs assist in the Walama List by sitting with the presiding Judge during a Sentencing Conversation and Case Plan Conversations and providing advice regarding the background of the offender and the possible reasons for the offending behaviour. The ERPs may be required to explain relevant kinship connections of the offender, how a particular crime has affected the Aboriginal community and advice on cultural practices, protocols, and perspectives relevant to sentencing. The ERPs symbolise the importance of Aboriginal and Torres Strait Islander cultural authority in decision-making and respect for the judicial process in sentencing.

ROLE OF ELDERS AND RESPECTED COMMUNITY PERSONS (ERP’S)

ERP’s of the Walama List give honest and fearless advice to the Walama List Judge, informed by their cultural knowledge, wisdom, and experiences. They advise the Judge on cultural issues relating to the offender and their offending behaviour. The voices of ERP’s are a powerful cultural aspect of the Walama List and their participation sends a clear message to the offender that the offences committed are not condoned by either Aboriginal and Torres Strait Islander or non-Aboriginal communities. The ERP’s will provide valuable insight to the sentencing proceedings by informing the court about cultural, historical, and social issues relating to the offender’s background and community in a culturally safe way.

Sourced on 4/8/22: https://www.aboriginalaffairs.nsw.gov.au/media/website_pages/our-agency/news/pilot-of-specialist-approach-for-sentencing-aboriginal-offenders/Walama-List-Fact-Sheet.pdf

The Mental Health Coordinating Council has published a Mental Health Rights Manual. Extracts from Chapter 8 Section F: People with mental health conditions who have alcohol and other drug issues, are provided below:

8F.2.2: Alcohol and drug support services for people in contact with the criminal justice system

Services specifically for people with alcohol and drug issues in contact with the criminal justice system include:

• The Connections Project – provides post-release support to people leaving prison in NSW who have a history of problematic drug use, many of whom also experience mental health issues. This is available in all Correctional Centres in NSW with follow-up provided anywhere is NSW. If you are currently in prison and are interested in joining the Connections Project or would like to get more information about it, you can talk to a nurse in the clinic in your correctional centre.
• Guthrie House: is a community-based residential rehabilitation and transition service for women who are involved in the NSW criminal justice system. Call 02 9564 5977 from 8:00am to 4:00pm from Monday to Friday.
• Justice Health and Forensic Mental Health Network: provides government health care to adults and young people in contact with the forensic mental health and criminal justice systems, in community, inpatient and custodial settings.

8F.3: Involuntary treatment for alcohol and other drug problems

Consent is needed for treatment for alcohol and other drug (AoD) issues in the same as for any other medical condition. Treatment can usually only be given with the informed consent of the person getting the treatment. This means that the treatment must be voluntary.

However, there are laws that allow involuntary treatment for AoD problems in NSW:

• You can be treated without your consent under the Drug and Alcohol Treatment Act 2007 (NSW); and
• If you are charged with a serious criminal offence, you can also be ordered into compulsory treatment by the NSW Drug Court under the Drug Court Act 1998 (NSW).

8F.3.1: Involuntary Drug and Alcohol Treatment Program

The Drug and Alcohol Treatment Act 2007 (NSW) is the law that provides for NSW Health’s Involuntary Drug and Alcohol Treatment Program (IDAT).

The IDAT Program is a AoD treatment program that provides medically supervised withdrawal, rehabilitation and supportive interventions for patients with severe substance dependence. The IDAT Program provides short term care to protect the health and safety of people with severe substance dependence who have experienced, or are at risk of, serious harm and whose decision making capacity is considered to be compromised due to their substance use. It includes an involuntary supervised withdrawal component. Participants are usually referred through their local health district.

Under the IDAT Program, an Accredited Medical Practitioner at the IDAT Facility can issue a Dependency Certificate that means the person who is subject to the certificate can be detained for up to twenty eight (28) days in the first instance as an involuntary patient. There is an option to extend the Dependency Certificate for up to a total treatment period of three (3) months in extreme circumstances where withdrawal, stabilisation and discharge planning may take longer. The IDAT Program also provides three (3) to six (6) months of voluntary community-based treatment and support following discharge.

