This chapter sets out the criminal law policies for Legal Aid NSW. It includes State and Commonwealth criminal matters. It sets out the types of criminal matters for which legal aid is available and the requirements that need to be met before legal aid can be granted for a criminal law matter.


Date Last Published: 20/01/2017

4.2.1 Representation in criminal matters

Legal Aid NSW policy is that all criminal law matters are to be conducted by in-house legal practitioners and public defenders are to be briefed, unless there are exceptional circumstances.

See the Representation chapter for policies relating to the allocation of criminal law work between in-house legal practitioners and private legal practitioners.

4.2.2 Late applications for legal aid in criminal matters

Legal aid will only be granted in exceptional circumstances for late applications in criminal matters.

See Criminal Law Guideline 1.8 on determining late applications.

4.2.3 Availability of Funds Test in criminal matters

All applications for legal aid in criminal law matters are subject to the Availability of Funds Test.

Legal aid will only be granted if Legal Aid NSW determines that sufficient funds are available. The Availability of Fund Test applies to decisions made by the Legal Aid NSW Board that certain state or Commonwealth matter types will not be funded for a specified period of time.

Date Last Published: 05/12/2022

4.3.1 Bail applications

Legal aid is available to a person in custody for a bail application in the Local Court.

To be eligible for legal aid after the first appearance the applicant must satisfy:

• The Means Test

NOTE: see Criminal Law Policies 4.11.3 or 4.16.10 for Supreme Court bail applications.

4.3.2 Court attendance notice issued by a police officer or Centrelink

Legal aid is available for criminal proceedings in the Local Court (except for traffic offences - see 4.3.3 below) which are commenced by a court attendance notice issued by a police officer or Centrelink.

To be eligible for legal aid the applicant must satisfy:

• The Means Test, and

either

• the offence carries a term of imprisonment as an available penalty, or
• there are exceptional circumstances.

Where the applicant for legal aid has entered a plea of not guilty

To be eligible for legal aid for a defended hearing the applicant must satisfy:

• The Means Test, and

either

• if convicted, there is a real possibility of a term of imprisonment being imposed for the matter, or
• there are exceptional circumstances.

4.3.3 Driving and traffic offences

Legal aid is available in the Local Court for driving and traffic offences in very limited circumstances.

To be eligible for legal aid the applicant must satisfy:

• The Means Test, and

either

• if convicted, there is a real possibility of a term of imprisonment being imposed for the matter, or
• there are exceptional circumstances.

4.3.4 Court attendance notice issued by a person other than a police officer or Centrelink

Legal aid is available for criminal proceedings in the Local Court which are commenced by a court attendance notice issued by a person other than a police officer or Centrelink.

To be eligible for legal aid the applicant must satisfy:

• The Means Test, and

either

• if convicted, there is a real possibility of a term of imprisonment being imposed for the matter, or
• there are exceptional circumstances.

4.3.5 Applications for annulments under Part 2 of the Crimes (Appeal and Review) Act

Legal aid is available in the Local Court for applications for an annulment of conviction or sentence under Part 2 of the Crimes (Appeal and Review) Act 2001 (NSW).

To be eligible for legal aid the applicant must satisfy:

• The Means Test,
• there are reasonable prospects of success, and
• it is a type of matter for which legal aid is available under the Legal Aid NSW criminal law policies.

4.3.6 Applications to vary or revoke a Community Correction Order or a Conditional Release Order

4.3.8 Contesting an application or summons made under the Crimes (Forensic Procedures) Act

Legal aid is available in the Local Court for matters where the applicant for legal aid is contesting a matter commenced by way of an application or summons made under the Crimes (Forensic Procedure) Act 2000 (NSW) when Legal Aid NSW is satisfied that:

• there are not reasonable grounds to believe:
• • the person is a suspect, and/or
  • the person committed the offence for which the sample is required, and/or
  • the forensic procedure would provide sufficient evidence to confirm or to disprove the person committed the relevant offence, or
• it is not justified in all the circumstances to carry out the forensic procedure, or
• the legal aid applicant lacks capacity to consent to the procedure, or
• there are exceptional circumstances.

