Legal Aid Act 1977 (ACT)
Legal Aid Act 1977
A1977-31
Republication No 37
Effective: 17 December 2021
Republication date: 17 December 2021
Last amendment made by A2021‑33
About this republication
The republished law
This is a republication of the Legal Aid Act 1977 (including any amendment made under the Legislation Act 2001, part 11.3 (Editorial changes)) as in force on 17 December 2021. It also includes any commencement, amendment, repeal or expiry affecting this republished law to 17 December 2021.
The legislation history and amendment history of the republished law are set out in endnotes 3 and 4.
Kinds of republications
The Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the ACT legislation register at type="disc">
authorised republications to which the Legislation Act 2001 applies
unauthorised republications.
The status of this republication appears on the bottom of each page.
Editorial changes
The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial amendments and other changes of a formal nature when preparing a law for republication. Editorial changes do not change the effect of the law, but have effect as if they had been made by an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117). The changes are made if the Parliamentary Counsel considers they are desirable to bring the law into line, or more closely into line, with current legislative drafting practice.
This republication does not include amendments made under part 11.3 (see endnote 1).
Uncommenced provisions and amendments
If a provision of the republished law has not commenced, the symbol U appears immediately before the provision heading. Any uncommenced amendments that affect this republished law are accessible on the ACT legislation register ( For more information, see the home page for this law on the register.
Modifications
If a provision of the republished law is affected by a current modification, the symbol M appears immediately before the provision heading. The text of the modifying provision appears in the endnotes. For the legal status of modifications, see the Legislation Act 2001, section 95.
Penalties
At the republication date, the value of a penalty unit for an offence against this law is $160 for an individual and $810 for a corporation (see Legislation Act 2001, s 133).
Legal Aid Act 1977
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Dictionary 2
3 Notes 2
Part 2 Establishment and functions of legal aid commission
6 Establishment of commission 3
8 Functions of commission 3
8A Funding agreements—application of Act 4
9 Powers of commission 4
10 Duties of commission 6
11 Guidelines for allocation of work 7
12 Guidelines for provision of assistance 8
13 Professional conduct by officers of commission 9
Part 3 Board of commission
14 Establishment of board of commission 11
15 Functions of board 11
16 Constitution of board 11
Part 4 Officers of commission
17 Chief executive officer and assistant executive officers 13
18 Qualifications for appointment 13
19 Duties of assistant executive officers 13
19A Statutory officers of the commission to give reports 14
19B Statutory officers of the commission to follow directions 14
20 Staff of commission 14
21 Delegation 15
22 Rights of officers of commission in relation to legal practice 15
23 Legal practitioner on record 17
Part 5 Provision of legal assistance by commission
24 Bringing services of commission to public notice 18
25 Application for legal assistance 18
26 Deciding applications for legal assistance 19
27 Ending or changing legal assistance 20
28 Circumstances in which legal assistance may be provided 21
28A Legal assistance under the convention 22
29 Legal assistance—interests adverse to Territory 23
30 Legal advice and duty lawyer services 23
30A Minor legal assistance 24
31 Contribution towards costs and expenses 24
31A Security for payment of contribution 26
31B Arranging for services of private legal practitioners 28
31C Fees for services of private legal practitioners 28
31D Record of services provided by private legal practitioners 29
31E Panels of private legal practitioners 29
31F Compliance audits 31
32 Notice to practitioner about proposed decision 31
32AA Payments to private legal practitioners 31
32A Prohibition of additional payments to private practitioners 32
33 Entitlement of legally assisted people to costs in proceedings 32
34 Payment by commission of costs awarded against legally assisted people 35
35 Notification of decisions 36
Part 5A Dispute resolution
35A Definitions—pt 5A 38
35B Power of commission to provide approved negotiation 38
35C Expenses of dispute resolution 38
35D Confidentiality of negotiation 39
35E Admissibility of evidence 40
35F Protection of convenor from liability 40
Part 6 Reconsideration and review of decisions
36 Reconsideration of decision 41
37 Establishment and constitution of review committees 43
39 Function of review committee 44
39A Chief executive officer and person requesting review to have opportunity to be heard 45
39B Power of review committees to obtain information and documents 45
40 Decision of review committee 46
40A Cessation of committee 46
Part 7 Finances of commission
41 Establishment of fund 47
42 Banking accounts 47
43 Application of fund 48
44 Limitation on contracts 49
45 Estimates of expenditure 49
46 Proper accounts to be kept by commission 50
47 Audit 50
Part 8 Administrative provisions relating to commission
Division 8.1 Commissioners
48 Term of office 51
50 Qualifications for appointment 51
51 Resignation 52
52 Removal from office 52
54 Meetings 52
55 Interests to be disclosed 53
Division 8.2 Officers of commission
56 Term of appointment of statutory officers 54
57 Conditions of appointment 54
58 Leave of absence 54
59 Resignation 54
60 Removal from office 54
60A Review of decision to remove from office 55
61 Outside employment 55
68 Conditions of employment of staff 56
68A Personnel management 56
68B Application of merit principle to re-engagements of statutory officers 60
69Application of Legal Profession Act to commission etc 60
Division 8.3 Records management—legal services records
69A Definitions—div 8.3 61
69B Records management—legal services records 61
69C Approval of records management program 62
Part 10 Administrative provisions relating to review committees
76 Membership of panel 63
77 Resignation from panel 63
78 Removal from panel 63
79 Allowances 63
80 Meetings of review committee 64
81 Interests to be disclosed 65
Part 11 Consultative committees
82 Establishment of consultative committees 66
83 Constitution of consultative committees 66
84 General provisions relating to consultative committees 67
Part 12 Inquiry relating to affairs of commission
84A Definitions for pt 12 68
84B Appointment of person to conduct inquiry 68
84C Assistants 69
84D Access to documents etc 69
84E Professional privilege 70
Part 13 Miscellaneous
90 Delegation by commission 71
91 Liabilities of commission and Territory 71
91A Grants to voluntary legal assistance organisations 72
92 Secrecy 72
92AA Exceptions to secrecy provisions 74
92A Power of commission to obtain information or documents 76
93 Exemption from fees and taxes 76
94 Commission to operate as Legal Aid ACT 77
94A Application of Financial Management Act to commission 77
95 False or misleading statements 77
95A Interest on amounts due to commission 78
96 Certificate as to amounts owing to commission 79
98 Superannuation 79
99 Approved forms 80
100 Regulation-making power 80
Dictionary81
Endnotes
1 About the endnotes 85
2 Abbreviation key 85
3 Legislation history 86
4 Amendment history 95
5 Earlier republications 110
6 Expired transitional or validating provisions 111
Legal Aid Act 1977
An Act relating to the provision of legal aid
Part 1Preliminary
Name of Act
This Act is the Legal Aid Act 1977.
