SLIDE 1
Legal Skills for Community Services Workshop Guide and Toolkit - - PowerPoint PPT Presentation
Legal Skills for Community Services Workshop Guide and Toolkit - - PowerPoint PPT Presentation
Legal Skills for Community Services Workshop Guide and Toolkit Community service organisations are increasingly having to interact with the legal system in a wide range of acts, regulations, rules, processes and procedures in areas such as
SLIDE 2
SLIDE 3
Legal Skills for Community Services
Bringing People Together
To develop responses to the community’s needs for transport, access and mobility
3
Ov Over erview view of
- f th
the le e lega gal a l and nd regu gula lato tory fr y frame amewor
- rk
k of
- f
co commun mmunity ity ser services vices
Source: The Queensland Law Handbook 12th edition
SLIDE 4
Legal Skills for Community Services
Bringing People Together
To develop responses to the community’s needs for transport, access and mobility
4
Whe here e do do you
- u fi
find nd th the law e law – finding finding you
- ur w
r way ay in in th the maz e maze of e of le legisla gislation tion Parliament made law (Statute law – Act, Regulations etc.) Federal and State Parliaments – power to legislate Judge-made law (Common law ) Precedent (Binding v Persuasive) Citing a Court/Tribunal decision Finding the law – searching www.austlli.edu.au Legal digests – case reports
SLIDE 5
Legal Skills for Community Services
Bringing People Together
To develop responses to the community’s needs for transport, access and mobility
5
Ho How w to to r rea ead Que d Queen ensland sland an and Commo d Commonw nwea ealth lth Acts Acts an and d Regu gula lation tions s – exa xample mple
Cor Corpor porate te go gover ernan nance ce -
- Civil
Civil Lia Liability Act bility Act 200 2003 3 (Q (Qld) ld)
Section 39 Protection of volunteers (1) A volunteer does not incur any personal civil liability in relation to any act or omission done or made by the volunteer in good faith when doing community work— (a) organised by a community organisation; or (b) as an office holder of a community organisation. [… further subsection omitted …] Section 40 Liability not excluded for criminal acts This subdivision does not confer protection from personal liability on a volunteer in relation to an act or omission of the volunteer if it is established (on the balance of probabilities) that at the time
- f the act or omission the volunteer was engaged in conduct that constitutes an offence.
Section 41 Liability of intoxicated volunteer not excluded The protection from personal liability conferred on a volunteer by this subdivision in connection with any community work does not apply if the volunteer— (a) was intoxicated when doing the work; and (b) failed to exercise due care and skill when doing the work.
>>> CONTINUED NEXT SLIDE
SLIDE 6
Legal Skills for Community Services
Bringing People Together
To develop responses to the community’s needs for transport, access and mobility
6
Ho How w to to r rea ead Que d Queen ensland sland an and Commo d Commonw nwea ealth lth Acts Acts an and R d Regu gula lation tions s – exa xample mple
Wor
- rkplace
kplace health health and and saf safety ety – Wor
- rk Health and
k Health and Saf Safety ety Act Act 2011 2011 (Qld) (Qld)
PC PCBU U – Primar Primary y du duty o ty of car care (S. e (S. 19 19 - pa part) t)
19 Primary duty of care (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of— (a) workers engaged, or caused to be engaged by the person; and (b) workers whose activities in carrying out work are influenced or directed by the person; while the workers are at work in the business or undertaking. (2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
>>> CONTINUED NEXT SLIDE
SLIDE 7
Legal Skills for Community Services
Bringing People Together
To develop responses to the community’s needs for transport, access and mobility
7
Ho How w to to r rea ead Que d Queen ensland sland an and Commo d Commonw nwea ealth lth Acts Acts an and R d Regu gula lation tions s – exa xample mple
Priv Privac acy y – Priv Privac acy A y Act ct 1988 1988 (Cw Cwth th)
14 Australian Privacy Principles (1) The Australian Privacy Principles are set out in the clauses of Schedule 1. (2) A reference in any Act to an Australian Privacy Principle by a number is a reference to the Australian Privacy Principle with that number. 15 APP entities must comply with Australian Privacy Principles An APP entity must not do an act, or engage in a practice, that breaches an Australian Privacy Principle. >>> CONTINUED NEXT SLIDE
SLIDE 8
Legal Skills for Community Services
Bringing People Together
To develop responses to the community’s needs for transport, access and mobility
8
Ho How w to to r rea ead Que d Queen ensland sland an and Commo d Commonw nwea ealth lth Acts Acts an and R d Regu gula lation tions s – exa xample mple Emplo Employee/e /emp mplo loyer r rela lation tions s – Fair ir Work Ac Act t 2009 2009 (Cwth) (Cwth)
365 Application for the FWC to deal with a dismissal dispute If: (a) a person has been dismissed; and (b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part; the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.
