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Legal aid

12 Oct 2017 - 15:14 | Version 20 |

Contributed by TinaBaylis and current to 1 October 2017

Many people can't afford the services of a lawyer. Legal aid makes it possible for those people to get legal advice or help to present claims in court.

In the NT there are several sources of free or low cost legal advice and assistance:

All these organisations are independent of government and easily accessed.

Legal aid services can be broadly divided into two categories:
  • legal advice: problems are discussed with a lawyer who gives advice on the options available
  • legal assistance: usually involves representation in court and services, such as the drafting of documents and negotiation.

Both services are available for civil, criminal, family and administrative law matters ranging from small legal problems to appeals in the High Court.

The availability of services is often subject to means test or guidelines which set priorities for the use of funds. Each matter is assessed individually. Most people are advised of the likelihood of receiving legal aid at their initial advice session held at NTLAC or a private law firm.

When to seek assistance

Many people suffer unnecessary legal problems. A problem can often be avoided if a lawyer is consulted at the first sign of trouble. Some common examples include:
  • Family matters: in the case of separation or divorce where property or the custody of children is involved, legal advice should be sought at an early stage to ensure rights are protected.
  • Injuries at work: a person who is injured at work, in a car accident or even walking along the street should seek legal advice immediately because prompt action is required for work health and personal injury claims.
  • Criminal cases: a person charged with a criminal offence should see a lawyer or apply for legal aid as soon as possible. If they have been arrested, they can ask the police to contact a legal aid organisation. There is an after hours mobile phone number available to obtain legal advice before being interviewed by police. A person who is not released on bail will be taken to the court at the next court date where they can see a legal aid solicitor.

As courts prefer defendants to have legal representation, an adjournment is usually granted when a person is unrepresented to allow them time to get legal aid or a lawyer. There is, however, no absolute right to legal representation. If steps have not been taken to get assistance and the court refuses an adjournment - as it may well do if one or more adjournments have already been granted - a defendant may have to conduct their own defence or represent themselves at sentencing (see Representing yourself , this chapter).

The Northern Territory Legal Aid Commission (NTLAC) provides legal advice and legal help for many people unable to afford the services of lawyer. Help is provided by in-house lawyers, other trained staff and private lawyers paid by NTLAC to assist in particular cases.

NTLAC is an independent body, not a department or agency of either the NT or Commonwealth governments. In fact, the legislation that controls the way NTLAC provides legal services, the Legal Aid Act 1990, specifically allows it to help disadvantaged people in cases where they might be in dispute with or opposed to government or any public authority or organisation.

NTLAC can also provide help at the Magistrates Court, Youth Justice Court or Federal Circuit Court in the form of legal advice or the services of a duty lawyer. These services are free and not subject to a means test.

Services provided

NTLAC lawyers give advice on many legal matters free of charge to anyone who visits a NTLAC office in Darwin, Palmerston, Katherine, Tennant Creek or Alice Springs. A person in need of advice should first ring NTLAC to make an appointment. Legal advice is not subject to a means test and is available for a wide range of problems. Advisers can draft letters for clients, make telephone calls where appropriate, or attempt to negotiate settlements in minor matters.

Often a person attending court needs legal representation. A person who can't afford it can apply for legal aid. If legal aid is granted for this purpose, NTLAC will pay all or part of the costs of a solicitor. Legal assistance is available for criminal, civil and family law matters to applicants who meet NTLAC's guidelines as to merit, means test and priorities (see When can legal aid be provided? below). A successful applicant is required to contribute to the cost of the legal representation provided. This contribution depends on the outcome of the matter and if any money was awarded.

Duty lawyer services

NTLAC provides duty lawyer services at court either by using its own staff or by paying lawyers in private practice. Both the Darwin and Alice Springs Magistrates and Children's Court has a duty lawyer on site five days a week. A service is also provided at the Katherine and Tennant Creek Court several days per week as needed. NTLAC also provides a duty lawyer service on duty days at the Federal Circuit Court in Darwin.

