NSW Budget Estimates 2021-22: putting access to justice on the agenda

Alister Henskens, Minister for Families, Communities and Disability Services | Download hearing transcript (pages 20-22, 39-42) | Download supplementary question answers

• Number of children and Aboriginal children in out-of-home care. 15,895 children in out-of-home care and for 30 June 2021, 6,829 or 43% of the 15,895 are Aboriginal which compared to last year is higher as it was 6,688, which is 41.4% of 16,160.
• Proportion of Aboriginal children in the care of DCJ, Aboriginal community-controlled organisations, and non-Indigenous non-government organisations. Acknowledge that being at 20.6% to meet their commitment to transition all Aboriginal children in out-of-home care to Aboriginal community-controlled organisations by 2022 will be a huge challenge. David Shoebridge suggested that they will not be able to meet the 100% target by 2022 as there are still 80% of Aboriginal kids in out-of-home care being auspiced by non-Aboriginal organisations so only one in five Aboriginal children in out-of-home care are in Aboriginal community-controlled organisations. “This is not a monetary matter; it is a capacity issue.”

Deputy Secretary, Child Protection and Permanency, District and Youth Justice Services, Department of Communities and Justice:

• Proportion of Aboriginal children in out-of-home care in the care of Aboriginal community-controlled organisations. With an Aboriginal NGO it is 1,406, which is 20.6 per cent. With an non-Aboriginal NGO it is 1,687, which is 24.7 per cent. The remainder of 3,722, which is 54.5 per cent, are in the case management or the care of DCJ. There are 14 children where the record does not specify their current placement.
• Cultural support plans. At 30 June 2021 for those Aboriginal children in statutory out-of-home care, 60.3% had an approved cultural support plan, which is 4.3% points higher than what it was in June 2020, but it is certainly nowhere near 100%.

Context

With the minimum age of criminal responsibility in New South Wales remaining at 10, children between the ages of 10-13 are at risk of detention in juvenile justice facilities. This includes detention both post-conviction, as well as being held on remand prior to trial and sentencing.

Detention in this age group disproportionately impacts young Aboriginal and Torres Strait Islander children, potentially even more disproportionately than for Aboriginal and Torres Strait Islander older children and adults. This will have a long-term adverse impact both on the young children who are detained, and on the ability for New South Wales and ultimately Australia to Close the Gap.

Hearing summaries

Mr O'REILLY, Executive Director, Youth Justice, Department of Communities and Justice | Download transcript (pages 18-19)

• Number of children and young people in detention: 172 children were in detention as of 28/10/21 and 109 of those are on remand. 46% so 45 of the 109 young people on remand are Aboriginal young people and 76 out of 172 are Aboriginal, which is 44%.
• Number of children under 14 in detention: There are three people under 14 in custody as of 29/10/21. The average day in custody is five days over the past 12 months. He could not state how many individual children have been held in custody and in jail for the past 12 months, so he took this question on notice. One child is on a control order and two are on remand.

ALISTER HENSKENS, Minister for Families, Communities and Disability Services | Download transcript (pages 18-19)

• Principles reason why children are being held on remand: Two of the 13-year-olds are on remand for murder, but lot of this relates to decisions of police and courts, and he cannot speak for those agencies. There are over 400 people in youth detention when this Coalition Government came to power and it is now 172, a reduction of over 50%.

Mr MARK SPEAKMAN, the Attorney General, and Minister for Prevention of Domestic and Sexual Violence | Download hearing transcript (page 31)

• Raising the age of criminal responsibility: Difference between states when it comes to the age of criminal responsibility (10 in Queensland, 14 in the ACT and 12 in the Northern Territory). AG noted that the Ministers from the different jurisdictions have reached the point yet where they have agreed to disagree or cannot progress the matter. He thinks the possibility of a consensus is still a real possibility, but it will get to the point where they just say that we are never going to agree and each jurisdiction should make its own decision.
• A 10-year-old would not have the capacity to have criminal responsibility for just about anything. Whether that should be an absolute bar on prosecuting a 10-year-old is a matter that will come to the New South Wales Cabinet.

Context

In November 2018, the NSW government set up a special commission of inquiry into crystal methamphetamine. The Inquiry received over 250 submissions, and conducted hearings and consultations with a range of stakeholders across New South Wales, including health experts, people on the front line of service delivery, and people with lived experience of drug use.

