Legal Aid NSW Policy Online
Document Type: Policy
Chapter:6. Civil law matters - when legal aid is available


6.1. Introduction

This chapter sets out the requirements that need to be met before legal aid will be granted for a civil law matter. It includes State and Commonwealth matters.

6.2. Important conditions that apply to a grant of legal aid

Legal aid may be available for civil law matters in court or tribunal proceedings, including appeals if:

the civil matter comes within the Legal Aid NSW policies, and

the following tests are satisfied:

6.2.1 Civil law matters for which legal aid is available

Legal aid is available for limited types of civil law matters. The types of civil law matters an applicant can get legal aid for and the tests that Legal Aid NSW applies to decide whether an applicant qualifies for legal aid for a civil law matter are set out in this chapter commencing at section 6.4.

Last published: 24/01/2017

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

Legal aid is available in the circumstances set out below if there is a likelihood that the applicant for legal aid may lose their home.

6.4.1 Loss of home as a direct result of proceedings for which legal aid is sought

Legal aid is available if there is a likelihood that the applicant may lose their home as a direct result of the proceedings for which the applicant is seeking legal aid, for example:

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

See Civil Law Guideline 3.2 on  requirements to attend ADR.

See Civil Law Guideline 3.8 on grants of aid for test cases.

When legal aid is not available under this policy

Legal aid is not available under this policy for matters where the likelihood of the applicant losing their home is an indirect result of the proceedings for example, bankruptcy or claims for debts due where the applicant's home may have to be sold to meet a judgment or adverse costs order.

Legal aid is not available under this policy for proceedings under the Confiscation of Proceeds of Crime Act 1989 (NSW), or other legislation relating to tainted money/property even if there is a likelihood that the applicant may lose their home.

Legal aid may be available for Commonwealth proceeds of crime matters under Civil Law Policy 6.22.

See Civil Law Policy 6.26 on excluded matters.

6.4.2 Proceedings to protect a person's interest in the home

Legal aid is available if there is a likelihood that the applicant will lose their home and Legal Aid NSW considers that it is necessary to take proceedings to protect the applicant's interest in the home in which they normally reside.

This may include family disputes where there is a likelihood the applicant may lose their home in circumstances where the person has contributed financially or otherwise to the home.

Note: This may also include matters where the legal aid applicant is seeking to intervene as a third party in proceedings under the Family Law Act 1975 (Cth).

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

See Civil Law Guideline 3.2 on  requirements to attend ADR.

See Civil Law Guideline 3.8 on grants of aid for test cases.

See Civil Law Policy 6.26 on excluded matters.

6.4.3 Tenancy matters

Legal aid is available to tenants for court or tribunal proceedings in tenancy matters, and may include the following types of matters:

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

See Civil Law Guideline 3.2 on  requirements to attend ADR.

See Civil Law Guideline 3.8 on grants of aid for test cases.

Last published: 14/01/2019

6.5. Consumer protection matters

6.5.1 When legal aid is available for consumer protection matters

Legal aid is available for certain types of consumer protection matters for consumers including:

This policy does not apply to professional negligence matters.The stages of consumer protection matters for which legal aid is available are set out below at sections 6.5.2 to 6.5.5 of this chapter.

6.5.2 Consumer protection matters – external dispute resolution

Legal funding is available to consumers for external dispute resolution.

For legal funding to be granted in these types of matters the following tests must be satisfied:

Legal funding will only be made available where it is appropriate in the particular circumstances of the matter that the applicant has legal assistance, taking into account:

See Civil Law Guideline 3.12 on external dispute resolution.

See Civil Law Guideline 3.8 on grants of aid for test cases.

6.5.3 Consumer protection matters – lodging a complaint

Legal funding is available to assist an applicant in lodging a complaint to the regulator in a consumer protection matter.

For legal funding to be available in these types of matters the following tests must be satisfied:

6.5.4 Consumer protection matters – court or tribunal proceedings

Legal aid is available to consumers for court or tribunal proceedings.

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

For legal aid to be granted Legal Aid NSW must also be satisfied that one of the following circumstances applies:

Where the matter is eligible for the small claims procedure set out at s199 of the National Consumer Credit Protection Act 2009, the following additional requirement must be fulfilled:

Note: See the Availability of Funds Test for how the test applies in Commonwealth consumer protection matters.

