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Guidelines
Directions
1. An Introduction to Legal Aid NSW
- 1.1. Legal Aid NSW core policies for granting legal aid
2. Legal Aid Commission Act
- 2.1. Introduction
- 2.2. Part 1 - Preliminary
- 2.3. Part 2 - Constitution and management of Legal Aid Commission
- 2.4. Part 3 - Provision of legal aid
- 2.5. Part 3A - Alternative dispute resolution
- 2.6. Part 4 Finance
- 2.7. Part 5 - Miscellaneous
- 2.8. Schedules
3. Delegation Instrument
- 3.0. Introduction and Preamble
- 3.1. Section 25 - Divulging information or document to a court or tribunal, with the consent of Legal Aid NSW, under section 25(4)(l)
- 3.2. Divulging information or a document (other than as provided by section 25(4)(k) or (l))
- 3.3. Solicitor on Record - section 28
- 3.4. Grant of money for a specified purpose - section 30
- 3.5. Application for legal aid - section 31
- 3.6. Exercising powers under section 33
- 3.6.A Legal Support Officers certifying limited disbursements under sections 33 and 34 on Grants Online
- 3.7. Determining and redetermining applications for legal aid under section 34
- 3.7.A Approval of expenditure in relation to grants of legal aid
- 3.8. Determining and redetermining the date of a grant of legal aid under section 34A
- 3.9. Authorising emergency grants of legal aid
- 3.10. Implementing the Means Test under section 35
- 3.11. Determining under section 35(1) that the Means Test should not apply
- 3.12. Waiving the requirement for verification of means
- 3.13. Contributions under section 36(1)(a)
- 3.14. Amounts by which a contribution under section 36 can be varied or waived prior to finalisation of a matter
- 3.15. Applications for legal aid by certain persons under section 37
- 3.16. Varying grants of legal aid under section 38
- 3.17 Terminating grants of legal aid under section 38(1)
- 3.18. Approving the number of reading and preparation days in criminal matters
- 3.19. Making certain decisions about costs and moneys under sections 40, 41, 43, 43A, 43B, 44 & 45
- 3.20. Determining under section 46 the liability of a legal assisted person to pay costs
- 3.21. Amounts by which a contribution under section 46 can be waived or reduced
- 3.22. Determining payment of costs awarded against a legally assisted person under section 47
- 3.23. Establishing a selection Committee to appoint private practitioners to panels under section 51
- 3.24 Authority to appoint, or refuse to appoint a legal practitioner to a panel
- 3.25. Authorising private practitioner panel service agreements under section 52
- 3.26. Audits of private legal practitioners under section 52B
- 3.27. Discretion to assign a matter to a non panel private practitioner
- 3.28. Signing and Withdrawing Caveats
- 3.29. Consenting to dealings on the property
- 3.30. Management of debts
- 3.31. Exercising a lien under section 48
- 3.32. Administration of a Trust Account under section 64A
- 3.33. Approving payment of fees and disbursements that exceed Legal Aid NSW fee scales
- 3.34. Authority to private practitioners providing duty services
- 3.35. Negotiated settlement
- Attachment A
4. Criminal Law Matters – when legal aid is available
- 4.1. Introduction
- 4.2. Important conditions which apply to grants of legal aid
- 4.3. Local Court criminal law matters
- 4.4. Apprehended Domestic Violence Orders
- 4.5. Apprehended Personal Violence Order
- 4.6. Appeals from the Local Court
- 4.7. Drug Court matters
- 4.8. Circle Court matters
- 4.9. Preventative detention, control order and prohibited contact order matters
- 4.10. Local Court committal matters
- 4.11. Criminal Indictable matters
- 4.12. Matters under Part 8 of the Crimes (Appeal and Review) Act
- 4.13. Criminal appeals to Court of Criminal Appeal and High Court
- 4.14. Matters under Part 7 of the Crimes (Appeal and Review) Act
- 4.15. Land and Environment Court matters
- 4.16. Children's criminal matters
- 4.17. Prisoners' matters
- 4.18 Extended supervision orders, continuing detention orders, post-conviction orders, control orders and serious crime prevention orders
- 4.19. Matters for which legal aid is not available
5. Family Law Matters – when legal aid is available
- 5.1. Introduction
- 5.2. Important conditions which apply to grants of legal aid
- 5.3. Parenting matters - including independent children's lawyers
- 5.4. Varying or discharging parenting orders –including independent children's lawyers
- 5.5. Recovery, location and Commonwealth information orders
- 5.6. Property settlement matters - after separation
- 5.7. Spousal and de facto maintenance - after separation
- 5.8. Child support and child maintenance matters
- 5.9. Divorce and nullity of marriage
- 5.10. International child abduction
- 5.11. Contravention of parenting orders and enforcement of court orders
- 5.12. Matters after final court orders
- 5.13. Contempt of court
- 5.14. Care and protection matters
- 5.15. Special medical procedures
- 5.16. Adoption matters
- 5.17. Domestic and family violence
6. Civil law matters - when legal aid is available
- 6.1. Introduction
- 6.2. Important conditions that apply to a grant of legal aid
- 6.3. List of civil matters for which legal aid is available
- 6.4. Loss of home - if there is a likelihood the applicant may lose their home
- 6.5. Consumer protection matters
- 6.6. Breach of civil liberties
