Legal Aid Act Amendment Act 1989 (Qld)

970 LEGAL AID ACT AMENDMENT ACT No. 73 of 1989 ANALYSIS OF CONTENTS 1. Short title and citation 2. Commencement 3. Amendment of s. 6. Interpretation 4. Amendment of s. 8. Constitution of Commission 5. Amendment of s. 10. Powers of Commission 6. New s. l0A Delegation by Commission 7. Amendment of s. 13. Guidelines for provision of assistance 8. Amendment of s. 27. Determination of application for legal assistance 9. Amendment of s. 29. Circumstances in which legal assistance may be provided 10. Repeal of and new s. 32 Conditions imposed with respect to grant of legal assistance 11. Amendment of s. 33. Arranging for services of private legal practitioners 12. Amendment of s. 34. Entitlement of legally assisted person to costs in proceedings 13. New ss. 34A and 34B Entitlement of Commission to repayment of costs of legal assistance Variation of requirements with respect to payment to Commission 14. Amendment of s. 36. Notification of decisions 15. Amendment of s. 37. Reconsideration of decisions 16. Repeal of and new s. 40 Function of Review Committee 17. Amendment of s. 41A. Review by Commission 18. New s. 44A Return in respect of moneys held in trust where person beneficially entitled not identified or located 19. Amendment of s. 50. Tenure of office 20. Amendment of s. 51. Remuneration and allowances 21. Amendment of s. 53. Resignation 22. Amendment of s. 54. Removal from office 23. Amendment of s. 61. Acting appointments 24. Amendment of s. 62. Terms and conditions generally 25. Amendment of s. 81. Secrecy

971 urunslanb ANNO TRICESIMO OCTAVO ELIZABET HAE SECU ND AE REGINAE No. 73 An Act to amend the Legal Aid Act 1978- 1988 in certain particulars [ASSENTED TO 24TH AUGUST, 1989]

972 Legal Aid Act Amendment Act 1989, No. 73 BE IT ENACTED by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows:- 1. Short title and citation . (l,) This Act may be cited as the Legal Aid Act Amendment Act 1989. (2) In this Act the Legal Aid Act 1978-1988 is referred to as the Principal Act. (3) The Principal Act as amended by this Act may be cited as the Legal Aid Act 1978-1989. 2. Commencement . (1) Section (1) and this section shall commence on the day this Act is assented to for and on behalf of Her Majesty. (2) Except as provided by subsection (1), the provisions of this Act shall commence on a day appointed by Proclamation. The day so appointed is in this Act referred to as the commencement of this Act. 3. Amendment of s. 6. Interpretation . Section 6 of the Principal Act is amended, in subsection (1), by inserting in the definition "legally assisted person" after the words "person to whom" the words "(including a corporation to which)". 4. Amendment of s. 8. Constitution of Commission . (1) Section 8 of the Principal Act is amended by- (a) in subsection (1)- (i) inserting after paragraph (d) the following paragraphs:- "()) a Commissioner, nominated by the Minister, who is a public accountant registered under the Public Accountants Registration Act 1946-1988; (f) the Director who, ex officio, shall be a Commissioner,"; (ii) relettering the existing paragraphs (e) and (f) as paragraphs (g) and (h) respectively; (iii) in paragraph (g) as relettered by subparagraph (ii) omit the words "a Commissioner" and substitute the words "two Commissioners"; (iv) adding at the end of the subsection the following paragraph:- "At least one of the Commissioners nominated pursuant to paragraph (g) shall be a person resident in the State of Queensland."; (b) in subsection (2), inserting after the word "Commissioners" the words "(excluding the Director)"; (c) in subsection ( 4), omit the words "the Commissioner appointed pursuant to paragraph ( e) of subsection ( 1)" and substitute the words

