ࡱ> g wbjbjVV 7r<r<Un5S &666JJJ8 Jp"Z 7999999$@|]6(((]66rN***(p667*(7**fpЬxe6)|D#<]8)r6!*#%=]]^*^(((( :  RESPONSE TO AFRICAN AUSTRALIANS: A REPORT ON HUMAN RIGHTS AND SOCIAL INCLUSION ISSUES SUBMISSION ON BEHALF OF LEGAL AID NEW SOUTH WALES to THE AUSTRALIAN HUMAN RIGHTS COMMISSIONLEGAL AID NSW The Legal Aid Commission of New South Wales (Legal Aid NSW) is established under the Legal Aid Commission Act 1979 (NSW) as an independent statutory body. We are the largest legal aid agency in Australia and provide a wide range of legal services to socially and economically disadvantaged people through a network of 22 offices across NSW. We work with a wide range of government and community legal agencies and private lawyers to provide legal services. Legal Aid NSW plays an important role in improving access to justice for disadvantaged people. People from culturally diverse backgrounds, financially disadvantaged people, people with a disability, refugees, women, homeless people, Aboriginal and Torres Strait Islander peoples, and those who are institutionalised are widely represented in our client base. We are focused on prioritising our services for those at greatest risk of social exclusion; early access to legal assistance through information, community legal education and reforms to the legal system; and improving our responses to the diverse needs of clients. NSW Legal Assistance Forum The NSW Legal Assistance Forum (NLAF) is a forum of public legal assistance providers in NSW. It is currently chaired by the Chief Executive Officer of Legal Aid NSW. Its aim is to continuously improve service delivery to socially and economically disadvantaged people through improved alignment of planning, program design and service delivery by providers of legal assistance services. NLAFs Working Group on Culturally and Linguistically Diverse (CALD) Communities was established in 2008 to improve legal services to these communities by focusing on effective engagement between the legal and migrant services sectors. A sub-group, chaired by the Registrar of the Blacktown Local Court, was established to look at the legal needs of the Sudanese community in the Blacktown area. The work of the Group has provided insight into a number of issues raised by the discussion paper. SUBMISSION This submission by Legal Aid NSW is confined to the section on Justice. Responses have been provided on selected questions only. Numbered questions in this report correspond to those in the African Australians: A report on human rights and social inclusion issues Discussion Paper. 1. Legal and justice needs of African Australians 5.1 Do you have any comments/ observations/ stories on the experience of African Australians (including African youth) with the legal and justice systems? While many migrants lack familiarity with the Australian legal system, the difficulties faced by African Australians appears to be compounded by other factors. Limited financial resources lead to difficulties for many people, and language and literacy are also issues for other migrants. However, many African Australians have experienced significant trauma prior to their arrival, due to civil war and extended periods in refugee camps, and are also concerned about the safety and survival of family members not in Australia. The effects of this are profound, complex and frequently long-lasting. The combination of disadvantages faced by African Australians may make them more vulnerable than most people in our community. This compounding effect has the potential to severely affect the settlement process and diminish aspirations for a new beginning. Interaction with the law In terms of interaction with the law, small infringements can spiral into serious offences that can have serious consequences for settlement. Two common scenarios that demonstrate these issues are: Being unaware of, or unable to read signs A lack of awareness or inability to read signs prohibiting smoking on railway property or disposing of cigarette butts on the ground, may lead to very high fines. People receiving these fines do have the option to elect to take the matter to court, where it is possible that the fine will be reduced or no conviction will be entered (and no fine applied). However the person must have the literacy to be able to read the back of the infringement notice, the understanding of the option of a 'court election', and the ability to attend court and argue their case. Legal aid is generally not available for this type of matter although discretion may be exercised if exceptional circumstances are found. However, the person must negotiate a number of hurdles to make the election, go to courtand obtain advice in order to apply for legal aid, or at least obtain legal advice about their matter. Having a conviction can seriously affect a persons employment prospects as well as their self-confidence. The need to