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Legal Aid Review Committee (Mr R. F. Turner) - Report (First)


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THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

1974— Parliamentary Paper N o. 54

REPORT OF THE LEGAL AID REVIEW COMMITTEE

FEBRUARY 1974

Presented by Command 3 A pril

Ordered to be printed 10 A pril

THE GOVERNMENT PRINTER O F AUSTRALIA CANBERRA: 1974

187 Macquarie Street, Sydney N.S.W. 2000

8 February, 1974.

Dear Minister,

I have the honour to submit to you the First Report of the Legal Aid Review Committee, which includes an outline of legal aid available in Australia from various sources, including the Australian Government, State Governments and Law Societies.

Yours sincerely.

(Roy F. Turner) CHAIRMAN

The Honourable Senator Lionel Murphy, Q.C.,M.P., Attorney-General of Australia, Parliament House, CANBERRA, A.C.T.

LEG A L A ID R E V IE W C O M M IT T E E

CHAIRMAN Mr Roy F. Turner

COMMITTEE Ms E.J. Cooke

Mr J.P. Harkins

Mr J.A. Heffernan

Mr W.A. Lalor

Mr E.P. Mullighan

SECRETARY Mr A .G .T ow ill

ASSISTING THE SECRETARY Mr J.C. White

Speech by

SENATOR THE HON. L.K. MURPHY, Q.C.

A ttorney-General and Minister for Customs and Excise

on

LEG AL A ID

Ministerial Statement

[From the 'Parliamentary Debates', 13 December 1973]

On 25 July 1973 I announced a major step in the provision of legal aid services to persons in need, particularly disadvantaged persons. This was the establishment of a salar­ ied legal service called the Australian Legal Aid Office that w ill have offices throughout Australia. It w ill provide legal advice and assistance on all matters of Federal law, includ­

ing the Matrimonial Causes A ct, to everyone in need; and on matters of both Federal and State law, to persons for whom the Australian Government has a special responsibility,for example; pensioners, aborigines, ex-servicemen and newcomers to Australia. The offices will provide a referral service in other cases.

Another step that I announced at the same time was the appointment of a widely representative committee to examine all aspects of legal aid in Australia. Honourable senators w ill recall that earlier in the year — on 30 A pril 1973 — I announced Government approval of a grant of $2m to the States on a per capita basis to supplement their existing

legal aid schemes. This was an interim grant for this financial year, designed to effect a quick improvement in the availability of legal aid. This would not, of itself, ensure the provision of aid in all areas that might be desired. Apart from this, the Minister for Abor­ iginal Affairs (Senator Cavanagh) had introduced an Aboriginal legal aid scheme designed to make special provision fo r aid for Aboriginals through non-government aboriginal

legal services in the States and Territories. There w ill be co-operation between the Aust­ ralian Legal Aid Office and the Aboriginal Legal Services. A special scheme for the provis­ ion of legal aid in cases raising environmental or conservation issues is being developed in

conjunction w ith the Minister fo r Environment and Conservation (Dr Cass). A grant of aid has been made to the Tasmanian Conservation Trust in the Precipitous B luff case in Tasmania.

The Government has taken action because it believes that one of the basic causes of the inequality of citizens before the law is the absence of adequate and comprehensive legal aid arrangements throughout Australia. This is a problem that w ill be w ithin the knowledge of every honourable senator who w ill on many occasions have had to inform

citizens seeking assistance w ith their legal problems that there is nothing that he can do for them; that they w ill need to go and see a private solicitor. With some exception, we in Australia have been slow to respond to the need of the ordinary citizen for ready and equal assistance when confronted w ith a legal problem or court proceedings. The u lti­

mate object of the Government is that legal aid be readily and equally available to citizens everywhere in Australia and that aid be extended for advice and assistance short of litig­ ation as well as for litigation in all legal categories and in all courts.

There are four major problems that, I believe, need urgent attention. First, the need to provide on an equal basis throughout Australia legal advice and assistance that w ill fill the gap left by the Law Society or Legal Aid Committee schemes for aid in litigation and

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the gap left by the Law Society or Legal Aid Committee schemes for aid in litigation and to see that advice and assistance reaches disadvantaged people; second, the need to pro­ vide legal aid in divorce cases and in proceedings ancillary to divorce; third, the need to provide legal aid for representation in magistrates courts; and fourth, the need to avoid the 'bottomless p it' of ever increasing costs of providing legal aid.

Even a cursory examination of the position in relation to legal aid in each of the Australian States discloses significant gaps in the provision of aid and a good deal of un- eveness from State to State in the kind and comprehensiveness of existing legal aid arrange­ ments. The arrangements in some States approach much nearer to the ideal of making comprehensive provision for legal aid for all kinds o f litigation and for all courts; in others there are deficiencies either in relation to the nature of the proceedings for which legal aid is provided or in relation to the courts in which aid is provided or both. There have been moves by the Law Societies to set up night referral services but, apart from a quite recent initiative in one State, there is no general availability of legal advice and assistance short of litigation. In some States there is a Public Solicitor w ith a strict means test and quite limited functions. In all States and in the Australian Capital Territory there are schemes administered by the Law Societies or Legal Aid Committees under which private practitioners act in certain court proceedings and are paid a percentage of their normal fees from funds partly provided by Governments and partly by statutory interest on practitioners' trust accounts. In the Northern Territory there is an interim scheme pend- tng the introduction of a Legal A id Committee scheme. Up to the present, the Law

Sticiety schemes have failed to provide adequate legal aid for divorce proceedings. Where legal aid has been provided, substantial contributions towards the cost o f the proceedings have been levied upon the applicant. There has been a good deal of criticism by divorce law reform associations and others about the absence of suitable arrangements for aid. This is a social problem that must be remedied. The grant of $2m this year should effect a major improvement in most States.

There has been much criticism of the failure of most legal aid schemes to provide representation in magistrates' courts. In some States there are Public Defenders who appear for defendants in trials fo r indictable offences and in other criminal proceedings in courts other than magistrates' courts. It is usually the socially disadvantaged person who is unrepresented in magistrates' courts and persons who are unrepresented are prejudiced. This has properly become an issue on the part of organisations concerned w ith the pro­ tection of civil liberties. Many people are ignorant of their legal rights and what legal aid facilities are available. Indeed, because of their circumstances or educational background,

many simply do not know how to go about getting help to identify the problem and to seek a solution. In endeavouring to provide proper arrangements for legal aid, it is worth noting the warning of the Lord Chief Justice of England, Lord Widgery, who spoke in Perth this year of the tw in ogres o f cost and delay. He referred to the legal aid system operating in England and went on to warn of the bottomless pit that it was feared the English legal aid system might become.

On the problem o f the provision of legal advice and assistance on an equal basis throughout Australia, I believe that the Australian Legal Aid Office w ill make an import­ ant contribution towards filling the gap between referral services and Law Society or Legal Aid Committee schemes for aid in specified litigation. It is the view of the Govern­ ment that legal assistance to socially disadvantaged persons can most effectively be prov­

ided through a salaried legal service. For this reason the Australian Legal Aid Office has been established. The Office w ill be staffed by salaried lawyers who w ill work in close co­ operation w ith community welfare organisations, established legal aid schemes, referral

4

centres and the private legal profession. I hope that the young lawyer w ith a social con­ science w ilt be attracted to join the Office and, in particular, the woman lawyer who has a talent for this kind of work. I have already received letters both from woman lawyers and women law students expressing their interests. To get the Office operating quickly

in the capital cities, the existing Legal Service Bureaux that provided advice and assistance to servicemen, ex-servicemen and their dependents have been utilised. I should add a word of caution — to say that the office w ill not be able to provide a fu ll service until additional

staff have been recruited. Advertisements have been placed nationally seeking talented lawyers to join the office. The results of this recruiting campaign w ill be known soon.

The service that the Office w ill provide, broadly stated, w ill be: first, a general problem solving service of advice and assistance short of litigation to persons w ith an element of financial need — this w ill, in my view, take care of some 90 per cent of all problems that worry the ordinary citizen; and secondly, the conduct of litigation, part­

icularly fam ily law, environmental and other litigation in areas of special concern to the Australian Government, on behalf of persons who cannot afford the cost of represent­ ation in court.

But I do not see the new Office operating merely in buildings in capital cities. I have been impressed by overseas developments, w ith which many honourable senators will be familiar, that have discarded the traditional conservative approach to legal aid and have set up 'storefront' offices in cities and country areas where lawyers are few and

problems are great. I see the role of the Australian Legal Aid Office as taking the law to the people who most need it. I want to see small unpretentious 'storefront' offices open­ ed in the suburbs of the cities and in country centres. I want them to be the kind of

offices to which the ordinary man or woman faced w ith a legal problem w ill go as readily as he or she would go to the garage with an ailing motor car. My intention is that the Australian Legal Aid Office would work alongside and in co-operation w ith bodies of all kinds that are concerned w ith solving the problems of the citizen and especially, of

course, w ith the private legal practitioner. I believe that there is not only scope but a clear need for legal aid offices that are spread throughout Australia where need is greatest; offices that are staffed by salaried lawyers and that serve as a centre of legal aid activity. They would work w ith law students who wish to come in and help with the legal advice and assistance or w ith the Law Societies and Legal Aid Committees through which the

private legal profession would continue to handle the greater part of litigation in the courts. The role of the Office w ill be complementary to the role of the private practition­ er and, indeed, be an advantage to him in providing continuity and proper preparation of legal aid matters referred. Area or regional offices of this kind appear to have worked suc­

cessfully overseas, notably in the Province of Ontario in Canada.

There have already been encouraging discussions with student referral services and community legal referral services and it is intended to enter into discussions w ith Law Societies and other interested bodies as soon as possible. I should add that the Govern­ ment has made an interim grant of financial assistance to the Fitzroy Legal Service in the

suburbs of Melbourne as a pilot scheme of the 'store-front' law office type. I envisage that the decentralised 'store-front' offices of the Australian Legal Aid Office could pro­ vide administrative support bases for community services of this kind. It is more difficult to provide a satisfactory answer to the problem of representation in magistrates' courts. This applies particularly in criminal cases where the defendants have been arrested or attend on summons and questions of bail, pleas of guilty and adjournments, need to be dealt with. In the Australian Capital Territory and the Northern Territory I would prop­

ose to have an officer of the Australian Legal Aid Office attend at the Magistrates' Courts to advise persons in custody on bail, and on pleas of guilty. If proceedings are to 5

be defended, the defendant would, in appropriate circumstances, be provided w ith repres­ entation under the legal aid schemes operating in the Territories or by the Public Def­ enders' Offices that I intend to establish in the Territories. Similarly, I would propose to have an officer attend the magistrates' court in Sydney known as the Special Federal Court. But these arrangements would leave substantially untouched the problem of providing legal representation before a very great number of magistrates' courts in the States that handle some 90 per cent o f the total volume of litigation.

I think that this is a problem that I should specifically refer to the Committee that I have appointed. One approach that attracts me — and I hope the Committee w ill look closely at it — is the scheme of 'D uty Counsel' or 'D uty Solicitor' that operates in Scot­ land and Ontario. This scheme involves attendance by private practitioners at magistrates' courts on a roster basis. They attend to bail, pleas and adjournments. They give advice to persons in custody and are paid a daily or hourly fee from legal aid funds. Cases would be referred by the Australian Legal Aid Office, Legal Aid Committees or referral services. An alternative would be to employ salaried lawyers but this could be costly where there are many widely scattered courts. I have said that I see private legal practitioners, through their Law Societies or Legal Aid Committees, performing the major work in the legal aid field, that o f litigation in the various courts. I hold firm views about the necessity for a strong and independent private legal profession that can stand between the Government and the citizens, not least in the fields of human rights, civil liberties and criminal matters generally.

Having said that, I return to Lord Widgery's warning about the bottomless pit that legal aid could become. It can very well become such a p it in Australia unless action is taken to deal with the problem o f divorce costs that have come close to wrecking the le­ gal aid schemes of more than one State. Honourable senators are familiar w ith my views about the sum that ought to be charged by solicitors in an undefended divorce case. I shall be introducing legislation to change the basis of divorce from an adversary system to a single ground of permanent breakdown of marriage for more than 12 months and to simplify procedures. This w ill in itself reduce costs. I am determined to see that legal aid is made available in divorce matters for everyone in need and w ithout requiring them to pay excessive contributions towards the costs. I am also determined to see that divorce does not become the bottomless pit of legal aid in Australia. My own view is that the Australian Government w ill need to provide continuing funds for legal aid but that the funds should not necessarily be made available in the same way as this year. What future provision w ill have to be made can only be assessed after a full examination of the prob­ lem. I am looking to the Committee I have appointed for assistance in this matter.

I have previously announced the constitution and terms of reference of the Com­ mittee but I should record them for the information of honourable senators. I appointed the following persons to be members of the Committee: Mr Roy F. Turner, a member of the Council of the Law Society of New South Wales and a Vice President o f the Law Council o f Australia, the Chairman of the Committee; Mr Justice J.H. Wootten of the Supreme Court of New South Wales, past President of the Aboriginal Legal Service, Mr J.A. Heffernan, Secretary of the Victorian Legal Aid Committee; Mr E.P. Mullighan, a member of the Executive Committee and Honourary Treasurer of the Law Society of South Australia; Mr W.A. Lalor, the Public Solicitor of the Territory of Papua New

Guinea; Miss Eilish Cooke, a barrister and solicitor of Melbourne and a member of the Fitzroy Legal Service; and Mr J.P. Harkins, a senior officer of the Attorney-General's Department.

The Committee has been asked to examine the areas of need for the provision of 6

legal assistance and advice and, in particular, the areas of need not covered by existing schemes; the means by which legal assistance and advice should be provided and in what areas should they be provided by a salaried legal service; and the means by which finance for schemes of legal assistance and advice should be provided. The Chairman of the Com­

mittee has told me that the Committee expects to provide me w ith an interim report soon.

I shall keep honourable senators informed of progress in the provision of better legal aid. The Government's aim is that eventually no person anywhere in Australia should suffer injustice because of the unavailability of legal advice or inability to afford the cost of representation in court proceedings.

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Terms of Reference

The Committee has been asked to examine:

the areas o f need for the provision o f legal assistance and advice and, in particular, the areas of need not covered by existing schemes;

the means by which legal assistance and advice should be provided and in what areas should they be provided by a salaried legal service; and

the means by which finance for schemes of legal assistance and advice should be provided.

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Report

Introduction

In this first report the Legal Aid Review Committee has been concerned to stimulate thought and discussion about the provision of better legal aid and to seek responses from bodies w ith interest and expertise in the field. With this in mind, the Committee suggests that this report be distributed as widely as possible. The Committee renews its invitation to professional bodies and other interested groups to make further submissions to it so that the widest range of views can be considered by the Committee in arriving at its

conclusions. With one or two exceptions, there has been a disappointing response to date from professional bodies in the various States and Territories. The Committee would hope to have the benefit of further submissions from them.

Ι,η framing the recommendations in this report the Committee has, in general, en­ deavoured to draw attention to problems and to indicate areas in which studies need to be undertaken rather than to give expression to concluded views. However, the Committee has had no d ifficulty in arriving at firm conclusions in its recommendations numbered

(1) and (2), set out below, that funds need to be made available as a matter of urgency for legal aid in the lower courts where, in most States, practically no legal aid is provided. The Committee noted that this was a conclusion that had also been arrived at by the Attorney-General.(1) ,

In the Appendix to the Report the Committee has endeavoured to compile a com­ prehensive account of legal aid services available in Australia. It believes this to be the first time that an attempt has been made to do so. The account is intended to be a draft document and it is hoped that attention w ill be drawn to errors or omissions so that a final corrected statement can be produced. Even more important w ill be informed com­

ment on difficulties or inadequacies in the provision o f aid under schemes that appear to be form ally satisfactory.

Meetings of the Committee have been held in Sydney, Melbourne and Adelaide and sub-committee meetings in Brisbane and Perth. Personal communication has been made w ith members of the representative law bodies in addition to visiting and examin­ ing the legal aid schemes in action. Submissions have been sought by advertising in news­

papers throughout Australia. A great number of submissions have been received and studied. Letters giving an account of the Committee's deliberations and seeking further submissions have been sent to all the representative law bodies and other interested groups. Discussions have been held with academics from some Universities, members of

law bodies and other groups. Personal examination has been made of the Fitzroy Legal

(1) Speech by Senator L.K. Murphy, Q.C., the Australian Attorney-General, in the Senate,'Parliamentary Debates', 13 December 1973.

9

Service, the Springvale Legal Service and several Referral Centres in New South Wales, and Victoria.

The Unmet Need

The winds of change both refreshing and stormy are blowing through the legal profession, a profession which has been described as the largest of the remaining cottage industries. It sees itself as a service industry entrusted by its fellow citizens w ith the duty of protecting their personal, corporate and quasi-corporate rights in a Rule of Law

society.

In Australia an increasing interest, especially amongst the younger members o f the profession, social welfare workers and others, is being directed into the legal aid field. The sudden proliferation of legal referral centres in New South Wales and Victoria and the setting up of some legal aid centres attempting to give a comprehensive service is

most significant. The question 'How often and in what situations do people need legal assistance w ithout obtaining it?' *2* is one which the Committee has to try and answer.

The Committee believes that in any just society each person should have access to the legal process and that to deny a person that access is to perpetuate a life condition of social deprivation. From the evidence submitted, especially by the Australian Council of Social Services, the Committee recognizes the relationship between poverty and inaccessibility to legal services and has been attuned to the necessity to not only expand legal services to fu lfil the current unmet need but also to the necessity to provide legal services which in structure and administration as well as in principle render legal advice and assistance accessible to the vast numbers o f people presently denied the service.

In considering the means by which an adequate and effective legal services program for Australia could be developed, the Committee has examined all existing legal aid facilities throughout Australia and studied the overseas experience in this field. The Committee has had no d ifficu lty in concluding that there are considerable deficiencies

in existing services. The experience of the United Kingdom, Canada and the United States in providing alternative systems of 'Judicare' and Salaried Legal Services*31 needs to be further considered as providing potential models by which the gaps in existing legal aid facilities could be filled.

From its deliberations the Committee has considered a number of issues critical in determining the most appropriate means by which the unmet need for legal services can be fille d :— (a) Most of the existing legal aid facilities are inadequate in scope and structure.

They are not sufficiently comprehensive in types of matters handled or in numbers served and are underfinanced. The operational structure of the exist­ ing bodies renders them inaccessible to many people in that they are only loc­ ated in capital cities, operate only during working hours and are poorly ad­ vertised.

(2) Labour Lawyers, Justice fo r A ll, 1968, p.6

(3) Noted b y M r T. Purcell, a New South Wales solicitor, in his book 'Legal Needs in Today's Society' which he has p u t as a submission to the Committee.

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(b) The people most in need of advice and assistance are the most vulnerable in the community in terms of income, security and social expertise. (c) To provide these people w ith legal assistance, not only must a legal service program be developed to supplement the existing schemes but the type of

scheme developed must reflect the particular needs of the group to be serv­ iced. (d) The scheme adopted must have the support of the legal profession, workers in the welfare field and community groups, and should be integrated into

other social planning programs throughout Australia to ensure that it is rational and effective. A t the same time it must be carefully costed to ensure its future viability.

The alternatives presently under consideration include both the private practitioner based 'Judicare' scheme and the Salaried Legal Service.

Judicare

The English and Canadian experience in the field has shown the value of the Service based upon the private practitioner. Under this model legal aid is made available to all eligible under a means test by means of the Government or profession subsidising the cost of any legal action taken on behalf of a client by a private practitioner. The Austral­

ian legal profession has generally been 'Judicare' orientated in that most o f the existing profession-supported legal aid schemes have to date been of this type. This scheme must be further evaluated as to cost and the potential it has fo r meeting the demands for legal service as noted above.

Salaried Legal Services

The model favoured by the United States is that of the 'Neighbourhood Legal Office', originally developed under the Office of Economic Opportunity legislation. Under this model, Salaried Legal Services are established in districts which show a high degree of social deprivation according to social indicators. The United States experience shows the value of having community-based services to which clients have easy access and which develop an identification with the local community. This model has been much

supported in numerous submissions received, on a number of grounds. These services are close to the client group, operate on flexible day and evening hours, generally do not have a city office atmosphere which many of the poor find intimidating, and are closely linked w ith local welfare and community organisations. By developing services at a local

level and involving volunteers and non-lawyers in the running of the services, these Offices have gained acceptance by the group served and in doing so bring the law to the people and demystify both law and lawyers.

The 'Neighbourhood Law Office' concept has gained some acceptance amongst the profession and a number of services of this type operating in the evenings have been established by volunteer lawyers and non-lawyers in Melbourne. It would appear from their experience that this approach to legal aid provides a valuable addition to the more traditional private practitioner model. Cost wise this approach appears to make fewer demands on scarce resources whilst being capable of handling a greater number of matt­

ers. The model must be given further consideration and evaluated in light of the physical and social conditions of Australia.

A variation of this model is to be found in the Australian Legal Aid Office that the

11

Attorney-General has announced. This service w ill apparently seek to combine the con­ cept of a local community legal service working w ith local organisations and involving volunteers and non-lawyers w ith the concept of a salaried service providing an equal service throughout Australia w ith career prospects for its lawyers.(4) This model too, will

need further evaluation.

The 'Judicare' and Salaried Service models are the subject o f much controversy w ithin the legal profession and amongst academics. Each of these groups in their sub­ missions have described the value of each type of service and pointed out potential difficulties. However, before the Committee can reach any final decision about the most appropriate model for Australia, it must give further consideration to these models and

it invites further submissions from all interested parties. In this regard Professor R. Sack- ville of the University of New South Wales has been of great assistance to the Committee by providing detailed submissions and by making himself available for discussions with members of the Committee.

Attention has been drawn in several submissions to special difficulties in the way of providing legal advice and assistance in country areas in distant parts of Australia with a widely disseminated population. The difficulties are acute in the northern parts of West­ ern Australia. In varying degrees they exist in practically all mainland States. Mobile

legal offices may provide a partial answer. A more radical answer seems to be called for. While the Committee has not given this problem the fullest consideration it is attracted to the idea o f applying the experience of the successful flying doctor service in the field of legal aid. One of its recommendations therefore proposes an examination of the feas­ ib ility of a flying legal aid service.

A number of other issues have been raised during the Committee's deliberation, amongst them the concept of Prepaid Legal Insurance. The Committee has not yet given this concept any detailed consideration.

The Committee has not come to any conclusion about the desirability o f establish­ ing some permanent advisory body that might continue to provide advice after the Committee has completed its work. A further question to be considered is whether there is a need for a co-ordinating body to provide liaison between the legal services at present available in Australia through Law Societies, Legal Aid Committees and voluntary bodies.

It would hope to have the benefit of further submissions on these questions. .

Recommendations

1. The Committee recommends that funds be made available fo r legal assistance in Courts of Summary Jurisdiction throughout Australia. We are well aware of the deficiencies in legal aid in the Criminal Courts, particularly in that some people are unrepresented in criminal trials and other criminal proceedings. The Committee will consider what is the most effective way of meeting such deficiencies.

2. We further recommend that funds be made available to create an effective 'D uty Solicitor' Scheme in the Courts o f Summary Jurisdiction throughout Australia.

3. The Committee has noted the setting up of the Australian Legal Aid Office and its proposed type of operation. The Committee is o f the view that a salaried ser­

ia l Speech by Senator L.K. Murphy, Q.C., the Australian Attorney-General, In the Senate, 'Parliamentary Debates', 13 December 1973.

vice has a role to play in providing legal assistance and advice, particularly in those areas of need presently unmet. The Australian Legal Aid Office should provide a model of a salaried service and when fu lly operational we recommend that its activities should be reviewed as to cost and effectiveness. This w ill assist this

Committee to determine in what areas legal assistance and advice should be provid­ ed by a salaried service.

4. The Australian Legal Aid Office should provide an internal career structure to encourage continuity in staffing and a body of expertise in the field of legal aid.

5. The Committee considers that legal advice is seriously lacking in many areas and recommends the extension of legal service centres.

6. It recommends that pilot studies be conducted w ith the establishment of Commun­ ity Legal Service Centres in highly populated lower income areas w ith participation by non-lawyers.

7. It recommends examination of the feasibility of providing a ffying legal aid service for those areas of Australia which by virtue of their location have a lack of accessib­ ility to legal services.

8. We recommend that salaried legal services should draw upon the resources of the University teaching programmes in the field of legal aid and that students of those courses and other community volunteers should be encouraged to participate in the activities of those salaried services in a non-lawyer capacity.

9. The Committee does not favour the establishment of a legal aid organisation that would control all legal aid services. However the Committee does recommend further consideration being given to the forming of an Australian Legal Aid Advisory Commission.

10. Four further urgent needs requiring special consideration are the problems of juv­ eniles, migrants, social casualties and prisoners. The Committee proposes to make a special study of these problems in conjunction with the pilot studies referred to above.

