Legal Aid Commission Act 1979 (NSW)

Legal Aid Commission Act 1979 No 78 An Act to constitute the Legal Aid Commission of New South Wales and to define its functions; and to repeal the Poor Persons Legal Remedies Act 1918, the Legal Assistance Act 1943, the Legal Practitioners (Legal Aid) Act 1970 and certain other enactments. Part 1 Preliminary 1 Name of Act This Act may be cited as the Legal Aid Commission Act 1979. 2 Commencement (1) Except as provided by subsections (2) and (3), this Act shall commence on the date of assent to this Act. (2) Part 1 (sections 1, 2 and 5 excepted), Part 2, Part 4 and Part 5 (section 74 excepted) shall commence on such day as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette. (3) Section 5, Part 3 and section 74 shall commence on such day, being later than the day appointed and notified under subsection (2), as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette. 3 Notes Notes included in this Act are explanatory notes and do not form part of this Act. 4 Definitions (1) In this Act, except in so far as the context or subject-matter otherwise indicates or requires— approved panel policies and guidelines means the policies and guidelines approved, from time to time, by the Board under section 55. associate of a law practice has the same meaning as in the Legal Profession Uniform Law (NSW). Australian Legal Aid Office means that part of the Community Affairs Division of the Attorney-General's Department of the Commonwealth that is designated the Australian Legal Aid Office and that operates in New South Wales. Bar Association means the Council of the New South Wales Bar Association. Board means the Board of the Commission constituted under section 14. Chief Executive Officer means the Chief Executive Officer of the Commission. Commission means the Legal Aid Commission of New South Wales constituted under this Act. de facto partner of a person means the other party to a de facto relationship with the person. Note— "De facto relationship" is defined in section 21C of the Interpretation Act 1987. functions includes powers, authorities and duties. law practice has the same meaning as in the Legal Profession Uniform Law (NSW). Law Society means the Council of the Law Society of New South Wales. legal aid means legal aid under this Act and includes, in relation to a person who is a patient within the meaning of the Mental Health Act 2007, aid provided to the patient in respect of any matter, whether of a legal nature or not. Legal Aid Review Panel means a Legal Aid Review Panel established under section 54. legally assisted person means a person to whom legal aid is provided. panel means a Legal Aid Review Panel. Public Defender means a person who holds office as a Public Defender under the Public Defenders Act 1995. regulation means a regulation made under this Act. (2) A reference in this Act to the exercise of a function includes, where that function is a duty, the performance of that duty. 5 Repeals Each Act specified in Column 1 of Schedule 1 is, to the extent specified opposite that Act in Column 2 of Schedule 1, repealed. Part 2 Constitution and management of Legal Aid Commission Division 1 Constitution of the Commission 6 Constitution of the Commission (1) There is hereby constituted a corporation under the corporate name of the "Legal Aid Commission of New South Wales". (2) (Repealed) (3) The Commission is, for the purposes of any Act, a statutory body representing the Crown. 7–9 (Repealed) Division 2 Functions of the Commission 10 Functions of the Commission (1) The principal function of the Commission is to provide legal aid and other legal services in accordance with this Act. (2) The Commission in the exercise of its principal function may— (a) determine— (i) the persons or classes of persons in respect of whom legal aid may be granted, and (ii) the matters or classes of matters in respect of which legal aid may be granted, (b) determine priorities in the provision of legal aid as between— (i) different persons or different classes of persons, and (ii) different matters or different classes of matters, (c) (Repealed) (d) specify principles, including the imposition of means tests, to be applied in determining applications for legal aid, (e) specify the circumstances, if any, in which contributions shall be paid by legally assisted persons and the means of calculating any such contributions, (f) establish and conduct such local offices as it considers appropriate, (g) liaise and co-operate with persons engaged or interested in the provision, in New South Wales or elsewhere, of legal aid otherwise than under this Act, (g1) (Repealed) (h) give assistance and make grants, on such terms and conditions as it thinks fit, to persons or bodies within New South Wales for the provision by those persons or bodies of legal aid, (i) enter into agreements for the provision of legal aid to citizens of New South Wales in proceedings outside New South Wales with bodies which exercise, outside New South Wales, functions similar to those of the Commission, (j) bring