An Accredited Medical Practitioner from one of the IDAT units conducts an assessment, and if all the eligibility criteria are met, will issue the person with a Dependency Certificate. If a Dependency certificate is issued, and a bed is available, the person can be admitted for treatment. Local health districts can arrange transportation to the treatment unit.

Within seven (7) days of admission, the Dependency Certificate is reviewed by a magistrate in an informal hearing usually at the treatment unit. Legal aid is available through duty solicitors for the reviews held before the visiting magistrate. Contact Law Access on 1300 888 529* for more information.

At the end of the involuntary treatment, the patient is discharged and transitioned to community care. If you are unhappy with the visiting magistrate’s decision, you can apply to the NSW Civil and Administrative Tribunal (NCAT) for a review of the decision. For more information about the NCAT, click here.

The Drug and Alcohol Treatment Act 2007 (NSW) also allows you to name a person as your Primary Carer so that they will have access to certain information about you while you are detained under this Act. For example, the primary carer must be notified within twenty-four (24) hours after a Dependency Certificate has been issued by an Accredited Medical Practitioner. They will be noted as soon as possible if you are absent from the treatment centre without permission or are discharged. As far as possible, they should be consulted about your discharge plans.

If you are considering a referral to IDAT and you require additional information, please contact:

• Alcohol and Drug Information Service at (02) 9361 8000 or 1800 422 599* (outside Sydney); or
• Your Local Health District Drug and Alcohol Centralised Intake contact number to discuss with the local Involuntary Treatment Liaison Officer.

Contact numbers for the two state-wide IDAT programs are:

• Herbert Street Clinic, Royal North Shore Hospital: 02 9463 2533.
• Lachlan IDAT Unit, Bloomfield Hospital: 02 6369 7700.

You can search for the right contact by following this here, alternatively click here to find out more information about the IDAT Program.

*Mobile phone calls to freecall numbers (numbers starting with 1800) are charged to the caller at the usual mobile rate.

Independent Official Visitors have been appointed to inspect IDAT facilities regularly. They have the same role as Official Visitors under the Mental Health Act 2007 (NSW). This means that you can contact an Official Visitor if you have concerns about your care and treatment as an involuntary patient as well as to make complaints and concerns about the physical conditions at the IDAT Facility.

To contact the Official Visitors Program:

Postal address: Locked Bag 5016 GLADESVILLE NSW 1675
Telephone: (02) 8876 6301
Website: www.ovmh.nsw.gov.au

8F.4: Diversionary programs for people with alcohol and other drug problems

There are programs available for people with alcohol and other drug issues who face less serious criminal charges. These are usually called ‘diversionary programs’ because they are designed to ‘divert’ a person from the criminal justice system and to provide treatment for problems linked with alcohol and other drug issues rather than punishment.

Diversionary programs are voluntary in that they are not carried out with you being held behind locked doors in an institution, such as prison or a psychiatric hospital. However, there may still be serious consequences if you fail to finish or cooperate in a program. If you fail to finish or cooperate you are likely to be taken back to court to have the original offence dealt with again. It is best to get legal advice before you agree to participating in a diversionary program.

This section provides information about Drug Court programs and the Magistrates Early Referral into Treatment (MERIT).

Other examples of diversionary programs include the Extra Offender Management Services (EOMS), Cannabis Cautioning Scheme (CCS); and Circle Sentencing.

Click here to find information about the diversionary programs that may be available to you.

There is also the NSW Youth Drug and Alcohol Court (YDAC), which aims to reduce re-offending by young people who have become entrenched in the criminal justice system, by diverting them into diversionary programs to overcome their drug and alcohol problem.

8F.4.1: Drug Court Programs

In some instances, the Local or District Court may refer to you to the Drug Court to consider if you are eligible for the Drug Court program.

The Drug Court of NSW aims to address underlying drug dependency which has resulted in criminal offending behaviour. The Drug Court can require an offender to participate in an ongoing rehabilitation program, under court supervision instead of imposing a punishment. The relevant law is the Drug Court Act 1998 (NSW).

To be eligible for the Drug Court program, a person must:

• be likely to be sentenced to full-time imprisonment;
• have indicated they will plead guilty to the offence;
• be dependent on the use of illicit drugs;
• live within certain catchment areas and referred by certain courts;
• be eighteen (18) years of age or over; and
• be willing to participate.

