In considering any changes to the Legal Aid Commission and the provision of legal aid, the decision of the High Court in Dietrich v R may have to be taken into account.

This briefing note examines the implications for legal aid funding that arise from the High Court decision. The ambit of the new principle is somewhat unclear in that the notions of "exceptional circumstances" and "serious criminal offences" are yet to be defined. At face value, the decision will appear to require a specific allocation of funds to be made to defend serious criminal matters. Unless this is an additional allocation, rather than a "re-ordering of priorities", there may well be an effect on the capacity to fund, for example, civil actions and family law cases.

The decision will have greater implications for those jurisdictions (other than NSW) which apply the "merit test" to funding. Under a merit test, funding would be offered for a plea of guilty only, where the claim (ie, the defence) was assessed to be without merit. It may well be that the merit test has no application at least for serious criminal matters.