Legal Aid Commission (Amendment) Act

Transcription

1 Section 1. Purpose. 2. Commencement. 3. Principal Act. Legal Aid Commission (Amendment) Act No. 10 of 1986 TABLE OF PROVISIONS PART 1 PRELIMINARY PART 2 AMENDMENTS TO LEGAL AID COMMISSION ACT Change of name of Commission. Constitution of Commission. 6. New section 4A inserted 4A. Alternate members Functions of Commission. Delegation of powers of Public Service Board. 9. Change of name of legal aid committees. 10. Members of committees. 11. New section 1 9A inserted 19A. Review committee panel. 12. Circumstances in which legal assistance may be provided Costs may be secured on property. New section 30 inserted 30. Selection of practitioner. 15. Provision of information to the Commission. 16. Change of name of review committees Payment of private practitioners. Appeal procedures. 19. Legal Aid Fund. 20. New section 42 substituted 42. Accounts and records. 21. New section 44 substituted 44. False statements. 22. Costs. 23. New sections 48A and 48B inserted 48A. Costs may be charged on land. 48B. Certificate of costs PART 3 TRANSITIONAL PROVISIONS Saving of Commission. Alternate members. Legal Aid Review Committees and Appeal Committees. Referral panels. 123

2 Victoria No. 10 of 1986 Legal Aid Commission (Amendment) Act 1986 [Assented to 8 April 1986] The Parliament of Victoria enacts as follows: PART 1 PRELIMINARY Purpose. 1. The purpose of this Act is to amend the Legal Aid Commission Act Commencement. 2. This Act comes into operation on a day to be proclaimed. Principal Act. 3. In this Act the Legal Aid Commission Act 1978 is called the Act NO ~.... > as amended by Principal Act. Nos and 125

3 Legal Aid Commission (Amendment) No. 10 of 1986 PART 2 AMENDMENTS TO LEGAL AID COMMISSION ACT 1978 Change of name of Commission. 4. The Principal Act is amended as follows: (a) In section 3 (1) for "Legal Aid Commission" substitute "Legal Aid Commission of Victoria"; (b) In the heading to Part II. for "LEGAL AID COMMISSION" substitute "LEGAL AID COMMISSION OF VICTORIA"; (c) In section 2 in the interpretation of "Commission" for "Legal Aid Commission" substitute "Legal Aid Commission of Victoria"; (d) Section 1 (3) is repealed. Constitution of Commission. 5. Section 4 of the Principal Act is amended as follows: (a) In sub-section (1) (i) for "nine" substitute "ten"; and (ii) in paragraph (b) for "three" substitute "two"; and (iii) in paragraph (f) for "for Social Welfare" substitute "administering Part III of the Community Welfare Services Act 1970"; and (iv) after paragraph (/) insert "(fa) one shall be appointed on the nomination of the Federation of Victorian Legal Centres; and (fb) one shall be an officer or employee of the Commission appointed on the nomination of the staff of the Commission; and"; (b) In sub-section (2) (i) for "eight" substitute "nine"; and (ii) for "and (/)" substitute "(/), (fa) and (jb)". (c) In sub-section (4) paragraph (a) and the word "and" at the end of that paragraph are repealed. (d) For sub-sections (5) and (6) substitute '(5) If, within two months after a request is made by the Attorney-General (a) a nominating body fails to nominate a person for appointment under sub-section (1), the Attorney- General may nominate for appointment as a member (i) under sub-section (1) (c) or (d), any practitioner; or (ii) under sub-section (1) (fa), any person; or 126