A duty lawyer can advise an alleged offender and, if necessary, appear for them when they apply for bail or an adjournment. The lawyer can also represent a defendant in a minor matter if they are pleading guilty. There is no means test for these services. A duty lawyer would not appear in court to defend a case unless the circumstances were exceptional (see Going to court). Assistance may also be provided in a civil case if there is particular hardship or urgency.

Once the court date is known, a defendant should apply immediately for legal aid to avoid an adjournment.

The family law duty lawyer can provide advice, assist in negotiation of orders and assist in applying for an adjournment. The family law duty lawyer cannot provide representation.

Legal aid is often provided by private lawyers paid by NTLAC. A private lawyer is paid a set fee for work done from the date that legal aid is granted to a maximum amount specified in the grant. A client should ask their lawyer to explain what the grant of legal aid covers and instruct them to seek an extension of the grant from NTLAC. If a NTLAC contribution is assessed it should be paid directly to the private lawyer.

Some lawyers prefer not to represent legally aided clients. A client who can't afford the cost of private legal representation and intends to apply for legal aid should inform their lawyer of this fact at the initial interview.

A private lawyer who demands or receives payment from a legally assisted person without permission from NTLAC commits an offence. However, private lawyers can charge fees before legal aid is granted.

A lawyer is not allowed to charge fees for helping to prepare an application for legal aid.

NTLAC provides legal advice for prisoners in various centres in the NT. A duty lawyer visits the Darwin Correctional Centre one day a week. Prisoners in other centres can obtain advice by contacting NTLAC. People in prison do not pay a legal aid contribution.

Family Law Conference Program

NTLAC commenced the family law conferencing program in 2004 to assist clients to reach agreement over a family law problem without going to court. Conferences are not formal hearings like court proceedings. You can cover issues and concerns that you would not be able to talk about in court. Conferences are also a more cost efficient alternative than going to court. Conferences are quick, informal and less stressful than going to court.

Legal aid is ordinarily available only to individuals. Incorporated organisations and companies can't get legal aid.

NT residents who need assistance in another State must apply to the organisation responsible for legal aid in that State.

Appeals

An appeal can be made by anyone who:
  • has an application for legal aid refused
  • objects to a condition imposed or a contribution demanded
  • has their grant of legal aid stopped.

An appeal has to be made in writing. It should be made within three months and state why the decision is unfair and should be changed.

Contributions

Legal Aid is not free. A person granted legal aid is generally required to contribute towards their legal costs. The minimum contribution is $110, but a person with sufficient income or available funds may have to pay more. The amount that has to be contributed is stated in the letter advising that legal aid has been granted. Where a person has been granted legal aid and their financial situation later improves, NTLAC can require further contributions. A person who recovers a sum of money or whose matter is successful as a result of legally aided proceedings, or other circumstances (for example from the sale of property, a win at lottery, or a compensation payout), is normally required to repay NTLAC for all their legal costs. However, each case is considered on its merits.

NTLAC cannot give legal aid to everyone. When deciding whether to grant legal aid, NTLAC uses three broad criteria to assess an application:
  • means: an income and assets test
  • merit: the likelihood of success is judged
  • guidelines and priorities: certain types of cases are assisted.

Means test

A means test is applied to assess an applicant's financial position and ability to pay for legal costs. Under the test, all the income of the applicant and their married or de facto spouse is taken into account, after allowing for tax, child care, child or spouse maintenance, reasonable rent or mortgage payments and dependants. All assets are also included in the test, except household furniture and effects, clothing, tools of trade, motor vehicles and the applicant's house.

Applications made by persons under 17 years of age, whether or not supported by a parent or guardian, are not subjected to the means test.

When an application is refused, the applicant can reapply if their financial circumstances change.

Merit test

Legal aid is only granted when an applicant's claim has a reasonable chance of success or the result is likely to be of sufficient personal or public benefit. NTLAC also considers the likely cost of providing the assistance. Before taking legal action, a person paying their own fees considers:
  • the likelihood of success
  • how much their lawyer will cost
  • the risk of paying the other party's legal fees if they lose
  • the amount or value of the claim
  • whether the other party has any money or assets to pay the claim.

Similarly, legal aid is only funded if a matter is economical. This test is not applied to a person who pleads guilty to criminal charges as long as their case falls within NTLAC's guidelines and they pass the means test.