ROY F. TURNER (Chairman)

MS E. COOKE

J.P. HARKINS

J.A. HEFFERNAN

Ml.A. LALOR

E.P. M ULLIG H AN

8 February 1974.

13

IN D E X TO A U S T R A L IA N G O V E R N M E N T LEG A L A ID

Australian Legal Aid Office 15

Aboriginal Legal Service Program 18

Judiciary Act 1903-1972, 20 Section 69 (3)

Conciliation and Arbitration Act 22 1904-1972, Sections 141 A, 141B, 168

Bankruptcy Act 1966-1970, 23 Section 305

Defence Act 1903-1966, 24

Section 96

Courts Martial Appeals 25

Regulations, Regulation 11

High Court of Australia 26

Federal Tribunals 26

Australian Industrial Court 26

Australian Conciliation and 26 Arbitration Commission

Bankruptcy Court 26

Courts Martial Appeals Tribunal 26

Courts Martial 27

Trade Practices 27

Supreme Court of New South Wales 28

Supreme Court of Victoria 28

Supreme Court of Queensland 28

Supreme Court of South Australia 28

Supreme Court of Western 28 Australia

Supreme Court of Tasmania 28

Supreme Court of The 28

Australian Capital Territory

Supreme Court of The Northern 28 Territory

District Court of New South 28 Wales

County Court of Victoria 28

District Court of Queensland 28

District Court 8i Local Court of 28 South Australia

District Court of Western Australia 28

State Industrial Courts and 28 & 29 Commissions

'Workers' Compensation' for all States and Territories 29

New South Wales Court of Petty Sessions 30

Victorian Magistrates Court 30

Queensland Magistrates Court 30

South Australian Magistrates Court 30

Western Australian Magistrates Court 30

Tasmanian Court of Petty Sessions and Court of Requests 30

Australian Capital Territory Court of Petty Sessions 30

Northern Territory Courts of Summary Jurisdiction 30

Licensing Courts and Commissions of States and Territories 30&31

Coroners Courts of States and Territories 31

Childrens Courts of States and Territories 31 & 32

Mining Wardens Courts of the States 32

Administrative Tribunals of States and Territories 3 23 33

Courts of Marine Inquiry in States and Territories 33

Special Enquiries in States and Territories 333 34

Special Areas 35

Royal Commissions 35

Conveyancing 35

Commercial Transactions 35 Wills and Estate Planning 35 Probate 35

Taxation 35

Welfare and Family Security 35 Local Government 35

Environment 35

Landlord and Tenant 35

Advice 35

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A U S T R A L IA N G O V E R N M E N T ASSISTANCE

Australian Legal A id Office, Including Legal Service Bureau

1. Basis Directive, dated 25 July 1973, issued by the Attorney-

General, that the Legal Service Bureau become the Australian Legal Aid Office which, when fu lly opera­ tional, w ill give free legal advice and assistance on all matters of Federal law, including the Matrimonial

Causes Act, to everyone in need; and on matters of both Federal and State law, to persons for whom the Aust­ ralian Government has a special responsibility. (See below)

2. E ligibility Eligibility is as follows:

(i) In matters arising under Federal Law . everyone in need (ii) in other matters: . pensioners

. servicemen, ex-servicemen and their depen­ dants . aborigines

. migrants

. assisted overseas students . persons approved by the Attorney-General or his delegate

In cases not falling w ithin (i) and (ii) above, the Office w ill act as a referral service.

There w ill be no means test for social service pensioners, aborigines or assisted students. There w ill be no means test for servicemen, ex-servicemen and their depen­ dants in matters arising out of or connected with war service, repatriation or rehabilitation. For other persons there w ill be a 'means and needs' test. The test for

advice and assistance other than in litigation w ill be an element of financial need. The test for assistance in litigation w ill be lack of means to afford the cost of representation.

3. Administration Attorney-General's Department, Canberra

4. Finance Australian Government appropriation.

5. Operation The role of the Australian Legal Aid Office w ill be to

provide a service of legal advice and assistance, including assistance in litigation, in co-operation w ith community organisations, referral services, existing legal aid schemes and the private legal profession. In particular, its decen­ tralised offices w ill provide administrative support bases for community advice centres and legal or welfare advice groups generally.

15

AUSTRALIAN GOVERNMENT ASSISTANCE

6. Reimbursement Not applicable.

7. Type o f A id (a) The office w ill provide legal advice, including con­

tinuing advice correspondence and endeavours to achieve settlement of problems.

(b) The Office w ill conduct undefended divorce pro­ ceedings, ancillary proceedings and family law proceedings arising under federal legislation on behalf of persons who do not have adequate means to pay fo r the cost o f representation.

(c) The Office w ill also conduct minor litigation in Courts of Petty Sessions and other tribunals and such other litigation as is approved by the Attorney- General or his delegate. The general intention is that the Office w ill, in appropriate circumstances, provide representation when adequate and ready assistance is not available from existing legal aid sources.

(d) In other litigious matters, the client w ill be re­ ferred — . to the appropriate legal aid body, e.g. Public Solicitor or Legal Aid Committee; or . to private legal practitioners on a panel

maintained by the Office under procedures ensuring a reasonable and equitable spread of work.

(e) A 'D uty Solicitor' w ill be provided from the staff of the Office to attend at the 'Special Federal Court', Phillip Street, Sydney, and at magistrates' courts in the Australian Capital Territory and Northern Territory to provide advice and to appear on pleas of guilty and applications fo r adjourn­ ment or bail.

(f) The Office w ill make representations to Govern­ ment Departments or authorities on behalf of per­ sons with complaints or grievances against them.

(g) The Office w ill prepare simple documents such as simple wills or powers of attorney.

(h) The Office w ill perform the role of Public Defen­ der in the Australian Capital Territory and in the Northern Territory. In the Public Defender role, officers o f the Office w ill appear and defend per­ sons charged with offences in the Courts of a Territory. In the Supreme Court they w ill appear

in trials, appeals and sentence matters and in Courts of Petty Sessions they w ill appear in matters of other than a minor nature.

Australian Legal Aid Office (contd.)

16

AUSTRALIAN GOVERNMENT ASSISTANCE

Australian Legal Aid Office (contd.)

7. Type o f A id (contd.) (i) The Office w ill provide assistance, including the

conduct of litigation, to persons or organisations wishing to raise environmental or conservation issues in matters before Public Inquiries, Tribunals or Courts.

8. Contribution by Applicants

Depending on means and needs in appropriate cases.

17

AUSTRALIAN GOVERNMENT ASSISTANCE

Aboriginal Legal Service Program

1. Basis Aboriginal Legal Service Program introduced by the

Department o f Aboriginal Affairs, with the assistance of the Attorney-General's Department.

2. E ligibility The Service is available to Aboriginals. 'Aboriginal' means

a person who stands in need o f legal assistance and who is a member or descendant of the Aboriginal race. It includes Torres Strait Islanders and, where it is in the interests of justice in the circumstances of a particular case, includes a person who lives in a domestic relation­ ship w ith an Aboriginal.

3. Administration Under the Program, legal assistance is being provided in each State and the Northern Territory by Aboriginal Legal Services, funded by the Department o f Aboriginal Affairs and in the Australian Capital Territory by the Attorney-General's Department under delegations from the Minister for Aboriginal Affairs.

4. Finance Funds are being provided by the Australian Government

through the Department o f Aboriginal Affairs and made available to each Service on the condition that the funds be applied in accordance with the conditions laid down in the Program. Each Service is required to submit annual budget proposals for approval by the Department of Aboriginal Affairs.

5. Operation The service operates through an Aboriginal Legal Service

in each State and Territory in Australia on Government grants given on these terms:

1. Each Service is responsible for the provision of the facility in its State or Territory but may make arrangements with Services in other places to avoid problems arising from geographical boundaries. 2. Each Service has fle xib ility in its development, to

meet the needs of Aboriginals who stand in need o f legal assistance. The facilities include, as funds permit, arrangements with legal practitioners in private practice for representing applicants in indi­ vidual cases, with legal practitioners on a retainer basis where the usual arrangements for individual cases cannot readily be made, the direct employ­ ment o f legal practitioners, field workers, social workers and administrative staff. In the latter three cases preference w ill be given to Aboriginals or to those persons who show an affinity w ith Aborigi­ nals. Research assistance into the special legal pro­ blems of Aboriginals and the provision o f publicity and relevant educational activities directed to

18

AUSTRALIAN GOVERNMENT ASSISTANCE

Aboriginal Legal Service Program (contd.)

5. Operation (contd.) Aboriginals and persons or groups who deal with Abori­ ginals is also envisaged.

6. Reimbursement Each service may reimburse existing facilities for the

provision of Legal Aid to Aboriginals at the rate of the cost to that facility of assisting the Aboriginal in a parti­ cular matter, plus an amount equal to the estimated cost of administration by the facility of that matter not exceeding 5 per cent of the legal account.

7. Type o f A id Legal assistance to Aboriginals is available for:

(a) representation in courts and tribunals throughout Australia where the Aboriginal has grounds for such representation;

(b) advice on matters in which the Aboriginal has or is likely to have a direct interest, whether personally or as a member of a group; (c) assistance in non-contentious matters where this is

likely to be of direct benefit to the Aboriginal.

Restrictions —

(a) Legal assistance, other than to ascertain if the Aboriginal has reasonable prospects of success, will not be granted in respect of proceedings by way of appeal if in the view of the Service no good purpose would be served by prosecuting or taking part in the appeal; (b) Actions to be taken on behalf of an Aboriginal

community or a substantial Aboriginal group will be considered on an individual basis by the Australian Government following an approach by a Service.

8. Contribution by

Applicant

An Aboriginal who is reasonably able to make a contri­ bution towards the expense of his legal assistance may be required to do so.

19

AUSTRALIAN GOVERNMENT ASSISTANCE

Judiciary A ct

1. Basis Legal Assistance is provided by the Australian Govern­

ment Judiciary Act 1903-1972, Section 69 (3) which provides that when a person is committed for trial fo r an offence against a law o f the Commonwealth, he may apply for aid direct to a Justice in Chambers, or to a Judge of the Supreme Court of a State.

2. Eligibility Section 69 (3) o f the Judiciary A ct states:

"A ny person committed for trial fo r an offence against the laws o f the Commonwealth may at any time within fourteen days after committal and before the jury is sworn apply to a Justice in Chambers or to a Judge of the Supreme Court of a State for the appointment of counsel for his defence. If it be found to the satisfaction of the Justice or Judge that such person is w ithout ade­ quate means to provide defence for himself, and that it is desirable in the interests of justice that such an appointment should be made, the Justice or Judge shall certify this to the Attorney-General, who may if he thinks fit thereupon cause arrangements to be made for the defence of the accused person. Upon committal the person committed shall be supplied with a copy of this sub-section".

3. Administration By the Australian Attorney-General, on certificate from

the appropriate Justice or Judge.

4. Finance Government Appropriation.

5. Operation Applications are made direct to a Justice o f the High

Court or Judge of the Supreme Court of a State. If approved, the certificate of the Justice or Judge is forwarded to the Secretary, Attorney-General's Depart­ ment, as delegate for the Attorney-General. If the Attorney-General thinks fit, arrangements are made for the defence of the accused. In the case of committals for sentence only, applications made out of time, and appeals against conviction and/or sentence, the Treasurer has given approval to an ex gratia scheme which is also administered by the Secretary of the Attorney-General's Department along similar lines.

6. Reimbursement Payment at conclusion of proceedings at rates deter­ mined by the Secretary which accord with those paid by legal aid schemes applicable in the particular area.

7. Type o f A id

on

Representation by solicitor and counsel at trials of indictable offences against the laws of the Australian Government.

AUSTRALIAN GOVERNMENT ASSISTANCE

Judiciary Act (contd.)

8. Contribution by Where appropriate, w ill be determined in respect of such Applicant applicant.

9. Comment The Act makes no provision fo r assistance in relation to

offences dealt w ith summarily. In many proceedings the Prosecution has the option if an offence is to be tried summarily or not. The Act makes no provision for aid in committal proceedings. Applications must be made within a time lim it of 14 days of the committal. There is no

provision for extension of time for an application under this Act. In practice application is made direct to the Secretary of the Attorney-General's Department and dealt

with on an ex gratia basis.

21

AUSTRALIAN GOVERNMENT ASSISTANCE

Conciliation and Arbitration A ct 1904-1972

Financial assistance is available under the following sections o f the Act;

Section 141A Financial assistance may be authorised by the Attorney-General to an appli­ cant who has obtained a rule calling upon a person or organisation to show cause why an order should not be made under Section 140 (rules not to be contrary to law) or Section 141 (direc­ tions fo r performance of rules).

Section 141B Financial assistance may be authorised by the Attorney-General to the respon­ dent or respondents in proceedings under Sections 140 and 141.

Section 168 The Attorney-General may authorise financial assistance in respect of —

. inquiries conducted by the

Australian Industrial Court under Part VI11A (amalgamation of orga­ nisations) — see section 158U;

. inquiries conducted by the

Australian Industrial Court under Part IX (disputed elections in orga­ nisations).

22

AUSTRALIAN GOVERNMENT ASSISTANCE

Bankruptcy A ct 1966-1970

1. Basis Legal assistance is provided by the Bankruptcy A ct 1966­

1970, section 305, fo r the Trustee of the estate of a bankrupt, or of the estate of a deceased person being administered under Part XI of the Act or Part X of the repealed Act.

2. Eligibility Available to trustees and, where the Attorney-General or

his delegate thinks fit, may be subject to conditions.

3. Administration Attorney-General's Department, Canberra.

4. Finance Australian Government Appropriation.

5. Operation Applications are made by Trustees (only) o f the estate of

a bankrupt, or of the estate of a deceased person being administered under Part XI of the Act or Part X of the repealed Act, to the Secretary of the Department or to

a Deputy Secretary, as delegates of the Attorney-General. If the Delegate is satisfied that inquiries or proceedings should be instituted or carried on and there are no funds in the estate to meet the costs, he may approve that the costs be paid by the Australian Government. This assis­ tance may be subject to conditions.

6. Reimbursement Trustees are paid at conclusion of proceedings. It is

usually required that costs be taxed.

7. Type o f A id Costs of the proceedings.

8. Contribution by

Applicant

Not applicable.

9. Comment The Act makes no provision for legal aid to a bankrupt

and/or persons charged with offences under Bankruptcy Act. Aid w ill be available from the Australian Legal Aid Office.

23

AUSTRALIAN GOVERNMENT ASSISTANCE

Defence A ct 1903-1966

1. Basis Section 96 o f the Defence Act, 1903-1966, makes pro­

vision for persons tried by court martial to be assisted in their defence by counsel at Australian Government ex­ pense.

2. Eligibility Every person charged may be represented and on capital

charges shall be entitled to representation unless on war service the authority convening the Court declares that m ilitary or air-force exigencies or the necessities o f disci­ pline render it impossible or inexpedient to procure the attendance o f counsel.

3. Administration The Director o f Legal Services in each Service Depart­

ment.

4. Finance Australian Government Appropriation.

5. Operation Representation is arranged from the reserve of officers

with legal qualifications.

6. Reimbursement The representative may be either a full-time officer in the Services or a member o f the reserve who is paid for his time on duty fo r the case.

7. Type o f A id Representation at courts martial, whether arranged

through the Service or arranged personally.

8. Contribution by Applicant

None.

9. Comment . Advice, both for private matters and service

matters, is given by Reserve Officers with legal qualifications. . A 'Non Reserve' practitioner may appear for

service personnel in a court martial, but the defen­ dant must bear his own expenses.

24

AUSTRALIAN GOVERNMENT ASSISTANCE

Courts Martial Appeals Regulation

1. Basis Courts Martial Appeals Regulations, Regulation II.

2. E ligibility Where an applicant has insufficient means to prosecute

his appeal and it is desirable in the interests of justice that aid be granted, the Attorney-General may arrange repre­ sentation. .

3. Administration Attorney-General's Department, Canberra.

4. Finance Australian Government appropriation.

5. Operation The Courts Martial Appeals Registry forwards to the

Attorney-General's Department the certificate of Courts Martial Appeals Tribunal granting legal aid.

6. Reimbursement Practitioners are paid at the end of the proceedings,

where approved by Attorney-General, on rates which accord with what would be paid locally on an aid basis in a major criminal matter in the particular State or Territory.

7. Type o f A id Solicitor and Counsel before the Courts Martial Appeals

Tribunal.

8. Contribution by Applicant

In the discretion of the Attorney-General.

9. Comment Both Legal Corps Reserve and 'Non-Reserve' Practi­

tioners can advise and appear fo r Service personnel on ap­ peals from Courts Martial to the Courts Martial Appeals Tribunal and where leave is granted to the High Court.

The Tribunal has granted legal aid in approximately 50% of cases and generally has taken a liberal view.

25

AUSTRALIAN GOVERNMENT ASSISTANCE

Australian Courts and Tribunals

1. High Court o f Australia 1.

Exercising Federal jurisdiction in C IVIL or C R IM INAL matters

(a) Appellate 2.

(b) Original

3.

2. Federal Tribunals 1.

2.

3. Australian Industrial 1.

Court

2.

3.

4. Australian Conciliation 1.

and Arbitration Commission

2.

5. Bankruptcy Court 1.

2.

3.

6. Courts Martial 1.

Appeals Tribunal

Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

In Federal criminal matters, Judiciary Act, section 69(3). (Page 20)

Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal A id Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15)

An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18) Conciliation and Arbitration Act, Sections 141 A,

141B, 168. (Page 22)

Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

Bankruptcy Act, Section 305 (Page 23)

Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15)

26

AUSTRALIAN GOVERNMENT ASSISTANCE

Australian Courts and Tribunals (contd.)

6. Courts Martial

Appeals Tribunal (contd.)

2. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18) 3. Courts Martial Appeals Regulations, Regulation 11 (Page 25)

7. Courts Martial 1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18) 3. Defence Act, Section 96 (Page 24)

8. Trade Practices 1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15)

27

AUSTRALIAN GOVERNMENT ASSISTANCE

State and Territory Courts and Tribunals

9.

10.

11.

Supreme Court o f ^

New South Wales

Exercising Federal, State or Territorial jurisdiction in C IV IL or C R IM INAL matters

Supreme Court o f Victoria

Supreme Court o f Queensland

Supreme Court o f South Australia

Supreme Court o f Western Australia

Supreme Court o f Tasmania

1.

2.

► 3 .

4.

Supreme Court o f the Australian Capital Territory

Supreme Court o f the Northern Territory ^

Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15)

An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18) In Federal Criminal matters.Judiciary A ct, Section 69 (3) (Page 20)

In bankruptcy matters. Bankruptcy Act, Section 305 (Except in the Australian Capital Territory.) (Page 23)

D istrict Court o f New South Wales

County Court o f Victoria

D istrict Court o f Queensland

D istrict Court & Local Court o f South Australia

D istrict Court o f Western Australia

*There are no intermediate Courts in Tasmania, the Australian Capital

Territory and the Northern Territory.

Exercising Federal, State or Territorial jurisdiction in C IV IL or CRIM INAL matters

1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18) 3. In Federal Grim inal matters.Judiciary Act, Section 69 (3) (Page 20) 4. In bankruptcy matters. Bankruptcy Act, Section

305 (Page 23)

Industrial Commission Λ 1. o f New South Wales

Industrial Appeals Court o f Victoria ’

Industrial Court o f Queensland

Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15)

28

AUSTRALIAN GOVERNMENT ASSISTANCE

State and Territory Courts and Tribunals (contd.)

\

11. Industrial Court o f South Australia (a) Industrial (b) Workers'

Compensation

Industrial Appeals Court o f Western Australia

Industrial Appeals Court o f Tasmania

2. An Aboriginal Legal Service will provide assistance for Aboriginals where there are grounds. (Page 18)

►

12. Workers' Compensation Commission o f New South Wales \

Workers' Compensation Board o f Victoria

Industrial Magistrates Court o f Queensland

Industrial Court o f South Australia (See Workers’ Compensation

(Page

Workers' Compensation Board o f Western Australia

Workers' Compensation Board o f Tasmania

Workmen's Compensation Ordinance o f the Australian Capital

Territory

1.

2.

Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15)

An Aboriginal Legal Service will provide assistance for Aboriginals where there are grounds. (Page 18)

Workmen's Compensation Ordinance o f the Northern Territory

29

AUSTRALIAN GOVERNMENT ASSISTANCE

State and Territory Courts and Tribunals (contd.)

13. *New South Wales Court o f Petty Sessions

*Victorian Magistrates Court

*Queensiand Magistrates Court

South Australian Magistrates Court

*Western Australian Magsitrates Court

Tasmanian Court o f Petty Sessions and Court o f Requests

Australian Capital Territory Court o f Petty Sessions

Northern Territory Courts o f Summary Jurisdiction

*inciudes Small Debts Court (N.S.W.) Fair Rents Court (Vic.) Small Claims

Tribunal (Old) Local Court (Petty Debts), Fair Rents Court and Summary Relief

Court (W.A.)

Exercising Federal, State or Territorial jurisdiction in C IV IL or C R IM INAL matters

1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

14. Licensing Court o f X 1.

New South Wales

Liquor Control Commission o f Victoria

Licensing Commission o f Queensland

Licensing Court o f South Australia

Liquor Control Commission o f Western Australia >

Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15)

30

AUSTRALIAN GOVERNMENT ASSISTANCE

State and Territory Courts and Tribunals (contd.)

14. Licensing Court o f Western Australia

Licensing Court o f Tasmania

2.

Licensing Magistrate o f ' the Australian Capital Territory

Licensing Court o f the Northern Territory

An Aboriginal Legal Service w ill provide assistance fo r Aboriginals where there are grounds. (Page 18)

Coroners Court o f \ New South Wales

Coroners Court o f Victoria

Coroners Court o f Queensland

Coroners Court o f South Australia

Coroners Court o f Western Australia

Coroners Court o f Tasmania

Coroners Court o f the Australian Capital Territory

Coroners Court o f the Northern Territory ^

Childrens Court o f New South Wales

Childrens Court o f Victoria

Childrens Court o f Queensland

Family Court o f South Australia (Part o f Local and D istrict Court

(Page

Childrens Court o f Western Australia

Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance.

(Page 15) An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, will provide assistance. (Page 15)

31

AUSTRALIAN GOVERNMENT ASSISTANCE

State and Territory Courts and Tribunals (contd.)

16. Childrens Court o f 2.

Tasmania

Childrens Court o f the Australian ,

Capital Territory

Childrens Court o f the Northern >

Territory

\

17. Mining Wardens Court o f New South Wales

An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

Mining Wardens Court o f Victoria

Mining Wardens Court o f Queensland

Mining Wardens Court o f South Australia

Mining Wardens Court o f Western Australia (Mine Workers Tribunal)

Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15)

An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

Mining Wardens Court o f Tasmania

18. Administrative 1.

Tribunals in New \ South Wales

Administrative Tribunals in Victoria

Administrative Tribunals in Queensland

Administrative Tribunals in South Australia (Including Consumer Credit Tribunal)

Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal A id Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance.

(Page 15)

*Administrative Tribunals in Western Australia

32

Administrative Tribunals in Tasmania

AUSTRALIAN GOVERNMENT ASSISTANCE

State and Territory Courts and Tribunals (contd.)

18. Administrative 2. An Aboriginal Legal Service w ill provide assistance Tribunals in the for Aboriginals where there are grounds. (Page 18)

Australian Capital Territory .

Administrative Tribunals in the Northern Territory '

NOTE: * Include West Australian Barristers Board, Land Agents Supervisory Board, Valuation Appeal Board and Promotions Appeal Board.

19.

20.

Courts o f Marine Inquiry in New South Wales

Courts o f Marine Inquiry in Victoria

Courts o f Marine Inquiry in Queensland

Courts o f Marine Inquiry in South Australia

Courts o f Marine Inquiry in Western Australia

Courts o f Marine Inquiry in Tasmania

Courts o f Marine Inquiry in the Australian Capital Territory

Courts o f Marine Inquiry in the Northern Territory

Special Magisterial 1

Enquiry in New South Wales

Special Enquiry in Victoria ►

Special Magisterial Enquiry in Queensland

Special Enquiry in South Australia y

Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance.

(Page 15) An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, will provide assistance.

(Page 15)

33

AUSTRALIAN GOVERNMENT ASSISTANCE

20. Special Magisterial Λ 2. An Aboriginal Legal Service w ill provide assistance Enquiry in Western for Aboriginals where there are grounds. (Page 18) Australia

Special Magisterial Enquiry in Tasmania ^

Special Enquiry in the Australian Capital Territory

Special Enquiry in the Northern Territory >

State and Territory Courts and Tribunals (contd.)

34

AUSTRALIAN GOVERNMENT ASSISTANCE

Special Areas

21. Royal Commissions

22. Conveyancing

23. Commercial Transactions

24. Wills & Estate Planning

25. Probate

26. Taxation .

I 1. Where adequate and ready assistance is not available

27. Welfare & Family I 1 from other legal aid sources, the Australian Legal

Security I 1 Aid Office, in cases approved by the Attorney-

1 General or his delegate, will provide assistance.

28. Local Government 1 (Page 15)

1 2. An Aboriginal Legal Service w ill provide assistance

29. Environment 1 for Aboriginals where there are grounds. (Page 18)

30. Landlord & Tenant

31. Advice

Page

I State Assistance in Criminal Matters 37

(a) Public Defender 37

(b) Dock Defences 39

(c) Costs in Criminal Cases Act, 1967 40

II State Assistance in Civil Matters 41

(a) Legal Assistance Act, 1943 41

(b) Legal Practitioner (Legal Aid) Act, 1970 44

(c) Suitors Fund Act, 1951 46

(dk Matrimonial Causes Act, 1899-1951 (NSW) 48

(e) Workers' Compensation A ct 50 ’

(f) Probate Office 52

III Other Sources of State Assistance 53

(a) National Roads and Motorists' Association Legal Service 53

(b) Council for Civil Liberties 55

(c) Law Society's Neighbourhood Legal Service 56

(d) Clerks of Petty Sessions 57

IV Australian Courts and Tribunals 59

V State Courts and Tribunals 61

VI Special Areas 67

LEGAL AID IN NEW SOUTH WALES

36

LEGAL AID IN NEW SOUTH WALES

I State Assistance in Criminal Matters

(a) Public Defender

7. Basis The Public Defenders Act, 1969, repealed the previous

legislation and made statutory provision fo r the appoint­ ment of Public Defenders.

2. E ligibility The Act provides legal aid for any person who:

(a) is charged w ith the commission of an indictable offence; (b) has been committed for trial or sentence for an indictable offence; or (c) desires to appeal against his conviction for an

indictable offence.

Where an applicant's means are insufficient to enable him to provide or to continue to provide adequate legal assistance for himself, he may 'be provided with such legal assistance in connection with the proceedings at

which he is to be sentenced or on the appeal, as the case may be.' Whilst a statutory declaration as to the applicant's means is obtained, the means test is liberal and no firm rules exist as to means.

3. Administration Applications are made to the Under Secretary for

Justice and if he agrees he then informs Public Defenders to represent the accused.

4. Finance State Government appropriation.

5. Operation In determining whether an application w ill be approved

the antecedents of the accused are taken into considera­ tion. However, if the accused has not been before the courts for a number of years, favourable consideration is invariably given to an application for legal aid in respect

of a subsequent lapse into crime.

