Tuesday, 16th of January, 2018

Legal Assistance

Legal Assistance Overview

 

Many people who come into contact with the law will feel out of their depth. Lawyers are a means of contact with the law so that people can feel that they are not lost in the difficult language and complicated processes of the law. This is why lawyers have obligations on them to communicate with their clients – their special knowledge and expertise creates a relationship between lawyer and client that requires the lawyer to act responsibly and openly with their client.

Lawyers fulfill a number of roles in society. Television programs often depict them as defenders of people's rights in courts, but they play many other roles. The majority of lawyers work in private practice either as ‘partners’ or employees in legal firms. (A partner is a lawyer who has an ownership stake in the firm). These firms vary from small or one lawyer practices dealing with a range of ordinary legal matters to huge commercial law firms with branches in a number of cities and even overseas.

Representing people in court is only part of a lawyer’s work, and some may never represent a person in court. Other aspects of a lawyer’s work include:

  • negotiating with other lawyers to resolve disputes
  • drawing up agreements and other documents, such as completing business transactions such as loans and homes and assets purchases and sales
  • generally giving advice as to what can and can't be done legally
  • the pros and cons of differing ways of dealing with legal problems.

Lawyers who engage mainly in this kind of non-court work are traditionally known as ‘solicitors’. Lawyers who specialise in court work are known as ‘barristers’, though another important part of a barrister's work is giving opinions on the law and drafting court documents. The convention is that barristers are usually ‘briefed’ by solicitors instead of directly by clients themselves. All lawyers in Tasmania are admitted as both ‘barristers and solicitors’, though some specialise as barristers.

Lawyers fulfil many different functions in government at both state and Commonwealth level. They represent the government in court, most often as prosecutors, and work as government solicitors. They also work as judges and magistrates, members of tribunals, boards and commissions, administrators in the public service and in local government, especially in the planning area. They work in Legal Aid Commissions and community legal centres to try and ensure that the bulk of the population who cannot afford to pay for the services of private lawyers can have access to legal services. Lawyers also work ‘in-house’ in banks, insurance, the media and large corporations, and some enter politics.

Most lawyers, no matter where they work, will end up specialising in a particular branch of law, for example, the practice, or enforcement, or teaching, of taxation law. Within the ranks of lawyers practising in the courts there are specialists in many different fields, such as criminal law, family law, or personal injury law. These lawyers (or barristers) may be experts in a particular field but totally unfamiliar with an area within which they do not practise. This is why it is important to access services such as the Law Society of Tasmania’s ‘Find a Lawyer’ to find the right lawyer or firm, or community legal service for your legal problem.

Court or Mediation?

In some cases the court process, rather than mediation, is the most appropriate way to sort out disputes. For example, some people want a magistrate to decide who is right or wrong, or they want lawyers to act for them, or they don't want to speak to the other party under any circumstances. (It should be emphasised that most people find mediation very helpful, but if it doesn't work the court system can still be used.)

Mediation is the most appropriate process for the settlement of a dispute if:

  • a person has a problem with another person and doesn’t want it to escalate so much that it has to go to court; or
  • there is a need to continue relating to the other person (for example, as neighbour, ex-spouse or family member) and wants the relationship to improve (or at least not deteriorate); or
  • the person can't (or doesn't want to) pay the costs incurred by court proceedings; and
  • wants to sort out the problem as peacefully, effectively and cheaply as possible.

Legal Help

Legal assistance provides access to the law for many people who would otherwise be unable to afford a lawyer to press their claims in court or assist them in other ways with legal problems. This work can be done either by lawyers on a salary employed by a government-funded agency, or by private solicitors who are paid to represent clients for particular cases.

There are a number of agencies which provide legal assistance in one form or another — the Legal Aid Commission of Tasmania, community legal centres, Environmental Defenders’ office, the Tenants’ Union, the Women’s Legal Service, and the Aboriginal Legal Service. At first glance, the legal aid system seems very complicated. However, each of these agencies is aware of the services offered by the others and can readily refer people to the right place when contacted. The services provided by each of these agencies are described here.
 

