Page 5638 - Week 13 - Thursday, 18 November 2010
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In relation to assets, these principles provide that if a person does not initially satisfy the assets test, they may still be eligible for legal aid in limited circumstances, if they cannot reasonably be expected to borrow against their assets. In this case, the Legal Aid Commission has the discretion to determine whether it is appropriate in the circumstances to impose a client contribution on the sale or transfer of the property, or both.
Both the income test and the asset test must be satisfied in order for a person to be eligible for assistance. The test also takes into account the fact that a person’s income or assets may improve during the course of a grant of aid, in which case the amount of assistance can be varied.
The bill clarifies the fact that an assessment of a person’s eligibility for legal aid and their corresponding contribution can be varied as their matter continues. Currently, section 31(1)(a) of the act states that an award of legal assistance may be subject to a condition that the person pays a contribution of a “specified amount” to the commission. The amendment will change this wording to “an amount” and will explicitly state the fact that a person’s contribution can be varied as a legal matter progresses.
The updated drafting also clearly relates contributions, and variations to contributions, to the core eligibility criteria for legal assistance. The amendment includes in section 31 a new reference to section 28(3), which lists the matters that can be considered by the commission in deciding eligibility. Section 28 directs the commission to consider a person’s income, costs and any other matter affecting the person’s ability to pay. If a person’s ability to pay changes during their grant of assistance, the commission can adjust its contribution requirements accordingly
By clarifying the provisions which govern eligibility for assistance, the act ensures that the existing practices will continue. It is important to preserve this system because appropriate contributions from clients mean that more of Legal Aid ACT’s funds will be available to help other clients in need. The whole community benefits and Legal Aid ACT is able, when appropriate, to ask its clients to pay a fair share.
Thirdly and lastly, this bill will amend the definition of “private legal practitioner” to align with the definition of “principal” under section 9 of the Legal Profession Act 2006. This reflects the different kinds of practice arrangements established and regulated in the ACT and formally recognises these arrangements in the act.
This bill will provide more certainty for legal practitioners and consumers of Legal Aid services and will help improve access to justice. It will also guarantee important protections for legal practitioners when representing clients who are legally assisted by organisations outside of the ACT. The amendments affirm the basic principle of legal aid, which is that people in our community who cannot afford private legal representation due to their income and assets are entitled to assistance.
The government is committed to supporting Legal Aid ACT, the services that they provide and the clients that they assist. These amendments will contribute to the
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