As a matter of course, legal aid is granted to aborigines and persons of aboriginal extraction, at District Court level and above. Aid is granted here, notwithstanding the type of offence involved or the previous record of the accused person.

Generally all persons accused of the more serious offences will be granted legal aid, unless the applicant is obviously in a position to arrange his own representation. Where no application for assistance is forthcoming and offences

such as murder, rape or manslaughter are involved, the Clerk of the Peace w ill bring the case to notice, where he is aware the accused has been unable to arrange represen­ tation himself.

37

LEGAL A ID IN NEW SOUTH WALES

I State Assistance in Criminal Matters (contd.)

(a) Public Defender (contd.)

5. Operation (contd.) Similarly, legal aid is granted as a matter of course where the accused may be mentally ill or a retarded person, or suffering from psychiatric problems. Legal aid is also provided where the Judge, on the case coming before him, feels that assistance is required. In particularly complex fraud cases legal aid has been granted frequently on the basis that to do so would be of assistance to the court.

Arrangements are made for psychiatric and/or psycholo­ gical examination etc., o f a legally assisted person, where this is necessary fo r the defence.

It should not be assumed on the granting of legal aid that the matter w ill be automatically assigned out. In this regard it is essential that an application for legal aid be made at the first opportunity.

6. Reimbursement In such cases the fees of the barrister and solicitor are

met by the Department of the Attorney-General and of Justice. In most cases, the barristers and solicitors appear for legally assisted persons for less than the fees they would normally charge. These fees are determined by the Attorney-General after consultation with the New South Wales Bar Association and the Law Society of New South Wales.

7. Type o f A id Representation of an accused person is by the Public

Defender instructed by an instructing officer from the Public Solicitor's Office. Where one of the Public Defenders is not available — usually in country matters — arrangements are made for the representation of the accused, by a barrister from a panel maintained by the New South Wales Bar Association, or, where the accused has been committed fo r sentence only, by a local solicitor.

8. Contribution

b y Applicant

Not required.

38

LEGAL AID IN NEW SOUTH WALES

I State Assistance in Criminal Matters (contd.)

(b) Dock Defences

1. Basis New South Wales Bar Associations' panel of Barristers

providing representation in Sydney metropolitan area.

2. Eligibility Accused persons in custody who have been committed

for trial or sentence and who have been refused legal aid, or who have chosen not to apply for it.

3. Administration Bar Associations' Panel of Barristers.

4. Finance Not applicable.

5. Operation Application to New South Wales Bar Association who

nominate Counsel, to represent the accused person.

6. Reimbursement Accused person pays fee of $6.30 to representative.

7. Type o f A id Representation before Court.

8. Contribution

b y Applicant

$6.30 and depending on circumstances of case.

39

LEGAL AID IN NEW SOUTH WALES

I State Assistance in Criminal Matters (contd.)

(c) Costs in Criminal Cases Act, 1967

1. Basis The Costs in Criminal Cases Act, 1967 is designed to

protect accused persons who come before the Courts as a result of genuine error on the part of the prosecution from legal costs in criminal matters.

2. E ligibility The Act applies where a Judge or Magistrate is of opinion

that genuine error was made by Prosecution in instituting proceedings.

3. Administration Under Secretary o f Justice.

4. Finance Consolidated Revenue.

5. Operation The A ct has application in cases where the presiding

Judge or magistrate is of the opinion that:

(a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings; and (b) that any act or omission of the defendant that

contributed, or might have contributed to the institution or continuation of the proceedings was reasonable in the circumstances.

In such cases a magistrate may issue a certificate speci­ fying the amount of costs he would have adjudged to be paid if he had made an order for costs against the informant. A certificate may also be granted by a judge, but, such certificate does not specify an amount.

6. Reimbursement Not applicable

7. Type o f A id Financial assistance

8. Contribution

b y Applicant

Not applicable

40

LEGAL AID IN NEW SOUTH WALES

II State Assistance in Civil Matters

(a) Legal Assistance A ct, 1943

1. Basis The Legal Assistance Act, 1943 provides legal assistance

in civil matters.

2. E ligibility The applicant must satisfy a prescribed means test, and

the permissible income for this is calculated by adding $200 to the annual equivalent of the basic wage, together with $300 fo r each dependant. A single man, therefore, may earn just in excess of $2,337 per annum, and a

married man with a wife and three children may earn slightly over $3,537. (From June, 1972 — $41.10 p.w. wage base).

Furthermore the applicant must not be possessed of or entitled to property of a total value of more than $400 exclusive of —

1. the subject matter of the proceedings; 2. wearing apparel of the applicant; 3. tools of trade of the applicant; 4. household furniture used by the applicant in his

own home; .

5. a dwelling house owned and used by the applicant as his home where the value of interest of the applicant in that dwelling house does not exceed $6,000.

With regard to property which an applicant may own, the Public Solicitor has a discretion to disregard any items where it appears to him reasonable to do so, to relieve hardship.

3. Administration Public Solicitors Office.

4. Finance State Government appropriation.

5. Operation The Public Solicitor is authorized to grant legal assistance

in civil matters where he is satisfied the applicant has reasonable grounds for taking, defending, continuing, or being a party to proceedings in the Supreme Court, in the District Court, or in respect of certain specified matters in courts of petty sessions, such as proceedings taken pursuant to the provisions of part 11 of the Land­ lord and Tenant (Amendment) Act, 1932, the Hire Purchase Act, the Moneylenders and Infants Loans Act, the Lay-by Sales Act, the Credit-sale Agreements Act, and section 88F of the Industrial Arbitration Act.

41

Where legal assistance is granted the Public Solicitor may act for the assisted person or may assign a solicitor on

LEGAL AID IN NEW SOUTH WALES

II State Assistance in Civil Matters (contd.)

(a) Legal Assistance Act, 1943 (contd.)

5. Operation (contd.) his staff or a private solicitor to act.

The Public Solicitor maintains a list of barristers and solicitors who are willing to act on assignment.

6. Reimbursement Where a matter is assigned to a private member of the

profession, the solicitor and counsel concerned act gratuitously if unsuccessful, but do receive whatever costs flow from any successful action or defence.

7. Type o f A id General advice in all cases. Legal assistance is granted in

Civil matters in the District Court and Supreme Court and in all appeals therefrom. Petty Sessions: proceedings taken pursuant to the provisions of part 11 o f the Land­ lord and Tenant (Amendment) Act, 1932, the Hire Pur­ chase Act, the Moneylenders and Infants Loans Act, the Lay-by Sales Act, the Credit-sale Agreements Act, and section 88F of the Industrial Arbitration Act.

As well as granting legal assistance under the Legal Assis­ tance Act, the Public Solicitor handles, in addition to criminal cases, a number of miscellaneous matters. Assis­ tance here is still confined to those whose income and means are w ithin the lim it prescribed by the Act, and it is extended to residents in all States, as well as the United Kingdom and other Commonwealth countries.

These miscellaneous matters include proceedings under the Landlord and Tenant (Amendment) Act, 1948, (where the Public Solicitor may grant assistance, in certain instances, to lessor and lessee) and divorce matters (either where property rights are in dispute, or where the person being sued fo r divorce is serving a period of Imprisonment). The Suitors' Fund however does not meet costs awarded against an assisted person in divorce proceedings.

The Public Solicitor also has a hire purchase advisory service, which is available to all persons w ithout regard to means or income.

42

A fund is provided under the Act for the payment of out-of-pocket expenses where there is hardship on the assisted person and the payment o f court fees is sus­ pended. The court may make the like order for costs against an assisted person as it would have made, had he not been an assisted person, and where costs are so awarded they are paid (with a $3,000 limitation) from the Suitors' Fund, and no part is payable by the assisted person

LEGAL AID IN NEW SOUTH WALES

II State Assistance in Civil Matters (contd.)

(a) Legal Assistance A ct, 1943 (contd.)

7. Type o f A id

(contd.)

The Suitors' Fund meets any order for costs against an assisted person involved in an appeal in these jurisdic­ tions, to the extent of $3,000. Furthermore in respect of Privy Council appeals, an advance may be made from the fund, of up to $6,000 to cover travelling, accommodation

and out-of-pocket expenses.

8. Contribution b y Applicant

Not sought, but may be asked to meet minor out-of­ pockets and other specific disbursements

43

LEGAL AID IN NEW SOUTH WALES

II State Assistance in Civil Matters (contd.)

(b) Legal Practitioner (Legal Aid) Act, 1970

1. Basis The Legal Practitioner (Legal Aid) Act, 1970 provides

legal aid fo r people whose means are such that they do not qualify fo r assistance from the Public Solicitor but whose means are nevertheless insufficient to enable them to embark upon litigation.

2. E ligibility Aid is available to a person whose income, after making

allowance for dependants:

(a) does not exceed $8,337 per annum (calculated by adding $6,200 to the annual equivalent of the basic wage (from June, 1972, $41.10 per week); (b) whose capital does not exceed $1,000 exclusive of:

(i) an interest (up to $10,000) in a home;

(ii) an interest in a privately owned motor car (up to $1,200); (iii) wearing apparel, household furniture, tools of trade; (iv) where applicable, the subject matter of the

proceedings.

As under the Legal Assistance Act, an allowance of $300 is made for each dependant, so a man with a dependant wife and three children may earn up to $9,507 per annum, or with 5 children $10,107 per annum, and still be eligible for assistance.

3. Administration Law Society of New South Wales

4. Finance Interest on Solicitors' Trust Accounts.

5. Operation Any member o f Public who seeks legal assistance should

take the matter up with his own solicitor. His solicitor w ill know the circumstances in which legal aid under the scheme is available and w ill present the necessary applica­ tion fo r legal aid to the Law Society.

In the exceptional circumstances where an applicant does not have a solicitor he may request the Law Society to refer him to a solicitor from a panel kept for that purpose. The solicitor to whom he is so referred w ill, provided he considers that the applicant is eligible for legal aid, com­ plete the application form on his behalf and submit it to the society.

6. Reimbursement Bills are rendered at the completion of proceedings. The Legal Aid Fund pays 90% of solicitor and client costs.

44

LEGAL AID IN NEW SOUTH WALES

II State Assistance in Civil Matters (contd.)

(b) Legal Practitioners (Legal Aid) A ct, 1970 (contd.)

7. Type o f A id The scheme applies to a person having reasonable grounds fo r taking, defending, continuing or being a party to civil proceedings in the Supreme Court, (other than pro­ ceedings in the matrimonial causes jurisdiction and in

non-contentious proceedings in probate), all proceedings in respect of which the District Court has jurisdiction (except those under Federal legislation), and various appeals in those matters to the Court of Appeal, the High Court of Australia, and the Privy Council.

8. Contribution

b y Applicant

The assisted person w ill be required to make an appro­ priate contribution to his legal costs, this contribution being related to his means. The minimum contribution is $50.

45

LEGAL AID IN NEW SOUTH WALES

II State Assistance in Civil Matters (contd.)

(c) Suitors Fund Act, 1951

1. Basis The Suitors Fund A ct, 1951 sets up a fund which provides

for the payment of legal costs in civil cases w ith primary object o f protecting parties from effects of 'legal error'

2. E ligibility Any person granted an Indemnity Certificate by the

Supreme Court.

3. Administration The control and management of the fund is the respon­

sibility of the Under Secretary of Justice, who, for the purpose of the legislation, is declared to be a corporation sole.

4. Finance Consolidated Revenue.

5. Operation The Supreme Court may grant an Indemnity Certificate

to an unsuccessful respondent. The Certificate entitles the respondent to be paid from the fund, an amount equal to the appellants' and his own costs of the appeal. The fund is further liable fo r costs awarded against assisted persons as defined in the Legal Assistance Act, 1943.

Any person who has been granted a Certificate may make application to the Under Secretary of Justice for a payment from the Consolidated Revenue Fund.

6. Reimbursement Not applicable.

7. Type o f A id Section 6 of the A ct provides that where an appeal to

the Supreme Court, the High Court or the Privy Council succeeds on a question of law, the Supreme Court may grant to the unsuccessful respondent an Indemnity Certificate which entitles the respondent to be paid from the fund an amount equal to the appellant's and his own costs of the appeal.

The amount payable from the fund in respect of any one Indemnity Certificate is limited to $3,000 where it was granted in respect of an appeal to the Supreme Court, $5,000 where it was granted in respect of an appeal to the High Court, and $7,000 where it was granted in respect of an appeal to the Privy Council.

46

Section 6A of the A ct provides for the costs o f pro­ ceedings not completed by reason of the death or pro­ tracted illness of a judge, magistrate, etc., or where proceedings are rendered abortive through no fault of the parties or their solicitor or counsel, to be recovered. It is necessary that a new trial be in fact held, and regard is had to the actual costs 'lost or thrown away' by reason of the abortive proceedings.

LEGAL AID IN NEW SOUTH WALES

II State Assistance in Civil Matters (contd.)

(c) Suitors Fund Act, 1951 (contd.)

7. Type o f A id

(contd.)

Section 6B o f the A ct provides for costs to be paid from the fund where a new trial is ordered in an action on the ground that the damages were excessive or inadequate.

8. Contribution

b y Applicant

Not applicable.

47

LEGAL A ID IN NEW SOUTH WALES

II State Assistance in Civil Matters (contd.)

(d) Matrimonial Causes Act, 1899-1951 (NSW)

1. Basis

2. E ligibility

3. Administration

4. Finance

5. Operation

6. Reimbursement

Matrimonial Causes Act, 1899-1951 (N.S.W.) provides assistance in divorce matters w ith relation to the sus­ pension of court fees and solicitors acting fo r reduced or no fees.

There is no means test. Each case is considered on its merits.

Registrar in Divorce.

By some Court fees being suspended and by panel mem­ bers and Counsel acting fo r reduced or no fees.

Persons who have no solicitor attend at the Registrar's Office in the first instance and if they appear to come w ithin the ambit of the scheme the case is assigned to one of the panel of solicitors. A ll applications for assis­ tance are made by way of affidavit and are considered by the Registrar. The assigned solicitor is then bound to charge only the amount shown in the undertaking given at the time of the application.

Applicants pay minor out-of-pockets and solicitors receive costs, if any, obtained from respondents.

7. Type o f A id A ll matters arising in Supreme Court in New South

Wales under the Matrimonial Causes Act

Three different grades of legal assistance may be granted:

(a) Fees Suspended (F.S.) — where the wife is unable to pay anything for her costs and pays only a sum ($46 plus actual disbursements) to cover the soli­ citor's out-of-pocket expenses, such as clerk's time, costs of stationery, etc. Of course, the solicitor is entitled to recover full costs from his client if the client recovers them from her husband. (b) Intermediate Scale (N.F.S.) — where the wife's

income is such that to pay the full costs of a suit or application would cause undue hardship to herself or her family but where it is considered that she would be able to pay a fee less than the full costs of a suit but more than the amount allowed to solicitors in F.S. cases. The fee is $120 plus $17 court fees plus actual disbursements. (c) In Forma Pauperis (F.P.) — a man in poor circum­

stances is liable to pay only one quarter of the normal profit costs and the solicitor’s out-of-pocket expenses. In undefended suits this is at present $50

io plus essential disbursements.

LEGAL AID IN NEW SOUTH WALES

II State Assistance in Civil Matters (contd.)

(d) Matrimonial Causes A ct, 1899-1951 (NSW) (contd.)

8. Contribution

b y Applicant

Depending on his means.

LEGAL AID IN NEW SOUTH WALES

II State Assistance in Civil Matters (contd.)

(e) Workers' Compensation A ct

1. Basis The Workers' Compensation A ct provides fo r legal assis­

tance to be granted to persons of limited means to enable them to take or defend, or be a party to, proceedings before the Commission.

2. E ligibility Applicant must have limited means and must appear

before the Commission as a poor person.

3. Administration Workers' Compensation Commission of New South Wales as constituted under the Workers' Compensation Act, 1926.

4. Finance Section 41 o f Workers' Compensation Act sets up fund

w ith contributions from insurers, self insurers and from government sources, etc.

5. Operation Applications are made to the Registrar of the Commission,

Citra House, 129-131 Macquarie Street, Sydney, in the first instance. Country workers who desire legal assis­ tance should write to the Registrar, setting out details of their case.

The Commission makes rules for the purpose of:

(i) enabling persons to take or defend, or be a party to proceedings before the Commission as poor persons; and (ii) regulating the practice and procedure and all mat­

ters relating to fees and costs in connection with such proceedings;

The Commission makes rules regarding all matters of procedure and practice, and prescribes forms to be used, scale of fees and costs to be paid to barristers and attorneys; expenses to be paid to witnesses, and the fees payable in any proceedings;

The Commission makes such order as to the payment of costs as it may think just, to the extent of the fees and costs actually incurred or to be incurred by the worker, and may assess the amount of such costs;

Provided that any such order or assessment shall not exceed the fees and costs provided by the highest scale applicable to proceedings in the Supreme Court of New South Wales in the Common Law Division.

The amount of costs shall in respect of the attendance of any medical witness be the actual cost of such attendance to the party calling the witness, or calculated according to the scale of costs applicable to proceedings in the

50

LEGAL AID IN NEW SOUTH WALES

II State Assistance in Civil Matters (contd.)

(e) Workers' Compensation A ct (contd.)

5. Operation (contd.) Supreme Court of New South Wales in the Common Law Division, whichever is the less.

The Commission shall not order the payment of costs by a worker unless it is satisfied that his application was frivolous or vexatious or was made fraudulently or, w ithout proper justification.

6. Reimbursement The Commission prescribes scales of fees and costs to be paid to barristers and attorneys.

7. Type o f A id The Commission pays from the fund such moneys as it

thinks proper for or in connection with enabling persons to take or defend, or be a party to, proceedings before the Commission as poor persons;

The Commission is required under the A ct to:

(a) furnish workers and employers w ith information as to their rights and liabilities in respect of injuries sustained by workers in connection with their employment;

(b) make all reasonable efforts to conciliate and bring parties to agreement where disputes have arisen concerning compensation claims of injured workers.

8. Contribution by Applicant

If the Commission decides that the application was frivolous or vexatious or was made fraudulently, or w ithout proper justification, it may order payment of costs by the applicant (worker).

51

LEGAL AID IN NEW SOUTH WALES

II State Assistance in Civil Matters (contd.)

(f) Probate Office

1. Basis General Assistance by Probate Office.

2. Eligibility Deceased must not have property over $2,000.

3. Administration Registrar of Probates

4. Finance State Government Appropriation.

5. Operation Application may be made direct to the Registrar of

Probates w ithout the intervention of solicitor, or through Country Clerks of Petty Sessions as district agents of the Registrar.

6. Reimbursement Not applicable.

7. Type o f A id The Registrar or agent, as the case may be, furnishes

the applicant w ith all necessary information and provides and fills in all forms of advertisements, affidavits, and other documents necessary for obtaining probate or administration, as the case may be.

8. Contribution

b y Applicant

Not applicable.

52

LEGAL AID IN NEW SOUTH WALES

III Other Sources of State Assistance

(a) National Roads and Motorists' Association (NRMA) Legal Service

1. Basis NRMA provides legal assistance for its members in a wide

variety of matters relating to motor vehicles and use thereof.

2. Eligibility Members of the Association have access to the legal

service provided by the Association.

3. Administration NRMA

4. Finance NRMA funds

5. Operation NRMA retains a solicitor and staff. Advice w ill be given

on any matter connected with the use, sale or acquisition of a motor vehicle. Members are advised generally regarding alleged traffic offences, and advised specifically (if such advice is sought), on the matter of the plea they should enter where a summons has been served on them.

In cases where a traffic infringement notice has been received, members are advised on their liability and the appropriate course they should adopt. Whilst the associa­ tion does not provide representation or act in civil cases, members may obtain advice as to their rights and guidance on the procedure to be taken in enforcing those rights.

6. Reimbursement Not applicable.

7. Type o f A id 1. Petty Sessions

(a) Traffic Offences. Free legal representation is provided for a member wishing to enter a plea of guilty or obtain an adjournment at any court of petty sessions in New South Wales. If a member wishes to be represented

on a plea of not guilty the association will arrange such representation but the member w ill be liable for counsel's fees in metropo­ litan cases or legal costs of a solicitor in country cases. (b) Licence Appeals. Representation w ill be

arranged for a member in appeals against the decision of the Commissioner for Motor Transport to suspend or cancel a driver's licence. This is done on the same basis as a

plea of not guilty to a traffic summons.

53

LEGAL A ID IN NEW SOUTH WALES

III Other Sources of State Assistance (contd.)

(a) National Roads and Motorists' Association (NRMA) Legal Service (contd.)

7. Type o f A id

(contd.)

2. District Court

The Association's solicitor w ill advise whether an appeal from a decision of a magistrate is warranted and will arrange representation on the basis that the member pays the appropriate barrister's fees.

8, Contribution

b y Applicant

Not applicable.

54

LEGAL AID IN NEW SOUTH WALES

III Other Sources of State Assistance (contd.)

(b) Council fo r Civil Liberties

1. Basis Council fo r Civil Liberties.

2. Eligibility Indigent applicants may apply to the Council for free

legal aid.

3. Administration Council fo r Civil Liberties

4. Finance Privately financed organisation.

5. Operation Application to the Council fo r Civil Liberties for

assistance.

6. Reimbursement Depends on the circumstances of the case.

7. Type o f A id The Council extends legal assistance in matters involving

issues of civil liberty. The Council is of the view that the following matters are generally considered to involve issues of civil liberty, namely:

Freedom o f speech.

Freedom to publish and to read,

Freedom of association and asssembly.

Freedom from arbitrary arrest and confinement.

Freedom to know reasons for administrative decisions and the right of appeal.

Freedom to choose one's own way of life and private behaviour.

8. Contribution by Applicant

Depends on circumstances of case.

55

LEGAL AID IN NEW SOUTH WALES

III Other Sources of Staff Assistance (contd.)

(c) Law Society's Neighbourhood Legal Service

1. Basis This service has been established by the Associate

Committee of the Law Society of New South Wales and is staffed by solicitors in an honorary capacity.

2. E ligibility The applicant is not subject to a means test, although the

service was constituted to assist those members of the lower income group who are for various reasons unwilling or unable to otherwise obtain legal assistance.

3. Administration Law Society of New South Wales.

4. Finance Law Society of New South Wales (panel of solicitors

acting in an honorary capacity).

5. Operation The object of the service is to offer free legal guidance at

a professional standard, although, where further action is necessary, the applicant is referred to the appropriate source of legal aid, or a solicitor who can act in a pro­ perly established solicitor/client relationship.

6. Reimbursement Not applicable.

7. Type o f A id Advice and referral function.

8. Contribution

b y Applicant

Not applicable

56

LEGAL AID IN NEW SOUTH WALES

III Other Sources of State Assistance (contd.)

(d) Clerks of Petty Sessions

1. Basis Officers in the Petty Sessions Branch of the Department

of the Attorney-General and of Justice are available to give advice to members of the public.

2. E ligibility No means test — anyone can apply

3. Administration Officers in the Petty Sessions Branch of the Department of the Attorney-General and of Justice.

4. Finance Not applicable.

5. Operation Interviews are conducted from 10 am-12.30 pm and

2 pm-3.30 pm daily. The Clerks provide an advisory and referral type service.

6. Reimbursement Not applicable.

7. Type o f A id The Clerk of Petty Sessions receives applications in res­

pect of matters before the Petty Sessions Courts and often gives direct assistance to unrepresented litigants in preparing such applications.

Clerk of Petty Sessions gives assistance in such matters as Motor Traffic, matrimonial and custody issues, civil suits for damages or debt, criminal matters, some fields in probate law, environment problems such as dividing fences, Local Government control and actions in to rt to

mention a few.

Members of the legal profession, other Government De­ partments and members of Parliament often refer to him problems relating to proceedings in the lower courts. The Chamber Magistrate assists persons in two main ways:

(a) in some issues, particularly domestic crises of various types, he can facilitate the institution of various legal processes to enable a remedy to be sought in the lower Courts; and

(b) in other matters he can give advice as to the legal requirements pertinent to particular matters where necessary, referring people to appropriate bodies for further guidance or suggesting the aid of a solicitor.

57

LEGAL A ID IN NEW SOUTH WALES

111 Other Sources of State Assistance (contd.)

(d) Clerks o f Petty Sessions

7. Type o f A id

(contd.)

However, a Chamber Magistrate can only advise on rights and responsibilities. He cannot appear for the person but must refer that person to a solicitor for advice on the course of action to adopt. Clerks of Petty Sessions are specifically instructed that their assistance must stop short of actual legal advice.

8. Contribution b y Applicant

Not applicable.

58

LEGAL AID IN NEW SOUTH WALES

IV Australian Courts and Tribunals

1A High Court o f Australia

Exercising Federal or State jurisdiction in CRIMINAL matters

(a) Appellate (b) Original

1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill .provide assistance

for Aboriginals where there are grounds. (Page 18) 3. In Federal matters, Judiciary Act, section 69(3) (Page 20) 4. Public Defender (Page 37)

5. Costs in Criminal Cases Act, 1967 (Page 40)

1B High Court o f

Australia

Exercising Federal jurisdiction in C IVIL matters

1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15)

2. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18) 3. Legal Assistance Act, 1943 (Page 41) (Public Solicitor's Office) 4. Suitors' Fund Act, 1951 (Page 46)

Note: in various appeals to the High Court from the Supreme Court and D istrict Court, assistance is provided under the Legal Practi­ tioners' (Legal Aid) A ct, 1970. This A c t however, does not give assistance in matters arising under Federal legislation.

Federal Tribunals 1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance.

(Page 15)

2 . An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

Australian Industrial 1. Where adequate and ready assistance is not available Court from other legal aid sources, the Australian Legal

Aid Office, in cases approved by the Attorney- General or his delegate, will provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18) 3. Conciliation and Arbitration Act, sections 141 A, 141B, 168 (Page 22) 4. Trade Unions.

59

LEGAL AID IN NEW SOUTH WALES

IV Australian Courts and Tribunals (contd.)

4. Australian Conciliation 1.

and Arbitration Commission

2.

Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- ; General or his delegate, w ill provide assistance. j (Page 15) i

An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

5. Bankruptcy Court

6. Courts Martial

Appeals Tribunal

1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance

fo r Aboriginals where there are grounds. (Page 18) 3. Bankruptcy Act, section 305 (Page 23)

1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance,

for Aboriginals where there are grounds. (Page 18) 3. Courts Martial Appeals Regulations, Regulation 11 (Page 25)

7. Courts Martial 1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18) 3. Defence Act, section 96 (Page 24)

8. Trade Practices Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-General or his delegate, w ill provide assistance. (Page 15)

60

LEGAL AID IN NEW SOUTH WALES

9A Supreme Court o f 1.

New South Wales 2.

o

Exercising Federal or State jurisdiction in CRIM INAL matters

(a) Appellate (b) Original

5.

6.

V State Courts and Tribunals

9ΒΊ Supreme Court o f 1.

New South Wales

2

Exercising Federal jurisdiction in C IVIL matters „

4.

(a) Appellate (b) Original

5.

6.

Public Defender (Page 37) Dock Defences (Page 39) Costs in Criminal Cases Act, 1967 (Page 40) Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal

Aid Office, in cases approved by the Attorney- General or his delegate, will provide assistance. (Page 15) An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18) In Federal matters, Judiciary Act, section 69(3) (Page 20)

Legal Assistance Act, 1943 (Public Solicitor's Office) (Page 41) Suitors Fund Act, 1951 (Page 46)

Matrimonial Causes Act, 1899-1951 (NSW) (Page 48) Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal

Aid Office, in cases approved by the Attorney- General or his delegate, will provide assistance. (Page 15) An Aboriginal Legal Service will provide assistance for Aboriginals where there are grounds. (Page 18) Bankruptcy Act, section 305 (Page 23)

9B2 Supreme Court o f New South Wales

Exercising State jurisdiction in C IVIL matters

(a) Appellate (b) Original

1. Legal Assistance Act, 1943 (Page 41) 2. Legal Practitioners (Legal Aid) Act, 1970 (Page 44) 3. Suitors Fund Act, 1951 (Page 46) 4. Probate Office (Page 52)

5. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 6 . An Aboriginal Legal Service will provide assistance

for Aboriginals where there are grounds. (Page 18)

10A D istrict Court (Criminal Jurisdiction)

(a) Appellate (b) Original

1. Public Defender (Only in the most exceptional cases is legal aid granted in respect of appeals from courts of petty sessions to District Court.) (Page 37) 2. Dock Defences (comparatively rare) (Page 39) 3. Costs in Criminal Cases Act, 1967 (Page 40) 4. NRMA (for traffic offences) (Page 53)

61

LEGAL AID IN NEW SOUTH WALES

V State Courts and Tribunals (contd.)

10A D istrict Court (Criminal Juris­ diction (contd.)

(a) Appellate (b) Original

10B D istrict Court (Civil Jurisdiction)

(a) Appellate (b) Original

/ 1. Industrial Commission o f New South Wales

12. Workers' Compen­ sation Commission

13A 1 Court o f Petty Sessions

Exercising Federal jurisdiction in CRIM INAL matters

5. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15)

6 . An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18) 7. Judiciary Act, section 69 (3) (offences against Federal legislation only) (Page 20)

1. Legal Assistance Act, 1943. (Public Solicitor's Office) (Page 41) 2. Legal Practitioners (Legal Aid) Act, 1970 (except proceedings under Federal legislation) (Page 44) 3. Where adequate and ready assistance is not available

from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 4. An Aboriginal Legal Service will provide assistance

for Aboriginals where there are grounds. (Page 18)

1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

1. Workers Compensation Act (Page 50) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal A id Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

1. Costs in Criminal Cases Act, 1967 (Page 40) 2. Dock Defences (rare) (Page 39) 3. Clerks of Petty Sessions (Page 57) 4. Where adequate and ready assistance is not available

from other legal aid sources, the Australian Legal A id Office, in cases approved by the Attorney- General, or his delegate, w ill provide assistance. (Page 15) 5. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

62

LEGAL AID IN NEW SOUTH WALES

V State Courts and Tribunals (contd.)

13A2 Court o f Petty Sessions

Exercising Federal jurisdiction in C lV IL matters

13B1 Court o f Petty Sessions

Exercising State jurisdiction in C R IM INAL matters

13B2 Court o f Petty Sessions

Exercising State jurisdiction in C IVIL matters

14. Licensing Court

15. Coroners Court

1. Clerks of Petty Sessions (Page 57) 2. Suitors Fund Act, 1951 (Page 46) 3. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal

Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 4. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

1. Public Defender (as a general rule legal aid is not granted in courts of petty sessions, except in res­ pect o f murder charges). (Page 37) 2. Dock Defences (rare) (Page 39) 3. Costs in Criminal Cases Act, 1967 (Page 40) 4. NRMA (traffic offences) (Page 53)

5. Clerks of Petty Sessions (Page 57) 6 . Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal A id Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) 7. An Aboriginal Legal Service will provide assistance for Aboriginals where there are grounds. (Page 18)

1. Legal Assistance Act, 1943 (in respect of certain specified matters) (Page 41) 2. Suitors Fund Act, 1951 (Page 46) 3. Clerks of Petty Sessions (Page 57) 4. Where adequate and ready assistance is not available

from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, will provide assistance. (Page 15) 5. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, will provide assistance.

(Page 15)

2. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal

63

LEGAL AID IN NEW SOUTH WALES

V State Courts and Tribunals (contd.)

15. Coroners Court (contd.)

Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

16. Children's Court (Maintenance and A ffilia tio n Proceedings)

1. With the assistance of the legal profession, a'court solicitor' scheme has been established at most Sydney courts o f petty sessions, and at Gosford, Penrith, Newcastle and Wollongong, to assist women in needy circumstances seeking maintena- ance from their husbands, or the fathers of their children.

The Minister of Justice approves the appointment of members of the legal profession as honorary court solicitors at specifically designated courts to appear on behalf of complainants in cases under the Maintenance Act and Child Welfare Act. The remuneration fo r the solicitors services are such costs as may be awarded by the court and subse­ quently recovered from the defendants. Assign­ ments are made by the clerk of petty sessions at the court concerned after inquiry as to the complain­ ant's financial circumstances.

A ll court solicitors are expected to appear fo r res­ pondent complainants in the District Court (Cri­ minal jurisdiction) when appeals are lodged against decisions of lower courts in which they have

appeared, and also, when specifically assigned, in connection w ith appeals by:

(a) complainants against dismissal of complaints; or (b) defendants against orders made.

When no assignments have been made in the first instance.

In making any special assignment referred to in (b), clerks of petty sessions are instructed to be guided by considerations similar to those upon which assignments are made upon the making of the complaints.

64

LEGAL A ID IN NEW SOUTH WALES

V State Court and Tribunals (contd.)

16. Children's Court (contd.) A court solicitor is entitled to obtain in advance Maintenance and from the complainant, an authority to collect all

A ffilia tio n Proceedings) professional costs awarded and to enforce payment thereof.

Applicants fo r assistance in proceedings in chil­ dren's courts are not referred to the Public

Solicitor because the Legal Assistance Act does not provide fo r his services in such cases.

Panels of solicitors have not been sought in coun­ try towns, but in many instances country solicitors w ill act fo r complainants on the same basis as a court solicitor.

In addition, where orders have been made in favour of the complainant in affiliation proceedings in country courts, and appeals have been lodged to the District Court (Criminal jurisdiction), the Attorney-

General, in appropriate cases, has approved of the grant of legal aid to the complainant/respondent to the appeal. (Page 2. Where adequate and ready assistance is not available

from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service will provide assistance

fo r Aboriginals where there are grounds. (Page 18)

17. Mining Wardens Court

18. Administrative Tribunals

1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service will provide assistance

for Aboriginals where there are grounds. (Page 18)

1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance.

(Page 15)

2. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

19. Courts o f Marine inquiry

1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-65

LEGAL AID IN NEW SOUTH WALES

V State Court and Tribunals (contd.)

19. Courts o f Marine Inquiry (contd.)

General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

20. Special Enquiry 1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal A id Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

66

LEGAL AID IN NEW SOUTH WALES

21. Royal Commissions 1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, will provide assistance.

(Page 15)

2. An Aboriginal Legal Service will provide assistance for Aboriginals where there are grounds. (Page 18)

VI Special Areas

22. Conveyancing 1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, will provide assistance. (Page 15) 2. An Aboriginal Legal Service will provide assistance

for Aboriginals where there are grounds. (Page 18)

23. Commercial Transaction

1. Legal Assistance Act, 1943 (Page 41) (In specific matters e.g. proceedings in Petty Sessions taken pursuant to the provisions of Part II of the Landlord and Tenant (Amentdment) Act, 1932, the Hire Purchase Act, the Money­ lenders and Infants Loans Act, the Lay-by Sales Act, the Credit-sale Agreement Act.) 2. Public Solicitor (hire purchase advisory service

available to all persons without regard to means or income). (Page 41) 3. Clerks of Petty Sessions. (Page 57) 4. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, will provide assistance. (Page 15) 5. An Aboriginal Legal Service will provide assistance for Aboriginals where there are grounds. (Page 18)

24. Wills and Estate Planning

1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance (Page 15) '

2. An Aboriginal Legal Service will provide assistance for Aboriginals where there are grounds. (Page 18)

■ 25. Probate 1. Probate Office (Page 52)

2. Clerks of Petty Sessions (Page 57)

67

LEGAL AID IN NEW SOUTH WALES

25. Probate (contd.) 3. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 4. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

VI Special Areas (contd.)

26. Taxation

27. Welfare and Fam ily Security

1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance

fo r Aboriginals where there are grounds. (Page 18)

1. Australian and State welfare agencies provide welfare services. 2. Clerks o f Petty Sessions. (Page 57) 3. Where adequate and ready assistance is not available

from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 4. An Aboriginal Legal Service w ill provide assistance

for Aborignals where there are grounds. (Page 18)

28. Local Government

29. Environment

30. Landlord & Tenant

1. Clerks of Petty Sessions (Page 57) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

1. Clerks of Petty Sessions (Page 57) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal

68

LEGAL A ID IN NEW SOUTH WALES

VI Special Areas (contd.)

30. Landlord & Tenant (contd.)

31. Advice

Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

1. Legal Assistance A ct, 1943 (Public Solicitor's Office). (Page 41) 2. Workers Compensation Act. (Page 50) 3. Probate Office. (Page 52) 4. NRMA (traffic matters) (Page 53)

5. Council for Civil Liberties. (Page 55) 6 . Law Society's Neighbourhood Legal Service (Page 56) 7. Clerks of Petty Sessions. (Page 57) 8. Where adequate and ready assistance is not available

from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, will provide assistance. (Page 15) 9. An Aboriginal Legal Service w ill provide assistance

for Aborignals where there are grounds. (Page 18)

69

LEGAL AID IN VICTORIA

Page

I Public Solicitor 71

II Legal Aid Committee 72

III Voluntary Legal Services 75

IV Australian Courts and Tribunals 77

V State Courts and Tribunals 79

VI Special Areas 82

70

LEGAL AID IN VICTORIA

I Public Solicitor

1. Basis Legal Aid Act 1969, Part 1

2. Eligibility In any case where the Attorney-General is of the

opinion that it is desirable in the interests of Justice that an Applicant should have legal representation on pro­ ceedings referred to in his application, .and that the appli­ cant is w ithout adequate means to provide legal assis­

tance for himself, the (State) Attorney-General may grant the Application.

3. Administration The Attorney-General of Victoria and the Crown Law

Department. In practice, the Public Solicitor is instruc­ ted by the Attorney-General.

4. Finance State Government Appropriation.

5. Operation Applications are made to the Attorney-General via the

Crown Law Department and if approved, are handled by full-tim e staff in the Office of the Public Solicitor, with appearances by Counsel.

6. Reimbursement Counsel are paid on an agreed reduced fee basis. Fees increased June 1972,and expected further increase in March 1973.

7. Type o f A id Assistance is restricted to criminal matters. Representa­

tion is provided for the following:

(a) Trials for indictable offences against the laws of Victoria. (b) Committal proceedings and Inquests where a per­ son has been charged with murder, treason or man­

slaughter.

(c) Appeals to the Full Court of the Supreme Court with respect to an indictable offence. (d) Appeals to the Privy Council in respect of an offence for which death sentence has been im­

posed.

8. Contribution by Applicant

None

71

LEGAL AID IN VICTORIA

1. Basis The Scheme has been in operation since 1964, at first on

a very limited scale and complementary to aid available in civil and criminal matters from the Public Solicitor pursuant to the Poor Persons Legal Assistance Act. His work was restricted to trials for indictable offences, appeals to the Full Court of Supreme Court in criminal

matters, and civil matters in the County and Supreme Courts. In civil matters it was necessary fo r a person to be admitted to sue or defend 'in forma pauperis' the qualification for which was a net asset worth of $500.00 exclusive only of furniture and tools of trade.

Recognizing the very restricted aid available in civil matters, the Legal Aid Committee undertook to provide aid in all civil matters if adequate finance was made available.

By the Legal Aid A ct 1969,the Public Solicitor was di­ vested of his civil jurisdiction and increased funds from the Solicitors' Guarantee Fund were made available to the Legal Aid Committee.

II Legal Aid Committee

2. Eligibility There appear to be three criteria for assessing eligibility

for assistance.

(1) Financial — if the applicant has sufficient resources to hire his own solicitor he is not assisted. (2) Legal — the applicant w ill not be assisted if he has 'no case to put' and is not likely to be deprived of

his freedom or livelihood, (e.g. if it was normally punished by a fine.) (3) Policy — in general the Committee w ill not grant assistance in committal proceedings except for a

very serious charge such as mass rape. 'The average housebreaker' would not be assisted at committal proceedings.

3. Administration The Legal Aid Committee under the A ct is a body cor­

porate consisting of 8 members, 4 appointed by the Victorian Bar Council and 4 by the Council of the Law Institute of Victoria. They act in an honorary capacity and administer the scheme for providing legal assistance, either w ithout payment therefore, or upon payment of such sum as the Committee thinks reasonable (Section 8 of the Act).

The Committee has a permanent staff consisting of 5 solicitors and 21 general staff.

72

LEGAL AID IN VICTORIA

Legal Aid Committee (contd.)

Finance (a) Interest on Solicitors'Trust Accounts. Since April

1972, the Committee has been paid one half of the surplus moneys in the Solicitors'Guarantee Fund. Forty per centum of the minimum balance of Solicitor's Trust Accounts is now placed on Interest

Bearing Deposits with Trading Banks, and the interest received is paid to the Solicitors'Guaran­ tee Fund which is held by the Law Institute of Victoria. A sinking fund of $1,500,000.00 is held,

allowance is made for contingent claims, adminis­ tration charges are deducted and a surplus is de­ clared at the end of each quarter. One half of this surplus is paid to the Legal Aid Fund, which is held

in the State Treasury, and is drawn on by the Legal Aid Committee to finance its activities. In the year 1971-72 $745,000 was received. (b) Costs recovered in successful litigation.

(c) Contributions by assisted persons. (d) Surplus in Appeals Costs Fund (very little from this source). (e) Occasional government grant ($75,000 in 3 years).

Operation Applications made to Committee and if assistance gran­

ted, person is referred to private solicitor who acts in a solicitor-client relationship w ithout supervision. In a case of appeal further approval is required. Details of applications for the last two years are given below.

Year Total Total Not

Applications Approved Approved/

Withdrawn

1971/72 13016 7086 409/859

1972/73 13551 6721 * 1268

*No breakdown of this figure

Reimbursement Practitioner at end of proceedings renders account drawn on appropriate scale on a solicitor and client basis to Committee which then pays 80% of the account as accepted. ($ection 11 (3) Legal Aid Act 1960.)

Type o f A id Under Bection 8 (1) of the Legal Aid A ct (1969) the

Legal Aid Committee has power to determine its own scope and criteria. The Committee provides aid in the following matters.

(a) Criminal matters heard in a Magistrates court, including committals, as well as inquests. Chil­ dren's Court proceedings (not covered by the Pub­ lic Bolicitor), and appeals to the County Court from Magistrates' Court decisions.

73

LEGAL AID IN VICTORIA

II Legal Aid Committee (contd.)

7. Type o f A id (contd.) (b) Civil proceedings, including actions under the

Matrimonial Causes Act. (c) Some assistance and limited advice (usually in the form of referrals) is available from the staff, as well as 'proceedings before any person acting judicially'.

Assistance by the Committee does not include conveyan­ cing except that resulting from a Court order or probate matters (with very rare exceptions for probate). Must be in Victorian Court. An extremely flexible scheme. No rules provided by the legislation. Matrimonial matters comprise more than one half of the applications received and approved by the Committee.

8. Contribution by

Applicant

Fixed in the discretion of the Committee for each applicant.

74

LEGAL AID IN VICTORIA

III Voluntary Legal Services Fitzroy Legal Service 1. Basis It was felt that gaps existed in traditional Legal Aid Ser­

vices in Victoria, and from a community attempt to fill such areas, voluntary workers, including lawyers, articled clerks, social workers, typists, interpreters etc. combined to make law more accessible to the community and con­ sequently set up the Fitzroy Legal Service.

2. E ligibility No means test, but if a person's means are such that it is

felt they could pay for the services of a solicitor they are rejected.

Due to pressure of work, a geographical limitation applies and the service caters for people from Fitzroy, Carlton, Collingwood and the Richmond areas only.

3. Adm inistration The Central Committee.

4. Finance No regular financial income, but the Australian Govern­

ment has made a grant of $2000.00. A further grant of $1000.00 was made by the Fitzroy Council along with the use of a telephone rent free.

5. Operation The Service is operated from the Fitzroy Town Hall

(basement). Client interviewed by lawyer and legal advice given where possible and where necessary or pos­ sible, refers the client for further assistance.

6. Reimbursement None, but clients are encouraged to participate in the

Service with whatever they can contribute.

7. Type o f A id All necessary advice, letters written, negotiations under­

taken, legal aid applications completed, and where necessary representation arranged. The service w ill not issue a w rit on behalf of a client, until a full time

solicitor is employed by the Service.

8. Contribution by

Applicant

Not applicable.

9. Comment Other voluntary Legal Services, offering similar assis­

tance are operating in the following areas:

1. Springvale — 5 Osborne Ave., Springvale: Tuesday, Wednesday and Friday: 6.30-10.30 pm. 2. St Kilda — Cnr. Carlisle & Chapel St., St Kilda: Monday and Wednesday: 7-10 pm. 3. Prahran — 59 St John St., Prahran: Tuesday and

Thursday: 6-9 pm. 4. Broad meadows — Cnr. Pascoe Vale Rd. & Lytton St. Glenroy: Monday and Tuesday: 6.30-9.30 pm.

75

LEGAL AID IN VICTORIA

III Voluntary Legal Services (contd.) Fitzroy Legal Service 5. Moe/Morwell — Credit Union Co. Op. Albert St. (Moe): Monday and Tuesday 7-9 pm.

— Social Welfare Dept. Offices, (Mor- weII): Wednesday and Thursday 7-9 pm.

6 . Western Suburbs — Good Neighbour Council Of­ fices, Albert St., Footscray. 7. North Melbourne ) 8. Kensington ) Referral centres fo r Housing

9. West Heidelberg ) Commission flats.

The services are not manned by lawyers during the day but are manned by volunteer lawyers on a roster basis on certain nights of the week. The services are covering an extensive part o f Melbourne; the only parts not serviced are the outer eastern, north eastern and outlying western suburbs. A ll services attempt to provide a full socio-legal approach to problems and recognize the relationship between legal and social problems. A ll are autonomous and most are funded by donations from agencies and workers. A ll fu lfill a need by making available legal advice and assistance to those who would not otherwise have access to a lawyer. A ll are working towards the ideal of becoming a genuine community- based service staffed w ith and fo r the local people and having strong links with other community activities (e.g. the Fitzroy Service acts for the Housing Commission Tenants Union).

76

LEGAL AID IN VICTORIA

IV Australian Courts and Tribunals

1. High Court o f Australia

Exercising Federal or State jurisdiction in C IVIL or CRIMINAL matters

(a) Appellate (b) Original

2. Federal Tribunals

3. Australian Industrial Court

4. Australian Conciliation and Arbitration Commission

5. Bankruptcy Court

1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance.

(Page 15)

2. An Aboriginal Legal Service will.provide assistance for Aboriginals where there are grounds. (Page 18) 3. In Federal criminal matters .Judiciary Act, Section 69 (3). (Page 20) 4. Legal Aid Committee (Page 72)

1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service will provide assistance

for Aboriginals where there are grounds. (Page 18) 3. Legal Aid Committee (where legal representation is permitted). (Page 72)

1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, will provide assistance. (Page 15) 2. An Aboriginal Legal Service will provide assistance

for Aboriginals where there are grounds. (Page 18) 3. Conciliation & Arbitration Act, Sections 141 A, 141B, 168. (Page 22) 4. Assistance from Legal Aid Committee may be

available if Australian Government assistance refused. (Page 72) 5. Trade Unions.

1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service will provide assistance

for Aboriginals where there are grounds. (Page 18) 3. Assistance from Legal Aid Committee may be available if Australian Government assistance refused.(Page 72)

1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance.

(Page 15)

77

LEGAL A ID IN VICTORIA

IV Australian Courts and Tribunals (contd.)

5. Bankruptcy Court (contd.)

6. Courts Martial

Appeals Tribunal

7. Courts Martial

8. Trade Practices

2. An Aboriginal Legal Service w ill provide assistance fo r Aboriginals where there are grounds. (Page 18) 3. Bankruptcy A ct, Section 305. (Page 23) 4. Legal Aid Committee. (Page 72)

1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18) 3. Courts Martial Appeals Regulations, Regulation 11. (Page 25) 4. Assistance may be provided by Legal Aid Commit­

tee if Australian Government assistance is refused. (Page 72)

1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18) 3. Defence Act, Section 96. (Page 24) 4. Assistance may be provided by Legal A id Commit­ tee if Australian Government assistance refused.

(Page 72)

1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 2. Assistance may be provided by Legal A id Commit­

tee if Australian Government assistance refused. (Page 72)

78

LEGAL A ID IN VICTORIA

Supreme Court 1.

o f Victoria 2.

Exercising Federal or State jurisdiction in C IV IL or CRIM INAL

matters

(a) Appellate 4

(b) Original

5.

6.

State Courts and Tribunals

County Court 1.

o f Victoria 2.

Q

Exercising Federal or '

State jurisdiction in C IVIL or CRIM INAL matters

(a) Appellate 4

(b) Original

5.

6.

industrial Appeals 1.

Court 2.

3.

4.

In criminal matters the Public Solicitor. (Page 71) In civil matters the Legal Aid Committee. (Page 72) Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) An Aboriginal Legal Service will provide assistance for Aboriginals where there are grounds. (Page 18)

In Federal criminal matters. Judiciary Act, Section 69 (3). (Page 20) In bankruptcy matters. Bankruptcy Act,Section 305. (Page 23)

In criminal matters the Public Solicitor. (Page 71) Legal Aid Committee. (Page 72) Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) An Aboriginal Legal Service w ill provide assistance fo r Aboriginals where there are grounds. (Page 18)

In Federal criminal matters, Judiciary Act, Section 69 (3). (Page 20) In bankruptcy matters. Bankruptcy Act, Section 305. (Page 23)

Legal Aid Committee. (Page 72) Trade Unions and Employer Organisations. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal

Aid Office, in cases approved by the Attorney- General or his delegate, will provide assistance. (Page 15) An Aboriginal Legal Service will provide assistance for Aboriginals where there are grounds. (Page 18)

Workers' Compen­ sation Board 1. Legal Aid Committee. (Page 72) 2. Trade Unions

3. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 4. An Aboriginal Legal Service will provide assistance

for Aboriginals where there are grounds. (Page 18)

LEGAL A ID IN VICTORIA

V State Courts and Tribunals (contd.)

13. Magistrates Court

Exercising Federal or State jurisdiction in C IV IL or CRIMINAL matters

1. In criminal matters Public Solicitor. (Page 71) 2. Legal Aid Committee. (Page 72) 3. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal

Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 4. An Aboriginal Legal Aid Service w ill provide assis­ tance fo r Aboriginals where there are grounds. (Page 18)

14. Liquor Control Commission

1. Legal Aid Committee. (Page 72) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service will provide assistance for Aboriginals where there are grounds. (Page 18)

15. Coroners Court 1. Public Solicitor. (Page 71)

2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service will provide assistance

for Aboriginals where there are grounds. (Page 18)

16. Children's Court 1. Public Solicitor (Page 71)

2. Legal Aid Committee. (Page 72) 3. Where adequate and ready assistance is not available . from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) 4. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

17. Mining Wardens Court 1. Legal Aid Committee. (Page 72) 2. Where adequate and ready assistance is not available

from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

80

LEGAL AID IN VICTORIA

V State Courts and Tribunals (contd.)

18. Administrative Tribunals

19. Courts o f Marine Inquiry

20. Special Enquiry

1. Legal Aid Committee (where legal representation permitted). (Page 72) 2. Where adequate and ready assistance is not a va ila b le from other legal aid sources, the A u stralian Legal

Aid Office, in cases approved by the A tto r n e y - General or his delegate, will provide assistance. (Page 15) 3. An Aboriginal Legal Service will provide assistance

for Aboriginals where there are grounds. (P a g e 18)

1. Legal Aid Committee. (Page 72) 2. Where adequate and ready assistance is n o t available from other legal aid sources, the A u stralian Legal Aid Office, in cases approved by the A tto rn e y -

General or his delegate, will provide assistance. (Page 15) 3. An Aboriginal Legal Service will provide assistance for Aboriginals where there are grounds. (Page 18)

1. Legal Aid Committee. (Page 72) 2. Where adequate and ready assistance is n o t available from other legal aid sources, the A u s tra lia n Legal Aid Office, in cases approved by the A tto rn e y -

General or his delegate, will provide assistance. (Page 15) 3. An Aboriginal Legal Aid Service will provide assis­ tance for Aboriginals where there are grounds.

