Commonwealth Legal Aid Act 1977 (Cth)
COMMONWEALTH LEGAL AID ACT 1977
- Updated as at 7 November 1996 (#DATE 07:11:1996)
- Updated as at 7 November 1996 (#DATE 07:11:1996)
*1* The Commonwealth Legal Aid Act 1977 as shown in this reprint comprises Act No. 80, 1977 amended as indicated in the Tables below.
Act Date Date of Application
Number and of assent commencement saving or
year transitional
provisions
Commonwealth Legal Aid Commission Act 1977
80, 1977 16 June 1977 1 July 1977 (see
Gazette 1977,
No. S115)
Public Service Amendment Act 1978
170, 1978 28 Nov 1978 Ss. 1, 2, 5, 7-11, S. 46 (4)
14, 15, 18, 25 and
38: Royal Assent
Remainder: 15 Mar 1981
(see Gazette 1981,
No. S43)
Commonwealth Legal Aid Commission Amendment Act 1981
62, 1981 12 June 1981 1 July 1978 (see -
Gazette 1981,
No. G26, p. 2)
Statute Law (Miscellaneous Provisions) Act (No. 2) 1983
91, 1983 22 Nov 1983 S. 3: 20 Dec 1983 (a) S. 6 (1)
Commonwealth Legal Aid Amendment Act 1988
2, 1988 1 Mar 1988 1 Mar 1988 -
Commonwealth Legal Aid Amendment Act 1990
43, 1990 16 June 1990 Ss. 1 and 2: -
Royal Assent
Remainder: 8 May 1990
Law and Justice Legislation Amendment Act 1991
136, 1991 12 Sept 1991 Schedule: 10 Oct 1991 -
(b)
Superannuation Legislation (Consequential Amendments and Transitional
Provisions) Act 1992
94, 1992 30 June 1992 S. 3: 1 July 1990 -
Remainder:
Royal Assent
Family Law Reform (Consequential Amendments) Act 1995
140, 1995 12 Dec 1995 Schedule 1 (Part 5): -
16 Dec 1995 (see s. 2
(3) and (c))
Statute Law Revision Act 1996
43, 1996 25 Oct 1996 Schedule 4 (item 52) -
and Schedule 5 (items
39, 40): Royal Assent (d)
(a) The Commonwealth Legal Aid Act 1977 was amended by section 3 only of the Statute Law (Miscellaneous Provisions) Act (No. 2) 1983, subsection 2 (1) of which provides as follows:
"(1) Subject to this section, this Act shall come into operation on the twenty-eighth day after the day on which it receives the Royal Assent."
(b) The Commonwealth Legal Aid Act 1977 was amended by the Schedule only of the Law and Justice Legislation Amendment Act 1991, subsection 2 (1) of which provides as follows:
"Subject to this section, this Act commences on the 28th day after the day on which it receives the Royal Assent."
(c) The Commonwealth Legal Aid Act 1977 was amended by the Family Law Reform (Consequential Amendments) Act 1995, subsection 2 (3) of which provides as follows:
"(3) The amendment made by Part 5 of Schedule 1 commences on the commencement of section 54 of the Family Law Reform Act 1995."
"(d) The Commonwealth Legal Aid Act 1977 was amended by Schedule 4 (item 52) and Schedule 5 (items 39, 40) only of the Statute Law Revision Act 1996, subsection 2 (1) of which provides as follows:
"(1) Subject to subsections (2) and (3), this Act commences on the day on which it receives the Royal Assent."