to the attention of the public, by publishing advertisements or otherwise, the services provided by the Commission, (k) collect and publish information in respect of the functions of the Commission and in respect of other schemes of legal aid provided in New South Wales, (l) undertake research into all aspects of legal aid including the investigation and assessment of different methods of financing and providing legal aid, (m) initiate and carry out educational programmes designed to promote an understanding by the public, or by sections of the public, of their rights, powers, privileges and duties under the laws of New South Wales, and (n) make reports and recommendations to the Minister on such matters relating to the functions of the Commission as the Minister requests or as the Commission considers appropriate. (3) The Commission may exercise such other functions as are conferred or imposed on it by or under this or any other Act. (4) The Commission may do all such supplemental, incidental and consequential acts as may be necessary or expedient for the exercise of its functions. (5) Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the Commission to exercise its functions. Note— Section 59 of the Government Sector Employment Act 2013 provides that the persons so employed (or whose services the Commission makes use of) may be referred to as officers or employees, or members of staff, of the Commission. Section 47A of the Constitution Act 1902 precludes the Commission from employing staff. 11 Provision of legal aid (1) Legal aid may be provided by the Commission by such means as it may determine, including any one or more of the following means— (a) by arranging for the services of law practices to be made available, wholly or partly at the expense of the Commission, (b) by making available the services of the Chief Executive Officer or members of staff of the Commission, or (c) by arranging for the services of the Public Defenders to be made available. (2) Nothing in this Act prevents the Commission from providing, to a patient within the meaning of the Mental Health Act 2007, aid in respect of any matter, whether of a legal nature or not, by arranging for the services of persons approved by the Commission, whether or not the services are provided by a law practice. (3) Except as provided by subsection (2), this Act applies to and in respect of the provision of legal aid by a person approved by the Commission under that subsection in the same manner as it applies to and in respect of the provision of legal aid by a law practice. 11A Provision of legal advice only To remove any doubt, it is declared that the giving of legal advice to a person constitutes the giving of legal aid if the person is given legal advice and no other form of legal aid. However, Part 3 does not apply to the giving of that advice. 12 Duties to be observed in the provision of legal aid In respect of the provision of legal aid, the Commission shall— (a) ensure that legal aid is provided in the most effective, efficient and economical manner, (b) have regard to the need for legal aid to be readily available and easily accessible to disadvantaged persons throughout New South Wales, (c) ascertain and keep under review community needs in relation to legal aid, (d) liaise with professional bodies representing law practices and, where appropriate, use the services of law practices in the provision of legal aid, (e) determine the allocation of legal aid services between the Chief Executive Officer or members of staff of the Commission and law practices and the principles on which law practices are to be offered or refused matters on assignment, (f) ensure, if work is assigned to a law practice, that the assignment is made in accordance with procedures determined from time to time by the Commission in accordance with Division 2 of Part 3, (g) ensure, by the assignment of appropriate work, the maintenance of the office of the Public Defenders, (h) ensure the co-ordination of legal aid services and the avoidance of any unnecessary duplication in the provision of legal aid services, (i) ensure that, except where otherwise expressly provided by this Act, nothing is done by the Commission, the Chief Executive Officer or members of staff of the Commission which may interfere with the relationship between a solicitor acting in the solicitor's professional capacity and the solicitor's client, and (j) have regard to the desirability of enabling members of staff of the Commission to use and develop their expertise by undertaking, as far as is reasonably practicable, a full range of professional legal work. (k) (Repealed) 13 Annual report (1) The Commission shall, as soon as practicable after 30th June in each year, prepare and forward to the Minister a report of its work and activities for the year ending on that date and shall include in the report a review of all other legal aid services available in New South Wales. (2) The Minister shall lay the report, or cause it to be laid, before each House of Parliament as soon as