A person is not eligible if they:

• are charged with an offence involving violent conduct;
• are charged with a sexual offence or some types of drug offence; and
• are experiencing a mental condition that could prevent or restrict participation in the program.

People with a history of violent or dangerous behaviour may be ineligible for participation.

If the Drug Court finds that the offender is not eligible for drug court programs, the person will be referred back to the Local or District Court.

If the Drug Court decides that an applicant is eligible for a residential Drug Court program, the person will go into a ballot. If that person is chosen from the ballot, they will be remanded in custody for detoxification and assessment. This takes place at the Drug Court Unit in Silverwater Complex, which is separate from inmates in the main gaol. The initial assessment takes up to two (2) weeks and includes general and mental health reviews conducted by Justice Health. Each person’s Drug Court program is tailored to their specific needs.

The offender must agree to the program of treatment and conditions proposed by the court. The Drug Court imposes a penalty for the offence, but the sentence is immediately suspended while the person is on the Drug Court program. If the offender completes the program, that will be taken into account in determining the final sentence, such as a good behaviour bond. The final sentence cannot be higher than the original, suspended sentence.

During the Drug Court program, the offender in custody may have the opportunity of receiving a community services order and engaging in work in the community. The offender may live at an approved residential address (for example the offender’s home) or at a residential rehabilitation facility (for example, Salvation Army William Booth House in Sydney). The length of the program depends on the person’s progress.

For more information about the Drug Court and the three phases of the Drug Court program click here.

8F.4.2: Magistrates Early Referral into Treatment

The Magistrates Early Referral into Treatment (MERIT) program is an alcohol and drug program available to eligible defendants who appear at certain Local Courts. To be considered eligible for MERIT, a defendant must:

• be aged eighteen (18) years old or over;
• be eligible for bail or not require bail consideration;
• have a treatable drug/alcohol problem for which there is appropriate treatment available;
• live in a certain catchment area (or have sufficient connection to the area, for example, have full-time employment in the area); and
• voluntarily consent to undertake the MERIT program.

The defendant must not be charged with sexual, certain serious offences or have such offences pending before the court.

The MERIT program allows defendants to focus on treating their alcohol or drug issue separate from their legal matters. An agreement to become involved is not an admission of guilt for the offence(s) charged. Treatment generally takes place before any pleas are made and the court matters are adjourned (delayed) until the completion of the program.

The program normally lasts three (3) months. Treatments will depend on the circumstances of each participant, and may include:

• detoxification
• weekly individual counselling
• methadone and other medication
• residential rehabilitation; and
• case management and support.

During the bail period, participants will:

• have the support and guidance of their MERIT caseworker;
• participate in the treatment program as agreed to with their caseworker;
• comply with all conditions of bail and the MERIT treatment plan; and
• appear before the Magistrate during this period to provide an update on treatment progress.

MERIT caseworkers will report any incidents of non-compliance with the treatment plan to the Magistrate. The Magistrate may remove the defendant from the program. If removed from MERIT, the defendant goes back to court for a plea or hearing. The defendant will not have any extra charges specifically because they did not comply with the treatment program.

After the treatment program is completed, the defendant will have a hearing or sentencing of the outstanding court matter(s):

• the Magistrate hearing the case will be provided with a report from the MERIT Team;
• the report will give information on the client’s participation in treatment and any further treatment recommendations; and
• where possible, a detailed aftercare program will assist participants to continue in their rehabilitation.

The sentence of the participant after successful completion of MERIT should reflect successful completion of MERIT and any recommendations for further treatment.

For more information about MERIT, click here.

8F.5: Alcohol and Drug Treatment in custody

Justice Health and Forensic Mental Health Network provides treatment and support for people in custody with alcohol and drug (AoD) issues.

For example, the Adolescent Community and Court Team – works with other government agencies and Area Child Adolescent Community Mental Health Services to divert young people from custody.

For services specifically for people with AoD issues in contact with the criminal justice system, click here.

8F.5.1: Intensive Drug and Alcohol Treatment Program

Intensive Drug and Alcohol Treatment Program (IDATP) is a residential (live in) program at the John Morony Correctional Centre for male and female offenders who have drug and/or alcohol problems linked to their offending behaviour.