In January 2020, the Special Commission of Inquiry into the Drug “Ice” released its Final Report. The Final Report made 109 recommendations. Over the past 18 months, The NSW Government has eighteen months failed to comprehensively respond to the report, but has failed to do so.

The Commission’s report offers a pathway towards a more sensible approach to drug use, an evidence-based and compassionate approach which would treat drug use as a public health issue, save lives and money, and offer more and better support options for people seeking to reduce or end their drug use. The Commission’s recommendations have been welcomed by a broad coalition of agencies and organisations with firsthand experience of the impacts of drug use in NSW.

Summary of hearings

Mr MARK SPEAKMAN, the Attorney General, and Minister for Prevention of Domestic and Sexual Violence | Download hearing transcript (page 5-6, 18-19)

• Recommendation 53: the NSW Government should establish a state-wide clinically supervised substance testing: The rationale for rejecting pill testing is the signal that it may send of normalising drug use.
• Recommendation 80: the NSW Police Force cease the use of drug detection dogs at music festivals: The police contend that the use of sniffer dogs is an effective form of drug detection.
• Final response to the Ice Inquiry: Final response is imminent. It is an incredibly important area of the law and, probably more importantly, of health. There are over 100 recommendations. There has been vigorous analysis within government of those recommendations, and he would hope that they will be in a position shortly to release our response.

Context

In 2020-21 community legal centres in NSW provided assistance to more than 53,000 people.

Community legal centres in NSW are funded jointly by the Commonwealth and NSW Governments under the National Legal Assistance Partnership, which runs until 2025. Commonwealth funding for community legal centres is already locked-in to June 2025. NSW funding (currently $14.02m) is secured only until June 2022.

NLAP recommends funded services enjoy the security of five-year contracts (clause 58(b)(i)). Centres require long-term security of funding to plan services and retain staff. NLAP recommends centres have twelve months’ notice of any significant change in funding (clause 59).

Hearing summary

Mr MARK SPEAKMAN, the Attorney General, and Minister for Prevention of Domestic and Sexual Violence | Download hearing transcript | Download supplementary questions 

• Allocations for community legal centres. The Fair Work Commission’s Social, Community, Home Care and Disability Services Industry Award Equal Remuneration Order (SACS ERO) amounts will be rolled into NSW Government baseline allocations for Community Legal Centres from 1 July 2022. SACS ERO amounts have been confirmed for the next 10 years until 2029-30. On 7 November 2021, the NSW Government announced $83 million of joint state and federal funding for Community Legal Centres over the next three years. $64.7 million will be allocated to allow Community Legal Centres to continue delivering core services. Eligible Community Legal Centres will also be invited to apply for $18.6 million earmarked for areas of greatest need, including for rural and remote communities and domestic and family violence services. The Commonwealth will also provide an additional $95 million over the next four years to the NSW legal assistance sector through the National Legal Assistance Partnership 2020-2025 (NLAP), a portion of which will be allocated to Community Legal Centres. This funding model will provide certainty for the sector and target unmet need across NSW.
• Five-year funding cycles. The process for allocating Community Legal Centre funding for the remainder of the National Legal Assistance Partnership (NLAP) until 30 June 2025 has recently been announced. The process invests more than $83 million for the community legal sector over a three-year funding cycle. Of this, $64.7 million of core funding will be directly allocated to Community Legal Centres to provide funding security up to 30 June 2025. The remaining $18.6 million will be allocated through an application process. From 1 July 2025, it is expected that the Community Legal Centre funding will move to a five-year funding cycle to align with the next NLAP.
• Delegation of the community legal centres program to NSW Legal Aid. Under the National Legal Assistance Partnership 2020-2025 (NLAP), states and territories may delegate all aspects of the administration of Commonwealth funding for Community Legal Centres, except for funding allocation decisions to individual Community Legal Centres. Where delegated to a legal assistance provider, these costs can be met using NLAP baseline funds (cl. 55). The NLAP prevents NSW from using NLAP baseline funds for this purpose (cl. 56). On the advice of the Department of Communities and Justice, responsibility for the administration of Commonwealth funding for Community Legal Centres in NSW has been delegated to Legal Aid NSW’s Community Legal Centres Program (CLCP) Unit. The CLCP Unit also administers state funding to Community Legal Centres. Legal Aid NSW does not make funding allocation decisions in relation to individual Community Legal Centres.

