For legal aid to be granted for representation to respond to an application to confiscate property under Proceeds of Crime Act 2002 (commonwealth matters) or Criminal Proceeds Confiscation Act 2002 (state Matters) the following tests must be satisfied:
- the court has made an order to restrain the respondents property, and
- for commonwealth matters, the client meets guideline 7 – proceeds of crime, and
- applicant meets the means test, (Legal Aid Queensland will disregard any property subject to the order), and
- the applicant meets the merits test.
Documentary requirements
Application received from client
Applicants seeking a grant of legal assistance should forward all of the following documents for assessment:
- A completed and signed Legal Aid Queensland application form.
- Proof of income and assets (refer to the means test).
- A copy of the order restraining or confiscating property.
Application received from preferred supplier or in-house practitioner
Practitioners seeking a grant of legal assistance should electronically submit an application for aid via the Grants Online system with:
- A copy of the order and an opinion in relation to the applicant’s prospects of success.
- Proof of income and assets (refer to the means test).
The practitioner must also ensure that the following documents are retained on file:
- A completed and signed Legal Aid Queensland application form.
Interpretation
Criminal Proceeds Confiscation Act 2002 (Qld)
For applications under Criminal Proceeds Confiscation Act 2002, aid is conditional upon the applicant providing a charge over property to Legal Aid Queensland to secure a refund of all costs and outlays in this matter and any related criminal proceedings.
Aid will not be approved until the charge is signed by the applicant and returned to Legal Aid Queensland. The practitioner is required to certify that they have explained to their client that an order for payment to Legal Aid Queensland can be made at any time under s38(f).
In state matters only, the practitioner is automatically entitled to an additional grant to make a chamber application for a s38(f) costs order in the Supreme Court.
Proceeds of Crime Act 2002 (Cwlth)
For applications under Proceeds of Crime Act 2002 the costs of providing this grant of aid to you will be reimbursed to Legal Aid Queensland by the Official Trustee. The practitioner is required to certify that they have explained s293 of the act to their client.
Merits test
For proceedings under the Proceeds of Crime Act 2002 (Commonwealth), guideline 7 – proceeds of crime subsection 3 states that Legal Aid Queensland will disregard the appropriateness of spending limited public funds test.
For state law matters, the appropriateness of spending limited public funds test can still be applied.
When an applicant is seeking aid to oppose a forfeiture order with no restraining order, it is unlikely that the appropriateness of spending limited public funds test will be met.
Grant(s) of aid
The grant of aid for representation in proceedings under the Criminal Proceeds Confiscation Act 2002 is CAS.
The grant of aid to make a chamber application for a s38(f) costs order in the Supreme Court is LB.
The grant of aid for representation for proceedings under the Proceeds of Crime Act 2002 is CAC.
Extension(s) of aid
The grant of aid for additional days of proceedings under the Criminal Proceeds Confiscation Act 2002 is CASA.
The grant of aid for a solicitor to negotiate the settlement with the State or Commonwealth DPP is CAS1.
The grant of aid for additional days of proceedings under the Proceeds of Crime Act 2002 is CACA.
Review of decisions
A decision to refuse legal aid for this type of matter may be appealed to the external review officer (refer to review of decisions).