understand and comply with traffic laws This includes the need to obtain a driver's licence and to register a car; failure to do either can lead to significant consequences if a person is apprehended by police. Driving without a licence can quickly lead to fines andperiods of disqualification. Driving whilst disqualified can lead to very lengthy disqualification periods, large fines and other penalties which may include gaol sentences. Failure to pay fines can also have significant consequences. Young People Legal Aid NSW staff working at Bankstown, an area of high cultural diversity, have indicated that there is a perception among young male adults, that they are targeted by police when associating in African cultural groups. Case Study A young Sudanese male was arrested for resist/hinder police officer in the execution of his duty, and common assault, after leaving a Sudanese party where other African young people were present. He alleged police harassment on the grounds of his race. The young man had no criminal antecedent and is currently undertaking full time tertiary studies. He is defending all charges of resist/hinder and common assault of police officer in execution of duty.  This case study illustrates one of a growing number, where young people of African background are stopped, searched and apprehended by police when they are associated or hanging out with peers. The young adults allege that they are being harassed by police because of their race. Mental and other health It is well documented that refugees who have experienced trauma are at greater risk of a range of psychological/mental health problems, including post-traumatic stress disorder, depression and anxiety. This can seriously impact on a persons interaction with the legal system if not managed appropriately. Case Study A young Sudanese woman, who had been sexually assaulted in a refugee camp prior to coming to Australia, sought to revoke her consent to adoption and seek full parental care and custody of her child. While the consent to the adoption was declared ineffective, the woman was not awarded custody of her child based on her mental health and considered ability to care for her child. This complex case highlights the cumulative effects of multiple disadvantages and the ways in which mental health issues can affect outcomes for refugees.  Interpreters For those involved in the court system, the lack of interpreters in many African languages is a serious concern. Even though an interpreter may have been booked for court, there may not be any available on the day. This can result in matters being adjourned on a number of occasions. The paucity of interpreters in African languages also creates conflict of interest situations where, for example, in divorce cases, both parties may have to use the same interpreter. The lack of qualified interpreters can result in unsatisfactory compromises, including the use of untrained people acting as interpreters or using interpreters of a different language for a person who may only have limited skills in that language. It also adds to the stress of the court experience and can place the persons employment at risk if they need to take days off work to attend court. In small migrant and refugee communities, the person requiring the interpreter service may know or be known by the interpreter. This can discourage people from seeking legal advice, especially where there are sensitive issues such as child protection, family violence and divorce, because they dont trust the interpreter to maintain confidentiality and fear that they will be publicly humiliated or punished as a result of seeking legal help. This situation also highlights the need for more female interpreters to be available for African Australian women, in cases involving family breakdown, child protection and family violence. National support for men and women to study emerging languages that can lead to a career as an accredited interpreter might assist in addressing shortages. Once established, such a program could be flexible in responding to changing language needs and anticipated shortages. A current example is the Interpreter Scholarships Program run by the Victorian Multicultural Commission. See  HYPERLINK "http://www.multicultural.vic.gov.au/web24/vmc.nsf/headingpagesdisplay/language+servicesinterpreter+scholarships" http://www.multicultural.vic.gov.au/web24/vmc.nsf/headingpagesdisplay/language+servicesinterpreter+scholarships. The funding available for interpreters is also limited. Additional ongoing resources are needed so that interpreter services are available for migrants and refugees for telephone and face-to-face interviews in community legal centres, across all legal problem types, for legal advice sessions, legal representation and community legal education activities. Tenancy African Australians face many difficulties regarding tenancy matters and appear to be uncertain about making complaints regarding accommodation. Case Studies 1. Whilst conducting a tenancy workshop, it became known that a participant was not aware of the right to make a complaint to the landlord about not having running water in the unit. 2. Another participant did not report a rat infestation in her unit for fear that by telling her landlord of the problem, she would be blamed and evicted from the premises. She had been living in the infested unit with her four children for five months, before being informed at the workshop that she had the right to complain and the right to free legal advice.  