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On the Record - The e-bulletin Issue #12 September 2010


On the Record – The e-bulletin


Community Legal Centres: Community, Compassion, Justice
Issue #12 September 2010


This is the twelfth edition of On the Record, the quarterly e-bulletin of Community Legal Centres NSW Inc. (CLCNSW).  CLCNSW is the peak representative body for Community Legal Centres (CLCs) in NSW.  CLCs are independent community organisations providing equitable and accessible legal services.  To find out more about CLCs in NSW visit www.clcnsw.org.au

For more information about On the Record, or any of the events happening in community legal centres, contact Alastair McEwin, CLCNSW Director, Alastair_McEwin@clc.net.au or phone (02) 9212 7333.

If you do not wish to receive future issues of On the Record, please follow the instructions to unsubscribe below.  If you know others who may wish to receive the e-bulletin, feel free to forward this email, and they will be able to subscribe themselves to our list with the link below.  Or you can subscribe by filling out the form on our website.  You can also change which email address the e-bulletin goes to, and update other details, by following the links at the bottom of the email. 

 

 

Contents:

 

1. Community Legal Sector News

CLCNSW Survey on Learning & Development program

 

2. Community Law

Stolen Wages deadline looms 

New climate change case and challenge to privative clause

The Safe Relationships Project

Recent Macarthur LC case studies

CLSDM Western region outreach trip

Reaching out for Rights

Assisting people with intellectual disability and their families

FRC training in Albury/Wodonga

 

3. Publications

Updated version of “Appealing to the Social Security Appeals Tribunal”

4. Events and developments

Honourable mention in children’s law award for Marrickville LC lawyer

University of Newcastle LC shortlisted for Law Society award

Edward Santow to head PIAC

 

5. What are Community Legal Centres and what is CLCNSW?

 

1. Community Legal Sector News

 

Survey: CLCNSW Learning and Development program

The State Office is currently undertaking an evaluation of its Learning & Development (L&D) program.  Matrix on Board has been contracted to undertake the evaluation and is due to report to CLCNSW on its findings in December.  The final report will form the basis of CLCNSW's application to the Public Purpose Fund (PPF) for ongoing funding from 1 July 2011.

Many CLC staff have participated in training sessions, such as Legal or Management Training Days, governance training, sessions during the quarterlies, external training, and the Practice Management Course at the College of Law.

We now seek feedback on CLC staff experiences of these and other initiatives of the L&D program.  This feedback will form an integral part of the findings of the evaluation.  Please take 10 minutes to complete the online survey, which can be accessed by the following link:

http://www.surveymonkey.com/s/CLCNSW

Please reply by COB Thursday 30 September.

Further information: Alastair McEwin, CLCNSW, alastair_mcewin@clc.net.au

 

2.       Community law

 

Stolen Wages deadline looms 

A looming December deadline for claims lodged with the Aboriginal Trust Fund Repayment Scheme has raised concerns about fairness and transparency.

Less than 2000 claims have been processed by the Scheme in the five years in which it has been operating. The Scheme must now process more than double that number in less than five months if it is to finalise all outstanding claims before the Scheme closes on 31 December 2010.

PIAC Acting Principal Solicitor Vavaa Mawuli said the backlog of claims is a huge concern for PIAC’s Indigenous Justice Project and other advocacy groups.  ‘We want to ensure that claims are processed expediently and in a manner which is fair and transparent and affords procedural fairness to all claimants,’ Ms Mawuli said.

The Scheme will prioritise claims from elderly and frail claimants and those with life-threatening medical conditions.

 

Further information: Vavaa Mawuli, PIAC, ph. (02) 8898 6500 or visit www.piac.asn.au

 

New climate change case and challenge to privative clause

Ned Haughton v Minister for Planning and Macquarie Generation; Ned Haughton v Minister for Planning and Delta Electricity

 

The NSW Minister for Planning (Tony Kelly) has granted concept approval for two new coal or gas fired power stations – Bayswater B Power Station and the Mount Piper Power Station Extension.  Both proposals have been declared to be ‘critical infrastructure’ projects under the Environmental Planning and Assessment Act 1979 (the EP&A Act), which means that the approvals cannot be challenged by third party objectors without the Minister’s permission.  If the power stations are powered by coal, they are likely to increase NSW's annual carbon dioxide emissions by over 15% and will have a significant adverse impact on the State's ability to meet its targets in relation to the reduction of greenhouse gas emissions and the consumption of renewable energy.