>>> CONTINUED NEXT SLIDE
SLIDE 9
Legal Skills for Community Services
Bringing People Together
To develop responses to the community’s needs for transport, access and mobility
9
Ho How w to to r rea ead Que d Queen ensland sland an and Commo d Commonw nwea ealth lth Acts Acts an and R d Regu gula lation tions s – exa xample mple Ne Negli ligence issu issues
Before a plaintiff can recover compensation from a defendant in a negligence action, the plaintiff must show three things:
- that the defendant owed them a duty of care
- that the defendant breached that duty
- that personal injury was suffered by them as a result
- f that breach of duty.
Source: The Queensland Law Handbook 12th ed.
SLIDE 10
Legal Skills for Community Services
Bringing People Together
To develop responses to the community’s needs for transport, access and mobility
10
The he l lega gal l str struc uctu ture of e of th the NDIS e NDIS – fr from
- m its Ac
its Act t and Rules les to to i its ts operation tional l guide ideli lines s
National Disability Insurance Scheme Act 2013 National Disability Insurance Scheme (xxx) Rules 20xx
(pursuant to sec. 17 of Act)
NDIA’s CEO “Operational Guidelines” (pursuant to a Rule under
the Act)
Forms, assessment tools, policies etc. >>> CONTINUED NEXT SLIDE
SLIDE 11
Legal Skills for Community Services
Bringing People Together
To develop responses to the community’s needs for transport, access and mobility
11
The he l lega gal l str struc uctu ture of e of th the NDIS e NDIS – fr from
- m its Ac
its Act t an and d Rules ules to to its o its ope peration tional al gu guidelines idelines
NDIS Act 2013 (Cwth): Support the independence and social and economic participation of people with disability (s.3(1)(c)) Provide reasonable and necessary supports for participants in the NDIS launch ((s.3(1)(d)) Enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports
(s.3(1)(e))
Promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community (s.3(1)(g)) Adopting an insurance-based approach, informed by actuarial analysis, in the provision and funding of supports for people with disability (s.3(2)(b)) In giving effect to the objects of the Act, regard is to be had to … the need to ensure the financial sustainability of the NDIS (s.3(3)(b)) >>> CONTINUED NEXT SLIDE
SLIDE 12
Legal Skills for Community Services
Bringing People Together
To develop responses to the community’s needs for transport, access and mobility
12
The he l lega gal l str struc uctu ture of e of th the NDIS e NDIS – fr from
- m its Ac
its Act t an and d Rules les to to its its operation tional l guide ideli lines s
NDIS Rules include:
Becoming a Participant (2013) Children (2013) Facilitating the Preparation of Participants’ Plans – xxxx (each trial State/ACT 2013 or 2014) Nominees (2013) Plan Management (2013) Protection and Disclosure of Information (2013) Registered Providers of Supports (2013) Supports for Participants (2013) Supports for Participants – Accounting for Compensation (2013) Timeframe for Decision Making (2013) Risk Management (2013) >>> CONTINUED NEXT SLIDE
SLIDE 13
Legal Skills for Community Services
Bringing People Together
To develop responses to the community’s needs for transport, access and mobility
13
The le he legal st gal structur ucture e of
- f t
the NDIS he NDIS – fr from it
- m its A
s Act ct and R and Rules ules to i to its ts oper
- perational
tional guidelines guidelines Example Operational Guideline:
AFTER ACCESS APPROVED: STATEMENT OF PARTICIPANT’S SUPPORTS NDIA CEO has issued an assessment tool to be used to assist in making decisions about a participant’s supports by determining a participant’s support needs (Support Needs Assessment Tool) (s.209(2A) of the Act). Statement is prepared by the delegate with input from the participant, important others and the available assessments and specifies (s. 33(2)
- f the Act):
- a. The general supports (if any) that will be provided to, or in relation
to, the participant, and
- b. The reasonable and necessary supports (if any) that will be funded
under the NDIS, and
- c. The date by which, or the circumstances in which, the NDIA must
review the plan, and
- d. The arrangements for management of the funding for supports
under the plan, and
- e. The management of other aspects of the plan.
