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Commonwealth Priorities and Guidelines

Commonwealth Legal Aid Priorities
Family law priorities
Criminal law priorities
Civil law priorities
Other matters taken to be priorities
Commonwealth Legal Aid Guidelines
Application
Family Law Guidelines
Criminal Law Guidelines
Civil Law Guidelines

Commonwealth Legal Aid Priorities

  1. The Commonwealth Legal Aid Priorities are set out below.
  2. The Commonwealth Legal Aid Priorities set out the Commonwealth Law Matters that Litigation Services and PDR Services may be provided for by the Commission under Grants of Legal Assistance
  3. If a matter is a Commonwealth Legal Aid Priority, the provision of Litigation Services and PDR Services are subject to any relevant terms, conditions and limits imposed by the Commonwealth Legal Aid Guidelines on the provision of such assistance under a Grant of Legal Assistance.

Family law priorities
A family law or child support matter arising under the Family Law Act 1975, the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988, is a Commonwealth Legal Aid Priority if it relates to any of the following:

  • separate representation of children;
  • any other orders relating to children, including parenting orders, location orders and recovery orders;
  • parenting plans;
  • injunctions relating to family violence;
  • child support and child maintenance;
  • spousal maintenance;
  • dissolution and nullity of marriage;
  • property proceedings;
  • enforcement proceedings; or
  • contempt and breach of court orders proceedings.

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Criminal law priorities

A criminal law matter that is a Commonwealth Law Matter is a Commonwealth Legal Aid Priority if it relates to the legal representation of a person charged with a criminal offence.

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Civil law priorities
A civil law matter that is a Commonwealth Law Matter is a Commonwealth Legal Aid Priority if it relates to any of the following:

  1. a decision affecting the receipt or amount of:
    1. a Commonwealth employees' compensation; or
    2. a Commonwealth pension, benefit or allowance, including a pension, benefit or allowance relating to war veterans;
  2. a decision or action by the Commonwealth in relation to a person that has a real prospect of affecting the person's capacity to continue in his or her usual occupation;
  3. discrimination;
  4. migration;
  5. consumer protection; or
  6. proceedings under the Proceeds of Crime Act 2002.

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Other matters taken to be priorities

  1. A legal matter that is not a Commonwealth Legal Aid Priority as defined above (ie in Family, Criminal or Civil Law Priorities) is taken to be a Commonwealth Legal Aid Priority if:
    1. the matter is a Commonwealth Law Matter
    2. there are Commonwealth Legal Aid Monies available to provide the Legal Aid Services set out in (2) above for the matter, and
    3. either:
      1. the matter is a kind for which the Australian Government, or his or her delegate, has previously given written approval for provision of one or more of the Legal Aid Services set out in (2) above; or

      2. the Commission considers that at least one of the special circumstances set out in subclause (2) below exists in relation to the matter.
  2. A special circumstance is any of the following:
    1. the applicant has a language or literacy problem;
    2. the applicant has an intellectual, psychiatric or physical disability;
    3. it is difficult for the applicant to obtain legal assistance because the applicant lives in a remote location;
    4. in relation to family law matters - there is, or is a likelihood of, domestic violence, especially if an allegation of domestic violence has been made by a party to the matter;
    5. the applicant is a child; or
    6. the applicant is a person appointed by a court order under sections 15YF or 15YG of the Crimes Act 1914 to ask questions of a child complainant or child witness.

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Commonwealth Legal Aid Guidelines

Part 1 Application
Guideline 1 Interpretation
Guideline 2 Basis of determination of a Grant of Legal Assistance
Guideline 3 The means test
Guideline 4 The merits test
Guideline 5 Test cases
Guideline 6 Matters referred by Attorney-General under subsection 69(3) of
Judiciary Act 1903

Part 2 Family law guidelines
Guideline 1 Priority for urgent matters
Guideline 2 Primary Dispute Resolution (PDR) Services
Guideline 3 Separate representation of children
Guideline 4 Parenting orders
Guideline 5 Child maintenance and child support
Guideline 6 Spousal maintenance
Guideline 7 Arrears of child or spousal maintenance or child support
Guideline 8 Paternity
Guideline 9 Special medical procedures involving children
Guideline 10 Recovery, location or information orders
Guideline 11 Dissolution (divorce) and nullity of marriage
Guideline 12 Property
Guideline 13 Consent orders
Guideline 14 Assistance after final orders
Guideline 15 Appeals
Guideline 16 Enforcement of final orders
Guideline 17 Contempt of court and breach of court orders
Guideline 18 International child abduction matters
Guideline 19 Family law costs management

Part 3 Criminal law guidelines
Guideline 1 General
Guideline 2 Summary criminal prosecutions
Guideline 3 Committal proceedings
Guideline 4 Superior court criminal proceedings
Guideline 5 Children's court proceedings
Guideline 6 Bail applications
Guideline 7 Criminal law matters involving both Commonwealth and State or
Territory laws
Guideline 8 Applications arising from the decision in Dietrich's Case
Guideline 9 National security matters
Guideline 10 Appeals
Guideline 11 Criminal law costs management
Guideline 12 Commonwealth Criminal Law - Expensive Cases Fund

Part 4 Civil law guidelines
Guideline 1 General
Guideline 2 Social security and other Commonwealth benefits
Guideline 3 Migration cases
Guideline 4 Equal opportunity and discrimination cases
Guideline 5 War veterans' matters
Guideline 6 Other Federal and High Court proceedings
Guideline 7 Proceeds of crime
Guideline 8 Extradition proceedings
Guideline 9 Appeals

Part 1 Application

Guideline 1 Interpretation
(Omitted)

Guideline 2 Basis of determination of grant of legal assistance

  1. The Commission may make a Grant of Legal Assistance for an application for assistance that:
    1. is for assistance for a Commonwealth Law Matter
    2. is within a Commonwealth Legal Aid Priority
    3. meets any guidelines set out in these Commonwealth Legal Aid Guidelines that are relevant to the application
    4. meets the means test in guideline 3 of this Part 1 (unless otherwise specified in these Guidelines), and
    5. meets the merits test in guideline 4 of this Part 1 (unless otherwise specified in these Commonwealth Legal Aid Guidelines).
  2. When determining whether a Grant of Legal Assistance is to be made, the Commission should apply guideline 2(1)(a), (b), (c), (d) and (e) in that order.
  3. If an application for a Grant of Legal Assistance meets the criteria in this guideline 2(1), the Commission must determine, in accordance with these Commonwealth Legal aid Guidelines and after giving consideration to available Commonwealth Legal Aid Monies and competing Commonwealth Legal Aid Priorities, whether a Grant is to be made and, if so, the nature and extent of that Grant.
  4. If, apart from this Part 1, there is no guideline relating specifically to a Commonwealth Legal Aid Priority, the Commission may make a Grant of Legal Assistance in the manner, and to the extent, it considers appropriate in that priority area.
  5. In a case involving domestic violence in relation to an applicant or a child, indeciding whether to make a Grant of Legal Assistance, and the nature and extent of any such assistance, the Commission should have regard to any guidelines or procedures used in the Commission's State or Territory for determining grants of legal assistance for domestic violence matters arising under its State or Territory legislation.