Alternatives to Lawyers and Courts

Going to court (or litigation) to resolve a dispute is often costly and/or time consuming. With civl matters – such as property issues, family law, or issues around money, there are alternatives to lawyers and courts. Going to court will mean there is a winner and a loser.

The loser is required to pay the winner's costs. Usually it also means the involvement of lawyers and the feeling of loss of control as legal processes and concepts take over the dispute. It is these features of the traditional litigious model of resolving disputes that has lead to an increasing demand for less ‘adversarial’ (or party against party) ways of achieving that result.

This is known as ‘alternative dispute resolution’.

Alternative Dispute Resolution

This term is used to describe methods of dispute resolution that are alternative to going to court. Alternative dispute resolution includes arbitration, conciliation and mediation. Each of these processes differs in the amount of control exercised by the disputants over the outcome.

Mediation

This is a process in which the parties, together with a neutral third person or persons, identify and isolate disputed issues, develop alternatives for their solution, consider options and reach a mutual agreement that will meet the disputants' needs.

Arbitration

In this process a neutral third party, often chosen by the disputants, is selected or appointed to hear both sides of the argument. The arbitrator then makes a decision by which both parties have agreed to be bound.

Conciliation

This is a vague term. It describes a process which also includes a third party who helps the disputing parties to reach agreement. It emphasises an outcome of 'reconciliation'. Conciliation counselling can include mediation and negotiation.

Negotiation

This is a process which can be part of all of the above. It involves bargaining between the parties. Of these processes, mediation will be discussed in further detail because several mediation services have been established in Tasmania and can be used by the general public.

Mediation

Overview

Mediation involves discussing the problem with the other disputant in the presence of mediators. The mediators are neutral and objective. They will act as facilitators to help the parties find solutions themselves but, unlike a magistrate or judge, they don't make judgements about who is right or wrong, nor make decisions for the parties. They will help the people themselves follow the mediation process, a process that is becoming a powerful way of helping people work through conflict.

Many people think that they should be able to sort out their problems themselves (and many people can, especially after talking them over with a neutral third person), but sometimes:

  • emotions have become too intense, or would become so if the person tried to talk to the other person(s) alone;
  • the problem has got so out of hand that there doesn't seem to be any way to solve it;
  • the person doesn’t feel that their needs and point-of-view have been heard;
  • the person thinks they’ve done all they can and nothing seems to improve or resolve the situation.

In mediation the parties are helped to hear each other's side of the story, discuss and explore each person's needs, communicate more effectively, work out possible solutions to the problem and negotiate future actions. At the end of this process there is usually a written agreement drawn up. This is not legally binding, but it can be made so by a lawyer. It is, however, a morally binding document and a record of agreements which have been made.
 

Magistrates Court mediation

In the Magistrates Court, a mediation will bear upon later litigation, if the agreement reached in mediation is to define issues that are going to trial. There is a $300 fee for mediation in the civil division.

In the Minor Civil Claims division, mediation session is free. In order to settle a small claim without going to court, a ‘Settlement Agreement’ is a way of ending a mediation session without the added costs of litigation. A Settlement Agreement can be made into a ‘Consent Judgment’. If one side fails to comply with their side of the agreement a Consent Judgment is enforceable. Enforceable means that a bailiff can seize property from the non-complying party to auction in order to recoup the promised payment.

See generally the ‘Advice to Parties’ document provided by the Magistrates Court. 

Advantages of Mediation

Mediation is non-adversarial. It does not pit one side against another in a situation in which there must be a winner and a loser. As well as ending up with winners and losers, adversarial situations often create long-lasting bitterness. An example is a court battle over the custody of children. In order to ‘win’ for their client, lawyers sometimes need to use all the ‘dirt’ they can about the other parent. In the end, nobody gains, and the children often lose. It's hard to maintain a cordial, working relationship after an adversarial battle.