Guidelines for providing assistance

NTLAC's Guidelines state that legal aid is only to be granted for certain matters, as outlined below. The guidelines can be waived in special circumstances, such as when an applicant doesn't speak English.

A copy of NTLAC's Guidelines can be obtained by contacting the Grants Section on 8999 3000 or from their website at www.ntlac.nt.gov.au.

Family law matters

Legal aid may be made available for family law proceedings, such as children's matters and some property disputes. Unless there is a real need to take urgent court action to protect the interests of children, assistance in family law matters is at first limited to preliminary negotiations or mediation aimed at settling the dispute. If negotiations or mediation are successful, legal aid will be extended to register consent orders (see Parenting after separation). If negotiations or mediation are unsuccessful, assistance may be extended for court proceedings if NTLAC is satisfied that a genuine attempt to settle the matter has been made, and the proposed further action has a reasonable chance of success.

NTLAC generally funds the following matters:
  • separate representation of children
  • parenting plans and consent orders
  • family law conferences
  • location and recovery orders
  • other orders relating to children
  • injunctions relating to family violence
  • child support
  • child and spousal maintenance
  • dissolution and nullity of marriage in exceptional circumstances
  • some property proceedings.

Civil matters

Subject to a guidelines test, legal aid is granted for a wide range of civil proceedings in various courts and tribunals. Assistance is usually limited to investigating the merits of a case and its prospects for success. Once the matter is determined to have merit, NTLAC doesn't fund the matter further. If there is a reasonable chance of success, the client will be directed to the private sector where they can find a lawyer who will defer the payment of costs until the case is concluded.

If the initial non-lawyer costs of preparing and running the court case, for example the cost of doctor's reports, expert witness expenses and so on, are high, a person can apply to the Legal Aid Contingency Fund for assistance (see Contact points ). To get assistance from this fund there must be a reasonable chance of the case succeeding. A legal aid client who loses a civil action may be ordered to pay the other party's legal costs. NTLAC cannot pay these costs.

If the person wins their case and is awarded damages or costs, they have to repay NTLAC the costs of the grant.

In all civil matters NTLAC weighs the likely benefits against the estimated costs of providing assistance. Legal assistance is not normally provided where adequate assistance can be obtained elsewhere, such as from the Public Trustee, Local Court, Consumer Affairs or a trade union.

Domestic violence matters

NTLAC provides legal assistance to defendants in domestic violence matters through the Respondent Early Assistance Legal Service ("REALS"). REALS provides a duty lawyers service at the Local Court in Darwin for unrepresented defendants attending court for their DVO matters. The duty lawyer can provide defendants with legal advice, assistance with limited negotiations and limited advocacy.

REALS can also provide legal advice to defendants away from the court by appointment only.

Criminal law

NTLAC's first priority in granting legal assistance is to help those whose individual liberty is threatened by criminal proceedings.
  • Traffic prosecutions: assistance is not normally provided for traffic prosecutions unless a substantial civil claim may be affected by the outcome or conviction is likely to result in a prison sentence or loss of livelihood, and there is a real prospect of avoiding conviction.
  • Criminal prosecutions in the Local Court: legal aid is granted if conviction is likely to result in a prison sentence, loss of livelihood or a substantial penalty, or if representation would serve the public interest.
  • Committal proceedings: assistance is provided in cases of homicide or where consent or identification is in issue or where there may be a substantial benefit as a result.
  • Criminal trials: aid is normally limited in cases involving a guilty plea, except where there is a reasonable prospect of acquittal.

Applying for representation

To make an application for legal aid, a person needs first to make an appointment to see a lawyer at one of the advice clinics held at the Darwin, Palmerston, Katherine, Tennant Creek or Alice Springs offices. Appointments can be made by ringing the Legal Aid Helpline on 1800 019 343. If the NTLAC is unable to provide advice to a person an appointment can be arranged to see a private lawyer.

At the appointment, the person is given an application form to fill out. The form contains a declaration which must be signed by the applicant. When returning the form, the applicant must supply proof of income, such as three recent pay slips, or, if they receive a pension or benefit, proof of payment, together with three months of their bank statements or bank book and details of their legal problem and financial position.

