Due to funding constraints, some limitations are placed on the granting of legal aid. We do not grant legal aid for all legal problems; for example, we cannot fund commercial or business matters.
In criminal matters there must be a likelihood of a gaol sentence. Family matters (other than an emergency) must involve a genuine dispute over children that is not resolvable by negotiation or counselling. For other cases more than $6000 must be at stake. Civil disputes up to $6000 can be heard in the minor civil actions jurisdiction of the Magistrates Court where no legal representation is required. The Commission will provide free advice to assist with minor civil matters.
The Assignments Section of the Commission is responsible for assessing each application received for legal aid. It uses three broad criteria to assess an application for assistance. In addition to the means test, an application for assistance is also assessed as to its merits and also as to whether it is within the Commission's guidelines. The application must satisfy all three criteria before legal aid can be granted.
The means test determines how much a person with any given income and assets can afford to pay for necessary legal services. The income and assets of any financially associated person are treated as if they were the income and assets of the applicant unless they are in legal conflict. A financially associated person is any person or company whom the applicant could reasonably be expected to receive money from or give money to, for example, a spouse.
The Commission must be satisfied that the legal matter involved is an appropriate expenditure of public legal aid funds. Where the matter has no reasonable prospects of success, legal aid is refused. In serious criminal matters, the existence of a "reasonably arguable" defence may suffice.
The Commission's aim is to put applicants into an equal but not better position than private individuals who, of course, risk their own funds. If it is considered reasonable for a solicitor in private practice to act in expectation of costs being recovered in due course from settlement funds, then legal aid is refused.
The Commission has set guidelines regarding the type of work it will handle. Legal aid is normally not provided for the following:
Divorce. A divorce application kit is available from the Family Court Registry free of charge or from http://www.familylawcourts.gov.au/. Help in completing the forms is available through the Commission's offices. In circumstances where a do-your-own divorce is not appropriate, such as where the applicant has language difficulties or if the divorce is particularly complex, then legal aid may be available.
Family property settlements, unless there are special circumstances.
Traffic offences, including drink driving, unless there is a real risk of imprisonment or the applicant has special circumstances that justify assistance.
Probate or claims on deceased estates
Complaints against lawyers. These should initially be referred to the Legal Practitioner's Conduct Board for investigation. Legal assistance may be subsequently granted where the available evidence justifies legal proceedings.
Complaints against Police. These should initially be referred to the Police Ombudsman for investigation. Legal assistance may subsequently be granted where the available evidence justifies legal proceedings.
Neighbour and Fencing Disputes
Bankruptcy Act matters
Applying for or defending Intervention Orders. However, legal aid may be available to clients charged with a breach of an Intervention Order. The Police can assist clients to apply for an order. The Legal Services Commission has a Domestic Violence Worker available to assist persons where domestic violence is a factor.
Unfair Dismissal applications
Minor Civil Claims matters which fall within the civil jurisdiction of the Magistrates Court. Advice on claim procedures is available through the Advice and Community Education Section.
Minor criminal matters and minor drug offences - either where there is no penalty of imprisonment provided by the legislation, or there is no real risk of imprisonment being imposed.
Victims of Crime Compensation proceedings except where exceptional circumstances exist. Private lawyers will handle these cases and claim their fees from the Victims of Crime Fund.
Commercial matters and disputes arising out of businesses such as commercial leases, liquidations, shares, purchase of businesses, or disputes arising out of commercial activities.
Matters where private lawyers are prepared to act where costs will be able to be recovered from the settlement in due course, such as family property settlements or personal injury matters.
The specific guidelines can be waived in cases involving special or exceptional circumstances. These can include undue hardship, financial or otherwise, to the applicant if legal assistance were not provided, or emergency situations in which the liberty, livelihood, possessions or physical and mental well being of the applicant and any dependants are threatened.
Where a case is identified to be an "expensive case", no aid or extension of existing aid beyond the level of the funding cap will be granted. In criminal cases, an "expensive case" is in excess of $60,000 or $120,000 where more than one party is receiving legal aid. Similarly, in family law cases, an "expensive case" is in excess of $12,000 for either the husband or wife and $18,000 for the child's representative (for matters commenced after 4 April 2005).