Mediations are private and confidential. Using mediators to help solve a problem isn't a sign of weakness — it is recognition that sometimes a neutral third party is needed to help the resolution process along.

Mediation teaches skills which can be used in future dealings with a whole range of people. It is an empowering process, that is, it helps people find ways to solve their own problems, now and in the future.

Mediation is a low cost and quick way to resolve conflicts. Mediation services are either free or they charge according to their clients' incomes. Mediations can be arranged within a few weeks of first contacting a service.

Mediation is flexible. Mediations can be arranged to suit mediator and parties working hours and time commitments.
 

Who Offers Mediation in Tasmania?

Mediation, or 'dispute resolution' is available through the Federal Circuit Court for family law matters, through the Tasmanian Magistrates Court for civil law issues, and also through the Supreme Court for civil law issues. There are a number of private and government organisations offering mediation in Tasmania.

The Legal Aid Commission provides a Referral List service that details Tasmanian mediators. 

How to Use a Mediation Service

Although the details vary between services, these are the general steps which are followed.

  • One of the parties (Party A) contacts the appropriate mediation service either by phone or in person.
  • An ‘intake’ worker will discuss the nature of the dispute with Party A in order to judge its suitability for mediation and to find out what action, if any, has been taken already. (In some cases a direct approach to the neighbour or ex-partner would be the most productive action, but it may be helpful to discuss the best way to go about this with a neutral third person).
  • If appropriate, contact will be made with the second party (Party B), usually by letter, inviting them to participate in mediation.
  • If the response from Party B is positive, a time for mediation will be arranged.

If Party B will not discuss the problem, most services offer an opportunity for Party A to discuss it alone and work out the best course of action.
 

The Law Society of Tasmania

The Law Society of Tasmania provides an internet search function to find a suitable lawyer according to practice area and location in Tasmania.

It also lists the law firms that exist in Tasmania, currently totalling 144 in all.

The Law Society cannot provide legal advice. It is handy to the public in providing a service to find a lawyer.

The Legal Aid Commission of Tasmania

The Legal Aid Commission of Tasmania (LACT) was established in Tasmania in 1991 under the Legal Aid Commission Act 1990 (Tas). The governing body of the Commission consists of representatives of the Commonwealth and State Governments, the private legal profession, a person qualified in financial management, community representatives, and the Director of the Commission.

The LACT has its headquarters in Hobart and has three regional offices in Launceston, Burnie and Devonport. These offices provide a number of different services at ‘first contact’ level. These are legal clinics, phone advice and the duty solicitor scheme. 

Eligibility for Legal Aid

To determine eligibility for legal aid, the Legal Aid Commission of Tasmania provides guidelines. This lists the various tests under which you can apply for legal aid, including the Forum Test, the Means Test, and Merits Test.

Solicitors representing low income clients can apply for legal aid for the client. You should ask your solicitor if they will work for legal aid funding.

Applying for Legal Aid

Applications can either be made through the Legal Aid centre, or through your lawyer. If you have a private lawyer, and not a legal aid lawyer you should ask whether they will apply for legal aid on your behalf.

Clinic Advice Service

The Hobart Office of the Legal Aid Commission of Tasmania runs a Clinic Advice Service, Monday to Friday from 10.30 am to 2.30 pm. Generally, if a person needs legal advice on a family or criminal matter they may attend clinic, or if they wish to find out if they are eligible for legal aid.

The Launceston Office provides a similar clinic service between 12 noon and 1.00 pm on Mondays, Wednesdays and Fridays of each week.

The Burnie Office’s clinic service operates between 12:30 pm and 1.30 pm on Tuesdays and Thursdays.

The Devonport Office’s clinics operate between 1:00 pm and 2:00 pm on Tuesdays and Thursdays.

This service is available to holders of current Health Care or Pension Cards.

If a person has a civil issue they should contact the telephone advice service.

Telephone Advice Service

Everyone can access free legal advice on the telephone advice service. The Hobart Office provides a dedicated phone advice service between 9 am and 5.00 pm each day on 1300 366 611 for the cost of a local call. 

