Legal Aid NSW was established under the Legal Aid Commission Act 1979 (NSW) in order to provide legal aid and other legal services to disadvantaged members of the community. It plays an important role in the legal justice system by helping people from socially and economically disadvantaged groups to understand and protect their legal rights. This article is intended to provide a simple guide to the considerations that are taken into account by Legal Aid NSW, when determining whether to grant Legal Aid to an applicant, particularly in relation to criminal matters. There are currently four main tests set out in the Legal Aid NSW policies:
The Jurisdiction Test
The jurisdiction test assesses the type of matter for which legal aid is sought. The following is a list of criminal matters for which legal aid is available:
State and Commonwealth Local Court criminal matters
- Most State criminal matters commenced by a police charge, except for drink driving and related offences unless there is a real possibility of gaol or there are exceptional circumstances
- Most State criminal matters commenced other than by a police charge, if there is a real possibility of imprisonment or there are exceptional circumstances
- Commonwealth criminal matters in which the applicant is pleading guilty
- Trials in Commonwealth criminal matters, in limited circumstances
- Committal proceedings
- Domestic violence proceedings
- Bail applications in State matters and, in limited circumstances, in Commonwealth matters
- Drug court matters
- Annulment applications under Part 2 of the Crimes (Appeal And Review) Act 2001 (NSW)
- Matters where the applicant is contesting a forensic procedure application under the Crimes (Forensic Procedures) Act 2000 (NSW)
- Some matters where the applicant is participating in a restorative justice program
State and Commonwealth District, Supreme, Court of Criminal Appeal and High Court criminal matters
- Indictable matters
- Proceedings under Part 7 of the Crimes (Appeal And Review) Act 2001 (NSW)
- Matters where the applicant is the defendant in the Land and Environment Court under environmental protection legislation, in limited circumstances
- Matters involving charges arising under Commonwealth statute in certain circumstances, excluding theProceeds of Crime Act 1987 (Cth)
- Matters where an application is made to the Court of Criminal Appeal on behalf of the DPP for an acquitted person to be retried, pursuant to Part 8 of the Crimes (Appeal And Review) Act 2001 (NSW)
- Preventative detention matters under Part 2A of the Terrorism (Police Powers) Act 2002 (NSW)
State and Commonwealth children’s criminal matters
- Proceedings in the Children’s Court including committals
- Trials and sentence matters in the District and Supreme Courts
- Matters where the applicant is participating in a restorative justice program
State: prisoners’ discipline and parole matters
- Parole Board Review hearings and reviews of segregation directions
- Visiting justice proceedings and life re-sentencing applications
- Advice and minor assistance in other matters
The Means Test
Legal Aid NSW applies a means test which takes into account an applicant’s income and assets in order to assess whether they actually lack the ability to meet the ordinary costs of legal services. The means test is used to determine whether the applicant is eligible to receive legal aid, and if so, to determine what contribution they should make to the costs of the matter. The Legal Aid means test is structured as three sub-tests:
The income test is applied to the applicant’s net assessable income, which is the applicant’s gross assessable income less allowable deductions. There are several allowable deductions in the income test, including income taxes paid, housing costs, dependant allowances, child support and childcare costs. Applicants for legal aid receiving any of the eligible Centrelink income support payments will also satisfy the income component of the means test.
The assets test is applied to the applicant’s net assessable assets, which are the applicant’s gross assessable assets less excluded assets. Examples of excluded assets are household furniture, clothing, work tools, lump sum payments, and home or business equity.
Applicant’s ability to pay legal costs test
Legal Aid NSW also considers the applicant’s ability to pay legal costs, having regard to their general assets and their ability to realise or secure a loan. The application will be refused where the applicant’s lifestyle, activities or interests suggest that they have access to sufficient resources to be able to pay for legal costs themselves, without sustaining undue hardship.
It should be understood that in most cases Legal Aid NSW requires an applicant granted legal aid to pay an initial contribution based on their income and assets. However, the applicant does not have to pay an initial contribution when they are involved in Local Court criminal matters, except for committals, matters where a plea of not guilty has been entered or matters requiring expenditure. At the conclusion of the case, Legal Aid NSW may also recover the total legal costs of a matter, if the applicant has recovered a sum of money or experienced substantial improvement in their financial circumstances. Furthermore, under section 36 of the Legal Aid Commission Act 1979 (NSW) if any applicant fails to fully pay their contribution, Legal Aid NSW may recover the amount and any interest on it as a debt in court.
It should be noted that the means test is not applied to certain matters, such as:
• Legal advice and minor assistance services
• Family, care and protection and civil law duty matters
• Matters involving children
• First appearance bail applications in the Local Court
• Most Mental Health Advocacy Service matters
• Veterans’ Entitlements Act 1986 (Cth) matters for ex-service personnel and their dependants
• Disabled people in matters before the Guardianship Tribunal, and Supreme Court appeals from the Tribunal.
• Drug Court matters
• Drug and Alcohol Treatment Act 2007 (NSW) matters, except for appeals
The Merit test
Legal Aid NSW also applies a means test which takes into account whether the applicant’s case has a reasonable chance of succeeding, or if the result is likely to be of sufficient personal or public benefit. There are separate merit tests for State law and Commonwealth law matters. In State law matters, Legal Aid NSW considers whether it is reasonable in the circumstances to grant legal aid, taking into account whether the applicant has reasonable prospects of success and if it will be detrimental to the applicant if aid is refused. In Commonwealth law matters, the applicant must satisfy the ‘reasonable prospects of success’ test, the ‘prudent self-funding litigant’ test and the ‘appropriateness of spending limited public legal aid funds’ test. The NSW Legal Aid Guidelines state that Legal Aid NSW will also assess this by considering whether the costs involved in providing legal aid are warranted by the likely benefit to the applicant or the wider community.
It is important to note that the merit test is not applied to criminal law matters, except for criminal law appeals and Supreme Court bail applications. The merit test is also not applied to:
• Children in the Children’s Court
• Children represented by an independent children’s lawyer after an order of the Family Court
• Disabled people in matters before the Guardianship Tribunal
• Most Mental Health Act 2007 (NSW) matters.
However a merit test is applied to:
• Appeals in criminal matters
• Most non-criminal matters e.g. family or civil matters
• Supreme Court bail matters
• Some matters associated with Children’s Court proceedings, such as appeals from the Children’s
Court to the District Court.
The Availability of Funds test
Legal aid will only be granted if Legal Aid NSW determines that sufficient funds are available. However in Commonwealth matters,Any legal matter arising under a law of the Commonwealth. A Commonwealth Act of Parliament can be identified by “Cth” in brackets after the name of the Act e.g. Family Law Act 1975 (Cth). Legal Aid NSW must also consider the available funds and competing priorities in determining whether to grant legal aid. If you have any questions about whether you qualify for Legal Aid or need any further information, please contact Legal Aid NSW, or alternatively contact Barclay Churchill at the following numbers.
Sydney Defense Lawyers
Criminal Barristers & Solicitors
99 Elizabeth Street
Sydney NSW 2000