Legal Aid NSW provides a duty service for criminal law matters at local courts across NSW. This means that lawyers represent clients on a duty basis (rather than under a formal grant of legal aid). To qualify for a duty service, a person must satisfy the Means Test and have a type of matter for which legal aid is available under the Criminal Law or AVO policy.

Matters that the duty service is available for include:

  • bail applications;
  • sentencing;
  • section 14 applications/applications under part 2 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).

A person will require a grant of legal aid for representation, where:

  • a plea of not guilty has been entered and the matter is proceeding to a defended hearing, or
  • expenditure is required to pay a third party, for example, a medical report.

Note: see Criminal law policy 2.1.1 where a matter is proceeding before the Children's Court.

Legal aid is available to a person in custody for a bail application in the Local Court.

To be eligible for legal aid after the first appearance the applicant must satisfy:

Note: see Criminal law policy 2.5.3 (for adults) and Criminal law policy 2.1.8 (for children and young people) for Supreme Court bail applications.

2.2.3.1 - Court attendance notice issued by a police officer or Centrelink

Legal aid is available for criminal proceedings in the Local Court (except for traffic offences - see 2.2.3.2 below) which are commenced by a court attendance notice issued by a police officer or Centrelink.

To be eligible for legal aid the applicant must satisfy:

either

Note: exceptional circumstances would include where the applicant is an Aboriginal woman.

Where the applicant for legal aid has entered a plea of not guilty

To be eligible for legal aid for a defended hearing in the Local Court the applicant must satisfy:

either

2.2.3.2 - Driving and traffic offences

Legal aid is available in the Local Court for driving and traffic offences in very limited circumstances.

To be eligible for legal aid the applicant must satisfy:

either

2.2.3.3 - Court attendance notice issued by a person other than a police officer or Centrelink

Legal aid is available for criminal proceedings in the Local Court which are commenced by a court attendance notice issued by a person other than a police officer or Centrelink.

To be eligible for legal aid the applicant must satisfy:

either

2.2.3.4 - Applications for annulments under Part 2 of the Crimes (Appeal and Review) Act 2001 (NSW)

Legal aid is available in the Local Court for applications for an annulment of conviction or sentence under Part 2 of the Crimes (Appeal and Review) Act 2001 (NSW).

To be eligible for legal aid the applicant must satisfy:

  • the Means Test
  • that there are reasonable prospects of success, and
  • it is a type of matter for which legal aid is available under the Legal Aid NSW Criminal law policies.
2.2.3.5 - Applications to vary or revoke a Community Correction Order or a Conditional Release Order

Legal aid is available in the Local Court in relation to applications to vary or revoke a condition of a Community Correction Order or a Conditional Release Order made under the Crimes (Sentencing Procedure) Act 1999 (NSW).

Where the application is made by the applicant for legal aid

To be eligible for legal aid the applicant must satisfy:

  • the Means Test
  • the Merit Test, and
  • that it is a matter for which legal aid is available in the Local Court.
Where the application is made by Community Corrections or Juvenile Justice

To be eligible for legal aid the applicant must satisfy:

  • the Means Test, and
  • it is a matter for which legal aid is available in the Local Court.

Note: This service will be provided on a duty basis. Grants of aid will only be made where Legal Aid NSW considers that disbursements are required or where the matter is a defended hearing in the Local Court and the applicant satisfies Criminal law policy 2.2.3.1- Court attendance notice issued by a police officer or Centrelink above.

Note: The Means Test is not applied to applicants who are children.

2.2.3.6 - Breach of a Community Correction Order or a Conditional Release Order

Legal aid is available in the Local Court in relation to a breach of a Community Correction Order or a Conditional Release Order made under the Crimes (Sentencing Procedure) Act 1999 (NSW).

To be eligible for legal aid the applicant must satisfy:

  • the Means Test, and
  • that it is a matter for which legal aid is available in the Local Court.