Dictionary
The dictionary at the end of this Act is part of this Act.
Note 1The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere.
For example, the signpost definition ‘statutory interest account—see the Legal Profession Act 2006, section 253.’ means that the term ‘statutory interest account’ is defined in the section and the definition applies to this Act.
Note 2A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).
Notes
A note included in this Act is explanatory and is not part of this Act.
NoteSee the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.
Part 2Establishment and functions of legal aid commission
Establishment of commission
(1)The Legal Aid Commission (A.C.T.) is established.
(2)The commission—
(a)is a body corporate; and
(b)shall have a common seal; and
(c)may acquire, hold and dispose of real and personal property; and
(d)may enter into such agreements and arrangements as it considers desirable for this Act; and
(e)may sue and be sued in its corporate name.
Functions of commission
(1)The commission shall provide legal assistance in ACT matters in accordance with this Act.
(2)Legal assistance may be provided by the commission by arranging for the services of private legal practitioners to be made available at the expense of the commission or by making available the services of officers of the commission.
(3)If a funding agreement is in force—
(a)the Minister may direct the commission to apply the agreement; and
(b)the commission shall comply with the Minister’s direction.
(4)The Minister must present a copy of a direction under subsection (3) (a), together with a copy of the relevant funding agreement, to the Legislative Assembly no later than 15 sitting days after the day on which the direction is issued.
8AFunding agreements—application of Act
(1)If the Minister issues a direction under section 8 (3) (a), this Act applies in relation to the provision of legal assistance in a matter to which the relevant funding agreement applies, subject to subsection (2).
(2)The following provisions of this Act apply, in relation to the provision of legal assistance in a matter to which a funding agreement applies, only to the extent to which the provisions are not inconsistent with the funding agreement:
(a)section 10 (1) (g) (Duties of commission);
(b)section 11 (Guidelines for allocation of work);
(c)section 12 (Guidelines for provision of assistance);
(d)part 5 (Provision of legal assistance by commission);
(e)part 6 (Reconsideration and review of decisions).
Powers of commission
(1)If the commission provides legal assistance by making available the services of officers of the commission, the commission shall pay any disbursements (including barristers’ fees) and out-of-pocket expenses incurred in the course of providing that assistance.
(2)If the commission provides legal assistance by arranging for the services of private legal practitioners, the commission shall, except if the services are provided on a voluntary basis, pay fees to those private legal practitioners for the performance of those services (being fees determined by the commission in accordance with section 31C (1) and (2)) and shall pay any disbursements (including barristers’ fees) and out-of-pocket expenses properly incurred by them.
(3)The commission may accept money or other property on trust and may act as trustee of money or other property held by the commission on trust.
(4)Notwithstanding anything contained in any other provision of this Act, but subject to subsection (6), any money or other property held by the commission on trust shall be dealt with in accordance with the functions of the commission as trustee under the Trustee Act 1925.
(5)The provisions of the Legal Profession Act 2006 about the keeping of accounts by solicitors in relation to money held by them on trust, and the audit of the accounts, do not apply in relation to money held by the commission on trust.
(6)A regulation may make provision in relation to—
(a)the application to the commission, with any changes prescribed by regulation, of regulations made for the Legal Profession Act 2006, section 253 (Statutory deposits); and
(b)the investment by the commission of any amount held on trust by the commission.
NoteA provision of a law that gives an entity (including a person) a function also gives the entity powers necessary and convenient to exercise the function (see Legislation Act, s 196 and dict, pt 1, def of entity).
Duties of commission
(1)In the exercise of its functions, the commission shall—
(a)ensure that legal assistance is provided in the most effective, efficient and economical manner; and
(b)ensure that its activities are carried on consistently with, and do not prejudice, the independence of the private legal profession; and
(c)liaise and cooperate with and, if the commission considers it desirable to do so, make reciprocal arrangements with, other legal aid commissions, professional bodies representing private legal practitioners and other bodies engaged or interested in the provision of legal assistance in the ACT or elsewhere; and
(d)liaise with professional bodies representing private legal practitioners in order to facilitate the use, in appropriate circumstances, of services provided by private legal practitioners; and
(e)make maximum use of services which private legal practitioners offer to provide on a voluntary basis; and
(f)make the services of the commission available to people eligible for legal assistance by establishing such local offices as it considers appropriate and by making such other arrangements as it considers appropriate; and
(g)determine priorities in the provision of legal assistance as between different classes of people or classes of matters; and
(h)arrange for the provision of duty lawyer services at sittings in the ACT of such courts and tribunals as the commission considers appropriate; and
(i)endeavour to secure the services of language interpreters, relationship counsellors, welfare officers and other appropriate people to assist legally assisted people in connection with matters in respect of which they are provided with legal assistance; and
(j)encourage and permit law students to participate, so far as the commission considers it practicable and proper to do so, on a voluntary basis, under professional supervision, in the provision of legal assistance by officers of the commission.
(2)The commission shall—
(a)make recommendations to the Minister with respect to any reforms of the law the desirability for which has come to its attention in the course of the exercise of its functions; and
(b)initiate and carry out educational programs designed to promote an understanding by the public, and by sections of the public who have special needs in this respect, of their rights, powers, privileges and duties under the law in force in the ACT.
