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Family and Civil Law Needs of Aboriginal People in New South Wales

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Family and Civil Law Needs of Aboriginal People in New South Wales The family and civil law needs of Aboriginal people in New South Wales FINAL REPORT Chirs Cunneen & Melanie Schwartz Law Faculty, University of NSW, 2008 Acknowledgements The following people coordinated the sixteen focus groups in eight focus sites, and provided invaluable assistance in ensuring high rates of attendance: Sandra Hooper, Sharon Dykes, Tanya Carney, Dawn Blanch, Bronwyn Penrith, Simone Jolley, Evelyn Robinson, Don Clark, Jenny Beale, Clive Suey, Brett French, Phyllis Cubby, Teddy Hart. Fiona Allison provided research and organisational assistance for the project. In particular Fiona was responsible for Chapter 8 of the report. Michael Salter assisted with data entry. Acronyms ABS Australian Bureau of Statistics ACSS Aboriginal Client Services Specialist (Courts) AJSDP Aboriginal Justice Service Delivery Plan (Legal Aid NSW) ALAP Aboriginal Legal Access Program (CCLCG) ALS Aboriginal Legal Services NSW/ACT ALST Aboriginal Legal services of Toronto ARIA Accessibility/Remoteness Index of Australia ATFRS Aboriginal Trust Funds Repayment Scheme ATSILS Aboriginal and Torres Strait Islander Legal Services AVL Audio Visual Link AVO Apprehended Violence Order CCLCG Combined Community Legal Centres Group (NSW) CDEP Community Development Employment Projects CLC Community Legal Centre CLE Community Legal Education CLO Community Liaison Officers (LAQ and NTLAC) CLSD Cooperative Legal Service Delivery DOCS Department of Community Services (NSW) DOH Department of Housing (New South Wales) FG Focus Group FVPLS [Indigenous] Family Violence Prevention Legal Service HECS Higher Education Contribution Scheme HREOC Human Rights and Equal Opportunity Commission IISU Integrated Indigenous Strategy Unit (LAQ) ILO Indigenous Liaison Officer (LAQ) LAF Legal Assistance Forum (LAQ) LAA Legal Aid Society of Alberta (Canada) LAC Legal Aid Commission LAO Legal Aid Ontario LAQ Legal Aid Queensland LSA Legal Services Agency (Pokapu Ratona Ture, New Zealand) LSC Legal Services Corporation (United States) LSO Legal Support Officer (Legal Aid NSW) LSS Legal Services Society (British Colombia, Canada) MOU Memorandum of Understanding NAAJA Northern Australian Aboriginal Justice Agency NALSC Nishnawbe-Aski Legal Services Corporation (Canada) NARF Native American Rights Fund (United States) NATSISS National Aboriginal and Torres Strait Islander Social Survey NLADA National Legal Aid and Defender Association (United States) NSW New South Wales NTLAC Northern Territory Legal Aid Commission SCROGSP Steering Committee for the Report of Government Service Provision PDRI Primary Dispute Resolution (NTLAC) PIAC Public Interest Advocacy Centre SDRO State Debt Recovery Office TAFE Technical And Further Education VALS Victorian Aboriginal Legal Service VLA Victorian Legal Aid WALS Western Aboriginal Legal Service YLS Yukon Legal Service Society (Canada) 2 CONTENTS Acknowledgements Acronyms List of Tables EXECUTIVE SUMMARY 9 1 INTRODUCTION AND BACKGROUND 21 1.1 Introduction and Research Questions 1.2 Structure of this Report 1.3 Methodology 1.3.1 Identification and Selection of Research Site Areas 1.3.2 Focus Groups: location and composition 1.3.3 Focus Groups: process and discussion areas 1.3.4 Stakeholder Interviews 1.3.5 Identification of Stakeholders 1.4 Service Delivery Context: Legal Aid NSW 1.4.1 LAC/ATSILS Partnership 1.4.2 Legal Aid Outreach Service at ALS Offices 1.4.3 CLSD 1.4.4 Rural Client Services Strategy 1.4.5 Aboriginal Service Delivery Plan 1.5 Service Delivery Context: Community Legal Centres 1.6 Importance of a Legal Needs Analysis for Aboriginal People in Civil and Family Law 1.6.1 Access to Justice 1.6.2 Existing Barriers to Accessing Justice 1.7 Previous Research: Legal Needs 1.7.1 The New South Wales Law And Justice Foundation Legal Needs Research Reports 1.8 Previous Research: Indigenous Legal Needs 1.8.1 Hawkesbury Nepean Community Legal Centre Study 1.8.2 Previous Legal Aid NSW Reviews and Evaluations 1.9 Definition of Legal Needs 2 ABORIGINAL USE OF LEGAL AID CIVIL AND FAMILY LAW SERVICES 41 2.1 Legal Aid for Civil Law Matters 2.1.1 Applications for Civil Aid 2.1.2 Applications for Civil Aid by Gender 2.1.3 Successful Grants of Legal Aid for Civil Law Matters 2.1.4 Grants of Civil Aid by Gender 2.2 The Provision of Minor Assistance for Civil Law Matters 2.2.1 Provision of Civil Minor Assistance by Gender 2.3 Legal Aid for Family Law Matters 2.3.1 Applications for Family Law Aid 2.3.2 Applications for Family Law Aid by Gender 2.3.3 Successful Grants for Family Law Aid 2.3.4 Grants for Family Law Aid by Gender 2.4 The Provision of Minor Assistance for Family Legal Aid Matters 2.5 Conclusion 3 LEGAL NEEDS ANALYSIS: FAMILY, HOUSING, NEIGHBOURS AND EDUCATION 61 3.1 Family 3.1.1 Children 3.1.2 Accessing Legal Advice 3 3.1.3 Divorce and Separation 3. 