Eligible prisoners can be referred to IDATP by a variety of sources that include active recruitment by program staff, the Probation and Parole Service, other CSNSW staff and self- referrals. Recommendations can also be made by the court at the time of sentencing and acted on by corrections staff after imprisonment. In addition to meeting the eligibility criteria, the IDAPT team assess whether an offender is suitable for the program. This assessment comprises an interview that considers such things as the drug use and offending history, physical and mental health, cognitive functioning, drug treatment history, institutional security or safety alerts and medical needs.

Participation in IDATP is voluntary and offenders can refuse a referral or refuse to be placed on the program. Once an offender has commenced the program they can also discharge themselves at any time.

It is a group program which can take six (6) to eight (8) months to complete, depending on each person’s progress.

IDATP aims to:

• help offenders gain an understanding of their substance use and offending behaviour;
• reduce the likelihood of re-offending; and
• give offenders the skills, resources and support needed to return to the community, free from alcohol and/or drug-free and offending behaviour.

The program includes a range of therapeutic, health, education, vocational (job) and pre-release interventions aimed at addressing substance dependence, offending behaviour and reintegration. It is offered to offenders at the Outer Metropolitan Multi-Purpose Correctional Centre and Dillwynia Correctional Centre.

8F.6: Information about drugs and the law

In NSW, it is an offence to possess, use, produce or supply a drug which has been declared prohibited. Most charges regarding drug in NSW will be because a person broke the law Drug Misuse and Trafficking Act 1985 (NSW).

The Commonwealth Criminal Code deals with offences involving bringing drugs into Australia or exporting drugs to other countries.

For information about drugs and the law, you can read the resources below:

• NSW State Library, “Drugs and the Law”: this website Information about the law in New South Wales relating to drugs, including possession, use and supply, manufacturing, importing and exporting.
• Department of Health “Drug laws in Australia”: this provides information about drug laws in each state and territory.

Sourced on 4/8/22: https://mhrm.mhcc.org.au/chapters/8-people-with-mental-health-and-co-existing-conditions/8f-people-with-mental-health-conditions-who-have-alcohol-and-other-drug-issues/

29. Closing the Gap

The National Agreement on Closing the Gap sets out ambitious outcomes and new priority reforms that will change the way governments work to improve life outcomes for Indigenous Australians.

It has been developed in genuine partnership between Australian governments and Aboriginal and Torres Strait Islander peak organisations.

The National Agreement was agreed on 30 June 2020 by:

• all Australian governments
• the Coalition of Aboriginal and Torres Strait Islander Peak Organisations
• the Australian Local Government Association.

The National Indigenous Australians Agency is leading the Commonwealth's whole-of-government efforts on Closing the Gap.

Commonwealth Implementation Plan

The National Agreement commits all parties to action. Its success depends on all parties committing the right resources and efforts to deliver on these actions in practice.

All parties to the National Agreement have developed an implementation plan that sets out how their policies and programs align with the National Agreement and what actions they will take to achieve the priority reforms. Parties will report annually on their progress.

On 5 August 2021, the Australian Government released its first Closing the Gap Implementation Plan- external site. This whole-of-government plan was developed in consultation with Aboriginal and Torres Strait Islander partners and in particular with the Coalition of Aboriginal and Torres Strait Islander Peak Organisations.

The National Indigenous Australians agency led the development of the Implementation Plan, working closely with relevant Australian Government agencies, including our department.

It provides an overview of the Australian Government's new investments and future work as well as existing actions that contribute to achieving the Closing the Gap outcomes and priority reforms.

Our actions under the Closing the Gap Implementation Plan

We are working to embed the priority reforms within our broader policies, programs, culture and practices. This work will continue for the lifetime of the National Agreement.

Together with the National Indigenous Australians Agency, we are leading Australian Government action on the Adult and Youth Justice Outcomes (Outcomes 10 and 11), as well as the Land and Waters Outcome (Outcomes 15a and 15b).

Read more about the Closing the Gap Socioeconomic Outcomes and Targets- external site

Adult and Youth Justice Outcomes

Closing the Gap Outcome 10 and Outcome 11 are that adult and young Indigenous Australians are not overrepresented in the criminal justice system.