Once NTLAC has assessed an application, the applicant is advised in writing whether or not aid has been granted. If granted, the applicant will be notified of any conditions placed on the grant and the name of the lawyer assigned to the case. Although emergency aid can be granted immediately, the normal waiting time is about one week and may be longer if further details are required.

Parties on both sides of a legal dispute can be legally aided. Usually one party is represented by a NTLAC staff lawyer and the other party by a private lawyer, or both parties may be represented by private lawyers.

False information and confidentiality

An applicant who withholds or gives misleading information when making an application for legal aid commits an offence and is liable to a fine of $2000. An offender may also have to repay the sum of any legal aid granted. Legal aid not repaid can be recovered as a debt (see Debts ).

All information given to NTLAC is confidential. NTLAC will not, without permission, disclose information to anyone regardless of whether the applicant has been granted legal aid. It will not disclose personal or financial details to a government department or a private agency, except where it is obliged to do so under laws relating to social security and income tax. Under the Legal Aid Act any member or staff member of NTLAC who discloses, without the permission of the client, any information concerning their affairs is guilty of an offence punishable by a fine of up to $2000 or six months imprisonment.

Contact details

The contact details for NTLAC are as follows:

The Legal Aid Helpline
Australia Wide Monday - Friday 8am - 4.30pm
Freecall: 1800 019 343

Darwin office
6th Floor, 9-11 Cavenagh Street, Darwin, NT
Locked Bag 11, Darwin NT 0801
Fax: 8999 3099
Website: www.ntlac.nt.gov.au

Palmerston office
Shop 6, 25 Chung Wah Terrace, Palmerston NT
Locked Bag 11, Darwin NT 0801
Fax: 8999 4747
Website: www.ntlac.nt.gov.au

Alice Springs office
77 Hartley Street Alice Springs, NT
PO Box 969, Alice Springs, NT 0871
Fax: 8951 5378
Website: www.ntlac.nt.gov.au

Katherine office
20 Second Street, Katherine, NT
PO Box 145, Katherine, NT 0851
Fax: 8973 8551
Website: www.ntlac.nt.gov.au

Tennant Creek Legal Resource Centre
Shop 3, 163 Paterson Street
PO Box 794, Tennant Creek NT 0861
Fax: 8962 2439
Website: www.ntlac.nt.gov.au

The North Australian Aboriginal Justice Agency (NAAJA) aims to empower Aboriginal people and advance the interests and aspirations of Aboriginal communities through the provision of a comprehensive range of legal and support services in the Top End of the NT. The contact details of all three offices are:

(NAAJA)
Head Office based in Darwin and serves the Aboriginal people in the top end of the Territory.
61 Smith Street, Darwin, NT
GPO Box 1064, Darwin, NT 0801
Tel: 8982 5100 (Toll Free: 1800 898 251) from within the NT
Fax: Criminal Law Section: 8982 5195 Civil Law Section/Administration: 8982 5199
Email: mail@naaja.org.au

Katherine Office
Based in Katherine and serves the Aboriginal people in the Katherine, Victoria River and Borroloola regions.
32 Katherine Tce, Katherine, NT
PO Box 1944, Katherine, NT 0851
Tel: 8972 1133 (Toll Free: 1800 897 728) from within the NT
Fax: 8972 0381 Civil Law Section 8972 1839

Palmerston/Throughcare Office
2/41 Georgina Crescent, Yarrawonga, NT
Tel: 8931 7400 (Toll Free: 1800 321 201) from within the NT
Fax: 8931 7444

Operating independently of NAAJA and servicing the Alice Springs region the Central Australian Aboriginal Legal Aid Service (CAALAS) has the similar roles and functions to that of NAAJA.

