Delegation Instrument
Under s 69 of the Legal Aid Commission Act 1979 (NSW) (the Act), the CEO has delegated certain functions to Legal Aid NSW officers and private lawyers as specified in this Delegation Instrument.
A delegation can be exercised by the nominated delegated officer, or an officer of a higher grade.
Under section 69 of the Legal Aid Commission Act 1979 (NSW) (the Act), I delegate the functions vested in me by section 17 of the Act, to the following Legal Aid NSW officers to exercise the functions specified in this Delegation Instrument.
Deputy Chief Executive Officer
Executive Director Business & Corporate Services
Director Criminal Law
Deputy Director Criminal Law
Director Family Law
Director Civil Law
Director Grants
Director Client Services
Director Legal Services
Director Disability Royal Commission Legal Service
Grants Officer, Clerk Grade 3-4
Solicitor Advocate
Solicitor
Solicitor-in-Charge, Regional Office
Manager Inhouse Counsel Unit
Solicitor Accounts Receivable, Corporate Finance
Advocate Clerk Grade 6-7,
and above to exercise the functions set out below.
This document is to be read in conjunction with an Officer’s role and responsibilities, as set out in his or her position description or statement of duties.
A delegation can be exercised by the nominated delegated officer, or an officer of a higher grade.
Any financial delegation included in this Instrument is subject to the Instrument of Financial Delegation approved by the NSW Attorney General. It provides delegations to incur, commit or sanction expenditure under Part 9 Division 9.2 of the Government Sector Finance Act 2018. Officers cannot exceed the monetary limits set out in the Attorney General’s Delegation.
References in this instrument to ‘determining officer’ or determination refer to the officer delegated to determine an application for legal aid under section 34 of the Act and Part 9 of the Instrument of Delegation.
Reference to a ‘certifying officer’ or certification refers to an officer delegated to make recommendations to a determining officer, whether or not a section 33 authorisation or grant of legal aid, should be made in respect of an application for legal aid in an in-house matter.
Under s.69 (d), I delegate certain functions to private lawyers participating in the Duty Solicitor Scheme, and private lawyers who are principal solicitors or nominated associates of a law practice on the Legal Aid NSW Family Law Panel.
Under section 58(a) of the Act, the Legal Aid Review Committee (LARC) has the functions and discretions that the person or body whose determination, variation or decision is the subject of the appeal had in respect of the matter the subject of the appeal.
I have not delegated certain functions which are set out in Attachment A.
Brendan Thomas
Chief Executive Officer
Legal Aid New South Wales
| Item | Delegated Officer |
|---|---|
| Consenting to the provision of information or a document to a court or tribunal as provided under s 25(4)(I) | Legal Aid NSW officers who have management of a matter, or who are providing a Duty Service, are authorised to consent to the provision of information or a document to a court or tribunal as provided under s 25(4)(I) |
| Exception | |
| When legal aid has been wholly or partly refused under the Legal Aid NSW merit test. | In regional Local Court criminal matters, Solicitor Grade I-III In all other circumstances, Solicitor Grade V |
| Item | Delegated Officer |
|---|---|
To consent to divulging information or a document to a person other than:
(not including matters under s 25(4)(k) or (l) | Manager, In-house Counsel Unit Grade VI Solicitor Grants Legal Services Manager LawAccess Deputy Director Criminal Law Director Civil Law Director Family Law Director Client Services Director Disability Royal Commission Legal Service |
| Item | Delegated Officer | |
|---|---|---|
| 3.1 | Exercising the functions of the CEO under ss 24 and 28, pursuant to an appointment made under s 23A, in relation to in-house legal matters. | Cherie Pittman |
| 3.2 | Signing documents for a party to the proceedings whereby that signature shall be deemed to be the signature of the solicitor for that party. | Solicitor with the carriage of an in-house matter as authorised by Cherie Pittman
|
| Item | Delegated Officer | |
|---|---|---|
| Certification | Determination | |
Authorising under s 30(2) and (4) funding for a specified purpose, including determining whether ss 34 (6)-(8), 41 and 47 are to apply to the provision of the grant of aid.
