Legal Aid NSW Policies in brief Legal Aid NSW is a state funded body providing legal assistance in
matters arising under New South Wales law. Legal Aid NSW also has an
agreement with the Commonwealth to provide legal assistance in matters arising under Commonwealth law.

Legal Aid NSW has developed a range of policies to make decisions which are fair,
consistent and financially responsible and target those individuals in the
community who have been determined as having high priority for our services. In
deciding whether an applicant is eligible for legal aid, Legal Aid NSW may apply
the following four tests which are summarised below.

The jurisdiction test looks at the type of matter for which legal aid is sought. Legal aid is available for the following types of matters:

Family law: State
• Proceedings under the Property (Relationships) Act 1984
• Adoption proceedings in exceptional circumstances
• Domestic violence proceedings as set out in the criminal law policies

Family law: State: Care and Protection
• Alternative dispute resolution under the Children and Young Persons (Care and Protection) Act 1998
• Proceedings under the Children and Young Persons (Care and Protection) Act 1998 in the Children’s, District, Supreme and High Courts
• Proceedings in the Community Services Division of the Administrative Decisions Tribunal

Family law: Commonwealth
Matters arising under the Family Law Act 1975, the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988 including:

• Orders relating to children, including parenting orders, location and recovery orders (including separate representation of children)
• Child support and child maintenance matters • Spousal maintenance matters
• Dissolution and nullity of marriage matters in limited circumstances
• Property proceedings
• Contempt and breach of court orders proceedings where the applicant is the respondent
• Appeals to the Social Security Appeals Tribunal and the Administrative Appeals Tribunal in relation to child support and maintenance decisions

Civil law: State
• Matters where it is likely the applicant will lose his or her dwelling
• Consumer protection matters
• Public interest environment matters
• Public interest human rights matters
• Matters involving loss of civil liberties, eg. False imprisonment, malicious prosecution
• Discrimination matters before the Equal Opportunity Division of the Administrative Decisions Tribunal
• Coronial Inquest matters in limited circumstances
• Protected Estates Act 1983 matters
• Matters under Part 3 Division 6 or section 41 of the Public Health Act 1991
• Matters under the Crimes (Serious Sex Offenders) Act 2006
• Proceedings before the Administrative Decisions Tribunal or the Industrial Relations Commission to obtain an exemption under the Child Protection (Prohibited Employment) Act 1998.

Civil law: State: Mental health
• Magistrates’ inquiries under the Mental Health Act 2007
• Proceedings before the Mental Health Review Tribunal
• Matters relating to Community Treatment Orders
• Appeals to the Mental Health Review Tribunal and Supreme Court
• Matters where the applicant is a forensic patient • Matters under the Mental Health (Criminal Procedure) Act 1990
• Guardianship Act 1987 matters
• Protected Estates Act 1983 matters, including proceedings in the Administrative Decisions Tribunal
• Matters relating to dependency certificates and appeals under the Drug and Alcohol Treatment Act 2007 pilot program.

Civil law: State: Applicants at special disadvantage
Legal aid is also available for a wider range of state civil law matters where the applicant is at ‘special disadvantage’.

An applicant at special disadvantage is: a child or an applicant acting on behalf of a child; or a person who has substantial difficulty in dealing with the legal system by reason of a substantial psychiatric condition, developmental disability, intellectual impairment or a physical disability.

Civil law: Commonwealth
Matters arising under a Commonwealth Act, limited to:

• A decision affecting the receipt or amount of a Commonwealth employee’s compensation or a Commonwealth pension, benefit or allowance
• A decision or action by the Commonwealth in relation to a person that has a real prospect of affecting the person’s capacity to continue in their usual occupation
• Discrimination matters
• Migration matters in limited circumstances
• Consumer protection matters
• Proceedings under the Proceeds of Crime Act 2002
• Extradition proceedings
• Public Interest Human Rights matters

Civil law: Commonwealth: Veterans’ pensions
• Appeals from decisions of the veterans’ review board about war-caused disability pension entitlement or assessment claims under Part II of the Veterans’ Entitlements Act 1988
• Appeals from decisions of the Veterans’ Review Board about claims under the Military Rehabilitation and Compensation Act 2004

Criminal law: State and Commonwealth Local Court 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 exceptional circumstances exist
• Most State criminal matters commenced other than by a police charge if there is a real possibility of gaol or exceptional circumstances exist
• Commonwealth criminal matters in which the applicant is pleading guilty
• Trials in Commonwealth criminal matters, in limited circumstances
• Committal proceedings
• Domestic violence proceedings
• Annulment applications under Part 2 of the Crimes (Appeal And Review) Act 2001
• Drug court matters
• Matters where the applicant is contesting a forensic procedure application under the Crimes (Forensic Procedures) Act 2000
• Bail applications in State matters and, in limited circumstances, in Commonwealth matters
• Some matters where the applicant is participating in a restorative justice program