(3)In the exercise of its functions, the commission shall have regard to the amount of money for the time being standing to the credit of the fund and of any money likely to be received by the commission for the purposes of the fund.
Guidelines for allocation of work
The commission shall determine guidelines for the allocation of work between officers of the commission and private legal practitioners having regard to the following considerations:
(a)the need for legal services to be readily available and easily accessible to disadvantaged people;
(b)the need to make the most efficient use of the money available to the commission;
(c)the desirability of enabling a legally assisted person to obtain the services of the legal practitioner of the person’s choice;
(d)the desirability of maintaining the independence of the private legal profession;
(e)the desirability of enabling officers of the commission to utilise and develop their expertise and maintain their professional standards by conducting litigation and doing other kinds of professional legal work.
Guidelines for provision of assistance
The Commission shall determine, and make known to the public, guidelines to be applied—
(a)in the application of section 28 for the purposes of determining whether legal assistance may be provided to a person under this Act; and
(b)in deciding the nature and extent of the legal assistance to be given in relation to a matter or proceeding or any part of a matter or proceeding; and
(c)in determining whether the granting of legal assistance to a person will be subject to any of the conditions mentioned in section 31 (1); and
(d)in determining the extent (if any) to which the commission will pay costs awarded against a legally assisted person in any proceeding; and
(e)in determining the amount of costs or disbursements that will be required to be paid to the commission under section 33 by a legally assisted person who has been successful in the proceeding in respect of which the legal assistance was provided.
Professional conduct by officers of commission
(1)An officer of the commission, when practising as, or exercising any of the functions of, a solicitor, or exercising a right of audience in a court or before a tribunal, under this Act—
(a)shall observe the same rules and standards of professional conduct and ethics as those that a private legal practitioner is, by law or the custom of the legal profession, required to observe in the practice of the practitioner’s profession; and
(b)is subject to the same professional duties as those to which a private legal practitioner is subject, by law or the custom of the legal profession, in the practice of the practitioner’s profession.
(2)Subject to section 92AA, the like privileges as those that arise from the relationship of client and solicitor acting in the solicitor’s professional capacity and in the course of the solicitor’s professional employment shall arise between a person who has applied for legal assistance, or to whom legal assistance is being provided, under this Act and a statutory officer of the commission who practises as, or exercises any of the functions of, a solicitor for the person under this Act.
(3)For the application of subsection (1) in respect of an officer of the commission who is practising as, or exercising any of the functions of, a solicitor, or is exercising a right of audience in a court or before a tribunal, in the ACT on behalf of a legally assisted person—
(a)if there are no assistant executive officers—
(i)the chief executive officer shall be deemed to be a solicitor lawfully practising on the officer’s own account in the ACT and retained by the person to act on the person’s behalf; and
(ii)the members of the staff of the commission shall be deemed to be employed by the chief executive officer; or
(b)if there is an assistant executive officer or there are assistant executive officers—
(i)the chief executive officer and the assistant executive officer or assistant executive officers shall be deemed to be a firm of solicitors lawfully practising in partnership in the ACT and retained by the person to act on the person’s behalf; and
(ii)the members of the staff of the commission shall be deemed to be employed by that firm.
Part 3Board of commission
Establishment of board of commission
A board of the commission is established.
Functions of board
The functions of the board are—
(a)to determine the broad policies, priorities and strategies of the commission for the provision of legal assistance under this Act; and
(b)to ensure that the commission’s affairs are managed in accordance with this Act.
Constitution of board
(1)The board consists of the following members (each of whom is a commissioner):
(a)the president of the commission;
(b)the chief executive officer;
(c)5 other members of whom—
(i)1 member represents the Minister; and
(ii)1 member is chosen from a panel of not less than 3 people nominated by the council of the bar association; and
(iii)1 member is chosen from a panel of not less than 3 people nominated by the council of the law society; and
(iv)1 member is chosen from a panel of not less than 3 people nominated by the executive committee of the Australian Capital Territory Council of Social Service Inc; and
(v)1 member has expertise in financial management;
(d)1 member who has qualifications, training or experience that will enable the member to give other specialist assistance to the commission in the exercise of its functions.
Note 1A person is not eligible for appointment as the president of the commission unless the person is or has been a judge, or the person is a legal practitioner and has been for at least 5 years (see s 50 (1)).
Note 2A person is not eligible for appointment as a commissioner under s 16 (1) (c) (iv) if the person is a legal practitioner (see s 50 (2)).
(2)The Minister must appoint the members of the board other than the chief executive officer.
(3)However, the Minister must only appoint a member mentioned in subsection (1) (d) if, in the opinion of the Minister, the commission requires specialist assistance in the exercise of its functions.
Note 1For the making of appointments (including acting appointments), see the Legislation Act, pt 19.3.
Note 2In particular, an appointment may be made by naming a person or nominating the occupant of a position (see Legislation Act, s 207).
Note 3Certain Ministerial appointments require consultation with a Legislative Assembly committee and are disallowable (see Legislation Act, div 19.3.3).
(4)A person appointed as a member by the Minister is appointed on a part‑time basis.
(5)The Minister may reappoint a member mentioned in subsection (1) (c) (ii) to (iv) without needing to choose from a panel of not less than 3 people if—
(a)the entity that nominated the member recommended the reappointment; and
(b)the Minister consulted the president of the commission about the recommendation.
Part 4Officers of commission
Chief executive officer and assistant executive officers
(1)There shall be a Chief Executive Officer of the commission who shall be charged with the management of the operations and affairs of the commission.
(2)The commission must appoint a chief executive officer.
Note 1For the making of appointments (including acting appointments), see the Legislation Act, pt 19.3.
Note 2In particular, a person may be appointed for a particular provision of a law (see Legislation Act, s 7 (3)) and an appointment may be made by naming a person or nominating the occupant of a position (see Legislation Act, s 207).
