NSW Legal Aid Policies in Brief OUR POLICIES IN BRIEF The Commission is a state funded body providing legal assistance in matters arising under New South Wales law (“state law”). The Commission has an agreement with the Commonwealth to provide legal assistance in matters arising under Commonwealth law. We have developed a range of policies about who is eligible for legal aid. Advice on these policies is available from all our offices. Our policies help us to make decisions which are fair, consistent and financially responsible and target those individuals in the community who have been determined as having high priority for our services. WHO MAKES THE POLICIES? The Commissioners decide our policies for state law matters. When developing policies they consider the relevant matters including the need for legal aid to be accessible to disadvantaged people and the resources available to the Commission. The Commonwealth Government decides the priorities and guidelines for Commonwealth law matters. WHAT ARE OUR POLICIES? We have three tests which may be used when deciding whether a person is eligible for legal aid: Jurisdiction test which looks at the type of case and the area of law of the matter for which aid is sought Merit test which looks at whether the case will succeed and other issues Means test which looks at the income and assets of the person applying for legal aid and usually also the means of any persons providing financial support to them ('financially associated persons'). SUMMARY OF OUR POLICIES The three tests - jurisdiction, merit and means - are summarised below. It is important to note that this is only a summary and that when we make a decision about who gets aid the full policies are used. Jurisdiction Test Areas of law where legal aid is available as at 1 July 2001: Family Law - State Law Adoption De facto Relationships Act 1984 matters Family Law - Commonwealth Law Matters arising under the Family Law Act 1975, the Child Support (Assessment) Act 1989 and the Child Support (Registration and Collection) Act 1988 limited to Separate representation of children Parenting plans and orders Location and recovery orders Other orders relating to children Injunctions relating to family violence Child support Child and spousal maintenance Divorce in certain circumstances Some property matters Civil Law - State Law Anti-discrimination cases Certain consumer protection matters Cases where there is a likelihood that the person will lose his/her home Cases involving questions of civil liberties, such as false imprisonment, malicious prosecution Public interest environment matters Inquests in limited circumstances Protected Estates Act 1983 matters Applicants at special disadvantage Applicants at special disadvantage may be granted assistance in a wider range of matters, including personal injury, professional negligence and employment matters. Applicants are at special disadvantage when “proceedings are taken by or for the benefit of a child or a person having substantial difficulty in dealing with the legal system by reason of a substantial psychiatric condition, developmental disability, intellectual impairment or a physical disability”. Civil Law - Commonwealth Law Matters arising under a Commonwealth statute limited to: A decision affecting the receipt or amount of Commonwealth employees compensation or a Commonwealth pension, benefit or allowance A decision or action by a Commonwealth authority that has a real prospect of affecting a person’s capacity to continue in their usual occupation Discrimination Migration matters, in limited circumstances (Aid is also available under the Immigration Advice & Application Assistance Scheme (IAAAS) contract between the Commission and the Commonwealth Government.) Consumer protection Veterans’ Pension Matters Appeals in the Administrative Appeals Tribunal and higher courts from decisions of the Veterans’ Review Board about war-caused disability pension entitlement or assessment claims under Part II of the Veterans’ Entitlements Act 1986 Criminal Law - State Law In the Local Court for: Most criminal matters commenced by a police charge, except for drink driving and related offences unless there is a real possibility of gaol or exceptional circumstances exist Committal proceedings Domestic violence proceedings for complainants, and, in some limited circumstances, defendants Annulment applications under s100D of the Justices Act 1902 In the District, Supreme and High Courts for: - Indictable matters - Appeals Inquiries under Part 13A of the Crimes Act 1900 arising from evidence taken at the Police Royal Commission Defendants in prosecutions in the Land and Environment Court under environmental protection legislation in some limited circumstances Drug Court matters. Criminal Law - Commonwealth Law Defended charges arising under Commonwealth statute (excluding the Proceeds of Crime Act 1987) in certain circumstances Pleas of guilty in limited circumstances Mental Health Matters - State Law Magistrates inquiries under the Mental Health Act 1900 Most proceedings before the Mental Health Review Tribunal Representation of forensic patients Guardianship Act 1987 matters Protected Estates Act 1983 matters Children’s Matters - State and Commonwealth Law children’s criminal matters - proceedings in the Children’s Court - committal proceedings - sentence matters and trials in the District Court and Supreme Court - criminal appeals children’s care matters (children, parents, guardians and others) - proceedings in the Children’s Court, Supreme Court and High Court - proceedings in the Community Services Division of the Administrative Decisions Tribunal Child Support Matters - Commonwealth Law Representation and assistance for Child Support (Assessment) Act 1989 proceedings Prisoners’ Matters - State Law and Commonwealth Law Visiting justice proceedings Parole Board review hearings Life resentencing applications Review of segregation directions Advice and minor assistance in other matters. Merit Test There are two merit tests - one for state law matters and another for Commonwealth law matters. In applying the merit test for state law matters we ask the question: Is it reasonable in all the circumstances to grant legal aid? Several matters are considered in answering this question. The main ones are: The benefit to the applicant if aid is granted or the detriment that the applicant may suffer if aid is refused Whether the case has reasonable prospects of success The merit test for Commonwealth law matters has three parts. These are: A test of the legal and factual merits - the ‘reasonable prospects of success’ test The ‘prudent self-funding litigant’ test The ‘appropriateness of spending limited public legal aid funds’ test A merit test applies in: Most non-criminal matters (civil, family, administrative law matters and veterans’ matters) Appeals in criminal matters Supreme Court Bail matters Some matters associated with Children’s Court proceedings (eg appeals from the Children’s Court to the District Court) A merit test does NOT apply in: Criminal law matters (except appeals and Supreme Court Bail applications) Children in the Children’s Court For disabled persons for matters before the Guardianship Tribunal Separate representation of children in Family Court proceedings Some Mental Health Act 1900 matters Means Test We apply different means tests depending on the type of matter for which legal aid is sought. Our means tests are all income and assets tests. Eligibility is determined by assessing the net assessable income (after allowable deductions) and the assets of the applicant and financially associated persons. The means tests apply to both State and Commonwealth matters. The means test does NOT apply in: Legal advice Family law duty matters where the applicant is in custody Children in the Children’s Court and appeals to the District Court in care matters Children in the Community Services Division of the Administrative Decisions Tribunal and appeals to the Supreme Court from the Tribunal Children where an order for separate representation is made by the Family Court First appearance bail applications in the Local Court Most Mental Health Advocacy Service matters Veterans’ Entitlements Act 1986 matters to ex-service personnel and their dependents (except for war service pension claims) Disabled persons before the Guardianship Tribunal and in Supreme Court appeals Drug Court matters All other matters are means tested. CONTRIBUTIONS A person receiving a grant of legal aid is usually required to pay a contribution at the beginning of the case based on their income and assets. If the contribution is greater than the estimated cost of the proceedings the person is ineligible for aid. If the person recovers a sum of money or other asset, or if there is a substantial improvement in their financial situation, then they are also usually required to make a contribution at the end of the case. The final contribution is usually the full cost of the grant of legal aid. 1 July 2001 For further details of our policies contact the Legal Policy Unit on (02)9219 5882 or (02)9219 5034

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The information contained on this page is not legal advice. If you have a legal problem you should talk to a lawyer before making a decision about what to do. The information on this page is written for people resident in, or affected by, the laws of New South Wales, Australia only.