Criminal law: State and Commonwealth District, Supreme, Court of Criminal Appeal and High Court matters
• Indictable matters
• Appeals
• Proceedings under Part 7 of the Crimes (Appeal and Review) Act 2001
• Matters where the applicant is the defendant in a prosecution in the Land and Environment Court under environmental protection legislation, in limited circumstances
• Matters involving defended charges arising under Commonwealth statute (excluding the Proceeds of Crime Act 1987) in certain circumstances
• 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 & Review) Act 2001
• Preventative detention matters under Part 2A of the Terrorism (Police Powers) Act 2002 Criminal Law:

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
• Appeals
• Matters where the applicant is participating in a restorative justice program

Criminal Law: State: prisoners’ discipline and parole matters
• Visiting justice proceedings and life re-sentencing applications
• Parole Board Review hearings and reviews of segregation directions
• Advice and minor assistance in other matters

2. Means test.

Legal Aid NSW applies a means test which takes into account an applicant’s income and assets in order to:
(a) assess whether that person is eligible to receive legal aid; and
(b) if that person is eligible to receive legal aid, to determine what contribution he or she should make to the costs of the matter.

The means test consists of three sub-tests:

1. Income test
The income test is applied to the applicant’s net assessable income, which is the applicant’s gross assessable income less allowable deductions. Allowable deductions include income tax paid, housing costs, an allowance for dependants, child support and childcare costs. Applicants for legal aid receiving one of the eligible Centrelink income support payments at the maximum rate will satisfy the income part of the means test.

2. Assets 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, motor vehicle and farm/business equity up to a certain value.

3. Applicant’s ability to pay legal costs test
Legal Aid NSW also considers the applicant’s ability to pay legal costs, having regard to his or her general assets and ability to realise or secure a loan. The application will be refused where the applicant’s lifestyle, activities and/or interests suggest that s/he has access to sufficient means to be able to pay for legal costs.

Contributions
In most cases Legal Aid NSW requires an initial contribution based on income and assets from a person granted legal aid. Certain cases are exempt. At the conclusion of the case or the legal aid grant, Legal Aid NSW may recover the total costs of a matter where the applicant has recovered a sum of money or other asset or there is a substantial improvement in their financial circumstances.

The means test applies to both State and Commonwealth matters, with some exceptions.

The means test is not applied to:
• Legal advice and minor assistance services
• Family, care and protection and civil law duty matters
• Children in Children’s Court matters
• Children in care matters
• Children participating in restorative justice programs
• Children represented by an independent children’s lawyer after an order of the Family Court
• Children in Family Court proceedings concerning a special medical procedure
• First appearance bail applications in the Local Court
• Most Mental Health Advocacy Service matters
• Veterans’ Entitlements Act 1986 matters for ex-service personnel and their dependants (except for war service pension claims and appeals from the AAT)
• Disabled persons in matters before the Guardianship Tribunal, and Supreme Court appeals from the Tribunal.
• Drug Court matters
• Drug and Alcohol Treatment Act 2007 matters (except for appeals)

All other matters are means tested.

There are two merit tests: one for State law matters and another for Commonwealth law matters.

In State law matters, Legal Aid NSW considers whether it is reasonable in all the circumstances to grant legal aid. In deciding this, Legal Aid NSW takes into account, among other things, whether the applicant has reasonable prospects of success and any detriment to the applicant if aid is refused or benefit if aid is granted. In Commonwealth law matters, the applicant must satisfy the following three criteria:
• reasonable prospects of success test;
• prudent self-funding litigant test; and
• appropriateness of spending limited public legal aid funds test.

A merit test is applied to:

• Most non-criminal matters (civil, family, care and protection, administrative law and veterans’ matters)
• Appeals in criminal matters
• Supreme Court bail matters
• Some matters associated with Children’s Court proceedings (e.g. appeals from the Children’s Court to the District Court).

A merit test is not applied to:
• Criminal law matters (except appeals and Supreme Court bail applications)
• Children in the Children’s Court
• Disabled persons in matters before the Guardianship Tribunal
• Children represented by an independent children’s lawyer after an order of the Family Court
• Most Mental Health Act 2007 matters.

Legal aid will only be granted if Legal Aid NSW determines that sufficient funds are available.

For further details of our policies, please see the Legal Aid NSW website
at www.legalaid.nsw.gov.au or contact the Legal Policy Branch, Strategic
Planning and Policy Division on 9219 5859 or 9219 5034.

Last updated: August 2009