There are 2 targets for these outcomes:

• Target 10: By 2031, reduce the rate of Aboriginal and Torres Strait Islander adults held in incarceration by at least 15%.
• Target 11: By 2031, reduce the rate of Aboriginal and Torres Strait Islander young people (10-17 years) in detention by at least 30%.

Under the Australian Government's Closing the Gap Implementation Plan, we are delivering 4 key new investments:

• $9.3 million in legal assistance funding for Aboriginal and Torres Strait Islander Legal Services to assist families in coronial inquiries and to support clients involved in complex and/or expensive cases.
• $8.3 million for Aboriginal Community Controlled Organisations to assist Aboriginal and Torres Strait Islander families to resolve post-separation parenting and property disputes through culturally safe and tailored models of family dispute resolution.
•  $7.6 million to support the establishment of the Justice Policy Partnership, a joined up policy partnership on justice between the Commonwealth, states and territories and Aboriginal and Torres Strait Islander representatives to agree focus action areas to drive outcomes on reducing Indigenous incarceration.
• Funding to support jurisdictional implementation of the Optional Protocol to the Convention Against Torture. This will lead to better outcomes for detainees and support greater public confidence in the justice system by helping reduce Aboriginal and Torres Strait Islander deaths in custody and ensuring safe conditions of detention.

Sourced on 4/8/22: https://www.ag.gov.au/legal-system/closing-the-gap

30. Justice Policy Partnership

The Justice Policy Partnership brings together representatives from the Coalition of Peaks- external site, Aboriginal and Torres Strait Islander experts, and Australian, state and territory governments to take a joined-up approach to Aboriginal and Torres Strait Islander justice policy.

It is the first of 5 policy partnerships to be established under Priority Reform One of the National Agreement on Closing the Gap. Policy partnerships under the National Agreement will:

• drive Aboriginal and Torres Strait Islander community-led outcomes on Closing the Gap
• enable Aboriginal and Torres Strait Islander representatives, communities and organisations to negotiate and implement agreements with governments to implement all priority reforms under the National Agreement and policy specific and place-based strategies to support Closing the Gap
• support additional community-led development initiatives
• bring together all government parties, together with Aboriginal and Torres Strait Islander people, organisations and communities to the collective task of Closing the Gap.

Parties to the National Agreement have committed to reducing the rate of Aboriginal and Torres Strait Islander adults held in incarceration by at least 15% by 2031 (target 10), and reducing the rate of Aboriginal and Torres Strait Islander children (10-17 years) in detention by at least 30% by 2031 (target 11). The Justice Policy Partnership is focussed on reducing the disproportionate rate at which Aboriginal and Torres Strait Islander People are incarcerated.

The Agreement to Implement the Justice Policy Partnership sets out scope and purpose of the partnership as well as the roles and responsibilities of members.

Read a copy of the Agreement to Implement the Justice Policy Partnership.

Membership

The Justice Policy Partnership has members representing all Australian, state and territory governments and Aboriginal and Torres Strait Islander members. This includes:

• 10 Aboriginal and Torres Strait Islander members – 5 from Coalition of Peaks organisations and 5 independent Aboriginal and Torres Strait Islander members, selected by the Coalition of Peaks in an open and transparent expression of interest process
• 9 government members – 1 from the Australian Government and 1 each from state and territory governments (all senior officials).

The Justice Policy Partnership is co-chaired by the Chair of the National Aboriginal and Torres Strait Islander Legal Services and the Deputy Secretary of the Legal Services and Families Group in the federal Attorney‑General's Department.

Further details on the Justice Policy Partnership membership is contained in the Agreement to Implement.

31. How to Assist an Aboriginal Defendant

The Legal Services Commission of South Australia has published guidelines on working with Aboriginal Defendants. Extracts appear below:

Using Interpreter Services

Aboriginal people in the remote north-west of South Australia may speak in the Western Desert language which has many dialects. Port Augusta has a settled population of Aboriginal people, and is also a traditional meeting place and crossroads for Aboriginal people who travel to and through this area from the north-west of the state and beyond. This means that people from many different Western Desert language groups are in this area at any one time.