Table of Amendments
ad=added or inserted am=amended rep=repealed rs=repealed and substituted
Provision affected How affected
Title
am. No. 62, 1981; No. 2, 1988; No. 136, 1991
S. 1
am. No. 62, 1981
S. 3
am. No. 62, 1981; No. 2, 1988; No. 43,
1990; No. 136, 1991
Part II (ss. 4-7)
rep. No. 62, 1981
Part II (ss. 4, 5)
ad. No. 62, 1981
rep. No. 2, 1988
Part II (ss. 4-6)
ad. No. 2, 1988
rep. No. 136, 1991
S. 4
rs. No. 62, 1981
am. No. 91, 1983
rs. No. 2, 1988
rep. No. 136, 1991
S. 5
rs. No. 62, 1981; No. 2, 1988
rep. No. 136, 1991
S. 6
rep. No. 62, 1981
ad. No. 2, 1988
rep. No. 136, 1991
S. 7
rep. No. 62, 1981
Part III (ss. 8-19)
rep. No. 62, 1981
Part III (ss. 6-13)
ad. No. 62, 1981
rep. No. 2, 1988
Part III (ss. 7-9)
ad. No. 2, 1988
S. 6
rs. No. 62, 1981
rep. No. 2, 1988
S. 7
rs. No. 62, 1981; No. 2, 1988
S. 8
rs. No. 62, 1981; No. 2, 1988
am. No. 136, 1991
S. 9
rs. No. 62, 1981; No. 2, 1988
Ss. 10-13
rs. No. 62, 1981
rep. No. 2, 1988
Ss. 14-19
rep. No. 62, 1981
Heading to Part IIIA
rep. No. 136, 1991
Part IIIA (ss. 10-18)
ad. No. 2, 1988
S. 10
rs. No. 62, 1981; No. 2, 1988
rep. No. 136, 1991
S. 11
rs. No. 62, 1981; No. 2, 1988
am. No. 136, 1991; No. 43, 1996
Ss. 12, 13
rs. No. 62, 1981; No. 2, 1988
am. No. 136, 1991
S. 14
ad. No. 2, 1988
rep. No. 136, 1991
Ss. 15, 16
ad. No. 2, 1988
Ss. 17, 18
ad. No. 2, 1988
am. No. 136, 1991
S. 20
am. No. 170, 1978; No. 62, 1981; No. 43, 1990
S. 21
am. No. 94, 1992; No. 43, 1996
S. 22
am. No. 170, 1978; No. 43, 1990; No. 43, 1996
Ss. 23-30
rep. No. 170, 1978
S. 32
am. No. 140, 1995
S. 33
am. No. 62, 1981
rep. No. 2, 1988
COMMONWEALTH LEGAL AID ACT 1977
- TABLE OF PROVISIONSTABLE
TABLE OF PROVISIONS
Section
PART I - PRELIMINARY
1. Short title
2. Commencement
3. Interpretation
PART III - NATIONAL LEGAL AID ADVISORY COMMITTEE
7. Establishment of Committee
8. Constitution of Committee
9. Functions of Committee
11. Remuneration and allowances
12. Resignation
13. Termination of appointment
15. Meetings of Committee
16. Acting Committee Chairperson
17. Disclosure of interests
18. Annual reports
PART IV - TRANSFER OF CERTAIN PERSONS EMPLOYED BY THE
COMMONWEALTH TO LEGAL AID COMMISSIONS OF THE STATES
AND TERRITORIES
20. Interpretation
21. Arrangements with States
22. Eligible persons and approved persons
PART V - MISCELLANEOUS
32. Limitation on provision of legal assistance under certain Acts
34. Regulations
COMMONWEALTH LEGAL AID ACT 1977
- LONG TITLESECT
An Act to provide for the establishment of a National Legal Aid
Advisory Committee, to provide for the transfer of certain
Commonwealth employees to legal aid commissions of States
and Territories, and for related purposes
COMMONWEALTH LEGAL AID ACT 1977
- PART I
PART I - PRELIMINARY
COMMONWEALTH LEGAL AID ACT 1977
- SECT 1
Short titleSECT
1. This Act may be cited as the Commonwealth Legal Aid Act 1977.*1* SEE NOTES TO FIRST ARTICLE OF THIS CHAPTER .
COMMONWEALTH LEGAL AID ACT 1977
- SECT 2
CommencementSECT
2. This Act shall come into operation on a date to be fixed by Proclamation.*1* SEE NOTES TO FIRST ARTICLE OF THIS CHAPTER .
COMMONWEALTH LEGAL AID ACT 1977
- SECT 3
InterpretationSECT
3. (1) In this Act, unless the contrary intention appears:
"appointed" includes re-appointed;
"Committee" means the National Legal Aid Advisory Committee;
"Committee Chairperson" means the Chairperson of the Committee;
"Committee member" includes the Committee Chairperson;
"Judge" means a Judge of a federal court or of the Supreme Court of a State or Territory;
"legal aid commission" means:
(a) in relation to a State - an authority established by or under a law of the State for purposes that include the provision of legal assistance in respect of Commonwealth matters; and
(b) in relation to a Territory - an authority established by or under a law of that Territory for the purpose of providing legal assistance;
"State" includes the Northern Territory;
"Territory" does not include the Northern Territory.
