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Legal assistance in NSW

The level of legal assistance available to homeless people in NSW depends upon the area of law for which they require assistance, their location, their special needs and/or characteristics (e.g. youth, gender, Aboriginality) and their capacity to overcome the barriers discussed in Chapter 5. This section will discuss the accessibility of different types of legal assistance to homeless people in NSW, and the major legal services providing these forms of assistance. It should be noted that most legal assistance services provide more than one type of assistance (e.g. information and advice, or advice, initial legal assistance and representation). In addition, a great deal of legal information and ‘advice’ may be provided to homeless people by non-legal workers and agencies. Some of these workers have specialist knowledge (e.g. tenancy workers, financial counsellors, government workers). Others are generalist workers (e.g. caseworkers) and support agencies. Legal assistance provided by these groups is discussed in detail in Chapter 7.

Plain language legal information

As a form of legal assistance available to homeless people, plain language legal information has a number of benefits. It may, for little or no cost to the user:

• address common or re-occurring legal issues or describe relevant legal processes
• be made immediately available at times and in places where people are experiencing legal crises (e.g. when a person is arrested)
• be made accessible to homeless people orally or in writing and in places they frequent, by telephone or on the internet
• make people aware that there may be a legal solution to their problem, and
• direct people to legal advice and assistance services that are available in their area.

In consultations for this study, a youth service provider stressed the need for information to let his clients know “they can do things legally, without taking the law into their own hands”.³

Legal information is most valuable if it is provided when and where it is pertinent, and in a form that is accessible to clients. One example of the provision of timely legal information that may help prevent homelessness for victims of domestic violence, is when police provide them with information about AVOs, and exclusion orders (see Chapter 4).⁴

Challenges to homeless people using generic legal information

There are a number of factors that reduce the value of plain language legal information as a form of legal assistance to homeless people. First, the legal information provided may be too general to be applied in an individual case, without interpretation or support.⁵ This is particularly so for homeless people facing multiple or complex legal issues, or who may have a limited capacity to ‘interpret’ and apply the information to their own situation.

Secondly, accessibility to written legal information by much of this population is limited by poor literacy levels, limited education and lack of access to internet and private telephone services.⁶ The LCRC observed among its clients:

Often these clients have very poor levels of literacy and have difficulty even understanding pamphlets. They also have a very low level of understanding of what is available to help them. Access to online interactive information is not possible … These clients are often unaware of legal telephone advisory services and do not have access to internet services.⁷

It should be noted, however, that the LCRC tends to have older clients who, generally speaking, use the internet less than younger people.⁸ Also of note is that there are several projects sponsored by welfare and commercial organisations that aim to increase the access of disadvantaged people, including homeless people, to free or low-cost internet services.⁹

Finally, consultations for this study suggest that, at least in the first instance, homeless people may seek advice about legal problems from a range of sources, including friends and families, welfare agencies and other non-legal services.¹⁰ The quality of the legal information they receive will vary with the capacity of the support person or organisation to provide the information. The role of non-legal agencies, workers and friends in providing legal information to homeless people is discussed in Chapter 7.

Given the complex needs of homeless people, it is reasonable to conclude that they often need more active support than can be provided by generic written legal information alone to recognise and pursue their legal issues.

Major statewide sources of legal information in NSW include Legal Information Access Centres and Chamber Magistrates and other court staff. LawAccess NSW provides both legal information and advice. These are discussed below.

Legal Information Access Centre (LIAC)

LIAC is run by the State Library of NSW and operates through public libraries throughout NSW. While all public libraries have plain language legal information, 76 libraries (‘public library LIACs’) have additional legal information and staff trained to assist people in accessing legal information. Staff do not provide legal advice.¹¹

LIAC can provide information from published works and/or refer clients to particular legal texts or websites or to other experts (e.g. Legal Aid NSW or CLCs).¹² One of the homeless people consulted in the current study spontaneously indicated that he had gone to the library for legal information.¹³

Given their geographic distribution throughout NSW, libraries are valuable sites for written legal information and assistance. However, LIAC is best suited to library users who have the time, capacity and literacy skills to actively address their legal issue. As mentioned in Chapter 5, homeless people are less likely to have these characteristics and therefore to use LIAC services.

Chamber magistrates and other court staff

Chamber magistrates in NSW local courts are another source of legal information for the community. Chamber magistrates provide a free, non-means tested legal information and assistance service in all full-time local courts, as well as outreach services to more than 50 locations. The service provides:

• information about legal processes and court procedures
• information about the options available to assist a person with a legal problem and the possible consequences of taking a particular course of action
• assistance with drafting simple documents used in cases before a local court
• assistance to take out an apprehended, domestic or personal violence order
• referral to an appropriate legal advisory service and to support/advocacy services.¹⁴

Chamber magistrates must also remain independent, and are not permitted to provide legal advice or represent people in court.

It would appear from the current study and a previous Foundation study on pathways to legal support¹⁵ that chamber magistrates and other court staff are an important point of contact between the court and court users. In the consultations for the current study, staff from one rural court described how some people with poor literacy in their area would ring or call into the court after receiving a letter with the court’s letterhead on it, to ask what the letter was about. The local court Aboriginal Client Service Specialist also told of people stopping him in the street to ask whether their matter was coming up in court in the next few days.¹⁶

Challenges to homeless people accessing chamber magistrates

Homeless people, like other disadvantaged people may face some barriers in accessing chamber magistrates. For example, barriers that Aboriginal people are reported to face in accessing chamber magistrates include lack of community awareness of the service, the formality of language used, their location in court houses and lack of access to transport to reach the court house.¹⁷ These are similar to the barriers identified in Chapter 5 as facing homeless people accessing legal services.