| Director Criminal Law Director Family Law Director Civil Law | Director of grants |
| Item | Delegated Officer | |
|---|---|---|
| Certification | Determination | |
Exercising discretion to amend an application that is not in an approved manner and form to submit the application for a determination. Note: the power to approve variations to the approved form of applications is reserved by the CEO. | Solicitor Grade IV | Solicitor Grade IV Grants |
| Item | Limit | Delegated Officer | |
|---|---|---|---|
| Certification | Determination | ||
Exercising powers under s 33 (including payment of solicitor costs, counsel fees and disbursements). A s 33 authorisation can be made in a matter where an Officer is authorised to determine under s 34. * Officers cannot exceed the monetary limits set out in the Attorney General’s delegation under Part 9 Division 9.2 of the Government Sector Finance Act 2018. | Up to $3000 | Solicitor Grade I-III Advocate Clerk Grade 6-7 | Grants Officer Grade 3-4 Solicitor Grade I-III Grants |
| $4000 | Solicitor Grade IV Civil Law | Grants Officer Grade 5-6 Solicitor Grade IV Grants | |
| $4500 | Solicitor Grade V Civil Law | Solicitor Grade V Grants | |
| $4500 | Deputy Director Criminal Law Director Civil Law Director Family Law | Director Grants
| |
| Item | Limit per disbursement (not including counsel’s fees) | Certifying Officer | Determining Officer |
|---|---|---|---|
Recommending to a determining officer that a disbursement (not including counsel’s fees) be incurred. | $500 Maximum limit per matter $1500 | Legal Support Officer | Grants Officer Grade 3-4 Solicitor Grade I-III Grants |
| Item | Delegated Officer |
|---|---|
Determining applications for Early Resolution Assistance * Officers cannot exceed the monetary limits set out in the Attorney General’s delegation under Part 9 Division 9.2 of the Government Sector Finance Act 2018 | Grants Officer Grade 3-4 Solicitor Grade I-III |
| Item | Delegated Officer | ||
|---|---|---|---|
| 9.1 | Determining under s 34 an application for legal aid (including granting and refusing legal aid). Approving an application for legal aid that has been certified by an in-house officer, holding an appropriate authority, as meeting the Merit Test and the policies, and where the Means Test is satisfied. * Officers cannot exceed the monetary limits set out in the Attorney General’s delegation under Part 9 Division 9.2 of the Government Sector Finance Act 2018. | Director Grants Determining Officer Grants Division subject to the following exceptions | |
| Exceptions | |||
| 9.2 | Redetermining a refusal or condition of a grant of legal aid under s 34. | The Determining Officer or a Grants Officer of the same or a higher grade with the authority to approve a grant to which the application refers. | |
| 9.3 | Determining applications for legal aid for Extradition matters | This function has not been delegated. | |
| 9.4 | Determining applications in relation to matters under Part 7 of the Crimes (Review and Appeal) Act 2007 (NSW). | This function has not been delegated. | |
| 9.5 | Determining applications for legal aid by people employed at Legal Aid NSW. | Director Grants | |
| 9.6 | Determining applications for legal aid when it is known that the applicant is a relative or partner or former partner of a person employed at Legal Aid NSW. | Director Grants | |
| Certification | Determination | ||
| 9.7 | Determining applications for legal aid for public interest human rights matters (applications are tabled before the Human Rights Consultative Committee which makes recommendations). | Director Civil Law | Director Grants |
| 9.8 | Determining applications for duty matters. | In-house solicitor providing the duty service | |
| 9.9 | Determining applications for legal aid by appellants seeking a severity appeal in criminal proceedings to the District Court. | Solicitor Grade I-III | Grants Officer Grade 3-4 Solicitor Grade I -III Grants |