- 6.7 Extended supervision orders, continuing detention orders, post-conviction orders, control orders and serious crime prevention orders
- 6.8. Discrimination matters
- 6.9 Matters under Working with Children legislation
- 6.10. Matters under the NSW Trustee and Guardian Act 2009 (NSW)
- 6.11. Matters under the Public Health Act
- 6.12. Coronial Inquests into Deaths
- 6.13. Employment law matters
- 6.14. Public interest human rights matters
- 6.15. Mental health matters
- 6.15A. Drug and Alcohol Treatment Act matters
- 6.16. Guardianship matters
- 6.17. Sexual assault communications privilege matters
- 6.18. Migration matters
- 6.19. Commonwealth benefits including pensions, allowances and social security
- 6.20A. Review of decisions under the National Disability Insurance Scheme Act 2013
- 6.22. Proceeds of crime matters
- 6.23. Extradition proceedings
- 6.24 War veterans' matters
- 6.26. Matters for which legal aid is not available
7. Means Test
- 7.1. What is the Means Test?
- 7.2. What matters are means tested?
- 7.3. Whose means are considered when applying the Means Test?
- 7.4. Means Test structure
- 7.5. Income test
- 7.6. Assets test
- 7.7. Applicant's ability to pay legal costs test
- 7.8. Means Test determines initial contribution
- 7.9. Means Test determines contribution to adverse costs
- 7.10. Discretions under the Means Test
- 7.11. Verification of means
- 7.12. Special types of applicants
- 7.13. Contributions on net assessable assets
8. Merit Test
- 8.1. What is a merit test?
- 8.2. Merit Test A – State and some Commonwealth matters
- 8.3. Merit Test B – Commonwealth family law matters
9. Unpaid Contributions Test (Repealed)
- 9.1 The Unpaid Contributions Test (Repealed)
- 9.2 Matters exempted from the Unpaid Contributions Test (Repealed)
10. Availability of Funds Test
- 10.1. Test for availability of funds in State matters
- 10.2. Test for availability of funds in Commonwealth matters
11. Contributions
- 11.1. Initial Contributions
- 11.2. Can contributions be secured upfront?
- 11.3. What is a contribution to legal costs?
- 11.4. Exempted matters - where an applicant is not required to pay an initial contribution
- 11.5. Exempted matters - where an applicant for legal aid owns real property
12. Representation: Allocating Legal Work
- 12.1. Introduction
- 12.2. Civil law matters
- 12.3. Criminal law matters
- 12.4. Family law matters
- 12.5. Duty solicitor matters
13. Legal Aid Review Committee Appeals
- 13.1. Introduction
- 13.2. The appeal process
- 13.3. The types of decisions that can be appealed to a Legal Aid Review Committee
- 13.4. When there is no right to appeal to a Legal Aid Review Committee
- 13.5. How to appeal to a Legal Aid Review Committee
- 13.6. When proceedings can be adjourned pending an appeal to a Legal Aid Review Committee
- 13.7. Assigning a matter following a successful appeal to a Legal Aid Review Committee
- 13.8. Decision of the Legal Aid Review Committee is final
14. Types of Grants
- 14.1. Standard grant of legal aid
- 14.2. Lump sum grants
- 14.3. Emergency grants of aid
- 14.4. Retrospective grant of legal aid
- 14.5. Duty Service grants
- 14.6. Information, legal advice and minor assistance
15. Grants to Community Legal Centres
- 15.1. Introduction
- 15.2. Grants of legal aid to community legal centres
- 15.3. What policies applies to grants of legal aid to CLCs
- 15.4. Paying legal practitioner fees to CLCs
- 15.5. Exceptions to policy that no legal practitioner fees will be paid
- 15.6. Special arrangement with Marrickville, Western Sydney Community Legal Centre, Kingsford and Far West Community Legal Centres.
- 15.7. Funding allocation to Community Legal Centres
- 15.8. Schedule of community organisations providing legal services covered by these policies
16. Terminating Grants of Legal Aid
- 16.1 Terminating grants of legal aid
17. Costs and Fees
- 17.1. Introduction
- 17.2. Fees paid to private legal practitioners under s39 of the Act
- 17.3. Right to have private legal practitioner's costs assessed
- 17.4. Private practitioners prohibited from charging legal aid client
- 17.5. Costs orders
- 17.6. An order for legally aided client to pay costs to Legal Aid NSW
- 17.7. Deferring payment of costs to private legal practitioners
- 17.8. When can Legal Aid NSW refuse to pay a legal practitioner's fees
- 17.9. When a client may be directed to pay costs recovered to Legal Aid NSW
- 17.10. Assignment of costs under s45 of the Act
- 17.11. Costs Legal Aid NSW must pay on behalf of the client under s47 of the Act
18. Forum Test and Reciprocity Test
- 18.1 Forum Test
- 18.2 Reciprocity Agreement between interstate legal aid commissions
- 18.3 Addresses of interstate legal aid commissions
- 18.4 Payment of costs and disbursements of solicitors outside New South Wales
- 18.5 Travelling expenses of the legally assisted person
19. Section 33 Payments (Repealed)
- 19.1 What is a section 33 payment? (Repealed)
- 19.2 How much is the section 33 payment? (Repealed)
- 19.3 Can the section 33 payment be waived or reduced? (Repealed)
- 19.4 What happens if legal aid is granted? (Repealed)
- 19.5 Will the payment be refunded if the applicant is refused legal aid? (Repealed)
- 19.6 What happens if the applicant does not pay the section 33 payment? (Repealed)
- 19.7 Exempted matters - where an applicant is not required to pay a section 33 payment (Repealed)