practicable after the receipt by the Minister of the report. Division 3 Management of Commission 14 Constitution of Board (1) There is to be a Board of the Commission. (2) The Board is to consist of— (a) the Chief Executive Officer, and (b) 9 part-time members, appointed by the Minister, of whom— (i) one is to be a person appointed as Chairperson of the Board (in and by the instrument of appointment as member or by a subsequent instrument executed by the Minister), and (ii) one is to be a person nominated by the Bar Association, and (iii) one is to be a person nominated by the Law Society, and (iv) one is to be a person nominated by Unions NSW, and (v) 3 are to be persons who, in the opinion of the Minister, possess skills or experience that would benefit the Board, and (vi) one is to be a person who, in the opinion of the Minister, represents consumer and community welfare interests, and (vii) one is to be a person who, in the opinion of the Minister, represents such bodies, whether incorporated or unincorporated, as provide community legal services. (3) If a nomination for the purposes of subsection (2) (b) (ii), (iii) or (iv) is not received within the time or in the manner specified by the Minister by notice in writing given to the body entitled to make such a nomination, the Minister may appoint any person to be a part-time member of the Board instead of the person required to be appointed on that nomination. (4) Before appointing a person referred to in subsection (2) (b) (vi) or (vii), the Minister must— (a) cause to be published such advertisements (inviting applications from persons to apply for appointment as part-time members of the Board) in such form and manner as the Minister directs, and (b) take into consideration any such applications received by the Minister. (5) Schedule 2 has effect with respect to the membership of the Board. (6) Schedule 3 has effect with respect to the procedure of the Board. 15 Function of Board The Board has the function of establishing the broad policies and strategic plans of the Commission. 16 Chief Executive Officer (1) There is to be a Chief Executive Officer of the Commission. (2) The Chief Executive Officer is to be appointed by the Minister. The person so appointed may be, but is not required to be, a barrister or solicitor. (3) Schedule 3A contains provisions relating to the Chief Executive Officer. 17 Functions of Chief Executive Officer (1) The Chief Executive Officer— (a) is responsible for the day-to-day management of the affairs of the Commission (including managing financial and human resources and the provision of legal aid and other legal services) subject to, and in accordance with, the broad policies and strategic plans established by the Board and any general directions the Board may issue in connection with those policies and plans, and (b) has and may exercise such other functions as are conferred or imposed on the Chief Executive Officer by or under this or any other Act or law. (2) Any act, matter or thing done in the name of, or on behalf of, the Commission by or with the authority of the Chief Executive Officer is taken to have been done by the Commission. 18–22 (Repealed) Division 4 Members of staff of the Commission 23 (Repealed) Division 5 Miscellaneous 23A Appointment of solicitor to be solicitor practising on own account (1) If the Chief Executive Officer does not hold a current Australian practising certificate, the Chief Executive Officer is to appoint one or more persons to exercise the functions that would be exercisable by the Chief Executive Officer under sections 24, 28 and 64A if he or she held a current Australian practising certificate. (2) A person so appointed must be a member of staff of the Commission who is a solicitor of appropriate seniority and experience and who holds a current Australian practising certificate. 24 Performance of functions of solicitor (1) The Chief Executive Officer or a member of staff of the Commission shall not perform any functions of a solicitor under this Act unless the Chief Executive Officer or member of staff holds a current Australian practising certificate. (2) In practising as, or performing the functions of, a solicitor under this Act— (a) the Chief Executive Officer has all the functions of a solicitor practising on the solicitor's own account, (b) a member of staff of the Commission has all the functions of a solicitor employed by a person practising as a solicitor on the person's own account, and (c) the Chief Executive Officer and each member of staff of the Commission— (i) shall observe the same rules and standards of professional conduct and ethics as those that an Australian legal practitioner is, by law or the custom of the legal profession, required to observe in the practice of that profession, and (ii) are subject to the same professional duties as those to which an Australian legal practitioner is subject by law or the custom of the legal profession in the practice of that profession. (2A) If the Chief Executive Officer does not hold a current Australian practising certificate, a reference in subsection (2) to the Chief Executive Officer is to be read as a reference to the relevant member of staff appointed for the time being under section 23A. (3) Nothing in this section affects the operation of section 25. 