(Page 18)

81

LEGAL A ID IN VICTORIA

21. Royal Commissions 1. Legal Aid Committee. (Page 72) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

VI Special Areas

22. Conveyancing

23. Commercial Transactions

1. Resulting from a Court Order — by Legal Aid

Committee. (Page 72) In other cases no aid. 2. Department of Housing — War Service Homes Division, for persons eligible fo r War Service

Benefits.

3. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 4. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

24. Wills & Estate Planning

1. Public Trustee Office only where Public Trustee is appointed Executor. (Long waiting list). 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal

Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

25. Probate 1. By Registrar of Probate where estate is of a maxi­

mum value of $5000 where only beneficiaries are spouse and children.

$2500 maximum in all other cases.

82

LEGAL AID IN VICTORIA

VI Special Areas (contd.)

25. Probate (contd.)

26. Taxation

2. By Legal Aid Committee, where a grant is necessary as a condition precedent to litigation and in other appropriate cases when hardship may result in a grant not being obtained. (Page 72) 3. Where adequate and ready assistance is not available

from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 4. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance.

(Page 15)

2. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

27. Welfare and Family Security

28. Local Government

29. Environment

1. Australian and State welfare agencies provide welfare services. 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal

Aid Office, in cases approved by the Attorney- General or his delegate, will provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

1. Legal Aid Committee in cases of hardship only. (Page 72) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal

Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

1. Legal Aid Committee. (Page 72) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

83

LEGAL A ID IN VICTORIA

VI Special Areas (contd.)

30. Landlord & Tenant

31. Advice

1. Legal Aid Committee. (Page 72) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

1. By staff of Legal A id Committee. (Page 72) 2. Officers of Fair Rents Courts. 3. Voluntary advice and referral services conducted by members of the legal profession. 4. R.A.C.V. (traffic matters). 5. When adequate and ready assistance is not available

from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 6. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

32. General There is no matter which of its nature debars an appli­

cant from seeking advice or assistance from the Legal A id Committee. (Page 72)

84

LEGAL AID IN QUEENSLAND

Page

I Legal Assistance Scheme 86

II Public Defender 90

III Australian Courts and Tribunals 92

IV State Courts and Tribunals 94

V Special Areas 97

85

LEGAL AID IN QUEENSLAND

1. Basis The Legal Assistance A ct 1965-1971 and Regulations

provide both legal advice and representation.

I Legal Assistance Scheme

2. E ligibility Legal Advice: The Applicant must have received no

more than $40 of income, after tax, for the 7 days be­ fore application, or he must have averaged no more than $40 per week for the previous twelve months, after de­ ducting certain allowances; these allowances are at the

rate of $600 per annum for a dependant wife and $300 for each dependant child. In addition, the applicant must own less than $ 1,000 worth of unencumbered dis­ posable assets such as money, a motor car, shares, etc. (but excluding the house he lives in, furniture, clothing and tools of trade).

Legal aid (as distinct from legal advice): The Applicant must reasonably expect to receive less than $3000 net income, after tax, for the next ensuing year, or have actually received less than $3000 for the past year, after allowances, if married: these are $600 fo r a dependant wife and $300 each for dependant children.

Additional allowances may be made if the applicant has to pay expenses such as child care to enable him to earn income. In addition, he must possess less than $3000 worth of disposable assets of the types listed as for

legal advice.

Note: If the applicant's spouse has no contrary interest in the case, his or her income may be added to the applicant's less allowances as above, in assessing eligibil­ ity for legal aid.

In assessing disposable assets the value of the Applicant's dwelling house, furniture, effects and articles of personal clothing are not taken into account, nor are tools and implements of trade up to a value of $200.

In certain cases, where the Applicant is a married woman who has been forced to leave the matrimonial home by reason of her husband's behaviour and is thus put to expense fo r rent or board, such rent or board may be allowed against the disposable income of the Applicant.

Application on behalf of infants: If a person is applying on behalf o f an infant, his or her capital and income are normally treated as those assessible fo r legal aid. How­ ever, if the Applicant is a parent or guardian, or maintains the infant or contributes substantially to his or her

maintenance, the Applicant's resources may be treated as those of the infant if the Committee considers this

. reasonable.

LEGAL AID IN QUEENSLAND

3. Administration Legal Assistance in Queensland is administered by the Legal Assistance Committee comprising three members appointed by Order-in-Council; two from the Law Soc­ iety and one nominated by the Minister for Justice.

The Legal Assistance Committee has the overall super­ vision and control of the Scheme, makes decisions as to policy, gives directions to the Secretary and other Committees, controls the finances, decides the scale of

payments to Solicitors who act on behalf of the Com­ mittee, and generally supervises the overall operation of the Scheme throughout the State. It also controls, at the present time, certain matters such as Divorce, Crim­

inal and Interstate Applications.

There are also three District Committees, one based at Brisbane and the others at Rockhamptom and Towns­ ville. The Central District Committee (Rockhampton) is administered from Brisbane by the State Secretary. The Northern District Committee at Townsville has separate Regional Committees at Cairns and Mackay.

Each District and Regional Committee has the respon­ sibility of examining all applications for legal assistance w ithin their districts, deciding whether or not the App­ licant is eligible for legal assistance and has a reasonable

prospect of success. If so, it allocates the work to a solicitor and fixes the fees payable in relation thereto.

Each of the District and Regional Committees is auton­ omous in relation to all matters except Divorce, Crim­ inal and Interstate. The District Committees make their own decisions on the granting or refusal of legal assist­ ance in any particular case, subject to the right of appeal to the Legal Assistance Committee.

4. Finance 1. From interest paid by the Banks on portion of

the moneys standing to the credit of solicitors' Trust Accounts. This interest is paid on two-thirds the lowest balance in each trust account in any one year.

2. Commonwealth Grant to State — 1973: $192,000. (As part of the $2M. grant given to the States by the Australian Government in December 1973 to assist State Legal Aid Schemes. Queensland was given $295,900).

5. Operation Applications for legal aid may be made either through a

solicitor or direct to a Legal Assistance Office. The direct approach is favoured by the Applicants. For year 1971-2, of 5804 persons granted legal aid, 4869 were interviewed by Legal Aid Offices. Offices comprise —

Brisbane City and suburban offices — Inala, Sandgate

I Legal Assistance Scheme (contd.)

87

LEGAL AID IN QUEENSLAND

Operation (contd.) and Wynnum. Country — Ipswich and Townsville. If application is made through legal aid offices, a solicitor is assigned on a roster basis in Brisbane. Virtually all firms participate in the Scheme.

If application is made through a solicitor he continues to act. The solicitor must certify both as to reasonable grounds and eligibility.

Certificates are granted for specific action — Counsel's advice, commencing or defending proceedings, etc.,and may be subject to conditions e.g. application for costs.

Further certificates may be granted depending on the course o f the case. Total administrative costs average $6.6 per application.

Appended hereunder is a Summary of Applications for ’ Legal Assistance received throughout the year 1972­ 1973, together with a comparative total showing the

increase from the previous year.

Legal Assistance Scheme (contd.)

1971/72 Applications for 1972/73 Increase

960 Divorce 1205 245

3809 Maintenance 4959 1150

460 Custody (not

related to divorce) 670 210

359 Motor Vehicle 375 16

851 Civil (other than

motor vehicle) 1075 224

73 Workers' Compensation 82 9

131 Deceased Estates 139 8

449 Miscellaneous 532 83

21 Criminal 49 28

7113 9086 1973

Applications refused 858: generally on means test.

Reimbursement The Practitioner renders his bill to the Committee on completion of proceedings and is paid approximately 80% of normal solicitor and client fees as assessed by the Committee.

Type o f A id The Legal Assistance Scheme offers three separate

services:

1. Legal advice for people who wish to find out

their rights and liabilities on a particular legal problem, by discussing it with a solicitor.

2. Legal aid in litigious cases for people who are ad­ vised by the solicitor to take proceedings against

LEGAL AID IN QUEENSLAND

7. Type o f A id (contd.) an individual or organisation, or to enter a defence

in a case brought against them. This includes rep­ resentation by a barrister, if desirable, as well as the solicitor's normal services.

3. Legal Assistance is given in non litigious matters in necessitous cases.

No assistance in criminal and quasi-criminal matters, except committals on indictable offences in Petty Sessions punishable on conviction by imprisonment for a term exceeding 14 years. These charges include major offences such as murder, manslaughter, rape and rob­

bery.

There is no assistance in the following criminal and quasi-criminal cases: Traffic breaches; drunken driving; arrears of maintenance; common assault; stealing; break­ ing and entering, etc.

Assistance in all civil matters including an advice scheme, for all Queensland Courts including High Court and its criminal jurisdiction and appeals therefrom. There is no assistance in the following civil cases: Defamation; breach of promise; loss of services of a woman or girl as a result of rape or seduction; inducement of a husband to leave wife, or wife to leave husband; and certain other not very common types of proceedings.

No opinion on legal advice given by another solicitor on any subject w ill be given.

Enquiries about missing persons cannot be dealt with under legal assistance.

No legal assistance w ill be discussed over the telephone.

Legal Assistance is available only for legal problems.

8. Contribution b y Contributions waived by Committee as from 1.11.73. A Applicant general fee of $1.00 is charged for an interview, but this

can be waived.

I Legal Assistance Scheme (contd.)

89

LEGAL AID IN QUEENSLAND

Public Defender

Basis

E ligibility

Adm inistration

Finance

Operation

Reimbursement

Type o f A id

The position o f Public Defender was originally created by and still has its legal basis in Regulation 41 under 'The Public Curator Acts, 1915-1947'. A id is given in accordance w ith the Poor Prisoners' Defence Act, 1907.

The Poor Prisoners' Defence A ct of 1907 provides that any person committed fo r trial for an indictable offence may apply to a Judge or Stipendiary Magistrate for the appointment o f Counsel for his defence. Subject to a certificate by such Judge or Magistrate that the person is w ithout adequate means and that it is in the interests of justice for Counsel to be provided. Legal Aid may be provided at public expense.

The Public Defender is not concerned in the grant of leg­ al aid which is done by the Justice Department.

Government appropriation via the Department o f Justice.

Certificates are forwarded to the Minister for Justice or to whichever Minister is administering fo r the time being the Department of Justice. If the Minister agrees then the Public Defender's Office arranges fo r the defence of the accused. The Public Defender appears for persons granted legal aid or briefs out. Less than 2/5 of total cases were briefed out in 1972-3 at cost of $53,000.

Total staff of 22 — comprising 1 Public Defender, 4 Assistant Public Defenders, 1 Solicitor, 1 Assistant Solicitor, 13 Clerks, 2 Stenographers.

Actual office expenditure for 1972-3 comprising sal­ aries, postage, incidentals, but not rent, depreciation, etc.: $197,643. Number of clients 1972-3 — 520 Cost per client including briefed out — $482

Brief fees — Supreme Court — $100 $60 — District Court — $80 $55

The Public Defender and his staff are salaried officers. Where counsel are used, as in major matters or country trials, and more rarely, solicitors, they are paid on a Cabinet approved reduced fee basis, which was sub­ stantially increased in September 1972.

Representation in trials of indictable offences. There is no aid provided on pleas of guilty except where applic­ ants were originally committed fo r trial. We are informed that in practice all applicants on indictable charges pleading not guilty are represented regardless of prev­ ious convictions.

LEGAL AID IN QUEENSLAND

II Public Defender (contd.)

7. Type o f A id (contd.) A person committed fo r sentence on an indictable

offence is not usually granted Legal Aid but this is occasionally done when there are special circumstances. Legal Aid is also granted under Section 671C of ‘The Criminal Code' in respect of Appeals after conviction to the Court of Criminal Appeal or from that Court to the

High Court of Australia. (1972-3 40 appeals to Court of Criminal Appeal; 1 to the High Court).

Occasionally Legal Aid is also granted in a miscellaneous variety of isolated cases usually of a criminal or quasi­ criminal nature such as proceedings in the Children's Court, Summary Criminal Proceedings in the Magis­

trates Court, Coroner's Inquiries, etc. It is not the gen­ eral practice to provide Legal Aid for Committal proc­ eedings on indictable offences but in very special cases this has also been done.

8. Contribution b y

Applicant

Not sought: Applicants are without adequate means.

91

LEGAL A ID IN QUEENSLAND

Australian Courts and Tribunals

High Court o f Australia

Exercising Federal or State jurisdiction in Civil or Criminal matters

(a) Appellate (b) Original

Federal Tribunals

1. Where adequate and ready assistance is not avail­ able from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-General or his delegate, w ill provide assistance. (Page 15)

2. An Aboriginal Legal Service w ill provide assistance fo r Aboriginals where there are grounds. (Page 18)

3. In Federal criminal matters. Judiciary Act, Sec­ tion 69(3) (Page 20)

4. In criminal matters, Public Defender (Page 90)

5. In civil matters. Legal Assistance Scheme and in !

criminal matters, fo r committal for trial only, j

(Page 86) j

1. Where adequate and ready assistance is not avail- [ able from other legal aid sources, the Australian j. Legal A id Office, in cases approved by the j

Attorney-General or his delegate, w ill provide \ assistance. (Page 15) ■

2. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

3. Legal Assistance Scheme (Page 86)

Australian Industrial Court 1. Where adequate and ready assistance is not avail­ able from other legal aid sources, the Australian

Legal Aid Office, in cases approved by the Attorney-General or his delegate, w ill provide assistance. (Page 15)

2. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

3. Conciliation and Arbitration Act, Sections 141 A, 141B, 168 (Page 22)

Australian Conciliation and Arbitration Commission

1. Where adequate and ready assistance is not avail­ able from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-General or his delegate, w ill provide assistance. (Page 15)

2. An Aboriginal Legal Service will provide assistance for Aboriginals where there are grounds. (Page 18)

Bankruptcy Court 1. Where adequate and ready assistance is not avail­ able from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-General or his delegate, w ill provide assistance. (Page 15)

LEGAL AID IN QUEENSLAND

III Australian Courts and Tribunals (contd.)

5. Bankruptcy

Court (contd.)

2. An Aboriginal Legal Service will provide assistance for Aboriginals where there are grounds. (Page 18) 3. Bankruptcy Act, Section 305 (Page 23) 4. Legal Assistance Scheme (Page 86)

6. Courts Martial

Appeals Tribunal

1. Where adequate and ready assistance is not avail­ able from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18) 3. Courts Martial Appeals Regulations, Regulation 11 (Page 25)

7. Courts Martial 1. Where adequate and ready assistance is not avail­

able from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18) 3. Defence Act, Section 96 (Page 24)

8. Trade Practices Where adequate and ready assistance is not avail­

able from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-General or his delegate, will provide assistance. (Page 15)

93

LEGAL AID IN QUEENSLAND

IV State Courts and Tribunals

9. Supreme Court 1.

o f Queensland 2.

q

Exercising Federal or State jurisdiction in Civil or Criminal matters

(a) Appellate 4

(b) Original

5.

6.

10. D istrict Courts o f 1.

Queensland 2.

O

Exercising Federal °·

or State jurisdiction in Civil or Criminal matters

(a) Appellate 4

(b) Original

5.

11. Industrial Court 1.

2. 3.

4.

Industrial 1.

Magistrates' 2.

Court 3.

4.

Magistrates' Court 1.

Exercising Federal or State jurisdiction in 2.

In criminal matters. Public Defender (Page 90) In civil matters. Legal Assistance scheme (Page 86) Where adequate and ready assistance is not avail­ able from other legal aid sources, the Australian

Legal Aid Office, in cases approved by the Attorney-General or his delegate, w ill provide assistance. (Page 15) An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

In Federal criminal matters. Judiciary Act, Sec­ tion 69(3) (Page 20) In bankruptcy matters. Bankruptcy Act, Sec­ tion 305 (Page 23)

In criminal matters. Public Defender (Page 90) In civil matters. Legal Assistance scheme (Page 86) Where adequate and ready assistance is not avail­ able from other legal aid. sources, the Australian Legal Aid Office, in cases approved by the Attorney-General or his delegate, w ill provide asssistance. (Page 15) An Aboriginal Legal Service will provide assistance for Aboriginals where there are grounds. (Page 18) In Federal criminal matters. Judiciary Act, Sec­ tion 69(3) (Page 20)

Legal Assistance Scheme (Page 86) Trade Unions and Employer Organisations Where adequate and ready assistance is not avail­ able from other legal aid sources, the Australian

Legal Aid Office, in cases approved by the Attorney-General or his delegate, will provide assistance. (Page 15) An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

Legal Assistance Scheme (Page 86) Trade Unions Where adequate and ready assistance is not avail­ able from other legal aid sources, the Australian

Legal Aid Office, in cases approved by the Attorney-General or his delegate, w ill provide assistance. (Page 15) An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

In criminal matters. Public Defender (Occasionally only) (Page 90) In civil matters. Legal Assistance Scheme (Page 86)

94

LEGAL A ID IN QUEENSLAND

IV State Courts and Tribunals (contd.)

13. (contd.) Civil or Criminal matters

14. Licensing Commission

15. Coroners Court (Part o f Magistrates Court)

16. Children's Court

17. Mining Wardens Court

18. Administrative Tribunals

3. Where adequate and ready assistance is not avail­ able from other legal aid sources, the Australian Legal Aid Office, in cases approved by the

Attorney-General or his delegate, w ill provide assistance. (Page 15) 4. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. {Page 18)

1. Legal Assistance Scheme (Page 86) 2. Where adequate and ready assistance is not avail­ able from other legal aid sources, the Australian Legal Aid Office, in cases approved by the

Attorney-General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

1. Legal Assistance Scheme (Page 86) 2. Public Defender (in cases of a criminal or quasi­ criminal nature) (Page 90) 3. Where adequate and ready assistance is not avail­

able from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-General or his delegate, w ill provide assistance. (Page 15) 4. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

1. Public Defender (In criminal cases on request by Magistrate) (Page 90) 2. Legal Assistance Scheme (in civil cases) (Page 86) 3. Where adequate and ready assistance is not avail­

able from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-General or his delegate, w ill provide assistance. (Page 15) 4. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

1. Where adequate and ready assistance is not avail­ able from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service will provide assistance

for Aboriginals where there are grounds. (Page 18)

1. Legal Assistance Scheme (Page 86) 2. Where adequate and ready assistance is not avail-95

LEGAL A ID IN QUEENSLAND

IV State Courts and Tribunals (contd.)

18. Administrative Tribunals (contd.)

able from other legal aid sources, the Australian Legal Aid Office, in cases approved by the

Attorney-General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance fo r Aboriginals where there are grounds. (Page 18)

19. Courts o f Marine inquiry 1. Where adequate and ready assistance is not avail­ able from other legal aid sources, the Australian

Legal Aid Office, in cases approved by the

Attorney-General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

20. Special Magisterial Enquiry 1. Where adequate and ready assistance is not avail­ able from other legal aid sources, the Australian

Legal Aid Office, in cases approved by the

Attorney-General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance fo r Aboriginals where there are grounds. (Page 18)

96

LEGAL AID IN QUEENSLAND

V Special areas

21. Royal Commissions

22. Conveyancing

23. Commercial Transactions

24. Estate Planning & Wills

25. Probate

1. Where adequate and ready assistance is not avail­ able from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-General or his delegate, will provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

1. Public Curator Officer (1972 — 18,670 property dealings. Charged fo r but less than practitioners' scale) 2. Where adequate and ready assistance is not avail­

able from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance

fo r Aboriginals where there are grounds. (Page 18)

1. Public Curator Office 2. Consumer Affairs Bureau 3. Where adequate and ready assistance is not avail­ able from other legal aid sources, the Australian

Legal Aid Office, in cases approved' by the Attorney-General or his delegate, w ill provide assistance. (Page 15) 4. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

1. Public Curator Office (1972 - 20,411 wills

prepared)

2. Where adequate and ready assistance is not avail­ able from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance

fo r Aboriginals where there are grounds. (Page 18)

1. > Legal Assistance Scheme (1973 — 139 applic­ ations granted) (Page 86) 2. Public Curator Office (1972 — 4,000 new estates administered) 3. Where adequate and ready assistance is not avail­

able from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-General or his delegate, w ill provide assistance. (Page 15) 4. An Aboriginal Legal Service w ill provide assistance

fo r Aboriginals where there are grounds. (Page 18)

97

LEGAL AID IN QUEENSLAND

V Special Areas (contd.)

26. Taxation 1. Legal Assistance Scheme (Page 86)

2. Where adequate and ready assistance is not avail­ able from other legal aid sources, the Australian Legal Aid Office, in cases approved by the

Attorney-General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance fo r Aboriginals where there are grounds. (Page 18)

27. Welfare and Family Security

28. Local Government

29. Environment

1. Where adequate and ready assistance is not avail­ able from other legal aid sources, the Australian Legal Aid Office, in cases approved by the

Attorney-General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance fo r Aboriginals where there are grounds. (Page 18)

1. Where adequate and ready assistance is not avail­ able from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance

fo r Aboriginals where there are grounds. (Page 18)

1. Where adequate and ready assistance is not avail­ able from other legal aid sources, the Australian Legal A id Office, in cases approved by the

Attorney-General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assisatnce fo r Aboriginals where there are grounds. (Page 18)

30. Landlord & Tenant (within jurisdiction of Magistrates' Court)

1. Legal Assistance Scheme (Page 86) 2. Where adequate and ready assistance is not avail­ able from other legal aid sources, the Australian Legal A id Office, in cases approved by the

Attorney-General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

31. Advice Generally

98

1. Public Curator (1972 - 9,001) 2. Referral service by members of Bar in Brisbane 3. Legal Assistance Scheme (Page 86) 4. R.A.C.Q. (traffic matters) 5. Where adequate and ready assistance is not avail­

able from other legal aid sources, the Australian Legal A id Office, in cases approved by the Attorney-General or his delegate, will provide assistance. (Page 15) 6. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

LEGAL AID IN SOUTH AUSTRALIA

Page

1 Legal Assistance Scheme 100

II Legal Advisory Service 104

III Community Welfare Department 105

IV Other Sources of Assistance 106

V Australian Courts & Tribunals 107

VI State Courts & T ribunals 109

V II Special Areas 112

99

LEGAL AID IN SOUTH AUSTRALIA

I The Legal Assistance Scheme

1. Basis This Scheme has been in operation since 1st September

1933. It originated from a suggestion to the Law Society of South Australia by the South Australian Government at that time, to the effect that the profession in South Australia should help the Public Solicitor by doing some of the work then handled by him. His work was some­ what limited — mainly matrimonial and criminal.

The Society took the view that difficulties would arise if it were to assist by merely supplementing the work of Public Solicitor. Therefore, the Society volunteered to take over all of the work of the Public Solicitor. The Government agreed.

The Society undertook 'that no person would be w ithout proper assistance if he was deserving of such legal assis­ tance and would be unable to obtain it w ithout the help

of the Society's members'.

2. E ligibility No means test as such but an applicant's means are

considered. Each case looked at on the merits.

3. Adm inistration This Scheme is administered by the Law Society of South Australia Incorporated at its offices at 44 Currie Street, Adelaide.

4. Finance The finance fo r the Scheme is provided from:

(i) Interest on Trust Accounts

Each solicitor is required under the Legal Practi­ tioner's A ct to deposit in the Combined Trust Account two thirds of his lowest balance for the year. Any solicitor who does not make such a depo­ sit is guilty of an offence. The Combined Trust Account at the 30th June 1973 had a total depo­ sit of $3,448,638. These moneys are invested in fixed deposit at the best interest rates available.

The interest is paid into the Legal Practitioners Statutory Interest Account. A fter overheads, two thirds o f these moneys are applied to the Legal Assistance Fund and the other third to the Guaran­ tee Fund.

(ii) State Government Grant

The likely amount of the grant from the Govern­ ment of South Australia this year w ill be about $250,000.

100

LEGAL AID IN SOUTH AUSTRALIA

4. Finance (contd.) (ill) Australian Government Grant

In this financial year the Australian Government has supported the Scheme for the first time with a grant of $186,000.

(iv) Pooling of Costs

The terms of an assignment for legal advice and assistance may include contributions from appli­ cants. The Scheme also provides for a pooling system. The Society collects all payments by assisted persons and any costs recovered in litiga­ tion. An estimate of the likely amount recovered this financial year under this heading is $150,000.

It is anticipated that in this financial year the total cost of the work done by the profession w ill be about $700,000. The income and expenditure of

I The Legal Assistance Scheme (contd.)

the Scheme will be about as follows:

Income

Statutory Interest Account Overheads $ 34,200

Distribution from Statutory Interest Account . $ 81,125

Paid by applicants and costs recovered $150,000

Australian Government Grant $186,000

State Government Grant $248,000

Total $700,000

Expenditure

Salaries $102,850

Other overheads - $ 34,200

Dividends 80% of $700,000 $560,000

Total $697,050

say $700,000

5. Operation The Law Society of South Australia Incorporated is the

professional body of the legal profession in South Australia. The Society employs three lawyers as legal officers to assist in the management of the Scheme.

The overall control and responsibility for the Scheme rests w ith the Society.

Some legal advice is provided by the legal officers. All other legal advice and all legal assistance under the Scheme is provided by the practising legal profession in South Australia.

101

LEGAL AID IN SOUTH AUSTRALIA

5. Operation (contd.) There is no absolute means test but the means of an

applicant are taken into account in deciding whether or not to grant assistance. If an applicant has the means to obtain advice or assistance legal aid is refused. If an applicant is unable to afford legal advice or assistance but can contribute, he w ill be required to make some contribution.

Once assistance is given the legal practitioner is required to act fo r and advise the assisted person as if he was a 'Private' client. Assistance can be withdrawn if the advice of the practitioner is not taken or if the assisted person does not comply w ith the terms of the assignment.

Sub-committees o f legal practitioners decide whether or not to grant assistance and if so to what extent and on what terms.

The South Australian Year Book of 1972 indicates that the population of South Australia at 31st December 1972 was about 1.2 m illion. The population o f Adelaide and the metropolitan area was about 810,000. Other urban population was about 183,000 and rural population was about 180,000.