Central Australian Aboriginal Legal Aid Service (CAALAS)

Based in Alice Springs and serves the Aboriginal people in the Central Australian region including Tennant Creek. Contact details are:

CAALAS Alice Springs
55 Bath Street, Alice Springs, NT
PO Box 1670, Alice Springs, NT 0871
Tel: 8950 9300 Fax: 8953 0784
Freecall: 1800 636 079
Email: reception@caalas.com.au

CAALAS Tennant Creek
68 Paterson Street, Tennant Creek, NT
Tel: 8962 1332 Fax: 8962 2507
Email: tcreception@caalas.com.au

Aboriginal people make up approximately 30% of the population of the NT. The Australian Bureau of Statistics records that 71% of these Aboriginal people speak at least one of the languages that are indigenous to the Territory. Clearly there is a compelling need in the NT for legal services that assist those Aboriginal people who do not have a tradition of adherence to the Anglo legal system. The Territory's Aboriginal Legal Services strive to meet this need by:
  • ensuring that if possible all positions in Aboriginal Legal Services are filled by suitably qualified Aboriginal people. In particular, the services employ Aboriginal Field and Client Services Officers who use their knowledge and communication skills to assist Aboriginal people in dealing with:
    • non-Aboriginal lawyers
    • the Territory Insurance Office
    • court staff
    • Correctional Services and the Department of Justice
    • Centrelink
    • banks, credit societies and so on
    • police
    • dispatching lawyers and field officers to the 23 or so communities and small towns that host sittings of NT courts
    • helping Aboriginal prisoners (who comprise 86% of the NT prison population) maintain close links with their communities and other support networks
    • providing whenever and wherever possible legal education to Aboriginal people
    • putting the Aboriginal perspective on various issues to government, particularly in the law and justice area
    • providing a 24/7 after hours phone service to those bought into police custody.

The NT Aboriginal Legal Services also provide services similar to those offered by NTLAC. The list of services includes the following:

Criminal law

  • representation in the NT Court of Criminal Appeal
  • representation in the Supreme Court (trials and pleas)
  • representation in the Courts of Summary Jurisdiction in most matters, certainly those involving charges of any seriousness.

Civil law

  • with the exception of native title/land rights claims, a range of civil matters including Crimes (Victims) Assistance applications, TIO claims, consumer/debt, tenancy matters, property forfeiture, assistance with complaints.

Family law

  • children's matters
  • dissolution of marriage proceedings
  • child support cases.

Who is eligible for help?

All Aboriginal people who meet the guidelines are eligible for help.

Community legal centres are community based agencies that rely on a mix of government funding and volunteer assistance to provide legal services. In general they aim to:
  • provide advice and assistance to people who cannot obtain legal assistance elsewhere
  • provide information and education about the law to the general public
  • take action in the areas of law reform and administrative practice in the interests of disadvantaged people. Such action includes research, submissions and legal cases.

The community legal centres in the NT are outlined below.

Darwin Community Legal Service (DCLS) provides a range of free services including:
  • Aged and Disability Rights
  • Welfare Rights
  • Tenants' Advice
  • Human rights and public interest law.

Free legal advice sessions are run every week with the assistance of volunteer lawyers from private practice or the public sector. Anyone can receive initial advice on most areas of the law. Sessions are held weekly in Darwin, Casuarina, Palmerston, and monthly or quarterly in Katherine and Batchelor. For further information contact DCLS at:

75 Woods Street, Darwin, NT
GPO Box 3180, Darwin, NT 0801
Tel: 8982 1111 Freecall: 1800 812 953
Fax: 8982 1112
Email: info@dcls.org.au
Website: www.dcls.org.au

The Aged and Disability Rights Team

The Aged and Disability Rights Team provides non-legal and legal advocacy. It can provide information, advice, assistance or representation to:
  • older people who live in aged care facilities or who receive community aged care packages, such as those who receive services that are covered by the Commonwealth Aged Care Act.
  • people who receive Home and Community Care services
  • people with disabilities who have concerns about their rights and the standards of services they receive
  • people who believe they have been treated unfairly because of their disability. They can obtain legal advice and assistance on the NT Anti-Discrimination Act and the Disability Discrimination Act.

Welfare Rights

The Welfare Rights Service assists people who are unhappy with a decision made about their Centrelink payments. The service can provide free legal advice and advocacy on any type of Centrelink payment. This includes information about rights, appealing decisions, and in some cases, representation at a tribunal.