| 9.10 | Determining applications for legal aid by appellants seeking an all grounds appeal in criminal proceedings to the District Court. | Solicitor Grade I-III | Grants Officer Grade 3-4 Solicitor Grade I -III Grants |
| 9.11 | Determining applications for legal aid by appellants in appeal proceedings other than High Court (excluding clauses 9.9 and 9.10). | Solicitor Grade IV Criminal and Family Law Solicitor Grade V Civil Law | Grants Officer Grade 5-6 Solicitor Grade I-III Grants |
9.12 | Determining applications for legal aid for summons matters and other prerogative relief in the Supreme Court in criminal matters. | Solicitor Grade VI | Solicitor Grade V Grants |
| 9.13 | Determining applications for legal aid by appellants in criminal appeal proceedings before the High Court. Note: where the appeal raises constitutional issues, following consultation with the DCEO and CEO. | Director Criminal Law | Director of Grants |
| 9.14 | Determining applications for legal aid by appellants in appeal proceedings other than criminal proceedings before the High Court. | Director Family Law Director Civil Law | Solicitor Grade VI Grants |
| 9.15 | Determining applications for an originating process in the High Court. Note: where the appeal raises constitutional issues, following consultation with the DCEO and CEO. | Deputy Director Criminal Law Director Family Law Director Civil Law | Director Grants |
| 9.16 | Determining applications for legal aid in employment law - public interest matters. | Solicitor Grade V | Solicitor Grade V Grants |
| 9.17 | Determining applications in family law property settlement proceedings where there are exceptional circumstances | Solicitor Grade VI | Solicitor Grade VI Grants |
| 9.18 | Determining applications for legal aid for matters which fall outside the types of matters for which legal aid is available under the Legal Aid NSW policies. OR Determining applications for legal aid for Commonwealth law matters which are not included in the Commonwealth Priorities. Note: where legal aid may be granted, it should be done following consultation with the DCEO and CEO. | Director Criminal Law Director Family Law Director Civil Law | Director Grants |
| Authorisation | Amount | Certifying officer | Delegated Officer |
|---|---|---|---|
Commitment and payment of total accounts in excess of, or outside a standard combination of work items per grant of legal aid. Officers cannot exceed the monetary limits set out in the Attorney General’s delegation to staff under the Government Sector Finance Act 2018. | $3,000 | Advocate Clerk Grade 6-7 | Grants Officer Grade 3-4 |
$7,500 | Advocate Clerk Grade 9-10 | Grants Officer Grade 5-6 | |
$10,000 | Solicitor Grade I-III | Solicitor Grade I-III Grants | |
$15,000 | Solicitor Grade IV | Solicitor Grade IV Grants | |
$25,000 | Solicitor Grade V | Solicitor Grade V Grants | |
$50,000 | Solicitor Grade VI | Solicitor Grade VI Grants | |
$200,000 | Deputy Director Criminal Law | Director Grants | |
$1,000,000 | Director Grants | Director Grants |
| Item | Delegated Officer | ||
|---|---|---|---|
| Certification | Determination | ||
11.1 | Up to 2 day for reading and preparation time | Solicitor Grade I-III | Grants Officer Grade 3-4 |
11.2 | Up to 4 days for reading and preparation time | Solicitor Grade I-III | Grants Officer Grade 5-6 Solicitor Grade I-III Grants |
11.3 | Up to 5 days for reading and preparation time | Solicitor Grade IV | Solicitor Grade IV Grants |
11.4 | Up to 8 days for reading and preparation time | Solicitor in Charge, Regional Office | Solicitor Grade V Grants |
11.5 | Up to 10 days for reading and preparation time | Solicitor Grade VI | Solicitor Grade VI Grants |
11.6 | Up to 15 days for reading and preparation time | Director Criminal Law | Director Grants |
Note: Please refer to the Chief Executive Officer, if approval over 15 days is required.