Civil Cases: Civil Disbursement Fund

Generally, civil litigation will not attract legal aid, however there are exceptions with serious personal injury claims, workers compensation claims and professional negligence claims. This does not mean that other types of civil cases will not be considered. Under the Civil Disbursement Fund, Tasmanians who cannot afford to have their case heard before a Court can apply for funds to help pay up front disbursements, such as filing costs, and reports. If the case is won, the applicant must repay the money with a premium. Applications can be made through a lawyer, so speak to your lawyer about this. 

Duty Solicitor Scheme

The LACT operates a Duty Solicitor Scheme at the Magistrates Court at Hobart, Launceston, Burnie, Devonport, Smithton and Queenstown. There is an office at the Hobart Magistrates Court and the Duty Solicitor is available to undertake bail applications and other immediate assistance. There is also a duty solicitor at the Family Court/Federal Circuit Court to assist people who are involved in family law matters. Work undertaken by the Duty Solicitor is available if you have been arrested and wish to apply for bail, or if you are eligible for a grant of legal aid. 

Community Legal Services

Overview

Community legal centres (CLCs) provide free advice to help people sort out their legal problems, and are often a useful first contact point for people with a legal difficulty. CLCs not only give legal advice, but also work to change laws when they are unfair or unjust, and undertake community education to help people in the community understand their legal rights and responsibilities.

There are six CLCs in Tasmania. Of these, three provide a generalist service and are regionally located in Hobart, Launceston and Devonport, whilst the other three are smaller specialist services located in Hobart but with statewide coverage. They are a part of a network of over 160 CLCs, which operate throughout Australia.

The Tasmanian CLCs are funded solely by the Commonwealth Government, although the Tasmanian Government may provide some non-recurrent project funding from time to time. CLCs are ‘non-government organisations’, managed on a voluntary basis by locally-based committees annually elected from the agencies’ membership. They operate independently of the government sector.

General Assistance & Casework

CLCs offer free advice services, with some doing so in evenings as well as daytime. Some of the centres do not require appointments for their sessions, but it is always advisable to telephone first.

CLCs have developed a mode of operation which is quite distinct from Legal Aid Commissions on the one hand and the private legal profession on the other. CLCs have a wider conception of what is involved in legal assistance, and are conscious, in delivering their services, of the socio-economic dimensions of many legal problems, as well as the fact that it may often be preferable to pursue non-legal remedies to such problems. This normally means that both the non-legal and legal aspects of the client’s problem can be dealt with.

Clients are encouraged to work through a problem so they can better understand its wider circumstances, and reach a solution themselves if possible. For many CLC services there is no means test applied, and there is generally no contribution required.

Where necessary, a client will be referred to the Legal Aid Commission Tasmania (if eligible) or a private lawyer. In some cases, follow-up work is done by lawyers employed by the CLCs.

Community Legal Education

Although advice work is the basis of their operations, CLCs also direct a great deal of their resources to community legal education. This may take a variety of forms: brochures and other printed material (like this Handbook), videos, provision of speakers, dissemination of information via the internet or through websites, etc. CLCs should be contacted direct if a group would like a speaker to talk on a specific area of the law, or on the legal system generally.

All CLCs produce and/or carry a wide range of printed material on different areas of the law, including a series of brochures in the ‘Legal Information and Referral’ series, jointly produced by Tasmanian CLCs, the LACT and the Law Society.

The Hobart Community Legal Service produces this Handbook and other educational materials, including videos dealing with aspects of self-representation, and a website which provides up-to-date information on CLC services and contact points.

Law Reform & Advocacy

CLCs also have a philosophy that many of the problems faced by their clients are the result of unjust laws or unjust administration of the law, and that it is not enough to simply deal with these problems at the level of the individual.

CLCs have therefore taken up general issues of concern about the law in the community such as the lack of legal protection for consumers and residential tenants, anti-discrimination provisions, the rights of and protection for children and young people, and conditions in the state’s prisons.  The aim is to change the law or the way it is administered so that the problems generated by such injustices will be overcome.