4 No. 10 of 1986 Legal Aid Commission (Amendment) 3 (iii) under sub-section (1) (Jb), any member of the staff of the Commission the Attorney-General thinks fit; or (b) the Victorian Council of Social Service fails to submit to the Minister administering Part III of the Community Welfare Services Act 1970 the required panel of names for an appointment under sub-section (1) (/), the Minister administering that Part may nominate for appointment as a member any person the Minister thinks fit. (6) The staff of the Commission may determine the person to be nominated under sub-section (1) (Jb) in any manner the staff think fit. (7) In sub-section (5) "nominating body" means the Law Institute of Victoria, the Victorian Bar Council, the Federation of Victorian Legal Centres or the staff of the Commission'.'. New section 4A inserted. 6. After section 4 of the Principal Act insert: Alternate members. "4A. (1) The Governor in Council may appoint as an alternate member for a member of the Commission (other than the Chairman and the members appointed under section 4 (1) (e) and (g)), a person who holds the same qualification (if any) and is nominated in the same manner as the member for whom that person is the alternate member. (2) The person for the time being holding the office of Deputy Director of the Commission is alternate member for the Director. (3) The Governor in Council may on the nomination of the Attorney-General of the Commonwealth appoint one or more persons each as the alternate member for the member of the Commission appointed under section 4(1) (e). (4) In the absence of a member of the Commission from a meeting of the Commission, the alternate member for that member (a) is entitled to attend that meeting; and (b) when so attending has all the powers, functions and duties of a member of the Commission. (5) In the absence of the member appointed under section 4 (1) (e) from a meeting of the Commission only one of the alternate members for that member is entitled to attend that meeting at any one time. (6) Subject to sub-section (7)> section 5 applies to an alternate member as if a reference in that section to a member were a reference to f an alternate member. 127

5 4 Legal Aid Commission (Amendment) No. 10 of 1986 (7) Section 5 (3) (b) and (c) apply to an alternate member only when the alternate member is required to act for a member of the Commission. (8) If a member of the Commission ceases to hold office the alternate member for that member also ceases to hold office despite anything to the contrary in section 5 or the terms of appointment of the alternate member. (9) An alternate member (other than the Deputy Director), while acting as a member, is entitled to be paid the remuneration and allowances prescribed. (10) An act or decision of the Commission is not invalid by reason only that the occasion for an alternate member attending a meeting of the Commission had not arisen or had ceased.". Functions of Commission. 7. In section 9 (2) (b) of the Principal Act omit "wholly or partly at the expense of the Commission". Delegation of powers of Public Service Board. 8. (1) After section 15 (2) of the Principal Act insert "(2A) The Public Service Board may delegate to the Commission any of its powers and functions under sub-section (2).". (2) In section 11 (1) (b) of the Principal Act for "other than" substitute "including any power or function exercised as a delegate under section 15 but excluding". Change of name of legal aid committees. 9. The Principal Act is amended as follows: (a) In section 2 for the definition of "Legal aid committee" substitute' "Legal aid review committee" means a legal aid review committee established under section 18'; (b) In sections 11(1) (b), 19(1), 19 (3), 20 (1), 20 (2), 21, 22 (1), 22 (4), 22 (10), 28, 31 (3), 33 (1), 34 (1), 34 (2), 35 (1), 35 (2), 35 (3), 36 (1), 37 (1), 40 (1), 40 (2), 43 (1), 43 (2) and 47 (1) for "legal aid committee" (wherever occurring) substitute "legal aid review committee"; (c) In sections 11 (1) (b), 18, 39 and 50 (c) for "legal aid committees" (wherever occurring) substitute "legal aid review committees"; (d) In the heading to Part IV., for "LEGAL AID COMMITTEES" substitute "LEGAL AID REVIEW COMMITTEES". 128

6 No. 10 of 1986 Legal Aid Commission (Amendment) Members of committees. 10. After section 19 (3) of the Principal Act insert "(4) The Commission may appoint a member of a legal aid review committee to be at the same time a member of any other legal aid review committee or committees. (5) The Commission may transfer a member of a legal aid review committee to any other legal aid review committee for part of or for the remainder of that member's term of appointment to the first committee. (6) Sub-section (5) applies despite anything to the contrary in sub-section (2) and the terms of appointment of the member concerned.". New section 19A inserted. 11. After section 19 of the Principal Act insert Review committee panel. "19A. (1) The Commission may establish a panel of reserve members of legal aid review committees consisting of the number of persons the Commission thinks necessary from time to time. (2) As nearly as practicable to two-fifths of the total number of reserve members appointed to the panel are not to be practitioners. (3) The reserve members appointed to the panel in accordance with sub-section (2) are to be appointed after consultation with the persons or bodies which are in the opinion of the Commission representative of the public in the localities or areas with which the legal aid review committees are or may be concerned. (4) The Commission may appoint an appropriate reserve member to act as a member of a legal aid review committee in the absence of a member of the legal aid review committee whether that absence is because that member is acting as a member of another legal aid review committee or otherwise. (5) A reserve member has, and may exercise, while acting as a member of a legal aid review committee, the powers and functions of the member for whom that reserve member is acting. (6) A reserve member, while acting as a member, is entitled to be paid the allowances from time to time prescribed. (7) An act or decision of a legal aid review committee is not invalid by reason only that the occasion for a reserve member acting as a member had not arisen or had ceased."