Legal Aid Act Amendment Act 1989 , No. 73 973 "any Commissioner appointed pursuant to paragraph (g) of subsection (1) who is not a resident of Queensland". (2) The commencement of this Act shall not affect the appointment of Commissioners holding office immediately prior to that commencement, which Commissioners shall thereafter continue to hold office under and subject to the terms of their original appointment. 5. Amendment of s. 10 . Powers of Commission . Section 10 of the Principal Act is amended, in subsection (3), by adding at the end thereof the following words:- "For the purposes of this subsection, the Commission may pay private legal practitioners by authorizing them to retain contributions made to them by legally assisted persons pursuant to this Act.". 6. New s. 10A. The Principal Act is amended by inserting after section 10 the following section:- "10A. Delegation by Commission. (1) The Commission, either generally or otherwise as provided by the instrument of delegation, by writing under its seal, may delegate- (a) to the Director; (b) to a committee of one or more Commissioners, any of its powers under this Act, except this power of delegation. (2) A delegation of a power may be made subject to conditions or absolutely and shall not prejudice the making by the Commission of other delegations of the same power. (3) A power so delegated shall be exercised in accordance with the instrument of delegation and when so exercised shall be deemed to be exercised by the Commission. (4) A delegation of a power is revocable at the will of the Commission and does not prevent the exercise of the power by the Commission. (5) The Commission may rescind or vary any decision made in the exercise of a power delegated under this section.". 7. Amendment of s. 13. Guidelines for provision of assistance. Section 13 of the Principal Act is amended by (a) in paragraph (c) omitting the words "either or both of the conditions mentioned in section 32 (1)" and substituting the words "conditions referred to in subsections (1) and (2) of section 32 and the nature of the conditions"; (b) omitting paragraph (d) and substituting the following paragraph: "(d) in determining the amount of costs or disbursements or interest that will be required to be paid to the Commission under subsections (1) and (3) of section 34A;".

974 Legal Aid Act Amendment Act 1989, No. 73 8. Amendment of s. 27. Determination of application for legal assistance . Section 27 of the Principal Act is amended by- (a) in subsection (3), omitting paragraph (c) and substituting the following paragraph: "(c) any conditions referred to in subsections (1) and (2) of section 32 to which the provision of the legal assistance shall be subject. (b) in subsection (4B)- (i) in paragraph (a) omitting subparagraph (i) (B) and substituting the following subparagraph:- "(B) any conditions referred to in subsections (1) and (2) of section 32 to which the provision of the legal assistance shall be subject;"; (ii) in paragraph (b), omitting all words from and including "(iv) make" to and including "in accordance with section 32 (1)." and substituting the following words:- "(iv) make the provision of the legal assistance subject to any conditions referred to in subsections (1) and (2) of section 32; or (v) alter any condition to which the provision of the legal assistance is subject.". 9. Amendment of s. 29. Circumstances in which legal assistance may be provided . Section 29 of the Principal Act is amended, in subsection (2) by- (a) in paragraph ( a) inserting before the word " income" the words "assets and' ; (b) omitting the expression "," where it occurs at the end of paragraph (f) and substituting the expression " . " ; (c) inserting after paragraph (f) the following words:- "If the person in question is a corporation, in addition to the matters to which regard shall be had in accordance with the provisions of this subsection that are relevant and applicable to a corporation, regard shall be had to those matters that would be relevant if the application for legal assistance were made on behalf of the persons who are the directors and members of the Corporation."; (d) omitting all words from and including "but, without" to and including "interest of the person" and substituting the words "Without limiting the generality of the preceding provisions of this subsection, in the case of a person other than a corporation, the value of any interest he may have