    Note This is not intended to pick up matters that are properly classed as State or Territory law matters. The intention is to ensure that domestic violence matters arising under Commonwealth laws are treated consistently with domestic violence matters arising under State or Territorylaws.

  6. The Commission must ensure that any litigation, for which a Grant of Legal Assistance is made under these Commonwealth Legal Aid Guidelines, is conducted in a cost effective manner

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Guideline 3 The means test

Unless the Commonwealth Minister directs the Commission, in writing, to apply a different test, the means test to be applied by the Commission is the means test used by the Commission, at the date of the relevant application for assistance, for applications for assistance in State or Territory law matters.

Note The Commonwealth's strong preference is for the Commission to use the simplified means test developed for Legal Aid Queensland, and for this test to be adopted nationally

Guideline 4 The merits test

  1. To satisfy the merits test, the applicant for assistance must meet each of the following 3 tests:
    1. the reasonable prospects of success test in guideline 4(2)
    2. the prudent self-funding litigant test in guideline 4(3), and
    3. the appropriateness of spending limited public legal aid funds test in guideline 4(4).
  2. The reasonable prospects of success test is met only if, on the information provided to the Commission, it appears to the Commission that, on the legal and factual merits, the proposed action, application, defence or response for which a Grant of Legal Assistance is sought is more likely than not to succeed.
  3. The prudent self-funding litigant test is met only if the Commission considers that a prudent self-funding litigant would risk his or her own financial resources in funding the proposed action, application, defence or response for which a Grant of Legal Assistance is sought.

    Note Legal aid is a benefit funded by Australian taxpayers. Many taxpayers who are above the means test threshold for the granting of legal assistance have their own access to justice constrained in whole or in part because of limited financial resources. To reduce the inequity between those who have access to assistance and those who are marginally excluded, the Commonwealth aims to have strategies adopted that will provide solutions to assisted clients' problems at minimum cost. The test of the 'prudent self-funding litigant', one without 'deep pockets', is one such strategy. It aims to put assisted litigants into an equal but not better position than private litigants without 'deep pockets' who risk their own funds.

  4. The appropriateness of spending limited public legal aid funds test is met only if the Commission considers that the costs involved in providing the assistance are warranted by the likely benefit to the applicant or, in appropriate circumstances, the community.

    Note The Commonwealth has numerous competing interests for its legal aid resources, and accordingly requires the Commission to be satisfied that the matter for which legal assistance is sought is an appropriate expenditure of Commonwealth legal aid program resources. Examples of what the Commonwealth considers to be inappropriate expenditures of Commonwealth legal aid resources are:
    (a) applications to the court to dispense with a spouse's consent to a passport so that the applicant and child can travel overseas (as the Commonwealth considers that the contingent documentary costs of overseas travel should form part of the overall expense of the trip), and
    (b) some aspects of family law contact and property disputes, where the issue appears to be of minor significance in relationship to the legal costs that will be incurred in providing the legal assistance, for example, in a contact dispute, where the issue in dispute is who will pay for the child's bus or taxi fare, or who washes the child's clothes, or who provides the child's morning or afternoon tea.

  5. The merits test is to be applied to all applications for a Grant of Legal Assistance, unless otherwise specified in these Commonwealth Legal Aid Guidelines.

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Guideline 5 Test cases

  1. The Commission may make a Grant of Legal Assistance for a matter that it considers may be a test case within the meaning of the Commonwealth Public Interest and Test Cases Scheme if the Commission determines that a Grant may be made in accordance with guideline 2 of this Part 1.
  2. If the Commission does not make a Grant of Legal Assistance for an application for assistance that it considers may be a test case within the meaning of the Commonwealth Public Interest and Test Cases Scheme, the Commission should refer the matter to the Commonwealth Attorney-General's Department for consideration in accordance with the Scheme.

Guideline 6 Matters referred by Attorney-General under subsection 69(3) of Judiciary Act 1903

  1. Matters to which these Commonwealth Legal Aid Guidelines apply include matters referred to the Commission by the Commonwealth Minister under subsection 69(3) of the Judiciary Act 1903.

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Part 2 Family law guidelines

Note For the family law priorities in the Commonwealth Legal Aid Priorities, click here.

Guideline 1 Priority for urgent matters

1.1 Priority for urgent matters

  1. Although each of the family law priorities in the Commonwealth Legal Aid Priorities are generally of equal priority, in deciding whether to make a Grant of Legal Assistance for a family law matter in relation to an application to the court for an interim order or injunction, the Commission must give the highest priority to urgent matters.
  2. Urgent matters are matters in which the Commission determines that:
    1. a child's safety or welfare is at risk
    2. the applicant's safety is at risk
    3. there is an immediate risk of removal of a child from Australia or to a
    4. remote geographic region within Australia
    5. there is a need to preserve matrimonial property, or
    6. other exceptional circumstances exist that require urgent legal assistance.

1.2 Priority for non-urgent matters

  1. If the Commission determines that a family law matter that falls within the family law priorities is not urgent, a Grant of Legal Assistance should not be granted until the relevant parties have been separated for a sufficient period of time to enable them to be sure that there are real issues in dispute.

    Note Some legal aid commissions refer to this as the 'six-week rule'.

  2. Guideline 1.2(1) does not apply where the Commission considers that a non-urgent matter warrants a Grant of Legal Assistance for an application to the court for an interim order or injunction prior to the passing of the sufficient period of time referred to in guideline 1.2(1).

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Guideline 2 Primary Dispute Resolution (PDR) Services

2.1 Consideration of resolution processes other than litigation

  1. The Commission must give consideration to resolving disputes in family law matters that are within this Part 2 through the use of PDR Services.
  2. In a family law matter under this Part 2, the Commission must consider making a Grant of Legal Assistance for an applicant for assistance to participate in PDR Services before it considers making a Grant of Legal Assistance to that applicant for Litigation Services for the matter.
  3. The Commission may make a Grant of Legal Assistance for an applicant for assistance to participate in PDR Services at any stage of a matter.

2.2 Appropriateness of participation in PDR Services

  1. The Commission will only make a Grant of Legal Assistance requiring an applicant to participate in PDR Services if it considers that this is appropriate in the particular case.
  2. The Commission must give an applicant for assistance the opportunity to give reasons if the applicant is strongly opposed to participating in PDR Services, and the Commission should have regard to these reasons when considering whether or not it is appropriate for the Commission to require the applicant to participate in PDR Services.
  3. Participation in PDR Services is usually inappropriate where:
    1. the matter is considered to be an urgent matter under guideline 1.1 of this Part 2
    2. for family law matters relating to a child of the parties, there are any current reported allegations of child abuse, or investigations or court proceedings relating to child abuse are currently taking place
    3. a party's safety or ability to negotiate effectively is jeopardised by behaviour of the other party such as violence, intimidation, control or coercion, or a history of such behaviour
    4. there is documentary or other clear evidence establishing the refusal or unwillingness of the other party to attend PDR Services, or
    5. there are practical difficulties that cannot easily be overcome, such as the geographical distance between the parties or the unavailability of PDR Services in the region in which the applicant for assistance lives.
  4. If there are or have previously been any reported allegations, investigations or court proceedings in a matter relating to:
    1. violence against the other party, or
    2. child abuse in relation to a child of the parties

    and the Commission determines that participation in PDR Services is appropriate in that matter, the Commission must make best endeavours to ensure that either of the party's safety or ability to effectively negotiate will not be jeopardised and that it is reasonable to proceed with participation in PDR Services at the current time.

