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The review process

Assessing officer

Review requests received from applicants

An applicant can request a review of a decision to refuse aid in the following ways:

  • Writes to Legal Aid Queensland requesting a review of a decision to refuse aid; or 
  • Submits an application which the assessing officer determines to be a request for review; or
  • Phones Legal Aid Queensland and requests a review of the decision to refuse aid over the phone (n.b. this will only be accepted over the phone where the applicant identifies that there are individual circumstances preventing them from submitting the request in writing). 

Where a request to review a decision is received the request will be forwarded to the original decision maker for reconsideration. Acknowledgement correspondence will be sent to the applicant where they have submitted their request in writing (over the phone requests are already confirmed as received).

Review request received from a solicitor

When a solicitor requests a review of a decision to refuse aid or lodges an application which the assessing officer determines to be a request for review the assessing officer will reconsider their original decision and any further information provided. Where it is determined that the matter meets the appropriate eligibility criteria they will approve aid.

Where aid cannot be approved the matter will be referred to a more senior officer for internal review.

Exceptions

Requests for review which are not referred for internal review and proceed directly to external review are:

  1. An initial decision made by the Chief Executive Officer
  2. A decision to refuse aid for an appeal matter where a merit opinion has been obtained from counsel.
  3. A decision to impose a retrospective contribution.

Internal review

An internal review is undertaken by an officer of Legal Aid Queensland who was not involved in the original decision and who is of a higher classification than the original decision maker.

The officer completing the internal review will consider all the information on the file and will make a new decision. This officer may contact the applicant or their solicitor if they require further information prior to making their decision.

Following an internal review a new decision will be communicated. If the decision is made to approve aid the applicant will be advised in writing of the approval. If the decision is to continue to refuse aid the new decision letter will set out reasons for the decision. Should the applicant or solicitor disagree with the internal review decision to refuse aid and the reasons provided they can request to have their application reviewed by an External Review Officer.

Requests that will exceed the monetary cap (Family Law Guideline 18)

The delegation to exceed the monetary cap that applies to family law matters rests with a Grants Manager. If a request for review is approved by an officer without this delegation and the value of aid approved would take the funding above the cap, the grant of aid is conditional upon the Grants Manager exercising their discretion to exceed the cap. If the Grants Manager refuses to exercise their discretion to exceed the cap then aid will be refused.

External review

External review is undertaken by External Review Officers. External Review Officers are experienced solicitors or barristers in private practice who are appointed by the Board of Legal Aid Queensland. When the External Review Officer reviews the application, the applicant is offered  the opportunity to participate in the review via a telephone interview and speak with the External Review Officer (unless the matter has been listed for urgent review or relates to a final contribution). This provides the applicant with an opportunity to provide further information in support of their request for aid.

The External Review Officer has the discretion to request a personal appearance of the applicant and/ or their solicitor. There is no right of personal appearance by either the applicant or their solicitor to attend at the time of the review. No payment will be made by Legal Aid Queensland for any attendance at the review.

The External Review Officer can seek further information in order to make an informed decision. A request for this further information will normally be made through a staff member of Legal Aid Queensland. The External Review Officer can consider any additional material of a significant nature, not previously available at the time of the previous decision.

The External Review Officer may:

  • confirm the internal review decision, or
  • vary the decision, or
  • substitute another decision.

The External Review Officer shall make decisions consistent with means, guideline and merits tests.

If the External Review Officer approves aid and this takes the funding above the cap in a family law matter, the grant of aid is conditional upon the Grants Manager exercising their discretion to exceed the cap. If the Grants Manager refuses to exercise their discretion to exceed the cap then aid will be refused and the applicant advised of the capping of expenditure.

The External Review Officer will set out their decision along with reasons for the decision. Applicants and the solicitor, where the review request is submitted by the applicant's solicitor, are notified of decisions under this process.

The External Review Officer is bound by the secrecy provisions of the Legal Aid Queensland Act 1997.

The normal rules relating to conflict of interest apply to the External Review Officer. Legal Aid Queensland indemnifies the External Review Officer for any liability that could be incurred in the performance of duties as an External Review Officer.

The decision of the External Review Officer is the final avenue of review available through Legal Aid Queensland for a period of two years.

