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Access to justice and legal needs. Stage 1: public consultations  

, 2003 Summarises the responses received as a result of submissions and consultations on legal needs and barriers to access to justice.


Executive summary


This report summarises the responses and input received by the Law and Justice Foundation of NSW during the consultation process conducted as part of Stage 1 of the Access to Justice and Legal Needs Project.

During the consultation process, the Foundation received submissions from 28 organisations and four individuals. In addition to these written and oral submissions, the Foundation received a range of other material including copies of articles written for journals, submissions to similar previous inquiries and published reports. These were either expressly referred to in submissions or in consultations, or supplied to the Foundation as a submission on behalf of an organisation. The Foundation conducted seven roundtable forums for legal and community organisations and a number of consultations with selected individuals.

The Foundation held a one-day Access to Justice workshop attended by 44 invited participants from various socially and economically disadvantaged groups, community organisations, legal service providers, professional bodies, legal and social researchers, administrators and policy makers. Staff of the Foundation also attended and participated in eight conferences or forums relating to Access to Justice and Legal Needs.

The Foundation has aimed to record as fully as possible the substance of the responses received in this consultation stage. Consequently, although not strictly part of the brief for Stage 1, for completeness the report includes some recommendations proffered by participants in the consultation process, as well as areas identified by participants in need of further in depth research and analysis. It should be noted that the Foundation has not undertaken any evaluation of the accuracy of the responses received.

The consultation process identified a number of groups as being economically or socially disadvantaged in terms of their ability to access the law and justice. These were:


Obtaining Legal Assistance

Barriers for people who are socially and economically disadvantaged

Many of the barriers identified by contributors are relevant to all disadvantaged groups in the community. These included:


Specific barriers to obtaining legal assistance which relate to particular disadvantaged groups as identified by contributors are as listed below:

People with disabilities


For people with an intellectual disability:
For people with a physical disability, physical access to legal advisers

For people with sensory disabilities:


For people with psychiatric disabilities, communication barriers

For people with acquired disabilities, issues of prejudice, low self-esteem, fear of discrimination and retribution, and communication problems

People with multiple disabilities were identified as being particularly vulnerable, with few specialist legal services available to assist such people.

People from culturally and/or linguistically diverse backgrounds


Indigenous Australians
Children and young people
Elderly people
People in rural, regional and remote areas
People with low levels of education and literacy
Women
People living in institutions
People on low incomes

The most significant identified barrier to obtaining legal assistance for people on low incomes related to the high cost of legal services. The operation of legal aid means test guidelines was considered to be a major factor in denying access to legal assistance for people on low incomes (including part-time employees, self-employed people and low paid full time employees) who could not otherwise afford the services of a private solicitor.

People on low incomes were seen as disadvantaged in terms of the level of legal assistance they could access, when opposed to litigants with significantly more resources.

Homeless people


Men

It was reported that men who are respondents in child support matters or Apprehended Violence Order applications are often unable to secure legal aid for representation, and are therefore disadvantaged in the proceedings.

Mechanisms and innovations to assist disadvantaged people

The following services were identified by contributors as enhancing access to legal assistance for disadvantaged people:


Specific services relating to particular disadvantaged groups were identified as follows:

People with disabilities


People from culturally and/or linguistically diverse backgrounds
Indigenous Australians
Children and young people
Elderly people
People in rural, regional and remote areas
Women
People living in institutions

Legal Aid NSW Prisoners Advice Service and Video Conferencing Scheme

Local Courts outreach services to prisoners and patients in psychiatric institutions.

People on low incomes

Services provided by community legal centres, Legal Aid NSW, tenancy advice services, pro bono programs and Chamber Magistrates are available to many people on low incomes.

Homeless people

The Legal Counselling and Referral Centre operating as part of the work of the Rough Edges ministry at St. John’s Anglican Church in Darlinghurst, provides legal assistance to homeless people in inner city Sydney and the Kings Cross/Darlinghurst areas.

Barriers for people who are socially and economically disadvantaged

Many of the barriers identified by contributors as relevant to all disadvantaged groups in the community included:


Specific barriers to effective participation in the legal system relating to particular disadvantaged groups as identified by contributors are as follows:

People with disabilities


People from culturally and/or linguistically diverse backgrounds
Indigenous Australians
Children and young people
Elderly people

Physical access issues, poor audibility and courtroom environments were the main barriers for effective participation in the legal system identified for elderly people.

People in rural, regional and remote areas


People with low levels of education and literacy
Women
People living in institutions and people released from institutions

Identified barriers to effective participation in the legal system for people living in or released from institutions included distrust and low expectations of the system’s capacity to provide redress for wrongs or recognition of rights.

People on low incomes


Homeless people

The principal barrier to effective participation in the legal system identified for homeless people was lack of confidence in the legal system that their rights will be respected.

Effective participation in the legal system

Mechanisms and innovations to assist disadvantaged people

The following services and initiatives were identified by contributors as enhancing effective participation in the legal system for disadvantaged people:


Specific services and initiatives which assist particular disadvantaged groups as identified by contributors are as follows:

People with disabilities


People from culturally and/or linguistically diverse backgrounds
Indigenous Australians
Children and young people
People in rural, regional and remote areas

It was identified that visits and circuit hearings by courts and tribunals enhance participation in the legal system by people in rural, regional and remote areas.

Women


Homeless people

It was identified that organisations which provide personnel to attend court with people who are homeless to support them through the court process, assist their participation in the legal system

Obtaining assistance from non-legal, advocacy and complaint handling bodies

Barriers for people who are socially and economically disadvantaged

Barriers to obtaining assistance from non-legal bodies which are relevant to all disadvantaged groups in the community, as identified by contributors, included:


Specific identified barriers to obtaining assistance from non-legal bodies for particular disadvantaged groups as identified by contributors are as follows:

People with disabilities


People from culturally and/or linguistically diverse backgrounds
Indigenous Australians
Children and young people
Elderly people
People in rural, regional and remote areas
Gay, lesbian and transgender people

Issues of bias and power imbalances in negotiation in ADR processes were identified as barriers for gay, lesbian and transgender people.

Women

In relation to ADR processes, issues of gender bias, stereotyping of women, aggressive negotiation styles, lack of easy access to dispute resolution centres and lack of information about dispute resolution processes were all identified as barriers for women.

People living in institutions and people released from institutions


People on low incomes

In relation to ADR processes, issues of power imbalances in negotiation, lack of economic bargaining power in negotiation and lack of familiarity with dispute resolution processes were identified barriers for people on low incomes. Low-income people who have restricted use telephones are not able to access complaint-handling services through free call 1800 numbers.

Homeless people

Prejudicial attitudes of service providers towards homeless people was identified as a barrier to accessing non-legal advocacy and support.

Men

The withdrawal of counselling services for parents post separation was identified as presenting a barrier for men in accessing non-legal support.

Mechanisms and innovations to assist disadvantaged people

The following services and initiatives were identified by contributors as enhancing access to non-legal assistance for disadvantaged people:


People with disabilities
People from culturally and/or linguistically diverse backgrounds
Indigenous Australians

Aboriginal Community Justice Groups

ADR processes which are sufficiently flexible to accommodate the particular needs of Indigenous people, and which overcome some of the inappropriateness of the formal justice system

police

Victims of Crime Bureau Aboriginal Project Officer.

Children and young people


Elderly people
People in rural, regional and remote areas
Gay, lesbian and transgender people

ADR processes were identified as mechanisms which may offer lesbians and gay men the possibility of avoiding many of the problems that they perceive exist with the formal justice system. In addition, the privacy afforded by many ADR processes was identified as an attractive feature for members of sexual minorities.

Women

ADR processes such as mediation were identified as being attractive to women, as they provide a less formal way of resolving disputes and also provide a method of dialogue.

The Local Courts Domestic Violence project, which seeks to ensure victims receive appropriate support and referrals, was also identified as a valuable service.

People living in institutions

Organisations and charities such as St. Vincent de Paul, which undertake prison visits, were identified as services which can provide some non-legal support for prisoners, as were teachers, educators and counsellors who visit prisons.

People on low incomes

ADR services were identified as often being the only practical dispute resolution option for people on low incomes.

The Public Trustee NSW was also identified as providing services for people on low incomes.

Homeless people

The importance of consultative, case management communication strategies across professions was identified as an important model of service provision for homeless people, so that issues of housing, health, drug dependency and employment can be addressed in a cohesive manner.

Participation in law reform

Barriers for people who are socially and economically disadvantaged

Barriers to law reform common to several disadvantaged groups as identified by contributors included:


Specific barriers to participation in law reform processes for particular disadvantaged groups as identified by contributors are as follows:

People with disabilities


People from culturally and/or linguistically diverse backgrounds
Indigenous Australians

Lack of adequate consultation with Indigenous communities was identified as a significant barrier for Indigenous Australians participating in law reform processes.

Children and young people

The political marginalisation of children and young people and the absence of a national advocate for children’s rights were identified as barriers to effective participation in law reform processes for children and young people.

People in rural, regional and remote areas

Physical distance, and the location of many law reform commission inquiries, parliamentary inquiries and special commissions of inquiry in city locations, were significant barriers identified for people in rural, regional and remote locations participating in law reform processes.

People with low levels of education and literacy

Use of formalised language in discussion papers, reports and hearings was identified as a barrier for people with low levels of education and literacy participating in law reform processes.

Gay, lesbian and transgender people

The reliance on mediation, and the consequential reduced possibility of achieving change through litigation was identified as a barrier for people in sexual minorities seeking to achieve changes in the law.

Women

Inadequate funding for women’s organisations was identified as a barrier for women participating in law reform processes.

People living in institutions and people released from institutions

Sensationalised media reporting of prison issues was identified as a barrier for prisoners and ex-prisoners effectively participating in systemic reform.

People on low incomes

Business and corporate incentive to settle claims by people on low incomes which may involve adverse publicity, was identified as a barrier to effective law reform for such people.

Mechanisms and innovations to assist disadvantaged people

The following services and mechanisms were identified by contributors as enhancing access to law reform processes:


People with disabilities

Mechanisms which assist people with disabilities participate in law reform processes as identified by contributors included:


People from culturally and/or linguistically diverse backgrounds

The Refugee Council of Australia has developed a kit to assist individuals and community organisations become more effective law reform advocates on issues relating to refugees and asylum seekers.

Indigenous Australians

Consultation with Indigenous organisations and representative bodies, such as the Aboriginal Justice Advisory Council, as well as Indigenous representation on advisory committees were identified strategies employed by law reform commissions to encourage effective participation by Indigenous people in their processes.

Children and young people

Youth advocacy bodies and organisations such as the Youth Justice Coalition, were identified as avenues by which the views of young people and children can be presented to law reform commissions and parliamentary inquiries.

Particular law reform commission inquiries occasionally produce issues papers and reports specifically aimed at children and young people, as well as undertaking consultation strategies targeting children and young people.

People in rural, regional and remote areas

Law reform commissions indicated their preparedness to accept verbal submissions by telephone, as well as undertaking public consultation forums in rural and regional areas, to enhance access for people in those areas.



Introduction


This report summarises the responses and input received by the Law and Justice Foundation of NSW during the consultation process conducted as part of Stage 1 of the Access to Justice and Legal Needs Project.

The diversity of organisations participating in the consultation process has been vital in identifying the views of the wider community on the priorities for improving access to justice.

The consultation process commenced in July 2002, with the publication and distribution of the project's Terms of Reference (TOR), which included the aim, objectives and outline of the Foundation's Access to Justice and Legal Needs project, and a call for submissions on issues relevant to the project's TOR. Advertisements calling for submissions were placed in the Sydney Morning Herald, the Law Society Journal, the Daily Telegraph, and NCOSS News (Newsletter for the New South Wales Council of Social Services). The TOR were also made available on the Foundation's website (http://www.lawfoundation.net.au/access). The advertised closing for date for submissions was 30 September 2002. This was subsequently extended to 30 November 2002.

In August the Foundation published a background paper1 providing further details regarding the project's TOR, and the issues to be examined. The background paper aimed to encourage further debate and interest in the project, as well as assist those individuals and organisations intending to make a submission or be involved in subsequent stages of the project. It also provided:


The Foundation received submissions from a total of 28 organisations and four individuals. These are listed in Appendix 1.

In addition to these written and oral submissions, the Foundation also received a range of other material including copies of articles written for journals, submissions to similar previous inquiries and published reports. These were either expressly referred to in submissions or in consultations, or supplied to the Foundation as a submission on behalf of an organisation. Where relevant this material has been quoted in this report. The additional material provided with each submission is also detailed in Appendix 1.

The Foundation also conducted seven roundtable forums for legal and community organisations and a number of consultations with selected individuals. Details of these are listed in Appendix 1.

On 10 July 2002, the Foundation, together with the University of New South Wales Social Justice Project, hosted a one-day Access to Justice workshop. The workshop was attended by 44 invited participants, including people from various socially and economically disadvantaged groups, community organisations, legal service providers, professional bodies, legal and social researchers, administrators and policy makers. The aims of the workshop were to:


The papers presented at the workshop and the input from participants in the various workshop working groups have also been considered as part of the consultation process for this stage of the project. An outline of the workshop agenda together with a list of the participants is provided in Appendix 2.

Staff of the Foundation also participated in eight conferences or forums relating to Access to Justice and Legal Needs. These are also listed in Appendix 1. In two of these, the Foundation participated in workshops which were directly relevant to the Access to Justice and Legal Needs Project. These conferences and forums provided further opportunities for the Foundation to receive input for stage 1, and were selected on the basis of providing opportunities to consult with relevant legal and community organisations.

The outcomes of these forums, together with the papers from the conferences/forums have been considered as part of the consultation process. It should be noted that the list of conferences attended does not represent an exhaustive list of conferences and forums which were conducted during this period which may have been relevant to the project's TOR.

Scope of the report

The Foundation has aimed to record as fully as possible the substance of the responses received in this consultation stage, either through written or oral submissions, input received via roundtable forums, or conferences and workshops in which the Foundation was invited to participate.

We have endeavoured to report the perceptions of contributors, some of which will be subjective perceptions of what are potentially, verifiable objective facts. No independent evaluation of these perceptions has been conducted for the purposes of this stage of the overall project. Rather, the intent of this report is to ensure that all voices are heard, and does not discuss whether the contributions are accurate, nor does it endorse the views and judgements expressed by the participants.

Where particular reports and references are quoted in the report, it is in the context of them having been referred to by submissions or participants in the consultation process. The report does not reflect a comprehensive literature review of access to justice and legal needs issues.

A number of submissions and consultation participants made reference to the Background Paper,2 either endorsing or providing more detail regarding the issues raised in it. The report therefore incorporates material contained in the Background Paper, particularly in terms of identification of disadvantaged groups, and the barriers they face in terms of access to justice issues.

Structure of the report

Chapter one details the particular groups within the community, as identified through the consultations, who face disadvantage in accessing various elements of the legal system. Consideration is also given to 'multiple disadvantage'—those people who may fall into a number of different groups facing barriers in accessing justice. There is a brief discussion of why these groups are disadvantaged in accessing justice and an outline of their particular legal needs. The barriers they face are discussed in more detail in the following chapters.

Chapters two to five cover each of the key areas outlined in the terms of reference, that is, the ability of disadvantaged people to:


Each chapter commences with a discussion of the particular barriers faced by disadvantaged groups in the community in respect of each of these elements of the justice system. The existing features and services which endeavour to overcome some of these barriers are then explored, together with some recent innovations which have either been piloted or implemented. Proposals for further innovations and solutions are also presented.

The final chapter considers areas of further research on the issues discussed in the preceding chapters.



Ch 1. Who is disadvantaged in seeking access to justice?


1.1 This chapter details the groups within the community, as identified through the consultation process, who face disadvantage in accessing various elements of the legal system. For each group there is a brief discussion of the reported reasons why people in that group are disadvantaged in accessing justice and a description of their particular legal needs. The barriers they face are discussed in more detail in the following chapters.

1.2 In its Background Paper,1 the Foundation listed a number of groups who have previously been identified as being economically or socially disadvantaged in terms of their ability to access the law and justice. These were:


– prisoners

– young people in juvenile corrective institutions

– people detained in immigration detention centres

– nursing home residents

– psychiatric institutions

– people released from institutions


1.3 The consultation process also identified these groups as suffering particular disadvantage in obtaining access to justice. In addition, a number of other groups were identified:
1.4 Some submissions associated disadvantage with particular individual characteristics or skill deficiencies which present as barriers common to a number of disadvantaged groups. These included issues such as lack of access to a computer, lack of knowledge about the legal system or support services, and unrealistic expectations.
1.5 The list of groups identified in the Foundation’s Background Paper, and in the submissions and consultations as outlined below, do not represent exhaustive lists. The Foundation continues to accept further submissions and information regarding other groups who face disadvantage in accessing legal assistance and effective participation in the legal system.


People with disabilities


People with an intellectual disability

1.6 Several submissions referred to the disadvantage faced by people with intellectual disabilities in the legal system, emphasising their over-representation within the criminal justice system (and particularly within the prison system) as cause for particular concern.

1.7 The Framework Report,3 prepared by the Intellectual Disability Rights Service and NSW Council for Intellectual Disability has highlighted many of the issues faced by people with intellectual disability within the criminal justice system.

People with intellectual disabilities face a wide range of legal problems, especially including:

– Problems with the criminal justice system as alleged offenders, victims and witnesses.

– Problems reflecting their vulnerability, physical mistreatment, financial exploitation, and inappropriate decisions being made on their behalf.4

In our society, many people automatically link people who have an intellectual disability with criminal activity. A number of explanations for this have been identified:


The person may be less able to explain apparently incriminating circumstances satisfactorily.5

1.8 The prevalence of people with an intellectual disability as victims of crime, or as witnesses to crime, was noted:


1.9 Submissions also identified negative community attitudes as a significant barrier confronting people with intellectual disabilities in accessing legal redress.
This will be dealt with more fully in subsequent chapters.

1.10 Other issues identified for people with intellectual disabilities included:


People with a physical disability

1.11 The Background Paper identified accessibility, finance and discrimination as key legal issues for people with physical disabilities. One submission stated that people with chronic ill health, people on life support equipment and people in electric wheelchairs often have high-energy needs, and this may increase the likelihood of conflict with energy service providers.12

People with sensory disabilities

1.12 Submissions endorsed the issues identified in the Background Paper regarding people with a range of sensory disabilities.13 These were:


People with psychiatric disabilities

1.13 Several submissions noted that people with mental illness and psychiatric disabilities face similar issues of over-representation within the criminal justice system as people with intellectual disabilities, whether offenders/suspects or victims.14 In terms of being over-represented as victims of crime, the Executive Officer of People with Disabilities, Philip French stated:

I think most people would appreciate that people with disability are, to a much higher degree than many other population groups, victims of crime. That’s often because they are in situations that are dangerous and violent. For example, for the population of homeless people in some parts of Sydney, approximately 80% are people with disability, people with mental illness, brain injury and so forth. The street culture is pretty violent and people with disability get beaten up very often in those environments.15

1.14 Consultation participants also reported that self-represented litigants with mental illnesses sometimes constitute obsessive litigants, initiating litigation concerning psychosis-related delusions. This can consume significant court time and resources.16

1.15 Young people with mental illnesses were reported as being over-represented in the care and juvenile justice systems.17

People with an acquired disability

1.16 Submissions and roundtable participants identified that many people suffering from certain acquired disabilities, particularly those relating to some form of substance abuse (e.g. drug addiction) or caused by substance abuse (e.g. alcohol related brain damage) can face criminal, discrimination and also social security issues. Despite this, they are often perceived as being part of the ‘undeserving disadvantaged’.18

1.17 Young people with drug and alcohol problems were reported as being over-represented in the care and juvenile justice systems, and in need of expert assistance.19



People from culturally and linguistically diverse (CALD) backgrounds


1.18 Submissions were generally of the view that people from CALD backgrounds face significant barriers seeking access to the law and justice. While these barriers will be dealt with more fully in subsequent chapters, they can be summarised as follows:
1.19 Roundtable participants noted that different ethnic groups have different needs, views and expectations, according to the country from where they have come.21


Indigenous Australians


1.20 The disadvantaged position of Indigenous Australians in relation to accessing the legal system was detailed in the Foundation’s Background Paper. This disadvantage was also identified in several submissions and roundtable consultations, and has been a common theme in previous access to justice reports and inquiries:

Many reports have concluded that Indigenous people become, whether defendant or victim, victimised within the system; the outcomes of high incarceration rates mark this out.22

1.21 Indigenous women and children were commonly identified as suffering special disadvantage. Submissions noted the over-representation of Indigenous children and young people in both the care and juvenile justice systems.23

1.22 Elderly Indigenous people were also identified as facing particular issues of disadvantage, with few culturally appropriate services available to assist them. Elderly Indigenous people were seen as vulnerable to violence, sexual assault and abuse from their families.24



Children and young people


1.23 The disadvantaged position of children and young people, was according to several submissions, a direct result of their age and social, economic and cultural marginalisation. According to the Youth Action and Policy Association (YAPA) and the Youth Justice Coalition (YJC): 1.24 The Youth Justice Coalition identified the following areas of legal need for children and young people:
– Community Services Commission

– Health Care Complaints Commission

– Commonwealth Ombudsman

– State Ombudsman.26

1.25 The NSW Commission for Children and Young People’s Inquiry into the best means of assisting children and young people with no-one to turn to, raised the following major areas of concern about the access of children and young people to justice:


1.26 Submissions also identified particular groups of children and young people who suffer more acute disadvantage. These include those children and young people:
1.27 The YJC reported that it has files going back to 1979 detailing a history of inquiries and reports documenting legal needs and demands for advocacy for children and young people.28 The YJC stated that the recommendations of these reports and inquiries have been overlooked and their content to a large extent ignored.29


Elderly People


1.28 The vulnerability of elderly people in financial matters, estate planning, and situations involving dependency upon family members was identified through the consultation process. According to the submission from Centrelink, the disadvantaged position of elderly people in accessing justice and legal redress is characterised by the following issues:
1.29 Other issues raised through the consultations as relevant to the legal needs of elderly people included:


People in rural, regional and remote areas


1.30 Submissions and consultations agreed with the Foundation’s Background Paper, which identified that people in rural, regional and remote areas face problems in terms of accessibility to legal services, courts, tribunals, and appropriate intermediaries and early intervention services, as well as limited access to internet based services. Legal issues which were specifically identified as being common in rural and regional areas included:


People with low levels of education and literacy


1.31 People with low levels of education and literacy were identified as being disadvantaged in accessing legal assistance and participating in the legal system, due to ignorance of legal processes and services, poor communication skills and inability to access legal information.38


Women


1.32 The NSW Department for Women submission noted that the Australian Law Reform Commission inquiry Equality before the law – justice for women39 examined the disadvantage women experience with respect to the legal system. The Commission was concerned with systemic discrimination and how it operates to affect equal opportunity and status for women, notably in the areas of gender-based violence, including domestic violence and sexual assault, and family law.40

1.33 The Department’s submission goes on to state that many of the disadvantages experienced by women that were identified in the ALRC inquiry still exist today:



People living in institutions and people released from institutions


Prisoners

1.34 Consultation participants identified several areas where prisoners were disadvantaged in accessing legal advice, assistance or representation.42 Specific areas of concern included:


Immigration Detention Centre detainees

1.35 The position of people in detention in immigration centres was identified as one of disadvantage, as detainees face complex immigration issues and decisions often have to be made within strict time limits or the opportunity is lost.47

People in institutional care

1.36 People with Disabilities noted that people in institutional care have similar issues to those of prisoners:

People released from institutions

1.37 Consultation participants also submitted that disadvantage does not cease upon release from prison or other institutions. They reported that the needs of this group have not been adequately researched.49



People on low incomes


1.38 Not surprisingly, people facing economic disadvantage, due to having no income, a low income, or being in receipt of social security benefits, were commonly identified as being disadvantaged in accessing legal services and the legal system.

1.39 Given the often prohibitive cost of private legal services, poverty and lack of financial resources was considered as one of the most significant barriers in accessing justice. In addition, it was reported that such people often suffer a multitude of problems, many of which are non-legal, which can discourage them from seeking legal assistance.

People in poverty who lack services often have legal needs on top of other needs. Even if services could meet the legal needs, the client may not return because their legal needs get subsumed by other needs—accommodation, mental health. Unless other needs are met, legal needs will not be met.50

1.40 The NSW Energy and Water Ombudsman further noted that people on low incomes are commonly faced with restriction to or disconnection from the supply of electricity, gas or water services which are essential to health and to maintaining a minimum standard of living. It noted that loss of these essential services tends to deepen social disadvantage, as it can force the customer to leave their home (while incurring additional expenses), contribute to poor health and worsening educational outcomes, and accentuate other legal problems.51



Homeless people


1.41 The disadvantaged position of homeless people in relation to accessing legal services and the legal system was also identified in the consultation process.52

1.42 The Legal Counselling and Referral Centre (LCRC), operating out of St. John’s Church in Darlinghurst, Inner Sydney, was specifically established in response to the issues relating to homeless people and their interaction with the law and legal system. In their submission, the service details some of the particular issues which impact on the legal needs of homeless people:


1.43 The LCRC also noted that issues of mental illness, intellectual disability and drug and alcohol dependency are often associated with homelessness, and present further issues of disadvantage.54


Men in Family law Proceedings


1.44 While not commonly identified by submission and consultations, some contributors drew attention to the position of men in child support matters or who are respondents to applications for Apprehended Violence Orders, who are unable to secure legal representation.55


People facing multiple disadvantage


1.45 Several of the submissions noted that there are particular issues for people with multiple disadvantages. Concern was expressed that the needs and issues confronted by such people are often missed or neglected by specific inquiries into particular disadvantaged groups.56

1.46 Analysis of access to justice needs resulting from additional disadvantage should be undertaken when considering the needs of a particular group. Specific groups identified as needing further legal needs research included:



Ch.2. Obtaining legal assistance


2.1 This chapter covers issues of access to legal assistance raised through the consultation process. The first section looks at barriers in existing mechanisms which confront disadvantaged groups. Services which endeavour to overcome barriers, together with some recent innovations which have either been piloted or implemented, are then reviewed. Finally, suggestions for possible solutions are canvassed.

2.2 For the purposes of this project, we have defined 'legal assistance' in a broad manner, to encompass the following general areas:



Barriers in existing mechanisms


2.3 Many of the barriers identified in the consultation process are relevant to all disadvantaged groups in the community. These include:
Cost of legal services

2.4 Several submissions noted the high cost of solicitors’ fees as being the most obvious barrier for disadvantaged people accessing legal assistance. Comments received included perceptions of the justice system being ‘out of my price range’,2 solicitors overcharging for their services (particularly routine services), and solicitors being evasive about giving estimates of their fees.3 This high cost of legal fees was also noted in some roundtable consultations.4

2.5 The Law Society of NSW discussion paper on National Competition Policy5 noted that the legal system is most effective in serving the needs of the advantaged and those with money and knowledge, and least effective in addressing the needs of the disadvantaged (including non-English speakers, those without money, Indigenous people and people with disabilities).6

2.6 The discussion paper concluded that a market solution to the provision of legal services may not result in greater access for disadvantaged people:


Lack of resources

2.7 The decline of public funding in real terms for legal aid since the mid-1990s was identified in consultations with the Law Society of NSW as causing significant barriers for disadvantaged people in accessing legal assistance. The Society referred to its 1998 Access to Justice Report,8 which observed:

2.8 The Society’s discussion paper on National Competition Policy further noted: 2.9 The Australian Law Reform Commission (ALRC) report Managing Justice11 reported that the failure to maintain funding levels for legal aid resulted in a noticeable exit from legal aid work by private solicitors. A National Legal Aid survey of 260 private firms who do legal aid family law work showed:
2.10 The Law Society’s Access to Justice Report noted that the reduction in public funding for legal aid has coincided with significant growth in demand for legal aid services: 2.11 The NSW Family Law Committee reported that inadequate funding for legal aid impacts negatively on the quality of legal representation provided to legally aided clients who consult with private solicitors for Family Law matters. The inadequacy of legal aid grants for private practitioners in Family Law matters in particular, limits the pre-court preparation solicitors can undertake for their legally aided clients’ matters.14

2.12 In addition to the reduction in funding for legal aid, a number of submissions referred to ‘chronic under-funding’ of community legal centres (CLCs), limiting their ability to respond at an adequate level.

2.13 Contributions from the community legal centre network strongly argued that the effect of such under-resourcing directly impacted on the right to access legal services: Advice only services are usually inadequate, as people need ongoing support and often they are expected to follow-up after advice without that support.17

2.14 The ALRC Managing Justice Inquiry provided details as to how such lack of legal representation can cause significant difficulties for litigants:

2.15 Community legal centres argued that inadequate resourcing has caused an emphasis on the provision of advice only services. This has limited their ability not only to provide ongoing assistance and representation to disadvantaged people, but also to undertake community legal education and community development: CLCs have been forced to reduce their educative role because they do not have enough resources and there is such a high demand for casework.20

2.16 It was stated by some community organisations that this has lead to situations where community service providers and many disadvantaged community members are unaware of the existence of community legal centres in their local areas to assist with legal problems.21

2.17 Submissions referred to the following issues in relation to resourcing of community legal centres and legal aid:

Funding policy for legal aid

2.18 A number of submissions commented that the Federal Government’s view that its funding responsibilities should be limited solely to federal matters, had negative effects on disadvantaged people.26

2.19 The effect of this shift in policy in 1996 was the withdrawal of $120 million of Commonwealth funding over six years. The expectation was that the States and Territories would assume an increased responsibility for funding legal aid in matters arising under State and Territory law. Such State funding was not forthcoming, forcing legal aid commissions to adopt stricter eligibility guidelines for legal aid for State matters.27

2.20 The issue featured in the keynote address by Justice Ronald Sackville to the Access to Justice and Legal Needs Workshop:

Legal aid eligibility guidelines

2.21 Many submissions commented that restricted eligibility guidelines for legal aid often left people without access to legal assistance or representation. The effect of funding reductions to legal aid has resulted in even tighter guidelines. According to the Law Society of NSW:

2.22 The submission from Legal Aid NSW acknowledged that the operation of legal aid guidelines can lead to difficulties: 2.23 Legal Aid NSW goes on to explain how the guidelines are determined, indicating the lack of control the Commission has over the process in relation to Commonwealth matters: 2.24 The ALRC spelled out the problems associated with eligibility guidelines centrally determined by the Commonwealth Attorney-General’s Department: 2.25 Submissions from Legal Aid NSW and the Australian Plaintiff Lawyers Association (APLA) stated that eligibility guidelines impact significantly on disadvantaged people in the area of civil claims: Poor coordination of services

2.26 Participants in community legal centre consultations identified that there are too many overlapping services between legal aid service providers, due to a lack of coordination and networking.34

2.27 Related to this was the phenomenon of inappropriate referrals to community legal centres, contributing to what has become known as the ‘referral roundabout’, where consumers may be referred endlessly from one organisation to another, eventually giving up seeking assistance.35

2.28 This problem was also identified by the ALRC in its Managing Justice Inquiry, and considered to be associated with unbundling of services. ‘Unbundling’ refers to the situation where some limited legal assistance may be available for certain aspects of a case for a client, but the client may be forced to utilise the services of additional organisations, or self help alternatives for other aspects (e.g. completing application forms, drafting affidavits, and so on).


2.29 Chamber Magistrates also reported receiving inappropriate referrals, increasing the demand on their resources. The Chamber Magistrates were of the view that other bodies and agencies such as local councils, should provide more advice and assistance, rather than passing difficult complaints onto them.37

Conflict of interests

2.30 Participants in roundtable consultations expressed concern about the situation where one party to a dispute has received prior assistance from an inhouse legal aid lawyer, and the conflict of interest rules may prevent a later arriving party from obtaining ‘one-off’ advice, or assistance from a different inhouse legal aid solicitor in an area of law unrelated to that of the dispute. In such circumstances the client must look elsewhere or may be denied assistance.38

2.31 The ALRC noted that the incidence of conflict of interest is high in Legal Aid Commissions because of the number of employed solicitors within the ‘firm’ and the diversity of practice areas. Unbundling increases the risk of conflict as many more clients are assisted. It also reported that in family law cases, conflict of interest may be manufactured by disaffected and manipulative litigants who seek advice from a range of different sources in order to ‘conflict out’ the other party.39

2.32 The problems associated with potential conflicts of interests were also reported by Chamber Magistrates:


Operation of tax laws

2.33 The ALRC reported that it had received concerns that current tax laws produce unfair or undesirable consequences, by reducing the economic cost of litigation for companies and operating effectively as a public subsidy of legal assistance to business taxpayers. Many submissions to the Senate Legal and Constitutional References Committee on Legal Aid41 argued against tax deductions for legal expenses because:

Pro bono services

2.34 Participants in the National Pro Bono Workshop identified a number of areas of concern in relation to the availability of pro bono legal services for disadvantaged people:

Recent legislative changes dealing with Civil Law claims

2.35 Several submissions and consultations referred to the recent legislative changes in New South Wales in response to what has been described as the ‘civil liability crisis’. These submissions argued that many of these changes served to create barriers for disadvantaged people seeking to obtain legal assistance.

2.36 According to the Australian Plaintiff Lawyers Association (APLA), Section 198J of the Legal Profession Practice Act 1987 (NSW), which came into effect in 2002, presents barriers for people to be properly represented in actions involving a claim for damages.44 Section 198J states:


2.37 Under Section 198L, the provision of legal services without reasonable prospect of success is capable of being professional misconduct or unsatisfactory professional conduct. Section 198M empowers the Court to award costs against a solicitor or barrister who acts in a claim for damages without reasonable prospects of success.45 It was submitted that these provisions will result in some solicitors deciding not to act for clients in particularly deserving, albeit difficult cases, which may involve important questions of law which need to be tested. This was identified as a potentially significant issue for prospective disadvantaged clients.46

2.38 APLA referred to the effect of the Civil Liability Act 2002 (NSW), which amended the Legal Profession Practice Act 1987 (NSW) to limit the legal costs recoverable by plaintiffs and defendants on claims under $100 000. In particular, APLA believes that there is a discrepancy between the amount that can be recovered by the plaintiff and that which is recoverable by the defendant. According to APLA:

2.39 APLA submits that there are other problems which arise from caps on legal costs, including:

lower quality and availability of legal representation for injured people

poorly prepared cases clogging up the court system.48

2.40 APLA and the Law Council of Australia submitted that restrictions placed on the ability of solicitors to advertise the availability of ‘no-win, no-fee’ legal costs arrangements make it difficult for many disadvantaged people to get access to legal advice and assistance which they otherwise may not be able to afford.49

Websites and helplines

2.41 The ALRC observed in its Managing Justice report that access to information about the legal system has been considerably enhanced through the proliferation of legal websites. However, the ALRC reported that such online legal information is not always easy to access or utilise.50

2.42 Roundtable participants reported that many legal information websites are piecemeal, stating that there was a real need for quality control and consistency. Concern was expressed that the information on some legal websites was substandard:

2.43 Participants expressed concern that the current emphasis on hotlines and websites ignores the fact that many disadvantaged groups are the least likely to have access to these mechanisms.52

2.44 Participants stated that disadvantaged people often want a more personal interaction or relationship with their advice provider. Participants felt that mechanisms that fail to provide a more personal relationship can in many cases fail to meet the clients’ needs.53

Other barriers

2.45 Other issues identified in the consultation process included:



People with disabilitites


2.46 Particular barriers identified for people with disabilities in obtaining legal assistance covered issues such as fear of retribution, poorly resourced specialist services, lack of knowledge of available options for legal assistance, lack of autonomy to make decisions to seek legal assistance, and lack of awareness that action may have been taken against them.

