This chapter provides information about the availability of services and grants of legal aid provided by Legal Aid Commissions (Legal Aid Commissions). It then outlines the gaps in services provided by Legal Aid Commissions, with the view to assisting firms to develop pro bono practices which target these gaps. Finally, it provides guidance to assist pro bono lawyers to identify when a referral to a Legal Aid Commission may be appropriate.

It is important to note at the outset that, notwithstanding the role of pro bono legal services in filling gaps in services provided by Legal Aid Commissions, pro bono legal services should not be treated as a substitute for the proper funding of Legal Aid Commissions.

• 3.1.1 – Overview of Legal Aid Commission services
• 3.1.2 – Gaps in Legal Aid Commission services and implications for pro bono
• 3.1.3 – Pro bono lawyers referring to Legal Aid Commissions

3.1.1 OVERVIEW OF LEGAL AID COMMISSION SERVICES

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Each State and Territory in Australia has a Legal Aid Commission. Laws, legal practices, the guidelines and the funding of Legal Aid Commissions differ between jurisdictions, meaning the services and assistance offered by each Legal Aid Commission also differ.

The best method for determining eligibility for services and grants of legal aid is to contact the appropriate Legal Aid Commission. For details of each Legal Aid Commission, see the Centre’s website.^[1]

Generally, the services provided by Legal Aid Commissions can be categorised as follows:

• some services provided free of charge;
• grants of legal aid, which may require a monetary contribution from the applicant; and
• community legal education and law reform.

SERVICES PROVIDED FREE OF CHARGE

Legal Aid Commissions generally provide some services over the phone and sometimes face-to-face or online, free of charge and without means testing. These services include:

• legal information and referral to other services;
• advice and minor assistance; and
• duty lawyer services in Magistrates’ and Children’s courts.

To confirm the services provided free of charge in a particular State or Territory, lawyers should contact the relevant Legal Aid Commission.

GRANTS OF LEGAL AID

Legal Aid Commissions can grant legal aid for either ongoing legal representation for a whole matter, ongoing legal representation for a particular stage of a matter, or certain disbursements in a matter. If a grant of aid is made for ongoing legal representation, it will be referred to either a private practitioner or a lawyer from the Legal Aid Commission’s in-house practice. Grants of legal aid for representation in an ongoing matter will only be granted if:

• the matter is of a type the Legal Aid Commission is able to take on in accordance with Commonwealth, State or territory government guidelines;
• if relevant, the applicant passes a means test; and
• if relevant, the matter is assessed as having merit.

Note that grants of legal aid may also be available in some circumstances where the above threshold tests are altered, because the applicant has special circumstances which include that the client has an Aboriginal or Torres Strait Islander background, is a child, experiences language or literacy difficulties, is a person with intellectual, psychiatric or physical disabilities, lives in a remote location or is experiencing or has experienced domestic and family violence.

TYPES OF MATTERS

Grants of legal aid for ongoing representation are available in many criminal matters. The types of criminal law matters for which Legal Aid Commissions provide grants for case representation vary between each respective State and Territory Legal Aid Commission.^[2]

Legal Aid Commissions provide grants for family dispute resolution and case representation in certain family law matters. The types of family law matters for which Legal Aid Commissions provide grants for case representation vary between each respective State and Territory Legal Aid Commission. Legal Aid Commissions also provide grants of aid for child protection matters in certain circumstances.

The Family Violence Cross Examination Scheme provides funding to both alleged victims and perpetrators of family violence for the preparation and attendance at Final Hearings in family law proceedings. The scheme is administered by Legal Aid commissions in each state and eligibility differs from state to state. More information about the scheme can be found here: Family violence information sheet | Federal Circuit and Family Court of Australia (fcfcoa.gov.au).

Grants of legal aid in relation to civil law matters are much more limited than in criminal and family law matters. Each State and Territory has guidelines which state specific civil law matters for which their respective Legal Aid Commission will make grants of legal aid. It is in this area that pro bono most plays a part.