Last published: 14/12/2018

6.6. Breach of civil liberties

6.6.1 Breach of civil liberties

Legal aid is available for matters where there has been a breach of the legal aid applicant's civil liberties by a person in a special position of authority

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

Examples of the types of circumstances where a breach of civil liberties may have occurred are set out in Civil Law Guideline 3.20

See Civil Guideline 3.2 on requirements to attend ADR.

see Civil Guideline 3.8 on grants of aid for test cases.

Note: Taking into consideration its available funds and competing priorities, Legal Aid NSW has determined that from 1 January 2013 until further notice, funds are not available under this policy for matters that fall within the scope of the inquiry being undertaken by the Royal Commission into Institutional Responses to Child Sexual Abuse or civil litigation proceedings arising from matters that are related to the Royal Commission inquiry. Funds are not available regardless of whether or not the specific matter has been the subject of evidence before the Royal Commission.

6.6.2 Preventative detention matters

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

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

Note: For other policies in relation to preventative detention, contact order or prohibited contact order matters, please refer to Criminal Law Policy 4.9.

Last published: 14/01/2019

6.7 Extended supervision orders, continuing detention orders, post-conviction orders, control orders and serious crime prevention orders

6.7.1 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).

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

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

6.7.2 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.


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

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

6.7.3 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).


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

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

6.7.4 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.

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

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

6.7.5 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).

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

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

6.7.6 Continuing detention orders under the Criminal Code 1995 (Cth) - High Risk Terrorist Offenders - Commonwealth

Legal aid is available to applicants who are responding to a continuing detention order under s105A of the Criminal Code 1995 (Cth).

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

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

6.7.7 Revocations, variations and appeals of continuing detention 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 appealing a continuing detention order under s105A of the Criminal Code 1995 (Cth).

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

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

6.7.8 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.

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

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

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

This policy does not apply to AVO proceedings - see instead Criminal Law Policy 4.4: Apprehended Domestic Violence Orders.

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

Legal aid is available to legal aid applicants:

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

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

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

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

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

6.7.10 Opposing applications made under s14 and s19 of the Crimes (Criminal Organisations Control) Act 2009

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.

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

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

6.7.11 Applications to vary, revoke or appeal orders made under s14 and s19 of the Crimes (Criminal Organisations Control) Act 2009

Legal aid is available to applicants:

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

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

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

6.7.12 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.

For legal aid to be granted for these types of matters the following tests must be satisfied:

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

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

Legal aid is available to applicants

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

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

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

6.7.14 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.

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

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

6.7.15 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.

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

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

Last published: 21/11/2018

6.8. Discrimination matters

6.8.1 When legal aid is available for discrimination matters

Legal aid is available for discrimination matters as set out in sections 6.8.2 and 6.8.3 below and may include matters relating to:

See Civil Law Guideline 3.2 on requirement to attend ADR.

See Civil Law Guideline 3.8 on grants of aid for test cases.

6.8.2 Proceedings before the Administrative and Equal Opportunity Division of NCAT

Legal aid is available for matters which are before the Equal Opportunity subdivision of NCAT.

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

6.8.3 Appeals from the Administrative and Equal Opportunity Division of NCAT

Legal aid is available for an appeal from the Equal Opportunity subdivision of NCAT.

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

Note: Legal aid is not available under this policy for matters which are about intra-association disputes, for example, between members of unions or clubs; or for defamation proceedings.

6.8.4 Commonwealth discrimination matters

Legal Aid is available for Commonwealth discrimination matters.

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

Legal Aid NSW must be satisfied there is a real prospect of a substantial benefit to be gained by the applicant in either:

Note: This policy includes employment discrimination matters.

Unless there are exceptional circumstances, if the action is likely to result in the applicant receiving an award of damages or property, Legal Aid NSW must be satisfied from the material provided, that either:

see Civil Law Guideline 3.10 on applying tests in Commonwealth matters.

Date last published: 14/01/2019

6.9 Matters under Working with Children legislation

6.9. Matters under Working with Children legislation

6.9.1 Proceedings in the NSW Civil and Administrative Tribunal

Legal aid is available to applicants for proceedings under Part 4 of the Child Protection (Working with Children) Act 2012 (NSW) in the NSW Civil and Administrative Tribunal.

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

either

See Civil Law Guideline 3.2 on requirement to attend ADR.

See Civil Law Guideline 3.8 on grants of aid for test cases.