Tenants' Advice

Darwin Community Legal Service receives funding to provide a tenancy and advocacy service. The service provides information, advice and assistance for public and private tenants throughout the NT, delivers community legal education, participates in relevant policy development and law reform activities.

The service is NT-wide but is based in Darwin.

Human rights and public interest law

DCLS is involved in efforts to promote human rights and improve laws and policies for people who are disadvantaged. It also runs education sessions on many different areas of law.

Top End Women's Legal Service Inc (TEWLS) is a Darwin based community legal service for women that provides confidential and free legal advice and community legal education in the Top End. Advice sessions are held at the Palmerston Community Care Centre every Monday from 12 noon to 3.00pm (appointment required) and at the TEWLS office every Wednesday from 5.15pm (appointment required) and Thursdays from 9.00am to 4.00pm (appointment required).

Specialist services are also available for women of non-English speaking backgrounds. Contact TEWLS for more information.

Workshops on legal issues can be arranged.

Anybody who is interested in becoming a member of TEWLS or receiving its newsletter, should make contact.

Contact details are:

Ground Floor, 2/5 Edmunds Street, Darwin, NT 0800
GPO Box 1901, Darwin NT 0801
Tel: 89823000 Fax: 8941 9935
Email: admin_tewls@clc.net.au

An Alice Springs-based legal service that provides confidential free legal advice, assistance and representation to women in Central Australia.

Contact details are:

77 Todd Street, Colocag Plaza, Alice Springs, NT 0870
PO Box 3496, Alice Springs, NT 0871
Tel: 8952 4055 Fax: 8952 4033
Freecall: 1800 684 055
Email: enquiries@cawls.org.au

A Katherine based service that provides free legal advice and limited case work assistance to women throughout the Katherine region. The office also undertakes some community legal education and law reform activities.

Contact details are:

Shop 5, 17 First Street, Katherine, NT 0850
PO Box 1194, Katherine, NT 0851
Tel: 8972 1712 Fax: 8972 1572
Freecall: 1800 620 108
Email: info@kwils.com.au

Domestic Violence Legal Service (Darwin) and the Domestic Violence Legal Help (Alice Springs) provide legal advice, assistance and representation to people who have experienced domestic violence. The Respondent Early Assistance Legal Service provides legal advice, assistance and limited representation to people who are defendants to DVO matters. Contact details for these legal services are:

Level 1, Nichols Place, Cnr Cavenagh and Bennett Streets, Darwin, NT
GPO Box 2925, Darwin NT 0801
Tel: 8999 7977 Fax: 8999 7979
Email: info@dvls.nt.gov.au

77 Todd Street, Colocag Plaza, Alice Springs, NT 0870
PO Box 3496, Alice Springs, NT 0871
Tel: 8952 4055 Fax: 8952 4033
Freecall: 1800 684 055
Email: enquiries@cawls.org.au

Via the civil section of the NT Legal Aid Commission
6th Floor, 9-11 Cavenagh Street, Darwin, NT
Locked Bag 11, Darwin NT 0801
Freecall: 1800 019 343
Fax: 8999 3099
Website: www.ntlac.nt.gov.au

Environmental Defender's Office (NT) Inc

The Environmental Defender's Office (NT) is a community legal centre specialising in public interest environment and planning law. A range of services is offered, including the provision of legal advice on matters relating to the natural and built environment, law reform and community education in environmental and planning law.

Contact details are:

7 Searcy Street, Darwin, NT
PO Box 4289, Darwin, NT 0801
Tel: 8981 5883
Freecall: 1800 073 916
Email: edont@edont.org.au

NAAFLS is an outreach legal service that assists 44 communities in the NT. NAAFLS is a community controlled justice, advocacy and referral service. It also provides community legal education and development assistance. Offices are located in both Darwin and Katherine:

Darwin office:
Tel: 8923 8200 Fax: 8927 5942
Freecall: 1800 041 998
Email: admin@naafls.com.au

Katherine office:
Tel: 8972 3200 Fax: 8972 3277
Freecall: 1800 184 868
Email: admin@naafls.com.au

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