(2) A reference in this Act to the provision of legal assistance shall be read as a reference to the provision of legal services (including the giving of legal advice) without charge to the person to whom the legal services are provided or subject to the making of a payment by that person that is less than the full cost of the provision of those services.
(4) In this Act, a reference to the provision of legal assistance in respect of a Commonwealth matter shall be read as a reference to the provision of legal assistance:
(a) in or in connexion with a claim, right or proceeding involving a matter arising under a law of the Commonwealth;
(b) in a proceeding in a federal court or in a State court exercising federal jurisdiction; or
(c) in any other case where it is within the power of the Parliament to provide for the giving of legal assistance.
COMMONWEALTH LEGAL AID ACT 1977
- PART III
PART III - NATIONAL LEGAL AID ADVISORY COMMITTEE
COMMONWEALTH LEGAL AID ACT 1977
- SECT 7
Establishment of CommitteeSECT
7. The Minister may establish a National Legal Aid Advisory Committee.
COMMONWEALTH LEGAL AID ACT 1977
- SECT 8
Constitution of CommitteeSECT
8. (1) The Committee comprises 8 members who shall be appointed by the Minister to hold office on a part-time basis.
(2) The Minister shall appoint a Committee member to be the Committee Chairperson.
(3) The Minister shall not appoint a person to be a Committee member unless the Minister is satisfied that the person has knowledge of, or experience in, legal assistance matters, or in matters related to the Commonwealth's involvement in legal assistance matters.
(4) Subject to this Act, a Committee member holds office for such period, not exceeding 3 years, as is specified in the instrument of appointment, but is eligible for re-appointment.
(5) The performance of the functions, or the exercise of the powers, of the Committee is not affected merely because of a vacancy or vacancies in the membership of the Committee.
(6) The Committee Chairperson ceases to be the Committee Chairperson if he or she ceases to be a Committee member.
COMMONWEALTH LEGAL AID ACT 1977
- SECT 9
Functions of CommitteeSECT
9. The functions of the Committee are to advise and make recommendations to the Minister, either on its own motion or on a request made to it by the Minister, concerning:
(a) the extent of the need for legal assistance in Australia and the most effective, economical and desirable means of satisfying that need;
(b) the effectiveness and economy of methods used for providing legal assistance;
(c) legislative or other changes necessary to reduce the need for, or increase the effectiveness of, legal assistance;
(d) the level of Commonwealth funds to be provided for legal assistance;
(e) the effectiveness of the arrangements for the application of Commonwealth funds for legal assistance;
(f) the funding of community legal centres;
(g) community legal education; and
(h) any other matter relating to the provision of legal assistance.
COMMONWEALTH LEGAL AID ACT 1977
- SECT 11
Remuneration and allowancesSECT
11. (1) A Committee member shall be paid such remuneration as is determined by the Remuneration Tribunal, but, if no such determination is in operation, the Committee member shall be paid such remuneration as is prescribed.
(2) A Committee member shall be paid such allowances as are prescribed.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
COMMONWEALTH LEGAL AID ACT 1977
- SECT 12
ResignationSECT
12. A Committee member may resign by delivering to the Minister a signed notice of resignation.
COMMONWEALTH LEGAL AID ACT 1977
- SECT 13
Termination of appointmentSECT
13. (1) The Minister may terminate the appointment of a Committee member for misbehaviour or physical or mental incapacity.
(2) If a Committee member becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, the Minister shall terminate his or her appointment.
(3) If:
(c) the Committee Chairperson is absent, except with the leave of the Minister, from 3 consecutive meetings of the Committee; or
(d) a Committee member other than the Committee Chairperson is absent, except with the leave of the Committee Chairperson, from 3 consecutive meetings of the Committee;
the Minister shall terminate his or her appointment.
COMMONWEALTH LEGAL AID ACT 1977
- SECT 15
Meetings of CommitteeSECT
15. (1) The Committee shall meet as often as is necessary for the efficient performance of its functions but shall meet at least twice in the period of 12 months commencing on the day on which the Committee is established and at least twice in each successive period of 12 months.
(2) A meeting of the Committee shall be convened by the Committee Chairperson.
(3) The Committee Chairperson shall preside at all meetings of the Committee at which he or she is present.
(4) If the Committee Chairperson is absent from a meeting of the Committee, the Committee members present shall appoint one of their number to preside at that meeting.