6.9.2 Appeals from a decision of the NSW Civil and Administrative Tribunal

Legal aid is available for appeals from a decision of the NSW Civil and Administrative Tribunal (NCAT) under Part 4 of the Child Protection (Working with Children) Act 2012 (NSW).

For legal aid to be granted for an appeal, the following tests must be satisfied:

Date last published: 24/01/2017

6.10. Matters under the NSW Trustee and Guardian Act 2009 (NSW)

Legal aid is available for the following matters under the NSW Trustee and Guardian Act 2009 (NSW) (the Act).

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

See Civil Law Guideline 3.2 on requirement to attend ADR.

See Civil Law Guideline 3.8 on grants of aid for test cases.

Note: This policy applies to protected estate orders under the Protected Estates Act 1983 (NSW) (repealed).

Most financial management orders and managed estates matters are dealt with under the policies which deal with Mental Health and Guardianship matters.

Date last published: 24/01/2017

6.11. Matters under the Public Health Act

Legal aid is available for applicants who are the subject of Public Health Orders made under Part 4 Division 4 of the Public Health Act 2010 (NSW) for:

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

See Civil Law Guideline 3.2 on requirement to attend ADR.

See Civil Law Guideline 3.8 on grants of aid for test cases.

Last published: 24/01/2017

6.12. Coronial Inquests into Deaths

6.12.1 Legal aid is available for Coronial Inquest matters

Legal aid may be available for a coronial inquest matter if:

6.12.2 What is a “Coronial Inquest matter”?

A coronial inquest matter includes any one of the following:

6.12.3 When Coronial Inquest is a preliminary step to civil proceedings

Legal aid is available for a coronial inquest matter where representation at the inquest is a preliminary step to civil proceedings.

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

Applying Merit Test A

When determining the merit of an inquest matter the determining officer should take into consideration:

6.12.4 Coronial Inquests – public interest matters

Legal aid is available for a coronial inquest matter where the public interest would be advanced by representing the applicant. Some examples of the types of inquests that might give rise to a public interest are those involving the:

See Civil Law Guideline 3.14 on the meaning of public interest.

For legal aid to be granted in a coronial inquest matter where the public interest would be advanced by representing the applicant, the following tests must be satisfied:

Applying Merit Test A

When determining the merit of an inquest matter the following issues should be taken into consideration:

6.12.5 Coronial Inquests- death of an Aboriginal or Torres Strait Islander person in custody

Legal aid is available for a coronial inquest matter where it involves the death of an Aboriginal or Torres Strait Islander person in custody.

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

Applying Merit Test A

When determining the merit of an inquest matter the following issues should be taken into consideration:

For further information on coronial inquests see the coronial inquest unit website.

Date last published: 07/05/2018

6.13. Employment law matters

6.13.1 Unfair Dismissals

Legal aid is available for unfair dismissal proceedings in the Fair Work Commission, the Industrial Relations Commission of New South Wales and on appeal.

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

6.13.2 Recovery of entitlements

Legal aid is available for proceedings relating to underpayment of wages and employment entitlements in the Chief Industrial Magistrates Court, the Federal Circuit Court, the Federal Court and on appeal.

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

6.13.3 General Protections under the Fair Work Act

Legal aid is available for claims under the General Protection provisions of the Fair Work Act 2009 (Cth) in the Fair Work Commission, the Federal Circuit Court, the Federal Court and on appeal. Such claims may include:

For legal aid to be granted in these types of matters the following test must be satisfied:

Note: Applications for legal aid for employment discrimination claims are considered under Discrimination Policy at 6.8.4.

6.13.4 Review of unfair contracts

Legal aid is available for proceedings related to the review of unfair contracts in the Local Court, Chief Industrial Magistrates Court, Federal Circuit Court or the Federal Court and on appeal.

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

6.13.5 Public Interest matters

Legal aid is available for employment matters where Legal Aid NSW is satisfied the employment matter raises a significant issue of public interest.

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

See Civil Law Guideline 3.3: Employment Law matters

Date last published: 14/01/2019

6.14. Public interest human rights matters

Legal aid is available for public interest human rights matters where:

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

See Civil Law Guideline 3.2 on requirement to attend ADR.

See Civil Law Guideline 3.8 on grants of aid for test cases.

Note: In these matters legal aid is administered as a lump sum grant under s30 of the Legal Aid Commission Act 1979 (NSW). See guideline on lump sum grants in public interest human rights matters at Civil Law Guideline 3.5.

