Western Australian Consolidated Acts Western Australian Consolidated Acts [(1) deleted]
(2) Subject to
subsections (4c) and (4d), legal aid may be provided to a person under
this Act if, and only if —
(a) the
person is in need of that legal aid by reason that he is unable to afford the
full cost of obtaining from private practitioners the legal services in
respect of which the legal aid is sought; and
(b) it
is reasonable in all the circumstances to provide the legal aid.
(3) In the making of a
decision whether a person is in need of legal aid by reason that he is unable
to afford the full cost of obtaining from private practitioners the legal
services in respect of which the legal aid is sought, a legal aid authority
shall have regard to all relevant matters including —
(a) the
income of the person;
(b) the
cash that is readily available to the person or can be made so available;
(ba)
moneys or other financial resources —
(i)
in which the person has any legal or equitable interest;
(ii)
over which the person has any direct or indirect control;
or
(iii)
to which the person has, or could reasonably be expected
to have, access;
(c) the
debts, liabilities and other financial obligations of the person;
(d) the
cost of living in the locality where the person resides;
(e) the
cost of obtaining the legal services from private practitioners; and
(f) any
other matter affecting the ability of the person to meet the cost of obtaining
the services from private practitioners.
(3a) In the making of
a decision whether a person is in need of legal aid by reason that he is
unable to afford the full cost of obtaining from private practitioners the
legal services in respect of which the legal aid is sought, a legal aid
authority shall not have regard —
(a)
where the person is a child for whom the CEO has parental responsibility under
the Children and Community Services Act 2004 , to the resources of the
Department that are capable of being applied for the provision of legal aid to
the person;
(b) in
any case, including the case of a person referred to in paragraph (a), to
the resources of any department, instrumentality or agency of the Crown, in
right of the State or the Commonwealth, that are capable of being applied for
the provision of legal aid to the person.
(3b) In
subsection (3a)(a) —
CEO , child and Department have the meaning given
to those terms in section 3 of the Children and Community Services
Act 2004 .
(4) In deciding
whether it is reasonable in all the circumstances to provide legal aid to a
person in respect of a matter a legal aid authority shall, subject to any
direction given and in force under subsection (4a), have regard to all
relevant factors including —
(a)
whether or not the matter relates to a problem the solution to which may be
obtained by representation within the field of normal legal practice;
(b)
whether or not the matter is one in respect of which a practical or material
benefit or gain may accrue to the person or a practical or material detriment
or loss may be suffered by the person;
(c) the
likely cost to the Fund of providing the legal aid and whether or not the
outlay of that cost is justified having regard to —
(i)
the benefit or gain that may accrue to the person or the
detriment or loss that may be suffered by the person in respect of the matter;
(ii)
the moneys for the time being standing to the credit of
the Fund for the provision of legal aid; and
(iii)
the number, nature and relative merits of other
applications for legal aid that have been made, or are reasonably expected to
be made;
(d) in
the case of legal aid in relation to proceedings —
(i)
whether or not the proceedings are likely to be
determined in a manner favourable to the person; and
(ii)
whether or not, in the ordinary course of practice, a
client who was not in financial need of legal aid would, notwithstanding the
possible costs of a litigation, be advised to take or defend the proceedings,
as the case may be.
(4a) The Commission
may, having regard to the amount of the moneys standing to the credit of the
Fund available for the provision of legal assistance and to the financial
commitments of the Commission from time to time, direct that a legal aid
authority shall not under subsection (4) have regard to any factor
specified in that direction in deciding whether it is reasonable in all the
circumstances to provide legal aid to a person in a matter of a class
specified in that direction.
(4b) In deciding under
subsection (2) whether to provide legal aid to a person, a legal aid
authority may have regard to, and may refuse to provide legal aid because of,
the apparent financial circumstances and standard of living of the person.
(4c)
Where —
(a) in
relation to proceedings in a state that is a Contracting State within the
meaning of the Convention on International Access to Justice (signed at The
Hague on 25 October 1980), a person makes application under this Act
for legal assistance for the purpose of a matter to which Article 13 of that
Convention applies; and
(b) a
legal aid authority is satisfied that, in accordance with Article 1 of that
Convention, the person has been granted or has received legal aid for those
proceedings,
legal aid shall,
notwithstanding any other provision of this Act, be provided to the person for
that purpose in accordance with Article 13 of that Convention.
(4d) The Attorney
General may, by notice in writing, authorise a legal aid authority to provide
legal aid to a person specified in the notice, or to a person in a class of
persons specified in the notice, without making a decision as to whether the
person is a person referred to in subsection (2)(a).
(4e) The Attorney
General may, by notice in writing, vary or revoke an authorisation given under
subsection (4d).
(4f) A notice under
subsection (4d) or (4e) is to be given to the Director.
(4g) The annual report
submitted by the accountable authority of the Commission under the
Financial Management Act 2006 Part 5 is to include particulars
of —
(a) the
number of notices of authorisation given to the Director under
subsection (4f); and
(b) the
amount of monies paid out of the Fund as a result of those authorisations.
(5) Where, after legal
services have been performed or partly performed by a private practitioner on
behalf of a person in relation to a matter, —
(a) that
person makes an application for legal aid in relation to that matter; and
(b) a
legal aid authority decides that legal aid should be provided in relation to
that matter,
any services so
performed or partly performed by that private practitioner on or after such
date as the legal aid authority specifies (being a date not more than
30 days before the making of the application) shall be regarded as having
been performed by way of legal aid under this Act.
[Section 37 amended by No. 60 of 1977
s. 18; No. 126 of 1982 s. 9; No. 90 of 1986 s. 12;
No. 49 of 1996 s. 64; No. 34 of 2004 Sch. 2 cl. 17(2) and (3);
No. 27 of 2006 s. 4; No. 77 of 2006 Sch. 1 cl. 96(1).]