| Item | Delegated Officer |
|---|---|
Determining under s 34A that the grant of legal aid is to be dated on, or after, the date of the initial request for legal aid, being either
| Solicitor Grade V Grants |
| Item | Delegated Officer | |
|---|---|---|
| Certification | Determination | |
The discretion to authorise an emergency grant of legal aid before the legal aid applicant has completed Legal Aid NSW’s application form. | Solicitor Grade IV | Grants Officer Grade 5-6 Solicitor Grade IV Grants |
| Item | Delegated | ||
|---|---|---|---|
| Certification | Determination | ||
| Implementing the Legal Aid NSW Means Test under s 35. | Duty Solicitor | ||
| In-house solicitor with the carriage of the matter | Determining Officer | ||
| subject to the following discretions | |||
| 14.1 | Exercising discretion in applying the Means Test to grant legal aid when, after calculating the income, the net assessable income of the applicant exceeds the current maximum threshold by up to 10%. Officers must consider the factors set out in the Means Test 1.4.9.1 Discretion when exercising this discretion. | Duty solicitor | |
| In-house solicitor with the carriage of the matter | Determining Officer | ||
| 14.2 | Exercising discretion in applying the Means Test to grant legal aid to applicants whose net assessable income exceeds the current maximum threshold by over 10%. Officers must take into account the factors set out in the Means Test 1.4.9.2 Discretion when exercising this discretion. | Solicitor Grade IV | Solicitor Grade IV Grants |
| 14.3 | Exercising discretion in applying the Means Test, to grant legal aid to applicants who do not meet the Means Test because their calculated initial contribution (on income and/or assets) exceeds the allowable amount for the type of matter. Officers must consider the factors set out in the Means Test 1.4.9.3 Discretion when exercising this discretion. See Means Test Guideline 1.5 for the allowable amount for each type of matter. | Solicitor Grade VI | Solicitor Grade V Grants |
| 14.4 | Exercising discretion in applying the Means Test to disregard, for elderly applicants, the home equity in excess of the maximum ceiling to grant legal aid and calculate a contribution on assets. See Means Test 1.4.9.4 Discretion when exercising this discretion. | Solicitor Grade IV | Grants Officer Grade 5-6
Solicitor Grade I-III Grants |
| 14.5 | Determining to refuse legal aid to applicants whose income and assets fall within the Means Test (the Lifestyle Test). Officers must consider the factors set out in Means Test Guideline 1.4 when exercising this discretion. | Solicitor Grade IV | Solicitor Grade IV Grants |
| Item | Delegated Officer | |
|---|---|---|
| Certification | Determination | |
Determining under s 35(1) that the Legal Aid NSW Means Test should not be applied because special circumstances exist, about the property or means of the applicant, or otherwise. Under s 35(3) special circumstances may include: (a) that the applicant is a party to proceedings as a member of an unincorporated association; or (b) the applicant is a party to
| Deputy Director Criminal Law | Director Grants |
| Item | Delegated Officer | |
|---|---|---|
| Certification | Determination | |
Exercising the discretion, in special circumstances, to waive the requirement for verification of means. | Duty Solicitor | |
In-house solicitor with carriage of the matter | Determining Officer | |
| Item | Delegated Officer | ||
|---|---|---|---|
| Certification | Determination | ||
Authorising a contribution payable under s36(1)(a) of the Act and directing the manner of payment and the due date for payment of the contribution. Note: all decisions must be made in accordance with the Contributions Policy. | In-house solicitor with the carriage of the matter | Determining Officer | |
17.1 | Exercising the discretion in exceptional circumstances to reduce or waive the initial $75 contribution imposed, in accordance with Contributions guideline 6.2.1. | In-house solicitor with the carriage of the matter | Determining Officer |
17.2 | Determining to exclude assets set out in Contributions guideline 6.2.3 when determining eligibility under the Means Test and the initial contribution to be paid. Determining officers must consider the factors at Contributions policy 6.2.3 Where assets are earmarked for emergencies, when exercising this discretion. | In-house solicitor with carriage of the matter | Determining officer |
17.3 | Exercising the discretion to reduce or waive an Initial Contribution in exceptional circumstances. Determining officers must consider the factors at Contributions guideline 6.2.3 Assets based contribution and Contributions guideline 6.2.4 Income based contribution | Solicitor Grade VI | Solicitor Grade V Grants |