Policies

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4. Criminal Law Matters – when legal aid is available

4.17. Prisoners' matters

Legal aid is available to prisoners for representation in the following types of matters.

Note: The policy for granting legal aid in relation to defending applications made by the Attorney General under the Crimes (High Risk Offenders) Act 2006 (NSW) are set out in the civil law policies at 6.7 and the criminal law policies at 4.18.

4.17.1 Hearings before the Parole Authority

Legal aid is available to prisoners for representation in hearings before the Parole Authority.

For legal aid to be granted in these matters the following tests must be satisfied:

the Means Test
the Availability of Funds Test.

For further information about prisoner's matters contact Legal Aid NSW Prisoner's Legal Service.

4.17.2 Life Re-sentencing matters

Legal aid is available to prisoners for representation in life re-sentencing matters.

For legal aid to be granted in these matters the applicant for legal aid will need to meet

the Means Test
the Availability of Funds Test.

4.17.3 Review Hearings in relation to a segregation direction

Legal aid is available to prisoners for representation in relation to a Segregation Direction.

For legal aid to be granted in these matters the following tests must be satisfied:

the Means Test
the Availability of Funds Test.

4.17.4 Matters conducted by visiting justices

Legal aid is available to prisoners for representation in certain gaols in matters conducted by a visiting Justice.

For legal aid to be granted in these matters the following tests must be satisfied:

the Means Test
the Availability of Funds Test.

4.17.5 Supreme Court matters

Legal aid is available to prisoners for representation in the Supreme Court for the review of a decision of the State Parole Authority, the High Risk Offenders Assessment Committee or the Commissioner of Corrective Services NSW that has or could have a substantial effect on the prisoners parole.

For legal aid to be granted in these matters the following tests must be satisfied:

the Means Test
Merit Test A
the Availability of Funds Test, and
Legal Aid NSW is satisfied that it is an appropriate expenditure of limited legal aid funds, and
Legal Aid NSW is satisfied that the decision has or could have a substantial effect on the prisoners parole.

Date Last Published: 20/01/2017

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