Legislative compliance and fair processes

Significant judicial decisions relating to the Legal Aid Commission Act 1979 (NSW)

Rodden v R [2023] NSWCCA 202

In Rodden v R [2023] NSWCCA 202, the Court of Criminal Appeal clarified the interpretation and operation of the Costs in Criminal Cases Act 1967 (NSW) as it applies to legally aided applicants. The applicant was acquitted of murder and applied for a costs certificate. The primary judge refused the application in part because he held that no application could lie where an applicant was entirely legally aided and had made no personal financial outlay in his or her own defence.

The applicant appealed to the Court of Criminal Appeal, and Legal Aid NSW was granted leave to intervene in those proceedings. The Court of Criminal Appeal held that the Costs in Criminal Cases Act 1967 (NSW) should not be construed in a manner that prevents legally aided applicants (including wholly legally aided applicants) from being granted costs certificates.

Legislative amendments

Reviewing appeals where we have refused legal aid

The Institutions Legislation Amendment Act 2024 (NSW) was passed on 8 February and amended the Legal Aid Commission Act 1979 (NSW), enabling Legal Aid NSW to modernise and streamline our appeals processes for people who have had their application for legal aid refused or where a grant of legal aid has been terminated.

The amendments enable the Legal Aid NSW Board to establish Legal Aid Review Panels to hear and determine appeals. Panel members will hear appeals individually or as a panel of two on a rotating basis, replacing the three-member Legal Aid Review Committees.

The new approach will ensure that decisions are made based on merit and aligns with Legal Aid NSW's commitment to equitable access to justice, enhancing fairness and impartiality in decision-making. The new panels will commence on 1 December 2024.

Protecting personal information

Our In-house Counsel Unit developed a Data Breach Policy and supporting resources and training to ensure our compliance with the Mandatory Data Breach Notification Scheme. The scheme was created by amendments to the Privacy and Personal Information Protection Act 1998 (NSW) and commenced on 28 November 2023.

Privacy

Legal Aid NSW manages personal information in accordance with our Privacy Management Plan. The plan explains how we manage personal information under the Privacy and Personal Information Protection Act 1998 (NSW) and the Health Records and Information Privacy Act 2002 (NSW). We include privacy notices in our applications and other public documents, and the In-house Counsel Unit guides staff in dealing with privacy issues and queries. We received one application for internal review during the reporting period.

Right to information

Legal Aid NSW adopts a proactive approach to releasing information where possible. We review our published information regularly and routinely upload information to our website that may be of interest to the general public. This includes updating a wide range of publications and resources, policy documents and law reform submissions. Our legal information publications are also available in a variety of community languages.

During the 2023–24 reporting period, we received 39 formal applications under the Government Information (Public Access) Act 2009 (NSW) (GIPA). Most of these were requests by individuals for their own personal information or applications made by legal representatives. The full details of these applications are set out in Appendix 7: Right to information (PDF, 162 kb).

The year ahead

• Following the commencement of the Institutions Legislation Amendment Act 2024 (NSW), we will work to establish new Legal Aid Review Panels and implement policies and guidelines to support the new appeals process.
• We will respond to the growing number of applications for access to information under the Government Information (Public Access) Act 2009 (GIPA Act) by providing training to In-house Counsel Unit staff to become authorised GIPA determining officers.

Key challenge

Maintaining the high quality of legal services provided by the In-house Counsel Unit. We will address this by continuing to improve our case management systems and processes, developing innovative ways of delivering our services, and providing ongoing training to develop the skills and knowledge of the team.