The EDO is acting for Ned Haughton – a student and environmental activist challenging the Minister for Planning's approvals in two sets of Land and Environment Court proceedings.  Mr Haughton seeks declarations that the concept plan approvals are invalid and of no effect; orders quashing the concept plan approvals; and injunctions restraining each of the proponents from taking any action in reliance on the concept plan approvals.

The Land and Environment Court proceedings are the latest climate change cases seeking to require decision makers to properly consider the impacts of coal-fired power generation on global greenhouse gas emissions and the implications of climate change for NSW and Australia. Mr Haughton is challenging the validity of the approvals on several grounds but most significantly, on the ground that the Minister failed to consider the impact of the projects (both alone and together) on climate change.  Mr Haughton will argue that the Minister was required to do so as part of his duty to consider the public interest.  Similarly, Mr Haughton will seek to establish that the Minister failed to consider the principles of ecologically sustainable development (ESD), particularly the precautionary principle and the principle of intergenerational equity, as he was also required to do as part of his duty to consider the public interest.

To support this argument, Mr Haughton will be relying on expert evidence from Professor Ian Lowe (President of the Australian Conservation Foundation) to establish that, at the time the approvals were granted, climate change and the principles of ESD were plainly a part of the public interest.  It will also be argued that the Minister failed to exercise his duty to make inquiries into the application of the principles of ESD to the proposals and that the Minister misconceived the extent of his powers under the EP&A Act, by relying on advice from the NSW Director-General that it was not the role of the NSW Department of Planning to regulate greenhouse gas emissions.

Mr Haughton will also seek to rely on expert evidence from Chris Dunstan, Research Director at the Institute for Sustainable Futures, to support his arguments that the Minister could not be satisfied that two new coal-fired power stations in NSW are needed or justified and that in these circumstances, the Minister’s approvals are illogical.

Importantly, Mr Haughton will also challenge a privative clause in the EP&A Act.  Section 75T purports to prevent judicial review of breaches of the EP&A Act in respect of critical infrastructure projects, by requiring the Minister’s approval to commence proceedings.  Mr Haughton sought approval from the Minister to commence the cases and was refused.  The Minister accordingly will rely on section 75T to argue that the cases should be dismissed.  Mr Haughton will rely on the recent High Court decision of Kirk v Industrial Relations Commission [2010] HCA 1, to support his argument that section 75T of the EP&A Act cannot shield decisions affected by jurisdictional error from review by the Land and Environment Court.

If Mr Haughton is successful in his arguments on climate change and ESD, this will significantly improve the requirements for environmental assessment of major coal-fired power stations in NSW by requiring proponents to assess the contribution of particular projects to global emissions, and the impacts of those global emissions on NSW and Australia.  It will also make it clearer that the Minister is required to consider ESD as part of the public interest.

The hearing was listed for 15, 16, 17 and 20 September 2010.

 

Further information: Kirsty Ruddock, EDO, Kirsty.ruddock@edo.org.au

 

The Safe Relationships Project

The Safe Relationships Project (SRP) is a project of the Inner City Legal Centre.  The SRP is a court assistance scheme for people in same sex relationships, transgender and transsexual people, and intersex people who are experiencing domestic violence.

The aim of the SRP is to assist clients in accessing legal representation and applying for Apprehended Violence Orders as well as providing support, advocacy, referrals and information.

People who are experiencing domestic violence are already in a vulnerable position.  Often they feel isolated and scared, not knowing where to turn too for help.  It is a very brave act to take those steps to get help and especially to apply for an AVO as a means for the violence or abuse to stop.  What stops people who are gay, transgender or intersex from taking those steps is the additional fear of being discriminated against because of their sex, gender or sexuality.