To be eligible for legal aid the applicant must satisfy:

• The Means Test

NOTE: See Criminal Law Policy 4.16.1 for applications involving a child or young person.

4.3.9 Responding to a Mandatory Disease Testing order

Legal aid is available in the Local Court to vulnerable third parties 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 Means Test, and
• 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.

NOTE: see Criminal Law Policy 4.16.13 for applications involving a child or young person.

4.3.10 Revocation of parole for Commonwealth Offences

Legal aid is available in the Local Court for matters where the applicant for legal aid is brought before the court on a warrant under s19AV of the Crimes Act 1914 (Cth) for revocation of parole.

To be eligible for legal aid the applicant must satisfy:

• The Means Test

4.3.11 Restorative Justice Program – Forum Sentencing

Legal aid may be available to a person who is participating in a restorative justice program where the court makes an order in relation to Forum Conferencing pursuant to Part 7 of the Criminal Procedure Regulation 2010 (NSW).

To be eligible for legal aid the applicant must satisfy:

• The Means Test, and
• that it is appropriate in the circumstances that the applicant has legal representation.

Criminal Law Guideline 1.9 sets out the criteria for determining whether it is appropriate that the applicant has legal representation.

See Criminal Law Policy 4.16.5 on Youth Conferencing.

See Criminal Law Policy 4.8 on Circle Sentencing.

4.3.12 When legal aid is not available for Local Court matters

Legal aid is not available for the following Local Court matters:

• defended hearings where the defence is frivolous or has no possible prospects of success
• respondents in victim's compensation matters (restitution orders)
• to prosecute private prosecutions under s.14 of the Criminal Procedure Act 1986

Date last published 05/12/2022

4.4.1 Apprehended Domestic Violence Orders - Applicants

Legal aid is available to make an application for an apprehended domestic violence order (ADVO) under the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

To be eligible for legal aid the applicant must satisfy:

• The Means Test, and
• they are a victim of domestic violence.

NOTE: where assistance under this policy is provided on a duty basis the Means Test does not apply.

NOTE: see Criminal Law Policy 4.16.2 for applications involving a child or young person.

NOTE: see Criminal Law Guideline 1.7 on applying the ADVO policy.

NOTE: see the Women's Domestic Violence Court Advocacy Program for information about Legal Aid NSW court advocacy program for women making applications in ADVO proceedings.

4.4.2 Apprehended Domestic Violence Orders - Defendants

Legal aid is available to defend an application for an apprehended domestic violence order (ADVO).

To be eligible for legal aid the applicant must satisfy:

• The Means Test, and

either

• Legal Aid NSW is satisfied that the applicant for legal aid is a victim of domestic violence, or
• there are exceptional circumstances.

NOTE: if the defendant has also been charged with a domestic violence offence see Local Court Policy 4.3.1 and Guideline 1.13.5 for exceptional circumstances test, which will be satisfied if the defendant is a victim of domestic violence.

NOTE: see Criminal Law Policy 4.16.2 for applications involving a child or young person.

4.4.3 When legal aid is not available in Apprehended Domestic Violence Order matters

Legal aid is not available for apprehended domestic violence order 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 is made by a police officer.

Date Last Published: 05/12/2022

Legal aid is available to defend an application for an Apprehended Personal Violence Order (APVO) under the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

To be eligible for legal aid the applicant must satisfy:

• The Means Test, and
• there are exceptional circumstances.

NOTE: see Criminal Law Policy 4.16.3 for applications involving a child or young person.

NOTE: Legal aid is not available for applications for APVOs unless the applicant for legal aid is a child. See Criminal Law Policy 4.20.

Date Last Published: 05/12/2022

4.6.1 Appeals to the District Court

Legal aid is available for appeals from the Local Court to the District Court sitting in its criminal jurisdiction.