Legal Aid NSW also notes and supports the submission, specifically focusing on tenancy issues, made to the AHRC African Australians project by the Western Sydney Tenants Service (WESTS), Macquarie Legal Centre. 5.2 What concerns do African Australians have about the Australian legal and justice systems? The Attorney Generals Department NSW is represented on the NLAF CALD Working Group. Consultations conducted in 2008 between that Department and 17 elders and leaders from the Sudanese Community in Blacktown identified a range of legal-related issues facing the Sudanese community, including: a lack of understanding of the Australian legal system, including roles/duties of police and differences between criminal/civil law; the need for a solicitor to assist the community with court related matters; a lack of interpreters at police stations and courts; a lack of understanding of the operation and meaning of apprehended violence orders; a need for information on employment law; credit/debt issues; housing issues; and family law; Centrelink issues (penalties and lack of understanding of rights and obligations); involvement with the NSW Department of Community Services (DoCS); driving issues; and police targeting of Sudanese youth. 2. Rights, justice and the law 5.4 What services exist to explain to African Australians what their rights are when they are involved in the legal and justice systems? Community Legal Education Legal Aid NSW recognises the importance of community legal education in reaching people early and helping them to understand and protect their legal rights. Legal Aid NSW has an established program of community legal education that provides information sessions for African communities, among others. Current and emerging issues that are addressed include mortgage stress, credit and debt issues including credit scams, apprehended Domestic Violence Orders, the right to silence, victims rights, accessing legal information and representation. The demand for these sessions is increasing. These sessions are frequently conducted in partnership with community and other social support and legal agencies. The benefits of these face-to-face sessions are exemplified in the example below. An African Information Day demonstrates how legal assistance agencies and other services can work together to provide the community with a general, but thorough, overview of the law Cultural diversity is generally associated with our capital cities; however, over the past five years Wagga Wagga has developed a flourishing African community. This makes it unique among inland regional centres of New South Wales. Most of Wagga Waggas African communities are originally from Sudan, Burundi, Rwanda and the Democratic Republic of Congo. Many of these people chose to make Wagga Wagga their home due to employment opportunities at Cargill Abattoir (the largest in the Southern Hemisphere) and other light industries located in Wagga Wagga. The African community experiences particular legal needs. These needs arise from a lack of familiarity with the legal system and the role of the courts and the police. In some cases this is exacerbated by poor English language skills. On 9 May 2009 members of the Legal Aid Wagga Wagga office, together with the NSW Police Force and the Attorney Generals Department, took part in an African Information Day held at the Wagga Wagga City Council Chambers. The meeting was also attended by the Chairperson of the Community Relations Commission. A large number of African community members attended. A Police Inspector spoke about the role of the NSW Police Force and a Deputy Registrar focused on aspects of the court system. From the Wagga Wagga Legal Aid office, the Solicitor in Charge, Family Law and the Senior Solicitor, Civil Law spoke about family and civil law matters. The community was particularly interested to learn that legal aid was available for civil family law matters in addition to criminal law, and that legal aid advice sessions were not means tested and were available across all three law areas. A senior criminal lawyer spoke about the criminal justice system with particular emphasis on driving and domestic violence offences and the right to silence. The audience was very involved and