Legal Aid Act Amendment Act 1989, No. 73 975 10. Repeal of and new s. 32. The Principal Act is amended by repealing section 32 and substituting the following section:- "32. Conditions imposed with respect to grant of legal assistance . (1) The granting under this Act of an application by a person for legal assistance , other than legal assistance to which section 31 (1) applies, may be on the basis that the assistance will be provided subject to such conditions as the Commission thinks fit, or in a case where a Legal Aid Committee or officer of the Commission makes the decision to grant the application, as that Committee or officer thinks fit. (2) Without limiting the generality of subsection (1), conditions imposed under that subsection may include- (a) conditions pursuant to which legal assistance may be terminated; (b) conditions pursuant to which, if a specified event occurs, the legally assisted person may be required to pay to the Commission the whole or part of the expense incurred by the Commission in providing assistance; (c) conditions requiring the legally assisted person to contribute to the expense or a specified kind of expense incurred or to be incurred by the Commission in providing the assistance; (d) conditions requiring that any property shall be charged or made security for the payment to the Commission of any moneys that the legally assisted person is or may become liable to pay to it. (3) If pursuant to a condition to which the provision of legal assistance to a person is subject, a contribution required to be made by him is given by or on his behalf to a solicitor acting on his behalf, the solicitor shall deal with the contribution in accordance with directions issued by the Commission. (4) A condition imposed with respect to the provision of legal assistance may be enforced against a person who is or has been a legally assisted person in any court of competent jurisdiction by action as if it were a condition of a contract entered by that person and any charge or security given pursuant to a condition may be enforced in any manner that would be available if the charge or security had been given inter partes. (5) Section 84 applies in relation to proceedings authorized by subsection (4) as it applies to proceedings for the recovery of any amount due to or recoverable by the Commission under this Act. Without limiting the foregoing, if pursuant to a condition to which the provision of legal assistance is subject a contribution is payable by a legally assisted person to a solicitor acting on his behalf, that solicitor with the consent of the Director, may take proceedings in his own name to recover the contributions so payable."

976 Legal Aid Act Amendment Act 1989, No. 73 11. Amendment of s. 33. Arranging for services of private legal practitioners . Section 33 of the Principal Act is amended by- (a) in subsection (2) (i) omitting the word "or" where it occurs at the end of paragraph elettering paragraph (c) as paragraph (d); (iii) inserting after paragraph (b) the following words:- "(c) suspend the name of a private legal practitioner from the lists maintained under subsection (1) for a period determined by the Commission, either generally or with respect to any specified classes of matters; or"; (b) inserting after subsection (2) the following words:- "(2A) It shall be competent to the Commission pursuant to subsection (2) to- (a) refuse to include in the lists maintained under subsection (1) the name of a private legal practitioner because he is the partner of a private legal practitioner whose name it has refused to include in, or removed or suspended from, the lists; (b) remove the name of a private legal practitioner from the lists maintained under subsection (1) because he is the partner of a private legal practitioner whose name it has removed from the lists; (c) suspend the name of a private legal practitioner from the lists maintained under subsection (1) for a period either generally or with respect to any specified classes of matters because he is the partner of a private legal practitioner whose name has been likewise suspended from the lists for that period."; (c) in subsection (3)- (i)inserting after the word "remove" the words "or suspend"; (ii) inserting after the word "removal" where it twice occurs, the expression and word ", suspension"; (d) inserting after subsection (3) the following subsection:- "(3A) The Commission shall determine procedures applicable in relation to hearings afforded to private legal practitioners pursuant to paragraph (b) of subsection (3) and may from time to time replace or vary those procedures. Upon being requested by any private legal practitioner to do so, the Commission shall inform him of the procedures applicable."; (e) in subsection (4), inserting after the word "removed where it occurs in paragraph (b) the words "or suspended";