2.47 The National Alternative Dispute Resolution Advisory Council (NADRAC) discussion paper56 expressed concern that generally, people with disabilities suffer from a lack of information which inhibits their ability to seek legal assistance:

2.48 The NADRAC discussion paper also raised the issue of communication difficulties, particularly with lawyers, barristers and dispute resolvers:
2.49 People with Disabilities (PWD) referred to barriers such as fear of retribution, lack of alternatives, and lack of legislative protection against retribution:
2.50 PWD also stated that people with disabilities often lack specialist legal services which can assist them, noting that a general Disability Rights Legal Service would build the capacity of the legal profession to meet the broad legal needs of this group.60 In addition, they stated that the limited availability of legal aid for civil matters has adversely affected the capacity of people with disabilities to bring action under key pieces of legislation such as the Disability Discrimination Act 1992.61

2.51 People with disabilities who are also members of other disadvantaged groups were identified as facing particular barriers in accessing legal assistance. For example:

Children and young people with disabilities will be more reliant on a carer or other adult to obtain legal advice. This can cause problems if the interests of the carer and the young person conflict62

Lack of home care support for people with disabilities in rural and regional areas results in people being fearful of complaining regarding the inadequate services they are getting, as there are no alternative sources of assistance.63

People with an intellectual disability

2.52 The main barriers identified in the consultation process for people with an intellectual disability seeking to obtain legal assistance were:


2.53 It was also noted that families and others who care about people with intellectual disabilities often do not pursue redress on their behalf due to factors such as fear of retribution and being accustomed to negative societal perceptions of people with intellectual disabilities.66

2.54 Submissions referred to difficulties associated with inadequate resourcing for the existing specialist legal services for people with intellectual disability. For example, the limited capacity of the Intellectual Disability Rights Service to provide assistance beyond referrals, or to provide legal assistance to the large number of people with intellectual disabilities within the prison system.67

2.55 The NSW Council for Intellectual Disability expressed concerns over the level of resourcing to the Guardianship Tribunal, the Public Guardian, and the Community Services Commission.68

2.56 Concern was expressed that while information specifically targeting people with intellectual disability was important and useful for people with a mild intellectual disability, people with a more severe intellectual disability are totally reliant on carers to identify legal issues and initiate contact with legal service providers.69

People with a physical disability

2.57 The main barriers identified in the consultation process for people with physical disabilities in accessing legal assistance were related to physical access to advisers.70

2.58 It was submitted that the current and proposed changes to tort law in New South Wales, combined with changes and limits to accessing legal aid, also act as barriers to the legal system for people who need legal advocacy to resolve complaints, or who need to seek compensation for injury or disability acquired through negligence or accident. According to PWD:


2.59 It was also noted that people in wheelchairs who are the victims of taxi rorts are often afraid to even seek assistance or advice, because they are concerned that any action taken will result in them not being able to get a disabled taxi again in the future. Such fears of retribution were seen as barriers to seeking assistance for other issues of discrimination as well.72

People with sensory disabilities

2.60 Lack of access to AUSLAN interpreters to facilitate obtaining legal advice and representation was seen as the main issue for people who are deaf or hearing impaired. There are few AUSLAN interpreters, particularly in rural and regional areas.73

2.61 Some legal information websites are not accessible to people with impaired vision. While Federal and State Governments have been working towards making their websites more accessible to people with disabilities, it was generally believed that other legal information websites are still deficient in this regard.74

People with psychiatric disabilities

2.62 Legal Aid NSW indicated that it was anecdotally aware that people suffering from mental illness and psychiatric disabilities experience difficulties in accessing legal aid services, particularly legal aid services provided by the private legal profession.75

People who have acquired disabilities

2.63 People who have acquired disabilities as a result of substance abuse (eg. drug addiction, alcohol related brain damage) were identified as facing societal prejudice, as they are often seen as ‘undeserving’. This can impact on self-esteem, resulting in a failure to pursue avenues for legal assistance.

2.64 It was submitted that many private legal practitioners have a limited understanding of the particular issues and needs faced by people with addictions. In addition, several roundtable participants considered that web based legal information is often not readily accessible for people with acquired disabilities who are homeless.76

2.65 Roundtable participants particularly referred to drug users, who are often unwilling to go through with a formal complaint process because they are worried about discrimination, not being believed, or being treated unfairly.


2.66 Roundtable participants stated that to some extent, people who acquire physical disabilities through accidents (whether work or motor vehicle) also suffer some prejudice on the basis that they may be perceived as being partially responsible for the disability, though not to the same extent as those who acquire disability through substance abuse and addiction.78

2.67 Other participants reported barriers which included problems with communication and lack of appropriate specialist legal services.79

2.68 PWD submitted that current and proposed changes to tort law in New South Wales will present barriers to accessing legal assistance for people who need to seek compensation for injury or disability acquired through negligence or accident.80

People with multiple disabilities

2.69 People with multiple disabilities were reported as often falling through the gaps between various specialist services. For example, people with mental illness who also have substance abuse problems. It was reported that in such circumstances, drug assistance services will not assist someone with a mental illness, while mental health crisis services will not assist drug addicts.81



People from culturally and/or linguistically diverse (CALD) backgrounds


Access to interpreters and translated materials

2.70 Many submissions and consultation participants identified access to interpreters as a basic threshold issue for people from CALD backgrounds seeking legal assistance. The availability of interpreters at no charge was seen as a valued and important policy by community legal centres and Chamber Magistrates.82 There were, however, a number of concerns expressed about the provision of interpreters, and these issues were identified as obstructions to obtaining legal assistance.

2.71 Community legal centres expressed concern about the processes involved in arranging interpreter services for their clients. The current system involves the Commonwealth funding interpreter services for Commonwealth law matters, and the State funding interpreter services for State law matters. According to the submission from Macquarie Legal Centre, this system requires individuals and service providers to ascertain the appropriate jurisdiction, in order to access the appropriate interpreter service. This was considered difficult in situations where a client presents with more than one issue, or where the distinction between Commonwealth and State matters is blurred, such as in Family Law matters with associated domestic violence. In addition, it was submitted that even ascertaining the type of matter may be difficult if the client is distressed and has difficulties communicating in English.83

2.72 Particular issues were raised in relation to the Community Relations Commission (CRC), which provides funded interpreter services for initial preliminary interviews, or for matters relating to NSW State law, and the Telephone Interpreter Service (TIS), which provides funded interpreter services for Commonwealth matters.

2.73 Community Legal Centre contributors reported that the CRC requires the service provider to specify either that they know the area of State law for which the client requires assistance, or that they are conducting a ‘preliminary interview’ to ascertain the appropriate jurisdiction. Problems identified with this system included:


2.74 Problems were also identified by Macquarie Legal Centre with the quota system used by the CRC, as it does not guarantee access to free interpreter services on a particular day. Under the quota system, services are required to book interpreters. If the quota for free interpreter services for that day are already filled, then the agency making the booking either must pay for the service, or arrange the booking for another day. The system works on a first come, first serve basis. If interpreters for a particular language are not available on a particular day, then the booking must be made on a day that they are available. The only exception to this is a ‘life and death’ emergency.85

2.75 Several problems were identified by contributors with the Commonwealth’s Telephone Interpreter Service (TIS):


2.76 It was also reported that access to interpreters in small country towns and remote areas is not good, particularly for some smaller and newer language groups. The lack of availability of face-to-face interpreters meant that there was a greater reliance on telephone interpreters, with the associated problems of delay and remoteness.89

2.77 Other problems identified with access to interpreters include:


2.78 Related to the issue of interpreters is the issue of access to translation of documents and correspondence. Community legal centres reported that they usually do not have access to free document translation services for the translation of documents such as letters of advice to non-English speaking clients in preparation for court proceedings. These clients are often not in a position to pay for such translating services themselves.
2.79 In terms of access to translated community legal information materials, several problem areas were identified:
Access to legal assistance for Immigration matters

2.80 Legal Aid NSW reported that it cannot meet demand for assistance in migration, particularly refugee matters, due to the restrictions in their guidelines.97

2.81 The Immigration and Advice and Rights Centre (IARC) also expressed concern over the lack of funding for providing general immigration advice and assistance for disadvantaged members of the community.98

2.82 Given the limited opportunities for accessing funded legal assistance for migration or refugee matters, people who have legal needs in these areas often need to seek the assistance of registered migration agents. IARC commented on the lack of migration agents who can assist those on low incomes:


2.83 IARC observed that the number of non-profit registered migration agents is decreasing.100 According to IARC, a major reason for this is the increasing cost of registration, which presents a significant barrier for the registration of community based, non-fee charging migration agents.101

2.84 IARC also stated that the lack of non-fee charging migration agents in rural and regional areas caused particular problems for CALD people in those areas:


2.85 It was noted by participants in the National Pro Bono Workshop that there are limitations on the pro bono services available for migration matters, given that many of the large pro bono schemes of the major law firms are not accessible due to conflict of interest issues for those firms, who also act for the Federal Government.103

Lack of knowledge or trust of services

2.86 The ALRC report Multiculturalism and the Law104 identified in 1992 that a general lack of knowledge of the law among migrants was a major barrier to accessing legal assistance. Participants in roundtable consultations also commented on this. In particular:


2.87 Community organisations reported that some people from culturally diverse backgrounds have a perception that publicly funded legal services are of lower quality, or that they will report their matters to the Government.107

2.88 Community organisations also reported that a low sense of entitlement in relation to rights and legal services, as well as general unfamiliarity with the legal system, were not uncommon among people from culturally diverse backgrounds. It was noted that distrust of lawyers, fear of delays, fear of costs, distrust of legal aid services and the differing availability of specialised services all created barriers for accessing legal assistance for people from culturally diverse backgrounds.


Lack of cultural diversity awareness amongst service providers

2.89 Several participants in roundtable consultations and submissions noted that many service providers lacked cultural awareness and sensitivity, particularly across a diversity of cultures, and for smaller, newly-emerging cultural groups.109 This was also noted as a deficiency in services provided by the private legal profession.110

2.90 Submissions and consultations stated that some ethnic groups are not catered for in terms of legal information strategies, and that without specially designed strategies, their access to information and services will be limited.

2.91 It was reported that different ethnic groups have different needs, views and expectations, according to the country from where they have come, and there is a greater need for understanding from the legal system and its various players and practitioners, and sensitivity to their particular needs.111

Dealing with many different ethnic groups is really difficult because they are so different and as far as the law is concerned they also have different views on what they expect from the system, depending on where they come from.112

2.92 It was also reported that people in newly-emerging ethnic groups (eg. Afghan communities in SW Sydney) often do not have established networks or community organisations which can assist them. These groups tend to rely on informal networks such as their families and friends, rather than through formal networks and structures.113

CALD women

2.93 Several of the barriers and issues identified above were specifically identified as being relevant to women from CALD backgrounds in the Women’s Legal Resource Centre report Quarter Way to Equal.114

2.94 Both the ALRC report Multiculturalism and the Law and the Quarter Way to Equal Report identified that women from CALD backgrounds were disadvantaged by a general lack of knowledge about the legal system, laws and available remedies, the cost of legal aid and the limited availability of legal aid. Domestic violence and Family Law were identified as two major areas of legal need for women.115 At the time of writing, the NSW Attorney General’s Department was in the process of reviewing the recommendations from that report.

2.95 The Department for Women expressed concern at the lack of availability of female interpreters for women from CALD backgrounds. Female interpreters were seen as essential given that such women often present with matters relating to Family Law, domestic violence or sexual assault, and may feel constrained from speaking freely to a male interpreter. Difficulties in obtaining interpreters for Family Law matters (as identified in the section above on interpreters), and the lack of culturally sensitive published legal information for CALD women were also identified as barriers to access.116



Indigenous Australians


2.96 According to several submissions and consultations, the creation of specific services targeting the legal needs of Indigenous people has not overcome a number of the barriers confronting Indigenous people seeking legal assistance. Submissions particularly identified the difficulties faced by Indigenous people in accessing legal assistance for Civil and Family Law matters and the barriers faced by Indigenous women and children in obtaining legal assistance.

2.97 General barriers confronting Indigenous people accessing legal aid services, identified by Legal Aid NSW include:


Civil and Family Law issues

2.98 Legal Aid NSW identified that Indigenous people face significant barriers in seeking assistance for Civil and Family Law matters.


2.99 Submissions reported a perception that Aboriginal Legal Services mainly do Criminal Law work, and are not in a position to assist with free civil legal advice and representation. This was seen to particularly impact on Indigenous women’s and children’s ability to seek legal assistance.119

2.100 Legal Aid NSW reported that as some Indigenous people have to rely on private solicitors, or non-Indigenous legal service providers for Civil Law assistance, they often encounter a reluctance by legal practitioners to become involved in inter-community disputes, particularly involving individuals against Indigenous organisations. According to Legal Aid NSW, the reasons for this stem from:


2.101 The following Civil Law areas where Indigenous people find it difficult to access legal assistance were identified:
Indigenous women and children

2.102 The Women’s Legal Resource Centre submitted that Indigenous women and children are at a special disadvantage, given the emphasis of Aboriginal Legal Services on Criminal Law:


2.103 Other issues identified as presenting barriers for Indigenous women seeking legal assistance include:
Cultural awareness issues

2.104 Participants in roundtable consultations identified a lack of cultural awareness, sensitivity or appropriateness as presenting barriers for Indigenous people accessing legal assistance. In particular:



Children and young people


2.105 It was recognised by many contributors that children and young people are a largely disenfranchised group, and among the least ‘rights-conscious’ members of society. Roundtable participants stated that children and young people are often reliant on adults mediating their access to legal information or advice, whether it be parents, youth workers or teachers, and are less able to access the services themselves..127

2.106 Several submissions identified a fundamental lack of awareness of rights as the main barrier obstructing access to legal assistance for children and young people. Combined with a feeling that they will not be believed, or that their issues will not be taken seriously, and a lack of access to specialist advocates and legal practitioners, children and young people are confronted with significant barriers in obtaining legal assistance.


2.107 The Youth Justice Coalition (YJC) reported that young people acknowledge that they do not know enough about the legal system, and that this impacts on their ability to access services.130 In YJC research which revealed a high incidence of alleged unfair treatment by police, very few of the young people interviewed were aware of their rights to make formal complaints, or where to seek assistance. The research also noted that where young people have been interviewed by police without a legal representative, and admit to guilt, resulting in a police caution or referral to a youth justice conference, the process may amount to an erosion of procedural safeguards.131

2.108 Many submissions expressed concern over a perceived lack of adequate specialist legal services for children and young people and the apparent failures of successive governments to follow recommendations from previous reports and inquiries for such services to be established and adequately resourced.132


2.109 Restricted access to legal representation for young people was identified in two particular areas:
2.110 The perceived lack of services specifically catering to the needs of children and young people was seen as a major obstruction to obtaining legal assistance. Service delivery issues identified included:
2.111 The following problems were identified for children and young people who have to rely on the services of private solicitors:
2.112 The YJC submitted that there is a lack of community legal education strategies specifically targeted to children and young people.140

2.113 Children and young people with other disadvantages were identified as facing particular difficulties in obtaining legal assistance. For example:


2.114 APLA submitted that the effect of the Civil Liability Act 2002 (NSW), to limit the legal costs recoverable by plaintiffs and defendants on claims under $100 000, will adversely affect those groups who do not have large damages claims, such as people not in the workforce. Young people are more likely to have smaller claims for compensation and therefore are more likely to be caught by the costs threshold.143


Elderly people


2.115 The particular vulnerability of elderly people in dealing with conflict is a major factor in the difficulties they experience in accessing legal assistance. According to the National Alternative Dispute Resolution Advisory Council (NADRAC):
2.116 NADRAC stated that obtaining access to advice or information can be particularly difficult for elderly people. Physical incapacity, dependency on others, diminished self-confidence, and a lack of skills in accessing information by computer or telephone helplines were all identified as impacting on the ability of elderly people to obtain legal information and advice.145

2.117 Web based legal information and advice services were seen as particularly problematic for elderly people. Issues identified by the Human Rights and Equal Opportunity Commission in its inquiry into the Accessibility of Electronic Commerce and New Service and Information Technologies for Older Australians and People with a Disability included:


2.118 Centrelink submitted that there is a lack of specialist advocacy services available to assist older people in need.147

2.119 Centrelink also submitted that older people from CALD backgrounds who were the victims of ongoing abuse within the family were seen to be particularly vulnerable, as they have a reluctance to seek outside assistance for cultural reasons.148

2.120 APLA submitted that the effect of the Civil Liability Act 2002 (NSW), to limit the legal costs recoverable by plaintiffs and defendants on claims under $100 000, will adversely affect elderly people on pensions, because they are likely to have smaller claims for compensation.149



People in rural, regional and remote areas


2.121 Several submissions and roundtable participants identified a range of factors operating as barriers to people in rural, regional and remote areas of NSW to obtaining legal assistance. These included remoteness, isolation and physical distance from services, often exacerbated by limited access to affordable and regular public transport.150 In addition, issues of education and awareness levels, confidentiality, lack of available legal services and cultural issues were identified. Women, children and young people and people from CALD backgrounds in rural, regional and remote areas were all identified as being particularly disadvantaged.

2.122 Some of the inherent disadvantages which were identified for people in rural, regional and remote areas included:


Lack of services

2.123 Several submissions noted the lack of both publicly funded legal aid services, and private solicitors in rural and remote areas. Surveys conducted by the Law Society of NSW indicate a drift of services away from rural areas to the city in the past three years.152 In addition, practitioners remaining in rural areas are now unwilling to take on legal aid work, particularly in Family Law, due to the insufficient grants of legal aid. This results in fewer available options for legal advice and representation, as well as accentuating the likelihood of conflict of interest issues for those practitioners who do continue to do legal aid work.153 This was also acknowledged as an issue by Legal Aid NSW:


2.124 Some participants in the National Pro Bono Workshop stated that the diminishing number of private solicitors in rural and regional areas has also resulted in a reduction in the pro bono service opportunities for disadvantaged people in those areas.155

2.125 APLA expressed concerns that the impact of recent legislative changes on people in rural and regional areas will be particularly adverse:


2.126 People in rural and regional areas also face difficulties in accessing the services of Legal Aid NSW and community legal centres, particularly in the area of Civil Law.
2.127 The lack of community legal centres in rural and remote areas providing legal assistance was also noted as a significant barrier:
2.128 A number of disadvantaged groups in rural, regional and remote areas were identified as facing particular hardship in obtaining legal assistance as a result of the lack of legal services:
The needs of these groups are discussed in more detail elsewhere in this report.

Attitudinal barriers

2.129 Several roundtable participants indicated that disadvantaged people in rural and remote areas are often reluctant to seek legal assistance for complaints against services, particularly home care support, due to the lack of alternative sources for such assistance.164 According to Barry Fowler of the Broken Hill Centre for Community, there is a culture of disempowerment, where people feel that they cannot change their circumstances and don’t want to rock the boat:


2.130 The North and North West Community Legal Service based in Armidale also commented on the mind-set and lack of knowledge about the legal system which is prevalent in rural and remote areas:
Legal information services

2.131 In terms of access to legal information resources, for people in rural and remote locations, two issues were identified:



People with low levels of education and literacy


2.132 The complexity of the legal system was seen to be a major barrier for people who have limited education or have low literacy. Identified difficulties included:
2.133 Unbundled services (see paragraph 2.28 above) are usually available for clients who do not qualify for a grant of legal aid, and who have sufficient skills to select, comprehend and utilise the limited assistance provided. However, according to the ALRC unbundling can really only work for educated, articulate litigants in routine matters.170

2.134 It was also noted that legal information websites are mostly inaccessible for people with lower levels of literacy.171



Women


2.135 The Women’s Legal Resource Centre (WLRC) submitted that a decline in the availability of legal aid for Civil and Family Law matters together with a reduction in legal aid grants for that work, and the consequent reduction in the number of private solicitors willing to take on such legal aid work, has restricted the ability of women to obtain legal assistance, particularly in rural and regional areas:
2.136 The WLRC also reported that large numbers of women are unable to gain access to legal advice via their general advice line:
2.137 The National Women’s Justice Coalition submitted that difficulties in obtaining legal assistance for domestic violence matters was a major problem. Their understanding of the policy for Apprehended Violence Orders is:
2.138 Community legal centres submitted that remoteness and lack of services acted as a significant barrier for women who experience domestic violence:
2.139 The NSW Department for Women noted that barriers of lack of knowledge about the legal system, cost, and unavailability of legal aid were all factors which impacted adversely on women:
2.140 The ALRC report Multiculturalism and the Law177 and the Quarter Way to Equal Report 178 both identified that women from CALD backgrounds were disadvantaged by a general lack of knowledge about the legal system, laws and available remedies, cost of legal aid and the limited availability of legal aid. Domestic violence and family law were identified by the Department for Women as two major areas of legal need for these women covered in these reports.179

2.141 At home parents who are not in paid employment are more likely to be women, and so they were also identified as being potentially disadvantaged by the effect of the Civil Liability Act 2002 (NSW), which limits the legal costs recoverable by plaintiffs and defendants on claims under $100 000.180

2.142 Legal Aid NSW has observed that demand for representation of parents, particularly mothers, in care and protection matters has significantly increased following the introduction of the Children’s and Young Persons (Care and Protection) Act 1998.181



People living in institutions


Prisoners

2.143 Participants in the roundtable consultation with non-government and community organisations detailed some of the issues confronted by prisoners in attempting to access legal assistance:


2.144 Limitations of the Prisoners’ Legal Service were identified in relation to a lack of assistance with day-to-day violations of prisoners’ rights, such as being moved to other prisons without prior warning to the prisoner or his/her family, loss of visits, loss of privileges, or reclassification issues.183

2.145 It was also submitted that prisoners encounter difficulties in obtaining legal assistance regarding immigration issues:


Immigration detention centre detainees

2.146 The submission from IARC stated that detainees in Immigration Detention Centres may face complex immigration issues, and decisions often need to be made within strict time limits. Detainees who cannot afford to engage a fee-charging migration agent to advise them in detention face considerable difficulties in obtaining legal assistance. There is no service that is funded to provide immigration advice and assistance at Villawood. IARC assists detainees through the telephone advice service, but does not have the resources to provide advice in-person at Villawood.185

People in institutional care

2.147 People with Disabilities submitted that people in institutional care face similar barriers to prisoners:



People on low incomes


2.148 Submissions and consultations observed that many socially disadvantaged groups in the community are often economically disadvantaged as well. The financial barriers confronting these people in obtaining quality legal representation was seen by many roundtable participants as a fundamental access to justice issue.187

2.149 It was the belief of several contributors that due to tightened legal aid means test guidelines, many low and middle income earners were unable to secure legal representation. This was because they were ineligible for legal aid under the Commission’s means test, and also unable to afford the services of a private solicitor. This group, often referred to as ‘the working poor’ were seen as being greatly disadvantaged, particularly in contested Family Law proceedings which involve drafting court documents and attendance at conferences and court hearings.188

2.150 Legal Aid NSW acknowledged that the most significant barrier to accessing its Criminal Law services is the means test, which can serve to deny legal aid to many people earning low incomes who cannot afford to pay a private lawyer. It acknowledged that the means test, which determines legal aid eligibility, can operate inflexibly.


2.151 In its submission, Macquarie Legal Centre indicated that for clients who were in either full-time work, part-time work or self-employed (approximately 39.2per cent of their total number of clients), the Centre could provide initial legal advice, but were not able to provide representation as they would be outside their practice guidelines. These people were usually unable to afford the services of a private solicitor, but were often still ineligible for legal aid.190

2.152 One roundtable participant noted that people on social security or low incomes, who either rely on legal aid funded lawyers, or who struggle to pay for the services of a private lawyer, will be severely disadvantaged when opposing litigants with significantly more resources (whether it be the Office of Director of Public Prosecutions, Government or large companies). Their opponent will almost certainly engage the services of more experienced, more proficient legal counsel, and have resources to engage in lengthy litigation.191

2.153 In its discussion paper, NADRAC reported that disparities in economic wealth may mean that one participant in a dispute has access to legal or other professional advice and the other does not. If they elect to proceed, those who are unrepresented may be placed at a significant disadvantage and the outcome may not be fair to the weaker participant. NADRAC also stated that lack of financial resources may preclude the proper exploration of appropriate options for the resolution of a dispute, causing further disadvantage to the financially weaker party.


2.154 APLA submitted that people on low incomes will be disadvantaged by the effect of the Civil Liability Act 2002 (NSW), to limit the legal costs recoverable by plaintiffs and defendants on claims under $100 000.193 According to APLA, such people who rely on private solicitors who offer ‘no-win no-fee’ services, will find it difficult to obtain legal assistance to pursue claims of less then $100 000. In addition, restrictions on solicitors advertising ‘no-win no-fee’ arrangements will make it more difficult for such people to be aware of the availability of such arrangements.194


Homeless people


2.155 The Legal Counselling and Referral Centre (LCRC) identified several barriers obstructing the ability of homeless people to obtain legal assistance, including:
2.156 It was also observed that homeless people are often overwhelmed by issues of urgency, including health, accommodation, and hunger, which result in seeking assistance for their legal needs being relegated to a lower priority.196


Men


2.157 One submission and one consultation drew attention to the inability of men in child support matters or who are respondents to applications for Apprehended Violence Orders, to secure legal representation.197 It was stated that legal aid is not available to provide representation in such matters, and unless the respondent is able to afford to pay for legal representation, they will be unrepresented and therefore disadvantaged in the proceedings.


Mechanisms and innovations


2.158 This section focuses on the services, strategies and recent innovations to assist disadvantaged people obtain legal assistance and overcome the barriers to access, which were highlighted in the consultation process. It does not canvass all available services, and only focuses on those which were mentioned in submissions and consultations.

General

2.159 Publicly funded legal aid services endeavour to provide greater access to legal assistance for disadvantaged people. In particular, the NSW Legal Aid Commission, the 37 community legal centres and the six Aboriginal Legal Services which operate in NSW, provide legal services for disadvantaged people. The services of these agencies are described in the following section.

Legal Aid NSW

2.160 Legal Aid NSW is the largest legal aid agency in Australia, comprising a head office in Sydney, 19 regional offices in metropolitan and country centres across NSW and a number of specialist services and advice clinics. It was established under the Legal Aid Commission Act 1979 as an independent authority to provide legal aid to disadvantaged persons throughout NSW. Its corporate vision is ‘To ensure that the socially and economically disadvantaged can understand, protect and enforce their legal rights and interests’. Programs and services provided and/or funded through the Commission include:


2.161 In 2001/2002, Legal Aid NSW provided 319 099 client services to people in NSW. Advice and information services made up almost half (156 394) of the services provided. Legal Aid NSW also contracts work to the private profession, by providing grants of legal aid to undertake work in Criminal, Civil and Family law, in accordance with the Commission’s eligibility guidelines and means test. In 2001/2002, Legal Aid NSW received 20 588 applications for grants, and managed 31 458 duty lawyer appearances conducted by private practitioners.200

Community legal centres

2.162 There are 37 community legal centres which deliver legal services to their respective local communities. The work of community legal centres includes activities such as legal advice and representation, outreach services, community legal education, community development activities, law reform activities and other initiatives. Community legal centres do not duplicate the work of NSW Legal Aid, or do work that is deemed core legal aid work.201

2.163 In 2001, community legal centres provided 81 264 information and advice sessions.202 Many community legal centres offer advice services outside of normal business hours to enhance accessibility.

2.164 Several contributors noted the importance of community development and community education in the work of community legal centres:


2.165 Nineteen community legal centres provide generalist services which deliver services to a local geographic catchment area. Eight of these operate in the Sydney metropolitan areas and 11 operate in rural, regional and remote areas of New South Wales. These 11 centres also undertake outreach services to the surrounding regions. The importance of face-to face outreach services undertaken by all community legal centres was noted.204

2.166 Eighteen legal centres provide specialist services delivering services either on particular areas of law or to a particular disadvantaged group. The 18 specialist legal centres in NSW are:


Tenancy Advice services

2.167 There are 11 publicly funded tenancy advice services in NSW, providing advice, advocacy and legal information services to private and public housing tenants on various tenancy related issues. Four of these centres are located in metropolitan Sydney (Bondi Junction, Chatswood, Campsie and Harris Park). The seven remaining services are located in rural, regional and remote areas of New South Wales. Three of these are designated as Aboriginal tenancy advice services.

Local Courts and Chamber Magistrates service

2.168 NSW is the only State to provide a free, non-means tested legal information and assistance service through the Chamber Magistrate service. The service is available at all full time Local Courts and provides:


LawAccess NSW

2.170 A new development in the area of legal service delivery to disadvantaged people in NSW has been the establishment of LawAccess NSW in 2002. LawAccess NSW is a free service providing a single point of access to legal and related assistance services in New South Wales. It merges the services formerly provided by the Legal Aid Commission HelpLine and the Law Society of NSW Community Assistance Department. Its priority target audience is those people who are traditionally disadvantaged in access to legal services due to distance from local services or disability. Its main aim is to assist service users to find the information and services that are best able to assist with legal problems and questions. Its main functions are to:


2.171 LawAccess NSW provides a telephone advice and referral service (including TTY facilities for people with hearing or speech impairments). From April 2002 until December 2002, LawAccess NSW recorded 46 186 advice sessions.208

2.172 The LawAccess service has two additional legal information strategies:


2.174 LawAccess NSW have advised that for the 12 months ending 30 April 2003, the average time service users waited in the telephone queue before speaking to an operator was 1 minute 35 seconds, and 89 per cent of inquirers were answered within five minutes. LawAccess also advised that they have received reports from Telstra that since 1 March 2002, there have not been any unsuccessful calls to the standard 1300 number or the TTY 1300 number.212

2.175 To improve service delivery to Indigenous people, LawAccess has been working with the Aboriginal Justice Advisory Council to develop appropriate strategies to target Koori communities.213

2.176 To facilitate the referral process and reduce the incidence of inappropriate referrals, LawAccess advised that it has implemented a system of referral agreements. These involve gathering relevant information about organisations and also inviting organisations to contact LawAccess if they do not make an appropriate referral so that they can follow up why it happened and put remedies in place to address this.214

Pro bono services

2.177 The growing significance of pro bono services by the private legal profession was noted by many submissions and roundtable participants, as was the important role of the Public Interest Law Clearing House in acting as an access point for pro bono services.215

2.178 While the important role of pro bono services was noted, it was also stated that pro bono legal services cannot present as a substitute for legal aid. As Justice Sackville commented at the Access to Justice and Legal Needs Workshop:


2.179 The Commonwealth Attorney-General’s Department referred to the recently established National Pro Bono Resource Centre as an initiative which will facilitate the provision of pro bono legal assistance to disadvantaged people. The key objectives underlying the Centre’s establishment are:
2.180 Related to the availability of pro bono services from the private profession, is the availability of various fee arrangements such as contingency fee arrangements and ‘no-win no-fee’ arrangements.
2.181 According to APLA, the availability of ‘no-win no-fee’ and similar type arrangements help to make legal services more accessible for disadvantaged people:
2.182 APLA also states that advertising of legal services has a significant impact on the ability of people to access pro bono legal services.
Online services

2.183 The expanding volume of legal information available on the Internet is a significant source of legal assistance for many groups within the community, including individual consumers, intermediaries, community workers, and the legal profession. As the ALRC has observed:


2.184 Many participants saw such online services as beneficial in overcoming delays in obtaining advice in relatively straightforward matters, augmenting and enhancing the capability of community based advice service providers, providing greater confidentiality for people in rural and remote areas, and being more accessible to people with physical disabilities.222

2.185 Concerns were also expressed that such websites and email services were often difficult to navigate, ineffective or of limited use for people with low levels of literacy, CALD people (unless material in other languages is available), people with vision impairments, and those who are unfamiliar with such new technology. In addition, some expressed the view that email advice services are more likely to be accessed by middle income earners and not the most disadvantaged in society.223

2.186 One source of legal assistance which does not have a high profile, but of which the Foundation was made aware during the consultation process, was the national email/telephone advice service provided by Legal Access Services Ltd. (http://www.legalaccess.com.au). The service includes:


Other services

2.187 Legal information and education services are also provided by a number of Government Departments and Government organisations. As an example, Public Trustees NSW provides what it describes as ‘legal educative services’:


2.188 Trade Union members can also access free legal advice, information and often representation on a range of matters, by virtue of their membership.226

2.189 Other organisations, such as courts and libraries which provide some services, were not highlighted by submissions or in consultations.



People with disabilities


Community legal centres

2.190 There are several community legal centres specifically designated to provide legal assistance for people with disabilities:


2.191 In addition, the Public Interest Advocacy Centre will often undertake test case and public interest litigation on behalf of people with disabilities.

Legal Aid NSW

2.192 The Legal Aid NSW Mental Health Advocacy Service (MHAS) provides advice and representation to people who have a mental illness. Most of these services are provided at institutions throughout the state. Lawyers from the Commission’s in-house Civil Law sections complement the services provided by the MHAS.227

2.193 Legal Aid NSW is also piloting a Video Conferencing Scheme. This initiative uses video conferencing facilities to undertake tasks related to legal representation that previously required face-to-face attendance. Potentially such facilities could also be used to provide legal advice and information to people with physical disabilities who cannot get to an office.228

Courts

2.194 The NSW Local Courts’ outreach services to Health and Neighbourhood Centres can assist people with a range of disabilities, who may feel more comfortable in an alternative venue, or being assisted by specialist services with whom they have familiarity.229

2.195 NSW Local Courts have also been implementing a Flexible Service Delivery Policy to ensure that all courts are aware of potential barriers to access and take steps to address those barriers. Groups targeted have included those with a sensory disability, those with schizophrenia or other mental illnesses, and those with physical disabilities that impede access. The process has involved consultations with disability groups, and people with disabilities training local court staff to become aware of potential access problems. Some Chamber Magistrates have commented that one of the benefits has been gaining a better understanding of the difficulties faced by people with disabilities in accessing the legal system. Because the process will involve training all Local Court staff, it is not expected to be completed for several years.230

Other

2.196 It was also noted that the following organisations provide a range of legal information material (both online and in pamphlet form) for people with various disabilities:



People from culturally and linguistically diverse (CALD) backgrounds


Community legal centres

2.197 Many community legal centres report high proportions of their service users coming from CALD backgrounds. In 2001, of those clients who reported their country of birth, 37 per cent were born in countries other than Australia.232 According to the 2001 Australian Bureau of Statistics Census, 29.5 per cent of people in NSW were born in countries other than Australia.233

2.198 The Immigration Advice and Rights Centre (IARC) provides immigration advice services and ongoing legal representation to clients. The centre’s advice services include:


As well as giving advice to individuals, the service assists community workers, lawyers, migration agents and other advisers who handle immigration cases. In 2001, the Centre advised over 4000 people regarding immigration issues through the drop-in and telephone advice services.234

2.199 In addition, IARC runs training courses for migration agents which meet the “sound knowledge” requirements for registration as a migration agent as well as running seminars on immigration issues for migration agents, community workers and ethnic communities. IARC publishes a quarterly newsletter highlighting the most recent developments in immigration law and the Immigration Kit, a practical reference for community workers.235

2.200 The Refugee Advice and Casework Service (RACS) specialises in providing legal assistance to asylum seekers applying for refugee status. Their services include full application assistance, face-to-face advice, telephone advice and referrals. They assist asylum seekers in the community and in immigration detention.

2.201 Community legal centres have been involved in a number of projects which have sought new ways to provide legal information to people from CALD backgrounds, particularly small language groups and newly-emerging communities. These projects have been characterised by significant input at all stages from the language communities concerned. Some examples of these projects include:


Legal Aid NSW

2.202 Legal Aid NSW reports that in 2001/2002, 13.9 per cent of its clients were from CALD backgrounds, with 2.9 per cent requiring the services of an interpreter237

2.203 Legal Aid NSW provides a specific Administrative Law service which deals particularly with immigration and refugee matters.238

Local Courts

2.204 The Local Courts’ outreach services to Health and Neighbourhood Centres can also assist people from CALD backgrounds, who may feel more comfortable in an alternative venue.239

LawAccess NSW

2.205 The newly established LawAccess service is working with the NSW Community Relations Commission to explore ways of implementing a multilingual telephone service at a statewide level. LawAccess also provides access to legal information in languages other than English via its website (http://www.lawaccess.nsw.gov.au).240

2.206 The availability of published legal information pamphlets in community languages was seen as an important source of information.241



Indigenous Australians


Aboriginal Legal Services

2.207 There are six Aboriginal Legal Services in NSW:


Community legal centres

2.208 The Wirringa Baiya Aboriginal Women’s Legal Centre provides free legal advice and information to Indigenous women who live in NSW. The Centre’s main focus is women and children who are, or have been, victims of violence. The Centre’s other activities are community legal education, professional training to people in contact with Indigenous women, lobbying for legal reform, and providing access to culturally appropriate resources and information.

2.209 The Women’s Legal Resources Centre has undertaken a number of outreach programmes in Aboriginal Communities through its Indigenous Women’s Programme. It also auspices a Violence Prevention Unit in Walgett.242

Tenancy advice services

2.210 There are three Aboriginal Tenancy Advice Services, providing advice, advocacy and legal information services to private and public housing tenants who are Aboriginal on various tenancy related issues:


Legal Aid NSW

2.211 In 2001/2002, 2.9 per cent of Legal Aid NSW clients were Indigenous.243 Legal Aid NSW has undertaken a range of initiatives aimed at improving and expanding the provision of legal services to Indigenous people in NSW.