25 Solicitor-client relationship (1) The relationship arising by virtue of this Act between a solicitor, whether the solicitor is the Chief Executive Officer or a member of staff of the Commission or from a law practice to whom work is assigned under this Act, and an applicant for legal aid or a person to whom legal aid is granted shall be the relationship as between a solicitor acting in the solicitor's professional capacity and in the course of the solicitor's professional employment and the solicitor's own client. (1A) The relationship that arises as referred to in subsection (1) between a solicitor and a person who is an applicant for legal aid or who is a person to whom legal aid is granted arises only in the context of functions performed by the solicitor in the course of acting for the person as solicitor. That relationship does not arise therefore in the course of the exercise of functions under this Act in arranging for a law practice to act on behalf of the person. (2) The like privileges as those which arise from the relationship of a solicitor acting in the solicitor's professional capacity and in the course of the solicitor's professional employment and the solicitor's own client shall arise between the Commission or a committee or panel established under this Act and an applicant for legal aid or a person to whom legal aid is granted. (3) Without affecting the generality of subsection (1) or (2), the Commission, a committee or panel established under this Act, the Chief Executive Officer or a member of staff of the Commission is not required to divulge to any person or court any information or document (including an application for legal aid) relating to the administration of legal aid. (4) Nothing in subsection (1), (2) or (3) applies in respect of— (a) the conduct of any matter necessary for the proper administration of this Act (including an agreement or arrangement referred to in section 72A), (b) proceedings for an offence connected with the administration of legal aid, (c) any disciplinary proceedings under the Legal Profession Uniform Law (NSW), (d) any proceedings by which the Commission is seeking to recover money from a person in respect of whom legal aid has been granted, (e) an investigation or inquiry under the Ombudsman Act 1974, (f) the exercise by the Auditor-General of his or her functions under this Act or any other law, (g) the carrying out by a person of any research approved by the Commission, being research carried out in a manner that ensures that the identity of an applicant for legal aid or a person to whom legal aid is granted is not disclosed to other persons, (h) the divulging of information to a person concerning an application for legal aid made by or on behalf of the person (including such matters as the basis for the refusal of any such application), (i) the divulging of information to a person to whom legal aid has been granted concerning the administration of the grant of legal aid, (j) the divulging of information for the purpose of facilitating the conduct of alternative dispute resolution under Part 3A, (k) the divulging of information obtained from a person, with the consent of that person, or (l) the divulging, with the consent of the Commission, to any court or tribunal of information or a document concerning any of the following matters— (i) whether or not an application for legal aid has been made by a particular person, (ii) whether such an application was granted or refused, (iii) the grounds on which such an application was granted or refused (including information as to the means of the applicant), (iv) whether a person has appealed against the refusal of such an application. (5) The Commission, a committee or panel established under this Act, the Chief Executive Officer or a member of staff of the Commission is not required to divulge to any person, court or tribunal the identity of a person from whom the Commission, the committee or panel, the Chief Executive Officer or the member of staff receives information concerning— (a) a breach or alleged breach of a condition on which legal aid has been granted or provided, or (b) a breach or alleged breach of a requirement of this Act or the regulations (for example, a failure to notify the Commission of a change in the means or circumstances of a legally assisted person as required under section 38A (1)), or (c) the commission or alleged commission of an offence in connection with the administration of legal aid. (6) For the purposes of this section— (a) an applicant for legal aid includes a person who requests legal advice but no other form of legal aid, and (b) a person to whom legal aid is granted includes a person to whom that advice is given, and (c) an application for legal aid includes a request for that advice. 