7 Legal Aid Commission (Amendment) No. 10 of 1986 Circumstances in which legal assistance may be provided. 12. Section 24 of the Principal Act is amended as follows: (a) Sub-paragraph (i) of sub-section (3) and the word "or" at the end of that sub-paragraph are repealed; and (b) Sub-section (7) is repealed. Costs may be secured on property. 13. (1) Section 27 of the Principal Act is amended as follows: (a) In sub-section (1) for "either or both" substitute "all or any"; (b) After sub-section (1)(6) insert "and (c) A condition that the cost or part of the cost to the Commission of providing assistance be secured (i) by a charge under section 48A over any land or a charge over any other property which is recovered or preserved for that person in the proceedings; or (ii) in any other manner the Commission thinks fit over any property in which the person has an interest or in which the person acquires an interest during the period of assistance."; (c) After sub-section (1) insert "(1A) The Commission must advise the applicant in writing before imposing any condition under sub-section (1) (c) on the provision of legal assistance."; (d) In sub-section (2) after "paid" (where secondly occurring) insert "or secured". (2) In sections 10 (1) (/) (iii) and 28 (c) of the Principal Act for "either or both" substitute "all or any". New section 30 inserted. 14. (1) For section 30 of the Principal Act substitute Selection of practitioner. '30. (1) If legal services are to be performed on behalf of an assisted person by a private practitioner, the assisted person is entitled to select a sole practitioner or firm of solicitors from the names on a referral panel. (2) If an assisted person does not wish to exercise the right to select a private practitioner under sub-section (1) the Commission must, on that person's behalf, select a sole practitioner or firm of solicitors from the names on a referral panel. 130

8 No. 10 of 1986 Legal Aid Commission (Amendment) (3) In selecting a sole practitioner or firm of solicitors under sub-section (2), the paramount consideration is the interests of the assisted person but, subject to that consideration, the Commission must allocate work equitably amongst the sole practitioners and firms of solicitors named on referral panels. (4) A sole practitioner or firm of solicitors may notify the Commission of the practitioner's or firm's willingness to act for persons receiving legal assistance. (5) The Commission must prepare and maintain panels of names of sole practitioners and firms of solicitors out of the names of the sole practitioners and firms which have given notice under sub-section (4). (6) If the name of a firm of solicitors is included on a referral panel the names of all the partners and employee solicitors for the time being of the firm are deemed to be included on the panel. (7) If the name of a sole practitioner is included on a referral panel the names of all employee solicitors for the time being of the sole practitioner are deemed to be included on the panel. (8) Subject to sub-section (10) the Commission may exclude or remove from a referral panel (a) the name of any sole practitioner; or (b) the name of any firm of solicitors; or (c) the name of any employee solicitor of a sole practitioner; or (d) the name of any member or employee solicitor of a firm of solicitors. (9) Without limiting the Commission's powers to remove or exclude a name from a referral panel but subject to sub-section (10), the Commission may (a) exclude or remove from a referral panel the name of a sole practitioner or firm of solicitors if one or more members of the firm or one or more employees of the sole practitioner or of the firm (as the case may be) is excluded or removed from the panel; and (b) remove from a referral panel the name of any sole practitioner or firm of solicitors which habitually takes an excessive time to defend persons charged with criminal offences; and. (c) remove from a referral panel the name of any sole practitioner or firm which has ceased to practise; and (d) amend a referral panel if there is any change in the name of a sole practitioner or firm. (10) Before making any exclusion or removal referred to in sub-section (8) or sub-section (9) (a) or (b) the Commission must 131