Context

Community legal centres in NSW are funded jointly by the Commonwealth and NSW Governments under the National Legal Assistance Partnership, which runs until 2025. NLAP envisages a vibrant legal assistance sector with the different components – such as Legal Aid Commissions, Aboriginal Legal Services, Family Violence Prevention Legal Services and Community Legal Centres – all being supported to deliver their unique contributions to justice.

NLAP discourages State Governments from outsourcing the management of one legal assistance sector to another (clause 29). Where a State Government insists on outsourcing this function, it must meet other requirements as specified in NLAP (clause 29). The NSW Government has delegated responsibility for managing the community legal centres program to Legal Aid NSW.

It is the strongly held view of Community Legal Centres NSW, and of its national peak body Community Legal Centres Australia, that this delegation is an abrogation of the NSW Government’s responsibilities. Legal Aid NSW agrees that this delegation is inappropriate, and a distraction from Legal Aid NSW’s core work. These positions have been expressed multiple times to the NSW Government.

Community Legal Centres NSW argues that this delegation is problematic for many reasons:

• It creates an uneven playing field, particularly when it comes to resource allocation. While community legal centres and Legal Aid NSW collaborate well, they are occasionally competitors for the same funds. While Community Legal Centres NSW advocates adequate funding for all legal assistance providers, it accepts, with some regret, the competitive nature of legal assistance sector funding. However, the fact that Legal Aid NSW is a government agency, together with its size and consequent power within the legal assistance sector, has created a playing field that is far from even. Legal Aid NSW gets the lion’s share of all new funding and Community Legal Centres NSW believes it is awarded funds where it is not the provider best positioned to make use of them.
   
• The work of community legal centres is being monitored and reported to government by an agency with different objectives and a completely different service model. Legal Aid NSW does not and should not be expected to fully understand either the motivations or the work of the community legal sector, and it cannot report fairly to government on the sector’s work.
   
• Having delegated its NLAP responsibilities, the NSW Government has disconnected itself from the communities these centres serve. Community legal centres are embedded within communities and provide services to more than 53,000 people each year. They are often the first to pick up trends in the legal problems being experienced by disadvantaged communities, and they are the keenest observers of often innovative community efforts to overcome the legal problems they face. This is critical data from the coalface, and Government should avail itself of this information as a priority, not delegate synthesis of this data to an agency with different priorities and a different service model. 
   
• Delegation is not supported by any part of the legal assistance sector. If all components of the state justice response are saying something is a bad idea, it is probably a bad idea.

Summary of hearing

Mr MARK SPEAKMAN, the Attorney General, and Minister for Prevention of Domestic and Sexual Violence | Download supplementary answers

Under the National Legal Assistance Partnership 2020-2025 (NLAP), states and territories may delegate all aspects of the administration of Commonwealth funding for Community Legal Centres, except for funding allocation decisions to individual Community Legal Centres. Where delegated to a legal assistance provider, these costs can be met using NLAP baseline funds (cl. 55). The NLAP prevents NSW from using NLAP baseline funds for this purpose (cl. 56). On the advice of the Department of Communities and Justice, responsibility for the administration of Commonwealth funding for Community Legal Centres in NSW has been delegated to Legal Aid NSW’s Community Legal Centres Program (CLCP) Unit. The CLCP Unit also administers state funding to Community Legal Centres. Legal Aid NSW does not make funding allocation decisions in relation to individual Community Legal Centres.

Context

The Suspect Target Management Plan (STMP) is a secretive policing tool designed to identify targets for ‘proactive policing’. It involves police area commands selecting persons in the local community for assessment, and ‘developing a Target Action Plan (TAP) listing the strategies police will implement to disrupt the person’s criminal behaviour.

Concerns about the use of STMPs, particularly to target young people, have led to the Law Enforcement Conduct Commission’s Operation Tepito – an investigation into the formulation and use of the STMP on young people. In April 2020, LECC published its interim report, finding that the ‘Commission’s analysis showed patterns of targeting that appear to have led to unreasonable, unjust and oppressive interactions for young STMP targets’. Subsequent to the publication of LECC’s interim report, NSW Police commenced a new iteration of the STMP (STMP III) in November 2020. We are concerned that these practices continue under the STMP III.