Note: This service will be provided on a duty basis. Grants of aid will only be made where Legal Aid NSW considers that disbursements are required or where the matter is a defended hearing in the Local Court and the applicant satisfies Criminal law policy 2.2.3.1- Court attendance notice issued by a police officer or Centrelink above.

Note: The Means Test is not applied to applicants who are children.

2.2.3.7 - Contesting an application or summons made under the Crimes (Forensic Procedures) Act 2000 (NSW)

Legal aid is available in the Local Court for matters where the applicant for legal aid is contesting a matter commenced by way of an application or summons made under the Crimes (Forensic Procedures) Act 2000 (NSW) when Legal Aid NSW is satisfied that:

  • there are not reasonable grounds to believe:
    • the person is a suspect, and/or
    • the person committed the offence for which the sample is required, and/or
    • the forensic procedure would provide sufficient evidence to confirm or to disprove the person committed the relevant offence, or
  • it is not justified in all the circumstances to carry out the forensic procedure, or
  • the applicant for legal aid lacks capacity to consent to the procedure, or
  • there are exceptional circumstances.

To be eligible for legal aid the applicant must satisfy:

Note: See 2.1.1- Criminal matters in the Children's Court for applications involving a child or young person.

2.2.3.8 - Responding to a mandatory disease testing order

Legal aid is available in the Local Court to vulnerable third parties to respond to an application for an order made under Part 4 of the Mandatory Disease Testing Act 2021 (NSW).

To be eligible for legal aid the applicant must satisfy:

  • the Means Test, and
  • the definition of “vulnerable third party” under the Mandatory Disease Testing Act 2021 (NSW).

Note: These applications are administered as criminal law grants.

Note: Under the Mandatory Disease Testing Act 2021 (NSW) a “vulnerable third party” means a third party who—

(a)  is at least 14 years of age but under 18 years of age, or

(b)  is suffering from a mental illness or mental condition, or is cognitively impaired, within the meaning of the Mental Health (Forensic Provisions) Act 1990, which significantly affects the vulnerable third party’s capacity to consent to voluntarily provide blood to be tested for blood-borne diseases.

Note: see Criminal law policy 2.1.9- Responding to a mandatory disease testing order for applications involving a child or young person.

2.2.3.9 - Revocation of parole for Commonwealth Offences

Legal aid is available in the Local Court for matters where the applicant for legal aid is brought before the court on a warrant under  the Crimes Act 1914 (Cth), s 19AV for revocation of parole.

To be eligible for legal aid the applicant must satisfy:

2.2.3.10 - Restorative justice program – Forum Sentencing

Legal aid may be available to a person who is participating in a restorative justice program where the court makes an order in relation to Forum Conferencing pursuant to Part 7 of the Criminal Procedure Regulation 2010 (NSW).

To be eligible for legal aid the applicant must satisfy:

  • the Means Test, and
  • that it is appropriate in the circumstances that the applicant has legal representation.

Note: Criminal law guideline 2.6 sets out the criteria for determining whether it is appropriate that the applicant has legal representation.

See Criminal law policy 2.1.5 for Youth Justice Conferencing. 

See Criminal law policy 2.7.1 for Circle Sentencing.

2.2.3.11 - When legal aid is not available for Local Court matters

Legal aid is not available for the following Local Court matters:

  • defended hearings where the defence is frivolous or has no possible prospects of success;
  • for respondents in victim's compensation matters (restitution orders);
  • to prosecute private prosecutions under s 14 of the Criminal Procedure Act 1986 (NSW).

Legal aid is available for committal proceedings, including for:

  • case conferencing,
  • applications under s 82 and s 84 of the Criminal Procedure Act 1986 (NSW) (only includes committal matters charged on or after 1 January 2006), and
  • committal hearings.

To be eligible for legal aid the applicant must satisfy:

Note: See Costs and fees guideline 6.1.2 for Legal Aid NSW cost caps which apply in committal proceedings.

Note: When a legal aid applicant has criminal matters involving both Commonwealth and State law see Crime guideline 2.2 for guidance on managing the application and administering the grant of legal aid.