Legal Aid Act Amendment Act 1989, No. 73 977 (f) in subsection (7), omitting the words "and their expertise in particular fields of law"; (g) in subsection (9), omitting paragraph (b) and substituting the following paragraph:- "(b) a person who is his partner, or who is employed in his office, not being in either case a person who the Commission has refused to include in, or has removed or suspended from, the list maintained under subsection (1)."; (h) inserting at the foot of subsection (18) the following words:- "Penalty: 50 penalty units or imprisonment for 6 months.". 12. Amendment of s. 34 . Entitlement of legally assisted person to costs in proceedings . Section 34 of the Principal Act is amended by omitting subsections (4) to (9) (both inclusive). 13. New ss. 34A and 34B . The Principal Act is amended by inserting after section 34 the following sections:- "34A. Entitlement of Commission to repayment of costs of legal assistance . (1) Where in respect of any matter in relation to which legal assistance has been provided under this Act to a person, the person's ownership of or entitlement to property is preserved, or he is entitled to recover property, by reason of a judgement in a proceedings or a settlement or compromise, he shall be liable to pay to the Commission an amount equal to so much of the money value of the property as the Director, having regard to guidelines determined by the Commission pursuant to paragraph (d) of section 13, 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 matter in respect of which legal assistance has been provided; and (b) any disbursements (including barrister's fees) and out-of-pocket expenses incurred in connexion with the provision of those services, exceeds the amount of the money value of any contribution made by the person to the Commission pursuant to conditions to which the provision of the legal assistance was subject. (2) In determining the amount that a legally assisted person is liable to pay under subsection (1) the Director shall have regard to- (a) the money value of property in respect of which the person's ownership or entitlement is preserved, or which is actually recovered, by reason of the judgement, settlement, or compromise in question;

978 Legal Aid Act Amendment Act 1989, No. 73 and (b) any failure by the legally assisted person to take action to recover property recoverable by reason of the judgement, settlement or compromise in question, including any failure to comply with a direction given to him by the Director under subsection (7). (3) The Commission may determine that interest shall be payable on an amount that a legally assisted person is liable to pay to the Commission under subsection (1) while it or part of it remains unpaid and where it does so the interest shall- (a) commence to be payable by the legally assisted person 30 days after communication of the determination to him; (b) be payable at the rate for the time being prescribed pursuant to section 73 of the Common Law Practice Act 1867-1981 in respect of a judgement of a court of record. (4) Any amount outstanding of the amount that a person is liable to pay to the Commission under subsections (1) and (3)- (a) may be recovered by the Commission by action as for a debt in any court of competent jurisdiction ; and (b) shall until payment be a first charge in favour of the Commission on any property such as is referred to in subsection (1) in respect of which the person's ownership or entitlement is preserved, or which is actually recovered, by reason of the judgement or settlement or compromise in question. The Commission may enforce a charge created by the operation of paragraph (b) in any manner that would be available if the charge had been given inter partes. Except in the case of a transfer or conveyance to a bona fide purchaser for value without notice, all conveyances and acts done to defeat, or purporting to operate so as to defeat, such a charge shall be void as against the Commission. (5) Where property actually recovered by a legally assisted person in respect of the matter in which he was legally assisted comes into the possession or control of a solicitor acting on behalf of the person, the solicitor shall retain possession or control of the property until the Director has made a determination under subsection (1) and has notified the solicitor in writing of his determination or until the Director consents otherwise in writing. (6) Where a legally assisted person is liable to pay to the Commission an amount of money under this section and the solicitor for the person has in his possession moneys actually recovered by the person in the matter in which he was legally

Legal Aid Act Amendment Act 1989, No. 73 979 assisted, the solicitors shall pay to the Commission out of the moneys or so far as they extend, the amount the legally assisted person is so liable to pay. The receipt given by the Commission in return for moneys paid to it by a solicitor under this subsection shall constitute a discharge to the solicitor in respect of the moneys. (7) The Director may give directions to a legally assisted person requiring him to take action specified in the directions to ensure that property such as is referred to in subsection (1), that the legally assisted person is entitled to recover by reason of the judgement, settlement or compromise in question, is actually recovered by him. (8) If a legally assisted person refuses or fails to comply with directions given under subsection (7), the director may by writing under his hand direct him to assign his right to recover the property in question to the Commission within 21 days after the day on which the direction is given. (9) If a legally assisted person fails to comply with a direction under subsection (8), the legally assisted person shall be deemed to have assigned to the Commission his right to recover the property in question at the expiration of the period referred to in that subsection and thereafter for the purpose of recovering the property, the Commission shall stand in place of the legally assisted person and may use all the remedies and, if necessary, the name of the legally assisted person in any proceeding whatsoever. (10) For the purposes of this section- (a) the term "property" includes real and personal property and any estate or interest in any property real or personal, and any debt, and any thing in action, and any other right or interest; (b) the term "judgement" includes any order; (c) a reference to a legally assisted person includes a reference to a person to whom legal assistance is provided under this Act but who, prior to the finalization of the matter in respect of which legal assistance is provided, ceases to be a recipient of such legal assistance; (d) an ex gratia payment made to a legally assisted person in relation to any matter in respect of which legal assistance has been provided to him shall be taken to be an amount recovered by him in respect of the matter in which the legal assistance was provided. 34B. Variation of requirements with respect to payment to Commission . (1) In a case where the Director considers it appropriate to do so having regard to the personal circumstances of a person liable to pay to the Commission an amount of money