The role of centres may take such forms as assisting community organisations in campaigns, participating in Parliamentary inquiries, writing submissions, canvassing specific amendments to legislation, lobbying Ministers, and so forth.  CLCs may also combine with other CLCs within a national network of action in pursuit of such legislative reforms.

Hobart Community Legal Service

This service conducts an evening advice service staffed by volunteer lawyers and community workers providing legal advice and referral sessions on Monday and Wednesday evenings between 6.00pm and 7.30pm.

The Service is open each weekday from 9.00am to 5.00pm, when its Child Support Solicitor provides assistance to parents who have the primary daily care and responsibility of children ('carer' parents), with child support or maintenance problems, and its Welfare Rights Advocate assists people in disputes with Centrelink over pension, benefit and allowance payments or eligibility.

The Service also provides advice and assistance on consumer credit and debt matters. It is active in the provision of community legal education and law reform campaigning and advocacy.

Hobart Community Legal Service also operates Sorrell and a Bridgewater Office. The Bridgewater Office provides a general legal advice and referral service to residents in the Bridgewater and Gagebrook areas. That Office is open weekdays from 9.30am to 1.30pm and at other times by appointment. The Office's solicitor makes regular visits to prison facilities, to provide general advice and assistance to prisoners.

Launceston Community Legal Centre

In addition to general legal advice and referral, this service also provides specialist legal services in Immigration, Welfare Rights, Disability Discrimination and Employment Law.  The last two services are state-wide. The Centre provides counselling and support services for Victims of Crime.

The service runs outreach services, giving general legal advice and assistance, in Scottsdale, Deloraine, Ravenswood, Rocherlea and Mowbray. It conducts workshops on legal issues as requested and join with others to conduct law reform campaigns.

North-West Community Legal Centre

This centre has a lawyer who gives advice about a range of legal matters, and provides a limited casework role. Consultations are by appointment, which may be made during office hours.

Centre staff are also available to arrange talks to groups on a number of legal issues.

Your Nearest CLC

CLCs operating in Tasmania offer a wide range of services, including free and confidential legal advice and referral.

The Hobart Community Legal Service, Launceston Community Legal Centre and North-West Community Legal Centre each offer a general legal service within their respective regions of the state.  The other three CLCs listed below offer statewide specialist legal services.

Environmental Defenders Office

The EDO is Tasmania's public interest community legal centre for the environment. The Office assists the public with free legal advice, help with environmental law research, environmental law reform, referral to other groups or agencies and community legal education. See Community and Environment.

Tenants Union of Tasmania

The Tenants Union operates on a part-time basis, and provides a free advice and advocacy service to people experiencing tenancy problems.

Telephone advice is available Monday — Friday, 9.30am—4pm (1 300 652 641).

Appointments are available Tuesday—Thursday, 9.30am—12.00pm.

See Tenancy.

Women's Legal Service

This service offers advice and referrals to women throughout Tasmania, initially via a Freecall number (1 800 68 24 68).

The Freecall advice line is staffed on Monday, Tuesday, Thursday and Friday, 10.00am—12.30pm and 1.30—3.30pm, and on Wednesdays, 6.00—8.00pm, or leave a message at other times or if engaged.

Face-to-face appointments are offered in Hobart and Launceston, and are made via the Freecall number.

Information and education sessions may be provided around the state to service providers and groups of women.

Consumer Advice Services

There are services available to consumers through the Department of Consumer Affairs and Fair Trading.

Often consumer issues tie in with other areas of the law, such as tenancy. Service Tasmania provides a list of websites, such as the Australian Competition and Consumer Commission (ACCC) website, where complaints can be made, or advice sought.

Disclaimer

This does not constitute legal advice and the Tasmanian Law Handbook should not be used as a substitute for legal advice. No responsibility is accepted for any loss, damage or injury, financial or otherwise, suffered by any person acting or relying on information contained in it or omitted from it.