A court staff member consulted for this project also highlighted the issue of being able to identify a person as homeless. Unless a person self-identifies as homeless, or cannot provide an address for a form, court staff may not be aware that the person has no fixed address.¹⁸

LawAccess NSW

LawAccess NSW is a legal information, advice and referral service.¹⁹ LawAccess provides legal information by telephone, through LawAccess Online and through LawTalks. LawAccess Online is a web-based search facility that draws together legal information from a range of sources by topic.²⁰ LawTalks can be accessed through the main telephone number at any time, and is a series of pre-recorded legal information sessions on more than 30 topics, including family law, crime, debt, wills, problems with lawyers and information for young people.²¹

However, LawAccess also has qualified solicitors, including crime and family law specialists, who provide free telephone legal advice to anybody with a legal problem in NSW. LawAccess is of particular interest as a potential link to legal support for people at imminent risk of homelessness, homeless people who have no contact with support agencies, and those who are simply unable to reach legal services, through lack of transport, disability or family responsibilities.

LawAccess has a number of features that increase its accessibility and utility to homeless people, including those isolated from legal and other services. First, callers can ring LawAccess with any legal issue. LawAccess notes that callers often have more than one issue, and the staff will assist the person to identify the most urgent legal issue that needs to be addressed.²² If LawAccess is not the most appropriate service to provide advice, they can ‘warm refer’ callers to appropriate services. That is, they can contact the appropriate legal service, introduce the client and transfer the call directly.²³

Secondly, because LawAccess maintains information and databases that are updated with changes to the law, legal processes and legal services, they have the capacity to provide the most up-to-date information, and to make appropriate referrals. For instance, they can transfer a call from a client to a service that has the capacity to assist the client, has the relevant expertise and (where possible) is close to where the client lives. Recognising the limited resources of different services, LawAccess ‘filter’ clients referred to CLCs, referring only those clients who cannot be supported though alternative legal services (e.g. private solicitors, Legal Aid NSW or other government services). Clients will be told if there is no legal support available for their particular issue.²⁴

Thirdly, if callers who require legal advice ring from a public telephone box or do not have a return telephone number, they will be put straight through to a solicitor, rather than having the solicitor call them back at a later time.

As will be discussed in Chapter 7, homeless people may rely on the support of their caseworkers to address legal issues. While LawAccess prefers to speak with the client directly, with the client’s permission they will speak with a caseworker or support worker about the client’s legal issue.

Finally, another significant benefit of LawAccess is that it operates from a single telephone number. As such, it is easier to communicate the contact details to homeless people and to the diverse range of people and agencies that support them (see Chapter 7), increasing the potential for a client to reach appropriate legal support more efficiently.

Barriers to homeless people accessing LawAccess

Given the features of LawAccess described above, LawAccess has the potential to link isolated homeless people in NSW with legal assistance. However, homeless people do face some barriers in accessing and using this service. First, LawAccess was not well known among the homeless people and service providers consulted for this project. In order to be a source of legal assistance and referral for this group, LawAccess would need to increase its profile among those supporting homeless people as well as the community generally. Recognising the need to do this, LawAccess staff attend community events and provide information sessions to workers statewide.²⁵

Other barriers homeless people face in using LawAccess and telephone-based services in general, as identified by people interviewed in this study were:

• Homeless people may not have adequate access to a telephone. For instance, people with restricted telephone services (e.g. in boarding houses) may not be able to access 1300 (or 1800) phone numbers. Similarly, people living with family or friends may have the physical access to a phone but not the privacy to make a telephone call about a sensitive legal issue.
• Homeless people who are dependent on mobile phones often have to pay, or pay higher rates, to reach 1300 and 1800 services.²⁶ This may act as a disincentive to people calling telephone services, particularly if they fear being kept on hold and paying for timed calls.
• People may not like to use or trust telephone advice services. In a discussion about telephone advice services, one Aboriginal service provider said:

A lot of our mob won’t use those numbers, for a number of reasons. Largely because it is a really impersonal thing, and sometimes people like to see a face across the table … have more interaction with.²⁷

• People experiencing homelessness tend to have multiple legal and social issues, which are better addressed as part of a comprehensive package of support. While LawAccess can arrange legal support for different legal issues from different legal services, they are not in a position to ‘case manage’ or coordinate the provision of these services on an ongoing basis.
• Oral advice given over the telephone can be difficult to follow and remember. This is particularly the case for homeless people who may have complex legal issues, mental health issues, poor comprehension, and a lack of capacity to write down what is being said. However, LawAccess staff are trained to support people with complex needs and can refer clients to appropriate face-to-face services.
• LawAccess only operates during business hours. Homeless people may have critical legal issues outside these hours (e.g. criminal issues, domestic violence) or have other priorities during business hours (e.g. finding accommodation, fulfilling Centrelink requirements).

Thus, while LawAccess is a key part of legal assistance services that may be used by homeless people in NSW, some barriers remain to homeless people using this service.

