Policy Bulletin 2022/4 Crime Fees: High Risk Offender matters

30 Mar 2022

The Legal Aid NSW Board has approved a new Fee Scale for High-Risk Offender matters (State and Commonwealth).

Background
 

High Risk Offender matters

In 2006, the Crimes (Serious Sex Offenders) Act 2006 (NSW) introduced a preventative detention scheme aimed at serious sex offenders. The scheme allowed the Attorney General to apply to seek an order in the Supreme Court to have a person convicted of a serious sex offence detained in custody beyond their sentence, or if released, to be subject to an extended supervision order, if they were found to be a high-risk offender. In 2017, the State introduced the Terrorism (High Risk Offenders) Act 2017 (NSW) (THROA) to enable detention and supervision of ‘terrorism activity’ offenders. THROA targets offenders serving sentences for NSW indictable offences who are alleged to be at risk of committing a serious terrorism offence.

A new scheme for Extended Supervision Orders (ESOs) for Commonwealth High Risk Terrorist Offenders commenced on 8 December 2021. The Counter-Terrorism Legislation Amendment (High Risk Terrorist Offenders) Act 2020 amended Division 105A in Part 5.3 of the Criminal Code to enable a state Supreme Court to make, review and vary ESOs, complementing the existing Commonwealth Continuing Detention Order (CDO) scheme in Division 105A.[1] The amended Division 105A deals with ‘post-sentence orders’ (PSOs), which now includes both ESOs and CDOs.

Legal aid is available for State and Commonwealth HRO matters.

New Fee Scale

High Risk Offender matters are administered as criminal law grants and the fees that have applied to these matters to date have been the criminal law fees for indictable matters. Our experience has been that this fee scale does not reflect the work undertaken in HRO matters. To ensure we have a fit for purpose fee scale, we have introduced a Fee Scale that will apply specifically to HRO matters.

Some features of the Fee Scale are:

  • An upfront lump sum preparation amount which reflects the complexity of these matters
  • A lump sum preparation and drafting fee for Merit Advice, and
  • The daily fee rate for counsel is at the Complex Criminal Law Barrister Panel rate.

The new fee scale will be supported by a dedicated HRO application template. When applying for these matters, including for extensions, all practitioners should use the new HRO template which is available in Grants Online.

 Commencement date

The change applies to applications determined on or after 28 March 2022 and for any extensions submitted after this date.

Contact for further information

Email Manager, Aideen McGarrigle at Client Eligibility Unit or on 02 9219 5701

Prior to this legislative amendment, supervision of eligible offenders in the community, known as Control Orders, was dealt with in accordance with Division 104 of the Code in the Federal Court.