By creating the SRP we have developed a service where people from these communities can seek help without fear of being discriminated, and with our fear that the abuse they have suffered will not be misunderstood because of their sex, gender or sexuality.

The SRP is the first of its kind in Australia (and possibly the world).  The project was launched on 1 July 2009 and in its first year of operation the SRP had 30 clients contact the service.  This included 13 lesbian identified clients, 11 gay male clients and 5 transgender female clients.

Initial assistance provided to clients included providing information about AVOs and the court process, having phone discussions and listening to their story, sending resources (SRP pamphlets, Another Closet resource, Legal Aid pamphlets) and referring clients to counselling.  Further assistance included accompanying clients to the police station to make statements, providing legal advice on other areas of law and providing court support.

The SRP provided legal representation for 3 clients in AVO cases.  This included appearing for clients at mentions and preparing for hearings.  The type of abuse experienced by SRP clients varied. However unique issues relating to our clients sex, gender or sexuality included: the fear of being ‘outed’, the fear of the police and courts stereotyping ‘butch’ and ‘femme’, the use of homophobia and transphobia as a form of abuse and, the use of BDSM and the issue of consent.

Case Study One:

A transgender female client was in an ‘on and off again’ relationship for 10 years with a male partner.  The partner was abusive through out the 10-year period, with a prior history of AVOs.  There was physical and emotional abuse, which included comments such as “you’re a freak”, “you’re a man in a dress”, “no one else will love you”.  The SRP assistance included supporting the client though a Police AVO process and providing legal representation for a Private AVO.

Result: Mutual AVOs for 2 years.

Case Study Two:

A gay male client was in an abusive 4-year relationship with another party. The two parties lived and worked together at the same firm.  Both parties were not “out” at workplace.   The partner had been abusive during the relationship, having outbursts, verbal abuse, smashing furniture, controlling who our client saw and where he would go, restricted our client from seeing family and friends, threats of physical violence if the client left him, and threats to kill him.  The police had been called and an AVO being sought.  The client received property law advice at ICLC and referred the client to counselling and the partner referred to anger management counselling.

Result: ICLC client went back to the other party in the belief that he was going to change with anger management counselling program.

Case Study Three

ICLC lesbian client had been in a relationship with a partner for 12 years.  The relationship had broken down and they were living separately.  In the past, the partner had tried to burn the house down, damaged property (car), and tried to run the client over.  The other party was driving past the client’s house every day.  The client was of butch appearance and the other party of feminine appearance.   The ICLC client was concerned police would not believe her because she was butch.  Police had been called multiple times to the house.  ICLC assisted the client by accompanying her to the police station to seek an AVO against the other party.  Police did not find enough evidence to take out an AVO.

Result: Client going to counselling and was feeling better about the situation.  No longer sought AVO.

Further information: srp@clc.net.au, www.iclc.org.au/srp/

 

 

Recent Macarthur LC case studies

 

Case Study One

The client was caught driving more than 30km/h but not more than 45km/h in a school one.  This offence carried 6-demerit points loss, an $872.00 fine and an automatic 3-month suspension.

The client advised the CLC lawyer of her driving responsibility for her family and also for her extended family.  The offence had taken place in an unfamiliar area and she acknowledged that she had made a mistake. The client was desperate to hold onto her drivers licence.

The lawyer advised the client that the CLC would assist her with a submission that she needed to provide to the Presiding Magistrate on the day of the hearing.  The submission required a driving record from the RTA, two character references, one from the school assistant and the other from the family doctor.

The Centre submitted that His Honour should deal with the matter by considering the client’s daily and family commitments and mitigating circumstances and dealing with the matter appropriately.  The Centre requested that His Honour deal with this matter pursuant to s10 of the Crimes (Sentencing Procedure) Act 1999.

The Magistrate ruled in the client’s favour and the suspension period of 3 months was squashed.  The client was very happy with the result and thanked the lawyer for the service provided and for the Centre for their initial assistance.