2.212 The Legal Aid NSW Veterans Advocacy Service has established relationships with Indigenous communities through the Aboriginal and Torres Strait Islander Veterans Association (ATSIVA) in Moree, Kempsey and Coffs Harbour.245

2.213 Legal Aid NSW has recently initiated a number of additional projects to improve access to legal assistance for Indigenous people:

Courts

2.214 The Family Court of Australia has attempted to develop appropriate services for Indigenous people by employing an Indigenous Consultant. According to the Family Law Pathways Advisory Group (FLPAG) report Out of the Maze, referred to by the Commonwealth Attorney-General Department’s submission, this makes the Family Court more likely to attract Indigenous clients, and provides a useful model for how other service providers might proceed.247

2.215 Local Court Clerks and Chamber Magistrates (sometimes in collaboration with Aboriginal Specialists) provide registry and Chamber services at venues such as Land Councils and Aboriginal Community Health Centres.248

Other

2.216 Participants in the consultation roundtable with community and non-government organisations commented that using the ‘Koori grapevine’ was seen as a highly effective way of getting information about available legal services to Indigenous people.249



Children and young people


Community legal centres

2.217 The Youth Justice Coalition (YJC) stated in its submission that because community legal centres offer a comprehensive advocacy service and often work closely with youth workers, they are seen as highly effective advocates for children and young people, particularly in situations where there is no family, or a family is unable or inappropriate to act as an advocate for the child.250

2.218 Only Marrickville Legal Centre and Macarthur Legal Centre dedicate either a full-time or part-time solicitor position to providing targeted legal services to under-18 year-olds. The Shopfront Youth Legal Centre based in Darlinghurst, a collaborative project between Freehills Solicitors, Mission Australia and the Salvation Army, also provides targeted services to under-25 year-olds, particularly those who are homeless in the inner city.251

2.219 The National Children’s and Youth Law Centre (NCYLC), based at the University of NSW in Randwick, provides a limited public interest casework service for children and young people across Australia. In addition, the NCYLC auspices the Lawstuff website (http://www.lawstuff.org.au), a national legal information website for children and young people, incorporating the LawMail email advice service.

Legal Aid NSW

2.220 Legal Aid NSW provides a Children’s Legal Service, which provides:


In 2001/2002, 9 per cent of Legal Aid NSW’s clients were under 18.253

2.221 In its submission, the Youth Action and Policy Association (YAPA) describes the Children’s Legal Service as follows:

2.222 The YJC also stated that in the experience of its members the legal aid needs of children in relation to criminal matters has seen some improvements since the establishment of the Children’s Legal Service.255

2.223 The Legal Aid Hotline for Under 18s was established in 1998, in response to the Young Offenders Act 1997. The Act requires police to advise young people that they are entitled to get legal advice before a referral is made for a caution or a youth justice conference (sections 22(1)(b), 39(1)(b)). The Hotline provides Criminal Law advice about all matters affecting those appearing before the Children’s Court. Advice is given to children and their families. Priority is given to calls received from young people in police custody. This specialised service is therefore able to reach young people in crisis, who would ordinarily not be able to access legal services. The Hotline is available 24 hours a day on weekends and public holidays.256 It has been seen as an important strategy in reducing the likelihood of young people making inappropriate admissions under the Young Offenders Act.257

2.224 In addition, Legal Aid NSW produces legal information materials specifically for young people. The best example of this is the Get Street Smart publication:


Courts

2.225 The Local Courts provide outreach services to Youth Centres.259



Elderly people


Community legal centres

2.226 The Aged-Care Rights Service provides legal assistance for residents of Commonwealth funded nursing homes and hostels in NSW. It also advocates for residents of retirement villages and serviced apartments. It offers a telephone information service, and also conducts workshops for service providers and staff as well as residents.

Legal Aid NSW

2.227 Legal Aid NSW provides a Veterans Advocacy Service, which provides legal assistance in veteran’s affairs cases and veterans’ pension applications. The service has established relationships with the Vietnam Veteran Associations, RSL Associations and with Indigenous communities in Moree, Kempsey and Coffs Harbour. Current advice and information services exist in Newcastle, Wollongong, Nowra, Bateman’s Bay and Coffs Harbour.260

Courts

2.228 NSW Local Courts provide ad hoc outreach services on request for frail aged people in aged care facilities.261

Other

2.229 In addition to legal aid, federal funding is provided directly to the Returned and Services League (RSL), Legacy and Vietnam Veterans’ associations to assist people making applications for veterans’ pensions. Many veterans also seek assistance from private advocates who work on a contingency basis.262



People in rural, regional and remote areas


Community legal centres

2.230 NSW has the following community legal centres in rural and regional areas:


2.231 The North and North West Community Legal Centre provides a useful example of the range of services available from community legal centres in rural and regional areas:
Legal Aid NSW

2.232 Legal Aid NSW has 19 regional offices. The catchment areas for each office have been developed according to exigencies such as the location of Local Courts and whether the service offered is linked to a court (for example, Civil Law services are not dependant on where courts are located).


2.233 Legal Aid NSW reports that in 2001/2002, 12.1 per cent of its clients came from non-urban areas.265

2.234 The Video Conferencing Scheme being piloted by NSW Legal Aid mentioned above (paragraph 2.193) is considered a potentially useful strategy to provide legal advice and information to people in rural and remote areas who cannot physically get to an office where advice is provided.266

2.235 The Legal Aid NSW Veteran’s Advocacy Service provides advice and information services in Newcastle, Wollongong, Nowra, Bateman’s Bay and Coff’s Harbour.267

2.236 Legal Aid NSW, in partnership with the Department for Women, conducted the Women on Wheels (WOW) outreach program. This project provides rural outreach to isolated women in the North and North East of New South Wales. The WOW bus carries women representing a range of organisations to towns that have little access to free information and legal advice. Legal Aid lawyers promoted the services to local communities and encouraged local practitioners along the way to undertake more legal aid work. Presentations to Aboriginal communities are particularly well attended.268

Tenancy advice services

2.237 Apart from the three Aboriginal Tenancy Advice Services mentioned earlier, there are four other Tenancy Advice Services in rural NSW, providing advice, advocacy and legal information services to private and public housing tenants in rural, regional and remote areas on various tenancy related issues. These are:


Courts

2.238 The Local Courts outreach services (see paragraph 2.169) aim to meet the needs of communities that are physically isolated or remote. In addition, to meet the needs of clients who have difficulty physically accessing a Local Court because of distance, all NSW Local Courts offer Chamber Magistrates services by telephone.269

Online services

2.239 Submissions acknowledged that the availability of email legal advice and information services can provide a significant source of services to people in rural and remote areas who find it difficult to physically access legal assistance. Services such as the LawMail email advice service for young people (accessed via http://www.lawstuff.org.au) were seen as important sources of legal assistance for young people in rural and remote areas. Likewise, the Communications Law Centre email legal advice and information service Oznetlaw (http://www.oznetlaw.net.au) has been identified as a significant legal assistance service for people in rural and remote areas. Oznetlaw was designed to help people across Australia to solve legal problems associated with the use of the Internet and e-commerce. It consists of a legal information website supported by a legal advice service. Topics cover 40 categories of Internet activity. In its first year of operation, 50per cent of inquiries received by the Communications Law Centre via the Oznetlaw website were from regional areas.270

2.240 The previously mentioned Legal Access Services (http://www.legalaccess.com.au) email legal advice service provides a valuable service to people in rural and remote areas. As members of the NSW Farmers Association are entitled to free use of the service, it provides another option for legal assistance for people in rural and remote areas.271



Women


Community legal centres

2.241 The following community legal centres are specifically designated for providing legal assistance to women in NSW:


Legal Aid NSW

2.242 In 2001/2002, 46.4 per cent of Legal Aid NSW clients were women.274 In addition, NSW Legal Aid provides the following services particularly targeting women:



People living in institutions


Legal Aid NSW

2.243 Legal Aid NSW provides a Prisoners Advice Service, which provides a range of services to prisoners in NSW. The Service visits NSW jails and provides free and confidential legal advice and minor assistance in matters such as:


2.244 The Video Conferencing Scheme being piloted by NSW Legal Aid mentioned above (paragraph 2.193) is also considered a potentially useful strategy to provide legal advice and information to people in institutions.277

Courts

2.245 Local Courts provide ad hoc outreach services on request for clients who are institutionalised, including prisoners, scheduled patients in psychiatric hospitals and frail aged people in aged care facilities.278



People on low incomes


2.246 Generally speaking, the services provided by community legal centres, Legal Aid NSW, tenancy advice services, pro bono programs from the private legal profession and the services provided by Chamber Magistrates at Local Courts are accessible to and utilised by people on no income, low incomes or on social security. As an example of the service users of community legal centres, Macquarie Legal Centre reported that according to their casework statistics for the 10 years up to 30 June 2002, of those who supplied details of their employment status, 39.2 per cent were in either full-time work, part-time work or self employed. A further 37.3 per cent were social security recipients.279

2.247 In 2001/2002, 51.1 per cent of NSW Legal Aid clients were in receipt of Commonwealth Benefits.280

2.248 The availability of ‘no-win no-fee’ arrangements was seen by APLA as an important option for low income people or social security recipients to be able to access legal services from the private profession.281



Homeless people


2.249 The LCRC operating as part of the work of the Rough Edges ministry at St. John’s Anglican Church in Darlinghurst, provides legal assistance to homeless people in inner city Sydney and the Kings Cross/Darlinghurst areas. It began operation in March 1995 with the aim of helping clients identify and resolve issues in their lives which were causing distress. Where legal issues are raised the clients were referred to Legal Aid, to community legal centres or to pro bono services. Where other issues were raised, the clients were referred to relationship or financial counsellors, to the Department of Housing, to job placement agencies or to other appropriate agencies. In response to increased difficulties in obtaining legal aid for certain types of matters and increased complexity of matters coming into the centre, the LCRC increased its level of service to homeless people in the inner city. It now takes on casework, and works in close cooperation with the Inner City Legal Centre. The LCRC is staffed by volunteer solicitors and operates on Monday evenings. It is currently considering increasing its hours of operation.282

2.250 In the past the LCRC have conducted legal information seminars for its clients on laws relating to public space and police move on powers. In particular, the LCRC conducted a series of evening sessions prior to the Sydney Olympics, explaining the laws which would be in place during that time.283



Suggestions to improve access to legal assistance


2.251 This section reports recommendations and suggestions made throughout the consultation process to improve access to legal assistance for disadvantaged people. While it does not include the recommendations made in the ALRC Managing Justice Report, the reference made to that report by the Commonwealth Attorney-General’s Department indicate the general relevance of the report to this process.

General

Community Legal Centres

2.252 The important role of community legal centres was advocated by a number of submissions and roundtable participants.284 As Justice Sackville stated at the Law and Justice Foundation of NSW Access to Justice workshop in July, in suggesting the inherent limitations on the ability of courts to resolve disputes, and that governments are not necessarily committed to the principle of effective access to the courts,


2.253 Likewise, the North and North West Community Legal Service Inc. described what it saw as the important role of community legal centres:
2.254 Many submissions and roundtable participants emphasised the need to provide more resources to community legal centres to enhance their capacity to provide a range of services: casework, community legal education, community development, preventative education, and law reform advocacy. Particular mention was made of the need to channel more into preventative legal education, and education with a ‘rights’ focus (as opposed to a ‘self-help’ focus). Community legal centres, particularly those in rural and regional areas, were seen as under resourced to provide the services needed in their respective communities, whether local or a specific disadvantaged group.287

Pro bono services

2.255 The report of the National Pro Bono Task Force referred to by the submission from the Commonwealth Attorney-General’s Department, recommended a number of strategies to facilitate the provision of quality pro bono legal services to disadvantaged people, including:


2.256 Other suggestions made by contributors to facilitate delivery of pro bono services include:
Legal Expenses Insurance

2.257 Several organisations suggested that legal expenses insurance is a way to improve access for people in the community ineligible for legal aid funding, and who are deprived of access to the legal system due to the costs associated with engaging private solicitors and conducting litigation.291

2.258 However, it was acknowledged that legal expenses insurance would be predominantly supported by middle income people and by small businesses, and would not address the needs of people who would normally receive legal aid. According to the Law Society of NSW, it could therefore never relieve governments of the ultimate responsibility for providing mainstream legal aid services.292

2.259 The Law and Justice Foundation of NSW has previously concluded that if legal expenses insurance is to enhance access to justice for low to middle income earners, it must provide a broad, general coverage at an affordable cost, and remain commercially viable. Commercial viability requires bulk savings and risk spreading.293 The Law Society has also suggested:


Online and email services

2.260 Two submissions advocated the need for more funding to provide comprehensive email legal advice services where assistance is provided by private law firms through their pro bono programs. Such email based services would be particularly useful for people in rural and remote areas.295

2.261 As greater reliance is placed on online facilities to deliver legal services, roundtable participants stated that there is a growing need for publicly accessible, supportive and private environments which allow people to explore these online alternatives. Some participants expressed the view that at the present time, public libraries do not offer such an environment.296

Community development

2.262 Many roundtable participants affirmed the role of community development in delivering legal services, expressing that there needs to be greater support for initiatives which encourage community involvement in the identification of legal needs and the provision of appropriate legal assistance.


2.263 To achieve this, some participants saw a need for legal services to employ non-legal staff, and provide a range of other support services, including youth advocacy, financial counselling, social workers and psychologists.
Other recommendations

2.264 Other suggestions to improve access to legal assistance for disadvantaged people included:



People with disabilities


2.265 People with Disabilities (PWD) recommended the establishment of a Disability Rights Legal Service to enhance the capacity of the legal profession to meet the broad legal needs of people with disability. PWD submits that the absence of such a service contributes to the difficulty faced by many people with disability in obtaining appropriately skilled legal advocacy.301

2.266 PWD also suggests that there is need for people with disability to have access to skilled industrial relations legal advocacy which can advocate for alternative risk assessment strategies where people with disability may face loss of service as a consequence of occupational health and safety actions.302

2.267 The FLPAG recommended additional Family Law services for people with acute mental illness, intellectual disability, or substance addiction. Such people are becoming increasingly involved in the Family Law system, and often require more support to have their needs heard.303

2.268 The FLPAG recommended that professionals and service providers receive training and assistance to provide specialist services to people with intellectual disability and mental illness.304 Likewise, roundtable participants also recommended that professionals and service providers receive training to provide services to people with addictions.305



People from culturally and linguistically diverse (CALD) backgrounds


2.269 Recommendations to improve the availability of interpreters and translation services were a feature of several submissions. In particular, Macquarie Legal Centre provided two options for improving the current system of interpreter provision:
2.270 Macquarie Legal Centre also recommended that governments commit resources to information strategies to communities not catered for by translated information. Multi-lingual community workers, religious and community leaders, ethnic media and Migrant Resource Centres were commonly seen as important avenues through which translated legal information could be disseminated to non-English speaking communities.307

2.271 The FLPAG recommended a range of strategies to make legal assistance for Family Law matters more accessible for people from CALD backgrounds.



Indigenous Australians


2.272 The need for culturally appropriate services which employ Indigenous people was commonly recognised as a key ingredient in improving the accessibility of legal assistance to Indigenous people.309 The FLPAG also recognised that the most effective programs were those which are developed, owned and implemented by local Indigenous communities themselves.310

2.273 The YJC submitted that given the high number of Indigenous children in the juvenile justice system and the care and protection system, funding for advocacy services for these children should be a high priority.311



Children and young people


2.274 The need for increased funding to specialist children’s and young people’s legal services was a key recommendation from a number of submissions, to facilitate improved accessibility to all forms of legal assistance for children and young people.312 It was also recommended that legal service providers need to work closely with specialist non-legal youth advocates to ensure the delivery of relevant, understandable, quality legal services.313

2.275 The National Women’s Justice Coalition has also recommended that the NSW Government fund a state-wide Children’s Legal Advocacy Service and a Network of Children’s Advocates as recommended by the Parliament of NSW Legislative Council Standing Committee on Social Issues Inquiry into Children’s Advocacy in 1996.314

2.276 NSW Legal Aid indicated that it will seek funding to enable the Hotline for Under 18s to expand its hours of operation to 24 hours, 7 days a week.315

2.277 Several submissions noted the need to tailor distribution of legal information to the specific needs of children and young people by utilising the channels which children and young people use everyday (eg. schools, Internet). This is particularly important given that children will most likely only be aware of their need for legal information and assistance at the time a situation arises, or when they have suffered the consequences of their or another’s act.316 The NSW Commission for Children and Young People emphasised that it was important to consult with children and young people in designing effective information and support networks.317

2.278 FLPAG stated that there was a need for a specialist service to assist children in Family Law litigation, and to ensure that they are given opportunities at each stage of the process to be heard and to receive explanations about what is happening. FLPAG also noted the importance of providing age-appropriate information, and the important role which parents and other significant family members can play in providing legal information.318

2.279 The YJC recommended that all data collection systems include appropriate fields for collecting data about children and young people. This data could then form the basis for informed policy decisions, service evaluation and strategic planning.319



Elderly people


2.280 Appropriate promotion of legal services to elderly people was seen as a vital strategy in improving their access to legal assistance:


People in rural, regional and remote areas


2.281 The diminishing number of private practitioners in rural and regional areas prompted recommendations from numerous submissions:


People living in institutions and people released from institutions


2.282 Roundtable participants expressed the need to establish independent advocacy services within prisons, particularly for people with an intellectual disability or psychiatric illness, as well as specialist legal advocacy services for ex-prisoners.324


Women


2.283 Increased funding for legal aid service providers to offer adequate services in Family Law, family violence and various civil matters was identified as the most important strategy to improve access to legal assistance for women.


Homeless people


2.284 The LCRC suggested a number of strategies to improve access to legal assistance for homeless people:


Ch 3. Effective participation in the legal system


3.1 This chapter looks at the issue of effective participation in the legal system through access to courts, tribunals and court-based alternative dispute resolution (ADR) processes. The first part looks at the perceived weaknesses of the court/tribunal/ADR systems which present barriers to disadvantaged groups within the community. The mechanisms which have been implemented to address these issues are then explored. Finally, proposals from contributors for further innovations and solutions are discussed.

3.2 For the purposes of this project, the issues which are dealt with under the title ‘effective participation in the legal system’ include:



Barriers in existing mechanisms


Court procedures

3.3 Several submissions and roundtable participants expressed concerns about the formality of court processes and the court environment, which present significant barriers to participation for disadvantaged people. Adjectives such as ‘intimidating’, ‘scary’, ‘frightening’, and ‘overwhelming’ were used to describe courts.1

3.4 Some roundtable participants expressed concerns about the detrimental impact of the adversarial system on particular disadvantaged groups, including issues such as court procedures and the admissibility of evidence.2

3.5 Several submissions expressed concern about delays with matters listed in court awaiting hearing or final resolution, and the resulting emotional and material costs to litigants. The effect of such delays was seen to negatively impact on a litigant’s expectation or preparedness to pursue matters through the courts.3 According to the Law Society of NSW Family Law Committee, inadequate resourcing for Family Court services was seen as a major cause of delays in processes in Family Court proceedings, increasing costs for litigants.4

3.6 Many of these issues of formality of procedures and delays were recognised by Justice Sackville in his address to the Access to Justice Workshop. He also recognised the limited capacity for courts to address some of these concerns:


Costs of litigation

3.7 The Law Society of NSW Access to Justice Report stated that the cost of calling expert evidence represents a significant barrier for disadvantaged people.6

3.8 Several roundtable participants commented that the risk of having a costs order made against an unsuccessful litigant presents a significant disincentive for disadvantaged people to pursue civil claims, particularly those which may be test cases or cases of public interest.7

Limited remedies from litigation

3.9 Some roundtable participants expressed concern regarding the limited remedies available through the civil justice system, and the disincentive this causes for particular groups of people to seek redress though the courts. They stated that for many disadvantaged people, the major priority is seeking some form of acknowledgment of loss or pain and suffering, rather than financial compensation, and that available remedies through litigation fail to adequately take this into account.8

3.10 There was recognition by some roundtable participants that in the criminal jurisdiction, sentencing options are not equally available. Examples given included:


Self-represented litigants

3.11 The Law Society of NSW paper Self Represented Litigants, stated that there is a widespread perception that the number of self-represented litigants is growing. Identified factors contributing to this growth include:


3.12 According to the Australian Law Reform Commission (ALRC) Managing Justice report:
3.13 The Law Society of NSW also reported increases in the numbers of self-represented litigants in the Local Courts and the District Court.12

3.14 The ALRC Managing Justice Report stated that self-represented litigants often find court processes, premises and registry procedures confusing and intimidating.13 The report noted that self-represented litigants cause a number of problems for courts, including:


3.15 Justice Sackville stated that as courts adopt practices to assist unrepresented litigants, there has been an increase in the number of ‘querulous’ unrepresented litigants – i.e. those who become involved in ill-founded and lengthy legal battles for redress of their grievances and seek not just compensation and reparation, but also vindication and retribution. He saw this as causing considerable problems for the civil justice system:
Recent legislative changes dealing with Civil Law claims

3.16 The Australian Plaintiff Lawyers Association (APLA) stated that recent and proposed legislative changes in NSW regarding tortious liability and the law of negligence may seriously restrict access to the courts for compensation by disadvantaged people who have been injured as a result of the negligence of another. Some of the changes arising from the Civil Liability Act 2002 (NSW) which have caused particular concern include:


3.17 APLA raised concerns about the Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) in terms of accessibility to the courts for seeking compensation for negligent acts. The main areas of concern were:
3.18 APLA also pointed out other legislative changes in the last four years that have curtailed the ability of injured people to access the courts, including:
Tribunals

3.19 The emergence and proliferation of tribunals as alternative hearing forums was subject to criticism from several contributors. In particular:


3.20 Some roundtable participants on the other hand considered the exclusion of legal practitioners in the informal hearings of tribunals to be beneficial to litigants. However, they were still concerned that unrepresented litigants may be in positions of disadvantage when confronted with opposing litigants or their advocates who frequently appear in tribunals and have become skilled in tribunal processes.
3.21 Specific concerns were raised by the community legal centre sector regarding the processes of the Human Rights and Equal Opportunity Commission (HREOC) and the NSW Anti-Discrimination Board (ADB). In particular, concerns were expressed regarding the delays in considering complaints, and confusion over the differing jurisdictions of each and the differing grounds for complaint.24

Alternative Dispute Resolution (ADR)

3.22 The incorporation of ADR mechanisms into court and tribunal processes was seen by several roundtable participants as presenting difficulties:


The role of the judiciary

3.23 In the Access to Justice workshop, Justice Sackville stated that recent challenges to the authority of courts to resolve disputes has raised concerns that one should not assume that Governments consider effective access to the courts as an inviolable principle. In particular, he referred to limitations on judicial decision making, as exemplified by restriction of judicial review of migration decisions, and the recent experiments with mandatory sentencing, which were seen as restricting effective participation in the legal system, by limiting the courts’ ability to dispense individualised justice.26

3.24 The NSW Law Society’s Family Law Committee stated that access to Family Law outcomes in the Local Court has diminished in recent years, due to a gradual de-skilling of magistrates in Family Law. Committee members indicated that previously magistrates had a workable knowledge of Family Law which facilitated resolution of minor Family Law matters in Local Courts. This was particularly useful in rural and regional areas.27



People with disabilities


3.25 Particular barriers identified for people with disabilities in participating effectively in the legal system included:
3.26 The NADRAC discussion paper expressed concerns that people with disabilities may be disadvantaged by confronting their protagonists in a closed environment in the course of ADR proceedings. It also expressed concerns that people with disabilities may encounter difficulties with the processes adopted in mediation and conciliation:
People with an intellectual disability

3.27 The most commonly identified barrier to effective participation in the legal system for people with an intellectual disability was the intimidating and alienating atmosphere of the courtroom. The sense of alienation experienced was identified as impacting on their ability to give evidence in court. According to some roundtable participants, this can result in them being perceived as being unreliable witnesses.


3.28 Several roundtable participants considered that the removal of the right for accused persons in a criminal trial to give evidence by way of unsworn statement was particularly problematic for people with an intellectual disability. The current position is that for an accused person to give evidence in a trial, s/he must give sworn evidence and be subject to cross-examination.31 Participants stated that people with an intellectual disability may have difficulty understanding the consequences of taking an oath. They may become flustered during cross-examination, and the cross-examiner’s questioning technique may emphasise the person’s disability.32

3.29 Other identified barriers for people with an intellectual disability included:


3.30 Community legal centre contributors raised the issue of negative perceptions in relation to actions involving parents with intellectual disability. For example, participants commented on the negative attitude of the Children’s Court towards parents with an intellectual disability in relation to issues about wardship/removal and placing children as wards of the Minister. They stated that once children have been removed from parents with an intellectual disability, it is very difficult to get them back.35

3.31 Some roundtable participants commented on the limited application and effectiveness of diversionary schemes in criminal law for people with an intellectual disability. Young people with an intellectual disability receiving police cautions often do not understand the caution, may not realise that they have committed a criminal offence, and will not understand the implications if they re-offend.36 Youth justice conferencing was seen as having very limited value for people with an intellectual disability, both as victims and offenders.


3.32 The Executive Officer of People with Disabilities (PWD), Phillip French, stated that people with severe intellectual disability are usually not able to bring their own legal actions, and consequently, are denied the opportunity to participate in court processes unless a third party can gain standing to bring the action on their behalf.38

3.33 APLA raised concerns about recent legislation which provides that where the operator of a recreational activity warns of a risk then the operator is not liable if that risk eventuates. The operator does not need to prove that the person was capable of receiving or understanding the warning. According to APLA, if a disabled person is accompanied by a person with legal capacity, the disabled person is bound by the risk warning, even if the risk is not communicated to the incapable person.39

3.34 Some disability advocates expressed concern regarding the ability of people with intellectual disability to effectively participate in ADR, due to the difficulties in identifying and articulating their own interests in an ADR setting, and the likely scenario that there will not be an equal power base between the participants.40

People with a physical disability

3.35 Issues of physical accessibility were considered by many contributors to be the main barriers to effective participation in the legal system for people with physical disabilities and mobility problems. NSW Chamber Magistrates reported that 30–40 per cent of courthouses in NSW, particularly those in rural areas, presented accessibility difficulties for people with physical disabilities.41

3.36 Physical accessibility issues were also raised as a barrier preventing people with a physical disability from participating in the legal system by as a member of the jury. The inaccessibility of jury boxes for people in wheelchairs was raised as an issue.42

3.37 One submission stated that the issues of physical accessibility to courthouses have also served to exclude people with physical disabilities from positions within the justice system, whether as judges associates, tip staffs, clerks of courts, registrars, magistrates and judges.43 According to Phillip French of PWD, the failure of people with physical disabilities to see themselves reflected in the justice system is in itself a barrier to effective participation.44

People with sensory disabilities

3.38 The limited ability of people with hearing impairments, deaf people, deaf blind people and blind and vision impaired people to participate effectively in court proceedings was noted in the consultation process:


3.39 The Family Law Pathways Advisory Group (FLPAG) stated that deaf people are disadvantaged from participating in Family Law proceedings due to difficulties in obtaining interpreter services and the cost of obtaining those services.48

3.40 APLA stated that recent legislation which limits the liability of operators of recreational activity if they warn of a risk, may present problems for blind people who are unable to read warning signs. According to APLA, under the legislation, there is no duty on the operators to ensure that blind people are adequately warned before they are taken to have accepted the risks of the activity.49

3.41 The NADRAC discussion paper stated that people who are deaf are often unable to fully participate in mediation and conciliation conferences:


3.42 Some roundtable participants stated that people with hearing impairments have limited ability to fully participate in diversionary mechanisms such as youth justice conferencing.51

People with psychiatric disabilities

3.43 Several Chamber Magistrates expressed concern about the ability of people with mental illnesses to participate in formal court processes and environments, stating that they can feel agitated or uncomfortable in such circumstances.52

3.44 APLA commented that recent amendments which have shortened the limitation period within which a person can bring a civil claim for negligence, may impact on people with mental illness. They assert that such people should have the benefit of a longer period within which to commence legal action, as they may be unable to make decisions with legal implications while they suffer the disability.53

People who have acquired disabilities

3.45 Several roundtable participants reported that people who have acquired brain injury, and people who suffer from substance addictions, perceive that they will not be believed when they give evidence in court, or that they will not be treated fairly in court. This was said to significantly limit their confidence and ability to participate in court and tribunal processes.54

3.46 APLA stated that recent and proposed legislative changes in NSW regarding tortious liability and the law of negligence will act as barriers to the legal system for people who seek compensation for injury or disability acquired through negligence or accident. Some of the changes arising from the Civil Liability Act 2002 (NSW) which cause particular concern in this regard have already been referred to in paragraphs 3.16–3.18.55

3.47 APLA said that the Civil Liability Amendment (Personal Responsibility) Act 2002 in particular, may impact on people who suffer from substance addiction. The Act presumes a contribution on behalf of the injured person towards their own injury of no less than 25 per cent, if the injured person’s intoxication contributed in any way to the injury. This means that the injured person will have their damages reduced by at least 25 per cent, regardless of the facts of the case. According to APLA, this will prevent people in the community who choose to drink alcohol and take recreational drugs from having their claims assessed on their merits.56



People from culturally and/or linguistically diverse backgrounds


Interpreters

3.48 Roundtable participants identified the lack of availability of interpreters in some languages as a key barrier for people with limited English language skills. It was reported that this often caused court or tribunal hearings to be delayed or postponed to a date when an appropriate interpreter would be available.57

3.49 The reported difficulties associated with the dual system of arranging interpreters identified in paragraph 2.71 were also identified by community legal centre contributors as relevant to inhibiting effective participation in the legal system. The availability of funded interpreters supplied by the State Community Relations Commissions only being available for state matters, while Commonwealth-funded interpreters are only available for Commonwealth matters, causes particular problems for domestic violence matters. It was reported by several community legal centres that it is harder to get interpreters for family related domestic violence matters due to confusion over whether it is a Commonwealth or a State matter.58

3.50 Difficulties in speaking and understanding English were identified by Chamber Magistrates as substantial barriers to self-representation in the legal process.59

3.51 Community legal centre roundtable participants reported that in some tribunals, and conciliation meetings, matters sometimes proceed before an interpreter arrives because the conciliator believes that the matter is simple and can be resolved without an interpreter present. This was seen as inhibiting effective participation by the CALD party.


Cultural issues

3.52 Some roundtable participants expressed concerns regarding the lack of cultural sensitivity in some criminal law diversionary programs, which inhibit effective participation for CALD people. One roundtable participant recounted a situation involving the Drug Court to illustrate how alternative processes can fall down if they are culturally insensitive or inflexible:


3.53 Some roundtable participants stated that conciliation and mediation in discrimination matters may be inappropriate in some circumstances, as victims may be reluctant to negotiate with the perpetrator.62 The NADRAC discussion paper noted:
Tribunal processes in Migration matters

3.54 The Immigration Advice and Rights Centre (IARC) submission expressed concerns about the lack of a right to legal representation in Migration matters in Review Tribunals (Migration Review Tribunal, Refugee Review Tribunal and Administrative Appeals Tribunal). The submission noted that, while the Review Tribunals are, in general, helpful to unrepresented applicants, the ability of unrepresented disadvantaged people to participate effectively in tribunal processes is hampered by the complexity of the immigration legislation. One example mentioned by IARC is in relation to review of visa refusals and cancellations for people who have not met ‘the character test’.


3.55 Other areas of concern identified by IARC regarding the processes involved with the review of Migration matters include:
3.56 The effect of privative clauses in the Migration Act, particularly in relation to the ability of applicants to have decisions by the Refugee Review Tribunal further reviewed was cause for comment from two judicial figures during the consultation process. According to Justice Margaret Stone of the Federal Court of Australia, section 474 of the Migration Act effectively states that a decision of the RRT is final and conclusive and cannot be reviewed by a court.66 Justice Sackville expressed the following:
CALD women

3.57 The submission from the NSW Attorney General’s Department noted that a number of the barriers and issues for women from CALD backgrounds effectively participating in court, tribunal and ADR processes had previously been identified in the Women’s Legal Resource Centre report Quarter Way to Equal.68 The report documented the particular experiences, difficulties and needs of women from CALD backgrounds when trying to access the legal system to end domestic violence in their lives. It provided a list of 53 recommendations which aimed to break down structural barriers and address the legal access and service provision needs of migrant and refugee women. Many of these have been identified above. At the time of writing, the NSW Attorney General’s Department was in the process of reviewing the recommendations from that report.



Indigenous Australians


3.58 The NSW Attorney General’s Department stated that there is a significant amount of evidence to suggest that communication with Aboriginal people in courts and other legal settings is limited because of a lack of understanding, and indeed misunderstanding, on the part of non Aboriginal judicial officers and legal practitioners, particularly in regard to Aboriginal English and the non verbal aspects of Aboriginal communication.69

3.59 The NSW Department of Women’s submission referred to its 1996 report documenting women’s experiences in the courtroom, Heroines of Fortitude. The Department reported that this report found that Indigenous women were ten times more likely than non-Indigenous women to be complainants in domestic violence and sexual assault matters. The report concluded that Indigenous women seemed to experience greater distress during the court process than non-Indigenous women.