Human Rights Committee: The Legal Aid NSW Human Rights Committee comprises expert human rights lawyers and scholars. The Committee assists Legal Aid NSW in taking a leading role in the protection and promotion of human rights and contributes to the development of human rights jurisprudence. The Committee has a limited annual budget from which to fund matters, and in managing this limited budget, the Committee makes recommendations to Legal Aid NSW about the types of public interest human rights matters that should be tabled before the Committee for its consideration.

When an application is tabled before the Committee, the Committee makes an assessment of that application based on the facts and circumstances of the individual case, and makes a recommendation to the Director, Civil Law Program and the Director Grants about whether a grant of legal aid should be made. The Committee also makes recommendations about how much funding will be allocated to a matter where legal aid is granted.

Date last published: 24/01/2017

6.15. Mental health matters

6.15.1 Types of mental health matters

Legal aid is available for the following matters under the Mental Health Act 2007 (NSW)

Note: Under 154(4) of the Mental Health Act 2007, a person who is under the age of 16 years who has a matter before the Tribunal must be represented by an Australian legal practitioner or, with the approval of the Tribunal, by another person of his or her choice, unless the Tribunal decides that it is in the best interests of the person to proceed without the person being so represented.

6.15.2 Mental Health Inquiry before the Mental Health Review Tribunal

Legal aid is available to an assessable person appearing in a mental health inquiry or in an electroconvulsive therapy administration inquiry under the Mental Health Act 2007 (NSW).

For legal aid to be granted in these types of matters the following test must be satisfied:

6.15.3 Involuntary patients before the Mental Health Review Tribunal

Legal aid is available to an involuntary patient who is appearing before the Mental Health Review Tribunal for:

For legal aid to be granted in these types of matters the following test must be satisfied:

6.15.4 Further review of an involuntary patient before the Mental Health Review Tribunal

Legal aid is available to an involuntary patient who is appearing before the Mental Health Review Tribunal under s37(1)(c) of the Mental Health Act 2007 (NSW).

For legal aid to be granted in these types of matters the following test must be satisfied:

6.15.5 Applications for renewal of a Community Treatment Order

Legal aid is available for representation before the Mental Health Review Tribunal to a person who is the subject of a renewal of a Community Treatment Order (CTO) being made by a Director of a health care agency under s51(4) of the Mental Health Act 2007 (NSW).

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

6.15.6 Community Treatment Order application made from the community

Legal aid is available for representation before the Mental Health Review Tribunal to a person who is neither a patient nor subject to a Community Treatment Order (CTO) and who is the subject of a CTO application under s51(3) of the Mental Health Act 2007 (NSW).

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

6.15.7 Appeals to the Mental Health Review Tribunal – assessable person

Legal aid is available to an assessable person to appeal to the Mental Health Review Tribunal:

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

6.15.8 Appeals to the Mental Health Review Tribunal – involuntary patients

Legal aid is available to an involuntary patient to appeal to the Mental Health Review Tribunal:

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

6.15.9 Appeals against Community Treatment Orders

Legal aid is available to an assessable person or involuntary patient to appeal to the Mental Health Review Tribunal:

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

6.15.10 Appeals to the Supreme Court

Legal aid is available to an assessable person, an involuntary patient, a correctional or a forensic patient for an appeal to the Supreme Court against:

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

6.15.11 Application to revoke an order under NSW Trustee and Guardian Act 2009

Legal aid is available to revoke an order under the NSW Trustee and Guardian Act 2009 (NSW) following the applicant's discharge from hospital. The application is made to the Mental Health Review Tribunal.

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

6.15.12 Appeals against orders under the NSW Trustee and Guardian Act

Legal aid is available to an involuntary patient or a person who is the subject of an order under the NSW Trustee and Guardian Act 2009, for an appeal to the Administrative and Equal Opportunity Division of NCAT or the Supreme Court:

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

6.15.13 Review of a decision of the NSW Trustee

Legal aid is available to a person who is the subject of an order under the NSW Trustee and Guardian Act 2009 for an appeal to the Administrative and Equal Opportunity Division of NCAT for:

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

6.15.14 Review of a decision of the Public Guardian

Legal aid is available to the person to whom the decision relates for an application to the Administrative and Equal Opportunity Division of NCAT for a review of a decision of the Public Guardian.

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

6.15.15 Appeal by a designated carer or principal care provider against a continuing detention order

Legal aid is available to a designated carer or principal care provider to appear at the Mental Health Review Tribunal in relation to an appeal against a continuing detention order.