Amount by which an officer can recommend or approve varying (increasing or reducing) or waiving a s 36 contribution Note: All decisions must be made in accordance with the Means Test or Contributions Policy | Delegated Officer | ||
|---|---|---|---|
| Certification
| Determination
| ||
18.1 | Minimum contribution $75 | Solicitor Grade I-III | Grants Officer Grade 3-4 |
18.2 | Up to $5,000 | Solicitor Grade VI | Solicitor Grade V Grants |
18.3 | Up to $20,000 | Director Criminal Law | Director Grants |
18.4 | Over $20,000 | CEO | Director Grants |
| Item | Delegated Officer |
|---|---|
Determining applications for legal aid from certain persons described in s 37(1). | Determining Officer Subject to the following exception |
| Exception | |
Determining applications for legal aid from a corporation (pursuant to s. 37(1)(b)) for a matter under the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW). | Director Grants |
| Item | Delegated Officer |
|---|---|
Varying a grant of legal aid under s 38, including altering the nature and extent of grants and altering conditions. Note: Terminating grants of legal aid is excluded from this delegation. | An officer with the delegation under s 34 to approve the grant. |
| Item | Delegated Officer | |
|---|---|---|
| Certification | Determination | |
Terminating a grant of legal aid under s 38(1)(a). | Solicitor Grade IV | Grants Officer Grade 5-6 |
| Item | Delegated Officer | |
|---|---|---|
22.1 | Requiring a private legal practitioner acting for a legally assisted person to assess or tax costs under s 40. | Grants Officer Grade 5-6 |
22.2 | Giving approval under s 41 to a private legal practitioner to demand and receive payments from a legally assisted person, or any other person on behalf of a legally assisted person. | Director Grants |
22.3 | Determining whether an application is to be made to a Court or Tribunal for orders for the payment of costs by a legally assisted person under s 43. | Director Grants |
22.4 | Deferring under s 43A(1)(a) the payment of costs to a private legal practitioner pending the recovery of party/party costs. | Grants Officer Grade 5-6 Solicitor Grade I-III Grants |
22.5 | Deferring under s 43A(1)(b) and (c) payment of costs to a private legal practitioner until the conclusion of any official investigation, or the completion of any criminal or disciplinary proceedings. | Director Grants Deputy CEO |
22.6 | Refusing under s 43A(2) to make payment of any fees to a private legal practitioner if any allegation referred to in s 43A(1)(b) is substantiated in any criminal or disciplinary proceedings. | Director Grants |
22.7 | Approving an application under s 43B to a court/tribunal for an order that a panel practitioner repays money to Legal Aid NSW. | Director Grants |
22.8 | Directing under s 44 a legally assisted person to pay moneys to Legal Aid NSW and to account for those moneys. | Grants Officer Grade 5-6 Solicitor Grade IV Grants |
22.9 | Directing under s 45 a legally assisted person to assign his/her right to recover moneys and to recover moneys where the right to recover moneys has been assigned to Legal Aid NSW. | In-house solicitor with carriage of the matter |
| Determining under s 46 the liability of a legally assisted person to pay costs and disbursements and directing the due date for payment of the contribution. | Delegated Officer | ||
|---|---|---|---|
| Certification
| Determination
| ||
23.1 | Where the Contributions Policy of Legal Aid NSW is being implemented. | In-house solicitor with carriage of the matter | Determining Officer |
23.2 | When applying the Contributions Policy it is considered appropriate, in exceptional circumstances, to determine to reduce the contribution to legal costs under s 46 of the Act (final contribution) | Deputy Director Criminal Law Director Family Law Director Civil Law | Director Grants |
The amount by which an officer can recommend or approve reducing or waiving a s.46 contribution Note: All decisions must be made in accordance with the Contributions Policy | Delegated Officer | ||
|---|---|---|---|
| Certification | Determination | ||
24.2 | Up to $20,000 | Director Criminal Law | Solicitor Grade VI Grants |
24.3 | Over $20,000 | CEO | Director Grants |
Item | Delegated Officer | ||
|---|---|---|---|
| Certification | Determination | ||
Recommending and authorising payment by Legal Aid NSW under s 47 of costs awarded against legally assisted persons (including the determination as to whether party/party costs are reasonable). | Advocate Clerk Grade 6-7 | Grants Officer Grade 5-6 Solicitor Grade I-III Grants | |
| Exceptions | |||
25.1 | Determining what costs, if any, are to be paid in matters covered by s 47(4) or (4A). | Director Criminal Law | Director Grants |
| Item | Delegated Officer | |
|---|---|---|
26.1 | Appointment of, or refusal to appoint, a law practice to a panel following assessment and recommendation by the Private Lawyer Quality Standards Unit | Director Legal Services |