THE MERITS TEST

Subject to some exceptions, most matters that fall within the guidelines for grants of legal assistance are also subject to a merits test. The test applied in Commonwealth matters has three elements:

• the proposed legal proceedings are more likely than not to succeed;
• the ‘ordinarily prudent self-funding litigant’ would risk his or her own funds in undertaking the proceedings proposed; and
• the costs involved in providing legal assistance are warranted by the likely benefit to the applicant or to the community.

Each State and Territory Legal Aid Commission has its own test that it applies to matters. These tests are either the same or similar to the Commonwealth test. For details of the merits test applied in each jurisdiction, consult the relevant Legal Aid Commission.^[3]

THE MEANS TEST

Subject to some jurisdiction-dependent exceptions for certain applicants and types of matters, most individuals seeking grants of Legal Aid in most matters are likely to be subject to a means test. The means test looks at whether an applicant’s income (taking into account some allowable deductions) and assets make them eligible to receive a grant. The income and assets of any person financially associated with the applicant will also be assessed (for example, a spouse or parent).  Depending on the jurisdiction, other factors may also be taken into account.

For details of the means tests applied in each jurisdiction consult the relevant Legal Aid Commission.^[4]

CONTRIBUTIONS

Even where a grant of legal aid is available, the client may have to pay a contribution towards the costs of legal services. This may be a small amount or up to the total cost of the matter if the applicant has the capacity to pay it by reason, for example, of recovery of money.

COMMUNITY LEGAL EDUCATION AND LAW REFORM

All Legal Aid Commissions provide community legal education by publishing factsheets and guides in relation to certain legal issues for the public, and through delivering seminars to the public.

All Legal Aid Commissions also do law reform work to some extent, predominantly through making submissions to relevant law reform related inquiries. However, some Legal Aid Commissions have much more limited capacity in the law reform space than others.

3.1.2 GAPS IN LEGAL AID COMMISSION SERVICES AND IMPLICATIONS FOR PRO BONO

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There are a number of gaps in the services that Legal Aid Commissions in Australia provide. This section provides an overview of some of the key gaps. Awareness of these gaps is relevant to a consideration of where pro bono legal services should be targeted in order to meet unmet legal need and can be relevant to the application of the Australian Pro Bono Centre’s definition of pro bono when considering particular requests.

Notwithstanding the role of pro bono legal services in filling gaps in legal aid services, it is important to reiterate that pro bono legal services should not be treated as a substitute for the proper funding of Legal Aid Commissions.

SERVICES PROVIDED FREE OF CHARGE

In relation to the services which are provided free of charge, Legal Aid Commissions do not have the capacity, in terms of resources and expertise in certain areas of law, to be the sole port of call for individuals who need free legal information, referral to other services, advice and minor assistance. Community legal centres, Indigenous Legal Organisations and other legal organisations^[5] therefore also act as a first point of contact for these services, including through telephone advice lines and drop-in legal clinics. Pro bono lawyers can assist these organisations with providing such services: for example, by volunteering in clinics.

Pro bono lawyers do not generally assist with duty lawyer services.

GRANTS OF LEGAL AID

TYPES OF MATTERS

In relation to many family law and criminal law matters, grants of legal aid may not be available to provide ongoing legal representation for a whole matter. Further, there are several types of matters within those areas of law which are not eligible for grants of legal aid, depending on the jurisdiction. For example, Justice Connect provides integrated criminal legal representation to Victorians experiencing or at risk of homelessness, who would not have otherwise been able to eligible for a grant of legal aid for ongoing representation.^[6]

In the absence of exceptional circumstances, aid is generally not available for fine-only offences or traffic matters where there is no real risk of gaol. For aid to be granted for a defended hearing, there must be a real risk of imprisonment for the offence.