980 Legal Aid Act Amendment Act 1989, No. 73 under section 34A, the Director may enter into an agreement with the person under which- (a) the person is permitted to use the amount or part thereof to acquire a property in which to reside and the payment of the amount to the Commission is postponed; (b) the person having been so permitted to use the amount or part thereof to acquire a property in which to reside, is permitted to dispose of that property and acquire in lieu thereof another property in which to reside and the payment of the amount or part thereof to the Commission is further postponed; (c) the person is permitted in any other case to postpone the payment of the amount to the Commission for a stipulated period or to pay the amount or part thereof by instalments of stipulated amounts over a stipulated period. (2) In a case where the Director considers it is appropriate to do so having regard to the personal circumstances of a person by whom or on whose behalf there is paid any amount the person is liable to pay under subsections (1) and (3) of section 34A, the Director may enter into an agreement with the person under which- (a) the amount or part thereof so paid is paid back to that person by the Director for a stipulated purpose; and (b) the amount so paid back is paid again to the Commission by the person in accordance with stipulations of the agreement. Moneys in the Fund paid to a person under this subsection shall be taken to have been applied for a purpose within the meaning of paragraph (e) of section 44. (3) The Commission may determine guidelines to be applied in connexion with the entering into of agreements by the Director under this section, and where it does so, agreements entered into by the Director under this section shall be in accordance with the guidelines. (4) Before entering into an agreement with a person under this section under which a person is permitted to use an amount that has been paid to the Commission or that he is liable to pay to the Commission for the purpose of acquiring a property in which to reside, the Director shall satisfy himself that a charge or other appropriate and adequate form of security subsists or is provided for, either pursuant to this Act or other provision of law or by provision contained in the agreement, for better assuring the payment of any outstanding amount the person is liable to pay the Commission under section 34A or the agreement.".

Legal Aid Act Amendment Act 1989, No. 73 981 14. Amendment of s. 36. Notification of decisions . Section 36 of the Principal Act is amended in subsection (1) by- (a) omitting paragraph (b) and substituting the following words:- "(b) the amount that a legally assisted person is liable to pay to the Commission under subsection (1) of section 34A; (c) the amount of any interest that a legally assisted person is liable to pay to the Commission under subsection (3) of section 34A;"; (b) relettering the existing paragraph (c) as paragraph (d). 15. Amendment of s. 37. Reconsideration of decisions . Section 37 of the Principal Act is amended by- (a) in subsection (1), omitting the words "or 29 (2A)" and substituting the words ", 29 (2A) or 34A (3)"; (b) in subsection (2), omitting the expression "34 (4)" where it occurs in paragraph (a) and substituting the expression "34A (1)". 16. Repeal of and new s . 40. The Principal Act is amended by repealing section 40 and substituting the following section:- "40. Function of Review Committee . The functions of a Review Committee are- (a) to review decisions referred to the Review Committee under section 37 (3) or (5); (b) to bring to the notice of the Commission through the Director any matter arising before the Review Committee or coming to its knowledge that it considers is a proper matter to bring to the Commission's notice and to make such recommendations with respect thereto as it considers appropriate.". 17. Amendment of s. 41A. Review by Commission. Section 41A of the Principal Act is amended in subsection (4) by omitting the words "andthis section shall not construed as requiring the Commission to exercise that power in any particular case" and substituting the following words:- "and nothing in this Act shall be construed as- (a) conferring upon any person a right to appeal to the Commission in relation to any decision made under this Act, or to have referred to the Commission any decision made under this Act, for the purpose of the Commission exercising its power under this section; or (b) imposing upon the Commission a duty to consider the exercise of, or to exercise, its power under this section in any particular case".