Community Legal Centres (CLCs)

CLCs are often the first point of contact for people seeking assistance or their last resort when all other attempts to seek legal assistance have failed.²⁸

CLCs are independent, non-profit community organisations that provide free community legal education, information, advice, referrals and, in some cases, legal representation. At a broader level, they also undertake preventative and capacity building work, including community development, strategic litigation, law reform and policy advocacy. CLCs are staffed by paid and voluntary legal, community education and administrative workers. CLCs assist socially and economically disadvantaged people, some of whom may not be eligible for legal aid for the legal problem they face.

There are 38 CLCs in NSW, including 19 CLCs providing generalist legal support in defined geographic areas (e.g. Marrickville CLC, Northern Rivers CLC). Eleven CLCs are in regional or rural areas and 8 are in metropolitan Sydney. In addition, there are 19 CLCs with expertise in particular areas of law (e.g. NSW Consumer Credit Legal Centre, Tenants Union of NSW) or in the legal needs of particular groups (e.g. WLS, Intellectual Disability Rights Service (IDRS)) .²⁹ Recognising that clients may face multiple legal and non-legal issues, CLCs may also refer clients to other legal and non-legal services for assistance, when the issues cannot be addressed by the service itself.³⁰

While no CLCs in NSW specifically target the needs of homeless people, all the CLCs consulted in this study had clients who fall within the broad definition of homelessness outlined in Chapter 1. For example, the Inner City Legal Centre estimates that 10–20% of their ongoing casework relates to the legal needs of homeless people. Indeed, homelessness is one of the factors they consider in the decision whether to take-on a person requesting legal assistance.³¹ The Northern Rivers CLC also reported supporting homeless clients with a range of other complex needs, including mental health, alcohol and drug issues.³²

In discussing CLCs as a source of legal support for homeless people, we have to return to the definition of homelessness. It became very clear in the consultations that many people experiencing homelessness did not see themselves as homeless, even when they fell well within the definition provided in Chapter 1. Those not identifying as homeless included people living temporarily with family and friends, long-term boarding house residents, people in medium-term SAAP accommodation and some people working as prostitutes.³³

The term ‘homeless’ is often reserved for clients ‘sleeping rough’. For instance, in 2002–03, the WLS counted only 26 ‘activities’ (services) carried out for women who were described as ‘homeless’. However, if ‘activities’ for this period are counted using the broader Chamberlain and MacKenzie definition of ‘homelessness’, then nearly 3000 ‘activities’ were for ‘homeless’ clients (18% of the total, where accommodation was recorded). The vast majority of this group were women living with family and friends—sometimes described as the ‘hidden homeless’. The remaining homeless women were living in boarding houses, women’s refuges, and a small number in residential parks.³⁴

Thus, while CLCs are an important source of legal assistance to homeless people in NSW, the number of homeless clients currently being assisted by CLCs is not routinely counted and may be underestimated. Accordingly, funding provision is not necessarily made for the level of legal support required by this group of clients. CLCs are now implementing a new national data collection system known as the Community Legal Services Information System. It would be valuable if this system had the capacity for CLCs to record whether clients are ‘homeless’ within the broader Chamberlain and Mackenzie definition.

Barriers to homeless people using CLCs

Given their geographic distribution, local knowledge and specialist skills in delivering legal services to disadvantaged people, CLCs appear well placed to deliver legal services to people who are homeless and at risk of homelessness throughout NSW. However, CLCs are reported to be ‘chronically under-funded’,³⁵ reducing their capacity to provide services, particularly in rural areas.

Legal Aid offices and community legal centres exist in some areas of the State, but they are spread too thinly in rural, regional and remote areas. Many services are operating beyond their resource capacity, particularly along the fast growth areas of the coastline where services cannot keep up with the demographic changes. In the more remote parts of each region, there are insufficient workers to cope with the level of demand. Outreach transport costs are high, with travel times making many outreaches unviable.³⁶

Limited resources affect the number of services that can be established statewide and, therefore, the distance that people must travel to access face-to-face legal assistance. Insufficient funding can also affect the level of legal support which can be provided by existing CLCs. In a roundtable discussion for this study, a non-legal service provider suggested:

Community legal services … are very limited in their resourcing. I’ve sent clients to them. They can get some general advice but the community legal centres will not actually do the legal work for them. The best they can do is to suggest to us and to our clients that we get a list from the Law Society or the Bar Association of the necessary specialists, or people who are prepared to do things pro bono.³⁷

Chronic underfunding may also mean that experienced staff burnout and are not retained by CLCs. The report of the Senate Legal and Constitutional Committee Inquiry into Legal Aid and Access to Justice noted from a submission by Legal Aid NSW:

There is no doubt that the decline in legal aid funding has resulted in stark regional variations in the availability of legal aid, and a corresponding increased burden on CLCs and other community organisations. Burnout is a serious issue for staff. The poor salaries paid to CLC staff, which also impacts on the ability of CLCs to retain experienced staff, only exacerbates this situation.³⁸

The decline of funding for legal aid, including CLCs, and the need to redress this was recognised by the Senate Committee.³⁹

Related to this is the CLCs’ reliance on students and other volunteers. Some experienced solicitors do voluntary work in CLCs. However, student volunteers are often relatively inexperienced in both legal practice and in communicating with and recognising the complex needs of homeless clients. With the movement of volunteers through CLCs, the quality and continuity of service provided may be variable. As one CLC observed:

