Changes in Legal Aid Criminal Law Policy


In recent correspondence to the New South Wales Bar Association, Legal Aid has given notice of two policy changes affecting funding of criminal cases.

Funding of Defended Cases in the Local Court

Legal Aid funding of defended criminal matters in the Local Court will be restricted to cases "where there is a real possibility on conviction of a term of imprisonment, or where there are exceptional circumstances".

In recent correspondence, Legal Aid has advised that, for the purposes of this policy, a "term of imprisonment" does not include a community service order.

For the purpose of this policy “terms of imprisonment” includes:

  • A full-term gaol term
  • A suspended sentence (section 12 good behavior bond)
  • An intensive correction order, or
  • A home detention order.

It is anticipated that these changes will commence on Monday, 4 November 2013.

Funding for Mandatory Defence Disclosure

The mandatory case management provisions enacted by recent amendment to the Criminal Procedure Act 1986 (Chapter 3, Part 3, Division 3) apply to indictable proceedings in which an indictment is filed after 1 September 2013.

Those case management provisions include a requirement for mandatory defence disclosure. Compliance with the mandatory disclosure obligations involves significant additional work, in advance of a trial.

To date, Legal Aid has not received any additional funding to pay practitioners for the work involved in meeting the mandatory defence disclosure requirements.

It is not yet clear how the new case management provisions will operate in practice. As an interim measure, Legal Aid grants for indictable matters will include the following standard fee in relation to mandatory defence disclosure:

  • Conference with the accused – solicitor and barrister (up to 2 hours).
  • Preparation of notice of defence response – barrister only (up to 2 hours).

Legal Aid will also consider submissions for additional preparation and funding in ‘exceptional circumstances’.

Legal Aid will monitor how these interim measures operate in practice. To ensure that the impact of these changes, in particular the necessity to conduct any additional work, is understood, members are encouraged to make submissions for additional preparation where this is justified by the circumstances.

30 October 2013

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