To be eligible for legal aid the applicant must satisfy:

• The Means Test
• the Merit Test
• it is a type of matter for which legal aid is available in the Local Court proceedings,
• Legal Aid NSW is satisfied that it is an appropriate expenditure of limited public funds, and
• if it is a severity appeal, it is an appeal against a term of imprisonment or Legal Aid NSW is satisfied that there are exceptional circumstances.

Legal Aid NSW officers authorised under the Delegation Instrument can determine applications for legal aid in these matters.

4.6.2 Appeals to the Supreme Court

Legal aid is available for appeals from decisions of magistrates in the Local Court to the Supreme Court.

To be eligible for legal aid the applicant must satisfy:

• The Means Test
• the Merit Test
• Legal Aid NSW is satisfied that it is an appropriate expenditure of limited public funds, and
• the matter is a type of matter for which legal aid is available in the Local Court proceedings.

Legal Aid NSW officers authorised under the Delegation Instrument can determine applications for legal aid in these matters.

Date Last Published: 05/12/2022

Legal aid is available to applicants for matters before the Drug Court sitting as the Drug Court or another court of law.

There is no means test applied in Drug Court matters.

Date Last Published: 05/12/2022

Legal aid is available to a person who is participating in a restorative justice program where the court makes an order in relation to:

• Circle Sentencing pursuant to Part 7 of the Criminal Procedure Regulation 2017 (NSW).

To be eligible for legal aid the applicant must satisfy:

• the Means Test, and
• it is appropriate in the particular circumstances of the matter that the applicant has legal representation.

Criminal Law Guideline 1.9 sets out the criteria for determining whether it appropriate that the applicant has legal representation.

Date Last Published: 05/12/2022

Legal aid is available for advice and representation in preventative detention, contact order and prohibited contact order matters.

4.9.1 Legal advice on preventative detention, control orders and prohibited contact orders

Legal aid is available to a legal aid applicant to obtain legal advice in relation to:

• a preventative detention or prohibited contact order made under Part 2A of the Terrorism (Police Powers) Act 2002 (NSW), and
• a preventative detention order or control order made under Division 104 or 105 of the Criminal Code 1995 (Cth).

There is no means test applied for the legal advice service.

4.9.2 Preventative detention and control order matters where a Supreme Court order for the provision of legal aid has been made

Legal aid is available to a person where the Supreme Court has made an order for the provision of legal aid to that person under section 26PA(2) of the Terrorism (Police Powers) Act 2002 (NSW).

Note: in the absence of specific directions from the Court in relation to the making of the grant of aid, the Legal Aid Commission Act 1979 applies.

4.9.3 Application for the making of a preventative detention order - State matters

In the absence of a Supreme Court order, legal aid is available to a person who is the subject of a preventative detention order application, for proceedings in the Supreme Court in relation to:

• an application for an interim preventative detention order; and
• confirmation of a preventative detention order, including a consecutive order application under s26K(6) of the Terrorism (Police Powers) Act 2002 (NSW).

To be eligible for legal aid the applicant must satisfy:

• the Means Test
• the  Availability of Funds test.

4.9.4 Application to revoke a preventative detention order or prohibited contact order - State matters

In the absence of a Supreme Court order, legal aid is available to a legal aid applicant who is the subject of a preventative detention order or prohibited contact order under Part 2A of the Terrorism (Police Powers) Act 2002 (NSW) and who is seeking to have the order revoked.

To be eligible for legal aid the applicant must satisfy:

• the  Means Test
• the Merit Test

4.9.5 Proceedings in relation to control orders or preventative detention orders - Commonwealth matters

Legal aid is available to a legal aid applicant who is the subject of a control order or preventative detention order under Division 104 or 105 of the Criminal Code 1995 (Cth) for:

• confirmation of control order proceedings
• proceedings in relation to an application by the Australian Federal Police (AFP) to add obligations, prohibitions or restrictions to a control order, or
• making representations to the AFP in relation to an application for a continued preventative detention order for consideration by an issuing authority.