(3)The commission may appoint such assistant executive officers of the commission as it considers necessary to assist the chief executive officer in the exercise of the functions of the chief executive officer under this Act.
Qualifications for appointment
A person is not eligible for appointment as a statutory officer of the commission unless the person is a legal practitioner who holds a current unrestricted practising certificate granted under the Legal Profession Act 2006.
Duties of assistant executive officers
An assistant executive officer must act in accordance with the chief executive officer’s directions in relation to the management of the operations or affairs of the commission.
19AStatutory officers of the commission to give reports
A statutory officer of the commission must, if requested by the commission, give a report in writing to the commission about—
(a)the exercise of the officer’s functions under this Act; or
(b)the policy the officer is pursuing, or proposes to pursue, in relation to the functions.
19BStatutory officers of the commission to follow directions
(1)The commission may issue directions to a statutory officer of the commission in relation to—
(a)the exercise of the officer’s functions under this Act; or
(b)the policy the officer is pursuing, or proposes to pursue, in relation to the functions.
(2)A statutory officer of the commission who is given a direction under subsection (1) must comply with the direction.
Staff of commission
(1)The commission may employ as members of the staff of the commission such people as it considers necessary to enable it to properly exercise its functions.
(2)The commission, if it is practicable to do so, shall make reciprocal arrangements with other legal aid commissions for the purpose of facilitating the transfer of staff between the commission and any of those other legal aid commissions.
Delegation
The chief executive officer may delegate the chief executive officer’s functions to another officer of the commission.
NoteFor the making of delegations and the exercise of delegated functions, see the Legislation Act, pt 19.4.
Rights of officers of commission in relation to legal practice
(1)A statutory officer of the commission shall not exercise any functions under this Act unless the officer holds a current unrestricted practising certificate.
(2)A member of the staff of the commission shall not exercise any functions of a solicitor under this Act unless the staff member holds a current practising certificate.
(3)Subject to subsection (10), a statutory officer of the commission who holds a current unrestricted practising certificate is entitled to practise as a solicitor, and to exercise the functions of a solicitor, in the ACT and in any court of the Territory and has a right of audience in any court of the Territory.
(4)Subject to subsection (10), a member of the staff of the commission who holds a current practising certificate has such rights to practise as a solicitor, and such rights to exercise the functions of a solicitor, in the ACT, and such rights of audience in any court of the Territory, as the staff member would have if the chief executive officer were a solicitor lawfully practising on the solicitor’s own account in the ACT and the member of the staff were employed by that solicitor.
(5)An officer of the commission who is a legal practitioner is entitled to practise as a barrister, and to exercise the functions of a barrister, in the ACT and in any court of the Territory.
(6)In practising as a solicitor or exercising any of the functions of a solicitor under this section—
(a)a statutory officer of the commission has all the rights and privileges of a solicitor practising on the solicitor’s own account; and
(b)a member of the staff of the commission has all the rights and privileges of a solicitor employed by a person practising as a solicitor on the solicitor’s own account.
(7)In appearing in a proceeding in a court or before a tribunal, an officer of the commission has the same protection and immunity as a barrister has in appearing for a party in a proceeding in that court or before that tribunal if the officer is appearing for—
(a)a legally assisted person; or
(b)a person to whom legal assistance is provided other than under this Act.
(8)Subsections (1) to (7) have effect only for the purposes of the exercise by the commission of its functions.
(9) Nothing in this section affects any right to practise as a solicitor or exercise the functions of a solicitor, or any right of audience in a court or before a tribunal, that an officer of the commission has apart from this section.
(10)To remove any doubt, the Legal Profession Act 2006, chapter 4 (Complaints and discipline) applies to officers of the commission who are Australian legal practitioners within the meaning of that Act in the same way as it applies to other people who are Australian legal practitioners within the meaning of that Act.
Legal practitioner on record
If—
(a)in any proceeding, a document is required or permitted to be signed by a legal practitioner for a party to the proceeding who is a legally assisted person; and
(b)legal services are being provided to the legally assisted person in relation to the proceeding by an officer of the commission;
the signature of the chief executive officer, or of an officer of the commission authorised in writing by the chief executive officer to sign documents on behalf of the chief executive officer for this section, shall be deemed to be the signature of a legal practitioner for that party.
Part 5Provision of legal assistance by commission
Bringing services of commission to public notice
The commission may, by public advertisement or otherwise, bring the services made available by the commission to the attention of the public and any officer of the commission may, in the course of the exercise of the officer’s functions, bring those services to the attention of the public or to the attention of particular people.
Application for legal assistance
(1)An application for legal assistance must be made in writing.
NoteIf a form is approved under s 99 for this provision, the form must be used (but see s (2)).
(2)However, subsection (1) does not apply to legal assistance consisting of—
(a)legal advice; or
(b)duty lawyer services; or
(c)minor legal assistance.
(3)The commission may, in special circumstances, treat an application that is not in the form approved under section 99 (Approved forms) as having been properly made.
(4)An applicant for legal assistance to which subsection (1) applies shall furnish to the commission such declarations, certificates and other documents as the commission requires for the purpose of enabling a decision to be made as to whether legal assistance should be granted in respect of the application.
(5)If legal advice is being provided to a person under this Act and it appears to an officer of the commission that the legal advice required by the person is likely to be of a substantial or continuing nature, the officer may require the person to make an application for legal assistance in accordance with subsections (1) and (4) and, if such a requirement is made, those subsections and section 28 (1), (3) and (4), section 31 and section 35 (2) apply in relation to the application.
(6)The commission may distribute to private legal practitioners application forms for completion by people wishing to apply for legal assistance.
Deciding applications for legal assistance
(1)Each application for legal assistance must be decided by—
(a)the chief executive officer; or
(b)an officer of the commission authorised by the chief executive officer; or
(c)if a direction under subsection (3) applies to the application—the commission.
(2)Each application must be decided in accordance with this Act and, in particular—
(a)any direction by the Minister under section 8 to apply a funding agreement; and
(b)any guidelines by the commission under section 12; and
(c)the priorities decided under section 10 (1) (g).