26.2 | Appointment of a law practice to a panel following assessment and recommendation by the Private Lawyer Quality Standards Unit | Manager Private Lawyer Quality Standards Unit |
| Item | Delegated Officer |
|---|---|
Endorsing service agreements between panel legal practitioners and Legal Aid NSW. | Director Grants |
| Item | Delegated Officer |
|---|---|
| Authority to suspend or remove a lawyer from a panel following assessment and recommendation by the Private Lawyer Quality Standards Unit | Director Legal Services |
| Item | Delegated Officer Certification Determination | |
|---|---|---|
Assigning a matter to a practitioner who is not:
| Solicitor Grade IV Family Law Solicitor Grade IV Civil Law Solicitor Grade V Criminal Law | Solicitor Grade VI Grants |
| Item | Delegated Officer |
|---|---|
| Signing Caveats and Withdrawals of Caveats on behalf of Legal Aid NSW. | Solicitor Grade IV Accounts Receivable Solicitor Grade IV In-house Counsel Unit |
| Item | Delegated Officer |
|---|---|
| Consenting to priority over Legal Aid NSW’s caveatable interest over real property. | Solicitor Grade IV Accounts Receivable Solicitor Grade IV Inhouse Counsel Unit |
| Item | Delegated Officer | |
|---|---|---|
32.1 | The management of recovery action for debts owed to Legal Aid NSW including but not limited to:
| Solicitor Grade IV Accounts Receivable Manager Inhouse Counsel Unit |
32.2 | Signing legal documents on behalf of the Solicitor to Legal Aid NSW for matters to which Legal Aid NSW is a party. | Solicitor Grade IV Accounts Receivable Solicitor Grade IV Inhouse Counsel Unit |
| Item | Delegated Officer | ||
|---|---|---|---|
33.1 | Discretion to enter into a negotiated settlement on behalf of Legal Aid NSW with respect to a debt owed to Legal Aid NSW by a client limited to negotiating settlement during representation in a court. In negotiating a settlement in which an agreement is reached to reduce the amount the client will pay to Legal Aid NSW in full and final settlement of the debt, the officer must have regard to any relevant Treasurer’s Directions issued under Part 9 Division 9.2 of the Government Sector Finance Act 2018 (NSW). | Solicitor Grade IV Accounts Receivable Solicitor Grade IV Inhouse Counsel Unit | |
33.2 | Discretion to enter into a negotiated settlement on behalf of Legal Aid NSW with respect to a debt owed to it by a client. In negotiating a settlement in which an agreement is reached to reduce the amount the client will pay to Legal Aid NSW in full and final settlement of the debt, the officer must have regard to any relevant Treasurer’s Directions issued under Part 9 Division 9.2 of the Government Sector Finance Act 2018 (NSW). | Up to $75,000 | Executive Director Corporate and Business Services |
| Item | Delegated Officer |
|---|---|
| Exercising a lien by Legal Aid NSW under s 48 on documents held for proceedings which are the subject of an inhouse grant of legal aid. | Solicitor Grade I –III subject to the following exception |
| Exception | |
| Deciding whether a lien is to be exercised by Legal Aid NSW under s 48 on documents held for proceedings in an in-house matter where there has been a refusal by Legal Aid NSW to release papers after negotiations and an agreement cannot be reached. | Director Grants Director Criminal Law Director Civil Law Director Family Law |
| Item | Delegated Officer |
|---|---|
| Administering a Trust Account established under s 64A and holding all monies received for or on behalf of any legally assisted person in the Account. | Robert Hoyles, Director Criminal Law |
| Item | Delegated Officer | |
|---|---|---|
36.1 | Authority for private practitioners rostered on to a Duty Solicitor Scheme to
| Private practitioners approved by the Director Grants |
36.2 | Authority for private lawyers to determine applications under s 34 of the Legal Aid Commission Act 1979 (NSW) for the following matters:
| Private lawyers who are Principal Solicitors or Nominated Associates of a law practice on the Legal Aid NSW Family Law Panel |
| 36.3 | Authority for private lawyers to determine applications for Early Resolution Assistance in Family Law Early Intervention Mediations. | Private lawyers who are Principal Solicitors or Nominated Associates of a law practice on the Legal Aid NSW Family Law Panel |
The Chief Executive Officer retains the following functions under the Act:
- Decisions under s 34
Determination of applications for aid for proceedings under the Extradition Act 1988 (Cth), and for matters under Part 7 of the Crimes (Review and Appeal) Act 2007 (NSW) - Prosecutions under ss 26 and 32
Decision to prosecute under ss 26 and 32 of the Legal Aid Commission Act 1979 (NSW). - Other functions
Any other function that is not specifically delegated in writing.