To be eligible for legal aid the applicant must satisfy:

• the Means Test

4.9.6 Proceedings in relation to revoking a control order or preventative detention order - Commonwealth matters

Legal aid is available to a legal aid applicant who is currently or was previously the subject of a control order or preventative detention order under Division 104 or 105 of the Criminal Code 1995(Cth) for:

• proceedings in relation to an application by the subject person for a revocation or variation of a control order
• making representations to the AFP regarding why a preventative detention order should be revoked, or
• giving information under s 40SA of the Australian Federal Police Act 1979 (Cth) regarding the making of a preventative detention order or treatment under such an order.

To be eligible for legal aid the applicant must satisfy:

• the  Means Test
• the Merit Test

Note: see Civil Law Policies 6.6.2 for:

• proceedings for a remedy in relation to a preventative detention order or treatment under such an order, including an application to the Administrative Appeals Tribunal, and
• making a complaint to the Commonwealth Ombudsman regarding the making of a preventative detention order or treatment under such an order.

Date Last Published: 05/12/2022

4.10.1 Legal aid for Local Court committal proceedings

Legal aid is available for committal proceedings, including for:

• case conferencing
• applications under ss82 and 84 of the Criminal Procedure Act 1986 (NSW) (only includes committal matters charged on or after 1 January 2006), and
• committal hearings.

To be eligible for legal aid the applicant must satisfy:

• the Means Test

NOTE: See Criminal Law Guideline 1.4 for Legal Aid NSW cost caps which apply in committal proceedings.

NOTE: When a legal aid applicant has criminal matters involving both Commonwealth and State law see Criminal Law Guideline 1.5 for guidance on managing the application and administering the grant of legal aid.

Date Last Published: 05/12/2022

4.11.1 Indictable matters – when legal aid is available

Legal aid is available for criminal indictable matters listed for trial or sentence in the Supreme Court or District Court.

Legal aid is available for the following proceedings:

• bail applications (this does not include Supreme Court Bail applications)
• mentions and adjournments
• sentence matters including breaches of recognisance, Community Correction Order or Conditional Release Order
• variations or revocations of a Community Correction  Order or Conditional Release Order, and
• criminal trials.

To be eligible for legal aid the applicant must satisfy:

• the Means Test, and
• if the application is for a variation or revocation of a Community Correction Order or Conditional Release Order sought by the offender, the matter is subject to the Merit Test.

Note: the Means Test is not applied to applicants who are children.

See Criminal Law Guideline 1.3 on costs in criminal trials.

When a legal aid applicant has criminal matters involving both Commonwealth and State law, Criminal Law Guideline 1.5 sets out the procedure for managing the application and administering the grant of legal aid.

4.11.2 Back-up matters

Legal aid is available for back-up matters dealt with under Chapter 3 Pt 3, Division 7 Criminal Procedure Act 1986 (NSW).

To be eligible for legal aid the applicant must satisfy:

• the Means Test

4.11.3 Bail applications in the Supreme Court

Legal aid is available for bail applications to the Supreme Court.

To be eligible for legal aid the applicant must satisfy:

• the Means Test
• Merit Test

NOTE: see Criminal Law Policy 4.16.10 for Supreme Court bail applications for children and young people.

Date Last Published: 05/12/2022

Legal aid is available to a person who has been acquitted of an offence and who is the subject of an application made by the Director of Public Prosecution under Part 8 of the Crimes (Appeal and Review) Act 2001 (NSW).

To be eligible for legal aid the applicant must satisfy:

• the Means Test

Date Last Published: 05/12/2022

4.13.1 Appeals to the NSW Court of Criminal Appeal and the High Court

Legal aid is available for appeals to the New South Wales Court of Criminal Appeal and the High Court of Australia.