3.60 Both the Public Interest Advocacy Centre (PIAC) and the APLA stated that time limitation issues represent major barriers for Indigenous people who are part of the stolen generations. PIAC commented that it has acted for Indigenous victims of forcible removal policies who have been thwarted in their attempts to have the courts hear their grievances.71

3.61 Some community sector roundtable participants commented that it was difficult for Indigenous people to participate effectively in the Native Title Tribunal, due to perceptions that the Tribunal appears to represent the interests of farmers, pastoralists, and the Government.72

3.62 Several roundtable participants expressed concerns regarding the ability of Indigenous people, particularly young people, to participate in criminal diversionary programs. In particular, participants commented that police powers and discretion are not used impartially, stating that Indigenous young people are less likely to receive police cautions, and are under-represented in referrals to Youth Justice Conferences. They also stated that Indigenous people are more likely to be subjected to police exercising their move-on powers, to receive on-the -spot fines (particularly in rural areas), and to be over policed generally.73

3.63 The PIAC study of the accessibility of discrimination and complaints processes for Indigenous women in NSW (‘Discrimination …. have you got all day?’) identified a number of barriers to effective participation in the hearing process, including:


3.64 Roundtable participants also observed that Indigenous people are often intimidated to not pursue their rights in discrimination matters because of fear of having to negotiate with the perpetrator through the conciliation process.75


Children and young people


3.65 The Youth Justice Coalition (YJC) identified several barriers for children and young people participating effectively in court hearings:
3.66 In relation to civil proceedings, the YJC submitted that children face barriers to their participation in court processes by virtue of them lacking legal capacity due to their infancy. This denies them the opportunity to initiate or participate directly in legal proceedings. As an example, the YJC noted that children are often only able to act through an adult agent known as a ‘tutor’, ‘next friend’ or ‘guardian ad litem’.77

3.67 APLA submitted that recent legislative changes which limit the time limitations period within which actions for negligence can be brought may unfairly impact upon injured children who, by virtue of their legal incapacity, may not be able to bring proceedings until they are 18.78


3.68 APLA further submitted that as many injured children must wait until they have reached maturity before their injuries can be determined, their legal actions must be delayed accordingly. They stated that a longer limitation period is particularly important for children who have been sexually abused, as the nature of child sexual abuse means that the abuse is often not reported and the extent of the damage caused to victims may not be evident for many years.80

3.69 Other areas identified by APLA where the recent legislative changes in civil liability may impact upon children and young people include:


3.70 In Criminal Law matters, concern was expressed about the outcomes received by young people in relation to bail and sentences. It was observed that there are increasing numbers of young people who are refused bail or who can’t meet their bail conditions and are remanded in custody without having faced court.82 Several roundtable participants also expressed concerns about the lack of diversionary options available for young people in the Children’s Court in rural and regional areas, and the increased likelihood of young people receiving a custodial sentence in rural areas.83

3.71 As stated in paragraph 3.62, roundtable participants expressed concerns about the inability of many Indigenous young people to participate in criminal diversionary programs, due to inappropriate exercise of police discretion.84

3.72 In relation to effective participation in Tribunal hearings, the Youth Action and Policy Association (YAPA) submitted that for disadvantaged young people, tribunals such as those dealing with Centrelink issues, tenancy issues or discrimination issues present many access problems. These include:


3.73 NADRAC stated that significant power imbalances may arise in ADR processes in child protection matters, where the child, the parent or parents, family relatives, the foster parents and staff from community organisations and the Department of Children’s Services may all be involved.86

3.74 Where children are the victims of abuse and violence, NADRAC recognised that this can impact on the ability of the child to participate effectively in the process. Accordingly, it has advised that ADR is inappropriate in such circumstances, particularly where the parents dispute that the child is being abused.87



Elderly people


3.75 APLA submitted that the recent legislative changes to civil liability laws regarding thresholds on damages, referred to in paragraph 3.69, will impact on elderly people. Because elderly people are more likely to be unemployed or low income earners, and have less likely future earning potential, it will be more difficult for them to reach the threshold for non-economic loss.
3.76 One submission noted that many elderly people struggle to participate effectively in court hearings due to being unable to properly hear the proceedings.90


People in rural, regional and remote areas


3.77 Lack of access to courts was the most commonly identified barrier for effective participation in court processes for people in rural and regional areas. Community legal centre workers reported that in some regional areas, court sittings take place only once every six months.91 The Law Society of NSW Family Law Committee reported that the Family Court circuits to rural and regional areas, including for interim hearings, have been significantly reduced, limiting access in these areas. The Committee reported that approximately six or seven Family Court registries have been closed across Australia in rural and regional areas in recent years.92

3.78 Both Legal Aid NSW and the Law Society of NSW expressed concerns that Local Courts in rural areas are conducting fewer Family Law matters and becoming primarily criminal courts, and that magistrates are increasingly referring Family Law matters to the nearest Family Court. This often involves substantial travel for litigants.93 Legal Aid NSW further noted that as access to Local Courts declines, the ability of people in rural and regional areas to effectively participate in the legal system and attend hearings becomes directly affected by their ability to access affordable and regular public transport.94

3.79 In its Managing Justice Report, the ALRC commented that litigants in rural and regional areas have far less access to quality experts who can provide advice, reports and evidence in court hearings.95

3.80 Several roundtable participants stated that outcomes in Criminal Law proceedings are more limited in rural and regional areas, with bail hearings more likely to result in the defendant being placed in custody, due to the lack of bail hostels. They also noted that the lack of diversionary programs in rural and regional areas makes custodial sentences more likely.96 Over policing of certain groups in rural and regional areas (e.g. Indigenous people, young people), and greater use of on-the-spot fines powers were also areas of concern.97

3.81 Concern was expressed about the infrequent visits by tribunals to rural and regional areas. This was seen as entrenching the level of ignorance of options and opportunities to address certain legal issues, as many disadvantaged rural people continue to be unaware of the existence of those tribunals.98



People with low levels of education and literacy


3.82 Chamber Magistrates commented that people with limited education and poor English literacy face substantial barriers to self-representation because of the complexity of legal processes.99

3.83 Community legal centre roundtable participants stated that many tribunal procedures require written applications and correspondence, and these present barriers for people with low levels of literacy. This was particularly noted in relation to the NSW ADB and HREOC.100

3.84 APLA commented that recent legislative changes in NSW limiting the liability of operators of recreational activities, where they warn of a risk, may adversely impact on people with low levels of literacy. People who are unable to read such warnings will be prevented from seeking compensation for injuries sustained as a result of negligence.101



Women


3.85 The most commonly reported barriers for women to effective participation in court processes were as witnesses in sexual assault cases, domestic violence applications and in Family Law proceedings. The NSW Department for Women reported that for a victim of sexual assault, appearing as a witness in a court hearing can be particularly harrowing.
3.86 The NSW Department for Women quoted findings from the Heroines of Fortitude report in relation to women’s experiences in the courtroom in sexual assault cases:
3.87 The Department also quoted the Bureau of Crime Research and Statistics and the Australian Bureau of Statistics figures to support its assertion that women who report sexual assault matters and go through a court hearing are unlikely to receive the satisfaction of securing a conviction:
3.88 According to the Department, the findings from Heroines of Fortitude demonstrate the obstacles women face in the courtroom in relation to sexual assault cases.105

3.89 The Department for Women also identified several problems in relation to the Apprehended Violence Order (AVO) Scheme as a means of protection for women in domestic violence situations:

3.90 The inappropriateness of Family Court based ADR processes such as mediation and conciliation for women who have been in domestic violence situations was identified by the Women’s Legal Resource Centre (WLRC), the NSW Department of Women, and by NADRAC:
3.91 WLRC also submitted that the growing emphasis on mediation is resulting in many intractable cases with serious issues which need to come before a court and be adequately prepared and presented, being diverted away from court. It submitted that this is of particular concern in children’s matters under the Family Law Act.109

3.92 APLA submitted that women will be disadvantaged by recent legislative changes to introduce thresholds on damages, as women are more likely to be stay at home parents, and therefore unable to claim for compensation for lost earnings.110

3.93 The NSW Attorney General’s Department noted that several of the barriers and issues in relation to women from CALD backgrounds effectively participating in court, tribunal and ADR processes had previously been identified in the Women’s Legal Resource Centre report Quarter Way to Equal111 in 1994. At the time of writing, the NSW Attorney General’s Department was in the process of reviewing the recommendations from that report.112



People living in institutions and people released from institutions


3.94 Several roundtable participants commented that prisoners face distinct barriers in participating in the legal system. In particular:
3.95 APLA submitted that people serving a term of imprisonment may be disadvantaged by legislative changes to restrict the time limitations period within which civil claims can be brought.114


People on low incomes


3.96 The most common barriers identified for social security recipients and low-income earners to effective participation in courts, tribunals and ADR processes, related to the cost of litigation. Particular issues identified included:
3.97 APLA submitted that people on social security and low incomes may be disadvantaged by recent legislative changes which have introduced thresholds on damages.119

3.98 The NADRAC discussion paper stated that, notwithstanding the cost advantages of ADR, it is not cost free, and legal advice and representation in ADR processes is often desirable. This presents problems for people who have low incomes.



Homeless people


3.99 The Legal Counselling and Referral Centre (LCRC) submitted that a major barrier for homeless people in effectively participating in court, tribunal or ADR processes is a lack of confidence in the legal system and a lack of confidence that their rights will be respected and recognised.


Mechanisms and innovations to assist disadvantaged people


3.100 The NSW Attorney General’s Department reported a number of recent initiatives which have facilitated more effective participation in the legal system by disadvantaged people. These include:
3.101 Many courts have recognised the need to reduce delays in litigation processes, and have developed systems of case management and judicial intervention or activism in the management of cases by judicial officers.124 A specific form of case management has been introduced in the Federal Court, called the Individual Docket System (IDS). This involves the same judge dealing with a case from beginning to end. This has the benefit of the docket judge knowing the case and being able to manage and tailor processes for the particular case. The Court’s annual reports indicate that that there has been a continuing improvement in case duration since the introduction of IDS.125 An in depth study of the Federal Court’s Individual Docket System was undertaken by the Law and Justice Foundation of NSW in 2002.126

3.102 The role of the Court Support Scheme in facilitating more effective participation from disadvantaged people in court processes was recognised by a number of contributors. The Court Support Scheme was established in 1982 to provide a community link with the court system. It is staffed by 45 active working volunteers, who work approximately 4000 hours annually. The volunteers assist anybody affected by the court system within court precincts, including offenders, victims, family of participants, and witnesses. They provide confidential support and information to people before, during and after court appearances. The Scheme mostly operates in the Sydney metropolitan area, servicing 17 metropolitan local courts. Last year they gave assistance to an estimated 35 000 individuals. According to its submission, the Scheme receives minimal funding, and faces difficulty in meeting its overhead costs (administration, office overheads, communication, transport, insurance for volunteers, and so on). It reported that due to inadequate resourcing, it cannot provide services to all Local Courts, or in rural and regional areas.127

3.103 The Scheme reports that people who are not eligible for legal aid and cannot afford a private solicitor are the most common users of their service. The assistance they provide includes:


3.104 The Commonwealth Attorney-General’s Department submitted that the establishment of the Federal Magistrates’ Service improved the accessibility of Federal Courts.129

3.105 The ALRC noted in its Managing Justice Report that many courts have initiated programs to assist unrepresented litigants. These include court orientation and referral services, and information on websites. The homepages of many courts and tribunals provide procedural information, application forms and, in some instances, details of how to make an application, describing hearing processes, contact details and addresses. Courts and tribunals also provide brochures, videos and tape recordings, all of which provide step-by-step instructions for parties. The Family Court also runs information sessions on court services and processes and the impact of parental separation on children.130

3.106 The Law Society of NSW Family Law Committee noted that the development of plain English and online forms have greatly improved access to court processes for disadvantaged people. However, the Committee also noted that this has caused some problems:


3.107 Submissions and roundtable participants recognised the important role of mediation, conciliation and other ADR mechanisms in the court system, as important developments which assist civil litigants to resolve their disputes while avoiding the expense, time and emotional strain associated with contested hearings.132 The NADRAC discussion paper commented that ADR processes are often praised for their accessibility, their lack of formality, and their ability to give the participants greater control over the content of their dispute.133

3.108 Roundtable participants also noted that the manner in which tribunals often deviated from the formal, adversarial model of court litigation, made it easier for disadvantaged people to participate in their processes. In particular, the fact that tribunals usually will not award a costs order against the unsuccessful party, and allow community workers to act as advocates for disadvantaged applicants, enhances their accessibility for disadvantaged people.134



People with disabilities


3.109 The NSW Attorney General’s Department has developed a Disability Strategic Plan (DSP), with the aim of enhancing access to the Department’s services and facilities. Several aspects of the DSP seek to facilitate more effective participation in the legal system for people with disabilities including:
People with an intellectual disability

3.110 The NSW Attorney General’s Department reported that the recently enacted Bail Amendment (Repeat Offenders) Act 2002 (NSW) requires the court to consider the circumstances of a person with an intellectual disability in considering bail.136

3.111 The NSW Attorney General’s Department reported that in August 2000 the Anti-Discrimination Board hosted a forum for advocacy and support organisations working with people with intellectual disabilities. The forum discussed how the Board’s services, particularly the complaints service, could be better adapted to suit people with intellectual disabilities.137

3.112 Roundtable participants reported that providing support persons to attend court hearings with people with intellectual disability assisted them in participating more effectively in the processes.138

People with a physical disability

3.113 According to NSW Attorney General’s Department, its DSP places a strong emphasis on physical access to the court premises. Whenever maintenance work is carried out on a courthouse, physical access provisions are integrated into the specifications. A priority for access provision has been placed on regional courthouses where juries are convened so that people with physical disabilities will have the opportunity to participate in juries.139

People with sensory disabilities

3.114 People with Disabilities welcomed the NSW Law Reform Commission inquiry into the exclusion of people who are deaf and blind from jury service.140

People with psychiatric disabilities

3.115 The NSW Attorney General’s Department advised that Local Courts, in liaison with the NSW Health Department (Corrections Health), have established the Court Liaison Nursing Service to ensure that clients with a psychiatric disability are appropriately assessed and supported through the court process. This service currently operates at Newcastle, Central, Parramatta, Wollongong, Penrith, Sutherland, Liverpool and Lismore Local Courts. A registered psychiatric nurse with an understanding of court procedures is located at each court and is able to:


3.116 The program is designed to facilitate earlier assessment of people with psychiatric disabilities who appear before the court and ensure that more appropriate sentencing decisions are made. Positive outcomes include:
People who have acquired disabilities

3.117 The NSW Attorney General’s Department reported that the establishment of the Parramatta Adult Drug Court has been an important development for people who suffer from substance addiction. The Department’s Crime Prevention Division has implemented the Magistrates Early Referral Into Treatment (MERIT) program in eight areas: South-West Sydney, Mid-West Sydney, Hunter region, Greater Murray, Macquarie, the Central Coast, Northern Rivers and Illawarra regions. The program is designed for less serious repeat offenders facing drug-related charges who show potential for treatment and rehabilitation, and provides assistance such as counselling, methadone and detoxification.143

3.118 Some roundtable participants expressed concerns about the operation of the Drug Court, indicating that when the court adopts a punitive response, it assumes that individuals who come before it are equally positioned and have given informed consent to its processes. This is not always the case for members of some particular disadvantaged groups.144



People from culturally and linguistically diverse backgrounds


3.119 The NSW Attorney General’s Department reported that Local Courts have negotiated a memorandum of understanding with the Community Relations Commission to ensure that the following categories of clients from a non-English background have access to interpreter services on a fee exempt basis:
3.120 Another memorandum of understanding between the NSW Attorney General’s Department, the Community Relations Commission and NSW Police is under development which will introduce new procedures to prompt Police to identify interpreter needs and make direct bookings for court appearances. These arrangements will help to ensure that defendants who have had bail refused by Police do not spend any longer than necessary in custody because an interpreter is not available at their first appearance date.146

3.121 The Department also referred to the Interpreters and the Law training program, which aims to improve the skills of interpreters and the quality of interpreter services provided to the New South Wales court system and to ensure that the recipient party can understand and effectively participate in court proceedings. The program commenced in October 2000. To date 384 interpreters from 53 language groups, including AUSLAN, have successfully completed the training program.147

3.122 The ALRC reported that the Federal Court has facilitated, through the bar associations and the Department of Immigration Multicultural and Indigenous Affairs, arrangements for pro bono assistance for refugee and migration judicial review cases.148

3.123 As stated in paragraphs 3.57 and 3.93, the 1994 Women’s Legal Resource Centre report Quarter Way to Equal149 documents the particular experiences, difficulties and needs of women from CALD backgrounds when trying to access the legal system to end domestic violence in their lives. The Violence Against Women Specialist Unit (VAWSU) has undertaken to review the Report, to assess what progress has been made on the recommendations. The review is examining whether there has been any enhancement of migrant and refugee women’s access to legal services and what prevention strategies have been established to address violence against women.150



Indigenous Australians


3.124 The NSW Attorney General’s Department’s submission referred to the Aboriginal Client Service Program within Local Courts, which aims to provide targeted and responsive service delivery to Aboriginal service users. The specific program objectives are to:
A significant component of the program was the creation of fifteen Aboriginal Client Service Specialist positions based at courts in the following areas which have large Aboriginal communities and/or have a high proportion of Aboriginal people appearing at Court: Bateman’s Bay, Bourke, Broken Hill, Campbelltown, Condobolin, Dubbo, Lismore, Moree, Mt Druitt, Nowra, Penrith, Taree, Toronto, Wagga, and Walgett.151

3.125 The Aboriginal English project initiated by the NSW Attorney General’s Department focuses on Aboriginal defendants and witnesses in courts and other legal settings. The objectives of the project are to:


3.126 The piloting of Circle Sentencing in Nowra in 2002 was identified by a number of submissions and participants as a positive initiative aiming to empower those who are most affected by crime by involving community members in the decision about what happens to offenders.153 Circle courts operate on the understanding that the underlying causes of crime are often broader than a single incident and that there is a need for the active participation of the whole community to reduce crime.
3.127 According to the NSW Attorney General’s Department submission, Circle Courts adopt particular procedures for matters coming before it. Each person introduces him or herself and explains why s/he is there. The facts of the case are then presented to the circle by the crown and the defence is then allowed to comment. The discussion that follows in the circle focuses on:
This discussion usually takes from 2-3 hours and in all cases the offender must address the circle. The victim is encouraged to make a statement of the impact of the crime on him/her. The format of the circle encourages free discussion and allows for the participation of the victim and offender in that discussion. At the end of the circle goals are set for the offender such as curfew, work programs, abstention from alcohol, and anger management programs. The circle is then adjourned and the court reconvened and the sentence is passed. Members of the circle often meet several months later and hear from the support group about the offender’s progress. If the offender does not meet the conditions a regular court deals with it.
3.128 The value of circle sentencing was encapsulated by a case study recounted by one roundtable participant:
3.129 The NSW Coalition of Aboriginal Legal Services (COALS) sounded a note of caution about circle sentencing, indicating that further studies need to be undertaken in relation to the successful outcomes of a circle sentencing proceeding before their success in the NSW context is proven.157

3.130 The NSW Attorney General’s Department will shortly develop the NSW Aboriginal Justice Plan, which will address identified shortcomings in the implementation of the recommendations from the Royal Commission into Aboriginal Deaths in Custody. The Justice Plan will include jurisdictional targets for reducing the rate of over-representation of Indigenous people in the criminal justice system, as well as methods of service delivery and strategies for monitoring and evaluation.158

3.131 The Family Law Pathways Advisory Group report emphasised the importance of employing Indigenous staff as a key ingredient in improving participation in the court system for Indigenous people. It stated that the experience of the Family Court in developing appropriate services for Aboriginal and Torres Strait Islander communities through consultation provides a model for how other service providers in the system might proceed.



Children and young people


3.132 Many submissions and roundtable participants stated that the establishment of diversionary schemes for young offenders under the Young Offenders Act 1997 (NSW) was an important development for children and young people in the legal system. A key identified feature of the Young Offenders Act is the youth justice conferencing scheme, which seeks to bring together the victim(s), the offender(s) and other interested parties to work towards a mutual resolution outcome, using restorative justice principles. The NSW Department of Juvenile Justice conducts approximately 1200-1500 youth justice conferences a year. The Director of Youth Justice Conferencing within the Department of Juvenile Justice, Ms. Jenny Bargen, outlined the scheme at the Access to Justice workshop:
3.133 The Youth Action and Policy Association (YAPA) stated that restorative justice conferencing provided a positive model for participation of young people in the legal system because:
3.134 Several roundtable participants were also positive about youth justice conferencing, as it:
3.135 However, several concerns were expressed by some roundtable participants regarding aspects of the Young Offenders Act 1997. In particular, some participants were critical of the way in which police exercise their discretion under the Act, and particularly the seemingly discriminate application of cautions. They indicated that there was an apparent lack of accountability of police for how they exercise their discretion in such matters.163

3.136 The Youth Justice Coalition (YJC) referred to the report Young People’s Experiences of the Young Offenders Act,164 which expressed concerns as to whether young people were given sufficient information about diversionary options available and the consequences of withholding consent. It stated that young people often feel pressured into consenting to diversion programs (for example, to avoid a court appearance). The research findings indicated a disregard for procedural safeguards for young people, including the presumption of innocence, the right to be informed promptly and directly of the charges, the right to silence, the right to access legal assistance and the right to the presence of a responsible adult. The report stated that proceeding to caution or conference where the procedure for obtaining the admissions of guilt does not comply with the Act (i.e. no adult present, legal advice not obtained) amounted to an erosion of procedural safeguards.165

3.137 The report indicated that review and accountability measures under the Young Offenders Act are not adequate:


3.138 The research also reported that some young people who had attended youth justice conferences under the Act had received outcome plans with penalties which were more severe than the penalties which a court would have imposed.167

3.139 It was pointed out that the Children (Care and Protection) Act 1997 (NSW) makes provisions for the use of family group conferences in developing outcomes for child protection matters. This was considered a worthwhile initiative to allow more effective participation of young people in these matters. However, these provisions have yet to be put into practice in NSW.168

3.140 Many roundtable participants noted that jurisdictions in which there was less formality, and where the strict rules of evidence do not apply, were more likely to encourage effective participation of children and young people. The Children’s Court and the Residential Tenancy Tribunal were cited as positive examples.169



People in rural, regional and remote areas


3.141 It was stated during the consultation process that visits and circuit hearings to rural and remote areas by Tribunals enhances effective participation by people in those areas.170


Women


3.142 In recognition of the issues raised by the Heroines of Fortitude report published by the NSW Department for Women, the Violence Against Women Specialist Unit of the NSW Attorney General’s Department has commissioned a Status Report to:
3.143 The NSW Department for Women submitted that the Apprehended Violence Order (AVO) Scheme has been shown to be an effective means of protection for women in domestic violence situations. In support it quoted from a 1997 evaluation of the scheme by the NSW Bureau of Crime Statistics and Research, which reported that more than 90 per cent of people who had been awarded an AVO felt that they had benefited from it.172

3.144 The NADRAC discussion paper stated that mediation and conciliation hearings may be an effective way to resolve disputes involving discrimination, as the process of negotiation and confrontation may encourage the victim to feel that their pain and powerlessness has been afforded recognition.173



Homeless people


3.145 The Legal Counselling and Referral Centre submitted that centres such as Rough Edges and the Wayside Chapel, play a vital role for homeless people who have to attend court, as they provide support people during the court process.174


Suggestions to facilitate more effective participation


Court processes and procedures

3.146 While most submissions recognised the need for courts and tribunals to reduce delays and, where possible, to simplify procedures, Justice Sackville sounded a note of caution about the capacity of the legal system to embrace wide-ranging changes:


3.147 The Law Society of NSW Access to Justice Report recommended that a docket case management system be introduced into superior courts in NSW, in which each judge has responsibility for the management of a specified list of cases (assigned by the Chief Justice, list judge or head of division), from when the process is initiated through to the determination of the matter, including the supervision of divergence of each case into ADR or other dispute resolution techniques.176

3.148 Mr. Tony Abbott of the Law Council of Australia has suggested that the development of case management schemes should also consider the implications for the litigants themselves:


3.149 The Law Society of NSW Access to Justice Report made a number of additional recommendations in relation to court jurisdictions and processes, with a view to enhancing efficiency and accessibility. These included:
3.150 Some submissions recommended additional resources for court support schemes. The NSW Court Support Scheme indicated that it needed more resources and support so that it could expand its services into rural and regional areas. It also indicated that it needed financial support for its volunteers, so that they would not be out of pocket for their travel expenses.179

3.151 The Court Support Scheme suggested that changes to the physical layout of courts would assist in making them less intimidating environments.180

3.152 NSW Chamber Magistrates indicated that Local Courts needed more resources so that sufficient time and attention could be given to all disputes coming before them, without leading to delays in court lists.


3.153 Community roundtable participants expressed a need for re-education programs for judges.182

Unrepresented litigants

3.154 Both the Law Council of Australia and the Law Society of NSW strongly asserted the need for increased funding for legal aid for legal representation to address the problem of increased numbers of unrepresented litigants in court.183

Costs of litigation

3.155 The Law Society of NSW recommended that in jurisdictions where the rules preclude the award of costs, there should be provision for fees to be remitted in appropriate circumstances (e.g. where the applicant is the recipient of legal aid or pro bono, or the resulting order demonstrates unfair or inappropriate conduct by the government).184

3.156 Some participants in the National Pro Bono Workshop recommended the establishment of disbursement funds and the expansion of court fee waiver schemes, which would assist in removing some of the financial barriers to initiating litigation.185

Limitation periods

3.157 APLA recommended that limitations periods for civil claims relating to injury and death should be lengthened to at least six years.186

Restorative Justice processes

3.158 Several roundtable participants recommended that restorative justice options also be available for adult offenders, particularly young adult offenders.187

3.159 Several participants stated that restorative justice principles have a place in civil claims, where monetary damages may not be the desired outcome.


3.160 Roundtable participants cautiously advocated greater use of alternative processes using restorative justice principles, but indicated that such schemes needed adequate reliable funding, to allow for expansion and incentives for success.189

Tribunals

3.161 The Inner West Tenancy Advice Service recommended increased funding for Tenants’ Advocates to attend Residential Tenancy Tribunal hearings, to facilitate participation in tribunal hearings by tenants.190

3.162 Roundtable participants recommended the establishment of an independent advocacy service to take a proactive stance on human rights/discrimination issues, and initiate complaints to HREOC on behalf of disadvantaged people.191



People with disabilities


3.163 Several roundtable participants commented on the importance of education for lawyers, judges and magistrates covering issues facing people with intellectual disability, and particularly how such issues can effect offending behaviour, or manner, responses and performance in court.192

3.164 It was recommended that being able to lead expert evidence as to the effect of intellectual disability on offending behaviour, and also to assist in the consideration of sentence, would assist courts to make more informed decisions.193

3.165 APLA recommended that limitation periods for civil claims relating to negligently caused latent diseases should only begin once the plaintiff is aware that they have the injury and that they may have legal rights against the defendant.194



People from culturally and linguistically diverse backgrounds


3.166 Community legal centre participants recommended that access to interpreters be available for CALD people at every stage of proceedings, including at the initial advice stage.195


Indigenous Australians


Aboriginal Court Days

3.167 The Coalition of Aboriginal Legal Services (COALS) reported that a number of options are being explored around Australia for diversionary systems to the usual court practices for Indigenous people. One such alternative positively reported is the ‘Aboriginal Court Day’. Such a scheme has been piloted in South Australia at the Port Adelaide Magistrates’ Court, and has become known as the ‘Nunga Court’. The initiative involves Aboriginal offenders being listed for sentence on a particular day. The Court continues to operate in its capacity as a Magistrates’ Court, but allows active input into the sentencing process by Indigenous people. Proponents argue that the process provides for a number of benefits to the Indigenous offender, the Indigenous community, and for the community at large.196 The aims of the Nunga Court are:


3.168 COALS describes the procedures of the Nunga Court as follows:
3.169 Three areas of success with the Nunga Court were identified by COALS:
3.170 While COALS offered considerable support for the operation of the Nunga Court, it expressed concerns about some aspects of its operations, and made recommendations to address these:
3.171 In spite of these concerns, COALS commented that providing a scheme such as the Nunga Court in NSW could provide an alternative to circle sentencing. By providing such alternatives which can be mutually inclusive, different processes can be employed, depending on the nature of the crime, the perspective of the victim and the role that may be taken by families and the general community.
Customary law

3.172 Some roundtable participants noted that the incorporation of Indigenous customary law into the Australian legal system would assist in enhancing more effective participation in the system for Indigenous people.202 The Family Law Pathways Advisory Group (FLPAG) noted this in relation to the operation of the Family Law Act in particular:


3.173 The FLPAG report also stated that as an alternative to Family Law litigation, a new pathway of Indigenous Family Law conferencing needs to be developed, based on the principles used in circle sentencing in the criminal jurisdiction. When litigation is appropriate, the community obligations of Indigenous peoples should be fully considered in arriving at residence and custody decisions204

Limitation periods

3.174 PIAC submitted that state governments should legislate to remove strict time limits where there is good reason to do so, in particular,


Tribunals

3.175 In its study of the accessibility of discrimination and complaints processes for Indigenous women in NSW (‘Discrimination ….. have you got all day?’), PIAC and the Wirringa Baiya Aboriginal Women’s Legal Centre made a number of recommendations to facilitate Indigenous participation in discrimination matters. These included recommendations for the Anti-Discrimination Board and the Human Rights and Equal Opportunity Commission to:


Other recommendations included:


Children and young people


3.176 Two important general principles which were identified in the consultation process, which should underly initiatives to enhance the ability of children and young people to participate in the legal system were:
3.177 Several submissions and roundtable participants recommended that all courts, tribunals and complaints bodies adapt their procedures to suit the needs of children and young people. Particular issues where greater consideration needs to be given included time frames, delays, and the formality of proceedings.209

3.178 The Youth Justice Coalition (YJC) recommended that courts, complaints and appeals procedures should fast track children’s and young people’s matters to ensure that children are able to participate in the proceedings on their terms. In addition, the YJC recommended that Court Support Schemes be resourced to provide services in Children’s Courts, so that children and young people are properly informed and supported throughout the court process.210

3.179 The National Women’s Justice Coalition (NWJC) recommended the funding of a pilot for a designated Children’s District and Local Court for matters involving children who are victims of personal violence offences (such as child sexual assault and assault). This would include specialist court staff and an independent expert interviewer who would interview the child and assist the court with the child’s evidence.211

3.180 A statutory review process for children in care that is administered by an independent authority, was recommended by several roundtable participants.212 The Queensland Children Services Tribunal was identified as a possible model for such an authority. The Children Services Tribunal is an independent body that answers directly to the Queensland Attorney-General and the Queensland Minister for Justice. It is quite separate from other government bodies such as the Department of Families or the Commission for Children and Young People. The Tribunal gives children and young people the right to have their say on decisions about them in an informal and less structured way than a court. The Tribunal can review some decisions made by the Department of Families or the Commission for Children and Young People. Children, parents, and foster carers can apply to the Tribunal to review a decision. A preliminary conference is held first to discuss the decision being reviewed. If the matter is not resolved at this conference, then a hearing is set down at which time the Tribunal will make a decision.213



People in rural, regional and remote areas


3.181 The Law Society of NSW Access to Justice Report commented on the importance of court services and court sittings in remote communities, particularly at a time when rural communities are enduring the withdrawal of a wide range of government and commercial services.214

3.182 The FLPAG canvassed the following possible solutions to improve court services in rural and remote areas:


3.183 Consultations with people from rural areas identified the importance of people at the local level to increase the awareness of tribunals, so that people know about their services, and feel empowered to access them.216


People with low levels of education and literacy


3.184 Chamber Magistrates suggested two strategies to assist people with low levels of education and literacy to participate more effectively in court:


Women


3.185 The National Women’s Justice Coalition made three recommendations to enhance women’s participation in the legal system:


People on low incomes


3.186 Several contributors expressed concerns regarding the fact that the Federal Magistrates Service, which now hears discrimination matters, is a costs jurisdiction. PIAC submitted that when operating in its ‘discrimination jurisdiction’, the Federal Magistrates Service should be a ‘no-costs’ jurisdiction, so that low income people are not disadvantaged.
3.187 Some roundtable participants advocated imbalanced costs rules, where complainants in discrimination matters do not get costs awarded against them if unsuccessful, but would receive a costs order in their favour if they were successful.220

3.188 Some roundtable participants advocated that the Legal Aid Commission introduce a cost-indemnity legal aid grant that would be available in cases which do not satisfy the existing criteria for legal aid grants. Such a grant would, without covering the client’s actual litigation expenses, provide that client with indemnity for any order of costs made against them should they be unsuccessful.221

3.189 The Law Society of NSW suggested the development of Contingency Legal Aid Funding, which would meet the legal costs of eligible litigants, including the other side’s lawyer’s fees if they lose their case. However, if such litigants win, they must agree to pay into the fund a proportion of damages recovered. The administrators of the fund would assess the merits of a case in a manner similar to the assessment of cases under the current legal aid system.222

3.190 The Law Society of NSW also considered that the Government must take action to allow litigants to recover their costs when the court makes an error in law or the prosecution brings a case which is ultimately found to have no proper basis.223

3.191 Some roundtable participants advocated that litigants should make greater use of the right to apply for a cost ruling at the outset, as exists, for example, in the Federal Court. This would limit the amount of costs that might be ordered against the unsuccessful party.224



Homeless people


3.192 The Legal Counselling and Referral Centre (LCRC) stated that there is a need to ensure that homeless people receive respect and understanding without judgment from all people involved in the conduct of court and tribunal hearings.225

3.193 The LCRC submitted that reducing delays in having court matters dealt with was important to ensure the attendance of homeless people at court, and would free up scarce resources of support services, allowing them to provide other services to homeless people.


3.194 The LCRC also recommended utilising creative alternatives to sentencing for homeless people, such as:


Ch 4. Obtaining assistance from non-legal, advocacy and complaint-handling bodies


4.1 This chapter explores the issues of accessing assistance from non-legal advocacy and support, which were identified through the consultation process, as well as issues relating to government and industry-based complaint bodies. It considers barriers for disadvantaged people, mechanisms and innovations which enhance access, and suggested solutions to further enhance the accessibility of these advocacy and support options.

4.2 For the purposes of this project, non-legal advocacy and support, and complaint-handling bodies includes:



Barriers in existing mechanisms


Lack of resources for community agencies

4.3 Several roundtable participants identified lack of funding and staff knowledge as key factors inhibiting the effective provision of services. There were numerous criticisms of the demands placed on non-government organisations as a result of government funding requirements:


4.4 Roundtable participants reported a large staff turnover in the community sector, making it difficult to keep all community workers up to date. They commented that most community organisations do not have a training budget to pay for courses, and their staff are already over-stretched, working excess hours.3

4.5 Several participants stated that community workers did not know to whom to refer people, partly as a result of high turnover and lack of training. Many expressed a need for more of an interagency approach to referrals, and more awareness of what other agencies exist. However, others commented that this has been tried many times in the past and has not worked.


Outsourcing of Family Court Counselling Services

4.6 The Law Society of NSW Family Law Committee commented that Family Court based mediation services have been drastically reduced, resulting in increased numbers of applications with the court, and less likelihood of early resolution. It reported that the Family Court Voluntary Counselling service used to provide a widely respected, vital service which enabled parties to resolve their issues at an early stage, but that being outsourced has effectively dismantled it. Previously the services were court based, with expertly trained staff, familiar with the issues. The Committee stated that the outsourced services are not appropriately trained to deal with the issues, and often find themselves unable to deal with the situations presenting to them. According to the Committee, this is resulting in more people lodging applications with the court, as matters are no longer able to be resolved at an early stage.5

Complaint-handling bodies

4.7 Some roundtable participants from community legal centres stated that many industry-based complaint bodies appear to work on an inquisitorial model, which, while making complaint procedures simple and fast, results in people placing themselves outside the legal framework. The participants expressed concern that complainants do not necessarily have an assurance that these complaint-handling bodies will handle their complaint thoroughly and appropriately, as well as concerns about the public accountability and transparency of these bodies.6

4.8 The Telecommunications Industry Ombudsman (TIO) Consumer Consultative Forum noted that the level of awareness of industry codes amongst consumers and caseworkers was very low. The Ombudsman acknowledged chronic non-compliance by carriers with the Complaint-Handling Code’s requirement that they tell customers about the TIO when they fail to reach a resolution to a customer complaint. He conceded that the TIO could probably better communicate the limits to its jurisdiction better.7

4.9 Several participants in the TIO Forum commented that internal complaint-handling processes of telecommunication companies were inadequate for individual consumers calling about their own service.8

4.10 The Energy and Water Ombudsman of NSW (EWON) commented in its submission that the main source of information about EWON is the information printed on utility notices and brochures. Customers who are not connected to the network, such as LPG gas users or residents in residential parks do not receive these notices and will have more difficulty in identifying sources of assistance.9



People with disabilities


Community services

4.11 The NSW Law Reform Commission Review of the Disability Services Act (DSA), found:


4.12 People with Disabilities (PWD) stated that it is constantly receiving reports that the fear of retribution or withdrawal of service acts as a barrier to people with disability exercising their rights. PWD submitted that the parlous state of funding and the lack of alternatives for people discourages them making complaints about services. This particularly relates to personal care or other essential services. According to PWD, there is a lack of legislation to protect complainants from retribution by government or non-government service providers, and a lack of ability or will to highlight and punish such activity.11

4.13 The Youth Justice Coalition (YJC) submitted that there is a distinct lack of independent advocacy for children with disabilities in the Australian health care system when decisions are made about their treatment.12

ADR services

4.14 The National Alternative Dispute Resolution Advisory Council (NADRAC) discussion paper stated that access to many dispute resolution services can be highly problematic if not impossible for many people with disabilities. Disputes may be multi-faceted and involve several jurisdictions and different regulatory systems, each of which may incorporate quite different approaches to the issues. This can be confusing and intimidating for people with disabilities. In addition, the thought of confronting one’s protagonist in a closed environment in the course of ADR proceedings may be intimidating for some people with disabilities.13

4.15 The NADRAC discussion paper stated that in the eyes of the non-disabled, the persuasiveness of a story can be substantially diminished if it is delivered with the aid of a signboard, or with a stutter; or by someone whose physical appearance prompts discomfiture or repugnance in others. This can limit their ability to participate in ADR processes.14

4.16 The NADRAC discussion paper stated that social attitudes to disability affect the self-image and self-esteem of many people with disabilities, and it may be difficult for them to feel entitled to assert their own needs and interests in ADR processes. It stated that there are particular issues arising from the social response to hidden disabilities such as epilepsy and intellectual disability, which may result in a power imbalance in dispute resolution.

4.17 The NADRAC discussion paper also referred to situations where a person with a disability is in conflict with someone upon whom they are dependent to some degree for their care and support. In this sort of situation, it stated that it may be extremely difficult for the person with the disability to assert himself or herself sufficiently to take any action for redress. Even if they do, the caregiver is likely to have a power advantage in any dispute resolution proceedings that may ensue.15

4.18 The discussion paper pointed out that mediation and conciliation require parties to be able to communicate verbally in a group - to be able to hear and observe and understand other people’s communications and to participate effectively in those verbal transactions themselves. Participation may also require participants to read printed material before or during the process. For some people with disabilities, these things may be extremely difficult if not impossible.16

People with an intellectual disability

4.19 The NSW Council for Intellectual Disability stated that there was a fundamental lack of support services for people with an intellectual disability to prevent such people becoming perpetrators or victims of crime.


4.20 Several community roundtable participants stated that mechanisms such as the Community Services Commission, Community advocacy groups, the Intellectual Disability Rights Service and People with Disabilities NSW are all limited in scope and resources.18

4.21 CLC roundtable participants raised the issue that some services make decisions which exclude people with an intellectual disability from the legal process, and discourage people from pursuing their legal options.