asked a large number of questions of all speakers. As a result, a question and answer forum involving the above participants and the African community is planned in the near future. The NSW Legal Assistance Forum (NLAF) NLAF comprises all public legal assistance providers in NSW, including Legal Aid NSW, LawAccess NSW, and Community Legal Centres NSW. Some community legal centres such as the Immigration Advice and Rights Centres and the Refugee Advice and Casework Service are specialist centres for immigrants. NLAF also works closely with the Legal Aid NSW Cooperative Legal Service Delivery (CLSD) Program which is a partnership of regional legal service providers and community organisations operating across eight regions of NSW (South Coast, Central Coast, Central West, Broken Hill, Northern Rivers, Albury/Wagga, Central Tablelands and Hunter). These provide a range of services to African Australians to assist in information about legal issues, including telephone advice, face-to-face assistance, advocacy support and preventative education sessions. The CLSD program has organised legal information seminars for African communities in the regions. For example a seminar was held for the Sudanese, Congolese and Sierra Leone communities in Lismore in June 2009. NLAF members - particularly the Public Interest Advocacy Centre and the Public Interest Law Clearing House - also work to identify and address systemic issues facing communities. An example is predatory lending practices which have targeted the Sudanese community. Community Education Resources Legal Aid NSW has been expanding the range of translated material for African communities and, in recognition of the low literacy in many languages; we are producing Welcome to Legal Aid in an Audio CD-Rom in Arabic, Amharic, Dari/Farsi, Dinka, Juba Arabic, Pushto, Somali, Swahili and Tigrinya. This information is also available as an audio file in those languages. These materials are widely promoted through our regional offices, community legal centres and other partner agencies. Legal Aid NSW also participates regularly in community days where we can discuss our services directly with community members and disseminate information. The NLAF CALD Working Group identified what information was available in Dinka, Arabic, and Juba, as well as plain English, on key legal issues. A resource guide was prepared and placed on the LawAccess NSW website. This information is updated by LawAccess NSW on a regular basis. The resource guide is also available on the NLAF website  HYPERLINK "http://www.nlaf.org.au/reports/referral_guide.pdf" http://www.nlaf.org.au/reports/referral_guide.pdf. Resourcing Despite the initiatives outlined above, resources are limited. Despite the fact that the legal needs of African Australians largely arise from their status as relatively newly arrived refugees and migrants, the Commonwealth Government does not provide any specific funding to legal services to provide community legal education to these communities. Legal Aid NSW and community legal centres do their best to respond to community needs within the general funding provided for community legal education but there is a considerable level of unmet need, the funding responsibility for which would normally reside with the Commonwealth. 3. Access to the legal and justice systems 5.7 What barriers do African Australians face in accessing the legal and justice systems? The Law and Justice Foundation of NSW has identified a range of barriers facing CALD communities, including African Australians, in accessing the legal system such as: a fear of the law and legal system; different understandings of how the law operates e.g. concepts of civil law; a lack of knowledge of their rights and responsibilities in Australia; lack knowledge or are confused about the roles of different legal services; preference for face-to-face services; may have low literacy levels in their own language; and have difficulty communicating in English. A key finding of the 2007 Womens Legal Services NSW Report A long way to equal: an update of "Quarter way to equal: a report on barriers to access legal services for migrant women, was the need for engagement between legal and non-legal services, especially Migrant Resource Centres, to reach immigrants. This is also supported by research by the Law and Justice Foundation of NSW into legal referral pathways. The NLAF CALD Working Group has taken steps to build links with non-legal service providers by presenting to peak groups of service providers working with the Sudanese and other immigrant communities, namely: The Blacktown Emerging Communities Action Plan run by Blacktown Local Council and comprising state and federal government representatives, as well as local service providers; and The Blacktown Migrant Interagency Meeting comprising local service providers. These presentations were positively