(5) At a meeting of the Committee, a quorum is constituted by a majority of the Committee members for the time being holding office as Committee members.
(6) Questions arising at a meeting of the Committee shall be determined by a majority of the votes of the Committee members present and voting.
(7) The person presiding at a meeting of the Committee has a deliberative vote and, in the event of an equality of votes, also has a casting vote.
COMMONWEALTH LEGAL AID ACT 1977
- SECT 16
Acting Committee ChairpersonSECT
16. (1) The Minister may appoint a person (including a Committee member) to act as Committee Chairperson:
(a) during a vacancy in the office of Committee Chairperson (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when the Committee Chairperson is absent from duty or from Australia or is, for any other reason, unable to perform the duties of the office of Committee Chairperson;
but a person appointed to act during a vacancy shall not continue so to act for more than 12 months.
(2) The Minister may terminate an appointment at any time.
COMMONWEALTH LEGAL AID ACT 1977
- SECT 17
Disclosure of interestsSECT
17. (1) A Committee member who has a direct or indirect pecuniary interest in a matter being considered or about to be considered at a meeting of the Committee shall, as soon as possible after the relevant facts have come to his or her knowledge, disclose the nature of the interest at a meeting of the Committee.
(2) A disclosure shall be recorded in a record of the meeting of the Committee and the Committee member shall not, unless the Committee or the Minister otherwise determines:
(a) be present during any deliberation of the Committee with respect to that matter; or
(b) take part in any decision of the Committee with respect to that matter.
(3) For the purpose of making a determination in relation to a Committee member who has made a disclosure, a Committee member who has a direct or indirect pecuniary interest in the matter to which the disclosure relates shall not:
(a) be present during any deliberation of the Committee for the purpose of making the determination; or
(b) take part in the making by the Committee of the determination.
COMMONWEALTH LEGAL AID ACT 1977
- SECT 18
Annual reportsSECT
18.
(2) The Committee shall, as soon as practicable after the end of each financial year, prepare and give to the Minister a report on the activities of the Committee during the year.
(3) The Minister shall cause a copy of a report given under subsection (2) to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.
COMMONWEALTH LEGAL AID ACT 1977
- PART IV
PART IV - TRANSFER OF CERTAIN PERSONS EMPLOYED BY THE COMMONWEALTH
TO LEGAL AID COMMISSIONS OF THE STATES AND TERRITORIES
COMMONWEALTH LEGAL AID ACT 1977
- SECT 20
InterpretationSECT
20. In this Part, unless the contrary intention appears:
"approved legal aid commission" means:
(a) a legal aid commission of a State in relation to which an arrangement under subsection 21 (1) is in force; or
(b) a legal aid commission of the Australian Capital Territory;
"approved statutory office" means:
(a) a statutory office of a State in relation to which an arrangement under subsection 21 (1) is in force; or
(b) a statutory office of the Australian Capital Territory or of the Northern Territory;
"employee" and "officer" have the same respective meanings as they have in the Public Service Act 1922;
"statutory office" means:
(a) in relation to a State - an office established by or under a law of a State for purposes connected with the provision of legal assistance in that State; and
(b) in relation to the Australian Capital Territory - an office established by or under a law of that Territory for purposes connected with the provision of legal assistance in that Territory;
but does not include an office in the Public Service of a State or that Territory.
COMMONWEALTH LEGAL AID ACT 1977
- SECT 21
Arrangements with StatesSECT
21. (1) Subject to this section, the Commonwealth may make arrangements with a State with respect to the making of offers of employment as members of the staff of a legal aid commission of the State, or as the holders of statutory offices connected with the provision of legal assistance in the State, to officers employed in the Australian Legal Aid Office in the State and with respect to the terms and conditions of employment that will be applicable to officers who accept those offers.
