All are equal before the law: legal aid as a human right

Bayley v Nixon and Victoria Legal Aid [2015] VSC 744 

In Bayley v Nixon and Victoria Legal Aid, Bell J upheld the principle that every person stands equal before the law. Although Bayley had been convicted of very serious crimes, his request for legal aid should not have been rejected without proper basis. As His Honour stated at [73]: “It is not lawful to reject an application for legal assistance, including for legal assistance in relation to a criminal appeal, upon the sole ground that the applicant is a notorious and unpopular individual who has already been convicted of and sentenced for heinous crimes.”


Bayley, a serial sex offender, had been convicted and was serving a life sentence for the rape and murder of a woman in a case that attracted significant media attention. While serving his life sentence, Bayley was also found guilty of three additional rape offences. As a result of these additional sentences, Bayley’s non-parole period was increased from 35 to 43 years.

Bayley requested legal aid in order to appeal against the additional sentences increasing his non-parole period. This request was rejected at first instance and again by an independent reviewer who confirmed the initial refusal. The independent reviewer’s refusal was based on the opinion that although Bayley satisfied the requirement for legal aid (in that that he had been sentenced to an immediate term of imprisonment and there was a reasonable prospect that his non-parole period would be reduced on appeal), he did not satisfy the requirement that it was reasonable to provide legal assistance having regard to all of the circumstances, including any benefit or detriment that may accrue to him or the public.

Bayley brought proceedings seeking for the independent reviewer’s refusal to be quashed on grounds of jurisdictional error, that the independent reviewer made an error of law on the face of the record and that the decision was unlawful as it failed to give proper consideration to human rights.


Justice Bell concluded that in rejecting Bayley’s applications for legal assistance, the decision of the independent reviewer had been tainted with jurisdictional error on the ground of legal unreasonableness.

Bayley submitted that the decision of the independent reviewer was legally unreasonable in that it lacked an “evident and intelligible justification”. He also submitted that the independent reviewer failed to apply the reasonableness test set out in subsections 24(1) and (4) of the Legal Aid Act 1978 (Vic) (“Legal Aid Act”), and had additionally taken into account irrelevant considerations. For example, the independent reviewer took into account the “public interest in ensuring public confidence in VLA’s stewardship of the funds which are limited” (at [41]), and consequently determined that Bayley should be denied legal aid.

While His Honour acknowledged that ensuring public confidence in stewardship of funds was a legitimate factor to take into account, His Honour also determined that this was not sufficient to explain why the reasonableness test in section 24(1)(b) of the Legal Aid Act had not been satisfied.

The original independent reviewer’s decision was quashed on the basis of unreasonableness, with Bayley’s applications for legal assistance to be remitted for reconsideration by a different independent reviewer.


As Bell J had concluded that there had been jurisdictional error, His Honour did not make a decision as to whether the independent reviewer’s decision had been unlawful for not giving proper consideration to human rights. However, His Honour made statements affirming the close connection between the provision of legal aid and human rights. In noting this close relationship, His Honour said:

Legal aid is closely connected with human rights. For the poor and disadvantaged who are most vulnerable to having their human rights infringed, legal aid can be indispensable for obtaining redress against the infringement and vindication of their rights through the legal process. VLA and independent reviewers are public authorities under the Charter (s 4(1)(b)) and, under s 38(1) of the Charter, must act compatibly with and make decisions giving proper consideration to the human rights in the Charter”: at [37].

The judgement also highlighted that, to illustrate the close relationship between legal aid and human rights, section 25(2) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (“Charter”) made provision for legal aid to be provided to persons charged with a criminal offence, and for their convictions and sentences to be reviewed by a higher court.  In addition, His Honour reflected that the right to legal aid to those who qualify (per section 25(2) of the Charter) is a right that must be enjoyed “without discrimination”.  More generally, section 8(3) of the Charter granted every person the right to equality before the law, equal protection of the law without discrimination and equal and effective protection against discrimination.

It was held that, just like any other applicant for legal aid, Bayley stood equally before the law, and his applications had to be considered in a manner that was impartial, objective and not arbitrary.  In determining applications for legal assistance under the Legal Aid Act, these human rights aspects of legal aid reinforce the objective, criterion-based and non-arbitrary nature of the decision-making process that is required.

The full text of the decision can be found here.

Cammie Teo is a Solicitor at King & Wood Mallesons.