received and highlighted the need for targeted information on legal referral pathways and information resources to be provided to non-legal service providers working with African communities. NLAF recognises that there is also a need to provide information directly to community members. In the case of the Sudanese community in Blacktown, community legal education services are being arranged by the NSW Attorney Generals Department in the areas of identified need. NLAF has also developed a guide to working with immigrant communities available at:  HYPERLINK "https://www.nlaf.org.au/groups/cald_checklist.html" https://www.nlaf.org.au/groups/cald_checklist.html Although the examples provided above demonstrate the positive efforts of legal service providers to enhance access to justice for African Australians, the lack of targeted funding for these initiatives increases the barriers faced by African Australians. 5.8 What information about the legal and justice systems should be provided to African Australians to empower them? And when is the best time to provide such information (e.g. when a person is in the legal system, or at different time)? 5.9 Following on from question 5.8 above how, or through what mechanism/s, can information about the legal and justice systems be best provided to African Australians? Legal Aid NSW acknowledges the difficulty in providing the right information at the right time and place to the diverse cultural groups undergoing resettlement in Australia. Some legal information is provided through the existing settlement support services funded by the Department of Immigration and Citizenship (DIAC). DIAC-funded services could be improved by a stronger focus on law, legal rights and responsibilities, encompassing basic concepts such as the divisions between federal and state governments, tax-welfare systems, civil law concepts, consumer protection, discrimination legislation, and employment law. The legal needs of African Australians have many similarities to the legal needs experienced by other disadvantaged communities that are the core client groups of legal aid commissions and community legal centres. Ideally DIAC-funded services would be enhanced through the provision of targeted funding for legal assistance providers in areas with high African Australian populations to work in partnership with settlement services, to provide legal information and assistance tailored to the particular needs of African Australian communities. The benefit of this approach would be that as well as raising awareness of legal issues, it would raise awareness of mainstream legal services, and create pathways for African Australians into those services. NLAF recognises that this is significant and complex issue and is establishing a new sub-group of its CALD Working Group to examine the information on legal issues and legal services provided to newly arrived immigrants both prior to and on arrival in Australia. The Group will also examine the legal referral training needs of service providers working with newly arrived immigrants. This project reflects NLAFs concern that newly arrived immigrants, including from African countries, are being targeted by predatory lenders and other consumer scams and that some members of the community are becoming involved in the criminal justice system, soon after their arrival in Australia. The Department of Immigration and Citizenship is working with NLAF on this project. Bilingual and bicultural workers Sustained resources for bilingual and bicultural workers can assist in providing culturally appropriate services. While there have been many successful pilot projects of this nature, they are often only temporarily funded, regardless of whether the need still exists. In 2009-10, Legal Aid NSW will be identifying and training bilingual sessional workers to present a range of legal workshops to newly arrived migrants, with a focus on African communities. The Families and Law in Australia initiative: Parramatta Strategy is a good example of project that used bilingual and bicultural facilitators to engage with specific communities.  HYPERLINK "http://www.familycourt.gov.au/wps/wcm/resources/file/ebd39c05b7936b0/LIH_REPORT_FINAL.pdf" http://www.familycourt.gov.au/wps/wcm/resources/file/ebd39c05b7936b0/LIH_REPORT_FINAL.pdf As a component of the Victorian Government Justice for Refugees Program, ten bilingual facilitators have recently been appointed for a three-year term to provide information to their communities about the legal system and social and legal regulation. 