There are now 518 private practitioners in South Australia, 44 in the country. Basic statistics of the scheme over the last four years are:

I The Legal Assistance Scheme (contd.)

Applications Rejected, lapsed. Total

withdrawn or referred elsewhere Assigned

1969-70 3374 435 2939

1970-71 3594 464 3130

1971-72 4609 530 4079

1972-73 4804 546 4262

The assigned matters were classified as follows:

Matrimonial Criminal Other

Matters

Total

1879 1446 937 4262

Of those applications not assigned about 45 were rejected. The remainder were referred to other agencies which could assist them. Those rejected were refused because of previous criminal convictions, having sufficient funds to seek legal advice or assistance privately or the failure to co-operate on prior assignment.

As there are no records as to the number of persons advised by the legal officers or referred elsewhere, the abovementioned figure of those applications rejected is an estimate.

102

LEGAL AID IN SOUTH AUSTRALIA

6. Reimbursement Until recently the profession received dividends in legal assistance matters of between about 16% and 26% of normal fees depending upon the type of matter.

In 1972 the South Australian Government underwrote the Scheme to the extent of dividends of 50 cents in the dollar. The State Government n o w . underwrites the Scheme as from the 1st July 1973 to the extent of divi­ dends of 80 cents in the dollar.

7. Type o f A id Assistance is granted in all type of 'traditional' legal

matters except as appears hereunder. There is no restric­ tion on the basis of type of matters or Court. Assistance is given in the Magistrates Court except as set out here­ under. In criminal matters assistance is given for

committal proceedings as well as trial and for pleas of guilty and appeals. Assistance is given in the Juvenile Court branch of the Family Court and Local Court of Limited Jurisdiction (civil matters up to $2500 but not

under $200 except as set out hereafter.)

The $cheme does not provide assistance in the following types of matters and situations:

(i) to foreign nationals living overseas in countries which do not have a reciprocal arrangement with the Law $ociety of $outh Australia Incorporated.

(ii) to recover debts of less than $50 except in excep­ tional circumstances.

(in) for appeals unless counsel is of the opinion that there is a reasonable possibility of success.

(iv) where the matter can be adequately handled by another agency.

8. Contribution b y Fixed individually for each applicant.

Applicant

I The Legal Assistance Scheme (contd.)

103

LEGAL AID IN SOUTH AUSTRALIA

N Legal Advisory Service

7- Basis The Law Society of South Australia Incorporated through

its members conducts an advisory service.

2. Eligibility There is no means test and any member of the public

may use the service.

3. Administration The Law Society of South Australia Incorporated.

4. Finance The public is charged $2 per interview to cover overheads

but this fee is waived in appropriate cases.

5. Operation The Service is conducted at the premises of the Law

Society at 44 Currie Street, Adelaide. The Service is open to the public each week night from 5.30 p.m. to 9.00 p.m. and each Saturday from 9.00 a.m. to 12.00 noon. The legal advice is given by a legal practitioner. He is assisted by articled law clerks and law students who do not actually give advice.

The Service commenced operation on 24th September 1973. Since that time 1302 persons have used the Service up to and including 31st January 1974.

6. Reimbursement Not applicable.

7. Type o f A id The Service is restricted to legal advice but those mem­

bers of the public requiring legal assistance are referred to the Legal Assistance Scheme, the private profession or various agencies as is appropriate.

8. Contribution by Applicant Applicant is required to pay $2 for interview to cover overheads but this fee is waived in appropriate cases.

104

LEGAL AID IN SOUTH AUSTRALIA

The Community Welfare Department

Basis Community Welfare Act, 1972

Eligibility

Administration

Finance

Operation

Reimbursement

Type o f A id

Contribution by Applicant

There is no means test and assistance appears to be granted to all who apply. (This assistance is limited to females only. Assistance is available to males by the Legal Assistance Scheme.) .

This Department is a department w ithin the South Australian Public Service and under the control of the Minister for Community Welfare.

State Government Appropriation.

One of the sections within the Department is the Maintenance Section. This section is staffed by officers who act fo r women in maintenance matters under the Community Welfare Act. The officers are not legal practitioners with the excep­

tion of two. Under some of the headings set out in paragraph 7 below they may take the proceedings in their own individual names but they usually take the proceedings in the name of the mother or wife.

The proceedings are prosecuted in the new South Aust­ ralian Family Court.

Not applicable.

The types of maintenance matters handled by the Department are:

(a) maintenance for legitimate children (b) affiliation cases In disputed matters it is not uncommon for the Department to instruct the Crown Solicitor. In

these cases a legal practitioner from the Crown Solicitor's Department w ill appear for the mother w ithout charge to her. (c) maintenance for a wife (at subsistence level) (d) separation cases on behalf of a wife

In these matters the wife seeks summary protec­ tion and must establish some fault on the part of her husband e.g. cruelty, adultery, desertion, etc. The Court has power to make orders for custody, access, maintenance and costs. (e) enforcement of maintenance orders

The Department w ill enforce orders for mainten­ ance which provide that the maintenance is to be paid through the Department.

No payment of fees is required and Court fees are waived.

105

LEGAL AID IN SOUTH AU STR ALIA

IV Other Sources (a) There are tw o criminal jurisdictions in South

of Assistance Australia, that exercised by the Supreme Court

and that by the District Criminal Court. The pro­ visions o f the POOR PERSONS LEGAL ASSIS­ TANCE ACT 1925-1969 apply to both Courts.

The A ct provides that any person committed for trial for an indictable offence may apply to a Judge fo r the appointment of counsel.

The A ct further provides that if the offence is punishable w ith death, or is such that in the opi­ nion of the Judge the person committed for trial should be defended by counsel AND the Judge is

satisfied that such person is w ithout adequate means to retain counsel or summon witnesses, he may order that the accused be defended by counsel

and may assign a counsel or solicitor or both.

The Judge w ill also order the amount of remunera­ tion to counsel and solicitor. In practice,this form of assistance is being used less frequently due to the growth o f the Legal Assistance Scheme. (b) Under Order 16 of the South Australian Supreme

Court Rules a Judge of the Supreme Court may make an order permitting a person to sue and defend as a poor person. (This is seldom, if ever, used). (c) Trade Unions

Legal assistance is provided to union members particularly in compensation and damages claims following personal injury at work. (d) Legacy

Legacy offers some legal advice and aid to entitled persons. (e) Criminal Appeals The South Australian Criminal Appeals Rules

1925 provide a procedure for a Judge of the Supreme Court to assign counsel and solicitor for an unrepresented appellant even though he may not have requested assistance.

In view o f the Legal Assistance Scheme this pro­ cedure is seldom used.

106

LEGAL A ID IN SOUTH AUSTRALIA

Australian Courts and Tribunals

High Court o f Australia 1.

Exercising Federal or State jurisdiction in C IV IL or CRIM INAL matters

2 .

(a) Appellate (b) Original 3.

4.

Federal Tribunals 1.

2 .

3.

Australian Industrial 1.

Court

2.

3.

4.

Australian Conciliation 1. and A rbitration Commission

2.

3.

Bankruptcy Court 1.

Where adequate and ready assistance is not availa­ ble from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance.

(Page 15) An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18) In Federal criminal matters. Judiciary Act, Section 69 (3) (Page 20)

Legal Assistance Scheme (Page 100)

Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance.

(Page 15) An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18) Assistance may be provided by the Legal Assistance Scheme if Australian Government assistance is refused. (Page 100)

Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18) Conciliation & Arbitration Act, Sections 141 A,

141B, 168. (Page 22) Trade Unions (Page 106)

Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance.

(Page 15) An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18) Assistance may be provided by the Legal Assistance

Scheme if Australian Government assistance is refused. (Page 100)

Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance.

(Page

LEGAL A ID IN SOUTH AUSTRALIA

V Australian Courts and Tribunals (contd.)

5. Bankruptcy Court (contd.) 2. An Aboriginal Legal Service w ill provide assistance fo r Aboriginals where there are grounds. (Page 18)

3. Bankruptcy Act, Section 305. (Page 23) 4. Legal Assistance Scheme (Page 100)

6. Courts Martial

Appeals Tribunal

1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance !

fo r Aboriginals where there are grounds. (Page 18) 3. Courts Martial Appeals Regulations, Regulation 11 (Page 25) 4. Assistance may be provided by the Legal Assistance

Scheme if Australian Government assistance is refused. (Page 100)

7. Courts Martial 1. Where adequate and ready assistance is not available

from other legal aid sources, the Australian Legal A id Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18) 3. Defence A ct, Section 96 (Page 24) 4. Assistance may be provided by the Legal Assistance Scheme if Australian Government assistance is

refused. (Page 100)

8. Trade Practices 1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal . Aid Office, in cases approved by the Attorney- [ General or his delegate, w ill provide assistance. ;

(Page 15)

2. Assistance may be provided by the Legal Assistance Scheme (if Australian Government assistance is refused. (Page 100)

108

LEGAL AID IN SOUTH AUSTRALIA

VI State Courts and Tribunals

9. Supreme Court o f 1.

South Australia 2.

Exercising Federal or State jurisdiction in C IV IL or CRIM INAL A

matters ■

(a) Appellate (b) Original

5.

6.

7.

10A D istrict Criminal 1.

Court 2.

Exercising Federal or State jurisdiction in CRIM INAL matters

4.

5.

10B 1 Local Court 1.

O

Exercising Federal or “ ■ State jurisdiction in C IVIL matters

3.

10B2 Local Court 1.

O

Family Law Division

3.

4.

Legal Assistance Scheme. (Page 100) In criminal matters. Poor Persons Legal Assistance Act, 1923-1969 (Page 106) In criminal matters. Criminal Appeals Rules 1925 (Page 106) Where adequate and ready assistance is not available

from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) An Aboriginal Legal Service w ill provide assistance fo r Aboriginals where there are grounds. (Page 18)

In Federal criminal matters. Judiciary Act, Section 69 (3). (Page 20) In bankruptcy matters, Bankruptcy Act, section 305. (Page 23)

Legal Assistance Scheme. (Page 100) Poor Persons Legal Assistance A ct 1925-1969 (Page 106) Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

In Federal criminal matters. Judiciary Act, Section 69 (3). (Page 20)

Legal Assistance Scheme. (Page 100) Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) An Aboriginal Legal Service w ill provide assistance fo r Aboriginals where there are grounds. (Page 18)

Legal Assistance Scheme. (Page 100) Community Welfare Department in certain cases (Page 105) Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

109

LEGAL A ID IN SOUTH AUSTRALIA

VI State Courts and Tribunals (contd.)

11. Industrial Court

(a) Industrial (b) Workers' Compensation

1. Trade Unions & Employer Organisations. Any gaps left by assistance from these sources are covered by the Legal Assistance Scheme. 2. Where adequate and ready assistance is not available

from other legal aid sources, the Australian Legal A id Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

Legal Assistance Scheme. (Except in claims under $50) (Page 100) Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal A id Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

13. Licensing Courts 1. Assistance is available from the Legal Assistance Scheme but it is seldom sought. (Page 100) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal

Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

12. Magistrates Courts 1.

o

Exercising Federal or ■ State jurisdiction in C IV IL or CRIMINAL matters

14. Coroners Court 1. Legal Assistance Scheme. (Page 100) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

15. Mining Wardens Court 1. Legal Assistance Scheme. (Page 100) 2. Where adequate and ready assistance is not available

from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

110

VI State Courts and Tribunals (contd.)

16. Administrative Tribunals 1. (Consumer Credit Tribunal) 2.

3.

Legal Assistance Scheme where representation permitted. (Page 100) Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal

Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

17. Courts o f Marine inquiry 1. Legal Assistance Scheme. (Page 100) 2. Where adequate and ready assistance is not available

from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

18. Special Enquiry 1. Legal Assistance Scheme. (Page 100)

2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15)

3. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

111

LEGAL AID IN SOUTH AUSTRALIA

V II Special Areas

19. Royal Commissions

20. Conveyancing

21. Commercial Transactions

22. Estate Planning

23. Wills

24. Probate 1

1. Legal Assistance Scheme. (Page 100) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance fo r Aboriginals where there are grounds. (Page 18)

1. Legal Assistance Scheme. (Page 100) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

1. Legal Assistance Scheme. (Page 100) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

1. Legal Assistance Scheme. (Page 100) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance.· (Page 15) 3. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

1. Public Trustee, if appointed Executor. 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

Legal Assistance Scheme. (Page 100)

112

LEGAL A ID IN SOUTH AUSTRALIA

2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15)

24. Probate (contd.) 3. An Aboriginal Legal Service w ill provide assistance fo r Aboriginals where there are grounds. (Page 18)

VII Special Areas (contd.)

25. Taxation 1. Legal Assistance Scheme. (Page 100)

2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance.

(Page 15)

3. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

26. Welfare and Family Security

1. Australian and State Welfare agencies provide welfare services. 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal

Aid Office, in cases approved by the Attorney- General or his delegate, will provide assistance. (Page15) 3. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

27. Local Government

28. Environment

29. Landlord & Tenant

1. Legal Assistance Scheme. (Page 100) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

1. Legal Assistance Scheme. (Page 100) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

1. Legal Assistance Scheme. (Page 100)

113

LEGAL A ID IN SOUTH AU STR ALIA

V II Special Areas (contd.)

30. Advice

2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal A id Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance

fo r Aboriginals where there are grounds. (Page 18)

1. Legal Assistance Scheme (Page 100)

2. Legal Advisory Service. (Page 104) 3. Legacy. (Page 106) 4. Trade Unions. (Page 106) 5. Returned Servicemen's League. (Page 6 . R.A.A. (traffic matters). (Page 7. Where adequate and ready assistance is not available

from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 8. An Aboriginal Legal Service w ill provide assistance

fo r Aboriginals where there are grounds. (Page 18)

114

LEGAL AID IN WESTERN AUSTRALIA

Page

1 Legal Aid Scheme 116

II Legal Advice Bureau Scheme 124

III Australian Courts and Tribunals 125

IV State Courts and Tribunals 127

V Special Areas 131

115

LEGAL AID IN WESTERN AUSTRALIA

Legal Aid Scheme

1. Basis The Legal Aid Scheme is provided by the Law Society

of Western Australia under Part V o f the Legal Contri­ bution Trust Act, 1967. This Act commenced on the 4th October, 1971. The rules of the Scheme are printed in Government Gazette (No. 40) of 26th May, 1971.

2. Eligibility To apply successfully for aid an applicant must:

(a) qualify financially according to the formula set out in the Legal Assistance Rules. If a person has dis­ posable capital or disposable income not exceeding $1500.00, that applicant may be assisted. In com­ puting disposable capital, clothing household fur­ niture and effects and tools of trade not exceeding $200.00 in value are not taken into account, and further, any dwelling house is ignored except to the extent of one half of the value after deducting the amount o f any encumbrances and a further sum of $6000. In computing disposable income, income tax instalments, hospital benefit fund payments up to a lim it of $50.00, superannuation or insurance

payments up to a lim it of $50.00 and $600.00 for a dependant spouse and $300.00 for each depen­ dant child are to be deducted. The Committee has power to impose terms and condition'· and may exercise a wide discretion. (b) Have legal merits in his or her application, that is

the prospects of success must be apparently quite good, and the desired result must be one which will materially benefit the applicant through process of law.

3. Administration The Scheme is administered by a sub-committee appoin­ ted by the Council of the Law Society. The two principal functions of the Committee are to:

(a) decide whether an applicant should be assisted, and if so on what terms and conditions; and (b) fix the fees payable to practitioners who act for assisted persons.

4. Finance Section 33 o f the Legal Contribution Trust Act estab­

lishes the Legal Assistance Fund.

Finance for the Scheme is provided from:

116

(1) Interest on Solicitors' trust accounts (2) State Government grants (3) In this financial year the Australian Government has supported the Scheme for the first time with a

grant of $166,143.

LEGAL AID IN WESTERN AU STR ALIA

4 Finance (contd.) Set out below is a Revenue and Expenditure Statement of the Legal Assistance Fund for the year ended 30th June, 1973.

I Legal Aid Scheme (contd.)

LEGAL ASSISTANCE FUND

REVENUE AND EXPENDITURE STATEMENT FOR THE YEAR ENDED

30th JUNE, 1973

REVENUE

Legal Contribution Trust —

Share of Surplus for half year ended —

31st December, 1972 34,880.26

30th June, 1973 50,940.73 85,820.99

Government Grants 51,204.08

Interest 10,185.02

TO TA L REVENUE

LESS EX PE N D ITU R E

Solicitors' Profit Costs 132,440.46

Disbursements made on behalf of assisted persons 23,007.98

155,448.44

Less Amount Recovered 11,989.04 143,459.40

Audit Fees 340.00

Legal Aid Convention Expenses 399.60

Postages and Petti es 1,464.56

Repairs and Maintenance — Office Machines 72.15

Salaries 25,266.03

Stationery 1,733.05

Telephone 757.13

TO TA L EXPENDITURE

D EFIC IE N C Y FOR THE YEAR

147,210.09

173,491.92

26,281.83

117

LEGAL AID IN WESTERN AUSTRALIA

5. Operation The Committee has a general discretion as to whether

aid w ill be granted or refused, and no hard and fast rules are laid down. There is a statutory obligation to treat each application on its merits. Some classes of application are more deserving than others, so for exam­ ple aid is almost always granted to eligible persons who have an apparently good claim to pursue before a Magis­ trate under the Married Persons and Children (Summary

Relief) Act, or for first offenders facing criminal charges before the Supreme Court orthe District Court. There is no assistance fo r hardened criminals except for capital charges in which matters assistance is always available. No residence test is applied. All applicants must complete a form of application. The applicant must complete a statutory declaration and a heavy fine may be imposed for false information.

The Committee must be given sufficient facts to enable it to understand the nature of the application, and to have a clear picture o f the circumstances which it is con­ tended justify the granting of aid. Generally speaking, an application should be accompanied by documents such as pleadings and/or proofs o f evidence.

An application cannot be made retrospective. However, in an emergency the Committee w ill regard an applica- i tion as dating from the time the Administrator of the Scheme, or a member of the Legal A id Committee, is advised that the application w ill be made (for example by means of a telephone call) provided that no allowance can be made for work done before contact is so made, and provided further, that there is no guarantee aid w ill be granted in any event.

Applications to the Committee come.from three sources:

A. Applications in poison

Many such applications are in common form for matrimonial assistance, and in that event the pro­ cedure is as follows:

1. Applicant is interviewed by staff to see if he or she qualifies on financial grounds. 2. If applicant clearly qualifies financially the form is completed and retained. The appli­

cant is sent to a practitioner of his or her choice, a list of practitioners being kept at the counter. In cases where the applicant will not choose a solicitor a name is suggested using a roster system fo r each of the three panels, namely matrimonial, criminal and civil.

I Legal Aid Scheme (contd.)

118

LEGAL AID IN WESTERN AU STR ALIA

Operation (contd.) 3. A note accompanies the applicant advising

the practitioner that the applicant is to be interviewed and that if in the practitioner's opinion the applicant has a problem of legal merit then, on the practitioner so certifying and forwarding information on the facts of the matter, legal aid may be granted by the Committee. 4. Where the practitioner considers there is no

legal merit, he advises the Committee and forwards an account. (Suggested standard charge for first interview $ 10.00 plus reas­ onable charges for any necessary investiga­ tion and/or opinion in complex matters, the standard charge to be exceeded in quite

exceptional cases). 5. Where the practitioner certifies legal merit an account is not rendered until the assignment

has been completed or the Committee ter­ minates the assignment.

With respect to other types of applications where the approach is made direct to the Legal Aid O ffi­ cers, the necessary form w ill be completed, and the applicant interviewed. The application w ill then go before the Legal Aid Committee, which will decide whether aid should be granted and assign a solicitor on a roster basis if the applicant has not chosen his or her own solicitor.

B. Applications by Solicitors

The application must be supported by the docu­ mentary detail referred to above and the practi­ tioner must certify that there is legal merit in the client's application.

C. Other applications - (For example through statutory bodies. Government Departments and Welfare Organis­ ations)

The application should be accompanied by a letter, statement or other documentary evidence which sets out the facts on which the application is based. If this is not done, the Committee may well have to ask fo r further information.

When assistance is given a printed circular letter is sent to the assigned practitioner setting out the general terms of the assignment and the certificate required by the Act which sets out the more specific terms. If the success­

ful applicant has not already contacted his or her solicit-

Legal Aid Scheme (contd.)

119

LEGAL AID IN WESTERN AU STR ALIA

5. Operation (contd.) or, a letter advising the applicant of the identity of the

assigned practitioner is forwarded and he or she is asked to make an appointment with this practitioner.

When assistance is refused the applicant or the appli­ cant's solicitor is informed by letter.

On 22nd January 1974, there were 682 practitioners entitled to practise and residing in Western Australia. There were 415 practitioners who held current practice certificates.

I Legal Aid Scheme (contd.)

LEGAL AID STATISTICS SINCE COMMENCEMENT OF PRESENT SCHEME

Period Applications

Received

Assigned

4.10.71-31.12.71 557 220

1. 1.72-31.. 3.72 574 252

1. 4.72-30. 6.72 803 313

1. 7.72-30. 9.72 763 384

1.10.72-31.12.72 835 392

1. 1.73-31. 3.73 1390 537

1. 4.73-30. 6.73 1328 660

1. 7.73-31. 8.73 (two months) 805 372

7055 3130

Applications Pending 31.8.73 173

STATISTICAL DETAIL OF APPLICATIONS 1.10.72-30.9.73

M A TR IM O N IA L DIVORCE C R IM IN A L C IV IL

Rec'd. Assigned Rec’d. Assigned Rec'd. Assigned IRec'd. Assigned

Oct. 224 103 37 22 44 13

Nov. 257 113 18 12 60 14

Dec. 151 93 24 9 23 13

Jan. 215 102 41 14 57 15

Feb. 397 174 27 13 103 30

Mar. 323 134 64 6 45 25 123 24

April 279 223 52 6 21 10 56 15

May 317 162 56 9 47 29 74 21

June 258 166 64 10 31 17 55 19

July 272 125 73 20 43 22 67 25

Aug. 275 124 77 13 32 14 66 29

Sep. 294 154 55 17 39 11 56 27

3272 1673 441 81 405 198 764 245

Total Applications 4882

Total Assignments 2197

120

LEGAL A ID IN WESTERN AU STR ALIA

6. Reimbursement

I Legal Aid Scheme (contd.)

7. Type o f A id

Under the Scheme applicants are entirely at liberty iv choose a practitioner of their choice,and the remunera­ tion to practitioners is 90% of reasonable costs as fixed by the Committee. In practice all bills of costs submitted

by assigned practitioners are referred to at least two members of the committee for assessment as to the justifications of the amount claimed and frequently reductions are made. There is a right of appeal to the

Council of the Law Society. For greater details in relation to formal matters, reference should be made to the Legal Contributions Trust Act, 1967 and the Legal Assistance Rules. So far as actual mode of operation is concerned, a

certain amount of detail is contained in a circular (No. 4) issued by the Law Society.

A t the discretion o f the Committee which includes assis­ tance in both civil and criminal fields in Courts in Western Australia including workers' compensation matters. No aid is granted for traffic cases, Local Court civil matters

and lower court cases, apart from exceptional cases, e.g. rape, incest.

The Committee has not generally granted aid in the following fields:

(a) libel, slander or breach of promise; (b) to represent an accused at committal proceedings, unless the charge is a very serious one; (c) to prosecute or defend charges in the Courts of

Petty Sessions although exceptions to this genera­ lity are not hard to find.

(d) to represent parties to bankruptcy proceedings; (e) actions for simple money debts; (f) to plead in mitigation of penalty in criminal pro­ ceedings where the accused has a significant

previous record; (g) for non-contentious matters generally e.g. the drawing of wills; (h) to petition fo r divorce — as to which see below.

However, (with the exception of libel, slander or breach of promise), where representation may result in some benefit of more than ordinary importance to an applicant, the Committee may provide assistance in any of these fields. The term 'benefit of more than ordinary importance' is

interpreted in a very elastic fashion by the Committee which w ill make its decision on the factual circumstances applicable at the time. For example, in committal pro­ ceedings if there appears to be any reasonable chance that

121

LEGAL AID IN WESTERN AU S TR A LIA

7. Type o f A id (contd.) the Police cannot show a prime facie case and the appli­ cant has no previous record he would be helped. If the applicant is being dealt w ith summarily in a Court of Petty Sessions and is liable to have a conviction recorded against him and it reflects on his moral character e.g. stealing, recieving etc. and he has no previous record against him, he would be assisted. Where the applicant

is out of work and his or her claim is for a simple money debt, even though it may be fo r a comparatively minor amount, then the Committee is prepared to assist.

Divorce is at present in a special category. Assistance is available in 'special circumstances' or, in ordinary cases, subject to a 'waiting lis t '. The term 'special circum­ stances' has no fixed meaning — it depends upon the factual situation, but the Committee has helped where there has been a question of extreme moral issues, e.g. incest, or a very material benefit may be obtained e.g. preservation o f the matrimonial home.

In the absence o f 'special circumstances', where the applicant has grounds fo r divorce and can contribute $50 towards the costs, the applicant w ill be placed on a waiting list which is at present operating on the basis of ten applicants per month.

The funds now provided by the Australian Government may enable assistance in the divorce field to be liberalised.

Assistance is also given for matters in the conveyancing field such as transfers of land (particularly where the transfer relates to the fam ily home), survivorship appli­ cations, transmission applications, applications for grants o f probate and administration, applications to amend Titles, applications for a substituted Title where it has been lost. The scheme in Western Australia is wide enough to enable the Committee to give assistance in practically any matter where social needs warrant it.

Legal Advice — Very little legal advice is given under the Legal Aid Scheme. Quite a large number of applicants for aid are interviewed at the offices of the Legal Aid Scheme, this chiefly w ith a view to obtaining information which w ill enable the Committee to consider the appli­ cation. In the course of that process a certain amount of legal advice may be given. However, the scheme lacks the facilities to give advice to the population generally.

(See Legal Advice Bureau)

8. Contribution by All applicants are required to agree with the Law Society Applicant to pay such reasonable amounts towards the costs and

I Legal Aid Scheme (contd.)