NoteSection 28 provides for circumstances in which legal assistance may be provided.
(3)The commission must give, and make known to the public, directions about the particular kinds of application that must be decided by the commission.
(4)For subsection (1), the decision maker may make any inquiries and obtain any reports and advice (including the opinion of counsel) that the decision maker considers appropriate.
(5)The cost of making inquiries or obtaining reports or advice under subsection (4) is payable—
(a)if the decision maker under subsection (1) decides that the cost should be paid by the applicant—by the applicant; or
(b)in any other case—out of the fund.
(6)If the application is approved, the decision maker must also decide, in accordance with guidelines under section 11 (Guidelines for allocation of work) and section 12 (Guidelines for provision of assistance)—
(a)whether the assistance is to be given by an officer of the commission or a private legal practitioner; and
(b)the nature and extent of the assistance to be given; and
(c)whether the assistance is to be given free, or on any of the conditions mentioned in section 31 (1) (Contribution towards costs and expenses).
Ending or changing legal assistance
The decision maker under section 26 may, in relation to approved legal assistance—
(a)end the assistance; or
(b)change the nature or extent of the assistance; or
(c)impose a condition under section 31 (1) (Contribution towards costs and expenses) on the giving of further assistance; or
(d)change a condition imposed under section 31 (1) on the giving of further assistance.
Circumstances in which legal assistance may be provided
(1)Subject to this section, and section 28A, legal assistance may be provided to a person under this Act only if—
(a)the person is in need of that legal assistance because the person cannot afford the cost of obtaining the assistance from private legal practitioners; and
(b)it is reasonable in all the circumstances to provide the legal assistance.
(2)However, subsection (1) does not apply to legal assistance consisting of—
(a)legal advice; or
(b)duty lawyer services; or
(c)minor legal assistance.
(3)In the making of a decision whether a person is in need of legal assistance by reason that the person is unable to afford the cost of obtaining from private legal practitioners the legal services in respect of which the legal assistance is sought, regard shall be had to all relevant matters, including the following matters:
(a)the income of the person;
(b)the cash that is readily available to the person or can be made so available;
(c)the debts, liabilities and other financial obligations of the person;
(d)the cost of living;
(e)the cost of obtaining the legal services from private legal practitioners;
(f)any other matter affecting the ability of the person to meet the cost of obtaining the legal services from private legal practitioners.
(4)In the making of a decision whether it is reasonable in all the circumstances to provide legal assistance to a person, regard shall be had to all relevant matters, including—
(a)the nature and extent of any benefit that may accrue to the person, to the public or to any section of the public from the provision of the assistance or of any detriment that may be suffered by the person, by the public or by any section of the public if the assistance is not provided; and
(b)in the case of assistance in relation to a proceeding in a court or before a tribunal—whether the proceeding is likely to terminate in a manner favourable to the person.
(5)Legal assistance shall not be provided under this Act to a person who is not ordinarily resident in the ACT unless the assistance relates to—
(a)a proceeding in a court, or before a tribunal, in the ACT; or
(b)a matter arising under the law in force in the ACT.
(6)Legal assistance shall not be provided under this Act to a person in or in connection with a review by a review committee under part 6.
(7)Legal assistance may be provided under this Act to a body corporate in special circumstances determined by the commission, but not otherwise.
28ALegal assistance under the convention
(1)A person is entitled to legal assistance if—
(a)the person applies for legal assistance to obtain recognition or enforcement of a decision given in a proceeding in a contracting state in accordance with the convention; and
(b)the chief executive officer is satisfied that the person has received legal aid in accordance with the convention, article 1 for the proceeding.
(2)In this section:
the convention means the Convention on International Access to Justice adopted by the Fourteenth Session of the Hague Conference on Private International Law and signed at the Hague on 25 October 1980.
Legal assistance—interests adverse to Territory
Legal assistance may be provided under this Act (including legal assistance provided by making available the services of officers of the commission) to a person in relation to any proceeding or matter notwithstanding that the interests of that person are, or may be, adverse to the interests of the Territory, the interests of an authority or body established for a public purpose by or under a Territory law or the interests of an incorporated company in which the Territory or such an authority or body has an interest.
Legal advice and duty lawyer services
(1)Legal assistance provided under this Act, being legal assistance consisting of—
(a)legal advice, other than legal advice mentioned in section 25 (5); or
(b)the provision of duty lawyer services;
shall, subject to subsection (2), be provided without charge.
(2)In special circumstances determined by the commission, legal assistance to which subsection (1) applies may be provided subject to a condition that the person to whom the legal assistance is to be provided pays to the commission a fixed charge determined by the commission.
(3)In special circumstances determined by the commission, legal assistance mentioned in subsection (1) shall not be provided to a person.
30AMinor legal assistance
(1)The commission may provide minor legal assistance to a person in accordance with guidelines under section 12.
Example of minor legal assistance
assistance with writing a letter or the completion of a form
(2)Minor legal assistance may be given subject to any of the following conditions:
(a)that the person pays to the commission a contribution of a stated amount towards the cost to the commission of providing the assistance;
(b)that the person makes a payment or payments to the commission in relation to any out-of-pocket expenses incurred, or to be incurred, by the commission in providing the assistance.
Contribution towards costs and expenses
(1)The granting under this Act of an application by a person for legal assistance, other than legal assistance to which section 30 (1) applies, may be on the basis that the assistance will be provided without charge or may be subject to all or any of the following conditions:
(a)a condition that the person pays to the commission a contribution of an amount towards the cost to the commission of providing the assistance;
(b)a condition that the person makes a payment or payments to the commission in respect of any out-of-pocket expenses incurred, or to be incurred, by the commission in providing the assistance;
(c)a condition that the payment of an amount required to be paid by the person under this subsection, together with interest, be secured by a charge under section 31A on land of the person.