The centre relies on volunteers to answer the phones and take inquiries. If they do not recognise the urgency of the matter and tell the person that they have to wait three weeks for an appointment, then some people may be lost through this process.⁴⁰

Some non-legal workers consulted for this study, who had referred clients to CLCs, described delays in their clients getting an appointment. One CLC also raised this delay as an issue and noted that some homeless clients had giving up on seeking advice while waiting for the appointment. If people have an urgent matter, which, as highlighted in this report, is often the case with homeless people, the delay in getting appointments with a legal service may mean that assistance will simply come too late.⁴¹

Aboriginal and Torres Strait Islander Legal Services

As indicated in Chapter 3, Aboriginal people in NSW are over-represented in the homeless population, particularly among those in SAAP accommodation and those living in improvised dwellings. In addition, Aboriginal people in NSW may move more commonly between homes within their extended family network.⁴² However, as discussed in Chapter 1, living temporarily with family and friends is not necessarily considered ‘homeless’ in this cultural context.⁴³ Aboriginal people, homeless or otherwise, can access Aboriginal and Torres Strait Islander Legal Services (commonly known in NSW as Aboriginal Legal Services (ALSs)) for legal assistance.

There are six ALSs in NSW, each with a number of offices. ALSs in rural areas also have outreach services to courts throughout their regions. ALSs are staffed by solicitors, field officers and administrative staff. Field officers are usually local Aboriginal people, who, among other tasks, support Aboriginal clients through legal processes.⁴⁴ This may include picking up people and driving them to court when their matters are on⁴⁵ and supporting people at court.

ALSs mainly provide assistance in criminal matters. Most ALSs also provide at least initial advice and assistance in some family law matters, including child protection applications (though contested family law matters are usually referred to Legal Aid). The Western Aboriginal Legal Service (WALS) also does some debt recovery, bankruptcy, discrimination claims, consumer claims advice and tenancy advice.⁴⁶

Challenges facing ALSs in supporting homeless people

A rural ALS was consulted for this study. Some of the challenges the solicitor reported in providing legal support to his clients included:

• contacting clients who do not have a telephone
• clients not coming to appointments prior to the court day (for a range of reasons, including lack of transport, people having other priorities or not remembering the appointment)
• large work loads on court days, limiting the amount of time available for each client and resulting in matters being rushed
• limited literacy among clients
• getting access to mental health services for court reports and client support, and the cost of these reports.⁴⁷

It should be noted that some of these challenges relate to providing legal services in remote areas and are not particular to ‘homelessness’.

Pro bono services

Pro bono legal services are provided by private solicitors, legal firms and barristers free or at a reduced fee to clients who cannot afford the legal assistance that they need. Services can include legal advice, court representation and other legal work, including drafting documents. It may also include community legal education and legal assistance to non-profit organisations.⁴⁸ Pro bono services may be provided on a relatively ad hoc basis by individual lawyers or law firms, or in a more coordinated way through the Law Society Pro Bono Scheme, or projects such as the Homeless Persons’ Legal Clinics. To be assisted by the Law Society Pro Bono Scheme:

• the client must have been refused legal aid for the relevant proceedings
• a means and merit test is applied
• the matter must fall within the scheme’s guidelines.⁴⁹

Limitations of pro bono services

Speaking of pro bono services generally, one service provider in this study noted:

There is difficulty in finding a solicitor to take things on pro bono. A lot of them will only take a matter pro bono if there’s a very high possibility of success. A lot of them will not take a case that’s borderline on its merits.⁵⁰

In its submission to the Senate Inquiry into Legal Aid and Access to Justice, Legal Aid NSW recognised the value of properly administered quality pro bono services, but indicated a concern that pro bono work by lawyers tends to reflect individual solicitors’ or firms’ priorities and interests, rather than any formal assessment of legal need in the community.⁵¹

There may be greater scope for pro bono resources to more systematically address the legal needs of disadvantaged people when pro bono services are coordinated to address an identified need, and the impact of these services are evaluated against the needs of the clients. Legal Aid NSW suggests that this involves firms engaging in cooperative planning, delivery and evaluation of services with the government and community sector.⁵² Most of the specialist homeless person’s legal services discussed below are examples of the coordinated delivery of pro bono services.

Specialist homeless person’s legal services and clinics

There are a number of volunteer or pro bono legal services in Sydney specifically established to meet the legal needs of homeless and other disadvantaged people. Most of these services operate on a part-time basis, mainly providing legal advice and initial legal assistance (see Table 6.1). Where appropriate, clinic staff will refer clients to other services, such as Legal Aid NSW. Only Shopfront is permanently staffed with full-time solicitors and other volunteer staff.

Table 6.1: Specialist legal assistance services for homeless people in NSW

Legal Counselling and Referral Centre (LCRC)

The LCRC is one of a number of social services offered by the St John’s Church, Darlinghurst, to homeless and disadvantaged people.

Staffed by volunteer solicitors it runs two legal advice sessions a week. The clinic does some casework but also refers matters to the Inner City Legal Centre. The LCRC has been operating since March 1995, initially as a referral agency only.⁵³ It can provide legal information, advice, assistance and/or referral for criminal, civil and family law matters. It has also established outreach legal services in the Campbelltown area.