  5. If the Commission determines that participation in PDR Services is inappropriate in a particular matter, the Commission may make a Grant of Legal Assistance for Litigation Services if the matter is eligible for assistance under another guideline in this Part 2.

    Example
    A Grant of Legal Assistance may be made to vary a parenting order.

  6. If the Commission makes a Grant of Legal Assistance for participation in PDR Services conducted by an External Service Provider, the Commission must ensure that the External Service Provider has a system in place to ensure the quality of its PDR Services.

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Guideline 3 Separate representation of children

3.1 Assistance for separate representation of a child

  1. The Commission may make a Grant of Legal Assistance for the separate representation of a child in court proceedings if:
    1. a court makes an order for separate representation and asks the Commission to arrange for a child representative to provide the separate representation, and
    2. the Commission decides that it is reasonable to provide a Grant of Legal Assistance for the separate representation.

      Note A court order that a child representative be appointed in a matter does not impose an obligation on the Commission to make a Grant of Legal Assistance for the separate representation.

  2. The Commission should make a Grant of Legal Assistance for the separate representation of a child in any court proceedings relating to special medical procedures (including sterilisation).
  3. An application for a Grant of Legal Assistance under this guideline 3.1 is not subject to the means test.

3.2 Payment for the costs of separate representation by a party not receiving

legal assistance

  1. If the Commission makes a Grant of Legal Assistance for the separate representation of a child in court proceedings in relation to which at least one of the parties is not receiving legal assistance under a Grant of Legal Assistance, the Commission must:
    1. notify each party not receiving legal assistance that each may be required to pay an equal portion of the total costs and disbursements of the child representative
    2. taking into account each such party's capacity to pay, determine whether to waive or reduce the amount to be paid by that party, and notify each such party of the amount he or she is required to pay the Commission, and
    3. require each such party to pay the required amount in the manner determined by the Commission.
  2. Guideline 3.2(1) does not apply to proceedings relating to special medicalprocedures involving a child in which a Grant of Legal Assistance for separate representation of the child has been made, regardless of whether or not any of the parties to the proceedings are receiving legal assistance under a Grant of Legal Assistance.
  3. If a party refuses or fails to pay the amount required by the Commission under this guideline 3.2, legal assistance for the separate representation should continue to be provided on the condition that the child representative seek an order for costs against that party at an appropriate time in the court proceedings.

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Guideline 4 Parenting orders

4.1 Assistance for parenting orders

The Commission may make a Grant of Legal Assistance for a court application for a parenting order under the Family Law Act 1975 if the Commission is satisfied that:

  1. there is a dispute about a substantial issue, and
  2. any of the following circumstances apply:
    1. recent participation in PDR Services has not resolved the dispute
    2. the other party has refused or failed to attend PDR Services on the issue, or
    3. participation in PDR Services is impractical or inappropriate in accordance with guideline 2 of this Part 2.

4.2 Assistance for applications to discharge or vary parenting orders or

registered parenting plans

  1. Subject to guideline 4.2(2), the Commission may make a Grant of Legal Assistance for a court application to discharge or vary a parenting order or a registered parenting plan under the Family Law Act 1975 if the Commission is satisfied that:
    1. there is a dispute about a substantial issue,
    2. any of the following circumstances apply:
      1. recent participation in PDR Services has not resolved the dispute
      2. the other party has refused or failed to attend PDR Services on the issue, or
      3. participation in PDR Services is impractical or inappropriate in accordance with guideline 2 of this Part 2, and
    3. any of the following circumstances apply:
      1. there has been a material change in circumstances since the parenting order was made or the parenting plan was registered, or
      2. the court application is imperative.

        Examples:
        1. The likelihood of violence, or physical or mental harm, to the applicant or a child.
        2. The removal or risk of removal of a child from an applicant who has primary
        residence responsibilities.
        3. The removal or risk of removal of a child from the jurisdiction of the Court.
        4. The need for an applicant with primary residence responsibilities to move
        permanently overseas, interstate or elsewhere with a child, if consent is
        unreasonably refused by another person.

  2. If the material change in circumstances referred to in guideline 4.2(1)(c)(i) has been caused by the applicant for assistance, the Commission must consider the circumstances surrounding that change in determining whether it is appropriat to make a Grant of Legal Assistance to the applicant.

4.3 Assistance to parties who are not parents

The Commission may make a Grant of Legal Assistance to a party who is not a parent in court proceedings relating to a parenting order under the Family Law

Act 1975 if:

  1. the party is significant to the care, welfare and development of the relevant child, or
  2. the Commission considers it to be in the child's best interests.

    Example
    It may be in the child's best interests if the child's safety or welfare is at risk.

4.4 Assistance where care and protection proceedings

The Commission may make a Grant of Legal Assistance for a court application for a parenting order under the Family Law Act 1975 even if there are current care or protection orders in force under a State or Territory law, or court proceedings under a State or Territory child welfare law are currently taking place, in respect of the child.

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Guideline 5 Child maintenance and child support

5.1 Assistance for child maintenance - stage 1 matters

  1. For the purposes of this guideline 5.1, a child maintenance matter is a stage 1 matter if:
    1. it relates to a child born before 1 October 1989
    2. the parents of the child:
      1. have never lived together, or
      2. separated before 1 October 1989, and have not resumed living together, and
    3. the child does not have a full blood sibling born on or after that date.
  2. The Commission may make a Grant of Legal Assistance for a child maintenance application to the court under the Family Law Act 1975 involving a stage 1 matter if the Commission has first determined that it is inappropriate for the matter to be referred for assistance, from either the Commission or an External Service Provider, as follows:
    1. if the applicant for assistance is a low income earner and is seeking maintenance or increased maintenance - for the applicant to be referred to a child support unit or service, or
    2. if the applicant for assistance is a liable parent making application for variation, discharge or suspension of maintenance - for the applicant to be referred to a liable parents information service.

      Example
      It may be inappropriate for a referral to be made where:
      1. the case is very complex
      2. the applicant needs urgent orders
      3. it is impractical for the applicant for assistance to use one of the service provided by a
      Commission or an External Service Provider, such as a community legal centre service
      4. the applicant will not benefit from attending one of the services because of a language
      or literacy problem, or an intellectual, psychiatric or physical disability
      5. a Grant of Legal Assistance has been made for other court proceedings and}
      maintenance is ancillary to, but cannot be separated from, those proceedings
      6. the child is over the age of 18.
      7. the applicant is defending an application for a child maintenance order or increased
      maintenance, and the case is complex or urgent, or
      8. paternity is in dispute.

5.2 Assistance for child support - stage 2 matters

  1. For the purposes of this guideline 5.2, a child support matter is a stage 2 matter if it relates to:
    1. a child born on or after 1 October 1989
    2. a child born before 1 October 1989 whose parents separated after that date, or
    3. a child who has a full blood sibling born on or after 1 October 1989.
  2. The Commission may make a Grant of Legal Assistance for an application for a departure order under the child support legislation in a stage 2 matter if the services referred to in guidelines 5.1(2)(a) or (b) are unable to assist, and:
    1. the applicant seeks departure from a review decision made before 1 July 1992
    2. the applicant wishes to oppose an application for a departure order, or
    3. the applicant is not satisfied with the decision of an objections officer following a determination made by a senior case officer.
  3. The Grant of Legal Assistance should usually be limited to proceedings in State or Territory magistrates or local courts or the Federal Magistrates Court, unless such proceedings are unavailable.