9 8 Legal Aid Commission (Amendment) No. 10 of 1986 (a) give written notice to the sole practitioner or firm or member or employee solicitor concerned setting out the reasons for the proposed exclusion or removal; and (b) afford the sole practitioner or any member of the firm or the member or employee solicitor concerned a reasonable opportunity to be heard and show cause why the exclusion or removal shoujd not be made. (11) A notice given to a firm of solicitors under sub-section (10) (a) may be given to any member of the firm of solicitors. (12) If a person wishes be heard under this section, the Commission must appoint a legal aid review committee to hear and determine the matter. (13) Subject to this Act and the regulations (if any), in hearing any matter under this section the legal aid review committee may regulate its own proceedings. (14) After hearing any matter under this section, the legal aid review committee must advise the Commission of its determination. (15) The Commission must give notice of a determination of the Commission or a legal aid review committee under this section to the sole practitioner, firm of solicitors, member or employee solicitor concerned. (16) The legal aid review committee must keep records of its determinations and proceedings under this section. (17) An action does not lie against any member of the Commission any officer or employee of the Commission or any member of a legal aid review committee on account of any proceedings taken or thing said or done in the course of or in relation to any proceedings or hearing under this section. (18) A sole practitioner, firm of solicitors, member of a firm of solicitors or employee solicitor aggrieved by any exclusion or removal may, within 28 days after the receipt of notice of the exclusion or removal, apply to the Supreme Court for an order setting aside the exclusion or removal and the Supreme Court may, as it thinks fit, grant the application subject to conditions or unconditionally or postpone the making of an order or dismiss the application. (19) In this section "Firm of solicitors" means a firm of practitioners engaged in practice as solicitors in partnership; "Referral panel" means a panel prepared under sub-section (5); "Sole practitioner" means a private practitioner practising on his or her own account.'. 132

10 No. 10 of 1986 Legal Aid Commission (Amendment) 9 (2) After section 20 (1) (b) of the Principal Act insert "(6a) to hear and determine any matter referred to it under section 30,". Provision of information to the Commission. 15. Section 31 of the Principal Act is amended as follows: (a) In sub-section (1) for "The relationship" substitute "Subject to sub-sections (3) and (4), the relationship"; (b) In sub-section (2) for "The like" substitute "Subject to sub-section (3), the like"; (c) In sub-section (3) for "may with the consent of the assisted person," substitute "must"; (d) After sub-section (3) insert "(4) Sub-section (3) has effect despite any privilege that may arise from the relationship between a solicitor acting in a professional capacity and the solicitor's own client." Change of name of review committees. 16. The Principal Act is amended as follows: (a) In section 2 (i) after the definition of "Legal aid" insert ' "Legal aid appeal committee" means a legal aid appeal committee established under section 38.'; and (ii) the definition of "Review Committee" is repealed; (b) In sections 31 (3), 36 (1), 36 (2), 36 (3), 36 (4), 37 (1), 38 (2), 38 (3), 38 (4), 38 (5), 38 (6), 39,43(1) and 43 (2) for "review committee" (wherever occurring) substitute "legal aid appeal committee"; (c) In sections 38 (1), and 50 (c) for "review committees" substitute "legal aid appeal committees". Payment of private practitioners. 17. Section 32 of the Principal Act is amended as follows: (a) At the end of sub-section (1) insert "Penalty: 50 penalty units or imprisonment for six months"; (b) In sub-section (2) (i) for "sub-section (3)" substitute "sub-sections (2A) and (3)"; and (ii) omit the expression commencing ", and the fees" and ending at the end of that sub-section. (c) After sub-section (2) insert "(2A) The Commission may offer to a private practitioner under this section lump sum fees fixed by the Commission for the performance of particular services on 133

11 10 Legal A id Commission (Amendment) No. 10 of 1986 behalf of assisted persons being equivalent to eighty per centum of the fees ordinarily payable in respect of.simjlar services provided to a person who is not an assisted person. (2B) In determining any lump sum fees to be paid to private practitioners for the performance of legal services on behalf of assisted persons, the Commission must consult with the Law Institute of Victoria and the Bar Council as appropriate and must take into account the views of those bodies.". Appeal procedures. 18. The Principal Act is amended as follows: (a) In section 34 (1) after "may" insert "within the prescribed time (if any)"; (b) In section 35 (1) after "Commission" (where thirdly occurring) insert "within the prescribed time (if any)"; (c) After section 35 (2) insert "(2A) A legal aid review committee (a) must review only the actual decision referred to it for review; and (b) in reviewing a decision must comply with and give effect to this Act and the determinations of the Commission;"; (d) In section 36 (1), after "Commission" insert "within the prescribed time (if any)"; (e) After section 36 (2) insert "(2A) A legal aid appeal committee (a) must review only the actual decision referred to it for review; and (b) in reviewing a decision must comply with and give effect to this Act and the determinations of the Commission'."; (/) After section 36 (5) (d) insert "or (e) a decision of the Commission under section 48."; (g) After section 50 (b) insert "(to) prescribing times within which applications for the reconsideration or review of a decision under this Act must be made.". 134