 New applications received within 2 years following internal review

In circumstances where a fresh application for the same matter is received within two years of a senior officers decision (duplicate application), the assessing officer will not process the application and it will be referred to a senior officer for them to consider.

It is at the discretion of the senior officer whether there has been a material change in circumstances. The senior officer can either:

  • consider there has been no material change of circumstances and refuse to re-list the matter. In that case, the previous decision of the senior officer remains and the applicant can choose the seek an external review.
  • consider there has been a material change of circumstances and determine that the material change in circumstances now warrants funding the applicant.
  • consider there has been a material change of circumstances and determine that the material change of circumstances does not warrant funding the applicant.

 New applications received within 2 years following external review

In circumstances where a fresh application for the same matter is received within two years of the External Review Officer's decision (duplicate application), the assessing officer will not process the application and it will be referred to an External Review Officer for them to consider re-listing the matter.

It is at the discretion of the External Review Officer whether there has been a material change in circumstances to warrant the matter being reviewed again.

The External Review Officer can do one of three things:

  • consider there has been no material change of circumstances and refuse to re-list the matter. In that case, the previous decision of the External Review Officer is the final decision.
  • consider there has been a material change of circumstances and determine that that material change of circumstances now warrants funding the applicant.
  • consider there has been a material change of circumstances and determine that that material change of circumstances does not warrant funding the applicant.

 New applications received more than 2 years after an Internal or External Review Officer decision has been made on the same matter

If an application for aid is received where an Internal or External Review Officer has made a decision on the same matter more than two years ago, the assessing officer can assess the application for aid as new. The assessing officer however must take into account any previous decisions.

Invitation to attend a Family Dispute Resolution Conference (FDRC)

An exception to this re-list process is where the applicant:

  • was refused aid for a family dispute resolution conference (FDRC) under the guidelines and merits test and this decision was confirmed by the External Review Officer, and
  • has been invited by Legal Aid Queensland to attend a FDRC.

In these circumstances, the assessing officer can approve aid for the applicant to be represented at the FDRC if the applicant meets the means test. All further funding requests after the legal aid conference are subject to relist before an External Review Officer.

Complaints to an Ombudsman

If a member of the public is unhappy about the actions of Legal Aid Queensland they may be able to make a complaint to the Queensland Ombudsman or Commonwealth Ombudsman as Legal Aid Queensland receives funding from both the State and Federal Governments.

Generally an Ombudsman will not act in Legal Aid matters until the applicant has exhausted all internal Legal Aid avenues of appeal.

The Ombudsman's Office has a right to inspect Legal Aid Queensland Grants files.

Queensland Ombudsman

The Queensland Ombudsman investigates complaints about the actions and decisions of Queensland public agencies and their staff that may be unlawful, unreasonable, unfair, improperly discriminatory or otherwise wrong.

The Queensland Ombudsman also helps State and local government agencies improve their administrative practice by:

  • making recommendations based on their investigations
  • conducting training on good decision-making and complaints management
  • providing advice and other assistance.

Commonwealth Ombudsman

The Commonwealth Ombudsman can investigate complaints about actions and decisions of Australian Government agencies to see if they are wrong, unjust, unlawful, discriminatory or just plain unfair. The Ombudsman also seeks remedies for those affected by administrative deficiency, and acts to improve public administration generally.

Judicial Review

If an applicant is unhappy with an administrative decision made by Legal Aid Queensland, the applicant is able to apply to the Supreme Court for a judicial review under the Judicial Review Act 1991.

A refusal of aid is an administrative decision that is subject to Judicial Review.

Under the Act, applicants whose interests are adversely affected (or will be adversely affected) by an administrative decision have the right to:

  • request a statement of reasons explaining a decision
  • apply to the Supreme Court for a review of a decision if the applicant is not satisfied with the statement of reasons for that decision.

Legal Aid Queensland will prepare a statement of reasons:

  • when an application for judicial review has been made to the Supreme Court pursuant to the Judicial Review Act 1991, or
  • upon notice that an application for judicial review is being made.

Usually, a request for a statement of reasons is made prior to an application to the Supreme Court for a statutory order of review.

The statement of reasons that Legal Aid Queensland will provide to an aggrieved person will contain the following:

  • the findings of facts
  • a reference to the evidence or other material on which the findings were based
  • the reasons for the decision.
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