To be eligible for legal aid the applicant must satisfy:

• the Means Test
• the Merit Test, and
• Legal Aid NSW is satisfied that it is an appropriate expenditure of limited legal aid funds.

See Criminal Law Guideline 1.3.3 on costs for transcripts in indictable appeals.

Legal Aid NSW officers authorised under the Delegation Instrument can determine applications for legal aid for sentence appeals or all grounds appeals to the New South Wales Court of Criminal Appeal and appeals to the High Court.

Note: See Criminal Law Guideline 1.14.1 for guidance on considering whether there are reasonable prospects of success for a conviction appeal to the Court of Criminal Appeal.

Note: See Criminal Law Guideline 1.14.2 for guidance on considering whether the applicant satisfies Merit Test A for responding to a Crown sentence appeal to the Court of Criminal Appeal.

4.13.2 Appeals under s5F of the Criminal Appeal Act

Legal aid is available for an appeal under s5F of the Criminal Appeal Act 1912 (NSW).

To be eligible for legal aid the applicant must satisfy:

• the Means Test
• the Merit Test
• Legal Aid NSW satisfied that it is an appropriate expenditure of limited legal aid funds, and
• there is a significant issue of public interest and the circumstances are sufficiently exceptional to justify a grant of aid.

Legal Aid NSW officers authorised under the Delegation Instrument can determine applications for legal aid these matters.

Note: See Criminal Law Guideline 1.14.2 for guidance on considering whether the applicant satisfies the Merit Test for responding to an appeal to the Court of Criminal Appeal.

4.13.3 Appeals following a retrial

Legal aid is available for an appeal following a retrial.

To be eligible for legal aid the applicant must satisfy:

• the Means Test
• the Merit Test
• Legal Aid NSW satisfied that it is an appropriate expenditure of limited legal aid funds, and
• there are exceptional circumstances.

Last published:  05/12/2022

Legal aid is available for the following proceedings under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW).

4.14.1 Initial applications under Part 7

Legal aid is available for an initial application under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) which includes

• petitions to the Governor for a review of a conviction or sentence
• applications to the Supreme Court for an inquiry into a conviction or sentence, and
• applications to an appropriate Review Panel established to review a conviction or sentence.

To be eligible for legal aid the applicant must satisfy:

• the Means Test
• the Merit Test, and
• Legal Aid NSW is satisfied that it is an appropriate expenditure of limited legal aid funds.

Note: The Chief Executive Officer has not delegated the authority to make determinations under s.34 of the Legal Aid Commission Act 1979 in relation to matters under Part 7 of the Crimes (Review and Appeal) Act 2007 (NSW).

4.14.2 Proceedings in the Court of Criminal Appeal under Part 7

Legal aid is available for proceedings under Part 7 of the Crimes (Appeal and Review) Act 2001(NSW) for:

• a matter that is referred by the Minister or the Supreme Court to be dealt with as an appeal, or
• if a conviction is to be quashed following a free pardon or an inquiry.

To be eligible for legal aid the applicant must satisfy:

• the Means Test
• the Merit Test, and
• Legal Aid NSW is satisfied that it is an appropriate expenditure of limited legal aid funds.

Note: The Chief Executive Officer has not delegated the authority to make determinations under s.34 of the Legal Aid Commission Act 1979 in relation to matters under Part 7 of the Crimes (Review and Appeal) Act 2007 (NSW).

4.14.3 Inquiries under Part 7 of the Crimes (Appeal and Review) Act

Legal aid is available for an Inquiry conducted by a judicial officer under Part 7 of the Crimes (Appeal and Review) Act 2001(NSW).

To be eligible for legal aid the applicant must satisfy:

• the Means Test
• the Merit Test and
• special supplementary funding is made available to enable Legal Aid NSW to provide legal assistance.

Note: The Chief Executive Officer has not delegated the authority to make determinations under s.34 of the Legal Aid Commission Act 1979 in relation to matters under Part 7 of the Crimes (Review and Appeal) Act 2001 (NSW).