Case Study Two

The client informed the CLC that his car had been stolen and that his insurance company had refused to make the payment.  The insurance company denied his claim, as they advised that prior to the contract of insurance being entered into, the client had a duty of disclosure to them. At the time of entering the contract they asked, “In the last ten years have you or any of the drivers had any criminal or drink driving offences?” The client answered “No”, and the Insurance Company claimed that he did not disclose his offences, and had he done so, they would not have offered him insurance, as it fell outside their underwriting guidelines.

The client had 6 offences but these were at the Children’s Court and the client believed that the question was in relation to drink driving offences or driving offences in general.

A complaint was forwarded to the Financial Ombudsman regarding the refused claim and with supporting submissions, documents and arguments.  The Financial Ombudsman ruled in the client’s favour and he received the motor vehicles insured amount of $18,500.00.

The client was overwhelmed with the outcome and thanked the Centre for their assistance and efforts in regards to his claim.

 

Further information: Prue Gregory, Macarthur LC, prue_gregory@clc.net.au

 

CLSDM Western region outreach trip

During the week of 9 – 13 August 2010, the CLSDM Central West Region undertook an outreach trip to Lightning Ridge and Goodooga in far North-western NSW.  Participants were Patrick O’Callaghan from Western NSW CLC, Patrick Latham and Sarah Ibrahim from Legal Aid Dubbo and Amelia Davis, pro bono solicitor, Blake Dawson.  At Goodooga the team held talks with, and took instructions from, local Aboriginal community members in relation to Wills, Powers of Attorney and Enduring Guardianship.  In most cases, thanks to the resources of Blake Dawson, the team was able to prepare the documents while there and have the clients execute them.  9 people were assisted in that community of 200-300 people.  At Lightning Ridge the team held a CLE on Wills, Powers of Attorney and Enduring Guardianship.  Lightning Ridge is a multi-cultural community with people from CALD backgrounds.  10 people attended the CLE and then the lawyers took instructions from 6 people in relation to the same documents.  Due to time constraints not all of those could be prepared whilst in town so Blake Dawson took them back to Sydney and are currently finalising them.  Patrick O’Callaghan will then travel back out to Lightning Ridge to have the documents executed.

The two communities of Lightning Ridge and Goodooga are very isolated geographically, socially and economically.  It was a very positive experience for all involved to be able to provide this service and the team met some very funny and interesting people from various backgrounds.

Further information: Patrick O’Callaghan, Western NSW CLC, Patrick_ocallaghan@clc.net.au

 

Reaching out for Rights

The Reaching out for Rights Project seeks to improve access to justice for women who have experienced family violence.  Women who have experienced family violence face particular challenges in accessing and negotiating the justice system.  In 2009, Women’s Legal Services NSW received a grant of $150,000 from the NSW Office For Women Family and Domestic Violence Grants Program to address the legal needs of women who have experienced family violence across selected areas of the State. The areas were chosen based on findings from the CLCNSW Legal Needs research project undertaken in 2009 which identified areas of the NSW that had high unmet legal needs.

The project aimed to increase the ability of workers to respond appropriately, advocate effectively within their area and to utilise legal resources available to assist women who have experienced family violence.  The grant allowed the appointment of a full time solicitor, Felicity Martin, and Aboriginal community access workers, Sophia Cubillo (to June 2010) and currently Shian Barker.

A key feature of the project was a series of one-day workshops for community, health and other workers.  The early stage of the project developed strategic links with services to ensure that the workshops were well targeted.  We were particularly interested in having workers attend who were likely to be having contact with women who had experienced family violence.  As many of these workers have contact with women prior to reporting, these workers are crucial in assisting women to get appropriate advice and support.  The project also focussed on workers assisting women who experience extra barriers to getting help and negotiating the justice system, such as Indigenous women, women from culturally and linguistically diverse backgrounds, refugee women and women living with disability.

In all, 18 one-day workshops were held.  A total of 325 workers attended the training.  Workshops were run in rural areas including Taree, Port Macquarie, Coffs Harbour, Bega, Moruya, Cooma, Deniliquin, Balranald, Dareton, Goulburn and Yass.  We also provided information sessions for health workers in Hay and Balranald who were unable to attend the one-day workshops, and sessions for community members in Bowraville and Bega.  In the Sydney region, workshops were held in Campsie, Bankstown, Mt Druitt and Auburn.