(2)An amount required to be paid by a legally assisted person under this section—
(a)may be varied by the commission after the grant of assistance because of a change to a relevant matter; and
NoteSection 28 (3) mentions matters that may be considered relevant by the commission.
(b)must be paid in the way that the commission directs.
(3) A direction under subsection (2) (b) may require that an amount be paid to the commission by the legally assisted person’s private legal practitioner out of money recoverable on behalf of the person.
(4)If a person who is or has been a legally assisted person has not paid an amount payable by the person to the commission under this section, the amount is recoverable by the commission by action in a court of competent jurisdiction as a debt due and payable to the commission.
(5)If—
(a)the commission has directed that an amount be paid by the legally assisted person’s private legal practitioner to the commission out of money recoverable by the practitioner on behalf of the person; and
(b)the commission has notified the practitioner of its direction; and
(c)the practitioner recovers an amount on behalf of the legally assisted person;
the practitioner shall pay to the commission—
(d)if the amount recovered is less than the amount referred to in paragraph (a)—an amount equal to the amount recovered; or
(e)in any other case—an amount equal to the amount referred to in paragraph (a).
(6)An amount payable by a private legal practitioner under subsection (5) is a debt due and payable to the commission by the practitioner and recoverable in a court of competent jurisdiction.
(7)An amount paid by or recovered from a legally assisted person’s private legal practitioner under this section shall be taken, for subsection (4), to have been paid by the legally assisted person.
31ASecurity for payment of contribution
(1)If the provision of legal assistance is subject to the condition mentioned in section 31 (1) (c), the chief executive officer may lodge with the registrar-general for registration a notice certifying that an amount payable to the commission under section 31 is a charge on land stated in the notice.
(2)An amount payable to the commission by a person in respect of whose land a notice under subsection (1) has been registered is a charge on the land.
(3)The registrar-general shall register a notice under subsection (1).
(4)The chief executive officer shall notify the assisted person in writing of the lodgment of a notice under subsection (1).
(5)The Land Titles Act 1925, section 48 (2) does not apply to a notice under subsection (1).
(6)Subject to subsection (7), the commission has the same power of sale over the land charged as a mortgagee who, under the Land Titles Act 1925, section 94, is entitled to sell the estate and interest of the mortgagor.
(7)The commission may not exercise its power of sale under subsection (6) unless—
(a)if the commission has issued a direction under section 31 (2)—the legally assisted person is in breach of that direction; and
(b)at least 1 year before exercising the power the commission has served on the legally assisted person a notice that—
(i)states the amount then due to the commission by the person; and
(ii)demands payment of the amount payable to the commission by the person; and
(iii)states that, unless that amount, together with interest until the day of payment, is paid, the commission may exercise its power of sale under the charge at the expiration of the period of 12 months after the date of service of the notice; and
(c)at least 2 months before exercising the power the commission has served on the legally assisted person and every other person who appears to have an interest in the land a notice that states—
(i)the amount then due to the commission by the legally assisted person; and
(ii)that, unless that amount together with interest is paid within the period of 2 months after the date of service of the notice, the commission may exercise its power of sale.
(8)If—
(a)an amount equal to the amount secured by a charge under this section is paid; or
(b)the commission has exercised its power of sale under subsection (6); or
(c)the commission determines that the charge is no longer required;
the chief executive officer shall lodge with the registrar-general a notice discharging the land from any amount due to the commission and notify the legally assisted person that the chief executive officer has done so.
(9)On the lodgment of a notice under subsection (8) the registrar-general shall make an entry in the register noting that the land is discharged.
(10)In this section:
proprietor—see the Land Titles Act 1925, dictionary.
31BArranging for services of private legal practitioners
(1)If the commission provides legal assistance to a person by arranging for the services of a private legal practitioner, the commission may only select a practitioner who is included in a panel established under section 31E (1) (a listed practitioner) to provide that assistance.
(2)In selecting a listed practitioner to act for a legally assisted person, the principal considerations that the commission must take into account are the needs and interests of the person and the person’s preference (if any) for a particular listed practitioner.
(3)The commission must, after taking into account the considerations mentioned in subsection (2), ensure that selection of a listed practitioner to provide legal assistance is made having regard to the practitioner’s expertise.
31CFees for services of private legal practitioners
(1)The fees the commission pays for services provided by private legal practitioners to legally assisted people must as far as practicable—
(a)consist of fixed amounts for the performance of particular services; and
(b)be less than the ordinary professional cost of those services.
(2)However, the commission must consult, and take into account the views of, the following bodies when determining the fees it will pay for services provided by private legal practitioners to legally assisted people:
(a)the council of the law society;
(b)the council of the bar association.
31DRecord of services provided by private legal practitioners
The commission must—
(a)keep a record of the number and type of matters in which private legal practitioners provide services to legally assisted people under this Act; and
(b)make the record available for inspection on request by the law society or bar association.
31EPanels of private legal practitioners
(1)The commission may establish panels of private legal practitioners to provide legal assistance in accordance with the commission’s function under section 8 (2).
(2)A panel may be established for matters generally, or particular kinds of matter, or matters before particular courts or tribunals, for which legal assistance may be granted under this Act.
(3)A practitioner who wishes to be included in a panel established under this section must apply to the commission in a way approved by the commission.
(4)The commission may—
(a)appoint practitioners to a panel in accordance with the criteria determined under subsection (5); and
(b)suspend, remove or exclude practitioners from a panel on the grounds determined under subsection (7) (b); and
(c)impose conditions on the reappointment of a practitioner who has been suspended, removed or excluded, which in the opinion of the commission are:
(i)appropriate under the circumstances; and
(ii)in keeping with the requirements determined under subsection (7) (c).
(5)The commission may determine criteria for the appointment of practitioners to a panel.
(6)Without limiting subsection (5), the criteria may include criteria about any of the following matters:
(a)a practitioner’s skills, qualifications and experience;
(b)a practitioner’s agreement to comply with the requirements stated by the commission in relation to any of the following:
(i)practice standards;
(ii)reporting and accountability;
(iii)compliance audits.