2 Housing and Tenancy 3.2.1 Disputes with Landlord 3.2.2 Disputes Relating to Supported Accommodation 3.2.3 Other Legal Needs Relating to Housing 3.3 Neighbours 3.4 Education 3.5 Conclusion 4 LEGAL NEEDS ANALYSIS: EMPLOYMENT, STOLEN WAGES AND DISCRIMINATION 77 4.1 Employment 4.2 Stolen Wages and Stolen Generations 4.3 Discrimination 4.4 Conclusion 5 LEGAL NEEDS ANALYSIS: SOCIAL SECURITY, CREDIT DEBT AND CONSUMER ISSUES 87 5.1 Social Security and Centrelink 5.2 Credit and Debt 5.3 Consumer Issues 5.4 Conclusion 6 LEGAL NEEDS ANALYSIS: VICTIM’S COMPENSATION, ACCIDENTS, INJURIES AND WILLS AND ESTATES 97 6.1 Victim’s Compensation 6.2 Accident and Injury 6.2.1 Motor Vehicle Accidents 6.2.2 Work-Related and Other Injuries 6.3 Wills and Estates 6.4 Conclusion 7 ABORIGINAL EXPERIENCES OF LEGAL AID 105 7.1 Aboriginal Legal Needs: The Priority Areas 7.1.1 Determining Priority Areas 7.1.2 Housing 7.1.3 Discrimination 7.1.4 Credit and Debt 7.1.5 Family law / Care and Protection 7.1.6 Other unrecognised needs 7.2 Observations on Legal Aid NSW Service Delivery 7.2.1 General observations on Legal Aid as a service to Aboriginal people 7.2.2 Literacy issues, complexity of Legal Aid forms and lack of assistance 7.2.3 Issues involving conflict, referral and lack of assistance 7.2.4 Level of attention and friendliness given to clients 7.2.5 Breakdowns in client-practitioner communication 7.2.6 Issues concerning flexibility of service delivery 7. 3 Conclusion 8 CIVIL AND FAMILY LAW INITIATIVES IN OTHER JURISDICTIONS 123 4 8.1 Legal Aid Queensland 8.1.1 Integrated Indigenous Strategy and Integrated Indigenous Strategy Unit 8.1.2 Outreach 8.1.3 Legal Assistance Forums 8.1.4 MOUs with ATSILS and FVPLS 8.1.5 Family Law Conferencing Program 8.1.6 Other 8.2 Northern Territory Legal Aid Commission 8.2.1 Access and Education 8.2.2 Family Dispute Resolution 8.2.3 Outreach Project and Indigenous Community Liaison Officers 8.2.5 Other 8.3 Victorian Legal Aid 8.3.1 Statement of Cooperation with VALS 8.3.2 Secondment Arrangements 8.3.3 Legal Aid Offices 8.3.4 Cross Cultural Training 8.4 Western Australian Legal Aid Commission 8.4.1 Country Lawyers Program 8.4.2 Other initiatives 8.5 Other Australian Legal Aid Commissions 8.5.1 Tasmanian Legal Aid Commission 8.5.2 ACT Legal Aid Commission and South Australian Legal Services Commission 8.6 Civil and Family Law Legal Aid to Aboriginal People in Canada 8.6.1 Civil and family law services in Canada 8.6.2 Legal Aid Ontario 8.6.3 Legal Services Society British Columbia 8.6.4 Legal Aid Society of Alberta 8.6.5 Yukon Legal Services Society 8.6.6 Saskatchewan Legal Aid Commission 8.6.7 Legal Aid Manitoba 8.6.8 Nova Scotia Legal Aid Commission 8.6.9 Legal Services Board of the Northwest Territories 8.6.10 Other Legal Aid Offices 8.7 New Zealand 8.7.1 Legal Services Agency 8.7.2 Community Law Centres and Legal Aid 8.7.3 Research and Advice 8.7.4 Provision of legal education and information 8.8 United States 8.8.1 Native American Nationhood 8.8.2 ‘Legal aid’ services in the US 8.8.3 Legal Services Corporation 8.8.4 Other Services 8.8.5 National Legal Aid and Defender Association 8.8.6 Legal aid services working with Native American communities 8.9 Conclusion 9 PROPOSALS FOR REFORM 147 9.1 Existing Staff and Services 9.1.1 Current Employment of Aboriginal people in Legal Aid NSW Offices 9.1.2 Cultural awareness training for non-Indigenous staff 9.1.3 Special disadvantage test 9.1.5 Improving Legal Aid NSW Offices 9.1.6 Flexibility in service delivery 9.2 Improving Service Delivery through Connecting to the Community: Outreach 9.2.1 Outreach services in community locations 9.2.2 Existing Legal Aid Outreach Models 5 9.2.3 Indigenous Family Violence Prevention and Legal Service Outreach Models 9.2.4 Court Registrar Outreach Service in Wagga 9.2.5 Developing Legal Aid Outreach Models 9.3 Employing Aboriginal field officers 9.3.1 Aboriginal Field Officer in Community Legal Centres and Other Legal Aid Offices 9.3.2 The Role of Field Officers 9.4 Expand the use of Audio Visual Links (AVL) for advice 9.5 Ensuring better understanding by Aboriginal people of civil and family law 9.5.1 Civil and family law community legal education 9.5.2 Indigenous Telephone Advice line 9.6 Aboriginal Reference Group REFERENCES 169 APPENDICES 173 COVER ART The artistic work titled “Ray of Light” was supplied by Clint Lingard (Jongaragee Mata). He is a member of the “Ewamian People” whose ancestral lands are in “Far North Queensland” and he is also a Civil Law Solicitor at Legal Aid NSW’s Parramatta Office.
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