As foreshadowed in Section 3.1.1 above, the primary gap in legal aid services in terms of subject matter in some jurisdictions is with respect to civil matters generally.

By way of example, civil law matters that are generally not eligible for grants of legal aid or are only eligible for grants of legal aid in limited circumstances, depending on the jurisdiction, are:

• employment law;
• fines;
• motor vehicle accidents;
• debts;
• migration;
• housing and tenancy;
• neighbourhood disputes;
• privacy;
• victim’s compensation;
• civil law aspects of elder abuse; and
• wills and estates.

Note that civil law work varies depending on state and/or territory. For example, Legal Aid NSW provides services to eligible clients for more than half of the matter types above.

Pro bono lawyers who are looking to develop a pro bono practice, and who have skills in a certain area of law, should therefore check the website for the Legal Aid Commission in their jurisdiction to understand which types of matters within that area of law are not eligible for legal aid grants. They should also:

• consult with their local community legal centres, Indigenous Legal Organisations and other legal organisations (see Chapter 3.2 for more information about these organisations);
• consult with their local pro bono referral schemes and organisations (see Chapter 3.3 for more information about pro bono referral schemes and organisations); and/or
• review unmet legal needs research,

to understand where the gaps in legal aid services are in the relevant jurisdiction in terms of subject matter type, and where these gaps also overlap with unmet legal need. Those are the areas which would benefit from pro bono legal assistance.

A general understanding of these areas may also assist pro bono coordinators in applying the Australian Pro Bono Centre’s definition of pro bono (found here) when considering requests.

MERITS TEST

Depending on the jurisdiction and the type of matter, there are matters that would be excluded from a grant of legal aid due to a strict requirement to meet a merits test, but that would be eligible for pro bono legal assistance.

The Centre does not strictly require a merits test to be met in determining that a matter is eligible for pro bono assistance. In practice, a merits test is usually a consideration in terms of determining where to best focus finite pro bono resources. However, where a merits test is applied, it is usually one factor considered flexibly amongst many. Depending on the other circumstances, the fact that a matter does not have strong prospects of success may not by itself be a reason to exclude the matter from pro bono legal assistance. For example, there may be matters that are considered to be eligible for pro bono assistance because the matter is of public interest, even if the prospects of success are not strong.^[7]

MEANS TEST

The missing middle

There is a group of individuals who do not meet means tests for grants of legal aid from Legal Aid Commissions, yet lack the resources to afford a private lawyer’s assistance for all or part of their legal matter. This demographic is often referred to as ‘the missing middle’.^[8] Demographics that are more likely to fall within the missing middle include: ^[9]

• older persons;
• people living in rural, regional and remote areas;
• people with disability;
• people with health or mental health issues;
• women;
• single parents;
• children and young people;
• Lesbian, Gay, Bisexual, Transgender, Intersex + people;
• people experiencing family violence;
• part time, casual and temporary workers;
• small-business owners;
• people from culturally and linguistically diverse backgrounds; and
• migrants.

The key areas of legal need for the missing middle in Australia have been found to be:^[10]

• emergency responses;
• family law;
• wills, estates, probate and elder abuse;
• litigation (which can be particularly prohibitive because the prospects of an adverse costs order);
• other civil matters where there is a moderate or greater complexity;
• consumer credit and debt matters;
• employment law matters; and
• any matters involving abuse, violence, assault or harassment, as well as human rights, discrimination or child protection.

Pro bono legal services are a key source of support for the missing middle in Australia. This is because pro bono legal services, unlike Legal Aid Commissions which often apply strict means tests, generally assess a person’s financial capacity to pay in a broader sense. The Centre’s definition of pro bono legal services provides that pro bono legal services can be provided to an individual where they: ’demonstrate a need for legal assistance but cannot obtain Legal Aid or otherwise access the legal system without incurring significant financial hardship‘ (emphasis added).