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

6.15.16 Appeal by a designated carer or principal care provider against an order under the NSW Trustee and Guardian Act

Legal aid is available to a designated carer or principal care provider to appeal to the Administrative and Equal Opportunity Divison of NCAT or Supreme Court against:

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

6.15.17 Review of a decision of the NSW Trustee or Public Guardian by primary carer

Legal aid is available to an affected person for an appeal to the Administrative and Equal Opportunity Division of NCAT for a review of:

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


6.15.18 Forensic patients before Mental Health Review Tribunal

Legal aid is available to forensic patients and correctional patients who are appearing before the Mental Health Review Tribunal under the Mental Health (Forensic Provisions) Act 1990 (NSW) and the Mental Health Act 2007 (NSW).

For legal aid to be granted in these types of matters the following test must be satisfied:

6.15.19 Matters under the Mental Health (Forensic Provisions) Act

Legal aid is available to applicants who have been charged with a criminal offence and are being dealt with under the Mental Health (Forensic Provisions) Act 1990 (NSW).

For legal aid to be granted in these types of matters the following test needs to be satisfied:

6.15.20 Applications to the Supreme Court to extend a person's status as a forensic patient

Legal aid is available to a person who is the subject of an application to extend or vary their status as a forensic patient under the Mental Health (Forensic Provisions) Act 1990 (NSW).

For legal aid to be granted in these types of matters the following test needs to be satisfied:

6.15.21 Appeals to the Court of Appeal against a decision to extend a person's status as a forensic patient

Legal aid is available to a person who is appealing against an Order by the Supreme Court to extend or vary that person's status as a forensic patient.

For legal aid to be granted in these types of matters the following tests need to be satisfied:

Date last published: 25/02/2019

6.15A. Drug and Alcohol Treatment Act matters

6.15A.1   Proceedings before a Magistrate

Legal aid is available to dependent persons for proceedings under the Drug and Alcohol Treatment Act 2007 (NSW) (the Act) for:

For legal aid to be granted in these types of matters the following test must be satisfied:

6.15A.2 Appeals to the NSW Civil and Administrative Tribunal (NCAT)

Legal aid is available to dependent persons for appeals to the Administrative and Equal Opportunity Division of NCAT under section 45 of the Drug and Alcohol Treatment Act 2007 (NSW). For legal aid to be granted the following tests must be satisfied:

Date last published: 24/01/2017

6.16. Guardianship matters

6.16.1 Types of guardianship matters

Legal aid is available for matters under the Guardianship Act 1987 (NSW).

6.16.2 Matters before the Guardianship Division of  NCAT


Legal aid is available to an applicant who is the subject of the proceedings under Guardianship Act 1987 (NSW), unless leave has not been granted to be represented at the Tribunal.

For legal aid to be granted in these types of matters the following test must be satisfied:

Legal aid is also available to make a leave application.

6.16.3 Matters before the Guardianship Division of NCAT– Separate Representation

Legal aid is available to a person who is the subject of proceedings under Guardianship Act 1987 (NSW)  where the Tribunal has made an order that they be separately represented.

For legal aid to be granted for these types of matters the following tests must be satisfied:

Legal Aid NSW will not be satisfied that it is reasonable to provide a grant of aid for the person to be separately represented where there is a high degree of conflict between the parties, and this is the principal reason for the application to the Tribunal.

6.16.4 Guardianship Division of NCAT - special treatment

Legal aid is available for Guardianship Division of NCAT proceedings which relate to seeking consent to carry out Special Treatment on an adult or a child.

Note: 'Special Treatment' is defined under Part 5 of the Guardianship Act 1987 (NSW).

Where the legal aid applicant is the person who is the subject of the application for Special Treatment

Legal aid is available to a child or adult who is the subject of proceedings relating to an application for Special Treatment.

There is no means or merit test applied.

Where the legal aid applicant is a carer

Legal aid is available to an applicant who is significant to the care and well-being of the child or adult who is the subject of proceedings relating to an application for Special Treatment.

For a grant of legal aid to be made to a carer the following tests must be satisfied:

See family law policy for policies covering special medical procedures matters in the Family Court.

6.16.5 Other parties before the Guardianship Tribunal

Legal aid is available to an applicant for legal aid who is an affected person in proceedings before the Guardianship Tribunal.