5.3 Social Security Appeals Tribunal (SSAT) Review of child maintenance and child support decisions

The Commission may make a Grant of Legal Assistance for:

  1. An application under the child support legislation to the SSAT for review of a child support decision or child maintenance decision; or
  2. An application under the child support legislation to the AAT for review of a decision of the SSAT; or
  3. An appeal under the child support legislation to a Court on a question of law from a decision of the SSAT;

if the Commission considers that circumstances exist that affect the person's ability to adequately represent himself or herself.

5.4 Assistance for applicant children

The Commission may make a Grant of Legal Assistance for a stage 1 matter or a stage 2 matter to a child seeking maintenance, child support or a variation of child support or a child maintenance order if the Commission is satisfied that the child is the most appropriate person to seek the order.

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Guideline 6 Spousal maintenance

6.1 Assistance for applications for spousal maintenance

The Commission may make a Grant of Legal Assistance for a court application under the Family Law Act 1975 for an order for spousal maintenance or to increase spousal maintenance, if:

  1. the applicant for assistance cannot obtain the order by consent
  2. the other party's whereabouts are known, or substituted service is likely to be successful
  3. there is good reason to believe that the other party has the capacity, or is likely to have the capacity in the future, to pay spousal maintenance or increased maintenance (as the case may be), and
  4. the applicant for assistance cannot obtain appropriate legal assistance from another source.

6.2 Assistance to defend applications for spousal maintenance

The Commission may make a Grant of Legal Assistance to an applicant for assistance to defend a court application for spousal maintenance or for increased spousal maintenance, if:

  1. it is unlikely that the court will make an order for the amount sought by the party making the court application, and
  2. the applicant for assistance cannot adequately defend the court application without legal assistance.

6.3 Assistance for applications to reduce spousal maintenance

The Commission may make a Grant of Legal Assistance for a court application to reduce the amount payable under a spousal maintenance order if the applicant for assistance cannot adequately prepare the court application without legal assistance.

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Guideline 7 Arrears of spousal or child maintenance or child support

7.1 Assistance for proceedings for arrears of maintenance or child support

The Commission may make a Grant of Legal Assistance for court proceedings for payment of arrears of spousal or child maintenance or child support, if:

    1. the applicant for assistance cannot adequately prepare the court application or present the case to the court without legal assistance, and
    2. appropriate legal assistance cannot be obtained from another source, or
  2. the applicant for assistance is also seeking the resolution of another family law matter by the court.

Guideline 8 Paternity

8.1 Assistance for proceedings relating to paternity of a child

  1. The Commission may make a Grant of Legal Assistance to an applicant for assistance who is seeking or opposing a finding of paternity by the court, or seeking an order for parentage testing, if:
    1. the Commission's Child Support Unit or Service or some other appropriate service cannot assist
    2. either party denies that the male party is the child's father
    3. the male party's whereabouts are known, and
    4. in a case where a finding of paternity is sought for child maintenance or child support matters:
      1. the services referred to in guidelines 5.1(2)(a) or (b) of this Part 2 are unable to assist, and
      2. there is good reason to believe that the other party has the capacity to pay child maintenance or child support (as the case may be) for the child.
  2. If a male applicant for assistance denies he is the father of the relevant child, the Commission should not make a Grant of Legal Assistance unless the applicant gives the Commission adequate reasons to support the denial and agrees to submit to parentage testing.
  3. A Grant of Legal Assistance for parentage testing should only be made on the condition that the applicant for assistance seek an order from the court for the costs of the testing, unless the other party to the proceedings is also receiving legal assistance under a Grant of Legal Assistance.

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Guideline 9 Special medical procedures involving children

9.1 Assistance for parents

  1. The Commission should make a Grant of Legal Assistance to the parents of a child in any court proceedings relating to special medical procedures (including sterilisation) involving the child.
  2. An application for a Grant of Legal Assistance under this guideline 9 is not subject to the merits test.

Guideline 10 Recovery, location and information orders

10.1 Assistance for recovery, location and information orders

  1. The Commission may make a Grant of Legal Assistance for proceedings under the Family Law Act 1975 for a recovery, location and/or information order relating to the location and/or recovery of a child.
  2. A Grant of Legal Assistance under this guideline 10:
    1. should usually be limited to $2,000, and
    2. should only be made on the condition that the applicant for assistance seek a costs order against the respondent to the court application, unless that party is also receiving legal assistance under a Grant of Legal Assistance.
  3. The Commission should treat proceedings for a recovery, location and/or information order relating to the location and/or recovery of a child as a new matter for the purposes of the Family Law Costs Management Methodology.

Guideline 11 Dissolution (divorce) and nullity of marriage

11.1 Assistance for dissolution or nullity of marriage

The Commission may make a Grant of Legal Assistance to an applicant for assistance for a court application relating to the dissolution or nullity of the person's marriage if:

  1. the court application is imperative

    Example
    An application may be imperative if the dissolution or nullity would end continued
    harassment or ill-treatment of the applicant.

  2. the applicant for assistance suffers particular hardship, or

    Example
    An applicant may suffer particular hardship if it would be unreasonable to expect the applicant to adequately represent himself or herself due to special circumstances of a kind listed in the Commonwealth Legal Aid Priorities.

    Note Special circumstances are set out in the Commonwealth Legal Aid Priorities - click here.

  3. certain aspects of the court application have a complexity warranting legal assistance, and because of this complexity it would not be reasonable to expect the applicant for assistance to conduct the proceedings.

    Example
    The following types of cases may warrant a Grant of Legal Assistance:
    difficulties in proving the marriage
    a need to obtain recognition of an overseas dissolution
    a need for substituted service, or
    a need to dispense with service of the application.

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Guideline 12 Property

12.1 Assistance for certain property settlement disputes

  1. The Commission may make a Grant of Legal Assistance for the resolution of a matrimonial property dispute only if:
    1. the Commission is satisfied from the material provided to it that the separation of the parties is final, and

      Note Final separation of the parties is normally demonstrated by the parties being separated for at least 6 months.

    2. the dispute relates to:
      1. the matrimonial home
      2. the preservation of matrimonial property, and/or
      3. funds from which the applicant for assistance may receive only a deferred benefit, such as superannuation benefits.
  2. A Grant of Legal Assistance under this guideline 12 should usually be limited to proceedings in State or Territory magistrates or local courts or the Federal Magistrates Court.

12.2 Limitations on assistance for matrimonial home dispute

  1. For a dispute relating to the matrimonial home, a Grant of Legal Assistance may only be made to an applicant for assistance if:
    1. at the time of making the application, a one-half share of the equity in the matrimonial home does not exceed:
      1. $200,000, or

        Note This means that, irrespective of which of the parties to the marriage is the registered owner of the matrimonial home or how the property is held, if 50% of the equity in the home is less than $200,000, the applicant for assistance may be granted legal assistance.

