The Funding Guidelines comprise;
The General Guidelines are designed to ensure that the limited funds available for legal aid are directed to the areas of greatest need.
Accordingly, aid will not normally be granted in a case where
- there is some other funding source; or
- the case could be handled by some other agency or service; or
- it would be reasonable for the applicant to self represent.
Other funding source
Legal aid funding will not be granted
- where the applicant can expect to recover damages, compensation, costs or any sum of money from the case, such that the case is self-funding;
- where the lawyer is acting in expectation of payment in due course;
- where the case will involve the sale of a valuable asset and the matter could be funded from the proceeds of sale; or
- where there is some other fund from which the costs can be met, such as in the case of litigation over a deceased estate, or statutory provision for funding, as in cases of representation of protected persons.
The case could be handled by some other agency or service
Legal assistance will not be granted if it is more appropriate for the matter to be dealt with by another agency or service such as
- the Welfare Rights Centre (disputes over eligibility for Centrelink benefits and appeals to the AAT);
- the Department for Education and Child Development, Adoption and Family Information Service (adoption);
- the Working Women's Centre or a trade union (unfair dismissal applications),
- the Equal Opportunity Commission or Human Rights and Equal Opportunity Commission (discrimination and human rights cases);
- the Environmental Defenders Office (environmental law matters);
- the Police Ombudsman (complaints against police);
- the Legal Profession Conduct Commissioner (complaints about lawyers' conduct, conciliation of disputes over bills);
- the Ombudsman (complaints about government agencies, public health facilities, local councils, declined Freedom of Information requests and the like);
- the Telecommunications Industry Ombudsman (telecommunications complaints);
- the Financial Ombudsman Service (complaints about the actions of financial institutions);
- the Insurance Enquiries and Complaints Ltd (disputes between insurers and insured over decisions on claims);
- the Office of Consumer and Business Services (disputes over consumer purchases, commercial practices, etc);
- the Community Legal Centres (neighbourhood mediation);
- the Public Trustee (wills).
If an application has been made to the more appropriate agency, and the agency is unable to assist in the particular case, the application for aid will be assessed in the normal manner.
It would be reasonable for the applicant to self represent
Legal aid funding will not be granted if the case is one in which it would be reasonable for the applicant to self represent.
This includes cases where the court or tribunal concerned commonly deals with self represented litigants.
Legal aid funding is normally only granted to a natural person.
Legal aid funding is not normally granted in
- a commercial case, including a dispute over a failed business or a business debt, a guarantee, a liquidation, directors' liability, a contract, a commercial mortgage or the sale and purchase of a business;
- a compensation case, including a claim for injury caused by a traffic accident, medical or dental negligence, a work injury, a criminal injury, a matter resulting from unsafe premises or a claim for loss due to professional negligence;
- a complaint against a professional or the police;
- a conveyancing matter;
- a criminal case where there is no real risk of imprisonment;
- a defamation case;
- a civil action;
- a neighbour dispute, including a dispute involving fences, trees, noise, car parking and water run-off;
- a probate matter, administrations or a claim on a deceased estate;
- an action to obtain an intervention; or
- opposing an application for an intervention order; or
- an unfair dismissal case.
Consequently, in State law matters, most legal aid funding is spent on criminal cases where there is a real risk of imprisonment and on child protection cases.
Waiver of General and Specific Guidelines
The General and Specific Guidelines may be waived in special or exceptional circumstances.
Examples of special or exceptional circumstances include
- the potential loss of the applicant's livelihood;
- the applicant's health;
- whether the applicant speaks English; and
- the literacy level of the applicant.
An applicant who believes a ground for waiver exists must inform the Commission.
For waiver to occur the Commission must be satisfied that it is justified in the particular case. Special or exceptional circumstances may exist but not lead to waiver. Waiver in one case does not create a precedent for others.
A request for guidelines to be waived may be dealt with by way of appeal.
Guidelines for Commonwealth Matters
The Guidelines for Commonwealth Matters govern the allocation of funding in matters arising under Commonwealth law. These Guidelines are attached.
The funding cap differs according to whether a case arises under State or Commonwealth law, and whether it is a family, criminal or civil law matter.
Funding caps in State matters
In a State criminal law case the funding cap is
- $50 000 if the case involves one defendant; or
- $100 000 if the case involves multiple defendants.
In a State civil law case the funding cap is $60 000.
In a children’s care and protection case the funding cap is
- $12 500 for each party; and
- $17 500 for independent representation for the child.
Funding caps in Commonwealth matters
Commonwealth funding caps are contained in the Commonwealth Guidelines.
In family law matters the funding cap is $15 000 for each parent or guardian (see Guidelines for Commonwealth Matters, Family Law Guidelines 18.2 and 18.3).
The cap is Australia wide so that legal aid expenditure in another State or Territory, in relation to the same case, is counted towards the cap and applies until the child reaches age 18.
In Commonwealth criminal law matters, the funding cap is $40 000 per applicant.
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