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

6.16.6 Appeals against decision of the Guardianship Division of NCAT

Legal aid is available to a person who is under a guardianship order made under the Guardianship Act 1987 (NSW) and who is appealing to the Appeals Panel of NCAT or the Supreme Court against:

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

6.16.7 Revocation of financial management orders or guardianship orders

Legal aid is available to an applicant who is seeking revocation of an existing financial management order or guardianship order.

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

6.16.8 Appeal against a decision of the Public Guardian

Legal aid is available to the person to whom the decision relates or to affected persons for an application to the Administrative and Equal Opportunity Division of NCAT:

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

6.16.9 Review of a decision of the NSW Trustee

Legal aid is available to a person who is the subject of an order under NSW Trustee and Guardian Act 2009 or affected persons for an appeal to the Administrative Decisions and Equal Opportunity Division of NCAT for:

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

6.16.10 Other appeals to NCAT and the Supreme Court

Legal aid is available to applicants (except witnesses) who are affected persons for an appeal to the Appeals Panel of NCAT and the Supreme Court against:

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

Date last published: 14/01/2019

6.17. Sexual assault communications privilege matters

6.17.1 Representation for protected confiders

Legal aid is available to a person who is a protected confider seeking to oppose:

in criminal law and civil law proceedings where the sexual assault communication privilege applies.

For legal aid to be granted the following test must be satisfied:

There is no means test applied in these matters.

Note: For the purposes of this policy 'protected confidences' are communications protected under Chapter 6, Part 5, Division 2 of the Criminal Procedure Act 1986 (NSW) and Chapter 3, Part 3.10, Division 1B of the Evidence Act 1995 (NSW).

Note: Proceedings within criminal trials are administered as civil law grants. The criminal law fee scale applies to these grants.

6.17.2 Representation in appeals under s5F of the Criminal Appeal Act 1912 (NSW)

Legal aid is available for an appeal in relation to these matters under s5F of the Criminal Appeal Act 1912 (NSW).

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

Legal Aid NSW must also be satisfied that:

Note: Legal aid may also be available to protected confiders for appeals to the Court of Criminal Appeal and the High Court: See Criminal Law Policy at 4.13.

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

Note: Although these are proceedings within a criminal trial they are administered as civil law grants. The criminal law fee scale applies to these grants.

Date last published: 12/11/2018

6.18. Migration matters

6.18.1 When legal aid is available in migration matters

Legal aid is available for limited types of migration matters. It is available for representation and for advice and assistance as set out in sections 6.18.2 to 6.18.5 below.

6.18.2 Representation in a migration matter

Legal aid is available for representation in migration matters, including refugee matters, in the Federal Court, the Federal Circuit Court or the High Court.

Legal aid is only available in the following circumstances:

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

See Civil Law Guideline 3.2 on requirements to attend ADR.

See Civil Law Guideline 3.10 on applying tests in Commonwealth matters.

6.18.3 Visa cancellation matters – representation in the Administrative Appeals Tribunal, the Federal Circuit Court and the Federal Court of Australia

Legal aid is available for representation in the Administrative Appeals Tribunal, the Federal Circuit Court and the Federal Court of Australia to applicants who are challenging a cancellation of a visa under s501 of the Migration Act 1958 (Cth).

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

6.18.4 Appeals from the AAT, Federal Circuit Court and Federal Court

Legal aid is available for appeals from the Administrative Appeals Tribunal, the Federal Circuit Court and the Federal Court in relation to the cancellation of a permanent visa under s501 of the Migration Act 1958 (Cth).

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

6.18.5 Visa applications and representation in the AAT (Migration and Refugee Division)

Legal aid is available for representation by in-house legal practitioners at Legal Aid NSW for the following visa applications:

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

Where a grant of legal aid was made to the legally assisted person at the primary stage, legal aid is available for representation in appeal proceedings in the Administrative Appeals Tribunal (Migration and Refugee Division).

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

Date last published: 14/01/2019

6.19. Commonwealth benefits including pensions, allowances and social security

6.19.1 When legal aid is available for Commonwealth benefit matters

Legal aid is available where a decision has been made which affects the receipt or amount of a Commonwealth pension, benefit or allowance.

6.19.2 Representation in the Administrative Appeals Tribunal General Division

Legal aid is available for representation in the Administrative Appeals Tribunal General Division where a decision has been made that affects a legal aid applicant's receipt or payment of a Commonwealth pension, benefit or allowance.