      2. another amount agreed between the Commonwealth and the
      3. Commission for the purposes of this guideline 12.2, and
      1. the applicant for assistance is also seeking the resolution of another related family law matter by the court, or
      2. the Commission decides that it is appropriate to make a Grant of Legal Assistance to the applicant for assistance because of his or her personal circumstances.

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Guideline 13 Consent orders

13.1 Assistance for consent orders

The Commission may make a Grant of Legal Assistance for the preparation and filing of consent orders in any family law matter if:

  1. all of the parties involved in the matter agree on arrangements
  2. the Commission considers that formal court orders are necessary, and
  3. the applicant/s for assistance cannot obtain appropriate legal assistance from any other source.

Guideline 14 Assistance after final court orders

14.1 Assistance not available

A Grant of Legal Assistance is not available for any action undertaken after final orders in relation to a family law or child support matter have been made, except for the following types of matters under this Part 2:

  1. applications to discharge or vary parenting orders or registered parenting plans in accordance with guideline 4.2
  2. applications for recovery, location and/or information orders in accordance with guideline 10
  3. appeals in accordance with guideline 15, and
  4. enforcement of orders in accordance with guideline 16.

Guideline 15 Appeals

15.1 Assistance for appeals

  1. The Commission may make a Grant of Legal Assistance for an appeal in relation to a family law or child support order, including for the participation of a child's representative in an appeal, only if the matter is eligible for assistance under another guideline in this Part 2.
  2. The Commission must take the provisions of the Federal Proceedings (Costs) Act 1981 into account before making a Grant of Legal Assistance under this guideline 15.
  3. The Commission should treat an appeal as a new matter for the purposes of the Family Law Costs Management Methodology.

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Guideline 16 Enforcement of court orders

16.1 Assistance for enforcement proceedings

  1. The Commission may make a Grant of Legal Assistance for court proceedings to enforce a final or interim court order relating to a family law or child support matter.
  2. A Grant of Legal Assistance under this guideline 16:
    1. should usually be limited to $2,000, and
    2. should only be made on the condition that the applicant for assistance seek a costs order against the respondent to the court application, unless that party is also receiving legal assistance under a Grant of Legal Assistance.
  3. The Commission should treat enforcement proceedings as a new matter for the purposes of the Family Law Costs Management Methodology.

Guideline 17 Contempt of court and breach of court orders

17.1 Assistance for contempt of court or contravention of court orders

The Commission may make a Grant of Legal Assistance to an applicant for assistance in relation to a family law or child support matter, to be dealt with for:

  1. contempt of court, or
  2. contravention of an order of the court. Where the applicant is a respondent to court proceedings, in determining whether to grant assistance, the Commission should have regard to the severity of any penalty to which the person is likely to be subject.

Guideline 18 International child abduction matters

18.1 Assistance in relation to international child abduction matters

  1. The Commission may make a Grant of Legal Assistance to an applicant for assistance to:
    1. defend an application to the court under the Hague Convention on the Civil Aspects of International Child Abduction (the Convention) for:
      1. the return of a child who has been removed from a convention country to, or retained in, Australia, or
      2. access to a child who is living in Australia
    2. make an application to the court under the Family Law (Child Abduction

      Convention) Regulations 1986 for a declaration that the removal of a child from Australia to a convention country, or the retention of a child in a convention country, is wrongful within the meaning of the Convention

    3. make an application to the court under a bilateral agreement in relation to a
    4. child who has been wrongfully removed to Australia.
  2. A Grant of Legal Assistance is not available to an applicant for assistance to intervene in proceedings relating to the return of a child under the Convention.

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Guideline 19 Family law costs management

19.1 General

  1. In this guideline 19:

    a family law or child support matter includes any dispute that involves the same parties about the same or substantially the same issue, if there has not been a material change in circumstances or if any such change would not materially affect existing orders costs cap means the costs limitations on a Grant of Legal Assistance as set out in guidelines 10, 16 and 19.2 of this Part 2, and costs of a matter means the total costs paid by the Commission in a family law or child support matter in which a Grant of Legal Assistance has been made (taking into account the costs paid by any other legal aid commission, if the matter has been transferred from one or more of the States or Territories), including counsels' fees, fees for expert reports and other disbursements (except interpreter and translator fees, rural travel and accommodation costs), less any Contributions collected by the Commission from the Legally Assisted Person and any Costs Recovered by the Commission.

  2. The costs management principles in this guideline 19 apply to all Grants of Legal Assistance made by the Commission for family law matters.

19.2 Limit on costs

  1. Under a Grant of Legal Assistance, payment of the costs of a matter under the Commission's usual fee scales for a family law or child support matter (other than proceedings to enforce court orders) that is commenced after 1 July 1998, regardless of whether legal assistance in the matter is provided in-house by the Commission or by an External Service Provider, is limited to:
    1. party professional costs of $12,000, and
    2. child representative's costs of $18,000.

      Note 1 For limits to assistance for costs of proceedings to enforce court orders, see guideline 16 of this Part 2.

      Note 2 The amounts mentioned in guideline 19.2(1)(a) and (b) are exclusive of GST.

  2. This guideline 19.2 does not apply to payment of the costs of a matter where the matter is:
    1. managed under the Family Court's Magellan Project, and
    2. for which the Grant of Legal Assistance is made on or before 30 June 2005.

19.3 If costs likely to exceed limit

  1. Subject to guideline 19.3(2), (3) and (4), the Commission may increase the costs cap for a particular Grant of Legal Assistance if, in its opinion, undue hardship would otherwise be caused to an applicant for assistance or to a child who is the subject of an order for separate representation, having regard to the following factors:
    1. whether the applicant for assistance has incurred significant additional costs due to special circumstances of a kind listed in the Commonwealth Legal Aid Priorities
    2. whether it would be unreasonable to expect the applicant for assistance to adequately represent himself or herself due to special circumstances of a kind list listed in the Commonwealth Legal Aid Priorities
    3. whether the costs of the applicant for assistance have increased significantly through no fault of the applicant
    4. the number and complexity of issues in dispute
    5. the likelihood of risk to a child's safety or welfare, and
    6. whether the applicant for assistance is a child representative.
  2. Before making a decision under guideline 19.3(1), the Commission must have considered whether it is possible to contain costs by:
    1. providing legal assistance for the matter in-house, or
    2. considering whether alternative means of funding are appropriate, including negotiating a fee package that is not in accordance with the Commission's usual fee scales with an External Service Provider.
  3. Any decision made by the Commission under guideline 19.3(1) to increase the costs cap for a particular Grant of Legal Assistance should be subject to strict limits on costs, and the nature and extent of the additional cost should be determined by the Commission or agreed between the Commission and the External Service Provider (as appropriate) having regard to the following factors:
    1. advice from the court and the parties about the estimated length of time required for the hearing of the matter
    2. the number and nature of witnesses who must be called or cross-examined, and
    3. whether the other parties to the matter have legal representation.

19.4 Commission must provide quarterly reports

The South Australia Liaison Officer must provide a quarterly report to the Commonwealth Liaison Officer in relation to cases in which the costs cap is increased under this guideline 19.