The workshops covered legal protections available, reporting violence, relevant family law issues, assisting women to get legal help and advocating for women with police and other parts of the justice system. We worked closely with the NSW Ombudsman’s Office and jointly provided the workshops in most regions.  Juliana Demetrius, Rebecca Curran and Laurel Russ from the Ombudsman’s Office were directly involved in co-facilitating.  The last workshop in Auburn on 21 September 2010 was specifically for settlement workers and Chris Yuen from Immigrant Advice & Rights Centre also presented. 

A great diversity of workers attended the training, including workers in health, Aboriginal services, migrant services, disability services, child protection, police, domestic violence services, refuges, youth services, community development, counselling, family support, children’s services, legal services, and solicitors in private practice.  Each workshop day provided a valuable opportunity for participants to network, discuss concerns about responses to family violence in their area and, in the rural areas in particular, explore ideas and develop working partnerships to respond to those concerns.

The funding has also allowed the development of a ‘breach diary’.  This resource will be released soon and distributed through Women’s Domestic Violence Court Advocacy Services to women who have apprehended violence orders.  It aims to encourage the reporting of breaches, to provide current information about the obligations of the NSW police in relation to breaches and assistance for women not satisfied with police response.

Recently WLS was successful in obtaining another grant of $100,000 through the NSW Office For Women Family and Domestic Violence Grants Program for the ‘Skill Up - Speak Up’ Project which will allow the Indigenous Women’s Program at WLS to return to the rural areas and Mt Druitt in Sydney, to work with Aboriginal services and offer community legal education to Aboriginal women about family violence.  This project will run throughout 2010 – 2011.

 

Further information:

‘Skill Up - Speak Up’ Project: Donna Hensen, Indigenous Women’s Program Co-ordinator, donnah@wlsnsw.org.au or (02) 8745 9600.

‘Reaching out for Rights’ Project: Felicity Martin, Domestic Violence Advocacy Service, felicity_martin@clc.net.au or (02) 8745 6944.

 

Assisting people with intellectual disability and their families

Macarthur LC recently presented a workshop to parents of children with an intellectual disability.  The workshop was on wills and powers of attorney etc.  There were real concerns among the group of parents that if they left anything to their children in their wills, the assets would disappear quickly.   As a result, Macarthur approached Blake Dawson for pro bono assistance, who has agreed to spend a day at Minto seeing at least 6 parents to prepare wills which contain life interests which will enable the assets to be protected for the children.

Out of this same session came concerns that the children (now over 18) were giving consent to procedures at the hospital without having a true understanding of what it was they were consenting to.  The parents were trying to convince the hospital that the children did not understand what was going on and the parents were pleading with the hospital to notify them if decisions were to be made about their children's health.  The hospital has said the children are over 18 and the parents are not the ones to be consenting to the procedures.  Macarthur LC is reviewing what policy changes can be effected to enable the parents to continue to make decisions for their children (who are living at home and totally dependent on their families) in relation to health issues.

 

Further information: Prue Gregory, Macarthur LC, prue_gregory@clc.net.au

 

FRC training in Albury/Wodonga

In October 2010 Mary Gleeson of Legal Aid NSW will be attending the Wodonga Family Relationship Centre to provide training to staff of the Hume Riverina Community Legal Service and the Family Relationship Centre regarding legally assisted mediations at the Family Relationship Centre.

The Family Relationship Centre Wodonga services clients from both NSW and Victorian side of the border, and has assisted over 100 clients from Albury and surrounding areas of NSW with mediation services since 1 January this year.

 

Further information, Andrew Johanson, Hume Riverina Community Legal Service, AJohanson@umfc.com.au

 

3.       Publications

 

Updated version of “Appealing to the Social Security Appeals Tribunal”

The Welfare Rights Centre has published an updated version of its self-help guide for people who want to appeal against a Centrelink decision - "Appealing to the Social Security Appeals Tribunal".  The guide provides an overview of the process of appealing to the SSAT, tips on how to prepare for a hearing, an outline of what will happen at a hearing and resources available to help with an appeal.  The guide is available online at www.welfarerights.org.au, or hardcopies can be requested from the Centre by telephoning ph (02) 9211 5389.