(2) Arrangements shall not be made under subsection (1) unless the terms and conditions of employment that will be applicable to an officer who accepts an offer of employment made to him or her under the arrangements comply with the following requirements:
(a) the officer shall, upon becoming engaged in that employment, be entitled to be paid salary at a rate not less than the rate at which salary was payable to him or her in respect of the office in the Australian Public Service held by him or her immediately before the date on which he or she becomes engaged in that employment;
(b) the officer shall retain such rights (if any) in respect of leave of absence for recreation and leave of absence on account of illness as have accrued to him or her immediately before he or she becomes engaged in that employment;
(c) the officer shall be entitled to a period or periods of long service leave in respect of that employment, and payment in lieu of long service leave shall be made to and in relation to the officer in respect of that employment, in accordance with the provisions of the Long Service Leave (Commonwealth Employees) Act 1976 (being that Act as in force immediately before he or she becomes engaged in that employment) as if that employment were employment in the Australian Public Service, unless, within 3 months after he or she becomes engaged in that employment, he or she elects, in writing, for those entitlements to be determined otherwise; and
(d) if the officer, immediately before he or she becomes engaged in that employment:
(i) is an eligible employee for the purposes of the Superannuation Act 1976; or
(ii) is a member of the superannuation scheme established by deed under the Superannuation Act 1990;
the officer must be exempted from liability to contribute for superannuation benefits otherwise than under the Superannuation Act 1976 or the Superannuation Act 1990 in relation to that employment unless he or she elects by notice in writing, within 3 months after becoming employed, to contribute for those other benefits.
(3) An arrangement with a State under subsection (1) shall make provision for and in relation to:
(a) the provision of superannuation benefits under the Superannuation Act 1976 or under the Superannuation Act 1990 in respect of eligible persons employed as members of the staff of a legal aid commission of the State, or as the holders of statutory offices connected with the provision of legal assistance in the State, being eligible persons who do not elect to contribute for superannuation benefits otherwise than under the Superannuation Act 1976 or the Superannuation Act 1990; and
(b) the provision, in respect of eligible persons employed as set out in paragraph (a), of benefits similar to the benefits provided under the Maternity Leave (Australian Government Employees) Act 1973.*2*
(4) A reference in subsection (1) to an officer who is employed in the Australian Legal Aid Office shall be read as including a reference to a person who holds, but is not performing the duties of, an office in the Australian Legal Aid Office.
(5) For the purposes of paragraph (2) (a), an unattached officer, or an employee, who is performing duty in the Australian Legal Aid Office:
(a) shall be deemed to be the holder of an office in the Australian Public Service; and
(b) shall be deemed to be entitled to be paid salary in respect of that office at a rate equal to the rate at which salary is payable to him or her as an unattached officer or as an employee, as the case may be.
(6) In this section, unless the contrary intention appears:
"eligible person" includes an approved person;
"officer" includes employee. *2* S. 21 (3) - Now cited as the Maternity Leave (Commonwealth Employees) Act 1973.
COMMONWEALTH LEGAL AID ACT 1977
- SECT 22
Eligible persons and approved personsSECT
22. (1) Where an officer or employee becomes employed as a member of the staff of an approved legal aid commission, or as the holder of an approved statutory office, in accordance with the terms of an offer of employment made to him or her under an arrangement referred to in subsection 21 (1):
(a) he or she ceases to be an officer or employee at the expiration of the day immediately preceding the day on which he or she becomes so employed; and
(b) he or she becomes, upon becoming so employed:
(i) in the case of an officer - an eligible person; or
(ii) in the case of an employee - an approved person;
for the purposes of this Part.
(4) An eligible person continues to be an eligible person, and an approved person continues to be an approved person, for the purposes of this Part until he or she ceases to be employed as a member of the staff of an approved legal aid commission or as the holder of an approved statutory office or until he or she attains the age of 65 years, whichever first occurs.
COMMONWEALTH LEGAL AID ACT 1977
- PART V
PART V - MISCELLANEOUS
COMMONWEALTH LEGAL AID ACT 1977
- SECT 32
Limitation on provision of legal assistance under certain ActsSECT
32. (1) Where an agreement has been entered into by the Commonwealth and a State in relation to the provision of legal assistance in that State in respect of Commonwealth matters, the Governor-General may, by Proclamation, declare that the prescribed provisions cease to have effect in relation to that State after the date on which the Proclamation is published and those sections accordingly cease so to have effect.
(2) The Governor-General may, by Proclamation, declare that the prescribed provisions cease to have effect in relation to an internal Territory after the date on which the Proclamation is published and those provisions accordingly cease to have effect.
(3) In this section, a reference to the prescribed provisions shall be read as a reference to section 105 of the Re-establishment and Employment Act 1945.
COMMONWEALTH LEGAL AID ACT 1977
- SECT 34
RegulationsSECT
34. The Governor-General may make regulations, not inconsistent with this Act, prescribing all matters required or permitted by this Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to this Act.
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