For legal aid to be granted in these types of matters the following test must be satisfied:

Legal Aid NSW is satisfied that, either:

See Civil Law Guideline 3.2 on requirements to attend ADR

See Civil  Law Guideline 3.8 on grants of aid for test cases.

See Civil Law Guideline 3.11 on applying tests in Commonwealth matters.

6.19.3 Appeals from the Administrative Appeals Tribunal General Division

Legal aid is available for appeals from the Administrative Appeals Tribunal General Division to the Federal Court in relation to pension, allowances and social security matters.

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

Legal Aid NSW must be satisfied that there is a strong prospect of substantial benefit being gained by the applicant in appealing the decision.

See Civil Law Guideline 3.2 on requirements to attend ADR

See Civil Law Guideline 3.8 on grants of aid for test cases.

See Civil Law Guideline 3.11 on applying tests in Commonwealth matters.

Date last published: 14/01/2019

6.20A. Review of decisions under the National Disability Insurance Scheme Act 2013

6.20A.1 Representation in the Administrative Appeals Tribunal

Legal aid is available for representation in the Administrative Appeal Tribunal (AAT) for review of a reviewable decision under the National Disability Insurance Scheme Act 2013.

For legal aid to be granted for this type of matter the following tests must be satisfied:

See Guideline 3.18.

6.20A.2 Appeals from the Administrative Appeals Tribunal

Legal aid is available for an appeal from the Administrative Appeals Tribunal in relation to a reviewable decision under the National Disability Insurance Scheme Act 2013.

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

Legal aid must be satisfied that in appealing from the decision of the Administrative Appeals Tribunal:

See Civil Law Guideline 3.2 on requirements to attend ADR.

See Civil Law Guideline 3.8 on grants of aid for test cases.

See Civil Law Guideline 3.11 on applying tests in Commonwealth matters.

Date last published: 20/08/2019

6.22. Proceeds of crime matters

Legal aid is available for proceedings under the Proceeds of Crime Act 2002 (Cth) (the POC Act) if the applicant has property that is covered by a restraining order under the POC Act, or is likely to be covered by such an order.

For legal aid to be granted in these types of matter the following test must be satisfied:

Applying Means Test A

In assessing an applicant's eligibility under the means test, Legal Aid NSW must disregard any of the applicant's property that is subject to a restraining or confiscation order under the Proceeds of Crime Act 2002 (Cth), or is likely to be covered by such an order.

See Civil Law Guideline 3.2 on requirements to attend ADR.

See Civil Law Guideline 3.7 on applying proceeds of crime policy.

See Civil Law Guideline 3.8 on grants of aid for test cases.

See Civil Law Guideline 3.10 on applying tests in Commonwealth matters.

Note

These matters are either conducted by the in-house criminal law practice or assigned to criminal law practitioners.

Legal aid is not available for State proceeds of crime matters.

Date last published: 24/01/2017

6.23. Extradition proceedings

Legal aid is available for certain types of proceedings under the Extradition Act 1988 (Cth) (The Act) including:

For legal aid to be granted in these types of matters the following test must be satisfied:

See Civil Law Guideline 3.2 on requirements to attend ADR.

See Civil Law Guideline 3.8 on grants of aid for test cases.

See Civil Law Guideline 3.11 on applying tests in Commonwealth matters.

The Chief Executive Officer has not delegated the authority to grant legal aid in Extradition proceedings. See Delegation Instrument.

Date last published: 24/01/2017

6.24 War veterans' matters

6.24.1 When legal aid is available for war Veterans' matters

Legal aid is available to war veterans or their dependants in the following types of matters:

Note: An application for legal aid by veterans for matters other than under Part II of the Veterans' Entitlements Act 1988 (Cth) or under the Military Rehabilitation and Compensation Act 2004 (Cth) may be dealt with under the general civil law policies.

See Civil Law Guideline 3.13 for details about how grants of aid are funded in Veterans' matters.

6.24.2 Representation in the Administrative Appeals Tribunal

Legal Aid is available for war veterans' matter in the Administrative Appeals Tribunal.

For legal aid to be granted in these types of matter the following tests must be satisfied:

6.24.3 Appeals from the AAT in Veterans' matters

Legal aid is available for appeals from the Administrative Appeals Tribunal for Veterans' matters.

For legal aid to be granted the following tests need to be satisfied:

Date last published: 24/01/2017

6.26. Matters for which legal aid is not available

Legal aid is not available for the following types of civil law matters:

Date last published: 24/01/2017