4.14.4 Part 7 of the Crimes (Appeal and Review) Act

Legal aid is not available for proceedings relating to summary offences where Part 2 of the Crimes (Appeal and Review) Act 2001 (NSW) applies.


Date Last Published: 05/12/2022

4.15.1 Prosecutions in the Land and Environment Court

Legal aid is available to defend prosecutions in the Land and Environment Court under environmental protection legislation including under the Protection of the Environment Operations Act 1997 (NSW).

To be eligible for legal aid the applicant must satisfy:

• the Means Test, and

either

• there is a real possibility of a term of imprisonment being imposed, or
• there are exceptional circumstances.

An example of exceptional circumstances may be that the applicant for legal aid is at special disadvantage.

4.15.2 Appeals against interlocutory judgment or orders

Legal aid is available for appeals against an interlocutory judgment or Order made by a Judge in the Land and Environment Court.

Legal aid is available for an appeal against an interlocutory judgment or Order made by a Judge in the Land and Environment Court under s5F of the Criminal Appeal Act 1912 (NSW).

To be eligible for legal aid the applicant must satisfy:

• the Means Test
• the Merit Test
• Legal Aid NSW is satisfied that it is an appropriate expenditure of limited legal aid funds; and
• there is a significant issue of public interest and the circumstances are sufficiently exceptional to justify a grant of aid.

Legal Aid NSW officers authorised under the Delegation Instrument can determine applications for legal aid in these matters.


Date Last Published: 05/12/2022

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

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 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.

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.

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.

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.

To be eligible for legal aid the applicant must satisfy:

• the Means Test
• the Merit Test
• 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: 05/12/2022

4.18.1 Opposing an application made under the Crimes (High Risk Offenders) Act

Legal aid is available to applicants opposing applications made by the Attorney General under the Crimes (High Risk Offenders) Act 2006 (NSW).

To be eligible for legal aid the applicant must satisfy:

• the Means Test
• the Merit Test

Note: These are civil law proceedings that are administered as criminal law grants.

4.18.2 Appeals under the Crimes (High Risk Offenders) Act

Legal aid is available to legal aid applicants who are appealing under the Crimes (High Risk Offenders) Act 2006 (NSW) against an extended supervision order or continuing detention order.

To be eligible for legal aid the applicant must satisfy:

• the Means Test
• the Merit Test

Note: These are civil law proceedings that are administered as criminal law grants.

4.18.3 Variation or revocation applications under the Crimes (High Risk Offenders) Act

Legal aid is available to legal aid applicants who are defending or applying for a variation or revocation of an extended supervision order or continuing supervision order under the Crimes (High Risk Offenders) Act 2006 (NSW).

To be eligible for legal aid the applicant must satisfy:

• the Means Test
• the Merit Test

Note: These are civil law proceedings that are administered as criminal law grants.

4.18.4 Responding to an application made under the Terrorism (High Risk Offenders) Act

Legal aid is available to applicants responding to applications made by the Attorney General under the Terrorism (High Risk Offenders) Act 2017 (NSW), including an emergency detention order.

To be eligible for legal aid the applicant must satisfy:

• the Means Test

NOTE:  These are civil proceedings that are administered as criminal law grants.

4.18.5 Appeals, variation or revocation applications under the Terrorism (High Risk Offenders) Act

Legal aid is available to legal aid applicants who are appealing or applying for a variation or revocation of a supervision order or continuing detention order under the Terrorism (High Risk Offenders) Act 2017 (NSW).

To be eligible for legal aid the applicant must satisfy:

• the Means Test
• the Merit Test

NOTE:  These are civil proceedings that are administered as criminal law grants.

4.18.6 Post-sentence orders under the Criminal Code 1995 (Cth) - High Risk Terrorist Offenders - Commonwealth

Legal aid is available to applicants who are responding to an application for a post-sentence order under Division 105A of the Criminal Code 1995 (Cth).