SLIDE 14
Legal Skills for Community Services
Bringing People Together
To develop responses to the community’s needs for transport, access and mobility
14
Resp espon
- nding
ding to to dispu dispute tes, s, co complaint mplaints, a s, all llega gation tions and s and breaches s of th the law law
SLIDE 15
Legal Skills for Community Services
Bringing People Together
To develop responses to the community’s needs for transport, access and mobility
15
Impo Importa tanc nce e of
- f ga
gath ther ering ing an and pr d prese eserving e ving eviden vidence ce – inte interviewi viewing ng, , ta taking king sta state temen ments, ts, co cont ntemp empor
- ran
aneo eous us note te-ta taking ing
Safe private place interview witnesses – appropriate level formality Treat with respect and consideration – manage emotions and sensitivities Maintain independence – avoid confirmatory non-verbals Listen carefully - get whole account (how, when, where, why, what, who) Take good notes as you go – contemporaneous notes! Quote direct conversation; admissions; denials; qualified responses Ask open-ended questions to clarify – avoid yes/no questions Document record of interview – interviewee sign if possible (signed Statement ; Affidavit) Preserve all evidence – collection; identification; locked storage; restricted access
SLIDE 16
Legal Skills for Community Services
Bringing People Together
To develop responses to the community’s needs for transport, access and mobility
16
Wor
- rking
king ef efficientl ficiently y an and d ef effec ectiv tivel ely y wi with th you
- ur
r so soli licitor itors
Legal representatives (lawyers) – solicitors and barristers Clients legal professional privilege – protection of confidentiality Briefing lawyers – parties; dispute; background; issues; evidence; redress resolution(s) sought; instructions to act Get written response – engagement; potential costs; legal issues +/- ;
- verview processes/steps; prospects of success; next steps
More than one legal opinion if appropriate Risk management of litigation Keep open and regular communication with lawyer Keep tight control of costs – professional fees; disbursements; experts reports; counsel fees; court costs
SLIDE 17
Legal Skills for Community Services
Bringing People Together
To develop responses to the community’s needs for transport, access and mobility
17
Mana Managing ging i inf nfor
- rma
mation tion to to sta stakeh eholde
- lders
s an and d med media ia
Have a communications plan – stakeholder and media; prepared planned response Authorised contact person to speak on behalf of
- rganisation
Seek and follow legal advice – responding to serious incidents or allegations No admissions nor denials Keep communications factual; relevant; concise; timely – avoid “off the cuff” reactions or responses to questions Review publication of information – correct if necessary
SLIDE 18
Legal Skills for Community Services
Bringing People Together
To develop responses to the community’s needs for transport, access and mobility
18
Givi Giving ng eviden vidence ce in in tribun tribunals/c als/cou
- urts
ts
You should listen carefully to the whole question, think about it and answer it by saying no more than what is necessary to answer it. It is important not to answer other questions which you think that you might be asked and not to use the opportunity to offer an opinion about the case. If you do not hear the whole question or are not sure that you did, ask for it to be repeated. If you cannot understand a question, say so, and the person or lawyer will try to express it better. Do not be afraid to say that you do not understand the question. Try to answer each question truthfully and to the best of your recollection. If you do not remember something or your memory is not good, do not be afraid to say so. >>> CONTINUED NEXT SLIDE
SLIDE 19
Legal Skills for Community Services
Bringing People Together
To develop responses to the community’s needs for transport, access and mobility
19
Givi Giving ng eviden vidence ce in in tribu tribuna nals/co ls/cour urts ts
You should never argue with or try to question the cross- examiner. If a question can be answered simply by 'yes' or 'no', answer it in that way. You should only say more if the question cannot be answered in this way. If you have a copy of your affidavit, take it with you into the witness box but do not read it or even open it in front of you unless you are asked to do so. If you are feeling ill, tired or distressed and would like a break for a few minutes, ask the Judge. All your evidence will be recorded through the microphone in front of you. Gestures, such as nodding of the head are not recorded. Try to speak clearly and audibly at all times so that everything you say will be clearly recorded.
Federal Court Guide “Being a Witness”
SLIDE 20
Legal Skills for Community Services
Bringing People Together
To develop responses to the community’s needs for transport, access and mobility
20
Media Mediation tion an and d alte alterna nativ tive dispu e dispute te reso esolution lution
Alternative Dispute Resolution (ADR) refers to a group of diverse processes and practices that are used as alternatives to, or in conjunction with, litigation for resolving conflicts. This resolution is based on the principles of interest-based negotiation, consensual decision making and collaborative problem solving as opposed to the determination of rights. Most of these processes involve the parties negotiating to resolve their differences rather than having a decision imposed by a third party. This process generally involves the use of a neutral, independent third party who assists the parties to identify common interests and goals, and work out their own solution to a problem.
Source: The Queensland Law Handbook 12th edition
SLIDE 21