The Commonwealth merits test is a threshold test which must be satisfied in most Commonwealth law matters. The test has three parts which must be met:
- the reasonable prospects of success test
- the prudent self-funding litigant test
- the appropriateness of spending limited public legal aid funds test.
Additional criteria in parenting disputes
When a person seeking assistance in relation to parenting disputes is in custody, there are additional factors the lawyer is required to take into account in assessing merit. See Parenting disputes where the person is in custody.
When does the merits test apply?
The Commonwealth merits test does not apply in some matters. All relevant criteria that must be met are set out in individual guidelines.
The test must be satisfied at the start of the matter and throughout its duration. If at any point the test is no longer met, assistance will cease.
Who assesses merit?
The merit of an application for assistance is assessed by us in some circumstances, and by the lawyer making the application on behalf of a client in others.
Victoria Legal Aid (VLA) assessment
If the application cannot be assessed using the Simplified Grants Process (SGP), staff from the Grants and Quality Assurance Unit will assess the request and make the decision.
Lawyer assessment
If we process an application for a grant of assistance through our SGP, the applicant’s lawyer assesses the merits of the application and makes a recommendation to our Grants and Quality Assurance Unit. For assistance to be granted, the lawyer must genuinely consider that the person and their matter satisfy each relevant test within the Commonwealth merits test. If not, the lawyer must recommend against a grant of assistance. We will base our eventual decision in part on the lawyer’s recommendation.
Lawyers cannot assess ‘the appropriateness of spending limited public legal aid funds test’ within the Commonwealth merits test if the application is based on only ‘the likely benefit to the community’. If the person’s lawyer is considering such an application, only our Grants and Quality Assurance Unit may assess this question.
Lawyers must keep a file note of the issues and the facts on which their assessment is made.
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