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Annual Report 2015 - 2016

Legislative compliance

Changes to the Legal Aid Commission Act 1979

The Legal Aid Commission Act 1979 (NSW) was amended to clarify the appeal rights and procedures that apply if Legal Aid NSW makes a decision about an application for a grant of legal aid through its online application process. The Legal Aid NSW Grants Online application process streamlines applications by allowing them to be automatically determined if the application meets certain criteria.

The amendment does not introduce any new procedures or appeal rights, but it makes it clear that the rights of appeal extend to the determination or redetermination of applications submitted through Grants Online. The amendment also makes it clear that the applicant must be given notice of the right of appeal and the reasons for the determination or redetermination must be recorded.

Significant case

In the Court of Appeal decision Bobolas v Waverley Council [2016] NSWCA 139, the Court considered whether the appellants have a statutory right to an adjournment under section 57 of the Legal Aid Commission Act 1979 (NSW) (the Act). The appellants had appealed to the Legal Aid Review Committee against the decision by Legal Aid NSW to refuse aid.

The Court of Appeal upheld the decision of the Land and Environment Court that the appellants had no bona fide intention to appeal to the Legal Aid Review Committee against the refusal to grant legal aid for their proceedings against the Council.

The Court held that:

  • it was open to the Land and Environment Court to conclude objectively that the appellants’ foreshadowed appeal against the refusal to grant legal aid was a deliberate device to delay proceedings and there had been no denial of procedural fairness
  • a court or tribunal may have regard to all relevant material before it and may take into consideration the prospects of success of the proceedings the subject of the adjournment application
  • parties opposing a section 57 adjournment application may place before the court or tribunal evidence to demonstrate the appeal was not bona fide
  • parties opposing a section 57 adjournment application do not bear the onus of displacing the ‘prima facie position that an appeal having been lodged, the proceedings should be adjourned, rather the court or tribunal considering the matter must look at it objectively, keeping in mind the policy objectives and procedural context of the legislation’.

The Court also confirmed that legal privilege extends to all communications and material about a grant of aid but, with the consent of Legal Aid NSW, may be divulged to a court.

Full compliance with public interest disclosures

Legal Aid NSW has complied with our six-monthly reporting obligations under the Public Interest Disclosures Act 1994. There was one public interest disclosure made during 2015–2016.

Public interest disclosures (PIDs) 2015–2016 No.
Public officials who have made a PID
PIDs received by Legal Aid NSW
Corrupt conduct 1
Maladministration 0
Serious and substantial waste of public money 0
Government information contraventions 0
PIDs finalised by Legal Aid NSW 1
Types of PIDs
PIDs made by public officials in performing their day-to-day functions as public officials1
PIDs made under a statutory or other legal obligation0
All other PIDs0

Privacy

Legal Aid NSW manages personal information in accordance with its Privacy Management Plan.

The Plan explains how we manage personal information under the Privacy and Personal Information Protection Act 1998 and Health Records and Information Privacy Act 2002.

We include privacy notices in our application forms and other public documents, and provide guidance to staff to deal with privacy issues and queries. We received one application for an internal review during 2015–2016.

Right to Information

The Government Information (Public Access) Act 2009 (the GIPA Act) provides for a regime of open government, encouraging the release of information. We continue to have information about legal aid and other services, including policy documents, available on our website.

We also dealt with formal and informal applications for access to information. In 2015–2016, we received 19 formal applications. There were also a small number of applications for internal or external review of decisions we made about access applications. The details of the applications we dealt with under the GIPA Act are provided in Appendix 8.

Most of the requests we received continue to be from clients seeking access to their own information.