To be eligible for legal aid the applicant must satisfy:

• the Means Test

NOTE:  These are civil proceedings that are administered as criminal law grants.

4.18.7 Revocations, variations and appeals of post-sentence orders under the Criminal Code 1995 (Cth) - High Risk Terrorist Offenders - Commonwealth

Legal aid is available to applicants who are seeking a variation, revocation or appeal of a a post-sentence order under Division 105A of the Criminal Code 1995 (Cth).

To be eligible for legal aid the applicant must satisfy:

• the Means Test
• the Merit Test

NOTE:  These are civil proceedings that are administered as criminal law grants.

4.18.8 Opposing an application for a post-conviction order

Legal aid is available to legal aid applicants opposing an application for an order that follows a finding of guilt or a conviction for a criminal offence.

To be eligible for legal aid the applicant must satisfy:

• the Means Test
• the conditions of the order unreasonably restrict the applicant's personal freedom, and
• there is reasonable prospects either of successfully opposing the application or of the application being granted on amended terms that place less restriction on the liberty of the applicant.

Examples of post-conviction orders covered by this policy include:

• Child Protection Registration Orders under ss3E and 3F of the Child Protection (Offenders Registration) Act 2000, and
• Child Protection Prohibition Orders under s5 of the Child Protection (Offenders Prohibition Orders) Act 2004 .

Note: These are civil law proceedings that are administered as criminal law grants.

This policy does not apply to Apprehended Domestic Violence Order proceedings - see Criminal Law Policy 4.4.

4.18.9 Application to vary, revoke or appeal a post-conviction order

Legal aid is available to legal aid applicants

• who are either responding to or seeking the variation of an order, or
• appealing an order or the conditions of an order

made to a Court following a finding of guilt or a conviction for a criminal offence.

To be eligible for legal aid the applicant must satisfy:

• the Means Test
• the Merit Test, and

• Legal Aid NSW is satisfied that the conditions of the order unreasonably restrict the applicant's personal freedom.

Examples of post-conviction orders covered by this policy include:

• Child Protection Registration Orders under s3E and s3F of the Child Protection (Offenders Registration) Act 2000; and
• Child Protection Prohibition Orders under s5 of the Child Protection (Offenders Prohibition Orders) Act 2004.

Note: These are civil law proceedings that are administered as criminal law grants.

This policy does not apply to Apprehended Domestic Violence Order proceedings - see Criminal Law Policy 4.4.

4.18.10 Opposing applications made under s14 and s19 of the Crimes (Criminal Organisations Control) Act 2012 (NSW)

Legal aid is available to applicants opposing an application for an order made under s14 or s19 of the Crimes (Criminal Organisations Control) Act 2012 (NSW).

To be eligible for legal aid the applicant must satisfy:

• the Means Test
• the conditions of the order unreasonably restrict the applicant's personal freedom, and
• Legal Aid is satisfied that there is reasonable prospects either of successfully opposing the application or of the application being granted on amended terms that place less restriction on the liberty of the applicant.

Note: These are civil law proceedings that are administered as criminal law grants.

4.18.11 Applications to vary, revoke or appeal orders made under s14 and s19 of the Crimes (Criminal Organisations Control) Act 2012 (NSW)

Legal aid is available to applicants for legal aid who are:

• responding to or seeking the variation of an order; or
• appealing an order or the conditions of an order.

made under s14 or s19 of the Crimes (Criminal Organisations Control) Act 2012 (NSW).

To be eligible for legal aid the applicant must satisfy:

• the Means Test
• the Merit Test, and

• Legal Aid NSW is satisfied that the conditions of the order unreasonably restrict the applicant's personal freedom.

Note: These are civil law proceedings that are administered as criminal law grants.