Pro bono lawyers determining whether an individual would incur significant financial hardship may consider factors which Legal Aid Commissions would not necessarily consider in every case, including number of dependents, liquidity of assets and whether the assets are accessible to the individual (for example, in situations of domestic violence).^[11]

Public interest cases

Means tests applied by Legal Aid Commissions can also result in grants of legal aid not being provided in relation to some cases where the individual does not meet the means test, but has a matter that would benefit the public interest. Pro bono legal services can also fill this gap, noting that the Centre’s definition of pro bono legal services includes giving legal assistance to ‘individuals … whose matter raises an issue of public interest which would not otherwise be pursued’, irrespective of any consideration of financial hardship.^[12]

ORGANISATIONS

One significant gap in services which Legal Aid Commissions provide results from the fact that Legal Aid Commissions only provide services to individuals. Pro bono lawyers can therefore fill a gap by providing legal services to organisations. In particular, the Centre’s definition of ‘pro bono legal services’ includes giving legal assistance to:^[13]

• organisations whose matter raises an issue of public interest which would not otherwise be pursued; or
• charities, other not-for-profit organisations or social enterprises that work in the interests of low income or disadvantaged members of the community, or for the public good.

Common examples of areas of legal assistance required by charities, other not-for-profit organisations or social enterprises include:

• corporate governance;
• employment law;
• insurance law;
• property and leasing;
• privacy;
• contracting arrangements;
• dispute resolution;
• regulatory advice; and
• tax and matters related to registration with the Australian Charities and Not-for-profits Commission.

While organisations which work in the public interest or in the interests of low income or disadvantaged members of the community may have the capacity to pay for legal services, funds expended for legal services are funds that are no longer available for the organisation’s core work.  For more guidance on when to provide pro bono legal services to organisations, see Part 2 of the Centre’s National Pro Bono Target Guidance Notes.^[14]

Another result of Legal Aid Commissions only providing services to individuals is that they do not provide services to small businesses. There may be circumstances where it is appropriate for pro bono legal assistance to be provided to small businesses. For example, in 2022, there was coordinated pro bono legal assistance provided to flood affected communities in Australia, including to small businesses.

COMMUNITY LEGAL EDUCATION AND LAW REFORM

The extent to which Legal Aid Commissions can provide community legal education and contribute to law reform is limited by their capacity in terms of resourcing as well as expertise in particular areas of law. Pro bono lawyers can provide assistance in these areas. For example, in terms of community legal education, pro bono lawyers can assist community legal centres to develop factsheets or deliver seminars.

In terms of law reform, pro bono lawyers can assist by researching or drafting submissions to inquiries or actively advocating for law reform, either independently (depending on conflict considerations, expertise and experience) or in conjunction with community legal centres or other organisations. Pro bono lawyers can also assist community legal centres and other organisations to actively advocate for law reform.

3.1.3 PRO BONO LAWYERS REFERRING TO LEGAL AID COMMISSIONS

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Pro bono coordinators and lawyers may not often be practically required to refer clients approaching them for pro bono legal advice to Legal Aid Commissions. There are two reasons for this.

First, pro bono legal work is, particularly for individuals, most often referred through external pro bono referral schemes and organisations or community legal centres, Indigenous Legal Organisations and other legal organisations. More often than not, those organisations will have already formed a view as to whether the client would be eligible for a grant of legal aid and referred them to the relevant Legal Aid Commission if appropriate.

Second and relatedly, if an individual approaches a pro bono coordinator or lawyer directly, it is often more prudent in the first instance to refer the person to external pro bono referral schemes and organisations (or potentially community legal centres, Indigenous Legal Organisations and other legal organisations).

Nevertheless, the overview in this Chapter (and, if required, specific links to particular Legal Aid Commissions) should provide enough guidance for pro bono coordinators and lawyers to consider generally when referral of individuals to Legal Aid Commissions might be appropriate, even to make their own more detailed enquiries as to eligibility. Direct referrals might be particularly appropriate if, for example, the person had a court hearing upcoming urgently and the person would benefit from Legal Aid Commissions’ duty lawyer services or one-off advice through the Legal Aid Commission’s telephone advice line.

