CONFISCATION ACT 1997 - SECT 143 Provision of legal aid

CONFISCATION ACT 1997 - SECT 143

    (1)     If a court is satisfied at any time that—

S. 143(1)(a) amended by Nos 68/2010 s. 66(a)(b), 79/2014 s. 41(1).

        (a)     a restraining order or a civil forfeiture restraining order or an unexplained wealth restraining order has been made in respect of property of a person and the restraining order or the civil forfeiture restraining order or the unexplained wealth restraining order, as the case requires, is in force; and

S. 143(1)(b) amended by Nos 18/2005 s. 18(Sch. 1 item 17.2), 68/2010 s. 66(b), 79/2014 s. 41(1)(b).

        (b)     the person is in need of legal assistance in respect of any legal proceeding, whether civil or criminal, and whether in respect of a charge to which the restraining order or the civil forfeiture restraining order or the unexplained wealth restraining order, as the case requires, relates or otherwise, because the person is unable to afford the full cost of obtaining legal assistance from a private law practice or private legal practitioner (within the meaning of the Legal Aid Act 1978 ) from unrestrained property or income of the person—

the court may order Victoria Legal Aid to provide legal assistance to the person, on any conditions specified by the court, and may adjourn the legal proceeding until such assistance has been provided.

    (2)     Despite anything in the Legal Aid Act 1978 , Victoria Legal Aid must provide legal assistance in accordance with an order made under subsection (1).

    (3)     If—

        (a)     a court makes an order under this section; and

        (b)     a condition of the provision of legal assistance is that the cost or part of the cost, and any interest payable on the whole or the part of the cost, to Victoria Legal Aid of providing the assistance be secured by a charge over any land or any other property in which the person has an interest; and

        (c)     an amount required to be paid to Victoria Legal Aid under such a condition is not paid; and

        (d)     the person to whom legal assistance is provided is registered as the proprietor of an estate in fee simple, either solely or as a joint tenant or a tenant in common, in land under the Transfer of Land Act 1958 or holds an estate in fee simple or an equity of redemption, either solely or as a joint tenant or a tenant in common, in land not under that Act—

Victoria Legal Aid may secure the payment of any amount which has not been paid (including any unpaid interest) and any interest which may become due and unpaid on the whole or any part of that amount by taking out a charge over that land.

    (4)     A charge taken out by Victoria Legal Aid is to be for the benefit of the Legal Aid Fund.

S. 143(5) amended by No. 20/2015 s. 6.

    (5)     Sections 47B, 47D and 47E of the Legal Aid Act 1978 apply to a charge over land referred to in this section as if it were a charge to which section 47A(2) of that Act applies.

S. 143(6) amended by Nos 43/1998

ss 36(za), 39(h), 68/2010 s. 66(c), 79/2014 s. 41(2).

    (6)     If an amount owed to Victoria Legal Aid under this section is not paid and Victoria Legal Aid is unable, by enforcing a charge to which subsection (3) applies or otherwise, to recover that amount, then the State must pay that amount to Victoria Legal Aid to the value of any property forfeited to the Minister or the amount of any penalty paid to the State (less conversion costs and any amount paid under section 31 or section 36ZB) in relation to the offence in reliance on which the restraining order or the civil forfeiture restraining order or the unexplained wealth restraining order, as the case requires, was made and the Consolidated Fund is, to the necessary extent, appropriated accordingly.

S. 143A inserted by No. 63/2003 s. 34.