4.18.12 Opposing an application made under the Crimes (Serious Crime Prevention Order) Act 2016

Legal aid is available to persons and organisations opposing applications for a serious crime prevention order under the Crimes (Serious Crime Prevention Orders) Act 2016.

To be eligible for legal aid the applicant must satisfy:

• the Means Test, and

• if the applicant is a corporation, Legal Aid NSW must be satisfied there are exceptional circumstances.

NOTE: These are civil law proceedings that are administered as criminal law grants.

4.18.13 Persons whose interests may be affected by the making, variation or revocation of an order under the Crimes (Serious Crime Prevention Order) Act 2016

Legal aid is available to applicants

• whose interests may be affected by the making of a serious crime prevention order against another person, and
• who were a party to the proceedings for the original order (on the basis that their interests may be affected) so that they can be heard on the application for varying or revoking the order

under the Crimes (Serious Crime Prevention Orders) Act 2016.

To be eligible for legal aid the applicant must satisfy:

• the Means Test
• the Merit Test

NOTE: These are civil law proceedings that are administered as criminal law grants.

4.18.14 Appeals under the Crimes (Serious Crime Prevention Order) Act 2016

Legal aid is available to applicants who are appealing a serious crime prevention order under the Crimes (Serious Crime Prevention Orders) Act 2016.

To be eligible for legal aid the applicant must satisfy:

• the Means Test
• the Merit Test, and

• if the applicant is a corporation, Legal Aid NSW must be satisfied there are exceptional circumstances.

NOTE: These are civil law proceedings that are administered as criminal law grants.

4.18.15 Variation or revocation applications under the Crimes (Serious Crime Prevention Order) Act 2016

Legal aid is available to applicants who are defending or applying for a variation or revocation of a serious crime prevention order under the Crimes (Serious Crime Prevention Orders) Act 2016.

To be eligible for legal aid the applicant must satisfy:

• the Means Test
• the Merit Test, and

• if the applicant is a corporation, Legal Aid NSW must be satisfied there are exceptional circumstances.

NOTE: These are civil law proceedings that are administered as criminal law grants.

Date Last Published: 05/12/2022

4.19.1 Contempt of court – defended proceedings

Legal aid is available to defend a charge of contempt of court where

• the applicant for legal aid is the respondent in the court proceedings, and
• Legal Aid NSW is satisfied that, if convicted, there is a real possibility of a term of imprisonment being imposed.

To be eligible for legal aid the applicant must satisfy:

• the Means Test
• the Merit Test

4.19.2 Contempt of court – sentence proceedings

Legal aid is available for sentence proceedings for a contempt of court where

• the applicant for legal aid is the respondent in the court proceedings, and
• Legal Aid NSW is satisfied that there is a real possibility of a term of imprisonment being imposed.

To be eligible for legal aid the applicant must satisfy:

• the Means Test

4.19.3 Contempt of court – discharge of sentence proceedings

Legal aid is available to a contemnor to apply for a discharge of sentence for a contempt of court. For legal aid to be granted in these matters the following tests must be satisfied:

To be eligible for legal aid the applicant must satisfy:

• the Means Test
• the Merit Test

Note: where an applicant seeks to appeal a sentence for a contempt of court see the policy applicable to the court in question. Usually this will be: Criminal Law Policy 4.6: Appeals from the Local Court or 4.13: Criminal appeals to Court of Criminal Appeal and High Court.

Date last published: 05/12/2022

Legal aid is not available for the following type of matters:

• respondents in Victims Compensation matters in the Local, District, or Supreme Court or the Victims Compensation Tribunal
• proceedings under the Confiscation of Proceeds of Crime Act 1989 (NSW) and other legislation related to tainted monies/property.
• applications for Apprehended Personal Violence Orders unless the applicant for legal aid is a child
• to a person to commence proceedings in the Local Court except for apprehended domestic violence order proceedings
• where Legal Aid NSW is satisfied that the defence for a Local Court defended hearing is frivolous or has no possible prospects of success.

Date Last Published: 1/07/2020