4.22 The NSW Council for Intellectual Disability submitted that inaccurate and devaluing community attitudes towards people with an intellectual disability can often result in them having difficulty in being believed by government authorities such as the police, or being seen as inherently criminal or unreliable in what they say. 20 According to Phillip French of People with Disabilities (PWD):
4.23 This was also noted in roundtable discussions, where some participants commented that people with intellectual disabilities are often looked upon as people with lesser rights, which causes fear in approaching organisations for assistance, because they are scared that people will think that what they are saying is not reliable.22 According to one contributor, the vulnerability of people with an intellectual disability and the myths surrounding the sexual assault of people with an intellectual disability (i.e. they lie about being sexually assaulted, they are not credible witnesses, or that they are promiscuous) decrease the likelihood of crimes being reported and any reports being acted upon.23

4.24 The NADRAC discussion paper stated that people with an intellectual disability may be disadvantaged in mediation processes, as a participant needs to be able to negotiate for himself or herself, or with the assistance of an advocate. This requires that they have


People with a physical disability

4.25 The NADRAC discussion paper stated that because of physical pain and/or lack of motivation, strength, and energy, a person with a physical disability or condition may be unable to travel any distance, or to talk or sit for any length of time. Accordingly, they may have difficulties in physically accessing advisers and dispute resolution services.25



People from culturally and/or linguistically diverse backgrounds


Community services

4.26 Several community legal centre roundtable participants stated that the lack of community workers in newly emerging CALD groups limits the services available to those people:


4.27 Community sector roundtable participants expressed concern that newly-arrived refugees, asylum seekers and those applying for Temporary Protection Visas were being denied access to community organisations such as Migrant Resource Centres, which they said are not being permitted under their service agreements to provide assistance to TPV applicants or asylum seekers.27

ADR services

4.28 The NADRAC discussion paper listed a number of barriers to access ADR services such as mediation and conciliation for CALD people. It stated that mediation may not be culturally neutral, and that notwithstanding the significant advantages of mediation for members of cultural minorities, systemic procedural bias may still exist. It indicated that there may be many elements of standard ADR processes that do not coincide with the cultural practices of minority groups. In terms of the negotiating process in mediation or conciliation, the way in which the participants interact with each other may also be very much culturally influenced.28

4.29 The NADRAC discussion paper cautioned that unless specifically countered, actual bias at the individual level may be a problem in ADR proceedings involving members of cultural minorities. Additionally, the informality of ADR proceedings may make the display of prejudice by dispute resolution providers more likely. Perceived bias may also be relevant. In an inter-cultural dispute a member of a cultural minority may presume an understanding between a mediator and a participant who are both members of the same cultural group which can be destructive even if unfounded.29

4.30 The NADRAC discussion paper noted that ADR processes like mediation rely on the participants negotiating their own solution and that effective communication is an essential factor. Accordingly, there is a need for appropriately skilled interpreters. If this does not happen the opportunity for the participants to be heard may be seriously impaired. When an interpreter is used, the process can be very time-consuming and other parties can often become impatient. Even where language difficulties are overcome, cultural barriers may impede communication and prevent fair outcomes. There may also be more subtle communication problems arising from different cultural responses to different situations.30

4.31 The NADRAC discussion paper further stated that even where participants in ADR processes such as mediation do have the services of a good interpreter, the fact that they are unable to speak directly on their own behalf may make them appear vulnerable and at a disadvantage and may encourage prejudicial views. Low self-esteem and feelings of inferiority may also be problems when a member of a cultural minority group is negotiating directly with an ‘old Australian’.31

4.32 The NADRAC discussion paper also stated that CALD people may not seek recourse to available dispute resolution mechanisms due to lack of accurate advice or translated information about the availability of ADR procedures such as counselling and mediation.32



Indigenous Australians


Community services

4.33 Several roundtable participants raised the following concerns:


4.34 Several roundtable participants commented on the discouraging and disempowering effect on many Indigenous people of numerous, and often inappropriate referrals between agencies to handle particular complaints.35

ADR services

4.35 The NADRAC discussion paper indicated a number of cultural considerations with mediation and conciliation processes which may present difficulties for Indigenous people. The need for ADR processes to be flexible to take account of these issues is discussed below in paragraph 4.155.36

Government bodies/police

4.36 One contributor identified that the reluctance of many Indigenous women to report violence perpetrated by their partners/family to police or other organisations, because they do not want their men to be imprisoned. The criminal justice system is often not able to respond to the needs of Indigenous women in such matters.37

Complaint-handling bodies

4.37 The Public Interest Advocacy Centre (PIAC) study into Indigenous women and discrimination and complaint services in NSW reported that without appropriate and adequate support, Indigenous women found it difficult to access bodies such as the Ombudsman or Industrial Relations Commission for information or advice. It reported that Indigenous women found these processes frightening and difficult to navigate, saying that they needed help to get through to them, both on a practical and an emotional level.38

4.38 Participants in one consultation roundtable identified the issue of Indigenous people’s distrust of complaint-handling bodies which investigate their own service, e.g. police and the perceived lack of independence.39



Children and young people


Personal support networks

4.39 The NSW Commission for Children and Young People Inquiry into the best means of assisting children and young people with no-one to turn to (‘The CCYP Inquiry’) identified that young people who lack supportive relationships, whether they be family, friends, teachers or counsellors, are disadvantaged in seeking assistance. During their inquiry children and young people continually identified ‘not being judged’ as a key basis for deciding whom to approach for help, and a major factor in forming positive relationships. Also, one of the main reasons why young people may be unwilling to seek help from school counsellors is that they are concerned that their personal problems will not remain confidential. It may also stop them from visiting community-based services. This is a vital concern of children and young people in smaller rural communities and may deter them from approaching mental health, drug and alcohol and sexual health services, even the local doctor.40


4.40 The CCYP Inquiry found that when children or young people want to go to their parents for help but feel their intentions or their problem could be misunderstood or misinterpreted, the relationship can falter. Where children fear that their parents may judge them, or that their parents will not treat their concerns confidentially, they may decide to stop using their most significant help-giving source.42

Community services

4.41 The CCYP Inquiry reported that children and young people often comment on the experience of being ‘bounced’ between different welfare agencies, none of whom are able or appear willing to assist them. It can take numerous approaches to several different sources of informal and formal help before a child or young person gets the assistance they need. Some may find this process too daunting and give up before they get adequate help.43

4.42 The CCYP Inquiry also reported that children and young people may be reluctant to approach services for assistance because


4.43 The Commission reported that children and young people in general, and vulnerable children in particular, do not currently come to the attention of the service system until problems are severe, and the support needed is of a crisis nature, expensive and often too late to be effective.
4.44 The CCYP Inquiry also identified the following problems for non-legal support services for children and young people:
4.45 The Youth Justice Coalition (YJC) also stated that many non-legal support services which are available for children and young people are under resourced and unable to provide a comprehensive service.47

ADR services

4.46 The NADRAC discussion paper stated that in ADR processes, children and young people may be disadvantaged by significant power imbalances which can arise where a number of participants are involved in a dispute. For example, child protection disputes can involve the child, the parent or parents, family relatives, the foster parents and staff from two or more community care and government agencies. Despite legislative protections it has been argued that families are not given sufficient voice in the decision-making processes. According to some, child protection staff still retain the greater control over the outcomes of the process. A complicating factor in these disputes is that there is not necessarily an identity of interests between children and their families.48

4.47 The NADRAC discussion paper stated that there are likely to be significant power imbalances in ADR processes with other conflicts involving adults and children. Large age discrepancies can give rise to cultural differences in communication styles. These differences will further increase the power imbalance and impede both the communication and the negotiations between the participants.49 The paper stated that teenagers may experience problems trying to negotiate, when they endeavour to handle their family, welfare, employment, accommodation and consumer disputes. They can be exploited because their level of articulateness is not fully developed and they generally lack experience in managing disputes.50

4.48 The NADRAC discussion paper stated that, because children need protection and support, mediators often fall into the trap of believing they know what is best for the child, or in thinking that the parent or parents know what is best for their child. Frequently children are only consulted after most of the decisions have been made. Instead of explaining to the child, in a way in which they can understand, what decisions are going to be made which will affect them, who will be making the decisions, who the decision maker will be talking to, and when the decisions will be made, some dispute resolution practitioners assume children will not want to be involved.51

4.49 The NADRAC discussion paper commented that even where it is recognised that the views of the child need to be taken into consideration in mediation and ADR, it is often presumed by dispute resolvers that children will not be able to comprehend the issues involved. If a child makes a choice or a decision, there is a strong tendency for it to be assumed they are not mature enough to make such a decision, particularly when the child’s decision does not accord with the views of the dispute resolver or other involved adults. What is concerning about such presumptions is that it is ‘maturity’ which is the criterion used in assessing to what degree their views will be ‘heard’ in the ADR process.52

4.50 The NADRAC discussion paper noted that often disputes between parents and teenagers arise because the family is highly dysfunctional, and this can create serious barriers to effective participation in ADR. Even when the family is not dysfunctional, parents and adolescents may have very divergent perceptions of their conflict and how the conflict can be resolved. These divergent views can cause significant difficulties.53

4.51 The NADRAC discussion paper stated that forms of negative stereotyping of young people can also cause difficulties for young people participating in mediation processes. Examples of such stereotyping include young people being seen as angry, not making an effort to find work, generally only conforming with the ideas and actions of their peers and not taking appropriate advice.54

Government bodies/police

4.52 The CCYP Inquiry discovered that teenaged young people display a fear, dislike and antagonism of police, arising from experiences or perceptions of having been victimised and harassed. The Commission found that young people’s comments suggest that a punitive dynamic underscores many day-to-day interactions between police and young people, particularly high risk young people who tend to spend more time in public spaces.55

4.53 The Commission recognised that as well as building distrust between the police and young people, unfair treatment by police officers impacts on young people’s future relationships with other services. Children and young people have told the Commission that a bad experience with one service is likely to discourage them from approaching others for assistance, contributing to a belief that no-one wants to help them. In this sense, police activity may have an unintended and unforeseen effect on the capacity of other service providers to offer help to vulnerable children and young people.56

Complaint-handling bodies

4.54 The NADRAC discussion paper stated that children often do not know where to complain, what process they can use, nor are they able to settle or withdraw their complaint. In fact, children generally are not given the opportunity or the information to be able to make meaningful decisions about the matters which affect them.57

4.55 The CCYP Inquiry also stated that the major barrier for children and young people accessing advocacy assistance is their lack of knowledge about formal complaints systems.58 Several contributors identified the fundamental lack of knowledge and the dependency on others as significant barriers for children and young people seeking to access complaint-handling bodies.59 It was recognised by many contributors that children and young people are a largely disenfranchised group, and among the least ‘rights-conscious’ members of society. They are often reliant on adults mediating their access to legal information or advice, whether it be parents, youth workers or teachers. It is rare for a child to access legal or non-legal assistance on their own initiative.60

4.56 The Youth Action and Policy Association (YAPA) submitted that one of the consequences of children and young people having a limited understanding of their rights is that they feel powerless to respond or complain when something unfair happens to them. According to YAPA, when young people believe that adults have unfairly treated them, many think that they will not be taken seriously or even believed if they complain about what has happened to them. The vast majority are unaware of formal complaints systems and this is a major obstacle to redressing unfair treatment by government services. In any case, most young people are reluctant to complain, formally or otherwise, because they do not feel confident that it will change anything for the better. Some fear it will only make things worse.61

4.57 Fear of the system and potential retribution were also identified as barriers to accessing complaint-handling bodies for children and young people in the submissions from YAPA and the YJC:



Elderly people


Community services

4.58 Centrelink stated there were limited advocacy services available for older people in need and identified a range of issues relating to nominee arrangements and substitute decision making in relation to older people:


ADR services

4.59 The NADRAC discussion paper mentioned several factors which present problems for elderly people to participate in ADR processes such as mediation and conciliation. These include:


Government organisations/police

4.60 Community sector participants in roundtable consultations stated that elderly people from CALD backgrounds who are victims of ongoing abuse within the family are reluctant to access legal/police assistance for cultural reasons.70



People in rural, regional and remote areas


Community services

4.61 Particular difficulties for people in rural, regional and remote areas accessing non-legal advocacy and support services identified through the consultation process included:


ADR services

4.62 The Commonwealth Attorney-General’s Family Law Pathways Advisory Group (FLPAG) commented that people in rural and regional areas suffer from a shortage of non-adversarial services (counselling, mediation and contact services), and the added emotional and financial strain of having to travel long distances to access services. Pathways were seen as being very limited, often starting with police and magistrates’ courts as the first contact points because of violence in the family.75

4.63 The NADRAC discussion paper identified the following barriers for people in rural, regional and remote areas accessing ADR processes:


Complaint-handling bodies

4.64 The consultation process revealed that people in rural, regional and remote areas encounter difficulties in accessing complaint-handling bodies, as some areas cannot access 1800 numbers because telephone lines are directed via another state (e.g. Broken Hill and surrounding areas).77



People with low levels of education and literacy


Community services

4.65 Several roundtable participants stated that libraries are of limited use for people with poor literacy: ‘the law is in words and libraries are full of words’.78

Complaint-handling bodies

4.66 EWON stated that people with literacy, language or numeracy difficulties may have problems reading and understanding energy bills. This may prevent them from identifying billing irregularities or errors and thus prevent complaining to either the provider or an external scheme.79

4.67 Community legal centre roundtable participants commented that having to lodge complaints in writing to the State Ombudsman’s Offices presents a barrier for people with low English literacy skills.80



Gay, lesbian and transgender people


4.68 The NADRAC discussion paper stated that bias (both actual and perceived) together with power imbalance were the most significant barriers for lesbians and gay men in ADR and mediation processes:81


Women


4.69 The particular barriers identified by NADRAC for women in relation to ADR processes and directly attributed to gender bias include:


People living in institutions and people released from institutions


4.70 Participants in roundtable consultations with community organisations identified a number of issues faced by prisoners in attempting to access non-legal assistance:
4.71 The Law Society of NSW submitted that there is a lack of support and advocacy services for prisoners and ex-prisoners. The Society has made numerous representations to Government about prison conditions, sentencing options (particularly for vulnerable people), the scope and quality of rehabilitative schemes (particularly for young people and those with a drug addiction), prisoner’s access to family and friends, and remand conditions.85


People on low incomes


ADR services

4.72 NADRAC highlighted economic bargaining power as a significant factor limiting effective participation in ADR processes. It stated that where there are socioeconomic disparities between the parties to a dispute, there is also likely to be power imbalances between them as a direct result of the superior bargaining power enjoyed by the financially stronger party. For that party, for example, delays may not be critical, any number of issues may be able to be raised, and professional advice and assistance may be readily sought and obtained.86

4.73 The NADRAC discussion paper stated that power imbalances may be exacerbated where economically more vulnerable members of society have low self-esteem and relatedly poor presentation skills. Although ADR is generally regarded as an empowering process, low self-esteem may mean that some participants have a defeatist attitude, particularly if they are in dispute with a large corporation or government agency.87

4.74 The discussion paper further commented that in many disputes, problems of power imbalance will be further compounded by the fact that the participant who is stronger financially, may be a ‘repeat player’. Those representing them may have done so on many occasions. As a result, the stronger party may not only be familiar with the mediation process, but also with the mediator.88 The other participants in the proceedings may perceive this familiarity and construe it as bias. Such a perception, even if groundless, can be damaging to the trust between the participants and the third party which is an important element of ADR.89

4.75 The NADRAC discussion paper commented that to avoid adverse publicity, such as where issues of occupational health and safety or product liability are involved, considerable pressure may be imposed upon a socio-economically weaker party to enter into mediation. For financial reasons, the weaker party may have no real choice in the matter, and may enter a process in which they are at a considerable disadvantage. Sometimes, large businesses may be prepared to offer significant economic incentives to induce a disputant into accepting the private settlement of such a matter.90

Complaint-handling bodies

4.76 EWON stated that accessibility for low-income people is an important benchmark for ombudsman schemes. While the provision of 1800 numbers to contact such schemes for assistance improves such accessibility, EWON stated that those low-income customers who have restricted use telephones are not able to access services through free call 1800 numbers.91



Homeless people


4.77 Several community legal centre roundtable participants noted the reluctance of some non-legal service providers to provide assistance for homeless people who may be perceived as an unattractive client group.92


Men


4.78 The NSW Law Society Family Law Committee stated that counselling services for parents post separation and the Parenting after Separation programs have been cut, and this has particularly affected men who have separated from their spouse.93


Mechanisms and innovations to assist disadvantaged people


General

4.79 Non-legal advocacy and support is available from both government and non-government sources. These types of service are often dependent on volunteers to provide or complement the services offered. Such services include Community Justice Centres, the Public Trustee, complaint-handling bodies and Ombudsman’s offices.

Community services

4.80 Several roundtable participants suggested that peer education was one way to increase understanding of the law and legal system. The NSW Attorney General’s Department Violence Against Women Unit is currently running a peer education project with Tamil and Hindi Women’s Groups. The aim of the project is to train groups of young women to support other women in the areas of positive and healthy relationships and self-esteem and self-image. Some legal issues will also be covered.94

4.81 The Inner West Tenants Advice Service identified Migrant Resource Centres, well-informed community workers, social workers, ethnic specific workers, citizens’ advocacy and settlement workers as important sources of assistance for disadvantaged people.95

4.82 Roundtable participants identified community-based advocacy bodies and complaint kits as effective sources of assistance which can help untangle the procedural issues.96

4.83 Roundtable participants also identified that in some tribunals, disadvantaged people may be able to obtain representation from skilled community advocates who may not be legally trained. For example, within the residential tenancies jurisdiction of the Consumer, Trader and Tenancy Tribunal, tenants are often represented by tenants’ advocates, who are able to mitigate the actual or perceived power imbalance between tenants and landlords, real estate agents and government departments.97

4.84 Participants noted the role that libraries can play in increasing access, by providing a reliable, neutral source of legal information. They referred to the services provided by the Legal Information Access Centre (LIAC) network, and the role of librarians to help guide people through available legal information.98

ADR services

4.85 Community Justice Centres (CJCs) have been operating a mediation and conflict management service in NSW since 1980. The statewide service is divided into four regional areas - Northern, Southern, Sydney and Western. The program is committed to providing a free, equitable and local service, and offers a variety of alternative dispute settlement services, including mediation, facilitation, conflict management and pre-mediation. Within the pre-mediation process CJCs are able to analyse the conflict presented and identify what services can be offered and/or what other services may be required.99

4.86 According to the Department, CJCs ensure that:


4.87 CJCs have established working parties to identify the particular needs of certain disadvantaged groups (CALD people, Indigenous people and people with a psychiatric illness) and to implement processes to assist in ensuring better access to their services.101

4.88 In 2002, 7161 CJC files were opened and of those 2729 went to mediation.


4.89 Members of the NSW Law Society Family Law Committee identified that early intervention counselling for family disputes, which was formerly court based, is now available through other organisations such as Centacare.103

4.90 The NADRAC discussion paper stated that ADR processes such as mediation are often praised for their accessibility, their lack of formality, and their ability to give the participants greater control over the content of their dispute. Cost and time considerations persuade many to opt for ADR over the formal justice system.104 A number of the barriers for specific groups which were identified during the consultations are discussed earlier in this chapter.

Government organisations/police

4.91 The Public Trustee NSW reported that it provides services to disadvantaged people in respect of three identifiable areas of the law, namely Wills, Estates and Trusts. Approximately 10 000 free wills are made with them each year appointing the Public Trustee as executor or co-executor. Approximately 12 per cent are made by clients with assets of less than $50 000, and 40 per cent of estates have values of less than $50 000.105

4.92 The NSW Attorney General’s Department advised that the Local Courts are the host agency for the statewide Government Access Program in 20 locations across NSW. This program aims to improve access to government services and provide information through the establishment of ‘one-stop shops’ for residents in small rural towns. A key role for Government Access Centres is to assist individuals to ‘navigate’ government services by:


4.93 The Coroner’s Court has received funding to establish a counselling and support program for their clients, in recognition of the grief, anxiety, stress and unfamiliarity of coronial procedures experienced by people whose personal circumstances bring them into contact with the coronial system. The service provides counselling, information and ongoing support, and operates in a liaison role to improve communication between the Coroner and family or friends of the deceased.107

4.94 Victims Services offer a range of services to support victims of crime, including:


4.95 Victims Services hosts a number of interagency forums to provide an opportunity for the exchange of information between government and non-government agencies on issues affecting victims of crime. In addition, the Charter of Victims Rights sets out how victims of crime should be assisted by NSW Government Departments and includes rights to be treated with courtesy, compassion and respect and rights to a range of information regarding the criminal justice system.109

Complaint-handling bodies

4.96 The increased control of the private sector over utilities and services which were traditionally public, has resulted in the development of industry-based complaint schemes which seek to address concerns in an efficient, inexpensive and informal manner. These include schemes for resolving disputes about insurance companies, investment products, telecommunication services, energy, water, credit unions, insurance brokers and mortgage originators and brokers. Several contributors noted that some complaint bodies can provide useful options in terms of resolving complaints, and assisting in negotiation to resolve simple matters.110 According to Justice Sackville:


4.97 EWON is an independent dispute resolution scheme for customers of electricity and gas providers and some water providers in NSW. During the 2001/02 financial year, EWON received 4908 complaints. Of these complaints, approximately 30 per cent were from customers who were experiencing difficulty in paying their utility accounts, and who may have been disconnected or facing impending disconnection of supply.112

4.98 EWON argued that ombudsman schemes play an important role within the broader justice system by providing an avenue of access to justice by offering redress not available from the Courts and in cases which might not be considered by the Courts. In matters where litigation may be possible but expensive, ombudsman schemes offer an accessible alternative. EWON stated that many Industry Ombudsman schemes also offer an independent forum for resolution of complaints where the customer has been unable to resolve their complaint directly with their provider through an internal complaints mechanism.113

4.99 EWON referred to the Federal Government “Benchmarks for Industry Based Customer Dispute Resolution Schemes”, which outlines six principles that have been adopted by Industry Ombudsman Schemes. The first principle is accessibility: that the scheme makes itself readily available to customers by promoting knowledge of its existence, being easy to use and having no cost barriers. In keeping with this principle, most of the industry-based complaint schemes



People with disabilities


Community services

4.100 People with Disabilities NSW advised that it is available to represent and promote discussion and consideration of the interests of people with all types of disability.115

4.101 The Illawarra Disability Trust Criminal Justice Program has implemented a number of initiatives in response to the issues identified by the NSW Law Reform Commission inquiry into people with intellectual disabilities and the criminal justice system. These include:


ADR services

4.102 According to the NADRAC discussion paper, the overriding advantage of ADR for people with disabilities is its adaptability and its related potential to accommodate their special needs. The consensual nature of ADR is also a very important where ongoing relationships are involved. In addition. the comparative cheapness of ADR may be a consideration for people with disabilities.117

Government organisations/police

4.103 The Public Trustee, in administering estates and trusts, advised that it is available to meet some needs for people with disabilities. It holds funds to assist people with intellectual, psychiatric, acquired or physical disabilities. Staff are available to visit clients in their homes or other accommodation, where physical disability has affected their mobility.118

4.104 The National Relay Service (NRS) or TTY (teletypewriter for people who are deaf or have a speech impairment) has information on specific services available to victims of crime with disabilities. Interpreters for the deaf are also available.119



People from culturally and/or linguistically diverse backgrounds


ADR services

4.105 The NADRAC discussion paper stated that for many members of minority cultural groups, ADR processes are often more flexible, cheaper, and potentially more culturally sensitive, than the formal justice system. Because ADR processes are often not fettered by the substantive, procedural and evidentiary rules of the formal justice system, considerable modifications can be made to practices and procedures in order to accommodate diversities of culture. For example, it is open to the participants to choose their own mediators (or co-mediators) and to select a venue for the mediation or other ADR process to take place. Likewise, where there are taboos regarding the sorts of matters that can appropriately be discussed in the presence of men or women, mediators and conciliators can be either male or female.120

4.106 NADRAC stated that culture plays an important role in determining an individual’s understanding of what constitutes a dispute. It also stated that it is important to note who has the power to label an incident or interchange ‘a dispute’ and when this happens. According to NADRAC, the formal justice system determines the definition of a dispute to the exclusion of other people’s definitions or their ways of resolving disputes. In contrast, ADR can accommodate disputes which may lie beyond the scope of the formal justice system.121

Government organisations/police

4.107 Several submissions identified the value of interpreting services, the Telephone Interpreter Service in particular, to assist access. Information on telephone interpreter assistance for victims of violent crime is available in English, Arabic, Chinese, Croation, Farsi, Greek, Hungarian, Italian, Japanese, Korean, Macedonian, Polish, Portuguese, Russian, Serbian, Spanish, Thai, Turkish and Vietnamese.122

4.108 Victims Services is currently undertaking a coordinated strategy to increase the awareness of victims of crime from non-English speaking backgrounds about their services and entitlements. The strategy includes holding targeted information forums, contact and advertising with ethnic media, the distribution of information to Migrant Resource Centres and other relevant services, and the training and development of staff.123

4.109 Of the 425 Victims Services counsellors, 85 are able to provide counselling services to victims of crime in languages other than English. Additionally, Victims Services pays for the cost of an interpreter for approved counselling sessions, and some 2000 hours of interpreting were used during 2000/2001.124

Complaint-handling bodies

4.110 EWON advised that it has undertaken targeted community awareness-raising activities for several CALD communities (Chinese, Vietnamese, Arabic and Italian).125



Indigenous Australians


ADR services

4.111 Aboriginal Community Justice Groups are representative groups of local Aboriginal people who come together to examine crime and offending problems in their communities and develop ways to solve those problems. Community Justice Groups work on a large number of local issues in cooperation with police, courts, probation service, juvenile justice as well as developing crime prevention programs and activities. Groups work from the premise that local Aboriginal people know their own communities and problems best and that more Aboriginal people want to take part in problem solving. Founded on the basis that local community problems are best solved by local community developed solutions, Community Justice Groups recognise that each Aboriginal community is different, so they may look different and do different things in each community.126

4.112 NADRAC noted that for many Indigenous people, ADR processes such as mediation may overcome some of the discomfort and inappropriateness within the formal justice system felt by Indigenous people.


4.113 NADRAC also commented that ADR processes allow people to ‘define’ their own disputes. This may be particularly useful where disputes between members of Indigenous communities are not justiciable (e.g. quarrels about customary law). In these situations, ADR can provide a dispute resolution forum which would not otherwise be available.128

Government organisations/police

4.114 Some roundtable participants acknowledged the role played by some police in rural and regional areas to make efforts to work positively with Aboriginal young people.


4.115 The Victims of Crime Bureau has appointed an Aboriginal Project Officer who works in consultation with Aboriginal communities and organisations to develop strategies to improve services to assist Aboriginal victims of crime.130


Children and young people


Personal support networks and community services

4.116 The Youth Justice Coalition (YJC) submitted that on the basis of their research, young people seek legal advice from many non-legal services, including youth workers, police, school teachers, parents, school counsellors and social workers, and that these people are often the first point of contact for children and young people seeking legal advice.131

4.117 The Youth Action and Policy Association (YAPA) submitted that the youth sector is essential to young people’s access to justice. It stated that youth workers are well positioned to address much of the social disadvantage that contributes to barriers to access to justice, especially given their role as:


4.118 The NSW Commission for Children and Young People (CCYP) noted the importance of services which engage in street or outreach work so that children and young people do not have to search to find them. This reflects the fact that children and young people have preferred ways of getting help, which may, for instance, depend on cultural differences. In the latter case employing staff from different cultural backgrounds helps services to be as responsive as possible. The inquiry also stated that some services provide children and young people with a 24-hour emergency contact number to enhance access.133

4.119 The CCYP reported a number of strategies for improving access to information and services in places where children and young people frequent as part of their daily lives:


4.120 The State Network of Young People in Care (SNYPIC) is a consumer advocacy service for young people in care. SNYPIC is comprised of young people who have themselves been in care and have direct experience of state care and protection services. SNYPIC plays a role in co-ordination, policy development, network development and peer advocacy at a service and state level for children and young people in the care system.135

ADR services

4.121 The NADRAC discussion paper stated that ADR processes are likely to be preferred to the formal justice system where children and young people are involved, given the alienating and intimidating environment of a courtroom. For young people, ADR processes offer greater flexibility, lack of formality, emphasis on direct communication, less cost, speed and consequent reduction of the trauma associated with a power or rights contests. Because of the developmental aspects of adolescence ADR may provide a workable process for assisting parents and their teenage children negotiate resolutions to their ongoing conflicts during the transition from childhood to adulthood.136

Government organisations/police

4.122 The CCYP has found that in emergency situations, children under 12 years would often seek assistance from the police. It reported that some of the at risk young people it interviewed described how police officers, particularly those in Youth Liaison or Police and Community Youth Club (PCYC) roles, were successfully building relationships with them and helping them to make positive changes in their lives. The Commission commended the development of the Police Youth Policy Statement (2001).137

4.123 The YJC reported that a number of government departments have appointed specific children’s positions to advocate on behalf of children. However, the roles of these positions are restricted to complaints procedures and community education. The Ombudsman’s Office has recently appointed a Youth Liaison Officer to deal with children’s complaints about government departments. Similarly, the NSW Community Services Commission has appointed a children’s liaison officer to develop specific strategies for children’s complaints procedures.138

4.124 YAPA advised of the recent appointment of the NSW Child Advocate, as part of the NSW Child Protection Council. However as the advocate himself admits, the office is under resourced, has limited powers and therefore limited capacity to act on behalf of children.139

4.125 Visitor schemes for Juvenile Justice Centres and Department of Community Services (DOCS) institutions provide avenues for children and young people in institutional care to seek assistance and to formally complain about their situation. The number of official visitors to DOCS funded services has been increased to try and cover the enormous number of people in some form of residential care.140



Elderly people


ADR services

4.126 The NADRAC discussion paper stated that ADR processes are very attractive to elderly adults because of their flexibility, lack of formality, low cost, emphasis on direct communication, speed and its consequent reduction of the trauma associated with a power or rights contests. They may also be preferred by people in situations of long-term dependence. ADR allows for greater control and ‘ownership’ of the conduct of the proceedings and of the outcomes. Such control can be very empowering for elderly adults who may feel marginalised by society as well as excluded from their families.141

Government organisations/police

4.127 The Public Trustee NSW provides several services to elderly people, including wills and Power of Attorney drafting. Staff are available to visit clients in their homes or other accommodation such as retirement villages, hostels or nursing homes, where frailty or other circumstances have affected their mobility.142

4.128 Centrelink provides various services to elderly people and is constantly building community and business sector partnerships to expand these services. In particular, Centrelink provides:



People in rural, regional and remote areas


ADR services

4.129 The NADRAC discussion paper stated that because ADR processes are potentially cheap, quick, and may assist the maintenance of ongoing relationships, they may be very significant in a small rural community where it may be necessary for disputants to continue to confront each other on a daily basis. If there are the resources available to send ADR service providers to disputants in a rural or remote location, this represents a huge advance on the service which can be provided by the formal justice system. The flexibility of ADR might also mean that other accommodation could be made, for example, arranging a mediation to take place at a time and date that takes account of seasonal work schedules.144

Government organisations/police

4.130 There are a number of victims of crime services available for people in rural and regional areas, including:


4.131 The Public Trustee has eight branches in rural and regional areas in NSW, as well as one branch to cater for matters emanating from country areas not directly serviced by a branch. All Clerks of the Local Court act as agents for the Public Trustee.146

4.132 Free 1800 numbers provided by many organisations are useful for people in rural and remote areas.147

Complaint-handling bodies

4.133 EWON reported that it has undertaken targeted community awareness raising activities for people living in rural areas. During 2001/02, over one-third of the complaints received by EWON came from customers in rural areas.148



Gay, lesbian and transgender people


ADR services

4.134 The NADRAC discussion paper stated that ADR processes offer lesbians and gay men the possibility of avoiding the problems that they perceive exist with the formal justice system.


4.135 The NADRAC discussion paper stated that privacy may also be an attractive feature of ADR for members of sexual minorities. If a dispute leads to litigation it may become difficult for those lesbians and gay men who wish to do so, to conceal their sexuality. The pressures on their time and the financial and emotional strain of litigation may mean that employers, workmates and family members, for example, might find out what is occurring. Some cases, such as discrimination matters, also frequently receive attention from the press. ADR mechanisms offer the possibility of a private, confidential dispute resolution process. The participants are not required to come out to anyone except the mediator. If mediation, conciliation or another ADR process succeeds, the dispute may be resolved quickly and cheaply. There will be less delay and expense than what would be involved in the court process, with a consequent reduction in stress.150


Women


ADR services

4.136 The NADRAC discussion paper stated that women may choose mediation because it provides a less formal way of resolving disputes, and also provides dialogue. ADR may seem to provide an attractive option to the formal justice system, which has been criticised for systemic bias against women, both in terms of its outcomes and its procedures. The non-adversarial nature of ADR techniques is often seen as an advantage in disputes characterised as ‘interpersonal disputes’ or disputes involving ‘ongoing family relationships’.151

Government organisations/police

4.137 The Local Courts Domestic Violence project, initiated in response to the growth in the number of apprehended violence cases over the past decade, recognises the particular needs of victims of violence in seeking to obtain an Apprehended Violence Order. This project seeks to ensure that victims of domestic violence receive appropriate support and referrals to agencies that can assist with immediate financial, housing, crisis counselling and child protection issues.152



People living in institutions


4.138 The NSW Law Reform Commission advised that charities which undertake prison visits, such as St. Vincent de Paul, can provide some support to prisoners with an intellectual disability. Teachers, educators and counsellors visiting prisons can also provide support for prisoners with an intellectual disability.153


People on low incomes


ADR services

4.139 The comparative cheapness of ADR may make it the only practical dispute resolution option for those of limited financial means.154

Government organisations/police

4.140 The Public Trustee NSW advised that its services are focused towards people on low incomes, particularly in relation to the administration of small estates.155



Homeless people


4.141 The Legal Counselling and Referral Centre (LCRC) stated that to fully address the needs of homeless people, it is essential to work in tandem with other non-legal advocates, so that issues of housing, health, drug dependency and employment can be addressed in a cohesive and supportive fashion. The LCRC works in cooperation with the other community services offered by St John’s Darlinghurst, the local community legal centre, duty solicitors at the local courts, the local doctors, drug and alcohol counsellors, and the local job placement agency. The LCRC recognises that underlying the legal need is a myriad of issues which require the input and expertise of other professionals.156


Suggestions to improve access to non-legal advocacy and support


Community services

4.142 Many roundtable participants emphasised the importance of community organisations having both legal and non-legal staff, in order to provide a broad range of services which are cohesive and coordinated. The LCRC also supported this model, recommending that such services be established in areas where there are high levels of unemployment, mental health issues and drug and alcohol dependency.157


4.143 Provision of adequate funding and resources was identified by several submissions as necessary to achieve such integration. In particular, it was reported that funding was needed to
4.144 The growth of information and assistance services via the Internet and email has highlighted the need for services to assist disadvantaged groups, particularly those in regional and remote areas who are experiencing the Internet and its capabilities for the first time. The Communications Law Centre submitted that these people need services that educate them in the technology and the regulatory structures and laws that apply to this domain.160

4.145 Several roundtable participants identified the need for training of intermediaries and community workers as an important avenue to improve the ability of disadvantaged people to access legal information from non-legal support services. It was identified that such training needs to:


4.146 Participants in the National Pro Bono Workshop recommended:
ADR services

4.147 NADRAC stated that there is a need for standards to enhance the quality of ADR practice, to facilitate consumer education about ADR, to build consumer confidence in ADR services, to improve the credibility of ADR and to build capacity and coherence of the ADR field. NADRAC recommends that ADR service providers adopt and comply with an appropriate code of practice. The NADRAC Report to the Commonwealth Attorney-General stated that standards are needed to address the following issues in particular:


Government organisations/police

4.148 The North and North West Community Legal Service Inc. recommended that general education about the legal system, while providing an enhanced background level of information, needs to be supported with ‘just in time’ information and education provided by government instrumentalities


4.149 The Law Society of NSW Family Law Committee strongly recommended the re-establishment and resourcing of the Family Court Voluntary Counselling Service, and the return of adequate resourcing for the Parenting After Separation program.165

Complaint-handling bodies

4.150 The Australian Banking Industry Ombudsman, Colin Neave has recommended a number of improvements to complaint-handling systems, including:


4.151 As many industry and government complaint schemes endeavour to enhance their accessibility by telephone free call numbers, the need to ensure unrestricted access to such numbers was identified by the Energy and Water Ombudsman of NSW:


People with disabilities


4.152 The need for general advocacy support services for people with intellectual disability was identified by several contributors, with two areas mentioned in particular:


People from culturally and/or linguistically diverse backgrounds


4.153 Some roundtable participants saw it as important to have people from a similar cultural background deliver information to their respective community members (e.g. bilingual health workers, religious leaders, community settlement workers, community leaders). This means that it is important to provide training to ethnic community workers. The ethnic media was also mentioned as a good avenue by which to disseminate information. Migrant Resource Centres were noted as an important way to access non-English speaking communities. However, several participants said that these organisations were often over-stretched due to lack of resources.170


Indigenous Australians


Community services

4.154 The Commonwealth’s Family Law Pathways Advisory Group (FLPAG) saw the importance of programs and initiatives being developed by local Indigenous communities as an essential ingredient for improved non-legal services to Indigenous people. FLPAG also identified the importance of cultural appropriateness, cross-cultural education, wider availability of interpreters in Indigenous languages and the employment of Indigenous staff in community organisations.


