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Help Before Court pre-court services 1: Determining the level of assistance

Information about the best practice approach for determining the level of assistance to clients

Pre-court services: determining the level of assistance

Advice only, or advice and advocacy?

Best practice tip: Before the appointment, make a preliminary assessment of whether you will offer advice only or advice and advocacy.

Apply the Help Before Court eligibility guidelines to determine the level of service you will provide. Clients are advised during intake that you will be making this determination.

Check before calling the client:
  • is the client a priority client based on information provided by the intake team
  • are the charge(s) straightforward or significant?
  • are there any other upcoming matters for the client listed on the Magistrates' Court Electronic Filing System ('EFAS')? See also Handling multiple matters.
Check with the client:
  • income: has it changed since what was advised at intake?
  • is the client a priority client, and are there any relevant capability factors?
How to determine the level of service (in summary):

All Help Before Court clients must meet the income test and have straightforward charges or significant charges (ie, not 'information only' charges where the likely penalty will be a low-level fine).

Advice:

  • for clients with straightforward charges who are NOT priority clients

Advice and advocacy:

  • for all priority clients
  • for clients with significant charges
  • for clients who are eligible for Diversion

Exercise discretion around the level of service you provide (advice or in-court advocacy) based on the client’s capability.

Priority clients and capability factors

Priority clients are people:

  • who identify as Aboriginal and/or Torres Strait Islander
  • with a cognitive impairment (such as an intellectual disability, an acquired brain injury or other serious cognitive condition)
  • with experience of a mental health issue that significantly affects their ability to engage in the court process
  • who are experiencing homelessness
  • who cannot effectively communicate in English
  • who have experienced family violence (including non-partner violence) or recent trauma including being a victim of violent crime, or
  • non-citizens who appear to hold a temporary (including bridging) visa, or may not hold any visa (unlawful non-citizens).

Capability factors include:

  • the person’s previous experience in the Magistrates’ Court (including prior criminal history) and their understanding of the summary crime legal process
  • the number of charges the person currently faces
  • the person’s experience of cultural or community practices, traditions or ideas that create a power imbalance or mistrust of authorities
  • the person’s English language proficiency or literacy.

Eligibility guidelines

TABLE OF ELIGIBILITY GUIDELINES
Nature of chargesEligibility

Straightforward

Advice only for non-priority clients

Advice and advocacy for priority clients or non-priority client with low capability

Legal matters are narrow and the penalties are likely to be moderate fines/licence loss.

Property/deception: Shop theft under $500

Traffic/infringements:

  • 1st or 2nd drink/drug driving
  • 1st or 2nd drive while suspended/ disqualified
  • Dangerous driving
  • Breath test refusal
  • Infringements where person not elected to contest (enforcement warrant) but penalty is more than low-level fine

Public order/procedural:

  • Hinder police
  • CCO/bail variations by consent, outstanding warrants
  • Rehearings

Significant

Advice and advocacy for all clients.

In exceptional circumstances, clients of high capability may receive advice only.

Significant legal matters are more complex (including application of sentencing law). Sentencing submissions are likely to impact the outcome. Penalties are likely to be imprisonment, Community Corrections Order or substantial fines (>$1500). Consider priors and aggravating circumstances.

Against a person:

  • Any assault (including unlawful assault) or cause injury charge
  • Stalking
  • Threat to kill
  • Breach of FVIO/PSO

Property/deception:

  • Burglary
  • Criminal damage
  • Possess prohibited weapon
  • Social security prosecution
  • Theft over $500

Drugs: Drug charges other than use or possess a small quantity of cannabis

Traffic/infringements:

  • 3rd drink/drug driving
  • 3rd drive while suspended/disqualified
  • Infringements with s 165 Fines Reform Act submissions

Public order/procedural: Fail to appear with straightforward or significant charges

Income test

A person must satisfy the income test to receive advice or advice and advocacy services, unless they are in custody and making their first court appearance on that charge.

If the person has a Health Care Card or Pensioner Concession Card they are considered to meet the income test automatically. Otherwise, the income-test requires a simple declaration of income.

A person seeking assistance passes the income test if:

  • they receive a Centrelink benefit as their primary income source or have a current Health Care Card or Low Income Health Care Card, or
  • they are not supported by anyone else and their weekly after tax income is less than:
  • $850 if they have no dependent children, or
  • $1000 if they have a dependent partner or one dependent child, with an additional $50 for each additional dependent child, or
  • they are supported by a partner or another person and their combined income is less than $1000 after tax per week with an additional $50 for each additional dependent child. This can be waived if the accused person cannot reasonably rely on that person to fund their legal costs e.g. because of family violence.

The income test look up table (below) can be used to quickly work out if someone meets the income test.

The person is not required to produce any proof of income (pay slip or Centrelink Benefit Card). They will simply be asked to state their income which will be noted on the Duty Lawyer Record sheet. If they have only been working for a short period of time, the person can give their average income over the last three months.

INCOME TEST LOOK-UP TABLE
Number of dependentsSinglePartnered / FAP
No dependent childUp to $850Up to $1000
1 dependent childrenUp to $1000Up to $1050
2 dependent childrenUp to $1050Up to $1100
3 dependent childrenUp to $1100Up to $1150
4 dependent childrenUp to $1150Up to $1200
5 dependent childrenUp to $1200Up to $1250
6 dependent childrenUp to $1250Up to $1300
7 dependent childrenUp to $1300Up to $1350
8 dependent childrenUp to $1350Up to $1400
9 dependent childrenUp to $1400Up to $1450
10 dependent childrenUp to $1450Up to $1500

Updated