(7)The commission may determine the following:
(a)the period for which practitioners are appointed to a panel;
(b)the grounds on which a practitioner may be suspended, removed or excluded from a panel;
(c)the requirements, if any, for reappointment of a practitioner to a panel.
(8)A determination by the commission under this section is a notifiable instrument.
NoteA notifiable instrument must be notified under the Legislation Act.
31FCompliance audits
(1)The commission may, at any time, perform an audit (a compliance audit) of legal assistance provided by a private legal practitioner.
(2)A compliance audit must not be performed unless the commission has given the practitioner written notice of—
(a)the commission’s intention to carry out the audit; and
(b)the scope of the audit.
Notice to practitioner about proposed decision
Before making a decision about a private legal practitioner under section 31E (4) (b) or (c), the commission must—
(a)give written notice to the practitioner setting out the reasons for the proposed decision; and
(b)allow the practitioner a reasonable opportunity to be heard on the proposed decision.
32AAPayments to private legal practitioners
(1)This section applies if a private legal practitioner performs legal services in a matter for a legally assisted person under this Act.
(2)The private legal practitioner must give the commission an invoice for the legal services provided in the matter.
(3)The commission may issue directions about the giving of invoices.
(4)The commission must pay the invoice in accordance with the fees decided under section 31C (Fees for services of private legal practitioners).
(5)If the private legal practitioner does not give the commission an invoice for the services in accordance with any directions issued under subsection (3), the commission is not obliged to pay the legal practitioner for the legal services.
(6)The commission is not obliged to pay for legal services provided for a person before the person applies for legal assistance.
(7)However, the commission may pay for legal services mentioned in subsection (6) if the legal practitioner has given the chief executive officer notice that the person intends to apply for legal assistance for the services.
32AProhibition of additional payments to private practitioners
If a private legal practitioner performs, or has performed, legal services on behalf of a legally assisted person, the practitioner shall not demand, take or accept payment for performing the services in respect of which the legally assisted person is receiving, or has received, legal assistance under this Act other than the payment or payments to which the practitioner is entitled under this Act.
Entitlement of legally assisted people to costs in proceedings
(1)For the purposes of the making or enforcement of any order for costs, or the determination of any entitlement to costs, in a proceeding before a court or tribunal to which a legally assisted person is a party, that person shall be deemed to be liable to pay the ordinary professional costs of the legal services provided to the person in or in connection with that proceeding and any disbursements (including barristers’ fees) and out-of-pocket expenses incurred in or in connection with the provision of those services.
(2)If an amount is recoverable by a legally assisted person (whether in a proceeding or under a settlement or compromise) in respect of the matter in which the legal assistance was given, the person is liable to pay to the commission an amount equal to so much of that amount as the chief executive officer, having regard to guidelines determined by the commission under section 12 (e), determines but the amount so determined shall not exceed the amount by which the sum of—
(a)the ordinary professional costs (including solicitor and client costs) of the legal services provided to the person in the proceeding or matter in respect of which legal assistance was provided; and
(b)any disbursements (including barristers’ fees) and out-of-pocket expenses incurred in or in connection with the provision of those services;
exceeds any amount, or the sum of any amounts, paid by the person to the commission under section 31 in relation to the legal assistance.
(3)In determining the amount that a legally assisted person is liable to pay under subsection (2), the chief executive officer shall have regard to—
(a)the amount actually recovered by the legally assisted person; and
(b)any failure by the legally assisted person to take action to recover the amount recoverable, including any failure to comply with a direction of the chief executive officer under subsection (4).
(4)The chief executive officer may give directions to a legally assisted person requiring the person to take specified action to recover an amount that is recoverable by the person in respect of the matter in which legal assistance was given.
(5)If an amount is recoverable by a legally assisted person (whether in a proceeding or under a settlement or compromise) in respect of the matter in which the legal assistance was given, the chief executive officer may, by signed writing, direct the legally assisted person to assign the person’s right to recover the amount to the commission within 28 days after the day on which the direction is given.
(6)If a legally assisted person fails to comply with a direction under subsection (5) to assign to the commission the person’s right to recover an amount, the legally assisted person shall be deemed to have assigned to the commission the person’s right to recover the amount at the expiration of the period during which any action by way of reconsideration or review may be taken under part 6 in relation to the decision to give the direction.
(7) Subsection (6) does not apply if the decision to give the direction with which the legally assisted person has failed to comply has, under part 6, been—
(a)varied so that the direction is negated; or
(b)set aside and replaced with a decision in accordance with which the direction is negated.
(8)If a right to recover an amount is assigned to the commission under a direction under subsection (5), or is to be deemed to be assigned to the commission in accordance with subsection (6), the commission shall, for the purpose of recovering the amount, stand in the place of the legally assisted person and may use the name of the legally assisted person and all remedies which would, but for the assignment or the operation of subsection (6), be available to the legally assisted person in any proceedings to recover the amount.
NoteAn amount owing under a law may be recovered as a debt in a court of competent jurisdiction or the ACAT (see Legislation Act, s 177).
Payment by commission of costs awarded against legally assisted people
(1)If—
(a)legal assistance is provided under this Act to a person in relation to a proceeding (other than a cross-proceeding) instituted by that person in a court or before a tribunal; and
(b)the court or tribunal makes an order in the proceeding directing the legally assisted person to pay costs incurred by another party to the proceeding;
either the legally assisted person or that other party may request the commission to pay to that other party on behalf of the legally assisted person an amount representing the whole or a part of the costs that the legally assisted person was so directed to pay.
(2)A request under subsection (1) must be decided by a statutory officer of the commission in accordance with guidelines determined by the commission under section 12 (d).
(3)Subject to subsection (4), the commission shall pay so much (if any) of the amount requested to be paid as the statutory officer of the commission considers just and equitable for the commission to pay.
(4)The commission shall not pay an amount in respect of costs incurred in a proceeding at first instance unless it appears to the commission that the person who made the request will suffer substantial hardship if that amount is not paid by the commission.