122

LEGAL AID IN WESTERN AUSTRALIA

I Legal Aid Scheme (contd.)

disbursements involved as the Committee may assess. Where it is considered that an applicant cannot afford to contribute, assistance if given, is free of charge.

8. Contribution by The Law Society takes the view that where people can

Applicant (contd.) afford to contribute towards the cost of providing legal assistance, they should do so, even it the contribution is a nominal one. This serves to reduce the charitable aspect, which is considered most undesirable as many people w ill

not seek legal assistance if they have to do so as mendi­ cants. It is fo r this reason that many people who obtain legal aid must contribute, although the amount required

may be as low as $5.00 per month, during the currency of the assignment which may be for only two or three months.

123

LEGAL AID IN WESTERN AUSTRALIA

II Legal Advice Bureau Scheme

1. Basis The Legal Advice Bureau Scheme was set up in accor­

dance w ith a memorandum dated 5th October, 1972 at a meeting of the Council o f the Law Society.

2. Eligibility The Bureau gives legal advice to all persons who need it,

irrespective of means.

3. Administration Law Society of Western Australia. The Committee ad­

ministering the Bureau has four members, two of whom belong to the Committee administering the Legal Assis­ tance Scheme and the same practitioner is Chairman of both Committees.

4. Finance A t the Bureau legal advice is given for a fee of $2.00

which is rather more than sufficient to cover the cost of running the Bureau. The Law Society has resolved that the excess funds generated w ill be used to provide legal services for the public generally.

5. Operation The Bureau is staffed by young lawyers working without

payment, who contribute a half day per month each. The Bureau consists of a small set of rooms in the centre of Perth's shopping area where a lawyer is constantly present during ordinary business hours and Saturday mornings. The public is permitted free access w ithout appointment and w ill be seen by the practitioner at once or after a short wait. On average nearly 150 people per week are helped by being given legal advice. The Bureau often refers people to the Legal Assistance Scheme where they cannot afford to consult privately. The practitioner who sees the person at the Bureau cannot subsequently act for him.

6. Reimbursement Lawyers give services voluntarily.

7. Type o f A id The Bureau provides expert advice of a preliminary

nature to any person at a modest charge. This ensures that an immediate legal service is available to people with problems, but it is only a preliminary advice service to enable those who do not have solicitors to know whether they need to be referred to one.

8. Contribution by Applicant

The Law Society takes the view that where people can afford to contribute towards the cost of providing legal assistance, they should so do, even if the contribution is a nominal one. This serves to reduce the charitable aspect, which is considered most undesirable. Many people will not seek legal assistance if they have to do so as mendi­ cants. It is for this reason that there is a modest, fixed

124 charge imposed for an interview at the Bureau ($2.00)

LEGAL AID IN WESTERN AUSTRALIA

III Australian Courts and Tribunals

1. High Court o f 1.

Australia

Exercising Federal or State jurisdiction in C IVIL or CRIMINAL 2

matters e~

(a) Appellate 3

(b) Original

4.

2. Federal Tribunals 1.

2.

3.

3. Australian 1.

Industrial Court

2.

3.

4. 5.

4. Australian Conciliation 1.

& Arbitration Commission

2.

3.

Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance.

(Page 15) An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18) In Federal criminal matters, Judiciary Act, Section 69 (3). (Page 20)

Legal Aid Scheme. (Page 116)

Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, will provide assistance.

(Page 15) An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18) Assistance may be granted under the Legal Aid Scheme in any tribunal where legal representation

is permitted. (Page 116)

Where adequate and ready assistance is not available, from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, will provide assistance. (Page 15)

An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18) Conciliation and Arbitration Act, Sections 141 A, 141B, 168. (Page 22)

Trade Unions Assistance may be granted under the Legal Aid Scheme but it is unlikely that the Committee will exercise its discretion to grant assistance. (Page 116)

Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, will provide assistance.

(Page 15) An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

Assistance may be granted under the Legal Aid Scheme but it is unlikely that the Committee w ill exercise its discretion to grant assistance. (Page 116)

125

LEGAL AID IN WESTERN AU STR ALIA

Australian Courts and Tribunals (contd.)

Bankruptcy Court 1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance

fo r Aboriginals where there are grounds. (Page 18) 3. Bankruptcy A ct, Section 305. (Page 23) 4. Legal Aid Scheme (representation not generally given to parties to bankruptcy proceedings unless

representation may result in some benefit of a more than ordinary importance to the applicant).(Page 116)

Courts Martial 1. Where adequate and ready assistance is not available Appeals Tribunal from other legal aid sources, the Australian Legal

Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18) 3. Courts Martial Appeals Regulations, Regulation 11. (Page 25) 4. Assistance may be granted under the Legal Aid Scheme in any tribunal where legal representation is permitted. (Page 116) -

Courts Martial 1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18) 3. Defence Act, Section 96. (Page 24)

Trade Practices 1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 2. Assistance may be granted under the Legal Aid

Scheme in any tribunal where legal representation is permitted. (Page 116)

LEGAL AID IN WESTERN AU STR ALIA

IV State Courts and Tribunals

9. Supreme Court o f 1.

Western Australia 2.

Exercising Federal or State jurisdiction in C IV IL or CRIMINAL matters

3.

(a) Appellate (b) Original 4

5.

10. D istrict Court 1.

o f Western 2.

Australia

Exercising Federal or . State jurisdiction in

C IV IL or CRIMINAL matters

4.

5.

Legal Aid Scheme (Page 116) Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) An Aboriginal Legal Service-will provide assistance fo r Aboriginals where there are grounds. (Page 18)

In Federal criminal matters. Judiciary A ct, Section 69 (3). (Page 20) In bankruptcy matters. Bankruptcy A ct, Section 305. (Page 23)

Legal Aid Scheme (Page 116) Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) An Aboriginal Legal Service w ill provide assistance fo r Aboriginals where there are grounds. (Page 18)

In Federal criminal matters. Judiciary A ct, Section 69 (3). (Page 20) In bankruptcy matters, Bankruptcy Act, Section 305. (Page 23)

11. Industrial Appeals 1. Legal Aid Scheme. (Page 116)

Court 2. Trade Unions and Employer Organizations.

3. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, will provide assistance.

(Page 15)

4. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

12. Workers' 1. Legal Aid Scheme. (Page 116)

Compensation 2 . Trade Unions.

Board 3. Where adequate and ready assistance is not available

from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 4. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

127

LEGAL AID IN WESTERN AU STR ALIA

IV State Courts and Tribunals

Legal Aid Scheme. (Page 116) Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

Legal Aid Scheme. (Page 116) Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal A id Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) An Aboriginal Legal Service w ill provide assistance fo r Aboriginals where there are grounds. (Page 18)

13C Summary Relief 1. Legal Aid Scheme. (Page 116)

Court (Matrimonial) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

13B Local Court 1.

(Petty Debts) 2.

3.

13A Court o f Petty Sessions 1.

Exercising Federal or 2.

State jurisdiction in C IVIL or CRIMINAL matters

14A Licensing Court 1. Legal Aid Scheme. (Page 116)

2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

148 Liquor Control 1. Legal Aid Scheme. (Page 116)

Commission 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

128

LEGAL AID IN WESTERN AU STR ALIA

IV State Courts and Tribunals (contd.)

15 Coroners Court 1.

2.

3.

16. Children's Court 1.

(Special Magistrates) 2.

3.

17. Mine Worker's 1.

Tribunal 2.

3.

18A Administrative Tribunals \ 18B Barristers Board

(Complaints against Legal Practitioners etc.) 1-

18C Land Agents Supervisory Board (Complaints against land agents)

18D Valuation Appeal Board (Local Government)

2.

3.

18E Promotion Appeals Boards (Public Servants, Teachers, etc.) J

Legal Aid Scheme. (Page 116) Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) An Abofiginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

Legal Aid Scheme (Page 116) Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

Legal Aid Scheme (Page 116) Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

Legal Aid Scheme. (Where legal representation permitted.) (Page 116) ■

Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15)

An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

129

LEGAL AID IN WESTERN AU STR ALIA

IV State Courts and Tribunals (contd.)

19. Courts o f Marine Inquiry

1. Legal A id Scheme. (Page 116) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance fo r Aboriginals where there are grounds. (Page 18)

20. Special Enquiry 1. Legal Aid Scheme. (Page 116)

2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance

fo r Aboriginals where there are grounds. (Page 18)

130

LEGAL AID IN WESTERN AU STR ALIA

V Special Areas

21. Royal Commissions 1. Legal Aid Scheme. (Page 116) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

22. Conveyancing

23. Commercial Transactions

24. Estate Planning

25. Wills

1. Legal Aid Scheme. (Page 116) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

1. Legal Aid Scheme. (Assistance not generally gran­ ted.) (Page 116) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal

Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

1. Legal Aid Scheme (Assistance not generally gran­ ted). (Page 116) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal

Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

1. Legal Aid Scheme. (Assistance not generally gran­ ted.) (Page 116) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal

Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service will provide assistance

for Aboriginals where there are grounds. (Page 18)

131

LEGAL AID IN WESTERN AU STR ALIA

V Special Areas (contd.)

26. Probate 1. Legal A id Scheme. (Page 116)

2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance.

(Page 15)

3. An Aboriginal Legal Service w ill provide assistance fo r Aboriginals where there are grounds. (Page 18)

27. Taxation 1. Legal A id Scheme. (Assistance not generally gran­

ted). (Page 116) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

28. Welfare and Family Security

1. Australian and State Welfare Agencies provide welfare services. 2. Legal Aid Scheme. (Page 116) 3. Where adequate and ready assistance is not available

from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 4. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

29. Local Government 1. Legal Aid Scheme. (Assistance not generally gran­ ted). (Page 116) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal

Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance

fo r Aboriginals where there are grounds. (Page 18)

30. Environment 1. Legal Aid Scheme. (Assistance not generally gran­

ted.) (Page 116) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15)

132

LEGAL A ID IN WESTERN AU STR ALIA

3. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

V Special areas (contd.)

31. Landlord & Tenant

32. Advice

1. Legal Aid Scheme. (Assistance not generally gran­ ted.) (Page 116)

2. Where adequate and ready assistance is not availabl e from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, will provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

1. Legal Aid Scheme (Very little advice given).

(Page 116)

2. Legal Advice Bureau Scheme. (Page 124) 3. Citizens Advice Bureau of Western Australia. 4. Trade Unions. 5. Where adequate and ready assistance is not available

from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 6 . An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

133

LEGAL AID IN TASMANIA

Page

1 Legal Assistance Scheme 135

II Australian Courts and Tribunals 141

III State Courts and Tribunals 143

IV Special Areas 146

134

LEGAL AID IN TASMANIA

Legal Assistance Scheme

1. Basis The Legal aid scheme in Tasmania is set up under The

Legal Assistance A ct 1962, which authorises the Law Society of Tasmania to administer legal assistance in Tasmania.

2. E ligibility Applicants must be unable to pay ordinary legal costs and

must be in need of assistance. It is generally required that the applicants have legal merit.

3. Administration Area Committees in the South, North and North-West,

consisting of legal practitioners appointed by the Law Society of Tasmania, consider all applications fo r legal assistance and where legal aid is granted, the general rule is that the case is allotted to a legal firm , on a rostered

basis. Where an applicant has directly approached a legal firm , the case may be referred back to that firm .

4. Finance The scheme is financed by both the Australian Govern­

ment and the State Government. The cost of running the scheme for 1973-1974 is estimated to be in excess of $100,000, of which some $65,000 is borne by the State

Government. In this financial year the Australian Govern­ ment has supported the scheme with a grant of $61,669. Due to this grant the granting of aid under the scheme is being liberalised accordingly. These figures include the cost of administering the scheme, which amounts to about 7% of the total expenditure. Practitioners assist in

the financing of the scheme by accepting fees on a reduced basis i.e. 75% of normal scale of fees as set out in the Tasmanian Solicitor's Handbook. It is proposed to use interest on solicitors' Trust Accounts when the

guarantee funds exceed $500,000.

A considerable amount of money is recovered in costs and in appropriate cases applicants are required to con­ tribute. Monies derived from these sources are credited to the scheme. The income and expenditure for the scheme for the financial year (1972-1973) is set out

below:

135

LEGAL A ID IN TASMANIA

I Legal Assistance Scheme (contd.)

4. Finance (contd.) Legal Assistance Scheme Payments 1972-3

S L C Total N Grand Total

Accounts Paid 694.00 352.00 87.00 439.00 1,133.00

Paid to Solicitors 44,232.04 19,549.16 6,457.31 26,006.67 70,238.51

O.P's 3,288.50 854.70 359.47 1,214.17 4,502.57

Costs Collected 6,788.13 3,987.37 915.77 4,903.14 11,691.27

Applicants' payments 4,409.70 1,935.58 1,116.30 3,051.88 7,461.58

State Government Contribution 62,000.00

NOTE: Figures f o r th e N o rth e rn A re a a re sub­

d iv id e d in to ",L a u n c e s to n " a n d th e

" N o rth -W e s t C o a s t" in o r d e r to s h o w

th e p ro p o rtio n o f a p p lic a tio n s fro m th e C oast a n d th e n e e d f o r increased leg al a id

a c tiv ity in th a t region.

5. Operation Legal Aid and advice is granted in Tasmania either as a

result of personal application to the Area Secretary con­ cerned, or, where applicable, where an application is made to a solicitor and that solicitor considers legal aid is advisable, in which case an application is completed and sent to the appropriate committee with the recom­ mendations of the solicitor concerned.

An applicant for legal assistance is interviewed by the Roster Law Firm. A report is sent to the weekly meeting of the Area Committee stating whether or not legal aid is recommended and if so, fo r (a) defence (b) appeal or

(c) plea in mitigation as the case may be. Reporting solicitors are normally expected to undertake represen­ tation in court, and where the reporting solicitor con­ siders that Counsel should be appointed he should state the reasons for this in his report.

The following is an extract of principles adopted by the Law Council of Tasmania as directions to solicitors rostered under the Legal Aid Scheme.

1. Criminal Cases

When advising on the merits of defence the fo l­ lowing should be submitted to the Committee (unless otherwise directed):

(i) Depositions, proofs (if available) or a state­ ment of the Crown case as far as it is known. (ii) A statement o f the substance of the defence. (iii) A statement o f material witnesses and the

nature of their evidence.

136

LEGAL AID IN TASMANIA

5. Operation (contd.) "1. Criminal Cases (contd.)

(iv) An opinion as to the likely verdict of the

Court or Jury, and the reasons therefore (v) Any view as to the desirability of represen­ tation in the event of conviction.

2. Divorce

When reporting on an application for aid special attention should be given to:

(i) Reasons for desiring divorce. (ii) Financial position of husband, and, or any de facto or intending husband. (iii) Likelihood of order for costs being enfor­

ceable abainst husband.

Generally speaking, legal aid for divorce is not to be regarded as a matter of course, and aid w ill only be gran­ ted w ithout the applicant providing in advance a sub­ stantial contribution towards costs if there is real

urgency or if it is obvious that the applicant w ill not be able to provide a deposit even by instalments. Each case w ill be considered On its own facts, and no general rule can be laid down as to the circumstances which w ill result

in the granting of immediate aid.

Where the committee considers that an applicant can reasonably make a contribution by instalments towards divorce costs, it w ill in an appropriate case grant aid for proceedings for a separation order in a Court of Petty Sessions so that an applicant may have security in the interim.

In every case where aid is granted for a divorce, where appropriate an order fo r the payment of security fo r costs should be obtained and enforced at the earliest possible time.

3. Bills of Costs

(i) Solicitors may in certain cases select to take on a fixed fee basis. (ii) If costs are not an elected fee accounts should be rendered on a solicitor-client basis with

full details supplied. (iii) Only disbursements expressly authorised by the Committee w ill be re-imbursed. You are reminded that no disbursements are payable

to any officer of the State if the Attorney- General's authority is obtained.

I Legal Assistance Scheme (contd.)

137

LEGAL A ID IN TASMANIA

5. Operation (contd.) 4. Roster

In most cases a roster of practitioners determines to whom a particular matter is assigned. If you are asked to act in a matter which you are for any reason unable to handle personally you are, of course, at liberty to assign it to any other solicitor in your office or to brief Counsel to whom you should be responsible.

If you submit an application for aid on behalf of your client you may if you wish express a desire to act if aid is granted.

If you adopt this course you should submit reasons which w ill enable the Committee to determine:

(i) Whether your previous knowledge of the facts of the case w ill mean a saving in costs and ensure a proper presentation of the case, and/or

(ii) Where there has existed a previously estab­ lished solicitor-client relationship between the applicant and your firm which would render it unjust to deprive the applicant of your services.

If your application for aid is made after the pro­ ceedings or matters began and you desire to con­ tinue to act you should advise any special circum­ stances which were not foreseeable when your client asked you to act w ithout aid.

The population of Tasmania is just under half a m illion people. There are some 200 practising lawyers, of whom some 40 are in the service of the

Crown.

I Legal Assistance Scheme (contd.)

138

LEGAL AID IN TASMANIA

5. Operation (contd.) Basic statistics for work done under the scheme for the years 1971-1972 and 1972-1973 are set out below:

Legal Assistance Scheme Statistics 1972-1973 (figures fo r 1 9 71-1 972 are shown in brackets)

I Legal Assistance Scheme (contd.)

Source South

S L

North

C T otal N Grand Total

Affiliation 52 (73) 31 4 35 (48) 87

Maintenance 431 (408) 237 102 339 (242) 770

Divorce 178 (119) 51 21 72 (50) 250

Legal Separation 29 (29) 39 3 42 (5) 71

Legal Custody 53 (54) 32 2 34 (9) 87

Traffic Offence 19 (9) 16 2 18 (21) 37

Criminal 318 (273) 64 26 90 (71) 408

Traffic Accident 24 (29) - - - 24

Civil 209 (137) 54 11 65 (46) 274

Workers Comp. 15 (11) 3 4 7 22

Rent 16 (9) 1 - 1 17

1344 528 175 703 (624) 2047

Miscellaneous 56

1400

139

LEGAL A ID IN TASMANIA

Legal Assistance Scheme (contd.)

Reimbursemen t

Type o f A id

Contribution b y Applicant

The profession is reimbursed by sending accounts to the Area Committee, which pays out-of-pockets in full, has the costs taxed to ensure a uniform rate throughout the State, and pays 75% of taxed professional fees.

The Legal Assistance Scheme provides that legal assis­ tance: (a) shall consist of representation by a solicitor and, so far as is necessary, by counsel (or solicitor-

counsel), including all such assistance as is usually given by solicitor or counsel in the steps, prelimi­ nary or incidental to any proceedings or in arriving at, or giving effect to , any compromise to avoid, or to bring to an end, any proceedings; (b) may be given

(i) in any action, cause, matter or proceedings whatsoever, whether civil or criminal before any court and such quasi-judicial bodies as an area committee may think fit; (ii) in any appeal from the decisions o f such

court of quasi-judicial body wherever held; and (iii) in any cause, matter or proceeding institu­ ted under the original jurisdiction of the High

Court of Australia arising wholly or in part in this State, provided that no solicitor or counsel shall be required to travel outside this State; and (c) shall include the giving of oral or written advice. Legal assistance shall include assistance in taking steps to assert or dispute a claim where: (a) the question of defending or being a party to pro­

ceedings before a court or quasi-judicial body does not arise or has not yet arisen; but (b) if it did arise the proceedings would or might

properly be such that legal assistance could be given in connection therewith under this scheme.

In Tasmania there is no means test. The amount of con­ tribution to be paid, if any, is assessed by the Area Committee which is advised by the Area Secretary con­ cerned or by the Solicitor conducting the interview. Usually in divorce cases $120 is required as a contribution except in cases such as rape, incest, cruelty, sexual aberration or constant harassment. In Tasmania it was felt that legal aid was very much a public relations exercise but the value of this would be lessened if too much emphasis was placed on the necessity to collect contributions, particularly in matrimonial causes and in criminal cases.

LEGAL AID IN TASMANIA

II Australian Courts and Tribunals

1. High Court o f 1.

Australia

Exercising Federal or State jurisdiction in C IVIL o r CRIMINAL matters 2.

(a) Appellate (b) Original 3.

4.

Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance.

(Page 15) An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18) In Federal criminal matters, Judiciary A ct, Section 69 (3). (Page 20)

Legal Assistance Scheme. (Page 135)

2. Federal Tribunals 1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18) 3. Legal Assistance Scheme. (Page 135)

3. Australian

Industrial Court

4. Australian Conciliation and A rbitration Commission

5. Bankruptcy Court

1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18) 3. Conciliation and Arbitration Act, Sections 141A, 141B, 168. (Page 22) 4. Trade Unions. 5. Legal Assistance Scheme. (Page 135)

1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18) 3. Legal Assistance Scheme. (Page 135)

1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance.

(Page 15)

2. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

141

LEGAL A ID IN TASMANIA

II Australian Courts and Tribunals (contd.)

5. Bankruptcy Court (contd.) 3. Bankruptcy A ct, Section 305 (Page 23) 4. Legal Assistance Scheme. (Page 135)

6. Courts M artial Appeals Tribunal

1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18) 3. Courts Martial Appeals Regulations, Regulation 11. (Page 25) 4. Legal Assistance Scheme. (Page 135)

7. Courts Martial 1. Where adequate and ready assistance is not available

from other legal aid sources, the Australian Legal A id Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18) 3. Defence A ct, Section 96. (Page 24) 4. Legal Assistance Scheme. (Page 135)

8. Trade Practices 1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 2. Legal Assistance Scheme. (Page 135)

142

LEGAL AID IN TASMANIA

III State Courts and Tribunals

9. Supreme Court 1.

o f Tasmania 2.

Exercising Federal or State jurisdiction in C IV IL or CRIMINAL matters

3.

(a) Appellate (b) Original 4

5.

10. Industrial Appeals 1.

Court o f Tasmania 2.

3.

4.

1. 2 . 3.

4.

1. 2.

Exercising Federal or State jurisdiction in CRIM INAL matters

11. Workers Compen­ sation Board

12A Court o f Petty Sessions

3.

725 Court o f Requests 1.

Exercising Federal or State jurisdiction in C IVIL matters

Legal Assistance Scheme (Page 135) Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

In Federal criminal matters. Judiciary Act, Section 69 (3). (Page 20) In bankruptcy matters, Bankruptcy Act, Section 305. (Page 23)

Legal Assistance Scheme. (Page 135) Trade Unions and Employer Organisations. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page18)

Legal Assistance Scheme. (Page 135) Trade Unions. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal

Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

Legal Assistance Scheme. (Page 135) Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

Legal Assistance Scheme. (Page 135) Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney

General or his delegate, w ill provide assistance. (Page 15)

143

LEGAL A ID IN TASMANIA

12B Court o f Requests 3. An Aboriginal Legal Service w ill provide assistance (contd.) for Aboriginals where there are grounds. (Page 18)

III State Courts and Tribunals (contd.)

13. Licensing Court

14. Coroners Court

15. Childrens Court

16. Mining Wardens

17. Administrative Tribunals

1. Legal Assistance Scheme. (Page 135) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance fo r Aboriginals where there are grounds. (Page 18)

1. Legal Assistance Scheme. (Page 135) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

1. Legal Assistance Scheme. (Page 135) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal A id Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance fo r Aboriginals where there are grounds. (Page 18)

1. Legal Assistance Scheme. (Page 135) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

1. Legal Assistance Scheme. (Page 135) 2. Where adequate and ready assistance is not available form other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

144

LEGAL AID IN TASMANIA

III State Courts and Tribunals (contd.)

18. Courts o f 1. Legal Assistance Scheme. (Page 135)

Marine Inquiry 2 . Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General, or his delegate, w ill provide assistance.

(Page 15)

3. An Aboriginal Legal Service.will provide assistance for Aboriginals where there are grounds. (Page 18)

19. Special 1. Legal Assistance Scheme. (Page 135)

Magisterial 2. Where adequate and ready assistance is not available Enquiry from other legal aid sources, the Australian Legal

Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

145

LEGAL AID IN TASMANIA

IV Special Areas

20. Royal Commissions

21. Conveyancing

22. Commercial Transactions

23. Wills & Estate 1. Legal Assistance Scheme. (There is no matter which

Planning could not be dealt w ith under the scheme, absolute

discretion being vested in the Area Committees.)

24. Probate

2.

(Page 135) Where adequate and ready assistance is not available

25. Taxation from other legal aid sources, the Australian Legal

Aid Office, in cases approved by the Attorney-

26. Welfare and General or his delegate, w ill provide asssitance.

Family Security

3.

(Page 15) An Aboriginal Legal Service w ill provide assistance

27. Local Government for Aboriginals where there are grounds. (Page 18)

28. Environment

29. Landlord & Tenant

30. Advice

146

LEGAL AID IN THE AUSTRALIAN CAPITAL TERRITORY

Page

I Legal A id Scheme 148

II Legal Advice Bureau 151

III Australian Courts and Tribunals 152

IV Territory Courts and Tribunals 154

V Special Areas 157

147

LEGAL AID IN THE AUSTRALIAN CAPITAL TERRITORY

Legal A id Scheme

Basis The Legal A id Ordinance, 1972 came into operation in

the Territory on 1 March 1972.

Eligibility Legal aid in criminal proceedings, including the commit­

tal stage, may be granted by the Committee where the applicant is w ithout adequate means to pay the cost of his legal representation.

Legal aid is available in most civil matters. The Commit­ tee may grant legal aid in respect of a civil matter if the cost of proceedings w ithout legal aid w ill cause undue hardship to the applicant and the applicant has reasonable grounds for taking, defending or otherwise being a party to the proceedings.

Administration The Legal aid Scheme in the Territory is controlled by a statutory three-person Legal Aid Committee and func­ tions in close co-operation w ith the Law Society of the Australian Capital Territory. Members of the Committee are appointed by the Attorney-General and the Secretary to the Committee is to be a member or employee of the

Law Society.

Finance Payments for legal aid are made by the Committee out

of a legal aid fund which in its initial stages is being finan­ ced by grants from the Australian Government. However, it is expected that in a few years time, an additional source of funds w ill be from a share o f the interest on money held in solicitors' trust accounts after the Fidelity Fund has been built up to a satisfactory level.