For those people from the Anangu Pitjantjatjara Yankunytjatjara Lands (APY Lands), their first language may be Pitjantjatjara or Yankunytjatjara and their second language may be English. It is important to remember that Pitjantjatjara and Yankunytjatjara people identify as separate and distinct groups despite intermarriage between the two groups. Pitjantjatjara can be understood by Yankunytjatjara, Ngaanyatjarra, and Manjiljarra speakers. Interpreter services are available for Pitjantjatjara and Yankunytjatjara. For further information on interpreting services, including other Aboriginal languages, please visit the Aboriginal Language Interpreting Service (ALIS) website.

Many people speak Aboriginal English which is a recognised separate dialect of English. Not only may this be difficult to understand, it also incorporates indigenous words, and some English words have different meanings. As there is no interpreter service available to assist with Aboriginal English, the duty solicitor needs to be attentive when taking instructions in Aboriginal English to avoid making false assumptions and misinterpreting the defendant’s instructions.

As discussed in the Role of the Duty Solicitor chapter, many legal terms and concepts are not only culturally foreign, they may be uninterpretable. A very able court interpreter has given evidence on many occasions in South Australian courts that the words of the police caution are untranslatable into Pitjantjatjara, containing as they do propositions put in the alternative, and abstract concepts such as “rights”, which are divorced from immediate experience [see Role of Duty Solictor chapter]. It is therefore important for the duty solicitor to avoid using legal jargon, and instead to describe the situation the defendant is in and their rights in general terms and plain English. An interpreter should also be able to assist with this dilemma.

Gratuitous Concurrence

Gratuitous concurrence is when a person appears to assent to every proposition put to them even when they do not agree. For many indigenous people, using gratuitous concurrence during a conversation is a cultural phenomenon, and is used to build or define the relationship between the people who are speaking. For example, it may indicate respect towards a person, cooperation between people, or acceptance of a particular situation.

However, it is widely recognised that people who are in a position of powerlessness when confronted by alien institutions and authority figures, and who are disadvantaged due to a language barrier, may adopt a strategy of always agreeing or saying what they think the person in authority wants them to say, regardless of the truth of the matter. Gratuitous concurrence is not confined to traditional Aboriginal people from the north-west of the State [see Role of the Duty Solicitor chapter].

Different ways of communicating

Often taking an indirect approach to seeking information is more appropriate when taking instructions from an Aboriginal defendant. This may avoid gratuitous concurrence, as discussed above, as it removes the necessity to respond to direct questions, or respond to questions with expected “yes” or “no” answers. Allowing a person to tell in their own words what has happened is culturally appropriate when taking instructions from an Aboriginal defendant and allows moments of silence and pause while thoughts are put together. Silence and pause are an important and normal part of communication and the exchange of information. A duty solicitor has to possess the virtues of patience and sympathetic understanding and must listen attentively to an Aboriginal person's story. The story and the telling of the story are essential aspects of Aboriginal culture. Stories are only revealed to people who can be entrusted with them [see Role of the Duty Solicitor chapter].

The use of body language is an integral part of communication for many Aboriginal people. For example, hand gestures and movement of the head and eyes can be important. Direct eye contact may be taken as a sign of aggression, rudeness or disrespect; lowered eyes and talking in a quiet manner may be seen as respectful behaviour.

Issues for Duty Solicitors

The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) and the final report handed down in 1991 demonstrated very clearly that disproportionate numbers of Aboriginal people compared to the mainstream community have contact with the criminal justice system. It is widely recognised that this contact has a destructive influence on Aboriginal communities, families and individuals. The over-representation of Aboriginal people in the criminal justice system continues to this day; arrest and imprisonment rates remain at disproportionate rates. Needless to say, a number of Aboriginal people have had a lot of experience of the criminal courts, Magistrates, police prosecutors and defence lawyers. Not surprisingly, they do not enjoy being defendants in criminal cases and in some cases hold cynical and negative views of defence lawyers. It is important for the duty solicitor to be culturally aware and behave in a culturally appropriate manner when assisting Aboriginal defendants.

Some responses to duty solicitors

Assuming that the language barrier has been overcome and the Aboriginal client is able to communicate effectively with the duty solicitor in English, then a variety of responses may be experienced. These responses are no different in kind from what may be experienced with non-Aboriginal defendants, but there will be differences in emphasis that reflect Aboriginal peoples’ cultures, society, world view and past experience. Both non-Aboriginal and Aboriginal duty solicitors may be experienced as alien because they are seen as part of the alien court system, and not “one of us”. Again, attentiveness, patience and courtesy to the defendant are of the utmost importance [see Role of the Duty Solicitor chapter].