ADR services

4.155 The NADRAC discussion paper commented that ADR processes should be flexible to cater to the particular cultural considerations which may arise in disputes involving Indigenous Australians. Issues which need to be considered in developing such flexibility include:



Children and young people


Community services

4.156 YAPA strongly advocated for well resourced integrated services for young people. In particular, YAPA believes that young people’s access to justice is best served by a mix of:


4.157 In noting the relationship between children’s advocacy and resolving individual and systemic issues affecting young people, including the health, education and juvenile justice systems, the YJC recommended the establishment of a Children’s Advocacy Network throughout NSW, based in non-government agencies where there is a high children and youth population, and a level of disadvantage.174

4.158 The YJC submitted that as youth workers, school counsellors and social workers are often the first points of contact for children and young people seeking legal advice, they need a good grounding in legal education. Experienced and skilled youth and welfare workers are able to identify legal needs, advocate for young people and refer to legal services where necessary.


4.159 The NSW Commission for Children and Young People (CCYP) stated that services need to build better relationships and use more effective communication with children and young people:
4.160 The CCYP has previously made several recommendations to improve access to non-legal advocacy and support for children and young people. These include:
4.161 Recommendations from roundtable participants included:
Government organisations/police

4.162 The YJC stated that children and young people are reluctant to be identified in proceedings involving complaints against the police. It was suggested that government agencies should develop a system where children and young people could lodge a complaint which can be pursued by an advocate on their behalf without identifying the complainant.179

4.163 FLPAG recommended that support for children who are affected by Family Law processes should include relevant and child friendly information, direct services such as counselling, or debriefing about the process, and representation.180

4.164 Several roundtable participants suggested the development of alternative performance indicators for police that recognise and reward police for not charging alleged young offenders. This might involve envisaging a reduction in arrests, or creative alternatives to arresting offenders, as a measure of performance.181

Complaint-handling bodies

4.165 YAPA, the YJC and the NSW Commission for Children and Young People all submitted that one of the major challenges for institutions, departments and agencies is to develop mechanisms by which children and young people can participate in decision making and be heard in processes that directly affect them. All three organisations recommended that consideration be given to complaint-handling bodies adapting their procedures to suit children’s needs, including time frames, circumstances and vulnerability.182


4.166 In relation to the accessibility of the NSW Ombudsman complaints scheme to young people, YAPA also recommended that:


Elderly people


4.167 Centrelink identified the need for a strong public awareness campaign informing of the changes in the Domestic Violence legislation, in order to enable community services to better assist elderly service users who may be the victims of abuse.185

4.168 Centrelink also noted the importance of building a peer support network (including representatives from the Domestic Violence Prevention Unit, Police, Adult Guardian, and Elder Abuse Prevention Services) to liaise, advocate, follow-up and intervene in cases of elder abuse.186



People in rural, regional and remote areas


4.169 FLPAG identified the need for expanded dispute resolution services in rural and regional areas. In addition it emphasised the importance of local organisations networking with other services, to assist in better service delivery for people in rural and remote locations.187


People with low levels of education and literacy


4.170 Roundtable participants emphasised the need to provide legal training and information to community workers, to improve service delivery to those with low levels of literacy.188


People living in institutions and people released from institutions


4.171 Roundtable participants stated that there was a need for independent advocacy within prison and a greater resource commitment for post-release support.189


Ch 5. Participation in law reform


5.1 This chapter looks at the accessibility of mechanisms to review and reform the legal system to disadvantaged people. The first part looks at the weaknesses and barriers in existing law reform processes which restrict the ability of disadvantaged groups within the community to effectively participate in these processes, as reported by the consultation process. The mechanisms which have been implemented to address these issues are then explored. Finally, suggested proposals for further initiatives which may enhance access to these processes for disadvantaged people are discussed.

5.2 For the purposes of this project, the processes which are dealt with under the title ‘participation in law reform’ include:



Barriers in existing mechanisms


Capacity of peak, non-Government and community organisations to undertake advocacy

5.3 The role of community-based advocacy organisations, CLCs and other non-government organisations in undertaking law reform initiatives on behalf of disadvantaged communities was identified by several contributors as an important avenue through which disadvantaged people could participate in systemic and law reform processes. However, several limitations in the efforts of such groups were identified by contributors:


5.4 Submissions and consultations reported that community legal centres and other community organisations face significant challenges in maintaining law reform advocacy and lobbying work as a key ingredient of their service delivery. These challenges include:
5.5 In a similar vein, Megan Mitchell, Director of the Australian Council of Social Services (ACOSS) identified a number of tensions within the current program and policy environment which impact on the capacity of organisations to undertake systemic and law reform advocacy. These include:
5.6 A national study of community sector peak bodies undertaken by the University of Wollongong sought to assess whether peak bodies were systematically being excluded from policy making, and being defunded, because of their advocacy work. The research involved a survey of 142 peak organisations nationally, with a further 89 interviews with peak executives and senior government officers. Some of the findings of the study include:
5.7 ACOSS also observed that the Federal Government’s response to the findings of the Charities Definitions Inquiry may adversely impact upon the capacity of some non-government-funded organisations to undertake advocacy work.
The role of the media

5.8 The role of the media in framing social opinion was identified by several contributors as a significant barrier for disadvantaged people in undertaking law reform. In particular, the role of the media in propagating certain issues was considered a significant obstruction.


5.9 The Australian Law Reform Commission (ALRC) stated that while consultations to ascertain public opinion are a vital ingredient in undertaking law reform initiatives, the role of the media in misinforming the public is problematic.
Inquiry and commission processes

5.10 Contributors stated that the level of public participation, involvement and consultation in formal inquiries often varied, with some ‘public’ inquiries being public in name only. Problems noted included:


5.11 The ALRC commented that effective public consultation strategies for law reform inquiries are often constrained by lack of time and financial resources. Effective consultations require substantial effort in terms of disseminating information to the community so that community members can provide comment and feedback, particularly if such a consultation is undertaken nationally. It also noted that some stakeholder groups are, by their nature, difficult to consult with.14

5.12 The ALRC stated that some inquiries do not lend themselves to broad consultation with the general community because their subject matter is specialised, technical or narrow. For example, the ALRC’s report on the Judiciary Act 1903 (Cth), which was tabled in Parliament in 2001,15 involved many meetings conducted with experts in the field during the course of the inquiry. According to the ALRC, public meetings would not have been useful in grappling with this technical area of ‘lawyers’ law’.16

5.13 Several submissions stated that other forms of inquiries such as Royal Commissions, Judicial Inquiries and Special Inquiries provide an opportunity for the community to have input. However, they also noted the processes and procedures in such inquiries often present considerable barriers for disadvantaged people to participate effectively.

5.14 One recent example in NSW was the Special Commission of Inquiry established by the NSW Government into the Glenbrook train accident. The Blue Mountains Community Legal Centre (BMCLC) conducted an evaluation of the effects of this process on the victims of the accident. This study aimed to look at the needs of victims of severe trauma when faced with a legal inquiry of this sort and to evaluate the adequacy of services offered by assessing the inquiry’s responsiveness to those needs.17


Individual disempowerment

5.16 The Public Interest Advocacy Centre (PIAC) submitted that rising levels of disillusionment and frustration with political processes is resulting in a perception for many people that the opportunity to participate in political decision making seems increasingly remote. It stated that the development of policy and law is seemingly the preserve of senior public servants, professional lobbyists and expert consultants.19

5.17 The Legal Counselling and Referral Centre (LCRC) submitted that for many disadvantaged people, seeking to change the law is of secondary importance to getting their basic access to justice needs met.


5.18 EWON submitted that for disadvantaged people, engaging in law reform activities in utilities issues is extremely difficult, due to the highly complex and technical nature of the regulatory issues which impact upon consumers.21


People with disabilities


5.19 The NSW Law Reform Commission identified commonly used procedures within the law reform process which present difficulties for people with disabilities:
5.20 The Australian Law Reform Commission (ALRC) acknowledged that some of its processes present problems for people with disabilities:
5.21 The NADRAC discussion paper states that disputes involving people with disabilities may involve issues of general public interest and importance. The confidential nature of alternative dispute resolution may hide such matters from public concern and limit the development of legal precedent to address such issues.25


People from culturally and/or linguistically diverse backgrounds


5.22 The NSW Law Reform Commission identified that formalised language in discussion papers, background papers, terms of reference and in hearings present barriers to people with limited language skills.26 The Commission stated that people from a non-English speaking background who also have an intellectual disability will find communication doubly difficult.27

5.23 The Commission stated that participants from CALD backgrounds may encounter particular difficulties in being involved in special inquiries, Royal Commissions and Judicial Inquiries.28 The evaluation of the effects the Glenbrook Special Commission of Inquiry said that one family, for whom English is their second language, encountered particular difficulties understanding the proceedings.29



Indigenous Australians


5.24 The ALRC includes an Indigenous person on the relevant advisory committee for particular inquiries. However, it noted that finding such a person is often difficult, and the processes of the advisory committee may diminish that person’s real involvement.30

5.25 In its Managing Justice Inquiry,31 which primarily focused on court and tribunal processes rather than issues of access to courts and tribunals, the ALRC mainly conducted consultations with courts, rather than with disadvantaged communities themselves. Accordingly, while some issues relating to Indigenous people arose during the inquiry, there was no strategy to consult with Indigenous communities or groups, and no targeted consultation with Indigenous stakeholders.32



Children and young people


5.26 Several submissions and roundtable participants mentioned that children and young people have a marginal role in law reform and development processes. This is largely attributable to their political marginalisation, and that they are not viewed as a vital constituency by politicians.33
5.27 The absence of an effective national advocate for children’s rights was also seen by the Youth Justice Coalition (YJC) as a major barrier in the ability of children and young people to participate in law reform processes.35


People in rural, regional and remote areas


5.28 Locating law reform commission inquiries, parliamentary inquiries, and special commissions of inquiry in city locations presents access barriers to people in rural, regional and remote areas. The evaluation of the Glenbrook Special Commission of Inquiry stated


People with low levels of education and literacy


5.29 The NSW Law Reform Commission identified that the use of formalised language in discussion papers, background papers, terms of reference and hearings presents barriers to people with limited education levels or limited literacy skills.37

5.30 The evaluation of the Glenbrook Special Commission of Inquiry observed that the formal procedures adopted in special commissions of inquiry present particular difficulties for people with low levels of education.38



Gay, lesbian and transgender people


5.31 The NADRAC discussion paper stated that although the confidential nature of mediation may benefit lesbians and gay men who wish to protect themselves by concealing their sexuality, a high level of reliance on mediation to resolve disputes generally reduces the possibility of achieving change through litigation.39


Women


5.32 The National Women’s Justice Coalition stated that participation by women in legislative policy and political decision making is limited by the following factors:


People living in institutions and people released from institutions


5.33 Roundtable participants reported that sensationalised media attention on prison issues served to obstruct prison reform. Media stories concerning prisoners are often inaccurate, sensational, or hostile, and this serves to create an unreceptive community and political environment to prison reform issues.41


People on low incomes


5.34 The NADRAC discussion paper stated that in consumer law and product liability matters, businesses motivated by a desire to avoid adverse publicity, may offer excessive economic incentives to financially disadvantaged people to encourage ADR settlement. Settlement of product liability claims could impede development in the law, or suppress information about public health risks.42

5.35 Financially disadvantaged people who have a vital interest in judicial inquiries, royal commissions or special commission of inquiries, may be disadvantaged in participating in the processes of such inquiries, by virtue of the expense associated with attending hearings. This was observed in the evaluation of the Glenbrook Special Commission of Inquiry:



Existing mechanisms to assist disadvantaged people


Advocacy by individuals and community organisations

5.36 Using political and law reform forums to achieve lasting change in laws and procedures was identified in one submission as an important avenue which is, from a cost perspective, more accessible for disadvantaged people.


5.37 ACOSS director Megan Mitchell asserts that the advocacy functions of community organisations ensure that government is advised as to what is happening on the ground, including the impact of policies and programs. They also have a role in monitoring and policy development.
5.38 Several community legal centres and community organisations noted that they are involved in various law reform activities on behalf of their respective disadvantaged communities.46 Some roundtable participants made the comment that it was impossible on a philosophical level to do casework and not also do systemic advocacy. In terms of overcoming the limitations placed on organisations undertaking advocacy by virtue of restrictive clauses in their funding agreements, some community workers indicated that they do extra work, work in their own time and prepare submissions as private individuals rather than on behalf of their organisations, so that such advocacy work can still be undertaken.47

Staff development

5.39 To assist individuals and community organisations to participate in effective advocacy, PIAC has developed an advocacy-training program for community organisations. The program seeks to provide skills and practical knowledge as to how the political and legal systems work and where one can intervene to effect change, so that community and consumer representatives can be effective advocates.48 It is supplemented by the Working the System booklet,49 which aims to equip people with the knowledge and skills to be involved in, and to influence, society’s governance.

5.40 PIAC provides a training program called Effective Advocacy Skills and Strategies, to complement the Working the System course. The course is aimed at community workers, activists and campaigners who want to be more active and effective in their advocacy, and who want to pick up some key skills and strategies, such as easy lobbying tips, identifying their skills as a negotiator and getting their story in the media.50 PIAC also offers a series of short courses on particular issues and strategies related to systemic advocacy.

Law Reform Commissions

5.41 The NSW Attorney General’s Department submitted that the processes of the NSW Law Reform Commission allow community members to participate in law reform initiatives. While the Commission only investigates and reports on projects referred to it by the Attorney General, under the Community Law Reform Program members of the community are invited to suggest areas where they believe law reform is required. If a preliminary investigation indicates there is a case for taking up the matter, a background paper is prepared and forwarded to the Attorney General, who then decides whether the matter is appropriate for a detailed inquiry.51

5.42 An integral part of the Commission’s research and review of legislation is consultation with interest groups and the community at large. This is often what sets the Commission apart from other agencies that undertake reviews of specific laws.52

5.43 The ALRC has also adopted processes which aim to involve the community in its inquiries:


– Publication of an introductory issues paper

– Publication of a discussion paper distributed for further comment and consultation

– Publication of the final report to be submitted to the Commonwealth Attorney-General.53


5.44 The ALRC submits that this staged approach of consultation allows continued public participation as proposals are being developed.
5.45 The ALRC puts out a call for submissions at the same time as the distribution of the introductory issues/consultation paper through media releases, radio interviews, and via its website. The timing of such calls for submissions and corresponding media activity is aimed at maximising public interest, and promoting public forums to be held. The ALRC accepts both written and oral submissions.56

5.46 In selecting venues for its consultation forums, the ALRC targets particular areas where it considers the most interest will be, and endeavours to select the most convenient and accessible venues available.57

5.47 In advertising the forums, and also in seeking submissions, the ALRC endeavours to tap into existing networks involved in the particular area which is the subject of the reference, and to utilise existing network resources.58

5.48 The ALRC provided an example of its consultation processes by outlining the most important components of the public consultation program for its Inquiry into the Protection of Human Genetic Information:59


Consumer and industry bodies

5.49 EWON identified a number of their programs which seek to engage utility consumers in policy and law reform activities:



People with disabilities


5.50 The NSW Law Reform Commission has incorporated various strategies to ensure people with disabilities are able to participate in its consultation processes, from inclusion on reference groups to attendance at consultations and provision of documents in alternative formats. Examples include:
The Commission prepared a detailed Discussion Paper and also summaries of this paper. It was also placed on audiocassette tape, which was available for borrowing from either the Commission or the Royal Blind Society of NSW. Copies of the paper were available on computer disk. The Commission advertised the option of converting either summaries of the paper, or the whole paper, to Braille.
The Commission sought professional assistance to overcome some of the barriers confronting people with intellectual disability, to be able to consult as widely as possible and to include people who would otherwise not have had a chance to be heard. It adopted specific strategies to seek ideas from people with less familiarity with the law reform process and/or with communication and other difficulties, and for people with an intellectual disability (e.g. allowing extra time for interviews, providing reassurance to the person, encouraging them to ask questions, taking frequent breaks, using simple language and asking open-ended questions). The Commission conducted a series of small group consultations with people with an intellectual disability in Sydney and rural areas, facilitated with the assistance of the Intellectual Disability Rights Service. Plain English material was provided. Professional consultants who were familiar with communication and other difficulties faced by some people with an intellectual disability led the discussions.62
Key features of the Commission’s consultation process were:
5.51 The ALRC advised that it has a broad commitment to inclusion of, and participation by people with disabilities. Reporting in compliance with the Commonwealth Disability Strategy has helped the ALRC to focus its approach to working with people with a disability, and enhancing existing practices and procedures. In particular:
5.52 In its inquiry into the Commonwealth Disability Services Act,65 the ALRC prepared a shorter format of the consultation paper which endeavoured to introduce the issues in plain language. The Commission advertised its availability in Braille, computer disk and audiotape and provided a research survey for completion, which was also available on tape. The public forums were advertised in a targeted manner, particularly through targeted disability networks. For this inquiry the ALRC engaged a consultant with expertise in engaging with disability groups to run the focus groups. The focus groups included mixes of people with different disabilities, CALD people with disabilities, and Indigenous people with disabilities.66

5.53 In its Inquiry into the Protection of Human Genetic Information,67 the ALRC is working closely with HREOC to link with disability networks nationally, to seek assistance in setting up consultation meetings.68



People from culturally and/or linguistically diverse backgrounds


5.54 The Refugee Council of Australia has developed a kit which aims to provide essential information to assist individuals and community organisations become more effective advocates for systemic and law reform issues related to refugees and asylum seekers.69 It contains:


Indigenous Australians


5.55 The NSW Law Reform Commission regularly consults with the Aboriginal Justice Advisory Council as to appropriate methods of consultation with Indigenous communities. In addition, the Commission has regularly requested advice from the Aboriginal community for references (e.g. Sentencing of Aboriginal Offenders71). When reviewing the Adoption Act they sought advice from many Aboriginal adoptees (young, adult and adoptive parents) and also from the Aboriginal community, taking into account the sensitivities the issue holds for the community.72

5.56 In conducting its inquiries, the ALRC often includes an Indigenous person on the relevant advisory committee. It also seeks to consult with relevant Indigenous peak organisations as to appropriate consultation strategies with Indigenous communities.73



Children and young people


5.57 The Youth Justice Coalition (YJC) has been active since the late 1980s as an unfunded lobby group which monitors policy and legislative reform, and advocates for the rights and needs of children and young people, particularly those involved in the criminal justice or welfare systems. The YJC is comprised of members from a diverse range of occupations and interests, including academics, lawyers, policy workers, and youth workers. The YJC is involved in law and policy reform and in the promotion of public discussion and awareness of juvenile justice and social justice matters. The YJC has lobbied government and undertaken media work on a range of criminal justice issues affecting young people, such as the development of the youth justice conferencing model and the introduction of the Young Offender’s Act 1997 (NSW). YJC members have also served on the Juvenile Justice Advisory Council since its inception.74

5.58 In its Inquiry into Children and the Legal Process,75 the ALRC produced a separate edition of the issues paper aimed at children and young people, which included cartoons, and introduced the issues in simpler language. Young people, including those from CALD backgrounds, were included as part of a reference group. This group was largely Sydney based. The ALRC also conducted targeted public forums for young people as part of the Inquiry, and undertook a quantitative research survey of young people.76



People in rural, regional and remote areas


5.59 The NSW Law Reform Commission notifies all stakeholders that it is willing to accept verbal submissions over the phone, to ensure the inclusion of people in rural and remote areas.77

5.60 The ALRC has conducted public consultation forums in rural and regional areas for several of its inquiries, including the Inquiry into the Protection of Human Genetic Information, Inquiry into Children and the Legal Process, and the Inquiry into Women and the Law.78



Gay, lesbian and transgender people


5.61 In conducting its review of the Property Relations Act, the NSW Law Reform Commission undertook specific consultations with the gay and lesbian communities to ensure that their issues were addressed.79


Women


5.62 The ALRC has conducted targeted public consultation forums for women for several of its inquiries, including the Inquiry into the Protection of Human Genetic Information, Inquiry into Children and the Legal Process, and the Inquiry into Women and the Law.80


Suggestions to facilitate more effective participation by disadvantaged people


General

5.63 Submissions from community organisations, including community legal centres, emphasised the importance of involvement in law reform and community development work in addition to providing casework services, and that governments should take responsibility for accepting the advocacy role of community organisations. The need for additional funding and resources to allow more effective law reform advocacy was commonly identified.81

5.64 It was also suggested that in a climate of fiscal restraint, with a pressure to undertake more casework services, it may be appropriate for community legal centres to confine their casework role to those matters which have an impact beyond the individual client. This may entail specialising in areas where demand for casework services regularly appears, so that such cases become the basis of reports and submissions. It may also also entail prioritisng test cases and cases which are in the wider public interest.82

5.65 Community organisations also recognised the need to become more sophisticated in their law reform and systemic advocacy strategies on behalf of their constituent communities. It was recommended that organisations should develop more sophisticated media strategies, be more sophisticated in meeting with politicians and decision-makers, and be prepared to advocate constructive solutions rather than presenting ambit claims for reform.83

5.66 The director of the Social Justice Project at the University of NSW, Professor Julian Disney suggested three areas where community organisations can be more effective and participatory with their systemic advocacy:


5.67 The NSW Law Reform Commission’s review of the Disability Services Act 1993 (NSW) and the Community Services (Complaints, Appeals and Monitoring) Act 1993 (NSW) involved consultation with diverse interest groups within a comparatively short time frame. An evaluation of this consultation strategy identified the following highly valued features and suggestions for change, both for matters involving people with disabilities, and also for matters involving disadvantaged groups generally:
5.68 The ALRC stated that three key principles underly open and participatory processes in law reform:
5.69 The ALRC acknowledged that the following initiatives would enhance community participation in their processes:
5.70 Dr. Rose Melville, of the School of Social Science, Media and Communication, University of Wollongong, suggests the following as processes which can enhance the role of peak organisations in facilitating involvement of disadvantaged people in policy and reform processes:
Contracts and new forms of public-sector employment practices have steadily eroded core public service values and principles of good governance practice. The rise of executive dominance of policy-making in recent years and the simultaneous devaluing of the policy advice of the public service have damaged the effective working of the public service. An independent public service based on notions of the “public interest” is essential for the Westminster style of liberal democratic government to work effectively. The establishment and maintenance of extra-parliamentary institutions and processes, such as government consultative councils, plays an important part in protecting the rights of disadvantaged citizens in the policy-making process.88
5.71 The evaluation of the Glenbrook Special Commission of Inquiry identified a number of areas where the Inquiry could have enhanced the ability of the community to participate in its processes. These are of relevance to inquiries of a similar nature:


Children and young people


5.72 The YJC submitted that the appointment, and adequate resourcing, of a National Commissioner for Children would enhance the ability of children and young people to participate in systemic and law reform advocacy at a national level.
5.73 The NSW Commission for Children and Young People emphasised that the best strategy to identify priorities for law and systemic reform for children and young people is to consult directly with them.92


Women


5.74 The National Women’s Justice Coalition recommended an increase in funding to women’s organisations to increase participation by women in systemic and law reform, legislative policy making and political decision making.93


Ch 6. Suggested areas for further research


6.1 This chapter considers suggested areas of further research on the issues discussed in the preceding chapters. While participants and contributors were not specifically requested to provide recommendations or suggestions for issues relating to access to justice which are in need of further research, several submissions and roundtable participants took the opportunities presented in the consultation processes to express views on such issues.

6.2 The suggestions received can be categorised into four main areas:



Issues for disadvantaged groups


Indigenous Australians

6.3 The NSW Attorney General’s Department indicated that the barriers to Aboriginal communication in NSW Courts and legal settings has not been fully examined, and that options for improved communication strategies for Indigenous litigants have yet to be fully explored.1



Children and young people


6.4 The NSW Commission for Children and Young People has reported a need to research pathways and intervention points for vulnerable children who come into contact with the service system, to provide a substantive basis for more informed policy, funding and service delivery.


People living in institutions


6.5 Community roundtable participants indicated that there has been very little independent research into the legal needs of prisoners, particularly of a qualitative nature. Most research into prisoners’ legal needs is undertaken by the Department of Corrective Services, and is mainly statistically based. They reported that there is very little independent qualitative based research into prisoners’ needs, as there is very little opportunity for independent researchers to get access to current prisoners within the NSW prison system.3


Homeless people


6.6 The Legal Counselling and Referral Centre noted in their submission that there remains a lack of awareness and understanding on the part of the legal profession of the particular needs, barriers and issues which confront homeless people.4 Further research into these issues would assist in developing more specialist centres to provide legal assistance to homeless people. An understanding of the related mental health, substance abuse, communication and lifestyle issues, as well as the particular legal issues which confront homeless people, will contribute to more effective service delivery to this significantly disadvantaged group in the community.


People facing multiple disadvantage


6.7 As indicated in paragraph 1.46, contributors reported that research into the legal needs of people who face multiple disadvantages is lacking. Multi-disadvantaged groups considered to be in need of further research include:


Issues relating to accessing services


Legal aid services

6.8 During the consultation process it was recommended that a detailed study mapping out changes in legal aid services over the last thirty years, including changes in funding, changes in guidelines for eligibility, and changes in services provided should be undertaken.



Legal needs assessment


6.9 It was suggested during the consultation process that a study of examples of community-based models of legal needs assessment, where there has been significant community participation in the needs identification methodology, would be a useful research initiative.8


Pro bono services


6.10 The National Pro Bono Task Force identified the following areas of need for further research into pro bono service provision:
The aims of such research would be to


Unrepresented litigants


6.11 The Law Council of Australia believes that priority should be given to developing research focusing on the effect of unrepresented litigants on service delivery. The aim of such research would be to identify the increase in the cost of running a legal practice, the consequent impact on the profession’s ability to provide legal aid and pro bono services, and the consequences of these changes on the growth in the number of litigants in person, and on cost shifting to the Courts.10


Issues relating to court processes and ADR processes


6.12 The Law Council of Australia believes that further research should be undertaken into case management programs in Australian courts, and specifically as to whether, in what areas, and by how much, case management reduces court costs and time, and litigants’ costs. The research should focus on strategies which reduce case costs, and also on issues such as parties’ satisfaction with particular forms of case management. This may require research based on methods such as exit survey questionnaires, and will be particularly relevant to topics such as compulsory or Court-ordered settlement conferences.11
6.13 At the AIJA Access to Justice Conference, Justice Sackville noted the evaluation conducted by the Law and Justice Foundation of NSW of the Federal Court’s case management system, the Individual Docket Scheme, stating that the study makes an important contribution to understanding the attributes and drawbacks of the scheme. However, he stated that there is still a need for research to investigate whether the scheme achieves one of its stated objectives, namely a material reduction in costs and improved disposition rates in the Federal Court.13

6.14 Several roundtable participants stated that there is a need for research into the sustainability of alternative dispute resolution mechanisms, particularly in the case of court referral arrangements. Such research should consider the length of time it takes to have disputes resolved, the extent to which parties comply with the agreements and orders made, the commitment by the courts and the lack of availability of mediators and conciliators.14



Issues relating to the accessibility of law reform processes


6.15 The New South Wales Council of Social Service recommended research in the form of an analysis or audit of Law Reform Commission and parliamentary inquiries over the last ten years to investigate the inclusiveness of their processes for disadvantaged groups or individuals. Such research could investigate the extent to which individuals or non-government organisations participated or made submissions, the use of specialist focus groups for such inquiries, and the methods of direct consultation with particular disadvantaged groups that were utilised in those inquiries. The research could also explore the extent to which the terms of reference and background issues papers were made available in alternative formats, to encourage a greater level of participation by disadvantaged individuals.15


Appendix 1


List of Submissions, Consultations and Conferences Attended

Submissions were received from the following organisations and individuals:

Consultations were conducted with the following individuals on behalf of their respective organisations:

The following roundtable consultation meetings were conducted as part of this stage of the project:

Relevant conferences and forums attended as part of the consultation strategy:


Appendix 2


Law and Justice Foundation of NSW Access to Justice Workshop
NSW Parliament House, 10 July 2002

Workshop Program

9.00–9.25 Introduction
Chair: Geoff Mulherin, Director, Law and Justice Foundation of NSW
Sylvia Scott, Elder of the Eora People
Welcome to Country
Julia Perry, Head of Research, Law and Justice Foundation of NSW
Purpose and Structure of Workshop
Louis Schetzer, Senior Project Manager, Law and Justice Foundation of NSW
The Law Foundation’s Legal Needs Project

9.25–9.45 Opening Address
Justice Ronald Sackville, Federal Court of Australia

10.00–11.00 Perspectives from the Community
Chair: Julian Disney, Director, Social Justice Project
Joanne Selfe, Indigenous Consultant
Barry Fowler, Centre for Community, Outback NSW
Philip French, Director, People with Disabilities

11.00–12.00 Options for Reform
Chair: Julia Perry, Head of Research, Law and Justice Foundation
Richard Funston, Legal Aid Commission
Accessible and equitable information and advice
Jenny Bargen, Department of Juvenile Justice
Alternatives to traditional court approaches in civil and criminal law
Gordon Renouf, Tennant Creek Regional Legal Access Project
Holistic and preventative approaches to legal issues

1.00–2.30 Working Groups
Access to information
Access to legal advice
Alternatives to traditional approaches in civil law
Alternatives to traditional approaches in criminal law

3.00–4.00 Reflections: The Way Ahead
Chair: Alan Kirkland, Director, Council of Social Service of NSW
General Feedback and Discussion
Julian Disney, Director, Social Justice Project
Summary of issues

Workshop Participants
Hawa Arya, Law and Justice Foundation of NSW
Jenny Bargen, NSW Department of Juvenile Justice
Karen Bevan, Uniting Care Burnside
Simon Bronitt, Domestic Violence Prevention Council
Roberto Buonamano, Law and Justice Foundation of NSW
Julie Carrington, Law Access NSW
Julian Disney, Social Justice Project, University of NSW
Sarah Ellison, Law and Justice Foundation of NSW
Vanessa Ford, Youth Action and Policy Association
Barry Fowler, Centre for Community, Outback NSW
Phillip French, People with Disabilities
Richard Funston, NSW Legal Aid Commission
Fran Gibson, Kingsford Community Legal Centre
Jason Grubisic, Youth Action and Policy Association
Julia Haraksin, NSW Attorney General’s Department
Maria Karras, Law and Justice Foundation of NSW
Alan Kirkland, Council of Social Service of NSW
Rowena Lawrie, Aboriginal Justice Advisory Committee
Heather Lee, Shopfront Youth Legal Centre
Catherine Lloyd, Law and Justice Foundation of NSW
Annabel Mayo, NSW Department of Corrective Services
Elizabeth McKibbin, Legal Information Access Centre
Gabrielle McKinnon, Marrickville Community Legal Centre
Meredith McLaine, Shoal Coast Community Legal Centre
Simon Moran, Public Interest Advocacy Centre
Geoff Mulherin, Law and Justice Foundation of NSW
Mary Perkins, Shelter NSW
Julia Perry, Law and Justice Foundation of NSW
Jane Pritchard, Law Access NSW
Michael Raper, Welfare Rights Centre
Gordon Renouf, Tennant Creek Regional Legal Access Project
Justice Ronald Sackville, Federal Court of Australia
Jane Sanders, Shopfront Youth Legal Centre
Louis Schetzer, Law and Justice Foundation of NSW
Sue Scott, Law and Justice Foundation of NSW
Sylvia Scott, Elder, Eora People
Joanne Selfe, Indigenous Consultant
Michael Strutt, Consultant
Lois Towney, Western Aboriginal Legal Service
Mayom Tulba, Anglicare Migrant Services
Rugmini Venkatraman, NSW Attorney General’s Department
Ann Wansbrough, Uniting Care
Frith Way, NSW Legal Aid Commission
Cheryl Webster, Anglicare Migrant Services


Appendix 3


Abbreviations

ACOSS: Australian Council of Social Services
ADB: Anti-Discrimination Board
ADR: Alternative Dispute Resolution
ALRC: Australian Law Reform Commission
APLA: Australian Plaintiff Lawyers Association
ATSIVA: Aboriginal and Torres Strait Islander Veterans Advocacy Service
ATSIFAM: Aboriginal and Torres Strait Islander Family Mediation
AVO: Apprehended Violence Orders
BMCLC: Blue Mountains Community Legal Centre
CALD: Culturally and/or linguistically diverse
CCYP: Commission for Children and Young People
CJC: Community Justice Centre
CLC: Community legal centre
COALS: Coalition of Aboriginal Legal Services
CRC: Community Relations Commission
DOCS: Department of Community Services
DSP: Disability Strategic Plan
DVAS: Domestic Violence Advocacy Service
EWON: Energy and Water Ombudsman of NSW
FLPAG: Family Law Pathways Advisory Group
HREOC: Human Rights and Equal Opportunity Commission
IARC: Immigration Advice and Rights Centre
LAC: Legal Aid Commission
LCRC: Legal Counselling and Referral Centre
LIAC: Legal Information Access Centre
LRO: Legal Representatives Office
MERIT: Magistrates Early Referral Into Treatment
MHAS: Mental Health Advocacy Service
NADRAC: National Alternative Dispute Resolution Advisory Council
N&NWCLS: North and North West Community Legal Service
NCOSS:New South Wales Council of Social Services
NCYLC: National Children’s and Youth Law Centre
NWJC: National Women’s Justice Coalition
NSWLRC: New South Wales Law Reform Commission
PCYC: Police and Community Youth Club
PIAC: Public Interest Advocacy Centre
PWD: People with Disabilities
RACS: Refugee Advice and Casework Service
SNYPIC: State Network for Young People in Care
TAS: Tenancy Advice Service
TIO: Telecommunications Industry Ombudsman
TIS: Telephone Interpreter Service
TTY: Teletypewriter
TOR: Terms of Reference
UCAP: Utility Consumers Advocacy Program
VAS: Veteran’s Advocacy Service
VAWSU: Violence Against Women Specialist Unit
WLRC: Women’s Legal Resource Centre
WOW: Women on Wheels
YAPA: Youth Action and Policy Association
YJC: Youth Justice Coalition


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Melville, R., University of Wollongong, School of Social Change, Media and Communication, Arts Faculty, Delegitimizing the Voice of Peaks — challenges to the advocacy and public policy roles of community-sector peak bodies, NCOSS Advocacy! Conference, Sydney, 12 March 2003.

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Women’s Legal Resource Centre, Quarter way to equal: a report on barriers to access to legal services for migrant women, Sydney, 1994.

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Publication details


© Law and Justice Foundation of New South Wales August 2003

Any opinions expressed in this publication are those of the authors and do not necessarily reflect the views of the Law and Justice Foundation Board of Governors.

This publication is copyright. It may be reproduced in part or in whole for educational purposes as long as proper credit is given to the Law and Justice Foundation of New South Wales.

National Library Cataloguing-in-Publication data:

Schetzer, Louis.
Access to justice and legal needs : a project to identify
legal needs, pathways and barriers for disadvantaged people
in NSW. Stage 1, Public consultations.

ISBN 0 909136 84 X.

1. Justice, Administrator of - New South Wales. 2. Law -
Economics aspects - New South Wales. 3. Equality before the
law - New South Wales. 4. Legal aid - New South Wales. 5.
Legal assistance to the poor - New South Wales. I.
Henderson, Judith. II. Law and Justice Foundation of New
South Wales. III. Title.

347.944

Law and Justice Foundation of New South Wales
<http://www.lawfoundation.net.au>
L14, 130 Pitt Street
Sydney NSW 2000
GPO Box 4264, Sydney NSW 2001
Phone: (02) 9221 3900
Fax: (02) 9221 6280
Email: lf@lawfoundation.net.au




Executive summary


Introduction
 Schetzer, L., Mullins, J., and Buonamano, R., Access to Justice and Legal Needs A project to identify legal needs and barriers for disadvantaged people in NSW Background Paper, Law and Justice Foundation of NSW, August 2002, http://www.lawfoundation.net.au/access/background.html
 Ibid.


