This chapter provides information about the availability of services and grants of legal assistance provided by the Legal Aid Commissions (LACs). It aims to assist firms developing pro bono programs by outlining the services available from LACs and identifying areas where services are not provided by LACs due to limited funding or restrictions placed on the use of that funding by Commonwealth and/or State and Territory governments. The chapter will also assist lawyers to identify when a referral to a LAC is appropriate.
3.1.1 LEGAL AID — IMPLICATIONS FOR PRO BONO
There are a number of ways in which the legal aid system in Australia may impact on the provision of pro bono legal services. For example:
- There are many people who are financially ineligible for legal aid who are therefore in need of pro bono legal assistance. As a result of the application of the LAC means tests, certain applications for aid are rejected even though the applicant lacks the funds to pay a lawyer. The majority of people who are eligible for legal aid are people in receipt of social security pensions or benefits. The biggest gap in legal aid coverage is in civil law where it can be difficult to get a grant of aid.
- Legally aided people will be required to make a financial contribution and, if money is recovered, may be required to reimburse LACs for some or all monies paid out to their lawyers under a grant of aid. This will depend on the circumstances of the case.
- In some jurisdictions, costs indemnity provisions1 apply to legally aided persons, and a practitioner prepared to undertake pro bono legal work should ensure they are familiar with these provisions.
3.1.2 LEGAL AID SERVICES
Each State and Territory in Australia has a LAC. Laws, legal practices, the guidelines and the funding to LACs differs between jurisdictions, meaning the services and assistance offered by each LAC also differ.
The best method for determining eligibility for services and grants of legal aid is to contact the appropriate LAC. For details of each LAC see the Centre’s website.2
SERVICES PROVIDED FREE OF CHARGE
The following services are examples of those generally provided by LACs free of charge and without means testing. To confirm the situation in a particular State or Territory you should contact the relevant LAC.
- Legal information and referral to other services — information and referrals will be provided face-to-face and by telephone. If needed, written information will be sent to people or accessed by them via each LAC’s website.
- Advice and minor assistance — most LACs operate telephone services that extend beyond providing information and referral services to the provision of legal advice. Face-to-face legal advice is also offered. Most LACs also provide assistance in addition to advice. For example, help in drafting a letter or completing a form.
- Duty lawyer — duty lawyers are available at many magistrates’ and children’s courts to provide advice and to assist clients with restraint orders, to seek remands, apply for bail and/or present pleas in mitigation.
GRANTS OF LEGAL AID
LACs can grant aid for legal representation for lawyers to undertake ongoing matters for clients. If a grant of aid is made it will be referred to either a private practitioner or a lawyer from the LAC’s in-house practice. Grants of legal aid for representation in an ongoing matter are not available to everyone. Aid will be granted if:
- the matter is of a type the LAC is able to take on in accordance with Commonwealth, State or Territory government guidelines;
- the applicant passes a means test, based on the applicant’s income and assets and those of any financially associated person; and
- the matter is assessed as having merit.
Almost all LACs offer a family dispute resolution service. This is funded by the Commonwealth government and provides family dispute conferences to help people attempt to resolve their family disputes without proceeding to litigation.
Most LACs also provide community legal education services through easy to understand legal guides, fact sheets, workshops and other community education.
IN WHAT TYPES OF MATTERS ARE GRANTS OF LEGAL AID AVAILABLE?
Legal matters for which grants of aid for representation can be made by LACs vary according to the guidelines, and the funding available, in each jurisdiction. Grants of aid for representation are more likely to be available for family and criminal law matters than for civil law matters.
Note that aid may also be granted on the grounds that the applicant has special circumstances which include language or literacy problems, intellectual, psychiatric or physical disabilities, living in a remote location or, in relation to family law matters, there being a likelihood of domestic violence.
Applications for legal aid are subject to means and merits testing.
Aid will usually be available for a criminal trial if:
(a) the applicant has a reasonable prospect of acquittal, and conviction would be likely to have a significant detrimental effect on the applicant’s livelihood or employment, actual or prospective;
(b) the applicant has a disability or disadvantage which would prevent self-representation; or
(c) a conviction would be likely to result in a term of imprisonment, including a suspended term, being imposed.
Aid will usually be available for a guilty plea, although this may be limited by an additional condition that the applicant is likely to receive a jail sentence.
Aid may be available from some LACs in other circumstances. For example, minor traffic matters involving large fines or issues of civil liability. Reference should be made to individual LACs.
Applications for legal aid in family law matters are subject to means and merits testing.
Grants of aid for primary dispute resolution (PDR) are also available. Grants for PDR will usually be made before any grant of aid to commence proceedings except if PDR is not appropriate in the circumstances of the applicant’s case. Family dispute resolution services are now provided by LACs (see above).
Grants of aid for civil matters are not as readily available as for family and criminal law matters. Applications will be subject to means and merits testing. Some LACs do not do civil law work.
Grants of aid will not be made for commercial or investment transactions, conveyancing, preparation of wills or probate, association or building disputes or defamation proceedings. Aid is also unlikely to be granted for neighbourhood and motor vehicle damage matters.
Matter types where grants of aid may be available, but are more likely to be limited to disbursements, include:
- migration cases (family, refugee and humanitarian visas);
- employment cases;
- other — for matters involving environmental law, mental health, consumer protection, tenancy and housing, reference should be had to individual commissions as the policies vary considerably. CLCs may be able to assist with these matters.
LACs are more likely to be able to assist with the following civil matter types:
- Veteran’s law — grants of aid are available for war veterans and their dependants in appeals from decisions of the Veterans’ Review Board about war-caused disability pension entitlement or assessment claims. Applicants are not means tested.
- Social security and other Commonwealth benefits appeals, including appeals to, and representation at, the AAT in certain circumstances. Some CLCs operate welfare rights advocacy services.
- Equal opportunity and discrimination cases. Some CLCs operate disability discrimination services.
It is sometimes possible to obtain grants of aid for disbursements only. A firm willing to act pro bono — without any payment of fees — may find that a grant of aid is available for this limited purpose.
WHAT FINANCIAL INFORMATION IS RELEVANT?
The merits test
Matters that fall within the guidelines for grants of legal assistance are also likely to be 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.
Every LAC has its own test that it applies to matters arising under State or Territory laws. These tests are similar in principle to the Commonwealth test.
Note, however, that in limited circumstances certain types of applicants or certain types of matters may not be required to pass a merits test.
The means test
Every LAC applies a means test. In limited circumstances, and depending on the jurisdiction, certain applicants and types of matters will not be subject to a means test.
The means test will assess both the income and assets of the applicant. The income and assets of any person financially associated with the applicant will also be assessed (for example, a spouse, parent or trust providing financial support to the applicant).
In assessing income, the LACs may allow for certain deductions, such as for rent, dependants and child-care costs. Similarly, some assets may be fully or partially exempted from the LACs’ assets assessment, such as the full or partial value of the applicant’s house, car, or tools of trade.
Due to the complexity of the means tests and variations amongst the jurisdictions it is not possible to identify a generally applicable cut-off point for grants of legal aid for representation. For details of the means tests applied in each jurisdiction consult the relevant LAC.3
Even where a grant of legal aid is available, the client will 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.
1 See, for example, s 47 of the Legal Aid Commission Act 1979 (NSW).
3 For details of each LAC see the Centre’s website at https://probonocentre.org.au/legal-help/legal-aid/.