19.5 Family Law Costs Management Methodology

The Commission will manage the costs of a matter under a Grant of Legal Assistance made under this Part 2 in accordance with the Family Law Costs Management Methodology.

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Part 3 Criminal law guidelines

Note For the criminal law priorities in the Commonwealth Legal Aid Priorities, click here.

Guideline 1 General

1.1 Assistance where accused has restrained property

  1. Where the applicant for assistance is seeking a Grant of Legal Assistance to defend a criminal charge that is covered under the guidelines in this Part 3 and the applicant has property that is covered by a restraining order under the Proceeds of Crime Act 2002, the costs of providing legal assistance under a Grant will be reimbursed to the Commission in accordance with sections 292 and 293 of the Act.
  2. For the purposes of this Part 3, in assessing an applicant's eligibility under the means test, any of the applicant's assets that are covered by a restraining order or confiscation order under the Proceeds of Crime Act 2002 are to be disregarded.

1.2 Assistance for illegal fishing or people smuggling offences

Where the applicant for assistance is seeking a Grant of Legal Assistance for assistance with an illegal fishing offence under:

  1. Division 5 of Part 6 of the Fisheries Management Act 1991, or
  2. Part VI of the Torres Strait Fisheries Act 1984, other than an offence committed by a traditional inhabitant in the course of community fishing or traditional fishing, or
  3. a people smuggling offence under Subdivision A of Division 12 of Part 2 of the Migration Act 1958, or
  4. an offence ancillary to such illegal fishing or people smuggling offence due to the operation of Part 2.4 of the Criminal Code Act 1995 (Cth), the Commission may only make a Grant if:
    1. the Commission considers that if the Grant is not made a court may stay the prosecution in accordance with the High Court's decision in Dietrich's case or such a stay has been ordered by a court, and/or
    2. the Commission considers that the 'interests of justice' requirement under Article 14(3) of the International Covenant on Civil and Political Rights would require that assistance be granted to the applicant.

      Note 'Traditional inhabitant', 'traditional fishing' and 'community fishing' are defined terms in the Torres Strait Fisheries Act 1984.

      The 'interests of justice' will be determined based on the circumstances of each case.

      Examples of 'interests of justice' considerations include:

      1. whether assistance is indispensable for effective access to the court
      2. the need to develop appropriate arguments on complicated legal issues or the complexity of the procedure
      3. the seriousness of the consequences, and
      4. the capacity of the unrepresented defendant to present a legal argument, including the defendant's language abilities.

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Guideline 2 Summary criminal prosecutions

2.1 Assistance for trials in magistrates or local courts

The Commission may make a Grant of Legal Assistance for a criminal law trial in a State or Territory magistrates or local court if the applicant for assistance has a reasonable prospect of acquittal, and:

  1. conviction would be likely to have a significantly detrimental effect on the applicant's livelihood or employment (current or prospective)
  2. it would be unreasonable to expect the applicant to adequately represent himself or herself due to special circumstances of a kind listed in the Commonwealth Legal Aid Priorities
  3. conviction would be likely to result in the applicant receiving a term of imprisonment, including a suspended term, or
  4. the applicant is a child.

2.2 Assistance for guilty pleas

The Commission may make a Grant of Legal Assistance for a plea of guilty in a criminal law matter if, because of the complexity of the matter or any other aggravating circumstance, the Commission determines that the matter should not be dealt with by a Duty Lawyer Service.

Example
An aggravating circumstance may be:
a likelihood that a lengthy term of imprisonment may be imposed
a disability or disadvantage of the applicant, such as a language difficulty.

Guideline 3 Committal proceedings

3.1 Assistance for committal proceedings

  1. The Commission may make a Grant of Legal Assistance for committal proceedings if:
    1. the proceedings are likely to contribute to reducing the duration and cost of any subsequent proceedings, or
    2. it would be unreasonable to expect the applicant for assistance to adequately represent himself or herself due to special circumstances of a kind listed in the Commonwealth Legal Aid Priorities.
  2. A Grant of Legal Assistance under this guideline 3 may be made for:
    1. preparing for, or appearing at, a pre-hearing conference or committal hearing
    2. identifying issues not in dispute between the parties, or
    3. resolving issues in negotiation with the Commonwealth Director of Public Prosecutions.

      Note The aim of this guideline is to ensure that all material issues are identified as early as possible to reduce the duration and cost of subsequent court proceedings. The fact that the committal hearing may result in the Prosecution having to disclose material aspects of its case is not intended to advantage the applicant for assistance over the Prosecution.

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Guideline 4 Superior court criminal prosecutions

4.1 Assistance for superior court criminal proceedings

The Commission may make a Grant of Legal Assistance for superior court criminal proceedings for:

  1. assistance for a plea of guilty
  2. assistance to present a specific defence argument, or
  3. any other form of assistance that the Commission considers appropriate in the circumstances.

4.2 Assistance for charges on indictment

The Commission may only make a Grant of Legal Assistance for the hearing of charges on indictment where:

  1. the applicant for assistance's charges are being heard on indictment, at the election of the applicant, and
  2. the charges would normally be heard summarily if the Commission is satisfied, on the information it has been given, that there are compelling reasons as to why the charges will be heard on indictment.

Guideline 5 Children's court proceedings

5.1 Assistance for proceedings in children's courts

The Commission may make a Grant of Legal Assistance for criminal law matters in a children's court.

Guideline 6 Bail applications

6.1 Assistance for bail applications

  1. The Commission may make a Grant of Legal Assistance for bail applications in relation to criminal law matters only if:
    1. bail is opposed by the Prosecution and, on the information provided, it is likely that bail will be granted by the court, or
    2. the applicant for assistance seeks to respond to a court application for revocation of bail.
  2. This guideline 6 applies to bail applications regardless of whether a Grant of Legal Assistance is made:
    1. as part of a Grant of Legal Assistance for the matter generally, or
    2. independently of a Grant of Legal Assistance for other elements of the matter but does not apply to matters handled by the Duty Lawyer Service.

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Guideline 7 Criminal law matters involving both Commonwealth

and State or Territory law

7.1 Matters involving Commonwealth and State or Territory law

  1. The Commission may make a Grant of Legal Assistance to an applicant for assistance who has been charged with breaches of both Commonwealth and State or Territory criminal laws.
  2. However, for such Grants of Legal Assistance:
    1. Commonwealth Legal Aid Monies must be used if, in the nature of the charges and the course of the hearing, the matter is essentially a Commonwealth criminal law matter
    2. State or Territory funds must be used if, in the nature of the charges and the course of the hearing, the matter is essentially a State or Territory criminal law matter, and
    3. if there is a substantial mix of Commonwealth and State or Territory criminal law charges, Commonwealth and State or Territory funds must be used proportionately, as determined by the Commission.
  3. For guideline 7.1(2)(a), a matter that is prosecuted by the Commonwealth Director of Public Prosecutions is taken to be essentially Commonwealth.

Guideline 8 Applications arising from the decision in Dietrich's Case

8.1 Assistance for applications based on decision in Dietrich's Case

  1. The Commission should not normally make a Grant of Legal Assistance to an applicant for assistance who is an accused person to conduct an application seeking, on the basis of the High Court's decision in Dietrich's case, an adjournment or stay of the case against the applicant until legal representation is available.
  2. The Commission should not make a Grant of Legal Assistance for proceedings under section 360A of the Crimes Act 1958 (Vic).