Ch 1. Who is disadvantaged in seeking access to justice?
 Schetzer, L., Mullins, J. and Buonamano, R., Access to Justice and Legal Needs A project to identify legal needs and barriers for disadvantaged people in NSW Background Paper, Law and Justice Foundation of NSW, August 2002, http://www.lawfoundation.net.au/access/background.html
 Submission from North and North West Community Legal Service Inc.
 Simpson, J., Martin, M. and Green, J., The Framework report Appropriate Community Services in NSW for Offenders with Intellectual Disabilities and those at risk of offending, NSW Council for Intellectual Disability, July 2001, referred to in the roundtable with community and non-government organisations, 16 October 2002.
 Submission from New South Wales Council for Intellectual Disability.
 Cocks, K., Justice for All or Just for Some?, 20th Australian Institute of Judicial Administration Annual Conference, Access to Justice the way forward, 1214 July 2002.
 Ibid.
 French, P., Access to Justice for People with Disabilities, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
 Cocks, K., Justice for All or Just for Some?, 20th Australian Institute of Judicial Administration Annual Conference, Access to Justice the way forward, 1214 July 2002.
 Submission from New South Wales Council for Intellectual Disability.
10  NSW Commission for Children and Young People, Inquiry into Children with No-one to turn to, 2001, http://www.kids.nsw.gov.au/files/inquiryreportchap3.pdf, referred to in the submission from the NSW Commission for Children and Young People.
11  Submission from Youth Action and Policy Association, Submission from Youth Justice Coalition.
12  Submission from Energy and Water Ombudsman NSW.
13  Submission from People with Disabilities.
14  Submission from People with Disabilities, Consultation with Peter Hennessy, Executive Director, NSW Law Reform Commission, 6 September 2002.
15  French, P., Access to Justice for People with Disabilities, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
16  Consultation with Peter Hennessy, Executive Director, NSW Law Reform Commission, 6 September 2002.
17  Submission from Youth Action and Policy Association, Submission from Youth Justice Coalition.
18  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
19  Submission from Youth Justice Coalition.
20  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
21  Ibid.
22  Submission from Coalition of Aboriginal Legal Services.
23  Submission from Youth Action and Policy Association, Submission from Youth Justice Coalition.
24  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
25  Submission from Youth Justice Coalition.
26  Youth Justice Coalition, Kids and the Maze Submission to the ALRC/HREOC Inquiry into Children and the Legal Process, December, 1996, provided as part of the submission from the Youth Justice Coalition.
27  Submission from Youth Action and Policy Association, Submission from Youth Justice Coalition.
28  Kids Courts and Cops, NCOSS, 1985, Legal Aid Needs of Youth, Ian OConnor and Clare Tilbury Commonwealth Attorney-Generals Department, 1986, Our Homeless Children, Brian Burdekin, Human Rights and Equal Opportunity Commission, 1989, Report of the National Legal Aid Advisory Council Legal Aid for the Australian Community, 1990, NSW Standing Committee on Social Issues Report on Juvenile Justice, 1992, NSW Government Green and White Papers on Juvenile Justice 1992 and 1993, Systems Abuse Report, NSW Child Protection Council, 1994, Nobody Listens, Youth Justice Coalition, 1994, National Childrens and Youth Law Centre report on national consultations with young people and childrens and youth advocates 1994, Inquiry into Childrens Advocacy Parliament of NSW Standing Committee on Social Issues, September, 1996, Seen and Heard Priority for Children in the Legal Process HREOC and ALRC, September 1997, The Royal Commission into Aboriginal Deaths in Custody Reports.
29  Submission from Youth Justice Coalition.
30  Submission from Centrelink.
31  Ibid.
32  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
33  Submission from Centrelink.
34  Submission from Nolene Baker.
35  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
36  Submission from Communications Law Centre.
37  Overcoming Barriers - A National Pro Bono Workshop, Sydney, 15 August 2002.
38  Submission from the NSW Court Support Scheme, Submission from the North and North West Community Legal Service Inc.
39  Equality before the Law: Justice for Women, Australian Law Reform Commission Report No. 69, 1994.
40  Submission from the NSW Department for Women.
41  Ibid.
42  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
43  Ibid.
44  Submission from Immigration Advice and Rights Centre.
45  Submission from People with Disabilities, Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
46  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
47  Submission from Immigration Advice and Rights Centre.
48  Submission from People with Disabilities.
49  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
50  Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002.
51  Submission from Energy and Water Ombudsman of NSW.
52  Submission from the Inner West Tenancy Advice Service, Overcoming Barriers - A National Pro Bono Workshop, Sydney, 15 August 2002.
53  Submission from Legal Counselling and Referral Centre.
54  Ibid.
55  Submission from Court Support Scheme, Law and Justice Foundation of NSW roundtable with NSW Chamber Magistrates, 23 September 2002.
56  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
57  Ibid.
58  Submission from People with Disabilities.
59  Ibid.


Ch.2. Obtaining legal assistance
 Schetzer, L., Mullins, J., and Buonamano, R., Access to Justice and Legal Needs A project to identify legal needs and barriers for disadvantaged people in NSW Background Paper, Law and Justice Foundation of NSW, August 2002, pp. 89, http://www.lawfoundation.net.au/access/background.html
 Submission from Adam Johnston.
 Submission from Peter Fosterbunch, Legal Access Services Pty. Ltd.
 Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002, Alternative Approaches to Civil Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
 The Law Society of NSW, National Competition Policy A discussion paper, March 2002, referred to in consultations with the Law Society of NSW.
 Ibid, pp. 2728.
 Ibid, pp.3132.
 Law Society of NSW, Access to Justice Final Report, December 1998, referred to in consultations with the Law Society of NSW.
 Ibid, p.61.
10  The Law Society of NSW, National Competition Policy A discussion paper, March 2002, p. 31, referred to in consultations with the Law Society of NSW.
11  Australian Law Reform Commission, Report No. 89 Managing Justice A review of the federal civil justice system, January 2000, referred to by the Commonwealth Attorney-Generals Department.
12  Ibid, Paragraph 5.113.
13  Law Society of NSW, Access to Justice Final Report, December 1998, p. 58, referred to in consultations with the Law Society of NSW.
14  Law and Justice Foundation of NSW roundtable with NSW Law Society Family Law Committee, 9 October 2002.
15  Submission from North and North West Community Legal Service.
16  Ibid.
17  Access to Justice Whatever happened to the revolution, Workshop at the National Community Legal Centres Conference, Melbourne, 3 September 2002.
18  Australian Law Reform Commission, Report No. 89 Managing Justice A review of the federal civil justice system, January 2000, Paragraph 5.119, referred to by the Commonwealth Attorney-Generals Department.
19  Submission from North and North West Community Legal Service.
20  Access to Legal Information Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
21  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
22  Submission from Court Support Scheme.
23  Submission from Inner West Tenancy Advice Service.
24  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
25  Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002.
26  Australian Law Reform Commission, Report No. 89 Managing Justice A review of the federal civil justice system, January 2000, Paragraph 5.55, referred to by the Commonwealth Attorney-Generals Department, Law Society of NSW, Access to Justice Final Report, December 1998, p.66, referred to in consultations with the Law Society of NSW, Submission from North and North West Community Legal Service Inc.
27  Inquiry into the Australian Legal Aid System, Reports 13, Senate Legal and Consitutional References Committee, June 1998.
28  Justice Ronald Sackville, Access to Justice Assumptions and Reality Checks, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
29  Law Society of NSW, Access to Justice Final Report, December 1998, p.59, referred to in consultations with the Law Society of NSW.
30  Submission from Legal Aid NSW.
31  Ibid.
32  Australian Law Reform Commission, Report No. 89 Managing Justice A review of the federal civil justice system, January 2000, Paragraph 5.58, referred to by the Commonwealth Attorney-Generals Department.
33  Submission from Legal Aid NSW.
34  Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002.
35  Ibid.
36  Australian Law Reform Commission, Report No. 89 Managing Justice A review of the federal civil justice system, January 2000, Paragraph 5.196, referred to by the Commonwealth Attorney-Generals Department.
37  Law and Justice Foundation of NSW roundtable with NSW Chamber Magistrates, 23 September 2002.
38  Access to Legal Advice Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003, Australian Law Reform Commission, Report No. 89 Managing Justice A review of the federal civil justice system, January, 2000, Paragraph 5.180, referred to by the Commonwealth Attorney-Generals Department.
39  Australian Law Reform Commission, Report No. 89 Managing Justice A review of the federal civil justice system, January, 2000, Paragraphs 5.181 5.182, referred to by the Commonwealth Attorney-Generals Department.
40  Law and Justice Foundation of NSW roundtable with NSW Chamber Magistrates, 23 September 2002.
41  Inquiry into the Australian Legal Aid System, Reports 13, Senate Legal and Consitutional References Committee, June 1998.
42  Australian Law Reform Commission, Report No. 89 Managing Justice A review of the federal civil justice system, January 2000, Paragraph 5.35, referred to by the Commonwealth Attorney-Generals Department.
43  Overcoming Barriers - A National Pro Bono Workshop, Sydney, 15 August 2002.
44  Submission from the Australian Plaintiff Lawyers Association.
45  Goudkamp, T., Goudkamp, J., An Outline of the Civil Liability Act 2002, Law Society Journal, August 2002 referred to by Dennis Bluth of Abbott Tout Solicitors.
46  Submission from Dennis Bluth, Abbott Tout Solicitors.
47  Submission from Australian Plaintiff Lawyers Association.
48  Ibid.
49  Ibid, Abbott, T., President, Law Council of Australia, Courts and the Public, 20th Australian Institute of Judicial Administration Annual Conference, Access to Justice the way forward, 1214 July 2002.
50  Australian Law Reform Commission, Report No. 89 Managing Justice A review of the federal civil justice system, January 2000, Paragraph 5.171, referred to by the Commonwealth Attorney-Generals Department.
51  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
52  Submission from Court Support Scheme, Access to Legal Advice Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
53  Access to Legal Advice Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003, Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
54  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
55  Access to Legal Information Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
56  Issues of Fairness and Justice in Alternative Dispute Resolution, Discussion Paper, National Alternative Dispute Resolution Advisory Council, Canberra, November, 1997, referred to by the Commonwealth Attorney-Generals Department.
57  Ibid, paragraph 6.40.
58  Ibid, paragraph 6.47.
59  Submission from People with Disabilities.
60  Ibid.
61  French, P., Access to Justice for People with Disabilities, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
62  Youth Justice Coalition, Kids and the Maze Submission to the ALRC/HREOC Inquiry into Children and the Legal Process, December 1996, provided as part of the submission from the Youth Justice Coalition.
63  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
64  Cocks, K., Justice for All or Just for Some?, 20th Australian Institute of Judicial Administration Annual Conference, Access to Justice the way forward, 1214 July 2002, Submission from the NSW Council for Intellectual Disability.
65  Submission from NSW Council for Intellectual Disability.
66  Ibid.
67  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002, Consultation with Peter Hennessy, Executive Director, NSW Law Reform Commission, 6 September 2002.
68  Submission from NSW Council for Intellectual Disability.
69  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
70  National Alternative Dispute Resolution Advisory Council, Issues of Fairness and Justice in Alternative Dispute Resolution, Discussion Paper, Canberra, November 1997, paragraph 6.48, referred to by the Commonwealth Attorney-Generals Department.
71  Submission from People with Disabilities.
72  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
73  Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002.
74  Access to Legal Advice Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
75  Submission from Legal Aid NSW.
76  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
77  Ibid.
78  Ibid.
79  Ibid.
80  Submission from People with Disabilities.
81  Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002.
82  Submission from the Macquarie Legal Centre, Law and Justice Foundation of NSW roundtable with NSW Chamber Magistrates, 23 September 2002.
83  Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002.
84  Submission from Macquarie Legal Centre.
85  Ibid.
86  Ibid.
87  Email Communication from DIMIA to National Association of Community Legal Centres, 7 January 2003.
88  Communication from National Association of Community Legal Centres, 31 January 2003.
89  Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002.
90  Submission from Macquarie Legal Centre.
91  Overcoming Barriers - A National Pro Bono Workshop, Sydney, 15 August 2002.
92  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
93  Law and Justice Foundation of NSW roundtable with NSW Chamber Magistrates, 23 September 2002.
94  Submission from the Public Interest Advocacy Centre.
95  Access to Legal Advice Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
96  Submission from Macquarie Legal Centre.
97  Submission from Legal Aid NSW.
98  Submission from the Immigration Advice and Rights Centre.
99  Ibid.
100  Migration Agents Registration Authority 2000 and 2001 Annual Reports.
101  Submission from the Immigration and Advice Rights Centre.
102  Ibid.
103  Overcoming Barriers - A National Pro Bono Workshop, Sydney, 15 August 2002.
104  Australian Law Reform Commission, Multiculturalism and the Law, Report No. 57, Canberra, 1992.
105  Law and Justice Foundation of NSW roundtable with NSW Chamber Magistrates, 23 September 2002.
106  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
107  Ibid.
108  Access to Legal Advice Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
109  Ibid.
110  Submission from Legal Aid NSW, Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
111  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002, Submission from Macquarie Legal Centre.
112  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
113  Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November, 2002.
114  Womens Legal Resource Centre, Quarter way to equal: a report on barriers to access to legal services for migrant women, Sydney, 1994.
115  Submission from NSW Department for Women.
116  Ibid.
117  Submission from Legal Aid NSW.
118  Ibid.
119  Submission from Womens Legal Resource Centre, Discrimination have you got all day? Indigenous women, discrimination and complaints processes in NSW, Public Interest Advocacy Centre and Wirringa Baiya Aboriginal Womens Legal Centre, December 2001, referred to by the Public Interest Advocacy Centre.
120  Submission from Legal Ad NSW.
121  Monica Morgan, Yorta Yorta Aboriginal Co-operative, Global Alliance for Justice Education Conference, 911 December, 2002.
122  Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002.
123  Submission from Womens Legal Resource Centre.
124  Ibid.
125  Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002.
126  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
127  Alternatives to Traditional Approaches in Civil Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
128  Submission from Youth Action and Policy Association.
129  Submission from Australian Plaintiff Lawyers Association.
130  Youth Justice Coalition, Kids and the Maze Submission to the ALRC/HREOC Inquiry into Children and the Legal Process, December 1996, provided as part of the submission from the Youth Justice Coalition.
131  Turner, S., Young Peoples Experiences of the Young Offenders Act, Youth Justice Coalition, July 1992, referred to by the Youth Justice Coalition.
132  Submission from the Youth Justice Coalition.
133  Ibid.
134  Ibid.
135  Youth Justice Coalition, Kids and the Maze Submission to the ALRC/HREOC Inquiry into Children and the Legal Process, December 1996, provided as part of the submission from Youth Justice Coalition.
136  NSW Commission for Children and Young People, Inquiry into Children with No-one to turn to, 2001, http://www.kids.nsw.gov.au/files, referred to by the NSW Commission for Children and Young People
137  Ibid.
138  Youth Justice Coalition, Kids and the Maze Submission to the ALRC/HREOC Inquiry into Children and the Legal Process, December 1996, provided as part of the submission from Youth Justice Coalition.
139  Submission from Legal Aid NSW.
140  Youth Justice Coalition, Kids and the Maze Submission to the ALRC/HREOC Inquiry into Children and the Legal Process, December 1996, provided as part of the submission from Youth Justice Coalition.
141  Ibid.
142  Access to Legal Advice Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
143  Submission from Australian Plaintiff Lawyers Association.
144  Issues of Fairness and Justice in Alternative Dispute Resolution, Discussion Paper, Canberra, November 1997, National Alternative Dispute Resolution Advisory Council, paragraph 5.82, referred to by the Commonwealth Attorney-Generals Department.
145  Ibid, paragraph 5.88.
146  Accessibility of Electronic Commerce and New Service and Information Technologies for Older Australians and People with a Disability, Report of the Human Rights and Equal Opportunity Commission, March, 2000, referred to by the Commonwealth Attorney-Generals Department.
147  Submission from Centrelink.
148  Ibid.
149  Submission from Australian Plaintiff Lawyers Association.
150  Submission from NSW Department for Women, Access to Legal Advice Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003, Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002, Australian Law Reform Commission, Report No. 89 Managing Justice A review of the federal civil justice system, January, 2000, Paragraph 5.76, referred to by the Commonwealth Attorney-Generals Department.
151  Fowler, B., Manager Broken Hill Community Inc., Access to Justice in Rural and Remote Areas, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
152  The Law Society of NSW, National Competition Policy A discussion paper, March 2002, p. 22, referred to in consultations with the Law Society of NSW.
153  Law and Justice Foundation of NSW roundtable with NSW Law Society Family Law Committee, 9 October 2002.
154  Submission from Legal Aid NSW.
155  Overcoming Barriers - A National Pro Bono Workshop, Sydney, 15 August 2002.
156  Submission from the Australian Plaintiff Lawyers Association.
157  Submission from Legal Aid NSW.
158  Submission from North and North West Community Legal Service Inc.
159  Submission from the Womens Legal Resource Centre.
160  Submission from Womens Legal Resource Centre, Australian Law Reform Commission, Report No. 89 Managing Justice A review of the federal civil justice system, January 2000, Paragraph 5.79, referred to by the Commonwealth Attorney-Generals Department.
161  Youth Justice Coalition, Kids and the Maze Submission to the ALRC/HREOC Inquiry into Children and the Legal Process, December 1996, provided as part of the submission from the Youth Justice Coalition.
162  Submission from the Immigration Advice and Rights Centre.
163  Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002.
164  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
165  Fowler, B., Manager Broken Hill Community Inc., Access to Justice in Rural and Remote areas, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
166  Submission from North and North West Community Legal Service Inc.
167  Submission from the NSW Department for Women.
168  Submission from the Communications Law Centre.
169  Access to Legal Advice Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003, Issues of Fairness and Justice in Alternative Dispute Resolution, Discussion Paper, Canberra, November 1997, National Alternative Dispute Resolution Advisory Council, paragraph 9.23, referred to by the Commonwealth Attorney-Generals Department.
170  Australian Law Reform Commission, Report No. 89 Managing Justice A review of the federal civil justice system, January, 2000, Paragraph 5.177, referred to by the Commonwealth Attorney-Generals Department.
171  Funston, R., Legal Aid NSW, Accessible and Equitable Information and Advice, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
172  Submission from Womens Legal Resource Centre.
173  Ibid.
174  Submission from the National Womens Justice Coalition.
175  Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002.
176  Submission from NSW Department for Women.
177  Australian Law Reform Commission, Multiculturalism and the Law, Report No. 57, Canberra, 1992.
178  Womens Legal Resource Centre, Quarter Way to Equal: A report on barriers to access to legal services for migrant women, Sydney, 1994.
179  Submission from the NSW Department for Women.
180  Submission from the Australian Plaintiff Lawyers Association.
181  Submission from Legal Aid NSW.
182  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
183  Ibid.
184  Submission from the Immigration Advice and Rights Centre.
185  Ibid.
186  Submission from People with Disabilities.
187  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
188  Submission from Macquarie Legal Centre, Submission from Court Support Scheme, Law and Justice Foundation of NSW roundtable with NSW Law Society Family Law Committee, 9 October 2002, Law and Justice Foundation of NSW roundtable with NSW Law Society Regional Law Society Presidents, 24 October, 2002.
189  Submission from Legal Aid NSW.
190  Submission from Macquarie Legal Centre.
191  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
192  National Alternative Dispute Resolution Advisory Council, Issues of Fairness and Justice in Alternative Dispute Resolution, Discussion Paper, Canberra, November 1997, paragraph 9.20, referred to by the Commonwealth Attorney-Generals Department.
193  Submission from the Australian Plaintiff Lawyers Association.
194  Ibid.
195  Submission from the Legal Counselling and Referral Centre.
196  Access to Legal Advice Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
197  Submission from Court Support Scheme, Law and Justice Foundation of NSW roundtable with NSW Chamber Magistrates, 23 September 2002.
198  Law and Justice Foundation of NSW roundtable with NSW Chamber Magistrates, 23 September 2002.
199  Submission from Legal Aid NSW.
200  Legal Aid NSW Annual Report 20012002.
201  Funston, R., Legal Aid NSW, Accessible and Equitable Information and Advice, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
202  Statistics from the Community Legal Centre National Information Statistics Scheme provided to the Law and Justice Foundation of NSW in December 2002.
203  Submission from North and North West Community Legal Service Inc.
204  Access to Legal Advice Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
205  Submission from the NSW Attorney Generals Department.
206  Ibid.
207  Funston, R., Legal Aid NSW, Accessible and Equitable Information and Advice, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003, see also http://www.lawaccess.nsw.gov.au
208  Data provided by LawAccess NSW to Law and Justice Foundation of NSW in January 2003.
209  Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002.
210  Ibid.
211  Ibid.
212  Data provided by LawAccess in June 2003.
213  Submission from the NSW Attorney Generals Department.
214  Access to Legal Information Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
215  Access to Legal Advice Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
216  Justice Ronald Sackville, Access to Justice Assumptions and Reality Checks, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
217  Report of the National Pro Bono Task Force to the Commonwealth Attorney-General, 14 June 2001, referred to by the Commonwealth Attorney-Generals Department.
218  Australian Law Reform Commission, Report No. 89 Managing Justice A review of the federal civil justice system, January 2000, Paragraphs 5.21, 5.23, referred to by the Commonwealth Attorney-Generals Department.
219  Submission from the Australian Plaintiff Lawyers Association.
220  Ibid.
221  Australian Law Reform Commission, Report No. 89 Managing Justice A review of the federal civil justice system, January 2000, Paragraphs 5.169, referred to by the Commonwealth Attorney-Generals Department.
222  Law Society of NSW, National Competition Policy a discussion paper, March 2002, p. 33, referred to in consultations with the Law Society of NSW, Access to Legal Advice Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
223  Access to Legal Advice Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003, Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002.
224  Submission from Peter Fosterbunch, Legal Access Services Pty. Ltd.
225  Submission from the Public Trustee NSW.
226  Access to Legal Advice Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
227  Funston, R., Legal Aid NSW, Accessible and Equitable Information and Advice, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
228  Ibid.
229  Submission from the NSW Attorney Generals Department.
230  Law and Justice Foundation of NSW roundtable with NSW Chamber Magistrates, 23 September 2002.
231  Submission from the Council for Intellectual Disability.
232  Statistics from the Community Legal Centre National Information Statistics Scheme provided to the Law and Justice Foundation of NSW in December, 2002.
233  Australian Bureau of Statistics, 2001 Census Basic Community Profile and Snapshot, 2001.
234  Submission from the Immigration Advice and Rights Centre.
235  Ibid.
236  Submission from Macquarie Legal Centre.
237  Legal Aid NSW Annual Report 2001/2002.
238  Submission from Legal Aid NSW.
239  Submission from the NSW Attorney Generals Department.
240  Ibid.
241  Submission from the Macquarie Legal Centre.
242  Submission from the Womens Legal Resources Centre.
243  Legal Aid NSW Annual Report 2001/2002.
244  Submission from Legal Aid NSW.
245  Ibid.
246  Ibid.
247  Out of the Maze Pathways to the Future for Families Experiencing Separation, Report of the Family Law Pathways Advisory Group, July 2001, referred to by the Commonwealth Attorney-Generals Department.
248  Submission from the NSW Attorney Generals Department.
249  Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002.
250  Youth Justice Coalition, Kids and the Maze Submission to the ALRC/HREOC Inquiry into Children and the Legal Process, December 1996, provided as part of the submission from the Youth Justice Coalition.
251  Submission from the Youth Justice Coalition.
252  Submission from the Youth Action and Policy Association.
253  Legal Aid NSW Annual Report 2001/2002.
254  Submission from the Youth Action and Policy Association.
255  Submission from the Youth Justice Coalition.
256  Submission from Legal Aid NSW.
257  Bargen, J., Department of Juvenile Justice, Alternatives to traditional approaches in civil and criminal law, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
258  Submission from Legal Aid NSW.
259  Submission from the NSW Attorney Generals Department.
260  Funston, R., Legal Aid NSW, Accessible and Equitable Information and Advice, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
261  Submission from the NSW Attorney Generals Department.
262  Australian Law Reform Commission, Report No. 89 Managing Justice A review of the federal civil justice system, January 2000, Paragraph 5.141, referred to by the Commonwealth Attorney-Generals Department.
263  Submission from the North and North West Community Legal Service Inc.
264  Submission from Legal Aid NSW.
265  Legal Aid NSW Annual Report 2001/2002.
266  Submission from Legal Aid NSW.
267  Ibid.
268  Ibid.
269  Submission from the NSW Attorney Generals Department.
270  Submission from the Communications Law Centre.
271  Submission from Peter Fosterbunch, Legal Access Services Pty. Ltd.
272  Submission from the Womens Legal Resources Centre.
273  At the time of writing, DVAS and WLRC announced that they were merging.
274  NSW Legal Aid Annual Report 2001/2002.
275  Submission from NSW Legal Aid.
276  Ibid, see also http://www.legalaid.nsw.gov.au.
277  Ibid.
278  Submission from the NSW Attorney Generals Department.
279  Submission from Macquarie Legal Centre.
280  Legal Aid NSW Annual Report 2001/2002.
281  Submission from the Australian Plaintiff Lawyers Association.
282  Submission from the Legal Counselling and Referral Centre.
283  Ibid.
284  Law Society of NSW, Access to Justice Final Report, December 1998, referred to in consultations with the Law Society of NSW, Submission from the Inner West Tenancy Advice Service, Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002, Law and Justice Foundation of NSW roundtable with NSW Law Society Family Law Committee, 9 October 2002, Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002, Access to Legal Advice Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
285  Justice Ronald Sackville, Access to Justice Assumptions and Reality Checks, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
286  Submission from the North and North West Community Legal Service Inc.
287  Ibid, Submission from the NSW Council for Intellectual Disability, Law Society of NSW, Access to Justice Final Report, December 1998, referred to in consultations with the Law Society of NSW, Submission from the Inner West Tenancy Advice Service, Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002, Law and Justice Foundation of NSW roundtable with NSW Law Society Family Law Committee, 9 October 2002.
288  Report of the National Pro Bono Task Force to the Commonwealth Attorney-General, 14 June 2001, referred to by the Commonwealth Attorney-Generals Department.
289  Law Society of NSW, Access to Justice Final Report, December 1998, referred to in consultations with the Law Society of NSW.
290  Overcoming Barriers - A National Pro Bono Workshop, Sydney, 15 August 2002.
291  Submission from Peter Fosterbunch, Legal Access Services Pty. Ltd, Law Society of NSW, Access to Justice Final Report, December 1998, referred to in consultations with the Law Society of NSW, Australian Law Reform Commission, Report No. 89 Managing Justice A review of the federal civil justice system, January, 2000, Paragraphs 5.27 5.32, referred to by the Commonwealth Attorney-Generals Department.
292  Law Society of NSW, Access to Justice Final Report, referred to in consultations with the Law Society of NSW.
293  Legal expense insurance an experiment in access to justice, Law Foundation of NSW, September 1999.
294  Law Society of NSW, Access to Justice Final Report, referred to in consultations with the Law Society of NSW.
295  Submission from Peter Fosterbunch, Legal Access Services Pty. Ltd, Submission from the Communications Law Centre.
296  Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002.
297  Alternatives to traditional approaches in Civil Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
298  Ibid.
299  Access to Legal Advice Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
300  Submission from the Australian Plaintiff Lawyers Association.
301  Submission from People with Disabilities.
302  Ibid.
303  Out of the Maze Pathways to the Future for Families Experiencing Separation, Report of the Family Law Pathways Advisory Group, July 2001, referred to by the Commonwealth Attorney-Generals Department.
304  Ibid.
305  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
306  Submission from the Macquarie Legal Centre.
307  Ibid, Access to Legal Information Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
308  Out of the Maze Pathways to the Future for Families Experiencing Separation, Report of the Family Law Pathways Advisory Group, July 2001, referred to by the Commonwealth Attorney-Generals Department.
309  Submission from the NSW Department for Women.
310  Out of the Maze Pathways to the Future for Families Experiencing Separation, Report of the Family Law Pathways Advisory Group, July 2001, referred to by the Commonwealth Attorney-Generals Department.
311  Youth Justice Coalition, Kids and the Maze Submission to the ALRC/HREOC Inquiry into Children and the Legal Process, December 1996, provided as part of the submission from the Youth Justice Coalition.
312  Submission from the Youth Action and Policy Association, Youth Justice Coalition, Kids and the Maze Submission to the ALRC/HREOC Inquiry into Children and the Legal Process, December 1996, provided as part of the submission from the Youth Justice Coalition, Submission from the National Womens Justice Coalition.
313  Submission from Youth Action and Policy Association.
314  Submission from the National Womens Justice Coalition.
315  Submission from Legal Aid NSW.
316  Submission from the NSW Commission for Children and Young People, Alternatives to traditional approaches in Civil Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
317  Submission from the NSW Commission for Children and Young People.
318  Out of the Maze Pathways to the Future for Families Experiencing Separation, Report of the Family Law Pathways Advisory Group, July 2001, referred to by the Commonwealth Attorney-Generals Department.
319  Kids and the Maze Submission to the ALRC/HREOC Inquiry into Children and the Legal Process, December 1996, provided as part of the submission from the Youth Justice Coalition.
320  Submission from Centrelink.
321  Submission from the National Womens Justice Coalition.
322  Submission from Legal Aid NSW.
323  Overcoming Barriers - A National Pro Bono Workshop, Sydney, 15 August 2002.
324  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
325  Submission from the National Womens Justice Coalition.
326  Submission from the Legal Counselling and Referral Centre.


