Triennial Review of Legal Aid

Current state

The seriousness of the charge a defendant faces can affect whether they will be eligible for criminal legal aid.

If a defendant cannot afford a lawyer and is facing a charge where the maximum term of imprisonment is six months or more, they automatically qualify for legal aid.

Where a defendant is facing a less serious charge (where the offence is punishable with a term of imprisonment of less than six months or is not punishable by a term of imprisonment) and cannot afford a lawyer, then aid can only be granted if required in the interests of justice.

Most defendants facing less serious offences do not require legal aid and are assisted by duty lawyers. The Duty Lawyer Service provides legal advice, assistance, and representation to unrepresented defendants charged with a criminal offence.

Problem or opportunity

We are looking to address the following issues related to applications for legal aid for less serious charges:

• The proportion of criminal legal aid applications where the maximum charge is less than six months varies between different District Court locations. In some locations they make up less than 15% of the criminal grants at that specific court, in others it is more than 30%. This may reflect different duty lawyer practices at different courts.    
• A significant proportion of the applications for legal aid in these cases are declined (13%). This may be creating unnecessary churn.
• There may be matters that are assigned legal aid that could have been dealt with through the Duty Lawyer Service.
• Legal aid applications for charges where the penalty is less than six months have increased. There were 7% more applications for these cases received in the first eight months of FY 2024/25 compared to the same period in FY 2023/24. Legal aid expenditure on these cases also increased by 14% over this period. 
• The opinions of duty lawyers vary as to how far they should progress cases before a matter is transferred to assigned counsel.

What we are considering

We are considering addressing some of the issues above by:

• Clarifying the roles and responsibilities of duty lawyers as they relate to cases where the maximum charge is less than six months.
• Setting guidance and expectations for when these cases should be dealt with by the duty lawyer, and having clearer criteria to help guide when it is, and is not, appropriate for defendants to apply for legal aid for these matters. Consideration could also be given to the role of the Duty Lawyer Supervisor, and how that role could be utilised to assist with guidance and training.

Initial analysis

It is anticipated that clarifying expectations on duty lawyers relating to less serious cases may help to:

• Reduce churn. The number of applications for legal aid that are being submitted and subsequently declined may be creating unnecessary churn. This could be due to matters not progressing because it is thought that the defendant will be able to get legal aid and be represented by assigned counsel on a future date.
• Reduce the stress and frustration for defendants submitting applications for legal aid that are subsequently declined.  
• Reduce criminal legal aid costs by having more of these cases dealt with through the Duty Lawyer Service.  It is understood that there will still be many less serious criminal cases where a grant of legal aid is appropriate.