Guideline 9 National security matters

9.1 Requirement for security clearance

  1. Subject to guideline 9.1(2), the Commission may only make a Grant of Legal Assistance for a matter relating to Australia's national security, if the representatives hold, or obtain before the Grant is made, security clearances at the appropriate level.
  2. If an applicant for assistance's representatives do not hold security clearances at the appropriate level when the application for a Grant of Legal Assistance is made, assistance may be provided under this guideline 9 only if:
    1. the matter is an urgent matter
    2. access to information relating to national security is not required for the proper conduct of the applicant's case, and
    3. lack of representation may seriously prejudice the applicant's interests.

      Example
      The applicant would be unrepresented in making a bail application, or the court might stay the matter until representation could be arranged.

  3. The Commonwealth Minister, or his or her delegate, may determine at the request of the Commonwealth or the Commission and for the purposes of this guideline 9 whether a matter is or is not a matter relating to Australia's national security.

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Guideline 10 Appeals

10.1 Appeals against criminal conviction or sentence

The Commission may make a Grant of Legal Assistance to an applicant for assistance to appeal against a court conviction or sentence in a criminal law matter if the matter is eligible for assistance under another guideline in this Part 3, and:

  1. there is a strong likelihood that the appeal will result in the applicant's conviction being quashed or sentence materially reduced, or
  2. the Commission determines that the appeal involves an important or complex question of law.

10.2 Response to Crown appeals

  1. The Commission may make a Grant of Legal Assistance to respond to a Crown appeal, Crown reference or case stated.
  2. The Commission may make a Grant of Legal Assistance under this guideline 10.2 without regard to the merits test.

Guideline 11 Criminal law costs management

11.1 Funding where costs exceed $40,000

  1. If the costs to the Commission of a Grant of Legal Assistance for any one criminal law trial are likely to exceed $40,000, the Commission must consider whether it is possible to contain costs by:
    1. providing legal assistance for the matter in-house, or
    2. determining whether any alternative means of funding, which are subject to strict limits in order to contain costs, are appropriate, including funding that may not be in accordance with the Commission's usual fee scales.

      Example
      The Commission may try to negotiate a fee package for a matter that is settled in advance with a legal practitioner who is an External Service Provider.

  2. If the Commission does not consider it can fund a criminal law trial without significantly impacting on its ability to provide assistance in other Commonwealth Law Matters in accordance with the Agreement, it may make an application to the Commonwealth Criminal Law - Expensive Cases Fund.

11.2 Commission must provide quarterly reports

The South Australia Liaison Officer must provide a quarterly report to the Commonwealth Liaison Officer in relation to criminal law matters in which the Grant of Legal Assistance exceeds $40,000, though the Commission need not supply names or other information that might identify the applicants.

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Guideline 12 Commonwealth Criminal Law - Expensive Cases Fund

12.1 Purpose of Fund

The Commonwealth Criminal Law - Expensive Cases Fund (the Fund) has been established to assist Commissions to cater for high, one-off costs associated with providing assistance for a particular criminal law matter.

12.2 Administration of Fund

  1. The Fund is administered by the Attorney-General's Department and the allocation of funds from the Fund is at the discretion of the Department.
  2. In determining an application for an allocation from the Fund, the Attorney- General's Department must have regard to:
    1. the circumstances of the application
    2. the likely impact that approval of the application will have on the resources of the Fund, and
    3. other applications to the Fund.

12.3 Application for funds

  1. An application to the Attorney-General's Department for an allocation from the Fund may only be made by the Commission.
  2. A separate application must be made to the Attorney-General's Department for each criminal law matter for which an allocation from the Fund is sought by the Commission.
  3. Cases for which an application may be made include:
    1. cases where a potential stay of a Crown criminal prosecution may be granted in accordance with the High Court's decision in Dietrich's case
    2. criminal conspiracy cases
    3. criminal cases arising under the Corporations Act 2001
    4. drug importation cases, or
    5. a class of criminal cases that are similar in nature to each other.

      Note Guidelines 12.3(3)(a) to (d) are examples, and not an exhaustive list, of the types of matters that the Commonwealth is prepared to consider for applications for allocations from the Fund.

  4. An application may be made before commencement of criminal law proceedings, or at any time during proceedings.
  5. The Commission must include sufficient information in an application to satisfy the Attorney-General's Department that:
    1. the likely cost of the case is high, and is likely to significantly affect the capacity of the Commission to provide assistance for other Commonwealth Legal Aid Priorities
    2. in estimating the likely cost of the case, the Commission consulted with the Commonwealth Director of Public Prosecutions about the likely direction of the trial
    3. the Commission has taken or will take all necessary steps to manage the case in accordance with guideline 11 of this Part 3
    4. the Commission has made a reasonable estimate of likely expenditure on the case for the relevant Financial Year
    5. there is potential for a court to grant a stay of the matter in accordance with

      Dietrich's case if funds are not allocated from the Fund for the case

    6. the Commission does not hold Commonwealth Legal Aid Monies in excess of the Allowed Surplus which are available to fund the matter, and
    7. before the date of the Commission's application, the Commission has been managing its funding in accordance with the Agreement.

12.4 Terms and conditions of allocations from the Fund

An allocation from the Fund may be made on any terms and conditions that the Attorney-General's Department considers appropriate, including that:

  1. the Commission must provide the Commonwealth with the following reports:
    1. at the end of each Financial Year, a report of the expenditure of funds allocated to the Commission from the Fund, and
    2. at the completion of each matter for which funds have been allocated to the Commission from the Fund, a report of the expenditure of those funds, and
  2. on the completion of a matter, any funds allocated from the Fund to the Commission for a particular matter but not spent on providing legal assistance for that matter must be returned to the Commonwealth, unless otherwise directed in writing by the Commonwealth.

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Part 4 Civil law guidelines

Note For the civil law priorities in the Commonwealth Legal Aid Priorities, click here.

Guideline 1 General

1.1 Limited initial assistance

The Commission may make a limited Grant of Legal Assistance to an applicant for assistance in a civil law matter for:

  1. an investigation into and report on the merits of a case, or
  2. the mediation of a dispute.

1.2 Assistance for damages actions

Where a civil law action may result in the applicant for assistance receiving an award of damages or property, the Commission may make a Grant of Legal Assistance if the Commission is satisfied from the material provided to it that:

  1. the applicant is likely to receive damages or property if the action is successful
  2. the action could not reasonably be expected to be conducted under a conditional costs agreement or similar arrangement with a private legal practitioner, and
  3. the applicant for assistance cannot obtain appropriate legal assistance from another source.

Guideline 2 Social security and other Commonwealth benefits

2.1 Representation at Administrative Appeals Tribunal

Subject to guideline 2.2, the Commission may make a Grant of Legal Assistance to an applicant for assistance for representation at the Administrative Appeals Tribunal if:

  1. it is considered that the applicant may incriminate himself or herself
  2. the case is complicated
  3. it would be unreasonable to expect the applicant for assistance to adequately represent himself or herself due to special circumstances of a kind listed in the Commonwealth Legal Aid Priorities, or

    Note Special circumstances are set out in subclause paragraph 6.7.2 of the Agreement.