12 No. 10 of 1986 Legal Aid Commission (Amendment) Legal Aid Fund. 19. Section 41 of the Principal Act is amended as follows: (a) After sub-section (4) insert "(5) The Treasurer may advance from the Public Account any moneys required during the course of a financial year to meet payments out of the Fund pending the payment into the Fund of the moneys referred to in sub-section (2) (b). (6) All moneys advanced to the Fund under sub-section (5) must be repaid to the Public Account in the same financial year in which the moneys were advanced."; (b) For sub-section (3) (b) substitute "(&) the remuneration and allowances of the chairman, the acting chairman and other members and alternate members of the Commission, the members and reserve members of legal aid review committees and the members of legal aid appeal committees;". New section 42 substituted. 20. (1) For section 42 of the Principal Act substitute Accounts and records. "42. (1) The Commission must ensure that there are kept proper accounts and records of the transactions and affairs of the Commission and such other records as will sufficiently explain the financial operations and financial position of the Commission. (2) The Commission must do all things necessary to (a) ensure that all moneys payable to the Commission are properly collected; and (b) ensure that all moneys expended by the Commission are correctly expended and properly authorized; and (c) ensure that adequate control is maintained over assets owned by or in the custody of the Commission; and (d) ensure that all liabilities incurred by the Commission are properly authorized; and (e) ensure efficiency and economy of operations and the avoidance of waste and extravagance; and (j) develop and maintain an adequate budgeting and accounting system; and (g) develop and maintain an adequate internal audit system. (3) The Commission must at the end of each financial year prepare financial statements which must.. (a) contain the information determined by the Treasurer; and 135

13 Legal Aid Commission (Amendment) No. 10 of 1986 (b) be prepared in the manner and form approved by the Treasurer; and (c) present fairly the results of the financial transactions of the Commission during the financial year to which they relate and the financial position of the Commission as at the end of that year; and (d) be signed by the principal accounting officer (by whatever name called) of the Commission and by the chairman and another member who must (i) certify that in their opinion the financial statements present fairly the results of the financial transactions of the Commission during the financial year to which they relate and that they sufficiently explain the financial position of the Commission as at the end of that year; and (ii) state whether at the date of signing the financial statements they were aware of any circumstances that would render any particulars included in the statements misleading or inaccurate and if so particulars of the circumstances. (4) The financial statements must be audited by the Auditor- General. (5) The Auditor-General must also at the end of each financial year audit the accounts for that financial year of any superannuation fund established for the benefit of the staff of the Commission. (6) The Auditor-General has in respect of the accounts and records of the Commission and of any superannuation fund referred to in sub-section (5) all the powers conferred on the Auditor-General by any law now or hereafter in force relating to the audit of the public accounts. (7) The Commission must pay each year to the Consolidated Fund an amount to be determined by the Auditor-General to defray the costs and expenses of the audits under sub-sections (4) and (5). (8) The Commission may engage a registered company auditor to carry out any intermediate inspection and audits the Commission considers necessary. (9) The financial year of the Commission is the year ending on 30 June.". (2) In section 12 (1) of the Principal Act (a) after "year" (where thirdly occurring) insert "together with the audited financial statements prepared under section 42 in respect of that year"; and (b) after "report" (where secondly occurring) insert "and the audited financial statements". 136