Gender issues

Gender issues inevitably arise for duty solicitors dealing with Aboriginal people, particularly when dealing with traditional people [see Role of the Duty Solicitor chapter].

Charged up or seriously ill?

Aboriginal and Torres Strait Islander people have a disproportionate lower life expectancy and health status compared to non-Indigenous people. They die on average twenty years earlier than non-Indigenous Australians and infant mortality is three times higher than for non-Indigenous Australians. It is widely accepted that the ongoing disadvantage faced by Aboriginal people is due to a complex web of socioeconomic factors such as: poverty, overcrowding in houses, inadequate access to clean water and sanitation, inadequate access to education, housing and employment, lack of access to medical assistance and treatment, poor nutrition, drug and alcohol abuse (including petrol and solvent sniffing), ongoing discrimination and racism, dispossession from land, the separation of families, loss of culture, and emotional upheaval. Chronic diseases such as heart disease, diabetes, stroke, and renal failure are common and escalating, as is drug and alcohol addiction. Taking into account the prevalence of chronic illnesses within Aboriginal communities, it is important that the duty solicitor is aware that not all people who appear unwell or charged up are in fact high on drugs or alcohol, but rather are chronically ill.

The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) showed that Aboriginal people were disproportionately represented in relation to the offences of assault, drunkenness and public order offences. The deaths investigated by RCIADIC showed time and again that alcohol withdrawal in particular is life threatening, and that alcohol intoxication is potentially dangerous because it has the effect of masking effects and symptoms of other life threatening illnesses and conditions, such as closed head injuries [see Role of the Duty Solicitor chapter]. Taking these factors into consideration, it is important for the duty solicitor to not make assumptions about the condition of any defendant and be vigilant to the possibility that instructions may be needed in order to have the defendant medically examined.

Clearly, some defendants will be under the influence of alcohol or drugs. Where it is impossible to take instructions, the duty solicitor is obliged to obtain instructions to have the matter held over until the defendant is able to communicate effectively. Instructions should be obtained to warn the cell guards of the defendant's condition, and to remind them of their obligation and duty of care towards that person [see Role of the Duty Solicitor chapter].

The names of deceased people

For many Aboriginal people, raising the name of a dead person will cause serious offence and is culturally insensitive. For those people who speak Pitjantjatjara, the deceased person’s name is not to be spoken until the grieving family decides the name can come back into use. It is a matter of respect for traditional culture that one does not disturb its members’ memories of the dead by reviving the use of their name. In place of the person’s name, the word “Kunmanara” is used. Kunmanara means “one whose name cannot be mentioned” or “no name”. It is used by all people who have the same name as a person who has died recently, and may also be applied to the duty solicitor if it is appropriate. The rule is simple: if the defendant calls the duty solicitor “Kunmanara” or if the defendant calls somebody else “Kunmanara”, then it is very important the duty solicitor does not use that person's name, but rather call the person in question “Kunmanara”.

In addition, the duty solicitor should be aware that it is culturally inappropriate to show community members material such as video, voice recordings and photographs which contain images of the deceased person.

Ceremonial obligations

The Magistrates Court of South Australia, when it sits in the north-west of the State, will consider ceremonial obligations as reasons for absence from court, however more weight is given to such submissions where supporting information is also provided. This particularly applies to people of the Western Desert Language Groups, who reside at Yalata, Oak Valley and in the Pitjantjatjara Homelands. It is helpful to remember:

• It is never appropriate to ask of a defendant the nature of the ceremonies, because they relate to secret and sacred business;
• It is usually appropriate to adopt a euphemistic form of expression such as “going on business”;
• Ceremonial obligations apply to young, middle-aged and old men as well as women. Both men and women occasionally travel on business, especially when relatives are involved;
• Family relationships and obligations have a wide context; the obligation to attend funerals for more distant relatives is just as important as for direct family members. Community members are generally approachable in providing confirmation of when and where a funeral will be held.