4. Cross-cultural training 5.16 Do workers in the justice system and law enforcement receive adequate cross-cultural awareness training? If not, what type of cross-cultural training is required? Broad cross-cultural awareness training is available to staff of Legal Aid NSW, although very little is specific to African Australian communities. Further ongoing training may be required given the cultural differences between African migrants and others, and between various African communities. Programs that support people from migrant and refugee communities to study law and allied legal studies would, over time, allow for a more diverse and culturally competent legal workforce. Legal Aid NSW offers the Bob Bellear Legal Career Pathways Program offering cadetships for Aboriginal undergraduate law students and scholarships for year 11 and 12 students. A similar targeted model could be adapted to enhance career development opportunities for migrant and refugee communities in the legal profession over time. The Victorian Department of Justice Scholarship for tertiary students from refugee backgrounds provides two-year scholarships to four students per year to assist in gaining tertiary qualifications and enhance their employment opportunities in justice related fields.  HYPERLINK "http://www.justice.vic.gov.au/wps/wcm/connect/DOJ+Internet/resources/file/eb096f0e66389f8/Guidelines_DOJ_refugee_scholarships_2009.DOC" http://www.justice.vic.gov.au/wps/wcm/connect/DOJ+Internet/resources/file/eb096f0e66389f8/Guidelines_DOJ_refugee_scholarships_2009.DOC Staff exchange programs with migrant and ethno-specific agencies that are supported at national or state levels can also help to build understanding across both participating organisations. Similarly public sector volunteer programs, which have been adopted in several states, can achieve similar results if the choice of partner organisations (such as Migrant Resource Centres) aligns with the learning and development needs of the government organisation. 5. Improved Community Relations 5.19 How are long-term, trusting and positive relationships created between African Australians and the justice system and law enforcement? The NLAF CALD Working Group is developing a model to assist members of newly arrived communities who become involved in the court system. A pilot project has been developed between Blacktown Local Court and the University of Western Sydney (UWS) Law School to assist members of the Sudanese community. The proposal involves: the listing of all matters involving the Sudanese community, as far as possible, on a particular day; the training of law students to provide court support; and a roster system. As at July 2009, three UWS law students of Sudanese origin had completed training courses in court support and will commence placements in Blacktown Local Court in the second half of 2009. The UWS is also in the process of establishing a clinical legal education program for final year law students in Western Sydney. Blacktown Local Court and UWS are considering whether supervised legal advice/assistance can be provided to members of the Sudanese community at Blacktown Local Court as part of this program. Blacktown Local Court is also looking at whether a duty solicitor program could be established to assist the community on the list day, with support from the Mt Druitt Community Legal Centre, the UWS and private lawyers acting on a pro bono basis. ACKNOWLEDGEMENTS This submission reflects the corporate priorities, policies and practices of Legal Aid NSW, as well as the observations over time, the day-to-day learnings and the collaborative views of staff. It also identifies examples of good practice where relevant. Legal Aid NSW acknowledges the contribution made by the NSW Legal Assistance Forum (NLAF). Further information on NLAF and its work is available at  HYPERLINK "http://www.nlaf.org.au" www.nlaf.org.au.  Decision in the Supreme Court of NSW - Department of Community Services v D and Ors [2004] NSWSC (20 December 2004)  HYPERLINK "http://www.austlii.edu.au/au/cases/nsw/NSWSC/2004/1241.html" http://www.austlii.edu.au/au/cases/nsw/NSWSC/2004/1241.html  Legal Aid NSW staff newsletter Verbals: June 2009     PAGE  PAGE 10 Legal Aid NSW submission to AHRC 31 July 2009 YZqr 3 @ a b e ӱӱӖ{me{]NBNh5tB*OJQJphhwShB*OJQJphh#OJQJh!wOJQJhwShwS6OJQJ]hwShwSOJQJh&'ϴϴ&DHLMT\]xԶɫԠɕԠɠɕɠwjh-h-OJQJ^JhhxQ,OJQJh!wOJQJhh!wOJQJhhu{OJQJhh-OJQJhhBWOJQJhhcMOJQJh \OJQJhh:DOJQJhh_ROJQJhmh:D56OJQJ^J hDh:DCJOJQJ^JaJ'_`l}վȴՑՑմ~vg[O[OhBh:D5OJQJhBh_Uw5OJQJhphmCJOJQJaJh_UwOJQJh]rh]rOJQJh]rOJQJh_UwOJQJ^Jhmhm5OJQJ^Jhm5OJQJ^JhmOJQJ^JhBWOJQJ^Jh]rhcMOJQJ^Jh]rOJQJ^Jh-h-OJQJ^Jhu{OJQJ^Jh-OJQJ^J +08;<@OPb{"#$Bj89mļܼܼܼܴܼܼܙܼܼ܂܂h0OJQJhphpCJOJQJaJhpOJQJh \OJQJhfhu{OJQJhu{OJQJh_UwOJQJhBWOJQJhfOJQJhBOJQJh]rh:DOJQJhBh:D5OJQJhBh_Uw5OJQJ- 9YZ[0}ξζήΦ|||k[Khhsa5CJOJQJaJhh \5CJOJQJaJ hhp5B*OJQJph# hhpOJQJh5B*OJQJph# hh5B*OJQJph# h:DOJQJh0OJQJhpOJQJhT6OJQJhBOJQJh_Uwh:DOJQJhBh:D5OJQJhBh_Uw5OJQJhph_UwCJOJQJaJb#$$7$8$H$Ifa$gdl o׆$7$8$H$Ifgdl $7$8$H$a$gdpN7$8$Eƀ׆H$gd<=&<> -!;!񹭢|obobhBh<$OOJQJ^JhBhdOJQJ^Jhmhm5OJQJ^JhBOJQJh,6OJQJhsaOJQJhhOJQJhhsa5OJQJhhsaOJQJhha:2CJOJQJaJhhT6CJOJQJaJhh*CJOJQJaJhhsaCJOJQJaJ! 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