  4. the Commission determines that the appeal involves an important or complex question of law.

2.2 Appeals to Administrative Appeals Tribunal

The Commission may make a Grant of Legal Assistance to an applicant for assistance to obtain instructions and necessary reports and prepare submissions for an appeal to the Administrative Appeals Tribunal, if:

  1. the appeal may result in the applicant being charged with a criminal offence
  2. the applicant cannot afford to pay for medical reports, and the appeal is about the health of the applicant or someone for whom the applicant has parental or legal responsibility
  3. it would be unreasonable to expect the applicant for assistance to adequately represent himself or herself due to special circumstances of a kind listed in the Commonwealth Legal Aid Priorities, or
  4. the Commission determines that the appeal involves important or complex questions of law.

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Guideline 3 Migration cases

3.1 Assistance for limited migration matters

  1. The Commission may make a Grant of Legal Assistance for proceedings in the Federal Court, Federal Magistrates Court or High Court dealing with a migration matter, including a refugee matter, only if:
    1. there are differences of judicial opinion that:
      1. have not been settled by the Full Court of the Federal Court or the High Court, and
      2. relate to an issue in dispute in the matter, or
    2. the proceedings seek to challenge the lawfulness of detention.

      Note Guideline 3.1(1)(b) does not include a challenge to a decision about a visa or a deportation order.

  2. Guideline 3.1(1) applies to a matter, even if the matter could also be characterised as falling within another Commonwealth Legal Aid Priority or guideline in these Commonwealth Legal Aid Guidelines.
  3. In all other cases, applicants should be referred to the Immigration Advice and Application Assistance Scheme (IAAAS) for possible assistance.

Guideline 4 Equal opportunity and discrimination cases

4.1 Assistance for certain matters if substantial benefit

Subject to guideline 1.2 in this Part 4, the Commission may make a Grant of Legal Assistance for an equal opportunity or discrimination case if there is a strong prospect of substantial benefit being gained by the applicant for assistance and also by the public or a section of the public in relation to the matter.

Guideline 5 War veterans' matters

5.1 Purpose

  1. To acknowledge the special contribution made by war veterans to protecting Australian society in time of war, the Commission may make a Grant of Legal Assistance to an applicant for assistance who is a war veteran or a dependent of a war veteran in relation to:
    1. appeals from decisions of the Veterans' Review Board about war-caused disability pension entitlement or assessment claims under Part II of the

      Veterans' Entitlements Act 1986, and

    2. appeals from decisions of the Veterans' Review Board about claims under the Military Rehabilitation and Compensation Act 2004 that relate to warlike or non-warlike service, in regard to:
      1. acceptance of liability (Chapter 2),
      2. rehabilitation programs (Chapter 3, Part 2),
      3. permanent impairment (Chapter 4, Part 2),
      4. incapacity payments for former members (Chapter 4, Part 4),
      5. special rate disability pension (Chapter 4, Part 6), and/or
      6. dependants' benefits (Chapter 5).
  2. An application for a Grant of Legal Assistance under this guideline 5.1 is not subject to:
    1. the means test, or
    2. the applicant for assistance making any contribution to the cost of his or her legal assistance provided by the Commission in relation to the matter, other than to the extent of any costs recovered from the respondent in the matter.

5.2 Assistance for complex matters

  1. The Commission may determine the most appropriate Grant of Legal Assistance to make in a war veterans' matter that it determines to be a complex matter.
  2. The Commission may determine that a matter is complex at any time.
  3. In determining whether a matter is complex, the Commission may have regard to:
    1. whether several conditions are being claimed, and reports are required from 3 or more areas of medical expertise
    2. whether there is a complex link between statements of principle and the condition claimed, and
    3. whether the matter involves unresolved questions of law.
  4. In making its determination, the Commission may consult:
    1. the applicant for assistance
    2. the national office of the Department of Veterans' Affairs, and
    3. the Administrative Appeals Tribunal.

5.3 Assistance for non-complex matters

  1. The Commission may make a Grant of Legal Assistance in a war veterans' matter that it determines to be a non-complex matter only in the following stages:
    1. stage 1 - funding for costs and disbursements in relation to:
      1. a maximum of 10 hours work up to and including the second preliminary conference (including all attempts to settle the matter), and
      2. up to 2 medical reports, if necessary, and
    2. stage 2 - funding for costs and disbursements in relation to:
      1. a maximum of 12 hours work for the hearing (including all preparation and either the costs of a solicitor or the fees of a barrister for appearing at the hearing), and
      2. witness expenses, if applicable.
  2. The total amount of funding that may be made available for disbursements for a non-complex matter is $2,500.
  3. Funding at each stage is subject to compliance with the Commonwealth's Checklist for Administration of War Veterans' Matters and the Administrative Appeals Tribunal's General Practice Direction.

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Guideline 6 Other Federal and High Court proceedings

6.1 Assistance for certain matters if substantial benefit

Subject to the other guidelines in this Part 4, the Commission may make a Grant of Legal Assistance for any of the following types of matters if there is a strong prospect of substantial benefit being gained by the applicant for assistance in relation to the matter:

  1. appeals from decisions of the Administrative Appeals Tribunal
  2. initiating proceedings in the Federal Court, the Federal Magistrates Court or the High Court, and
  3. appeals in the Full Court of the Federal Court or the High Court.

Guideline 7 Proceeds of crime

7.1 Proceedings under the Proceeds of Crime Act 1987

The Commission may not make a Grant of Legal Assistance to an applicant for assistance in relation to proceedings under the Proceeds of Crime Act 1987.

7.2 Proceedings under the Proceeds of Crime Act 2002

  1. The Commission may make a Grant of Legal Assistance to an applicant for assistance in relation to proceedings under the Proceeds of Crime Act 2002 if the applicant has property that is covered by a restraining order under the Act, or is likely to be covered by such an order.
  2. In assessing an applicant's eligibility under the means test for the purpose of determining an application for a Grant of Legal Assistance under this guideline 7.2, the Commission must disregard any property of the applicant that is subject to a restraining order or confiscation order under the Proceeds of Crime Act

    2002, or is likely to be covered by such an order.

  3. In assessing an applicant's eligibility under the merits test for the purpose of determining an application for a Grant of Legal Assistance under this guideline 7.2, the Commission should disregard the 'appropriateness of spending limited public legal aid funds' test.
  4. The costs of providing legal assistance to an applicant for assistance under a Grant of Legal Assistance will be reimbursed to the Commission in accordance with sections 292 and 293 of the Proceeds of Crime Act 2002.
  5. The Commission must ensure that the costs claimed by it in accordance with guideline 7.2(4) are fair and reasonable, and in accordance with the Commission's usual fee scales for civil law matters.

Guideline 8 Extradition proceedings

8.1 Assistance for certain extradition proceedings

The Commission may make a Grant of Legal Assistance to an applicant for assistance in relation to the following types of proceedings under the Extradition Act 1988:

  1. extradition proceedings under section 19, and
  2. an appeal under section 21 in relation to a section 19 order.

Guideline 9 Appeals

9.1 Assistance for appeals

Subject to the other guidelines in this Part 4, the Commission may make a Grant of Legal Assistance for an appeal of a court decision in a civil law matter.

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