Service statistics for 2003 indicate that two-thirds of the LCRC’s 127 clients were male, with most clients aged over 30. Three in four clients were on social security benefits, with nearly 40% on the disability support pension. About 11% of clients were sleeping rough, 13% were living in boarding houses or backpacker hostels and 3% in SAAP accommodation.⁵⁴

Shopfront Youth Legal Centre

Shopfront (assisting young people aged 25 and under) in Darlinghurst is the only full-time legal service specifically established to meet the legal needs of young homeless people in NSW. Started in 1993 in response to the Burdekin report (see Chapter 1), Shopfront “assist[s] clients to see the legal problem in its wider context and to use a legal crisis as a catalyst for change”.⁵⁵ Shopfront is staffed by the law firm Freehills and run with the Sydney City Mission and the Salvation Army. Shopfront uses its interagency base to address the issues facing young people in a holistic way.

The bulk of Shopfront’s practice is criminal work, including both summary and indictable matters. One-third of new matters in 2002–03 involved representing clients in court for criminal matters. A further 30% concerned advice on criminal matters. Shopfront also acts for applicants and respondents in AVO applications and some family law and care proceedings (usually where the parents are young adults). In 2002–03, Shopfront dealt with approximately 600 matters on behalf of its clients.⁵⁶

Pro Bono Clinics at Exodus and Lou’s Place

Law firm Blake Dawson Waldron (BDW) funds and operates pro bono legal clinics at two services for homeless and disadvantaged people in Sydney—the Exodus Foundation (Exodus) in Ashfield, a service predominately used by older male clients, and Lou’s Place, a drop in service for women in Kings Cross. BDW’s solicitors are seconded to these services for six months, for an afternoon (Lou’s Place) or a day (Exodus) a week. Some of the matters require ongoing work that can be taken on by BDW.⁵⁷

In 2003–04, BDW saw 99 clients at Exodus in 312 visits. The legal matters most commonly dealt with at this clinic in this period were crime (29%), family (20%), government and other debt (20%), housing (16%) and personal injury compensation (10%). Approximately 20% of clinic clients were ‘homeless’ as defined in Chapter 1 and a further 26% were renting public housing. 87% were on social security or had no income.

In 2003–04, BDW saw 49 clients at Lou’s Place in 191 visits. Of the 74 matters dealt with for these clients, family law was the single largest area of law dealt with (28%), followed by crime (12%), AVOs (12%) and personal injury compensation (8%). Eight per cent of the matters concerned debt and 6% housing issues. More than 40% of clients seen at Lou’s Place were staying in refuges or emergency accommodation.

Homeless Person’s Legal Service (HPLS)

In May 2004, the Public Interest Advocacy Centre/Public Interest Law Clearing House NSW (PIAC/PILCH) established the HPLS, with legal clinics in five crisis accommodation and welfare agencies—four in inner-city Sydney and one in Parramatta. At least two lawyers visit each of the five services weekly. The HPLS is staffed on a pro bono basis by lawyers from Henry Davis York, Ebsworth & Ebsworth, Gilbert + Tobin, Clayton Utz, Allens Arthur Robinson and Minter Ellison. The clinics are staffed by a number of PIAC/PILCH member law firms and are modelled on similar services in Victoria and Queensland.

In its first six months of operation, the HPLS assisted 189 clients with 267 legal problems. In this time, 10% of the problems dealt with were criminal law issues, 9% were housing/tenancy issues, 8% were credit/debt matters and a further 8% were family law matters. Seven per cent of matters were fine-related, 6% were civil law matters (including commercial and tax issues) and 5% were each of personal injury matters and social security issues. In this period, 27% of the HPLS’s clients were in crisis accommodation, 16% were sleeping rough or squatting, 12% were in a boarding house or private hotel/backpacker hostel and 4% were living with family and friends.⁵⁸ Eighty per cent of the clients were male and 60% (of those who stated their age) were between 36 and 55 years old.

The HPLS provides legal assistance for civil, administrative and some summary criminal legal matters.

The types of legal matters dealt with by these specialist services vary. For instance, the bulk of Shopfront’s practice is crime, with one-third of new matters in 2002–03 involving their representing young people in court for criminal matters. In contrast, the work of the HPLS has been described as follows:

Legal information, advice and representation is provided in specific identified areas of law, including housing, tenancy and eviction, fines, victim’s compensation, debt and consumer credit, social security, mental health, community health orders, guardianship and administration, questions of identity, wills and estates, discrimination and employment law. Assistance by way of information only is provided in criminal, family and immigration law matters and advice on these matters is provided through various specialist law firms, the Legal Aid Commission of NSW, community legal centres and PILCH barristers. Where necessary, assisted referrals will be made to appropriate legal services.⁵⁹

The types of matters dealt with are likely to reflect a range of influences. These include the needs of the clients or the expertise of the legal staff (e.g. if they are civil law specialists, not family lawyers) and the types of legal assistance already available. For instance, specialist services may not take on a matter for which a client could get a grant of legal aid.