Operation The Scheme is limited to assistance in Courts or tribunals

having jurisdiction in the Territory. There is no residen­ tial qualification for aid. It is merely necessary that the proceedings whether civil or criminal are maintainable

in a court or tribunal having jurisdiction in the Territory. Occasionally cases arise where assistance is needed in litigious matters but it is not possible to assist an appli­ cant because the forum is outside the Territory.

Applicants apply by statutory declaration to the Secre­ tary, for a decision by the Committee. Applicants applying direct are allotted to private solicitors who are prepared to act.

Reimbursement Members of the profession acting in a legal aid case are remunerated at the conclusion o f proceedings. In crimi­ nal matters, the scale is determined by the Attorney- General. (Gazette 27 of 1972, 6/4/72). The latest

LEGAL AID IN THE AUSTRALIAN CAPITAL TERRITORY

Legal Aid Scheme (contd.)

6. Reimbursement (contd.) scale was made on 6/9/73 with effect from 1/7/73. Allowable disbursements mean the amount properly

incurred and paid or payable by the barrister and solici­ tor. However, it is usually required that expenses of an unusual or unduly expensive nature not be incurred w ithout prior approval from the Committee.

In civil matters the rate was 70% of normal solicitor and client fees to solicitors and 80% to barristers. The solici­ tors' rate was increased to 80% on 6/9/73.

7. Type o f A id Legal Aid in criminal proceedings, including the commit­

tal stage. No criminal matters in Petty Sessions other than serious cases. Legal aid is available in most civil matters.

There are specified traditional exceptions in respect of which legal aid is not available:

(1) a matter in respect of which proceedings are maintainable only by way o f relator action. (2 ) a dispute regarding the validity of an election held under a law in force in the Territory. (3) a grant of probate or letters of administration. (4) a claim for loss of services of a female in conse­

quence of her rape or seduction. (5) a claim for enticement of one spouse to leave, or remain apart from , the other.

8. Contribution by Applicant

The scheme is a contributory one in that where appli­ cants are able to make contributions, such contributions are sought. Contributions by assisted persons are an important part of the scheme as there is no automatic

financial cut o ff point in any area. Income from this source, together with costs awarded to applicants, assist in off-setting the overall costs of administering the scheme.

In criminal matters the majority of applicants are not able to make substantial contributions. Contributions are assessed on a flexible basis except in civil cases not being matrimonial matters under the Matrimonial Causes Act.

For such civil cases exemptions are provided entitled disposable income and disposable capital, to ensure that, fo r example, a deserted wife with dependant children w ill make no contribution.

Equally, someone who is likely to be unemployed for the twelve months following the date of his application would not make any contribution. In other cases con-

149

LEGAL AID IN THE AUSTRALIAN CAPITAL TERRITORY

Legal Aid Scheme (contd.)

Contribution tributions are usually assessed as a lump sum payable by by Applicant instalments calculated to finish prior to the conclusion of (contd.) the case. Sometimes contributions are deferred until the

applicant's exact financial situation is clarified, e.g. until they obtain a job again. Contributions occasionally run on after the conclusion of proceedings. On some occasions a grant of aid is directed to apply after the expenditure o f say $200 on a normal solicitor and client basis. The Committee has not yet made firm rulings on this point but the situation where a person attends a soli­ citor and is able to pay $200 down for an action which

might cost $600 can cause d ifficulty. Legal proceedings will be taken to recover unpaid contributions where the Committee considers the applicant is still able to pay.

One prosecution has been instituted in respect to a false statement made in the Statutory Declaration which is an integral part of the application fo r aid.

LEGAL AID IN THE AUSTRALIAN CAPITAL TERRITORY

II Legal Advice Bureau

1. Basis The Bureau was established by the Law Society of the

Australian Capital Territory on 1 August 1973.

2. E ligibility The services provided by the Bureau are available to all

members of the community, irrespective of income.

3. Administration Law Society of the Australian Capital Territory.

4. Finance Not applicable. Members give their services on a monthly

roster w ithout fee. Rooms are made available in the Welfare Branch of the Capital Territory.

5. Operation The Bureau operates from Beauchamp House in Acton

and is open from 12.30 pm to 2.00 pm each week-day. More than 80 solicitors have offered their services to the Bureau. A rotation system operates and 2 solicitors man the service each day during the above hours. A

request has been made to the Attorney-General's Depart­ ment for Government lawyers to participate. The Presi­ dent of the Law Society said that depending on future public response, consideration would be given to increa­ sing the number of solicitors on duty or increasing the

Bureau's hours.

6. Reimbursement The Bureau is manned on a voluntary basis by members of the profession in Canberra.

7. Type o f A id Brief oral legal advice is given on any matter arising in

Australia, after applicants have signed a short form of indemnity.

8. Contribution by

Applicant

Not applicable.

151

LEGAL AID IN THE AUSTRALIAN CAPITAL TERRITORY

Australian Courts and Tribunals

High Court o f 1.

Australia

Exercising Federal or Territorial jurisdiction in C IVIL or CRIMINAL matters 2 .

(a) Appellate (b) Original 3·

4.

Federal Tribunals 1.

2.

3.

Australian Industrial 1.

Court

2.

3.

4. 5.

Australian 1.

Conciliation and A rbitration Commission

2.

3.

Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15)

An Aboriginal Legal Service w ill provide assistance fo r Aboriginals where there are grounds. (Page 18) In Federal criminal matters. Judiciary Act, section 69(3). (Page 20) Legal Aid Scheme (Page 148) (In the case o f an appeal the Committee must be satisfied that the applicant has reasonable prospects of success.)

Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) An Aboriginal. Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

Legal Aid Scheme (where Committee is satisfied that having regard to the nature of the proceedings and the possible effect o f the proceedings in rela­ tion to the applicant, the applicant should be repre­ sented by a barrister or solicitor and that if he were not granted aid substantial hardship could be caused to him). (Page 148)

Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance.

(Page 15) An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18) Conciliation and Arbitration Act, Sections 141 A,

141B, 168. (Page 22) Legal Aid Scheme. (Page 148) Trade Unions and Employer Organisations

Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

Legal Aid Scheme (using the tribunal test) (Page 148)

LEGAL AID IN THE AUSTRALIAN CAPITAL TERRITORY

III Australian Courts and Tribunals (contd.)

5. Courts Martial

Appeals Tribunal

6. Courts Martial

7. Trade Practices

1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15)

2. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18) 3. Courts Martial Appeals Regulations, Regulation! 1 (Page 25) 4. Legal Aid Scheme (Page 148)

(using the appeal tests)

1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance.

(Page 15)

2. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18) 3. Defence Act, section 96 (Page 24) 4. Legal Aid Scheme (Page 148)

1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, will provide assistance. (Page 15) 2. Legal Aid Scheme (Page 148)

(using the tribunal test)

153

LEGAL AID IN THE AUSTRALIAN CAPITAL TERRITORY

Territory Courts and Tribunals

Supreme Court o f ' ■

the Australian Capital Territory

2

Exercising Federal or Territorial jurisdiction in C IVIL or CRIMINAL matters

(a) Appellate 3.

(b) Original

4.

Workmen's Compen- 1. sation Ordinance o f 2.

the Australian 3.

Capital Territory

(Proceedings by way of arbitration before a Magistrate) 4.

Court o f Petty 1.

Sessions

O

Exercising Federal or Territorial jurisdiction in C IVIL or CRIMINAL matters

3.

Licensing Magistrate 1.

2.

3.

Legal Aid Scheme (In the case of an appeal the Committee must be satisfied that the applicant has reasonable prospects of success. (Page 148) Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

In Federal criminal matters. Judiciary Act, section 69(3). (Page20)

Legal Aid Scheme (Page 148) Trade Unions Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance.

(Page 15) An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

Legal Aid Scheme (In most civil matters. In crim in­ al matters only in serious cases) (Page 148) Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance.

(Page 15) An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

Legal Aid Scheme. (Page 148) Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

Coroners Court 1. Legal Aid Scheme (Legal aid w ill not be granted in

relation to coronial inquests unless by reason of allegations made or likely to be made at the inquest or inquiry, there is a likelihood that the applicant may be charged w ith, or committed to stand his trial for, an indictable offence or — the evidence

LEGAL AID IN THE AUSTRALIAN CAPITAL TERRITORY

IV Territory Courts and Tribunals (contd.)

12. Coroners Court (contd.)

13. Children's Court

14. Administrative Tribunals

15. Courts o f Marine inquiry (Part IX Navigation A ct 1912-1965)

to be given at the inquest or inquiry may be such as to justify the institution of civil proceedings by or against the applicant.) (Page 148) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

1. Legal Aid Scheme (A child of needy parents will almost invariably receive aid for representation in a criminal case.) (Page 148) 2. Where adequate and ready assistance is not available

from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

1. Legal Aid Scheme (The Legal Aid Committee is not able to grant aid in relation to proceedings before tribunals unless it is satisfied that having regard to the nature of the proceedings and the

possible effect of the proceedings in relation to the applicant, the applicant should be represented by a barrister or solicitor and that if he were not granted aid substantial hardship could be caused to him.) (Page 148) 2. Where adequate and ready assistance is not available

from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

1. Legal Aid Scheme (Page 148) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service will provide assistance for Aboriginals where there are grounds. (Page 18)

155

LEGAL AID IN THE AUSTRALIAN CAPITAL TERRITORY

IV Territory Courts and Tribunals (contd.)

16. Special Enquiry (Enquiry Ordinance 1938-1970)

1. Legal Aid Scheme. (Page 148j 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

156

LEGAL AID IN THE AUSTRALIAN CAPITAL TERRITORY

V Special Areas

17. Royal Commission

18. Conveyancing

19. Commercial Transactions

20. Wills & Estate Planning

21. Probate

1. Legal Aid Scheme. (Page 148) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service-will provide assistance for Aboriginals where there are grounds. (Page 18)

1. Department of the Capital Territory Conveyancing Office (On small purchases where there is a Government loan) 2. Where adequate and ready assistance is not available

from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

1. Consumer Affairs Bureau 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in-cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

1. Curator of Deceased Estates and Trustee Com­ panies. 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal

Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

1. Registrar of Supreme Court (for small estates) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance, for Aboriginals where there are grounds. (Page 18)

157

LEGAL A ID IN THE AU STR ALIAN CAPITAL TERRITORY

V Special Areas (contd.)

22. Taxation

23. Welfare and Family Security

24. Local Government

25. Environment

26. Landlord & Tenant

1. Taxation Office furnishes advice in connection w ith the preparation of returns. 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal

A id Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance fo r Aboriginals where there are grounds. (Page 18)

1. Legal A id Scheme (includes private informations fo r assault and applications to Keep the Peace (Page 148) 2. Where adequate and ready assistance is not available

from other legal aid sources, the Australian Legal A id Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance

fo r Aboriginals where there are grounds. (Page 18)

1. Legal Aid Scheme (using the tribunal test)(Page 148) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance fo r Aboriginals where there are grounds. (Page 18)

1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal A id Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance

fo r Aboriginals where there are grounds. (Page 18)

1. Legal Aid Scheme. (Page 148) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

158

LEGAL AID IN THE AUSTRALIAN CAPITAL TERRITORY

V Special Areas (contd.)

27. Advice 1. Legal Advice Bureau (Page 151)

2. Trade Unions 3. NRMA (traffic offences) 4. Clerks of Petty Sessions 5. Consumer Affairs Bureau

6. Council for Civil Liberties 7. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) 8. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

159

LEGAL AID IN THE NORTHERN TERRITORY

Page

1 Interim Legal Aid Scheme 161

II Legal Assistance Ordinance, 1972 163

III Social Welfare Ordinance 164

IV Australian Courts and Tribunals 165

V Territory Courts and Tribunals 167

VI Special Areas 170

160

LEGAL AID IN THE NORTHERN TERRITORY

Interim Legal A id Scheme

1. Basis A comprehensive statutory scheme for the provision of

legal aid in the Northern Territory is being prepared by the Attorney-General. Until that scheme can be brought into operation the Attorney-General has approved the introduction of an interim administrative legal aid scheme

in the Territory. The scheme commenced on Monday, 9th July 1973.

2. E ligibility Legal aid in criminal matters is available where the appli­

cant is w ithout adequate means to pay the costs of his legal representation in the proceedings. In a summary matter it must also appear that the case w ill have, or is likely to have, serious consequences for the applicant.

In a criminal appeal it must also appear that the appli­ cant has reasonable prospects of success, in respect of which Counsel's opinion may be required.

In a civil matter legal aid is available where:

. it appears that the applicant has reasonable grounds for taking or being a party to pro­ ceedings; and . the costs of taking or being a party to pro­

ceedings w ithout that aid w ill cause undue hardship to the applicant.

Eligibility fo r legal aid does not depend upon residence in the Northern Territory.

3. Administration The scheme is administered by an officer of the Attorney- General's Department who is situated in an office at 1st Floor, Mitchell Chambers, Mitchell Street, Darwin. He holds appropriate appointments and delegations to enable him to take all necessary action and decisions concerning the provision of legal aid. With the inception of this scheme the powers available under the Social Welfare

Ordinance and the Legal Assistance Ordinance become largely defunct.

4. Finance Budgeted funds are provided by the Australian Govern­

ment. These are supplemented by contributions from assisted persons and by costs recovered.

5. Operation Legal aid is available in criminal and civil proceedings

maintainable in courts and tribunals having jurisdiction in, and for, the Territory and for legal advice in matters arising in Australia.

An application is ordinarily to be made in w riting on the form approved by the Department. In special circum­ stances an application made in another manner may be

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LEGAL AID IN THE NORTHERN TERRITORY

I Interim Legal A id Scheme (contd.)

5. Operation (contd.) accepted. In the first six months the scheme was

operating, 807 applications fo r aid were made, 300 of which were for legal advice.

6. Reimbursement In criminal cases, in such other cases as the Attorney-

General determines, and fo r legal advice work per­ formed in accordance w ith the scheme, practitioners are paid fo r their services in accordance w ith a scale deter­ mined by the Attorney-General. This scale is to provide payment at a rate approximating to 80 per cent o f a proper moderate fee.

In all other cases practitioners acting as barrister and solicitor are paid 80 per cent of the normal solicitor and client charges that would be allowable upon taxation.

In all cases, disbursements to the extent that they are reasonable and proper or have been approved, are paid.

A practitioner participating in the scheme may not seek or receive payments exceeding the total of the prescribed fees and disbursements.

7. Type o f A id Representation in all Courts and Tribunals and legal

advice.

8. Contribution by Applicant

An applicant for legal aid may be required to pay a contri­ bution towards the costs and proceedings where it is reasonable that he should do so, having regard to the expected costs of the proceedings, his income, assets, expenditure, commitments and dependants.

Provision of Legal Aid in Remote Places

The officer of the Attorney-General's Department ad­ ministering the scheme is empowered to enter into such arrangements w ith private legal practitioners as may be necessary fo r the representation of persons entitled to legal aid under the scheme at sittings of courts or tribu­ nals in the Territory at places where legal representation is otherwise not available.

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LEGAL AID IN THE NORTHERN TERRITORY

II Legal Assistance Ordinance, 1972

1. Basis Legal Aid Ordinance, 1972. In practice, applications are

not now being made under this scheme but under the Interim Scheme.

2. E ligibility Applicant to be w ithout adequate means to provide legal

assistance fo r himself.

3. Administration Judge and Master of the Supreme Court; Administrator

o f the Northern Territory.

4. Finance Government appropriation.

5. Operation Applications from persons committed for trial or sen­

tence are considered by the Master who arranges for representation by private practitioners.

6. Reimbursement Accounts are certified by the Master on a reduced fee

basis prescribed by the Judge under Rules o f Court, at the end o f the proceedings and are paid by the Adm ini­ stration.

7. Type o f A id Representation fo r trials and sentences in the Supreme

Court and appeals from the Supreme Court in criminal matters. Administered from the Attorney-General's De­ partment, Canberra on an ex gratia basis. Applicants must

be w ithout means etc. and must have reasonable pros­ pects of success.

8. Contribution by

Applicant

Not required.

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LEGAL A ID IN THE NORTHERN TERRITORY

III Social Welfare Ordinance

1. Basis Social Welfare Ordinance. In practice applications not

now being made under this scheme but under Interim scheme.

2. E ligibility Persons who in the opinion of the Director of Social

Welfare are socially or economically in need o f assistance.

3. Administration Northern Territory Administration, Darwin.

4. Finance Government appropriation.

5. Operation Applications are made to the Director of Social Welfare,

whose officers appear in person in the lower Courts, and who arrange fo r representation by the private profession in the higher Courts.

6. Reimbursement Practitioners render accounts to the Director of Social

Welfare at the end of proceedings who pays on an agreed slightly reduced fee basis.

7. Type o f A id Whatever legal assistance, in the opinion of the Director

of Social Welfare is necessary or appropriate in a Northern Territory Court or in an appeal therefrom.

8. Contribution by

Applicant

In appropriate cases only.

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LEGAL AID IN THE NORTHERN TERRITORY

IV Australian Courts and Tribunals

1. High Court o f Australia 1.

Exercising Federal or Territorial jurisdiction in C IV IL or CRIM INAL matters

2.

(a) Appellate (b) Original 3

4.

5.

6.

Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance.

(Page 15) An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18) In Federal criminal matters. Judiciary Act, Section

69 (3). (Page 20) Interim Legal Aid Scheme (In an appeal it must appear that the applicant has reasonable prospects of success. (Page 161)

Legal Assistance Ordinance, 1972 (Sentences and trials in indictable matters). (Page 163) Social Welfare Ordinance (Page 164)

2. Federal Tribunals 1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18) 3. Interim Legal Aid Scheme (in tribunals having jurisdiction in, and for, the Territory) (Page 161) 4. Social Welfare Ordinance (Page 164)

3. Australian Industrial Court 1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal

Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18) 3. Conciliation and Arbitration Act, Sections 141 A, 141B, 168 (Page 22) 4. Interim Legal Aid Scheme (Page 161)

5. Social Welfare Ordinance (Page 164) 6. Trade Unions & Employer Organisations

4. Australian Conciliation 1.

Arbitration Commission

2.

Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

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LEGAL A ID IN THE NORTHERN TERRITORY

Australian Courts and Tribunals (contd.)

Australian Conciliation 3. A rbitration Commission 4. (contd.) Courts Martial 1.

Appeals Tribunal

2.

3.

4. 5.

Interim Legal Aid Scheme (Page 161) Social Welfare Ordinance (Page 164)

Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal A id Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) An Aboriginal Legal Service w ill provide assistance fo r Aboriginals where there are grounds. (Page 18) Courts Martial Appeals Regulations, Regulation 11 (Page 25)

Interim Legal Aid Scheme (Page 161) Social Welfare Ordinance (Page 164)

Courts Martial 1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal A id Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 2. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18) 3. Defence Act, Section 96 (Page 24) 4. Interim Legal Aid Scheme (Page 161) 5. Social Welfare Ordinance (Page 164)

Trade Practices 1. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal A id Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance.

(Page 15)

2. Interim Legal A id Scheme (Page 161) 3. Social Welfare Ordinance (Page 164)

LEGAL AID IN THE NORTHERN TERRITORY

V Territory Courts and Tribunals

8. Supreme Court o f the Northern Territory

Exercising Federal or Territorial jurisdiction in C IV IL or CRIM INAL matters

(a) (b)

Appellate Original

1.

3. 4.

Interim Legal Aid Scheme (In an appeal it must appear that the applicant has reasonable pros­ pects of success. (Page 161) Legal Assistance Ordinance, 1972 (representation for trials and sentences) (Page 163) Social Welfare Ordinance (Page 164) Where adequate and ready assistance is not available

from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 5. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18) 6. In Federal criminal matters. Judiciary Act, Section 69(3) (Page 20) 7. In bankruptcy matters. Bankruptcy Act, Section

305 (Page 23)

Workmen's 1. Interim Legal Aid Scheme (Page 161)

Compensation 2. Social Welfare Ordinance (Page 164)

Ordinance 3. Trade Unions

4. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance.

(Page 15) An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

10A Court o f Summary jurisdiction

Exercising Federal or Territorial jurisdiction in CRIM INAL

matters

1. Interim Legal Aid Scheme (it must appear that the case w ill have or is likely to have, serious conse­ quences for the applicant). (Page161) 2. Social Welfare Ordinance (Page 164) 3. Where adequate and ready assistance is not available

from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 4. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

10B Local Court

Exercising Federal or Territorial jurisdiction in C IV IL matters

1. Interim Legal Aid Scheme (Page 161) 2. Social Welfare Ordinance (Page 164) 3. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal

Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 4. An Aboriginal Legal Service w ill provide assistance fo r Aboriginals where there are grounds. (Page 18)

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LEGAL A ID IN THE NORTHERN TERRITORY

V Territory Courts and Tribunals (contd.)

11. Licensing Court

12. Coroners Court

13. Childrens Court

14. Mining Wardens Court

15. Administrative Tribunals

1. Interim Legal A id Scheme (Page 161) 2. Social Welfare Ordinance (Page 164) 3. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal

Aid Office, in cases approved by the Attorney- General or his delegate, will provide assistance. (Page 15) 4. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

1. Interim Legal Aid Scheme (Page 161) 2. Social Welfare Ordinance (Page 164) 3. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal

A id Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 4. An Aboriginal Legal Service w ill provide assistance

fo r Aboriginals where there are grounds. (Page 18)

1. Interim Legal Aid Scheme (Page 161) 2. Social Welfare Ordinance (Page 164) 3. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal

Aid Office, in cases approved by the Attorney- General or his delegate, will provide assistance. (Page 15) 4. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

1. Interim Legal Aid Scheme (Page 161) 2. Social Welfare Ordinance (Page 164) 3. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal

Aid Office, in cases approved by the Attorney- General or his delegate, will provide assistance. (Page 15) 4. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

1. Interim Legal A id Scheme (in tribunals having jurisdiction in, and for, the Territory) (Page 161) 2. Social Welfare Ordinance (Page 164) 3. Where adequate and ready assistance is not available

from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 4. An Aboriginal Legal Service will provide assistance

fo r Aboriginals where there are grounds. (Page 18)

168

LEGAL A ID IN THE NORTHERN TERRITORY

V Territory Courts and Tribunals (contd.)

16. Courts o f Marine Inquiry

17. Special Enquiry

1. Interim Legal Aid Scheme (Page 161) 2. Social Welfare Ordinance (Page 164) 3. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal

Aid Office, in cases approved by the Attorney- General or his delegate, will provide assistance. (Page 15) 4. An Aboriginal Legal Service will provide assistance

for Aboriginals where there are grounds. (Page 18)

1. Interim Legal Aid Scheme (Page 161) 2. Social Welfare Ordinance (Page 164) 3. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal

Aid Office, in cases approved by the Attorney- General or his delegate, will provide assistance. (Page 15) 4. An Aboriginal Legal Service will provide assistance for Aboriginals where there are grounds. (Page 18)

169

LEGAL A ID IN THE NORTHERN TERRITORY

V I Special Areas

18. Royal Commissions

19. Conveyancing

20. Commercial Transactions

1. Interim Legal Aid Scheme IPage 161) 2. Social Welfare Ordinance (Page 164) 3. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal

Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 4. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

1. Social Welfare Ordinance (Page 164) 2. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney-

General or his delegate, w ill provide assistance. (Page 15) 3. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

1. Interim Legal Aid Scheme for advice, etc. (Page 161) 2. Social Welfare Ordinance (Page 164) 3. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal

A id Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 4. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

21. Wills and Estate 1. Trustee Companies

Planning 2. Social Welfare Ordinance (Page 164)

3. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal A id Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 4. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

22. Probate 1. Interim Legal Aid Scheme (Page 161)

2. Curator o f Deceased Estates 3. Social Welfare Ordinance (Page 164) 4. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal

Aid Office, in cases approved by the Attorney- General or his delegate, will provide assistance. (Page 15) 5. An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

170

LEGAL AID IN THE NORTHERN TERRITORY

VI Special Areas (contd.)

23. Taxation

24. Welfare and Family Security

25. Local Government

26. Environment

27. Landlord and Tenant

1. Interim Legal Aid Scheme (advice) (Page 161) 2. Taxation Office in relation to returns 3. Social Welfare Ordinance (Page 164) 4. Where adequate and ready assistance is not available

from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, will provide assistance. (Page 15) 5. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

1. Interim Legal Aid Scheme (Page 161) 2. Social Welfare Ordinance (Page 164) 3. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal

Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 4. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

1. Interim Legal Aid Scheme (where matter involves a Court or Tribunal) (Page 161) 2. Social Welfare Ordinance (Page 164) 3. Where adequate and ready assistance is not available

from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15) 4. An Aboriginal Legal Service w ill provide assistance

for Aboriginals where there are grounds. (Page 18)

1. Interim Legal Aid Scheme (where the matter involves a Court or Tribunal) (Page 161) 2. Social Welfare Ordinance (Page 164) 3. Where adequate and ready assistance is not available

from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, will provide assistance. (Page 15) 4. An Aboriginal Legal Service will provide assistance

for Aboriginals where there are grounds. (Page 18)

1. Interim Legal Aid Scheme (Page 161) 2. Social Welfare Ordinance (Page 164) 3. Where adequate and ready assistance is not available from other legal aid sources, the Australian Legal

Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance. (Page 15)

171

LEGAL A ID IN THE NORTHERN TERRITORY

VI Special Areas (contd.)

27.

28.

2. Social Welfare Ordinance (Page 164) 3. Trade Unions 4. Community Welfare Groups 5. Where adequate and ready assistance is not available

from other legal aid sources, the Australian Legal Aid Office, in cases approved by the Attorney- General or his delegate, w ill provide assistance, (Page 15) 6. An Aboriginal Legal Service w ill provide assistance

fo r Aboriginals where there are grounds. (Page 18)

Landlord and Tenant (contd.)

An Aboriginal Legal Service w ill provide assistance for Aboriginals where there are grounds. (Page 18)

Advice 1. Interim Legal Aid Scheme (Page 161)

R73/2323 11807/74— L

172