26 Divulging of certain information prohibited (1) A person engaged in the administration of this Act must not divulge any information or document (including an application for legal aid) obtained in connection with the administration of legal aid. Maximum penalty—50 penalty units or imprisonment for 6 months. (2) This section does not prevent the divulging of information or a document if the information or document is divulged— (a) in connection with the administration of legal aid, or (b) as referred to in section 25 (4). (3) This section does not limit the operation of section 25. Consequently, a member of the Board, a member of a committee or panel established under this Act, the Chief Executive Officer or a member of staff of the Commission cannot be required to divulge any information or document merely because the divulging of the information or document is not prohibited by this section. (4) For the purposes of this section, an application for legal aid includes a request for legal advice but no other form of legal aid. 27 Immunity (1) An act or omission of— (a) the Commission, the Chief Executive Officer or a member of staff of the Commission, or (b) the Board or a member of the Board, or (c) a committee or panel established under this Act or a member of such a committee or panel, or (d) a person acting under the direction of a person or body referred to in paragraph (a), (b) or (c), does not subject the Commission, the Chief Executive Officer, a member of staff, a member of the Board, a member of the committee or panel or a person so acting to any action, liability, claim or demand if the act or omission was done, or omitted to be done, in good faith for the purpose of executing this Act. (2) No liability attaches to or is incurred by the Commission, the Chief Executive Officer, a member of staff of the Commission, a member of the Board, a member of a committee or panel established under this Act or a person acting under the direction of any of them because of anything done, or omitted to be done, by a law practice (including an associate of a law practice) to whom work is assigned under this Act. (3) In this section, a reference to an act or omission includes (but is not limited to) a reference to anything done or omitted to be done in respect of— (a) the engagement of a law practice for the provision of legal aid, or (b) the assignment of work to a law practice, or (c) an audit in respect of a law practice. 28 Solicitor on record (1) Where— (a) in any proceeding, a document is required or permitted to be signed by a solicitor for a party to a proceeding who is an applicant for legal aid or a legally assisted person, and (b) the Chief Executive Officer or a member of staff of the Commission is taking steps to conserve the interests of the applicant pending the determination of the application or is providing legal aid to the legally assisted person in relation to the proceeding, the signature of the Chief Executive Officer, or of a member of staff of the Commission who is a solicitor and who, pursuant to a written authority given generally or specially by the Chief Executive Officer, is authorised to sign documents on behalf of the Chief Executive Officer for the purposes of this section, shall be deemed to be the signature of the solicitor for that party. (2) If the Chief Executive Officer does not hold a current Australian practising certificate, a reference in subsection (1) to the Chief Executive Officer is to be read as a reference to the relevant member of staff appointed for the time being under section 23A. Part 3 Provision of legal aid Division 1 General 29 Definition (1) In this Part, application means an application for legal aid made to the Commission. (2) In this Part, a reference— (a) to an applicant for legal aid is a reference to a person on whose behalf legal aid is sought, (b) (Repealed) (c) to the ordinary professional cost of a legal service is a reference to the usual cost of the legal service if provided by a law practice, and (d) in relation to an application, to a party to proceedings, includes a reference to a person who, in the opinion of the Commission, may become a party to proceedings. 30 Provision of legal aid (1) Except to such extent, if any, as the Commission may otherwise determine in accordance with subsection (2) or (4), legal aid shall be provided by the Commission in accordance with this Part. (2) The Commission may, from time to time, determine that legal aid in respect of such matters or classes of matters as the Commission determines shall be provided by the Commission on such terms and conditions as the Commission determines, and that legal aid may be provided accordingly. (3) Without limiting the generality of subsection (2), the terms and conditions referred to in that subsection may include terms and conditions that the legal aid shall be provided without charge, without means tests or other tests and without the necessity for compliance with such formal or procedural requirements of this Part as the Commission may determine. (4) Where the Commission determines in accordance with subsection (2) to provide legal aid in the form of a grant of money for specified purposes, sections 34 (6)–(8), 41 and 47 do not apply to the provision of the legal aid if the Commission, in the terms and conditions on which that legal aid is provided, so determines. 