982 Legal Aid Act Amendment Act 1989, No. 73 18. New s. 44A. The Principal Act is amended by inserting after section 44 the following section:- "44A. Return in respect of moneys held in trust where person beneficially entitled not identified or located . (1) Not later than the last day of October in each year the Commission shall lodge with the Under Secretary, Department of Justice, a return in writing setting out particulars of all moneys held by it on the last day of September in the year in question in trust for persons whom the Commission cannot identify or locate. (2) The return shall provide information in respect of each case as to the circumstances under which the moneys came into the hands of the Commission and steps taken by it to identify or locate the person for whom the moneys are held in trust. (3) The Minister, if satisfied a person for whom moneys are held in trust by the Commission cannot be identified or located and that reasonable efforts have been made by the Commission to identify or locate the person, may authorize the Commission to transfer themoneys from the account wherein they are held in trust to the Fund. (4) Moneys so transferred pursuant to the Minister's authorization shall be applied in accordance with the provisions of this Act relating to the application of moneys in the Fund. (5) If a person for whom moneys transferred to the Fund pursuant to subsection (3) were held in trust by the Commission subsequently requests payment of the money from the Commission, it shall pay to him from the Fund an amount equivalent to the amount that had been held in trust for him prior to its transfer to the Fund. 19. Amendment of s. 50 . Tenure of office. Section 50 of the Principal Act is amended by inserting before the words "holds office" the words ", other than the Director,". 20. Amendment of s. 51. Remuneration and allowances . Section 51 of the Principal Act is amended by inserting after the words "A Commissioner" the words ", other than the Director,". 21. Amendment of s. 53. Resignation . Section 53 of the Principal Act is amended by inserting after the words "A Commissioner" the words ", other than the Director,". 22. Amendment of s. 54. Removal from office. Section 54 of the Principal Act is amended by adding at the end thereof the following subsection:- "(3) This section does not apply to or in relation to the Commissioner who is also the Director.". 23. Amendment of s. 61 . Acting appointments . Section 61 of the Principal Act is amended in subsection (6) by inserting at the end of the subsection the words but a person appointed to act in the office of the Director shall not be a Commissioner".

Legal Aid Act Amendment Act 1989, No. 73 983 24. Amendment of s. 62. Terms and conditions generally. Section 62 of the Principal Act is amended by- (a) in subsection (1), omitting the words "Public Service Board" and substituting the words "chief executive of the department within which this Act is administered"; (b) in subsection (2), omitting the words "Act 1922-1976" and substituting the words "Management and Employment Act 1988". 25. Amendment of s. 81 . Secrecy. Section 81 of the Principal Act is amended by- (a) omitting subsection ( 2A) and substituting the following subsection:- "(2A) Nothing in subsection ( 2) precludes a person from producing a document , or divulging or communicating information, to- (a) the Bar Association of Queensland; (b) the Barristers ' Board constituted under a Rule of Court made pursuant to The Supreme Court Act of 1921 as amended; (c) The Statutory Committee of the Queensland Law Society Incorporated; (d) the Queensland Law Society Incorporated; (e) the Solicitors Disciplinary Tribunal established under The Queensland Law Society Act of 1952 as amended; (f) The Solicitors ' Board constituted under a Rule of Court made pursuant to The Supreme Court Act of 1921 as amended; (g) a legal practitioner or other person appointed to chair a legal aid conference convened by the Director with a view to the resolution of a dispute involving a person who has applied for legal assistance or been granted legal assistance; or (h) with the consent of the Minister, any other person or body of persons if, in the opinion of the Commission, it is in the public interest that the document be produced or the information be divulged or communicated."; (b) in subsection (2B), omitting the word "anonimity"and substituting the word "anonymity".