Homeless person’s legal services have been specifically designed to meet the needs of this client group. By way of example, PIAC describes the model on which the HPLS are based in the following terms:

The service model has been developed to overcome some of the barriers traditionally faced by homeless people in accessing legal services by providing face-to-face legal services with a continuity of legal personnel at locations familiar to and easily accessible by clients. Lawyers have been appropriately trained to work with clients with disabilities and experiencing extreme disadvantage and the legal services are provided in combination with complementary services required by homeless people, such as caseworkers, counseling and accommodation services. The welfare agencies facilitate the provision of the legal services by hosting client consultations with lawyers, providing assistance to support workers and acting as points of contact for clients.⁶⁰

Thus, these services address the particular needs of homeless people by providing face-to-face legal assistance in or near SAAP or other welfare services accessed by this client group (allowing longer appointment times) and by considering the legal issues together with the other issues faced by the client. Services and their lawyers also develop expertise in providing assistance to people with complex needs, and in dealing with the types of legal problems that they commonly face.

Armed with the expertise about the particular legal issues facing homeless people, some specialist homeless person’s legal services also play a lobbying role in advocating for the rights of homeless people. This involves lobbying government decision-makers to implement certain human rights as defined in international law into domestic law, as well as lobbying for change to existing Australian law that may adversely or disproportionately affect homeless people.

The coordinator of the NSW HPLS indicated that, given the high level of fear and lack of trust homeless people have of the legal system, another of the lawyers’ tasks is to engage in a ‘legal dialogue’ with clients, to address their fears and misconceptions about legal processes. This may occur informally, while solicitors are at the host welfare agencies, and may be before clients are given any formal legal advice.⁶¹

A list of features that make legal services more accessible to homeless people is provided later in this chapter. These specialist services demonstrate many of these features.

Limitations of specialist homeless person’s legal services and clinics

While presenting a valuable model of legal service delivery to homeless people, specialist homeless person’s legal clinics tend to be relatively small-scale services, and may not be able to deal with all the legal matters facing a client. Clients may still need to be referred elsewhere.

Further, most of the specialist homeless person’s services in NSW are in the inner-city areas of Sydney, where there are relatively high rates of homelessness, appropriate host agencies and close proximity to law firms with the capacity to provide pro bono assistance on this scale. Hence, due to the size and location of these specialist clinics and services, there are groups of homeless people who are unlikely to use these services. These include:

• people living in suburban, regional and rural areas where there are no available clinics. Pro bono clinics are less feasible in rural and regional locations as local law firms are often not large enough to sustain the level of pro bono commitment these clinics require. As one rural welfare provider observed, “there are only three solicitors in [the locality] and they are all busy with their own practices”⁶²
• people who do not access the SAAP services where the clinics are located. This includes people living with family and friends, and people who do not meet the criteria to use SAAP services (e.g. women, when the service is based at a SAAP agency for men)
• people who do not identify themselves as ‘homeless’, and therefore do not access relevant SAAP or other ‘homeless’ persons services.⁶³

This is not to imply that it is the responsibility of pro bono services to address the needs of those homeless people who cannot access these specialist services. As suggested by some commentators, pro bono services should not be seen as an alternative to properly funded legal aid services:

… for most of our clients the community legal centres and the pro bono schemes are not really a substitute for proper legally aided, funded representation.⁶⁴

Finally, while pro bono legal services were appreciated, some clients and workers also felt that some of the lawyers placed in legal clinics were junior and/or ‘inexperienced’ in the types of legal issues faced by homeless clients, and in communicating with these clients.⁶⁵

Legal Aid Commission of NSW

The Legal Aid Commission of NSW (also known as Legal Aid NSW) provides legal representation, legal advice, legal information services and community education to disadvantaged people across NSW. Services are provided through a Sydney head office, 21 regional offices and private practitioners.⁶⁶ While the Commission does not collate information specifically on the housing status of their clients, consultations for this study suggest that Legal Aid NSW is a major source of legal assistance, advice and particularly legal representation for homeless people in this State.

This section will focus particularly on the role of Legal Aid NSW in providing legal representation to homeless clients. Representation may be provided through two avenues:

• grants of legal aid for a legal aid lawyer, a private solicitor or a barrister
• duty lawyer schemes to assist people before the courts for criminal matters, and in family law matters in various federal magistrates and family courts in NSW.⁶⁷

These avenues of gaining legal representation and their accessibility to homeless people are discussed below.

Grants of legal aid

I’ve gotta admit, I did have a good lawyer from Legal Aid for my parole hearing, it was a barrister, and he was fantastic. I was knocked back the first time, which is automatic. The second one you go up and get it straight away. I came out about four days later. It makes a big difference having a lawyer represent you at your parole hearing, a barrister preferably. Legal Aid’s got a section that just deal with parole hearings.⁶⁸

A grant of legal aid is when Legal Aid NSW pays a private lawyer or provides a Legal Aid lawyer to help a person with their case. Basically, Legal Aid NSW uses four tests to decide whether a person should be granted legal aid:

Jurisdiction test: Looks at the type of case and the area of law of the matter for which aid is sought and whether it falls within Legal Aid NSW guidelines.

Merit test: Looks at whether the case will succeed and other issues.

Means test: Looks at the income and assets of the person applying for legal aid and usually also the means of any persons providing financial support to them (these are called ‘financially associated persons’)

Availability of funds test: Legal aid will only be granted if the Commission determines that sufficient funds are available.⁶⁹

Table 6.2 provides information about the types of matters for which legal aid assistance may be granted. It indicates that legal aid is generally available for criminal matters (mainly through the duty lawyer scheme), family law matters relating to children (divorce in certain circumstances and some property matters), and a range of Commonwealth and State civil law matters, including social security, veteran’s pensions, migration, consumer protection, discrimination, civil liberties and cases where there is a likelihood that the person will lose their home.