Business usually takes place during the summer months, though this is by no means an invariable rule and there is usually a fairly long lead-up time prior to the occasion when the travelling starts.

It is obviously important to the maintenance of the tradition of the courts giving leeway to defendants at ceremony time that the present arrangements not be abused. Some communities have gone so far as to arrange for traditional leaders to speak with visiting Magistrates and to request them to impose bail conditions consistent with attendance on business, but requiring the immediate arrest of defendants who have absented themselves from the community during “business time” so as to go on a drinking binge. This is cited as an example of the seriousness with which community leaders regard the importance of Aboriginal people attending traditional ceremonies and not abusing the leeway that Magistrates give in those circumstances.

Sourced on 4/8/22: https://lsc.sa.gov.au/dsh/print/ch03.php

The Law Society Northern Territory has published Indigenous Protocols for Lawyers. Extracts are provided below:

Many lawyers in the Northern Territory act for and provide advice to Aboriginal people. For many lawyers, especially those who do not identify themselves as Aboriginal or Torres Strait Islander, those who do not have Indigenous heritage and those who are new to the Territory, communicating with Indigenous clients poses some special challenges. For example, because of the significant differences in language and culture, there is a much higher than usual risk of miscommunication.  This is problematic and can often result in serious consequences. Consultations with Indigenous organisations and the legal profession in the Territory suggested a need for protocols to assist communication between lawyers and their Aboriginal clients. Based on the obligations of lawyers under Australian law and influenced by international law, such protocols can set a basic standard of conduct to assist legal practitioners and their Indigenous clients.

The ongoing need for these protocols is plainly evident when it is considered that more than 30 % of the Northern Territory’s population is comprised of Aboriginal people.

Further, in December 2012 of the 1,452 people in custody in the Northern Territory only 239 were non-Indigenous. Currently, Aboriginal people comprise close to 86% of the jail population in the Territory. Of the 64,000 Aboriginal people in the Northern Territory, 1,279 were in prison as at 30 June 2014.1 The Productivity Commission’s Overcoming Indigenous Disadvantage report released in 2014 identified that the rate of Aboriginal and Torres Strait Islander imprisonment increased by 57 % Australia wide between 2000 and 2013.2 Indigenous incarceration rates are even worse for young people. On 31 January 2013, there were 65 juvenile detainees held across three detention centres in the Northern Territory. Of the 65 detainees, 96% identified as Aboriginal or Torres Strait Islander.3 The Australian Institute of Health and Welfare’s report “Youth Detention Population In Australia 2014” looks at the numbers and rates of young people who were in youth detention due to their involvement or alleged involvement in criminal activity. It focused on trends over the four-year period from June 2010 to June 2014. The report found that over that period, the over-representation of Indigenous young people in detention rose from 22 times to  25 times the rate of non-Indigenous young people.4 The legal profession has a critical role to play in being part of the solution to the serious problem of over-representation of Indigenous people in custody in the Northern Territory. Further, the issue of improving communication between Indigenous clients and their lawyers extends to all aspects of providing proper advice and representation to Indigenous people in the justice system. This means the protocols apply with equal importance and effect in the civil jurisdiction of the courts as well as the criminal jurisdiction and with that, the legal profession can more readily facilitate the delivery of justice to Indigenous people. As a basic tool, these protocols will do much to assist in the ultimate end of increasing criminal and civil justice for Indigenous people and as a starting point the role of interpreters is critical. The importance of Aboriginal interpreting services has been well documented in several national reports, including:

• the Royal Commission into Aboriginal deaths in custody (1991) (recommendation 100)
• the Recognition, rights and reform social justice report (2000)
• the Bringing them home report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (1997).

The six protocols

Protocol 1 Assess whether an interpreter is needed  before proceeding to take instructions.

Protocol 2 Engage the services of a registered, accredited interpreter through the   Aboriginal Interpreter Service.

Protocol 3 Explain your role to the client.

Protocol 4 Explain the relevant legal or court process to the client prior to taking instructions.

Protocol 5 Use ‘plain English’ to the greatest extent possible.

Protocol 6 Assess whether your client has a hearing or other impairment that may affect their   ability to understand.

Sourced on 4/8/22: https://www.lawsociety.com.au/sites/default/files/2018-03/indigenous_protocols_for_lawyers_0.pdf