Legal Aid Review Panel guidelines

Where an appeal is lodged, Legal Aid NSW will reconsider the decision. This is the internal review stage.

Legal Aid NSW will review the appeal and any additional material submitted with the appeal and determine whether:

• the original decision was correct or incorrect, and/or
• the additional material changes the decision.

Note: See Legal Aid Review Panel procedures and processes on how work will be allocated for the internal review, including who will be responsible for undertaking the internal review.

1.1.1 Original decision upheld

Where Legal Aid NSW determines that the original decision is correct, the appeal will be referred to the Legal Aid Review Panel.

1.1.2 Original decision changed

Where the original decision is changed and legal aid is granted or any terms of the condition of a grant change, this will be a redetermination: see clause 1.2.

1.1.3 Grounds of decision changed

Where the original decision is changed, and Legal Aid NSW determines to change the reasons for decision see clause 1.3.

Where Legal Aid NSW determines that the original decision should be changed, the application will be redetermined and legal aid granted, reinstated or the conditions of the grant changed.

Where the application, termination or condition of the grants is redetermined, the appellant will be notified within 14 days of the decision. 

Where Legal Aid NSW determines to change the original decision and redetermines to refuse the application on different grounds, Legal Aid NSW will:

• inform the appellant that the grounds of the original decision have been changed, and
• advise the appellant of the new grounds of refusal or termination.

The appeal will not be referred to the Legal Aid Review Panel.

The appellant will be given twenty-one (21) days in which to appeal the new decision. 

If at any time Legal Aid NSW is informed that an appellant has withdrawn their appeal, Legal Aid NSW will notify the Legal Aid Review Panel and the appeal will be withdrawn.

Where Legal Aid NSW decides an appeal is a complex appeal, it will be referred to a Legal Aid Review Panel comprising at least 2 members.

2.1.1   Deciding whether an appeal is complex

Legal Aid NSW may decide an appeal is complex:

• where the appeal raises complex sentencing or legal issues
• where there is a possibility of a Dietrich stay application should the original decision be upheld, or
• any other circumstance that Legal Aid NSW may consider constitutes a complex appeal.

If the officer reviewing the appeal forms the view that it may fall within the definition of a complex appeal, the appeal may be referred to a Grade VI Grants solicitor or a Deputy Director of a practice area for consideration.

Where a Grants Grade VI solicitor or a Deputy Director is satisfied that the appeal may meet the complex requirements, it will be referred to the complex appeal committee for consideration within seven (7) days.

2.1.2    Complex appeal committee

The complex appeal committee will be appointed by the Director Legal Services and will comprise senior staff from across the organisation who have expertise in the specific area of law, have administrative law expertise, understand the appeal process, and have a sound understanding of Legal Aid NSW eligibility policies.

2.1.3    Guidelines for complex appeal committee

In deciding whether an appeal is complex, the complex appeal committee may take into account:

• whether the complexity of the legal proceedings for which legal aid is being sought requires consideration by two or more members
• whether the appeal decision could potentially create a risk to Legal Aid NSW and/or the Legal Aid Review Panel (judicial review, media attention etc)
• whether a Dietrich Stay application is a possible outcome if legal aid is refused
• any other circumstances that the complex appeal committee considers relevant.

The complex appeal committee will decide whether the Legal Aid Review Panel should comprise two or more members.

Appeals that require urgent determination will be sent to a Legal Aid Review Panel that has capacity to consider the appeal in the required timeframe.

Appeals that require urgent determination may include appeals where a trial or final hearing date is within 28 days.

The Legal Aid Review Panel must:

• Comply with administrative law principles when determining an appeal, including but not limited to:
  • only considering material that was available to the original decision-maker
  • acting reasonably and without bias
  • acting within their delegation and in accordance with Legal Aid NSW policies and guidelines
  • observing procedural fairness
  • recording reasons for their decision
• Not divulge any information or document (including an application for legal aid) obtained in connection with the administration of legal aid
• Disclose any conflicts of interest and recuse themselves from an appeal where there is a conflict of interest, and
• Determine the appeal and notify Legal Aid NSW of their decision within 14 days of receiving the allocated work.

Note: If the Legal Aid Review Panel requires clarification or further material, they can contact the LARP Secretariat.

Note: Where the Legal Aid Review Panel requires further information from the appellant or does not have the relevant delegation to make their preferred decision, they will refer the appeal to the Legal Aid Review Panel Secretariat who will deal with the request in accordance with the Policy (4.5 and 4.5.1).

Note: The disclosure of information or documents obtained in connection with the administration of legal aid is an offence – see s 26 of the Legal Aid Commission Act 1979 (NSW).

The Legal Aid Review Panel will determine appeals within 14 days of allocation unless there are exceptional circumstances.

Exceptional circumstances may include when the appeal has been deferred and referred to Legal Aid NSW: see Policy 4.6 and 4.7.

If Legal Aid NSW determines an appeal is urgent, Legal Aid NSW will refer the appeal to a Legal Aid Review Panel member who has capacity to deal with the appeal in the abridged timeframe.

If a Legal Aid Review Panel is unable to determine an appeal within the relevant timeframe, Legal Aid NSW may reallocate the appeal to a different Legal Aid Review Panel. 

Legal Aid NSW will allocate work to the Legal Aid Review Panel in accordance with procedures developed by Legal Aid NSW.

In allocating work to the Legal Aid Review Panel, Legal Aid NSW will adhere to the principles of administrative law, including:

• being transparent in how work is allocated to the Panel, including having a roster to ensure work is allocated objectively and equitably
• ensure work is allocated to a Legal Aid Review Panel that has the expertise to review the appeal, and
• recording reasons for the allocation of work (eg. relevant expertise or next on roster).

Note: Legal Aid NSW will maintain a list of Legal Aid Review Panel members and allocate appeals based on their expertise and availability. 

The Legal Aid Review Panel will receive, or be provided access to:

• the same information and material that was available to the original decision-maker, and
• the appeal and any information or material provided in support of the appeal.

Note: the information and material will be forwarded to the Legal Aid Review Panel by the Legal Aid Review Panel Secretariat.

Within three (3) days of receiving the Legal Aid Review Panel determination, the Legal Aid Review Panel Secretariat will:

• record the outcome and reasons for decision on the Legal Aid NSW grants management system.
• notify the appellant in writing of the Legal Aid Review Panel decision.

From time to time, Legal Aid NSW may seek expressions of interest for appointment to the Legal Aid Review Panel. Appointment to the Legal Aid Review Panel is at the discretion of Legal Aid NSW.

To be appointed to the Legal Aid Review Panel, a person must:

• hold a current Australian practising certificate
• have at least seven (7) years post admission experience
• have a sound understanding of administrative law principles
• be able to competently apply Legal Aid NSW eligibility policies and guidelines
• have civil law, family law or criminal law expertise
• have an understanding of the needs of socially and economically disadvantaged persons
• be able to determine appeals within timeframes established by Legal Aid NSW, and
• not be an employee of Legal Aid NSW.

Appointment to the Legal Aid Review Panel is for a period of three (3) years. Members may re-apply for re-appointment at the conclusion of their term.

Legal Aid Review Panel members may be removed from the Legal Aid Review Panel:

• at their request, or
• if they no longer meet the requirements for appointment to the Legal Aid Review Panel.

If Legal Aid NSW decides to remove a member from the Legal Aid Review Panel, Legal Aid NSW will advise the member of the Legal Aid Review Panel.