Summary of hearing

Mr David Elliott, Minister for Police and Emergency Services and MICHAEL FULLER, Commissioner, NSW Police Force | Download hearing transcript

• 'The purpose of STMP is actually get targeted kids between 10 and 14 into the PCYC, back to school. The kids are being fed, picked up, dropped home, and the jobs are being provided if they cannot stay at school.'
• STMP3 has a primary prevention at the front end in terms of the work they have done. Thousands of kids have been put through programs; multiple hundreds of kids, including Indigenous kids, got employment.
• For the first time in 10 years the juvenile justice population is going down and, for the first time less than 50% of juvenile detainees were Indigenous.
• As of 8 November 2021, there are 741 people currently subject to STMP III.
• There was a total of 1,563 people who were subject to STMP III in 2021.
• In 2021, there were a total of 836 people who were subject to the STMP, who have identified themselves as Aboriginal or Torres Strait Islander.
• 1,724 adults have been subject to STMP III. 209 young people were target of STMP III since 4 November 2020. Of those, 119 juveniles have identified as Aboriginal or Torres Strait Islander.
• Young person on STMP from 0-3 months: 44. Young person on STMP from 3-6 months: 105. Young person on STMP from more than 6 months: 60.
• One person under the age of 14 has been subject to STMP III since 4 November 2020 (this person was identified as Aboriginal or Torres Strait Islander). 73 persons under the age of 16 have been subject to STMP III since 4 November 2020 (47 have identified themselves as Aboriginal or Torres Strait Islander).
• All persons who are made an STMP target must be notified by way of notification letter that they are a current STMP target, irrespective of age.
• All young persons are being targeted under STMP III, STMP I and II are no longer current, and there was no requirement for targets to be provided with written notification in these earlier iterations.
• At present, 48% of young people currently being targeted do not have evidence of a letter being served. Of those currently being targeted that have been provided a letter, 19 young people have signed the document; eight have co- signed with a parent; and two have been signed by a parent/guardian instead. The remainder have refused or have not signed.

Context

Young people transitioning from out-of-home care (OOHC) to independence are among the most vulnerable and disadvantaged groups in society. Pre-care and often in-care experiences of abuse and neglect, accelerated transitions to adulthood, and a lack of ongoing support once the young people ages out of OOHC all contribute to subsequent diminished life outcomes compared to those of the general population.

National data from 2020 suggests that only 60 – 70% of eligible young people across the country have a Leaving Care Plan. This suggests that many young people leaving out-of-home care aren’t getting access to services and financial support they need and are eligible for. This national data is not broken down by state and territory, making it difficult to identify potential improvements to care planning processes in NSW. In 2018, two thirds (66%) of young people who completed the NSW Out of Home Care Survey felt they received as much help as they needed to make decisions about their future. However, responses to the 2018 NSW Residential Care Survey were less positive with just 42% of young people reporting receiving as much help as they needed.

Timely and thorough leaving care planning and support can help to prevent financial hardship, homelessness, and other forms of disadvantage amongst young people transitioning from out-of-home care to independence by ensuring they have access to the funds and services they are entitled to and need. Regular review of Leaving Care Plans can ensure funds and supports are tailored to young people’s changing needs at time of immense and dynamic change in their lives. Targeted programs that provide access to holistic, wraparound services, including legal advice and assistance can also help young people manage the full range of social, financial and other challenges they face when exiting care.

Hearing summary

ALISTER HENSKENS, Minister for Families, Communities and Disability Services | Download hearing transcript (pages 9-10)

• What proportion of the New South Wales child protection and out-of-home care budget is directed to prevention and early intervention and how much is spent on statutory out-of-home care services, such as the removal process? $2.5 billion is committed towards the safety and welfare of vulnerable children. $756.5 million has been invested in statutory child protection interventions and assessment of child abuse and neglect, and supports keeping children safely at home and preventing entries to out-of-home care. $164.2 million is invested in targeted early intervention services that support children, young people, families and communities experiencing or at risk of vulnerability. $1.4 billion is to fund out-of-home care and permanency programs.