Ch 3. Effective participation in the legal system
 Submission from the Court Support Scheme, Alternatives to traditional approaches in Civil Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003, Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002, Australian Law Reform Commission, Report No. 89 Managing Justice A review of the federal civil justice system, January 2000, Paragraph 5.209, referred to by the Commonwealth Attorney-Generals Department.
 Alternatives to traditional approaches in Criminal Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
 Submission from Peter Fosterbunch, Legal Access Services Pty. Ltd., Submission from the NSW Attorney Generals Department, Alternatives to traditional approaches in Civil Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
 Law and Justice Foundation of NSW roundtable with NSW Law Society Family Law Committee, 9 October 2002.
 Justice Ronald Sackville, Access to Justice Assumptions and Reality Checks, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
 Law Society of NSW, Access to Justice Final Report, December 1998, p. 38, referred to in consultations with the Law Society of NSW.
 Alternatives to traditional approaches in Civil Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
 Ibid.
 Alternatives to traditional approaches in Criminal Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
10  Law Society of NSW, Self-Represented Litigants - Position paper, 21 May 2002, referred to in consultations with the Law Society of NSW.
11  Australian Law Reform Commission, Report No. 89 Managing Justice A review of the federal civil justice system, January 2000, Paragraph 5.7, referred to by the Commonwealth Attorney-Generals Department.
12  Law Society of NSW, Self represented litigants - the Law Societys Role, November 2001, referred to in consultations with the Law Society of NSW.
13  Australian Law Reform Commission, Report No. 89 Managing Justice A review of the federal civil justice system, January 2000, Paragraph 5.209, referred to by the Commonwealth Attorney-Generals Department.
14  Ibid Paragraph 5.9.
15  Ibid Paragraph 5.152.
16  Justice Ronald Sackville, Access to Justice Assumptions and Reality Checks, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
17  Submission from the Australian Plaintiff Lawyers Association.
18  Ibid.
19  Ibid.
20  Law and Justice Foundation of NSW roundtable with NSW Law Society Family Law Committee, 9 October 2002, Law and Justice Foundation of NSW roundtable with NSW Law Society Regional Law Societies Presidents, 24 October 2002.
21  Submission from the Inner West Tenancy Advice Service.
22  Law Society of NSW, Access to Justice Final Report, December 1998, p.29, referred to in consultations with the Law Society of NSW.
23  Alternatives to traditional approaches in Civil Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
24  Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002.
25  Alternatives to traditional approaches in Civil Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
26  Justice Ronald Sackville, Access to Justice Assumptions and Reality Checks, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
27  Law and Justice Foundation of NSW roundtable with NSW Law Society Family Law Committee, 9 October 2002.
28  National Alternative Dispute Resolution Advisory Council, Issues of Fairness and Justice in Alternative Dispute Resolution, Discussion Paper, Canberra, November 1997, paragraphs 6.54-6.57, referred to by the Commonwealth Attorney-Generals Department.
29  Cocks, K., Justice for All or Just for Some?, 20th Australian Institute of Judicial Administration Annual Conference, Access to Justice the way forward, 12-14 July 2002.
30  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
31  Ibid.
32  Cocks, K., Justice for All or Just for Some?, 20th Australian Institute of Judicial Administration Annual Conference, Access to Justice the way forward, 12-14 July 2002.
33  Ibid.
34  Ibid, Submission from the NSW Council for Intellectual Disability.
35  Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002.
36  Alternatives to traditional approaches in Criminal Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
37  Ibid.
38  French, P., Access to Justice for people with disabilities, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
39  Submission from the Australian Plaintiff Lawyers Association.
40  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
41  Law and Justice Foundation of NSW roundtable with NSW Chamber Magistrates, 23 September 2002.
42  French, P., Access to justice for people with disabilities, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
43  Submission from Adam Johnston.
44  French, P., Access to justice for people with disabilities, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
45  Law and Justice Foundation of NSW roundtable with NSW Chamber Magistrates, 23 September 2002.
46  French, P., Access to justice for people with disabilities, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
47  Submission from Nolene Baker.
48  Out of the Maze Pathways to the Future for Families experiencing separation, Report of the Family Law Pathways Advisory Group, July 2001, referred to by the Commonwealth Attorney-Generals Department.
49  Submission from the Australian Plaintiff Lawyers Association.
50  National Alternative Dispute Resolution Advisory Council, Issues of Fairness and Justice in Alternative Dispute Resolution, Discussion Paper, Canberra, November 1997, paragraph 6.58, referred to by the Commonwealth Attorney-Generals Department.
51  Alternatives to traditional approaches in Civil Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
52  Law and Justice Foundation of NSW roundtable with NSW Chamber Magistrates, 23 September 2002.
53  Submission from the Australian Plaintiff Lawyers Association.
54  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
55  Submission from the Australian Plaintiff Lawyers Association.
56  Ibid.
57  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
58  Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002.
59  Law and Justice Foundation of NSW roundtable with NSW Chamber Magistrates, 23 September 2002.
60  Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002.
61  Alternatives to traditional approaches in Criminal Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
62  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
63  National Alternative Dispute Resolution Advisory Council, Issues of fairness and justice in alternative dispute resolution Discussion Paper, Canberra, November 1997, paragraph 4.51, referred to by the Commonwealth Attorney-Generals Department.
64  Submission from the Immigration Advice and Rights Centre.
65  Ibid.
66  Justice Margaret Stone, Federal Court of Australia, Global Alliance for Justice Education Conference, 9-11 December, 2002
67  Justice Ronald Sackville, Access to Justice Assumptions and Reality Checks, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
68  Womens Legal Resource Centre, Quarter way to equal: a report on barriers to access to legal services for migrant women, Sydney, 1994.
69  Submission from the NSW Attorney Generals Department.
70  Submission from the NSW Department for Women.
71  Submission from the Public Interest Advocacy Centre, Submission from the Australian Plaintiff Lawyers Association.
72  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
73  Alternatives to traditional approaches in Criminal Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
74  Discrimination have you got all day? Indigenous women, discrimination and complaints processes in NSW, Public Interest Advocacy Centre and Wirringa Baiya Aboriginal Womens Legal Centre, December 2001, referred to in consultations with the Public Interest Advocacy Centre.
75  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
76  Youth Justice Coalition, Kids and the Maze Submission to the ALRC/HREOC Inquiry into Children and the Legal Process, December 1996, provided as part of the submission from the Youth Justice Coalition.
77  Submission from the Youth Justice Coalition.
78  Submission from the Australian Plaintiff Lawyers Association.
79  Ibid.
80  Ibid.
81  Ibid.
82  Bargen, J., Department of Juvenile Justice, Alternatives to traditional approaches in civil and criminal law, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
83  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
84  Alternatives to traditional approaches in Criminal Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
85  Submission from the Youth Action and Policy Association.
86  National Alternative Dispute Resolution Advisory Council, Issues of fairness and justice in alternative dispute resolution Discussion Paper, Canberra, November 1997, paragraph 5.66, referred to by the Commonwealth Attorney-Generals Department.
87  Ibid, paragraphs 5.64 and 5.68.
88  Ibid, paragraph 5.65.
89  Submission from the Australian Plaintiff Lawyers Association.
90  Submission from Nolene Baker.
91  Access to Justice Whatever happened to the revolution, Workshop at the National Community Legal Centres Conference, Melbourne, 3 September 2002.
92  Law and Justice Foundation of NSW roundtable with NSW Law Society Family Law Committee, 9 October 2002.
93  Submission from Legal Aid NSW, Law and Justice Foundation of NSW roundtable with NSW Law Society Family Law Committee, 9 October 2002.
94  Submission from Legal Aid NSW.
95  Australian Law Reform Commission, Report No. 89 Managing Justice A review of the federal civil justice system, January 2000, Paragraph 5.80, referred to by the Commonwealth Attorney-Generals Department.
96  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
97  Alternatives to traditional approaches in Criminal Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
98  Fowler, B., Manager Broken Hill Community Inc., Access to Justice in Rural and Remote Areas, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
99  Law and Justice Foundation of NSW roundtable with NSW Chamber Magistrates, 23 September 2002.
100  Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002.
101  Submission from the Australian Plaintiff Lawyers Association.
102  Submission from the NSW Department for Women.
103  Ibid.
104  Ibid.
105  Ibid.
106  Ibid.
107  Ibid.
108  Ibid.
109  Submission from the Womens Legal Resources Centre.
110  Submission from the Australian Plaintiff Lawyers Association.
111  Womens Legal Resource Centre, Quarter way to equal: a report on barriers to access to legal services for migrant women, Sydney, 1994.
112  Submission from the NSW Attorney Generals Department.
113  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
114  Submission from the Australian Plaintiff Lawyers Association.
115  Australian Law Reform Commission, Report No. 89 Managing Justice A review of the federal civil justice system, January 2000, Paragraph 5.8, referred to by the Commonwealth Attorney-Generals Department.
116  Submission from the Public Interest Advocacy Centre, Alternatives to traditional approaches in Civil Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
117  Submission from the Public Interest Advocacy Centre.
118  Alternatives to traditional approaches in Civil Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
119  Submission from the Australian Plaintiff Lawyers Association.
120  National Alternative Dispute Resolution Advisory Council, Issues of fairness and justice in alternative dispute resolution Discussion Paper, Canberra, November 1997, paragraph 9.20, referred to by the Commonwealth Attorney-Generals Department.
121  Submission from the Legal Counselling and Referral Centre.
122  Repeal of the Justices Act 1902 (NSW) - This Act was replaced by a package of legislation the (Crimes (Local Courts Repeal and Review) Act 2001 (NSW), the Criminal Procedure Amendment (Justices and Local Courts) Act 2001 (NSW), and the Justices Legislation Repeal and Amendment Act 2001 (NSW).
123  Submission from the NSW Attorney Generals Department.
124  Justice Ronald Sackville, From Access to Justice to Managing Justice: The Transformation of the Judicial Role, Australian Institute of Judicial Administration Annual Conference, Access to Justice the way forward, 12-14 July 2002.
125  Australian Law Reform Commission, Report No. 89 Managing Justice A review of the federal civil justice system, January 2000, Paragraphs 7.47.10, referred to by the Commonwealth Attorney-Generals Department.
126  Sage, C., Wright, T., Morris, C., Case Management Reform: A Study of the Federal Courts Individual Docket System, Law and Justice Foundation of NSW, June 2002.
127  Submission from the Court Support Scheme.
128  Submission from the Court Support Scheme.
129  Submission from Commonwealth Attorney-Generals Department.
130  Australian Law Reform Commission, Report No. 89 Managing Justice A review of the federal civil justice system, January 2000, Paragraph 5.210, referred to by the Commonwealth Attorney-Generals Department.
131  Law and Justice Foundation of NSW roundtable with NSW Law Society Family Law Committee, 9 October 2002.
132  Submission from Legal Access Services Pty Ltd Peter Fosterbunch, Alternatives to traditional approaches in Civil Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
133  National Alternative Dispute Resolution Advisory Council, Issues of fairness and justice in alternative dispute resolution Discussion Paper, Canberra, November 1997, referred to by the Commonwealth Attorney-Generals Department.
134  Alternatives to traditional approaches in Civil Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
135  Submission from the NSW Attorney Generals Department.
136  Ibid.
137  Ibid.
138  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
139  Submission from the NSW Attorney Generals Department.
140  French, P., Access to Justice for people with disabilities, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
141  Submission from the NSW Attorney Generals Department.
142  Ibid.
143  Ibid.
144  Alternatives to traditional approaches in Civil Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
145  Submission from the NSW Attorney Generals Department.
146  Ibid.
147  Ibid.
148  Australian Law Reform Commission, Report No. 89 Managing Justice A review of the federal civil justice system, January 2000, Paragraph 5.210, referred to by the Commonwealth Attorney-Generals Department.
149  Womens Legal Resource Centre, Quarter way to equal: a report on barriers to access to legal services for migrant women, Sydney, 1994.
150  Submission from the NSW Attorney Generals Department.
151  Ibid.
152  Ibid.
153  Bargen, J., Department of Juvenile Justice, Alternatives to traditional approaches in civil and criminal law, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
154  Submission from the NSW Attorney Generals Department.
155  Ibid.
156  Alternatives to traditional approaches in Criminal Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
157  Submission from the Coalition of Aboriginal Legal Services.
158  Submission from the NSW Attorney Generals Department.
159  Out of the Maze Pathways to the Future for Families Experiencing Separation, Report of the Family Law Pathways Advisory Group, July 2001, referred to by the Commonwealth Attorney-Generals Department.
160  Bargen, J., Department of Juvenile Justice, Alternatives to traditional approaches in civil and criminal law, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
161  Submission from the Youth Action and Policy Association.
162  Alternatives to traditional approaches in Criminal Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
163  Ibid.
164  Turner, S., Young Peoples Experiences of the Young Offenders Act, Youth Justice Coalition, July 2002, referred to by the Youth Justice Coalition.
165  Ibid.
166  Ibid.
167  Ibid.
168  Bargen, J., Department of Juvenile Justice, Alternatives to traditional approaches in civil and criminal law, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
169  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
170  Fowler, B., Manager Broken Hill Community Inc., Access to Justice in Rural and Remote Areas, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
171  Submission from the NSW Attorney Generals Department.
172  Submission from the NSW Department for Women, L. Trimboli and R. Bonney, An Evaluation of the NSW Apprehended Violence Order Scheme, NSW Bureau of Crime Statistics and Research 1997.
173  National Alternative Dispute Resolution Advisory Council, Issues of fairness and justice in alternative dispute resolution Discussion Paper, Canberra, November 1997, paragraphs 3.22, 3.23 and 3.48, referred to by the Commonwealth Attorney-Generals Department.
174  Submission from the Legal Counselling and Referral Centre.
175  Justice Ronald Sackville, Access to Justice Assumptions and Reality Checks, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
176  Law Society of NSW, Access to Justice Final Report, December 1998, referred to in consultations with the Law Society of NSW.
177  Abbott, T., President Law Council of Australia, Courts and the Public, Australian Institute of Judicial Administration Annual Conference, Access to Justice the way forward, 12-14 July 2002.
178  Law Society of NSW, Access to Justice Final Report, December 1998, referred to in consultations with the Law Society of NSW.
179  Submission from the Court Support Scheme.
180  Ibid.
181  Law and Justice Foundation of NSW roundtable with NSW Chamber Magistrates, 23 September 2002.
182  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
183  Abbott, T., President Law Council of Australia, Courts and the Public, Australian Institute of Judicial Administration Annual Conference, Access to Justice the way forward, 12-14 July 2002, Law Society of NSW, Access to Justice Final Report, December 1998, referred to in consultations with the Law Society of NSW, Law Society of NSW, Self Represented Litigants position paper, May 2002, referred to in consultations with the Law Society of NSW.
184  Law Society of NSW, Access to Justice Final Report, referred to in consultations with the Law Society of NSW.
185  Overcoming Barriers - A National Pro Bono Workshop, Sydney, 15 August 2002.
186  Submission from the Australian Plaintiff Lawyers Association.
187  Bargen, J., Department of Juvenile Justice, Alternatives to traditional approaches in civil and criminal law, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003, Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
188  Alternatives to traditional approaches in Civil Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
189  Alternatives to traditional approaches in Criminal Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
190  Submission from the Inner West Tenancy Advice Service.
191  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
192  Ibid.
193  Cocks, K., Justice for All or Just for Some?, 20th Australian Institute of Judicial Administration Annual Conference, Access to Justice the way forward, 12-14 July 2002.
194  Submission from the Australian Plaintiff Lawyers Association.
195  Access to Justice Whatever happened to the revolution, Workshop at the National Community Legal Centres Conference, Melbourne, 3 September 2002.
196  Submission from the Coalition of Aboriginal Legal Services.
197  Aboriginal Justice Inter-Departmental Committee 1999:9.
198  Submission from the Coalition of Aboriginal Legal Services.
199  Ibid.
200  Ibid.
201  Ibid.
202  Access to Justice Whatever happened to the revolution, Workshop at the National Community Legal Centres Conference, Melbourne, 3 September 2002.
203  Out of the Maze Pathways to the Future for Families Experiencing Separation, Report of the Family Law Pathways Advisory Group, July 2001, referred to by the Commonwealth Attorney-Generals Department.
204  Ibid.
205  Submission from the Public Interest Advocacy Centre.
206  Discrimination have you got all day? Indigenous women, discrimination and complaints processes in NSW, Public Interest Advocacy Centre and Wirringa Baiya Aboriginal Womens Legal Centre, December, 2001, referred to in consultations with the Public Interets Advocacy Centre.
207  Alternatives to traditional approaches in Criminal Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
208  Submission from the NSW Commission for Children and Young People.
209  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002, Youth Justice Coalition, Kids and the Maze Submission to the ALRC/HREOC Inquiry into Children and the Legal Process, December 1996.
210  Youth Justice Coalition, Kids and the Maze Submission to the ALRC/HREOC Inquiry into Children and the Legal Process, December 1996, provided as part of the submission from the Youth Justice Coalition.
211  Submission from the National Womens Justice Coalition.
212  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
213  Submission from the Queensland Children Services Tribunal.
214  Law Society of NSW, Access to Justice Final Report, December 1998, p.25, referred to in consultations with the Law Society of NSW.
215  Out of the Maze Pathways to the Future for Families Experiencing Separation, Report of the Family Law Pathways Advisory Group, July 2001, referred to by the Commonwealth Attorney-Generals Department.
216  Fowler, B., Manager Broken Hill Community Inc., Access to Justice in Rural and Remote Areas, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
217  Law and Justice Foundation of NSW roundtable with NSW Chamber Magistrates, 23 September 2002.
218  Submission from the National Womens Justice Coalition.
219  Submission from the Public Interest Advocacy Centre.
220  Alternatives to traditional approaches in Civil Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
221  Ibid.
222  Law Society of NSW, Access to Justice Final Report, December 1998, p.67, referred to in consultations with the Law Society of NSW.
223  Ibid, p. 38.
224  Alternatives to traditional approaches in Civil Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
225  Submission from the Legal Counselling and Referral Centre.
226  Ibid.
227  Ibid.


Ch 4. Obtaining assistance from non-legal, advocacy and complaint-handling bodies
 Schetzer, L., Mullins, J. and Buanamano, R., Access to Justice and Legal Needs A project to identify legal needs and barriers for disadvantaged people in NSW- Background Paper, Law and Justice Foundation of NSW, August 2002, pp. 1112, http://www.lawfoundation.net.au/access/background.html
 Access to Legal Information Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
 Ibid.
 Alternatives to traditional approaches in Criminal Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
 Law and Justice Foundation of NSW roundtable with NSW Law Society Family Law Committee, 9 October 2002.
 Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002.
 Telecommunications Industry Ombudsman Consumer Consultative Forum, 5 November 2002.
 Ibid.
 Submission from the Energy and Water Ombudsman of NSW.
10  Consultation with Peter Hennessy, Executive Director, NSW Law Reform Commission, 6 September 2002.
11  Submission from People with Disabilities.
12  Youth Justice Coalition, Kids and the Maze Submission to the ALRC/HREOC Inquiry into Children and the Legal Process, December 1996, provided as part of the submission from the Youth Justice Coalition.
13  National Alternative Dispute Resolution Advisory Council, Issues of fairness and justice in alternative dispute resolution Discussion Paper, Canberra, November 1997, paragraphs 6.386.44, referred to by the Commonwealth Attorney-Generals Department.
14  Ibid, paragraph 6.61.
15  Ibid, paragraphs 6.63 and 6.65.
16  Ibid, paragraphs 6.546.55.
17  Submission from the NSW Council for Intellectual Disability.
18  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
19  Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002.
20  Submission from the NSW Council for Intellectual Disability.
21  French, P., Access to Justice for people with disabilities, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
22  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
23  Cocks, K., Justice for All or Just for Some?, 20th Australian Institute of Judicial Administration Annual Conference, Access to Justice the way forward, 1214 July 2002.
24  National Alternative Dispute Resolution Advisory Council, Issues of fairness and justice in alternative dispute resolution Discussion Paper, Canberra, November 1997, paragraphs 6.386.44, paragraph 6.57, referred to by the Commonwealth Attorney-Generals Department.
25  Ibid, paragraph 6.48.
26  Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002.
27  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October, 2002.
28  National Alternative Dispute Resolution Advisory Council, Issues of fairness and justice in alternative dispute resolution Discussion Paper, Canberra, November 1997, paragraphs 4.304.32, referred to by the Commonwealth Attorney-Generals Department.
29  Ibid, paragraphs 4.334.34.
30  Ibid, paragraphs 4.37 and 4.40.
31  Ibid, paragraph 4.44.
32  Ibid, paragraphs 4.474.48.
33  Access to Legal Information Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
34  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
35  Ibid.
36  National Alternative Dispute Resolution Advisory Council, Issues of fairness and justice in alternative dispute resolution Discussion Paper, Canberra, November 1997, paragraph 4.69, referred to by the Commonwealth Attorney-Generals Department.
37  Cleonie Quayle, Tranby College, Global Alliance for Justice Education Conference, 911 December 2002.
38  Discrimination have you got all day? Indigenous women, discrimination and complaints processes in NSW, Public Interest Advocacy Centre and Wirringa Baiya Aboriginal Womens Legal Centre, December 2001, referred to in consultations with the Public Interest Advocacy Centre.
39  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
40  NSW Commission for Children and Young People, Inquiry into Children with No-one to turn to, 2001, http://www.kids.nsw.gov.au/files, referred to by the NSW Commission for Children and Young People.
41  Ibid.
42  Ibid.
43  Ibid.
44  Ibid.
45  Ibid.
46  Ibid.
47  Submission from the Youth Justice Coalition.
48  National Alternative Dispute Resolution Advisory Council, Issues of fairness and justice in alternative dispute resolution Discussion Paper, Canberra, November 1997, paragraph 5.66, referred to by the Commonwealth Attorney-Generals Department.
49  Ibid paragraph 5.67.
50  Ibid, paragraphs 5.715.72.
51  Ibid, paragraphs 5.59 and 5.61.
52  Ibid, paragraph 5.62.
53  Ibid, paragraph 5.70.
54  Ibid, paragraph 5.73.
55  NSW Commission for Children and Young People, Inquiry into Children with No-one to turn to, 2001, http://www.kids.nsw.gov.au/files, referred to by the NSW Commission for Children and Young People.
56  Ibid.
57  National Alternative Dispute Resolution Advisory Council, Issues of fairness and justice in alternative dispute resolution Discussion Paper, Canberra, November 1997, paragraph 5.58, referred to by the Commonwealth Attorney-Generals Department.
58  NSW Commission for Children and Young People, Inquiry into Children with No-one to turn to, 2001, http://www.kids.nsw.gov.au/files, referred to by the NSW Commission for Children and Young People.
59  Submission from the Youth Action and Policy Association.
60  Alternatives to traditional approaches in Civil Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
61  Submission from the Youth Action and Policy Association.
62  Ibid.
63  Submission from the Youth Justice Coalition.
64  Submission from Centrelink.
65  National Alternative Dispute Resolution Advisory Council, Issues of fairness and justice in alternative dispute resolution Discussion Paper, Canberra, November 1997, paragraph 5.81, referred to by the Commonwealth Attorney-Generals Department.
66  Ibid, paragraph 5.82.
67  Ibid paragraph 5.83.
68  Ibid, paragraph 5.79.
69  Ibid, paragraph 5.84.
70  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
71  Fowler, B., Manager Broken Hill Community Inc., Access to Justice in Rural and Remote Areas, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
72  Overcoming Barriers - A National Pro Bono Workshop, Sydney, 15 August 2002.
73  NSW Commission for Children and Young People, Inquiry into Children with No-one to turn to, 2001, http://www.kids.nsw.gov.au/files, referred to by the NSW Commission for Children and Young People.
74  In the Loop research project, Communications Law Centre, May 2001, provided as part of the submission from the Communications Law Centre.
75  Out of the Maze Pathways to the Future for Families Experiencing Separation, Report of the Family Law Pathways Advisory Group, July 2001, referred to by the Commonwealth Attorney-Generals Department.
76  National Alternative Dispute Resolution Advisory Council, Issues of fairness and justice in alternative dispute resolution Discussion Paper, Canberra, November 1997, paragraphs 8.298.47, referred to by the Commonwealth Attorney-Generals Department.
77  Fowler, B., Manager Broken Hill Community Inc., Access to Justice in Rural and Remote Areas, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
78  Access to Legal Information Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
79  Submission from the Energy and Water Ombudsman of NSW.
80  Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002.
81  National Alternative Dispute Resolution Advisory Council, Issues of fairness and justice in alternative dispute resolution Discussion Paper, Canberra, November 1997, paragraphs 7.18 and 7.21, referred to by the Commonwealth Attorney-Generals Department.
82  Ibid, paragraphs 7.227.24.
83  Ibid, paragraph 3.273.64.
84  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
85  Submission from the Law Society of NSW.
86  National Alternative Dispute Resolution Advisory Council, Issues of fairness and justice in alternative dispute resolution Discussion Paper, Canberra, November 1997, paragraph 9.12, referred to by the Commonwealth Attorney-Generals Department.
87  Ibid, paragraph 9.18.
88  Ibid, paragraph 9.15.
89  Ibid, paragraph 9.35.
90  Ibid, paragraph 9.29.
91  Submission from the Energy and Water Ombudsman of NSW.
92  Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002.
93  Law and Justice Foundation of NSW roundtable with NSW Law Society Family Law Committee, 9 October 2002.
94  Access to Legal Information Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
95  Submission from the Inner West Tenants Advice Service.
96  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
97  Alternatives to traditional approaches in Civil Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
98  Access to Legal Information Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
99  Submission from the NSW Attorney Generals Department.
100  Ibid.
101  Ibid.
102  Ibid.
103  Law and Justice Foundation of NSW roundtable with NSW Law Society Family Law Committee, 9 October 2002.
104  National Alternative Dispute Resolution Advisory Council, Issues of fairness and justice in alternative dispute resolution Discussion Paper, Canberra, November 1997, referred to by the Commonwealth Attorney-Generals Department.
105  Submission from the Public Trustee NSW.
106  Submission from the NSW Attorney Generals Department.
107  Ibid.
108  Ibid.
109  Ibid.
110  Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002, Neave, C., Some individual perspectives on access to justice, 20th Australian Institute of Judicial Administration Annual Conference, Access to Justice the way forward, 1214 July 2002.
111  Justice Ronald Sackville, Access to Justice Assumptions and Reality Checks, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
112  Submission from the Energy and Water Ombudsman of NSW.
113  Ibid.
114  Ibid.
115  Submission from People with Disabilities.
116  Cocks, K., Justice for All or Just for Some?, 20th Australian Institute of Judicial Administration Annual Conference, Access to Justice the way forward, 1214 July 2002.
117  National Alternative Dispute Resolution Advisory Council, Issues of fairness and justice in alternative dispute resolution Discussion Paper, Canberra, November 1997, paragraph 6.37, referred to by the Commonwealth Attorney-Generals Department.
118  Submission from the Public Trustee NSW.
119  Submission from the Energy and Water Ombudsman of NSW, Submission from the NSW Attorney Generals Department.
120  National Alternative Dispute Resolution Advisory Council, Issues of fairness and justice in alternative dispute resolution Discussion Paper, Canberra, November 1997, paragraph 4.26, referred to by the Commonwealth Attorney-Generals Department.
121  Ibid, paragraph 4.26.
122  Submission from the NSW Attorney Generals Department.
123  Ibid.
124  Ibid.
125  Submission from the Energy and Water Ombudsman of NSW.
126  Submission from the NSW Attorney Generals Department.
127  National Alternative Dispute Resolution Advisory Council, Issues of fairness and justice in alternative dispute resolution Discussion Paper, Canberra, November 1997, paragraphs 4.664.68, referred to by the Commonwealth Attorney-Generals Department.
128  Ibid, paragraph 4.57.
129  Access to Legal Information Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003
130  Submission from the NSW Attorney Generals Department.
131  Submission from the Youth Justice Coalition.
132  Submission from the Youth Action and Policy Association.
133  NSW Commission for Children and Young People, Inquiry into Children with No-one to turn to, 2001, http://www.kids.nsw.gov.au/files, referred to by the NSW Commission for Children and Young People.
134  Ibid.
135  Ibid.
136  National Alternative Dispute Resolution Advisory Council, Issues of fairness and justice in alternative dispute resolution Discussion Paper, Canberra, November 1997, paragraphs 5.475.49, 5.51, referred to by the Commonwealth Attorney-Generals Department.
137  NSW Commission for Children and Young People, Inquiry into Children with No-one to turn to, 2001, http://www.kids.nsw.gov.au/files, referred to by the NSW Commission for Children and Young People.
138  Submission from the Youth Justice Coalition.
139  Submission from the Youth Action and Policy Association.
140  Ibid.
141  National Alternative Dispute Resolution Advisory Council, Issues of fairness and justice in alternative dispute resolution Discussion Paper, Canberra, November 1997, paragraphs 5.47, 5.48 and 5.50, referred to by the Commonwealth Attorney-Generals Department.
142  Submission from the Public Trustee NSW.
143  Submission from Centrelink.
144  National Alternative Dispute Resolution Advisory Council, Issues of fairness and justice in alternative dispute resolution Discussion Paper, Canberra, November 1997, paragraphs 8.21, 8.24 and 8.25, referred to by the Commonwealth Attorney-Generals Department.
145  Submission from the NSW Attorney Generals Department.
146  Submission from the Public Trustee NSW.
147  Fowler, B., Manager Broken Hill Community Inc., Access to Justice in Rural and Remote Areas, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
148  Submission from the Energy and Water Ombudsman of NSW.
149  National Alternative Dispute Resolution Advisory Council, Issues of fairness and justice in alternative dispute resolution Discussion Paper, Canberra, November 1997, paragraphs 7.127.13, referred to by the Commonwealth Attorney-Generals Department.
150  Ibid, paragraph 7.15.
151  Ibid, paragraphs 3.21 and 3.23.
152  Submission from the NSW Attorney Generals department
153  Consultation with Peter Hennessy, Executive Director, NSW Law Reform Commission, 6 September 2002.
154  National Alternative Dispute Resolution Advisory Council, Issues of fairness and justice in alternative dispute resolution Discussion Paper, Canberra, November 1997, paragraph 9.08, referred to by the Commonwealth Attorney-Generals Department.
155  Submission from the Public Trustee NSW.
156  Submission from the Legal Counselling and Referral Centre.
157  Ibid.
158  Alternatives to traditional approaches in Civil Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
159  Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002.
160  Submission from the Communications Law Centre.
161  Access to Legal Information Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
162  Overcoming Barriers - A National Pro Bono Workshop, Sydney, 15 August 2002.
163  National Alternative Dispute Resolution Advisory Council, Report to the Attorney-General A framework for ADR standards, April 2001, referred to by the Commonwealth Attorney-Generals Department.
164  Submission from the North and NorthWest Community Legal Service Inc.
165  Law and Justice Foundation of NSW roundtable with NSW Law Society Family Law Committee, 9 October 2002.
166  Neave, C., Some individual perspectives on access to justice, 20th Australian Institute of Judicial Administration Annual Conference, Access to Justice the way forward, 1214 July 2002.
167  Submission from the Energy and Water Ombudsman NSW.
168  Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002.
169  Cocks, K., Justice for All or Just for Some?, 20th Australian Institute of Judicial Administration Annual Conference, Access to Justice the way forward, 1214 July 2002.
170  Access to Legal Information Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
171  Out of the Maze Pathways to the Future for Families Experiencing Separation, Report of the Family Law Pathways Advisory Group, July 2001, referred to by the Commonwealth Attorney-Generals Department.
172  National Alternative Dispute Resolution Advisory Council, Issues of fairness and justice in alternative dispute resolution Discussion Paper, Canberra, November 1997, paragraph 4.69.
173  Submission from the Youth Action and Policy Association.
174  Youth Justice Coalition, Kids and the Maze Submission to the ALRC/HREOC Inquiry into Children and the Legal Process, December 1996, provided as part of the submission from the Youth Justice Coalition.
175  Ibid.
176  Submission from the NSW Commission for Children and Young People.
177  NSW Commission for Children and Young People, Inquiry into Children with No-one to turn to, 2001, http://www.kids.nsw.gov.au/files, referred to by the NSW Commission for Children and Young People.
178  Access to Legal Information Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
179  Submission from the Youth Justice Coalition.
180  Out of the Maze Pathways to the Future for Families Experiencing Separation, Report of the Family Law Pathways Advisory Group, July 2001, referred to by the Commonwealth Attorney-Generals Department.
181  Alternatives to traditional approaches in Criminal Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
182  Ibid, Youth Justice Coalition, Kids and the Maze Submission to the ALRC/HREOC Inquiry into Children and the Legal Process, December 1996, provided as part of the submission from the Youth Justice Coalition, Submission from the NSW Commission for Children and Young People.
183  NSW Commission for Children and Young People, Inquiry into Children with No-one to turn to, 2001, http://www.kids.nsw.gov.au/files, referred to by the NSW Commission for Children and Young People.
184  Submission from the Youth Action and Policy Association.
185  Submission from Centrelink.
186  Ibid.
187  Out of the Maze Pathways to the Future for Families Experiencing Separation, Report of the Family Law Pathways Advisory Group, July 2001, referred to by the Commonwealth Attorney-Generals Department.
188  Access to Legal Information Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
189  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.


Ch 5. Participation in law reform
 Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
 Alternatives to traditional approaches in Civil Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
 Submission from Adam Johnston.
 Submission from the Inner West Tenancy Advice Service, Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002, Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
 Schetzer, L., Community Legal Centres and the future of law reform, Alternative Law Journal, Vol. 23, No. 5, October 1998, pp. 2547, referred to in consultations with community legal centres, Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
 Consultation with Dr. Patricia Ranald, Public Interest Advocacy Centre, 16 August 2002.
 Mitchell, M., Clamping down? Restrictions from funders, NCOSS Advocacy! Conference, 12 March 2003.
 Ibid.
 Melville, R., University of Wollongong, School of Social Change, Media and Communication, Arts Faculty, Delegitimizing the Voice of Peaks challenges to the advocacy and public policy roles of community-sector peak bodies, NCOSS Advocacy! Conference, 12 March 2003.
10  Mitchell, M., Clamping down? Restrictions from funders, NCOSS Advocacy! Conference, 12 March 2003.
11  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
12  Consultation with the Australian Law Reform Commission, 13 December 2002.
13  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002, Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002.
14  Consultation with the Australian Law Reform Commission, 13 December 2002.
15  Review of the Judiciary Act 1903, ALRC Discussion Paper 64, Australian Law Reform Commission, December 2000.
16  Consultation with the Australian Law Reform Commission, 13 December 2002.
17  Such a long way The effects of the Legal Process on the victims of the Glenbrook train accident, Blue Mountains Community Legal Centre Inc, September 2000, provided by the Blue Mountains Community Legal Centre.
18  Ibid.
19  Consultation with Dr. Patricia Ranald, Public Interest Advocacy Centre, 16 August 2002.
20  Submission from the Legal Counselling and Referral Centre.
21  Submission from the Energy and Water Ombudsman of NSW.
22  Consultation with Peter Hennessy, Executive Director, NSW Law Reform Commission, 6 September 2002.
23  NSW Law Reform Commission Research Report 3, People with an Intellectual Disability and the Criminal Justice System: Consultation, paragraph 1.10, provided by the NSW Law Reform Commission.
24  Consultation with the Australian Law Reform Commission, 13 December 2002.
25  National Alternative Dispute Resolution Advisory Council, Issues of fairness and justice in alternative dispute resolution Discussion Paper, Canberra, November 1997, paragraph 6.66, referred to by the Commonwealth Attorney-Generals Department.
26  Consultation with Peter Hennessy, Executive Director, NSW Law Reform Commission, 6 September 2002.
27  NSW Law Reform Commission Research Report 3, People with an Intellectual Disability and the Criminal Justice System: Consultation, paragraph 1.10, provided by the NSW Law Reform Commission.
28  Ibid.
29  Such a long way The effects of the Legal Process on the victims of the Glenbrook train accident, Blue Mountains Community Legal Centre Inc, September 2000, provided by the Blue Mountains Community Legal Centre.
30  Consultation with the Australian Law Reform Commission, 13 December 2002.
31  Australian Law Reform Commission, Report No. 89 Managing Justice A review of the federal civil justice system, January 2000.
32  Consultation with the Australian Law Reform Commission, 13 December 2002.
33  Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002.
34  Submission from the Youth Action and Policy Association, Submission from the Youth Justice Coalition.
35  Youth Justice Coalition, Kids and the Maze Submission to the ALRC/HREOC Inquiry into Children and the Legal Process, December 1996, provided as part of the submission from the Youth Justice Coalition.
36  Such a long way The effects of the Legal Process on the victims of the Glenbrook train accident, Blue Mountains Community Legal Centre Inc, September 2000, provided by the Blue Mountains Community Legal Centre.
37  Consultation with Peter Hennessy, Executive Director, NSW Law Reform Commission, 6 September 2002.
38  Such a long way The effects of the Legal Process on the victims of the Glenbrook train accident, Blue Mountains Community Legal Centre Inc, September 2000, provided by the Blue Mountains Community Legal Centre.
39  National Alternative Dispute Resolution Advisory Council, Issues of fairness and justice in alternative dispute resolution Discussion Paper, Canberra, November 1997, paragraph 7.32, referred to by the Commonwealth Attorney-Generals Department.
40  Submission from the National Womens Justice Coalition.
41  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
42  National Alternative Dispute Resolution Advisory Council, Issues of fairness and justice in alternative dispute resolution Discussion Paper, Canberra, November 1997, paragraph 9.32, referred to by the Commonwealth Attorney-Generals Department.
43  Such a long way The effects of the Legal Process on the victims of the Glenbrook train accident, Blue Mountains Community Legal Centre Inc, September 2000, provided by the Blue Mountains Community Legal Centre.
44  Submission from Adam Johnston.
45  Mitchell, M., Clamping down? Restrictions from funders, NCOSS Advocacy! Conference, 12 March 2003.
46  Submission from the Immigration Advice and Rights Centre, Submission from the North and North West Community Legal Service Inc, Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002, Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
47  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
48  Consultation with Dr. Patricia Ranald, Public Interest Advocacy Centre, 16 August 2002.
49  Duffy, D., Working the System A guide for citizens, consumers and communities, Public Interest Advocacy Centre, Sydney, 1996, referred to in consultations with the Public Interest Advocacy Centre.
50  http://www.piac.asn.au/training/Public.html
51  Submission from the NSW Attorney Generals Department.
52  Consultation with Peter Hennessy, Executive Director, NSW Law Reform Commission, 6 September 2002.
53  It is important to note that not every ALRC inquiry will use all three stages of the publication strategy. This will depend upon the nature of the inquiry.
54  Consultation with the Australian Law Reform Commission, 13 December 2002.
55  Opeskin, B., Engaging the public community participation in the genetic information inquiry, Reform, Issue 80 2002, Australian Law Reform Commission, pp. 538, referred to in consultations with the Australian Law Reform Commission.
56  Ibid.
57  Ibid.
58  Ibid.
59  Protection of Human Genetic Information, ALRC Discussion Paper 66, Australian Law Reform Commission, September 2002.
60  Opeskin, B., Engaging the public community participation in the genetic information inquiry, Reform, Issue 80 2002, Australian Law Reform Commission, pp. 538, referred to in consultations with the Australian Law Reform Commission.
61  Submission from the Energy and Water Ombudsman of NSW.
62  Submission from NSW Law Reform Commission.
63  Review of the Disability Services Act 1993 (NSW) and the Community Services (Complaints, Appeals and Monitoring) Act 1993 (NSW), Research Report 9, NSW Law Reform Commission, May 1999, provided by the NSW Law Reform Commission.
64  Australian Law Reform Commission Annual Report 2001/02.
65  Commonwealth disability services legislation: the Commonwealths Disability Services Program and the Commonwealth Rehabilitation Service: review of legislation administered by the Department of Human Services and Health, 1995, ALRC Discussion Paper 60, Australian Law Reform Commission, 1995.
66  Consultation with the Australian Law Reform Commission, 13 December 2002.
67  Protection of Human Genetic Information, ALRC Discussion Paper 66, Australian Law Reform Commission, September 2002.
68  Consultation with the Australian Law Reform Commission, 13 December 2002.
69  Piper, M., The Refugee Council and Advocacy, NCOSS Advocacy! Conference, 12 March 2003.
70  http://www.refugeecouncil.org.au/html/current_issues/
71  Sentencing Aboriginal Offenders, Report 96 (2000), NSW Law Reform Commission.
72  Consultation with Peter Hennessy, Executive Director, NSW Law Reform Commission, 6 September 2002, Submission from the NSW Attorney Generals Department.
73  Consultation with the Australian Law Reform Commission, 13 December 2002.
74  Submission from the Youth Justice Coalition.
75  Seen and Heard: priority for children in the legal process, ALRC Report 84, Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, September 1997.
76  Consultation with the Australian Law Reform Commission, 13 December 2002.
77  Submission from the NSW Attorney Generals Department.
78  Consultation with the Australian Law Reform Commission, 13 December 2002.
79  Submission from the NSW Attorney Generals Department.
80  Consultation with the Australian Law Reform Commission, 13 December 2002.
81  Submission from the Immigration Advice and Rights Centre, Submission from the Inner West Tenancy Advice Service, Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002, Law and Justice Foundation of NSW roundtable with community legal centres at the NSW Combined Community Legal Centres Groups State Conference, 25 November 2002.
82  Schetzer, L., Community Legal Centres and the future of law reform, Alternative Law Journal, Vol. 23, No. 5, October 1998, pp. 254257, referred to in consultations with community legal centres.
83  Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
84  Disney, J., Systemic and Strategic Advocacy, NCOSS Advocacy! Conference, 12 March 2003.
85  Ibid.
86  Opeskin, B., Engaging the public community participation in the genetic information inquiry, Reform, Issue 80 2002, Australian Law Reform Commission, pp. 538, referred to in consultations with the Australian Law Reform Commission.
87  Consultation with the Australian Law Reform Commission, 13 December 2002.
88  Melville, R., University of Wollongong, School of Social Change, Media and Communication, Arts Faculty, Delegitimizing the Voice of Peaks challenges to the advocacy and public policy roles of community-sector peak bodies, NCOSS Advocacy! Conference, 12 March 2003.
89  Ibid.
90  Such a long way The effects of the Legal Process on the victims of the Glenbrook train accident, Blue Mountains Community Legal Centre Inc, September 2000, provided by the Blue Mountains Community Legal Centre.
91  Youth Justice Coalition, Kids and the Maze Submission to the ALRC/HREOC Inquiry into Children and the Legal Process, December 1996, provided as part of the submission from the Youth Justice Coalition.
92  Submission from the NSW Commission for Children and Young People.
93  Submission from the National Womens Justice Coalition.


Ch 6. Suggested areas for further research
 Submission from the NSW Attorney Generals Department.
 NSW Commission for Children and Young People, Inquiry into Children with No-one to turn to, 2001, http://www.kids.nsw.gov.au/files, referred to by the submission from the NSW Commission for Children and Young People.
 Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
 Submission from the Legal Counselling and Referral Centre.
 Law and Justice Foundation of NSW roundtable with community and non-government organisations, 16 October 2002.
 Submission from People with Disabilities.
 Ibid.
 Consultation with Mr. Gordon Renouf, Director, National Pro Bono Resource Centre, 19 September 2002.
 Report of the National Pro Bono Task Force to the Commonwealth Attorney-General, 14 June 2001, referred to by the Commonwealth Attorney-Generals Department.
10  Abbott, T., President Law Council of Australia, Courts and the Public, Australian Institute of Judicial Administration Annual Conference, Access to Justice the way forward, 1214 July 2002.
11  Ibid.
12  Ibid.
13  Justice Ronald Sackville, From Access to Justice to Managing Justice: The Transformation of the Judicial Role, Australian Institute of Judicial Administration Annual Conference, Access to Justice the way forward, 1214 July 2002.
14  Alternatives to traditional approaches in Civil Law Working Group Discussion, Access to Justice Roundtable Proceedings of a Workshop July 2002, Law and Justice Foundation of NSW, April 2003.
15  Consultation with Mr. Alan Kirkland, Director, New South Wales Council of Social Service (NCOSS), 5 July 2002.


Appendix 1


Appendix 2


Appendix 3


Bibliography


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