To be eligible for a grant of legal aid in most personal injury, employment law, small debt (less than $3000) and guardianship matters, clients need to meet the criteria for “an unusual or special disadvantage”. An applicant at special disadvantage is defined as “a child; or a person having substantial difficulty in dealing with the legal system by reason of a substantial psychiatric condition, developmental disability, intellectual impairment, or physical disability”.⁷⁰ Thus, homelessness is not of itself an “unusual or special disadvantage” by this definition.

In earlier consultations for the Foundation’s Access to Justice and Legal Need research program, Legal Aid NSW reported that there were areas of law where there is a lot of demand for assistance, which it cannot meet either because of Commonwealth restrictions on its funding or because of resource limitations. These areas of law included migration law (particularly refugee matters), employment, motor vehicle accident and property dispute matters and small debts under $3000, particularly arising from credit card payments, utilities debts, mobile and other telephone services.⁷¹

Table 6.2: Availability of legal aid assistance in NSW by type of legal matter

Type of matter Availability of NSW legal aid assistance

Merit and means tests apply below unless otherwise stated

CIVIL

Personal Injury: Available where questions of civil liberties are raised, or for people at a special disadvantage⁷² in exceptional circumstances.

Debt: Only available where the size of the claim is $3000 or more, unless proceedings are taken by or for the benefit of applicants at a special disadvantage in exceptional circumstances.

Tenancy: Not available for applications to determine fair rental where no point of law is involved.

Employment: Available to applicants at a special disadvantage in limited circumstances.

Discrimination: Available in all State law matters, and in Commonwealth law matters where there are strong prospects of substantial public benefit.

Police Practices: Only available in matters involving breach of civil liberties.

Other civil: Available under State law in matters where there is a likelihood that the person will lose their home as a direct result of proceedings; in civil liberties matters; and in certain consumer protection matters.

Guardianship and Available for proceedings in the Guardianship Tribunal only where applicants are at a special disadvantage (merit and means tests do not apply).

administration:

Mental health: Available in magistrates’ inquiries under the Mental Health Act 1990 (NSW); most proceedings before the Mental Health Review Tribunal; representation of forensic patients; Guardianship Act 1987 (NSW) matters and Protected Estates Act 1983 (NSW) matters. In some instances, merit test and means test do not apply.

Administrative Appeals Representation available if the applicant may incriminate himself or herself; the case is complicated; the applicant cannot adequately prepare or present the case without legal Tribunal, including assistance; or the appeal raises important or complex questions of law.

social security matters: Legal aid may be granted to obtain instructions and necessary reports, and prepare submissions for appeals to Administrative Appeals Tribunal if: the case concerns an overpayment over $5000 by Centrelink; the applicant is at significant risk of prosecution; the applicant cannot afford to pay for medical reports; the appeal is about the health of the applicant or of someone for whom the applicant has parental responsibility; the applicant, because of a disability or disadvantage, cannot adequately prepare or present the case without legal assistance; the appeal raises important or complex questions of law.

CRIMINAL: Available for most criminal matters commenced by a police charge: committal proceedings, Drug Court matters (not subject to means test) and applications for an ADVO in most circumstances. Merit test does not apply to criminal law matters (except appeals and Supreme Court bail applications.) Means test does not apply in first appearance bail applications.

FAMILY

Family law and de Available in most areas of family law, including parenting plans and orders, separate representation of children (merit test does not apply), other orders relating to children and facto relationships: injunctions relating to family violence.

Children: Available in children’s criminal matters, including proceedings in the Children’s Court (merit and means tests do not apply), all committal proceedings, and children’s care matters.

Source: Legal Aid website, particularly section on Legal Aid policies: <http://www.legalaid.nsw.gov.au/asp/index.asp?pgid=242> (accessed July 2004).

Barriers to homeless people accessing grants of legal aid

A number of the homeless people interviewed for this study spoke about the difficulties they had experienced in accessing grants of legal aid. One interviewee who had recently been released from prison and was living in supported accommodation wanted to address discrepancies in the child support he was paying. However, he found he was ineligible for a grant of legal aid under the means test. He stated:

The biggest problem that I’ve found is that, if you’re just over the threshold like me, you can’t get any legal aid at all. You have to go privately, and you can’t afford it half the time. I think the test is at the same level that State Housing’s got, and I’m just over the threshold, by about $30. Now I’m losing some of the small cleaning jobs, I might fall below the threshold. So it makes it really hard for people with low wages or who are just over the threshold.⁷³

A community-based worker noted:

This week alone, we’ve had, through our organisation, about nine people going to court. Out of the nine only two happened to just be fortunate enough to get any representation. The criteria with legal aid … is getting harder to fulfil. The legal aid services [are] getting fewer, quite lacking some sort of funding or whatever, I don’t know. But it has become quite critical.⁷⁴

In a submission to the Foundation early in the Access to Justice and Legal Need research program, the Law Society of NSW indicated:

People who would have been eligible for legal aid several years ago would now no longer be able to obtain legal aid. [The means test] has failed to keep pace with inflation and increases in benchmarks such as the Henderson Poverty Line.⁷⁵

A number of the homeless participants we consulted for this project had been granted legal aid for various matters. On the whole, these people appreciated both the support they were given and the challenges facing the lawyers assisting them. For example:

I haven’t had any trouble with Legal Aid. They’ve been really good. No problems whatsoever. Even the people that have come to represent me have all been really good … Sometimes getting phone calls returned or trying to get onto actual people is a bit hard, but eventually you get through. You’ve just got to be persistent … They’re working for a lot of other people, so as long as you’re persistent, you’re right.⁷⁶

To be granted legal aid, homeless (and other) people need to meet a range of criteria, relating to the type and merit of their matter, their capacity to pay and whether or not they face any ‘unusual or special disadvantage’ that would increase their need for legal assistance. While homelessness is not, of itself, an ‘unusual or special disadvantage’, some homeless people may meet the criteria for this classification due to their other complex needs (e.g. substantial psychiatric condition, intellectual impairment, or youth).

Criminal and family law duty lawyer schemes

A number of the homeless people interviewed had used Legal Aid duty lawyer services.⁷⁷ Duty lawyers are available at 157 local courts throughout NSW to represent clients in criminal cases.⁷⁸ Clients may be directed to the duty lawyer on the day of their matter by a support worker or a court officer, or they may seek out the duty lawyer themselves. According to Legal Aid NSW, most of their contact with street-based homeless clients and some people who live in boarding houses is through this service, when people come to court on the first day that their matter is listed. Initial contact with homeless clients may also occur when the clients are in police custody at the court.⁷⁹ For some of the people interviewed in this study, duty lawyers provided the only legal assistance they had received.

Family law duty lawyer services are also available in some family courts and federal magistrates courts to assist clients on list days. The scheme currently operates in the Federal Magistrates Court and Family Courts at Sydney, Parramatta and Newcastle, and will be expanded in 2005 to include four regional centres (Dubbo, Wollongong, Lismore and Coffs Harbour).⁸⁰ Family law duty solicitors provide legal advice, assist in negotiating settlements, appear in court to obtain adjournments and other orders, and deal with urgent applications on behalf of self-represented litigants and clients who have not been aware of or able to access legal aid assistance prior to coming to court.

Barriers to using the duty lawyer schemes

In a consultation with Criminal Law Division of Legal Aid NSW, a number of challenges faced by duty lawyers in addressing the multiple legal and other needs of homeless clients were raised. First, duty lawyers have a high volume of clients, particularly on list days. This limits the amount of time they have to spend with each client. This is problematic for homeless clients, who often present with multi-layered legal and other problems, in addition to the criminal or family law issue they are facing in court that day. Given this workload, duty solicitors necessarily have to focus on the legal matter that the client is in court for that day, with little or no opportunity to identify or address other legal issues that may be contributing to a client’s homelessness. Furthermore, there is little opportunity to link homeless clients to support for their non-legal needs, which often affect their legal issue.⁸¹

Secondly, given the prevalence of mental health and other disorders among homeless people, duty lawyers need advanced communication skills to take comprehensive instructions from these clients. It was also reported that because it can take a long time to take instructions from these clients, their matters may be deferred until later on in the day when the solicitor has more time to assist them. This is reported to be frustrating for clients, some of whom will simply leave, rather than waiting all day until they can see the solicitor and have their matter heard.⁸²

Finally, homeless people and workers consulted in this study reported having to instruct different solicitors each time they came to court.

When you go to court you want legal aid representation there—of course you do, you want somebody there. But the trouble with them, is that … you never get the same solicitor … someone different each time and they come in there five minutes before you go to court and you have to go through the whole lot and then you have got to go to court and they can’t represent you because they don’t know the full story … and when … you are remanded again and then you get another solicitor and it keeps going like that. At the end you know, you think, ‘What the hell.’ You know, you can’t fight it, you can’t beat it. What’s the point?⁸³

One worker described a client who had had a different legal aid solicitor on each of the five occasions he went to court. Furthermore, “each time, the solicitor was unprepared”, only being briefed by the client immediately before entering court. Based on her long experience working with ex-prisoners, she believed that “people are going to jail because of the process”.⁸⁴

Legal Aid NSW is a key legal assistance service to homeless and other disadvantaged people in NSW. However, faced with the types of barriers described above, some clients become cynical about the level of service they can expect from Legal Aid:

I honestly don’t think they work for us. They work for the government because the government is paying … I know in one case I had me own private solicitor and I got out of that pretty lightly … when you are payin’ for it [representation] … it is different.⁸⁵

A major factor affecting the level of service that Legal Aid NSW can provide is funding. Observations made in this study indicated that the demands for legal aid services were greater than its resource capacity.⁸⁶ Highlighting the vital role of legal aid, one worker noted:

I think there’s a major deficiency there. I mean there’s no substitute really for a properly funded, properly resourced and comprehensive government provided legal aid scheme.⁸⁷

In its submission to the Senate Inquiry into Legal Aid and Access to Justice, Legal Aid NSW directly linked the need for increased funding to the complex needs of their client groups. It recommended as follows:

Funding for legal aid services needs to take into account the specific resource demands involved in delivering services to socially and economically disadvantaged people.⁸⁸

Issues related to the decline in real terms of public funding for legal aid were raised in a keynote address by Justice Sackville to a Foundation Access to Justice and Legal Needs workshop, together with submissions to the Foundation and reported in the first stage of the Access to Justice and Legal Needs research program.⁸⁹