Further information: Welfare Rights Centre, welfarerights@welfarerights.org.au

 

 

4.       Events and developments

 

Honourable mention in children’s law award for Marrickville LC lawyer

Marrickville Legal Centre nominated Katrina Wong, its Children's and Youth Solicitor, for the National Children's Law Awards.  This nomination was in recognition of the remarkable achievements Katrina has attained with the Children's Legal Service, a State-wide specialist legal service working with Under 18s.  There were over 29 applications made, and Katrina was shortlisted as one of only 3 nominees for the National Award for Outstanding Contribution to Advocacy in Policy or Law Reform to Advance the Legal Rights and Interests of Children & Young People.

At the Awards night, Katrina received an honorable mention and Marrickville Legal Centre congratulates Katrina for being recognised for her advocacy work and for taking the Children's Legal Service from strength to strength.

 

Further information: http://www.lawyersweekly.com.au/blogs/top_stories/archive/2010/04/20/children-s-law-advocates-honoured.aspx

 

University of Newcastle LC shortlisted for Law Society award

The University of Newcastle Legal Centre was shortlisted for the 2010 Law Society award for the Enhancement of the NSW Legal Profession at the recent ALB awards in Sydney.  The Law Society award recognises significant contributions to the enhancement of the NSW legal profession.

The University of Newcastle LC has a long history of running significant public interest community legal cases.  Most recently, these include acting for the family of Cornelia Rau in the Commonwealth government inquiry into the circumstances of Ms Rau’s detention, acting for the family of Roni Levi, killed by police on Bondi Beach, and acting for 6 Indigenous clients in the ADT on a discrimination claim.

Further information: Shaun McCarthy, University of Newcastle LC, Shaun.Mccarthy@newcastle.edu.au

 

Edward Santow to head PIAC

The Public Interest Advocacy Centre has appointed Edward Santow as its new Chief Executive Officer.

Edward is the Director of the Charter of Human Rights Project and Co-Director of the Terrorism and Law Project at the Gilbert + Tobin Centre of Public Law, at the University of New South Wales (UNSW). 

He is a Senior Lecturer at UNSW, teaching Administrative, Constitutional, Human Rights and Public Law.

Edward has previously worked with the Australian Law Reform Commission and Mallesons Stephen Jacques.  In 2004, he was appointed to a European Union-funded project investigating anti-discrimination legislation in Europe, North America and Australia.  His community and voluntary activities include the Vice Presidency of the Refugee Advice and Casework Service and membership of the Executive Committee of the Australian Human Rights Group.  He is also a member of the Steering Committee for the Global Alliance for Justice Education.

In 2004, Edward was admitted as a Solicitor of the Supreme Court of NSW.  He holds a Masters of Laws from the University of Cambridge in addition to degrees in law and arts from the University of Sydney.

Edward starts at PIAC on 11 October 2010.

Further information: Dominic O’Grady, PIAC, dogrady@piac.asn.au

 

5.       What are Community Legal Centres and what is CLCNSW?

Community Legal Centres (CLCs) are independent community organisations providing equitable and accessible legal services. NSW CLCs work for the public interest, particularly for disadvantaged and marginalised people and communities.  CLCs not only provide legal advice and assistance, but also encourage and enable people to develop skills to be their own advocates.  We promote human rights, social justice and a better environment by advocating for access to justice and equitable laws and legal systems.  Centres work towards achieving systemic change through community legal education, and through law and policy reform.

 

Community Legal Centres NSW Inc. (CLCNSW) is the peak body for CLCs in NSW.  It is resourced by a small State Office which is funded by the NSW Government and Public Purpose Fund.  CLCNSW has 39 member organisations including generalist and specialist community legal centres.

Further information:

Phone: (02) 9212 7333

www.clcnsw.org.au

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