Policies
4. Criminal Law Matters – when legal aid is available
4.16. Children's criminal matters
For further information on children's criminal matters see Legal Aid NSW Children's Legal Service.
4.16.1 Criminal matters in the Children's Court
Legal aid is available to children and young people for all criminal matters in the Children’s Court.
This includes but is not limited to:
- Defendants in matters initiated by Court Attendance Notice,
- Applications for annulments under Part 2 of the Crimes (Appeal and Review) Act 2001 (NSW),
- Applications under the Crimes (Forensic Procedures) Act 2000 (NSW) where the applicant is a suspect,
- Committal proceedings,
- Parole hearings.
NOTE: This policy applies to adult defendants up to the age of 21 years appearing in criminal matters in the Children’s Court over which the Children’s Court has jurisdiction.
NOTE: Legal aid is available to children and young people for proceedings in relation to compulsory schooling order matters under the Education Act 1990 (NSW) in the Children's Court, where the order is directed at the child (as opposed to the parent): see Family Law Policy 5.14.20.
NOTE: Legal aid is available to children and young people for driving and traffic offences in the Local Court: see Criminal Law Policy 4.3.3
4.16.2 Apprehended Domestic Violence Orders
Legal aid is available to children and young people in apprehended domestic violence order (ADVO) proceedings under the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
Where the applicant for legal aid is seeking to make an ADVO application
To be eligible for legal aid the applicant must be:
- A victim of domestic violence, and
- Permitted to bring the proceedings on their own behalf under the Act. Example: a child under 16 years of age is not able to commence proceedings for a AVO on their own behalf.
Where the applicant for legal aid is defending an ADVO
Legal aid is available to defend an application for an ADVO.
Legal aid is not available for ADVO matters if:
- Legal Aid NSW is satisfied that the application for an order is frivolous or vexatious, or
- There are no reasonable prospects of success, or
- For an applicant in ADVO proceedings, if the application for the order is made by a police officer.
4.16.3 Apprehended Personal Violence Orders
Legal aid is available to children or young people in apprehended personal violence order (APVO) under the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
Where the applicant for legal aid is seeking to make an APVO application
To be eligible for legal aid:
- There must be exceptional circumstances (examples may include, but are not limited to, where the applicant has a disability or lives with the proposed defendant in a detention centre, and
- they applicant is permitted to bring the proceedings on their own behalf under the Act. Example: a child under 16 years of age is not able to commence proceedings for a AVO on their own behalf.
Where the applicant for legal aid is defending an APVO
Legal aid is available to defend an application for an APVO.
Legal aid is not available for APVO matters if:
- Legal Aid NSW is satisfied that the application for an order is frivolous or vexatious, or
- There are no reasonable prospects of success.
4.16.4 Varying or revoking a bond or probation order
Legal aid is available to children or young people in proceedings to vary or revoke a bond or probation order under the Children (Criminal Proceedings) Act 1986 (NSW).
Where the applicant for legal aid is the respondent
Legal aid is available to respondents in applications to vary or revoke a bond or probation order.
Where the applicant for legal aid is seeking to make an application
Legal aid is available to make an application to vary or revoke a bond or probation order.
To be eligible for legal aid the applicant must satisfy:
- the Merit Test
Note: see Local Court Policies 4.3.6 and 4.3.7 for when legal aid is available in the Local Court in relation to a Community Correction Order or a Conditional Release Order made under the Crimes (Sentencing Procedure) Act 1999 (NSW).
4.16.5 Restorative Justice Programs–Youth Conferencing
Legal aid is available to children or young people who are participating in a restorative justice program where the court makes an order in relation to Youth Justice Conferencing pursuant to the Young Offenders Act 1997 (NSW).
To be eligible for legal aid the applicant must satisfy:
- that it is appropriate in the circumstances that the applicant has legal representation.
NOTE: Criminal Law Guideline 1.9 sets out the criteria for determining whether it is appropriate that the applicant has legal representation.
4.16.6 Appeals
Legal aid is available to children and young people for appeals to the District Court, the Supreme Court, the Court of Criminal Appeal and the High Court.
To be eligible for legal aid the applicant must satisfy:
- the Merit Test
Legal Aid officers authorised under the Delegation Instrument can determine these grants of aid.
4.16.7 Indictable and sentence matters in the Supreme and District Court
Legal aid is available to children and young people for trials and sentence matters in the District and Supreme Court.
4.16.8 Bail applications in the Supreme Court
Legal aid is available to children and young people for bail applications to the Supreme Court.
To be eligible for legal aid the applicant must satisfy:
- the Merit Test
4.16.9 Responding to a Mandatory Disease Testing order
Legal aid is available to children and young people to respond to an application for an order made under Part 4 of the Mandatory Disease Testing Act 2021 (NSW).
To be eligible for legal aid the applicant must satisfy:
- the definition of “vulnerable third party” under the Mandatory Disease Testing Act 2021 (NSW).
NOTE: These applications are administered as criminal law grants.
NOTE: Under the Mandatory Disease Testing Act 2021 (NSW) a “vulnerable third party” means a third party who—
(a) is at least 14 years of age but under 18 years of age, or
(b) is suffering from a mental illness or mental condition, or is cognitively impaired, within the meaning of the Mental Health (Forensic Provisions) Act 1990, which significantly affects the vulnerable third party’s capacity to consent to voluntarily provide blood to be tested for blood-borne diseases.
Date Last Published: 05/12/2022