(5)Any amount paid by the commission under this section shall be deemed to have been paid by the legally assisted person.
Notification of decisions
(1)If a decision in relation to the provision of legal assistance or in relation to the making of any payment in respect of costs, including a decision reconsidering or reviewing a previous decision, is made by the commission or an officer of the commission under this Act, the commission shall, with 14 days after the decision is made, communicate the decision to the person who applied for the legal assistance or for the payment, as the case may be, and, if the decision is a decision refusing to provide, or imposing a condition on the provision of, legal assistance under this Act, the commission, if requested to do so, shall cause to be furnished to the person a short statement of the reasons for the decision.
(2)The communication to a person of a decision referred to in subsection (1), other than a decision in relation only to the provision of legal advice or duty lawyer services, shall be effected—
(a)if the matter to which the decision relates was dealt with on behalf of the person by a private legal practitioner—by giving to the private legal practitioner, or by sending to the private legal practitioner by post to the address of the private legal practitioner last known to the commission, a document setting out the terms of the decision and particulars of the right of the person to have the decision reconsidered and reviewed in accordance with section 36; and
(b)in any other case—by giving such a document to the person or by sending such a document to the person—
(i)by post to the address of the person last known to the commission; or
(ii)in any other way authorised by the person.
Part 5ADispute resolution
35ADefinitions—pt 5A
In this part:
approved negotiation means a program for dispute resolution that—
(a)is approved by the commission; and
(b)consists of a structured negotiation process; and
(c)uses a convenor to assist parties to a dispute to settle the dispute.
convenor means a person to whom a dispute has been referred for approved negotiation.
negotiation session means a meeting that forms part of approved negotiation and includes steps to arrange or follow-up the meeting.
35BPower of commission to provide approved negotiation
The commission may provide approved negotiation to all parties in a matter or proceeding whether or not a party is receiving legal assistance from the commission for the matter or proceeding.
35CExpenses of dispute resolution
(1)The commission may, to partly or fully meet the costs associated with approved negotiation in a matter or proceeding—
(a)use money available to the commission; or
(b)require a legally assisted person, or another party, in the matter or proceeding to partly or fully meet the costs.
(2)An amount required to be paid under subsection (1) (b)—
(a)is a debt owing to the commission; and
(b)must be paid in the time and way stated by the commission.
NoteAn amount owing under a law may be recovered as a debt in a court of competent jurisdiction or the ACAT (see Legislation Act, s 177).
35DConfidentiality of negotiation
A convenor must not disclose information obtained in a negotiation session to a person who is not a party to the session (a nonparticipant) unless—
(a)the person who provided the information to the convenor consents to the information being disclosed to the nonparticipant; or
(b)the information is necessary for the provision or administration of legal assistance and is being disclosed to any of the following:
(i)the board;
(ii)the chief executive officer;
(iii)a committee established under this Act;
(iv)a member of the staff of the commission; or
(c)the following apply:
(i)the information is necessary so that any party or parties to the session can be referred to another dispute resolution service (a related service) that may be able to assist in the resolution of the dispute between the parties, or in some other way;
(ii)all parties to the session consent to the information being disclosed to the related service; or
(d)the disclosure of the information is reasonably necessary to prevent or minimise injury to a person or damage to property; or
(e)the convenor is required to disclose the information under a law of the Territory or Commonwealth.
35EAdmissibility of evidence
(1)Evidence of anything said or done at a negotiation session, including a document prepared at or for the session, is not admissible in evidence in any proceeding in a court or tribunal unless the parties in attendance at the session consent to the admission of the evidence.
(2)In this section:
document includes a copy of, or an extract from, a document.
Earlier republications
Some earlier republications were not numbered. The number in column 1 refers to the publication order.
Since 12 September 2001 every authorised republication has been published in electronic pdf format on the ACT legislation register. A selection of authorised republications have also been published in printed format. These republications are marked with an asterisk (*) in column 1. Electronic and printed versions of an authorised republication are identical.
Republication No Amendments to Republication date 1 A1992‑53 18 September 1992 2 A1993‑90 31 January 1994 3 A1994‑81 28 February 1995 4 A1996‑26 1 July 1996 5 A1996‑26 30 November 1996 6 A1997‑97 31 December 1997 7 A2001‑56 18 February 2002 7 (RI) A2001‑56 ‡ 11 February 2003 8 A2003‑41 9 October 2003 9 A2004‑15 9 April 2004 10 A2004‑60 10 January 2005 11* A2005‑12 18 March 2005 12 A2005‑52 1 January 2006 13 A2005‑52 19 March 2006 14 A2006‑25 1 July 2006 15 A2007‑3 12 April 2007 16 A2007‑16 11 July 2007 17 A2007‑28 1 October 2007 18 A2008‑14 19 May 2008 19 A2008‑37 2 February 2009 20* A2009‑19 29 September 2009 21 A2010‑30 28 September 2010 22 A2010‑48 26 November 2010 23 A2011‑5 25 February 2011 24 A2011‑28 21 September 2011 25 A2011‑52 12 December 2011 26 A2012‑13 12 April 2012 27 A2012‑13 28 May 2012 28 A2012‑13 30 September 2012 29 A2013-11 4 April 2013 30 A2015-52 10 December 2015 31 A2016-49 24 August 2016 32 A2016‑52 1 September 2016 33 A2017-14 24 May 2017 34 A2018‑42 22 November 2018 35 A2019‑17 21 June 2019 36 A2019‑42 14 November 2019 ‡ includes retrospective amendments by A2002‑49
Expired transitional or validating provisions
This Act may be affected by transitional or validating provisions that have expired. The expiry does not affect any continuing operation of the provisions (see Legislation Act 2001, s 88 (1)).
Expired provisions are removed from the republished law when the expiry takes effect and are listed in the amendment history using the abbreviation ‘exp’ followed by the date of the expiry.
To find the expired provisions see the version of this Act before the expiry took effect. The ACT legislation register has point-in-time versions of this Act.
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