14 No. 10 of 1986 LegulAid Commission (Amendment) 13 New section 44 substituted. 21. For section 44 of the Principal Act substitute False statements. "44. (1) A person who in or in connexion with an application for legal assistance or the provision of legal assistance under this Act (a) knowingly makes a false statement; or (b) supplies information that person knows to be false; or (c) fails to disclose information which that person knows to be relevant to the application or to the provision of legal assistance is guilty of an offence. Penalty: 25 penalty units or imprisonment for six months. (2) Despite anything to the contrary in any Act, proceedings for any offence against this section may be brought within the period of three years after the commission of the alleged offence or, with the consent of the Director of Public Prosecutions, at any later time.". Costs. 22. In section 48 (1) (a) of the Principal Act, for "(other than a cross-proceeding)" substitute "(including a cross-proceeding)". New sections 48A and 48B inserted. 23. After section 48 of the Principal Act insert Costs may be charged on land. "48A. (1) Any amount required to be paid to the Commission by an assisted person which is subject to a condition under section 27 (1) (c) (i) is, on and from the lodging of the relevant notice under sub-section (2) until paid or recovered, a charge for the benefit of the Legal Aid Fund on any land which is recovered or preserved for the assisted person in the proceedings. (2) The Director may lodge with the Registrar-General or the Registrar of Titles (as the case may be) a notice signed by the Director (a) specifying the land to be charged; and (b) certifying that there are amounts payable under this Act which are to be charged on the land. (3) The Registrar-General or Registrar of Titles (as the case may be) must register a notice lodged under sub-section (2). (4) The Director must notify the assisted person in writing (a) that a notice has been lodged under sub-section (2); and 137

15 Legal Aid Commission (Amendment) No. 10 of 1986 (b) that the land is charged under this Act with the amount stated in the notice. (5) When (a) the amount charged is paid or recovered; or (b) payment of the amount charged is waived by the Commission; or (c) the amount charged is otherwise secured the Director must request the Registrar-General or Registrar of Titles (as the case may be) to cancel the registration of the charge. (6) The Registrar-General or the Registrar of Titles (as the case may be) must comply with a request under sub-section (5). (7) If any land is charged under this section the Registrar of Titles must not register a transfer or mortgage of that land without the consent of the Director. (8) Stamp duty is not payable on any notice lodged under this section." Certificate of costs. "48B. In any proceedings a certificate signed by the Director stating the amount owed to the Commission at the date of the certificate by any assisted person is evidence of the amount owed by that person at that date.". Saving of Commission. PART 3 TRANSITIONAL PROVISIONS 24. (1) The Legal Aid Commission of Victoria is deemed to be the same body as the Legal Aid Commission established under the Principal Act. (2) No act matter or thing is to be in any way abated or affected by reason of the change in the name of the Commission or of the alteration to the constitution of the Commission by this Act. (3) Unless the context otherwise requires any reference in any Act, law or in any other document to the Legal Aid Commission is deemed to be a reference to the Legal Aid Commission of Victoria. (4) The person who held office as a member of the Commission by virtue of sections 4 (1) (b) and 4 (4) (a) of the Principal Act immediately before the commencement of this Act (a) on and from that commencement continues to hold office as a member of the Commission for the remainder of that person's term of appointment; and 138

16 No. 10 of 1986 Legal Aid Commission (Amendment) 15 (b) is deemed for that purpose to have been appointed under section 4(1) (fa) on the nomination of the Federation of Victorian Legal Centres. Alternate members. 25. The persons holding office immediately before the commencement of this Act as deputy members for the member of the Commission appointed under section 4 (1) (e) on and from that commencement continue to hold office as alternate members for that member under section 4A for the remainder of their respective terms of appointment under the Principal Act. Legal Aid Review Committees and Appeal Committees. 26. (1) Legal aid review committees are deemed to be the same bodies as legal aid committees established under section 18 of the Principal Act despite the change in their name by this Act and no act matter or thing is to be in any way abated or affected because of that change of name. (2) Legal aid appeal committees are deemed to be the same bodies as review committees established under section 38 of the Principal Act despite the change in their name by this Act and no act matter or thing is to be in any way abated or affected because of that change of name. Referral panels. 27. The referral panels prepared by the Commission under section 30 of the Principal Act before the commencement of this Act are deemed to have been prepared under section 30 as substituted by this Act. NOTES 1. Minister's second reading speech Legislative Council: 28 November 1985 Legislative Assembly: 18 March The long title for the Bill for this Act was "A Bill to amend the Legal Aid Commission Act 1978 and for other purposes.". 139