31 Application for legal aid (1) A person may apply to the Commission for legal aid. (2) Nothing in subsection (1) prevents a person from making an application on behalf of another person. (3) An application is to be made in the manner and form approved by the Commission. (4) (Repealed) 32 False application A person shall not make an application knowing that it is false in any material particular. Maximum penalty—50 penalty units or imprisonment for 6 months. 33 Powers of Commission in respect of application (1) On receipt of an application, the Commission may— (a) make such inquiries as it thinks fit as to the means and circumstances of the applicant and of each person who is associated with the applicant for the purposes of any means test under section 35, (b) require the applicant to furnish such information, in addition to the information furnished in the application, and produce such books or documents as the Commission specifies, (c) require the applicant to attend personally, (d) refer the application or any matter relating to or arising from the application to a person (including a barrister or solicitor) nominated by the Commission for investigation, report or advice, and (e) take such steps as may be necessary to conserve the interests of the applicant pending the determination of the application. (f) (Repealed) (2) The Commission may defray expenses incidental to any of the matters referred to in subsection (1) from money available to the Commission or require the applicant to meet those expenses. A requirement that the applicant meet those expenses may be imposed at any time after receipt of the application but not later than the making of a determination in respect of the person under section 46. (3) An amount required to be paid under subsection (2) must be paid in such manner, and within such time, as the Commission directs. (4) The Commission may recover an amount payable to it under subsection (2), and any interest payable in respect of the amount, as a debt in a court of competent jurisdiction. 34 Determination of application (1) The Commission shall determine an application by granting the application unconditionally or subject to conditions or by refusing the application. The Commission may at any time redetermine an application that has been refused. (2) The Commission shall give notice to the applicant of the determination or redetermination of the application as soon as practicable (and in any case not later than 14 days) after the determination or redetermination is made. (3) A notice given under subsection (2), except where— (a) the application relates to proceedings in the Local Court with respect to a criminal offence, or to such other proceedings as the Commission may from time to time determine, and is granted unconditionally, or (b) the application relates to proceedings in the Local Court with respect to a criminal offence, or to such other proceedings as the Commission may from time to time determine, and is refused wholly or partly on the ground that the applicant fails to satisfy such means test as is determined by the Commission for the purposes of section 35 (1), shall be in writing. (4) If there is a right of appeal to a Legal Aid Review Panel against a determination or redetermination of an application— (a) the notice required under subsection (2) must inform the applicant of that right, and (b) the reasons for the determination or redetermination are to be recorded. (4A) Subsection (4) does not apply in respect of any condition of the kind referred to in section 56 (1AA) that is imposed on the grant. (5) (Repealed) (6) As soon as practicable after the commencement of proceedings (not being proceedings with respect to a criminal offence), a solicitor acting on behalf of a legally assisted person shall give notice to the other parties, if any, to the proceedings of the fact that the solicitor is acting for a legally assisted person. (7) Where the solicitor referred to in subsection (6) is from a law practice, the solicitor shall advise the Commission in writing, within 7 days of giving notice under that subsection, that notice has been given. (7A) If an application for legal aid is made after the commencement of the proceedings to which the application relates, the Commission may give notice to the other parties, if any, to the proceedings of the receipt of the application. (8) A notice given under subsection (6) or (7A)— (a) shall be in writing, (b) shall contain a reference to the effect of section 47, and (c) may be given in any manner authorised for the service of process in the proceedings to which the notice relates. 34A Date on which legal aid is granted (1) The Commission may, when granting an application for legal aid, determine that the application shall be d