This chapter was reviewed in 2022 by the Australian Pro Bono Centre, the pro bono team at MinterEllison, headed by Keith Rovers, and various specialist practitioners from Legal Aid NSW (including Dana Beiglari, Katie Kelso and Stephen Lasker). The Centre acknowledges and is grateful for the generous contributions of all those who assisted with the 2022 refresh of the Australian Pro Bono Manual. 

[1] Australian Pro Bono Centre, ‘Legal Aid in Australia’ Links to Legal Help (Web Page) <http://probonocentre.org.au/legal-help/legal-aid/>.

[2] Please refer to each Legal Aid Commission’s specific website for more details on the exact criterias, as criteria differs in each state and territory. For details of each Legal Aid Commission see Australian Pro Bono Centre, ‘Legal Aid in Australia’ Links to Legal Help (Web Page) <http://probonocentre.org.au/legal-help/legal-aid/>.

[3] For details of each Legal Aid Commission see Australian Pro Bono Centre, ‘Legal Aid in Australia’ Links to Legal Help (Web Page) <http://probonocentre.org.au/legal-help/legal-aid/>.

[4] For details of each Legal Aid Commission see Australian Pro Bono Centre, ‘Legal Aid in Australia’ Links to Legal Help (Web Page) <http://probonocentre.org.au/legal-help/legal-aid/>.

[5] See Chapter 3.2 for more information about these organisations.

[6] JusticeConnect, Courting Justice <https://justiceconnect.org.au/our-services/homeless-law/courting-justice/#:~:text=Justice%20Connect%20helps%20people%20who,advice%20or%20in%2Dcourt%20representation>

[7] For more information on the definition of ‘public interest’, see Australian Pro Bono Centre, ‘Guidance Notes on Reporting Pro Bono Legal Services’ (Web Page) <https://www.probonocentre.org.au/provide-pro-bono/target/guidance-notes/>.

[8] Law Council of Australia, Addressing the legal needs of the missing middle (Position Paper, November 2021) < https://www.lawcouncil.asn.au/publicassets/d8ff81b4-7558-ec11-9444-005056be13b5/2021%2011%2030%20-%20PP%20-%20Addressing%20the%20legal%20needs%20of%20the%20missing%20middle.pdf>.

[9] Law Council of Australia, Addressing the legal needs of the missing middle (Position Paper, November 2021) 3 < https://www.lawcouncil.asn.au/publicassets/d8ff81b4-7558-ec11-9444-005056be13b5/2021%2011%2030%20-%20PP%20-%20Addressing%20the%20legal%20needs%20of%20the%20missing%20middle.pdf>.

[10] Law Council of Australia, Addressing the legal needs of the missing middle (Position Paper, November 2021), 3-4 < https://www.lawcouncil.asn.au/publicassets/d8ff81b4-7558-ec11-9444-005056be13b5/2021%2011%2030%20-%20PP%20-%20Addressing%20the%20legal%20needs%20of%20the%20missing%20middle.pdf>.

[11] For more information on how means tests are incorporated into pro bono policies, see Chapter 1.3.

[12] For more information on the definition of ‘public interest’, see Australian Pro Bono Centre, ‘Guidance Notes on Reporting Pro Bono Legal Services’ (Web Page) <https://www.probonocentre.org.au/provide-pro-bono/target/guidance-notes/>.

[13] Australian Pro Bono Centre, ‘Information on Pro Bono’ Definition of Pro Bono (Web Page) < https://www.probonocentre.org.au/information-on-pro-bono/definition/>.

[14] Australian Pro Bono Centre, ‘Guidance Notes on Reporting Pro Bono Legal Services’ (Web Page) >.

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