Legal Aid (Amendment) Act 1998 (Vic)

Legal Aid (Amendment) Act 1998

Act No. 93/1998

TABLE OF PROVISIONS

Section	Page
PART 1—PRELIMINARY	1

1.	Purposes	1
2.	Commencement	2
3.	Principal Act	2

PART 2—PROCEEDINGS FOR REVIEW UNDER THE
CRIMES (MENTAL IMPAIRMENT AND UNFITNESS TO BE

TRIED) ACT 1997 3

4. Means test waived in certain circumstances 3

PART 3—LEGAL AID FUND 4

5.	Certain contributions deemed not to be trust money	4
6.	New section 27A inserted	4

27A. Refund of money paid in accordance with section 27 4

PART 4—MATTERS RELATING TO PRACTITIONERS 5

7.	New sub-sections (4) to (16F) substituted	5
8.	Appeal to Supreme Court removed	10
9.	New section 30A inserted	10

30A. Immunity of participants 10

10.	Repeal of section 40—complaints mechanism	11
11.	Supreme Court—limitation of jurisdiction	11
12.	Transitional provisions	11

52.          Transitional provisions: Legal Aid (Amendment)

Act 1998 11

PART 5—FUNDING ARRANGEMENTS AND AGREEMENTS 13

13.	New definition inserted	13
14.	Attorney-General may give directions	13
15.	Power to enter legal aid arrangements	14
49AA. VLA's power to enter legal aid arrangements	14
16.	Amendments consequential on new section 49AA	14

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Section Page

17. Repeal of spent provisions relating to funding 15

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NOTES 17

ii

Victoria

No. 93 of 1998

Legal Aid (Amendment) Act 1998†

[Assented to 24 November 1998]

The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY

1. Purposes

The main purposes of this Act are—

(a)	to provide for the waiver of a "means test" in relation to legal assistance for certain matters under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997;
(b)	to make provision for certain money to be paid directly to the Legal Aid Fund;

Legal Aid (Amendment) Act 1998

Act No. 93/1998 s. 2

(c)	to clarify the powers of VLA in respect of panels of legal practitioners;
(d)	to provide for VLA to enter into legal aid arrangements.

2. Commencement

(1) This Act (except Parts 3 and 4) comes into

operation on the day on which it receives the

Royal Assent.

(2) Subject to sub-section (3), the provisions of

Parts 3 and 4 of this Act come into operation on a day or days to be proclaimed.

(3) If a provision referred to in sub-section (2) does

not come into operation before 1 January 1999, it

comes into operation on that day.

3. Principal Act

In this Act, the Legal Aid Act 1978 is called the	No. 9245. Reprint No. 3
Principal Act.	as at 1 July 1998. Further
amended by No. 61/1989.

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Legal Aid (Amendment) Act 1998

s. 4 Act No. 93/1998

PART 2—PROCEEDINGS FOR REVIEW UNDER THE
CRIMES (MENTAL IMPAIRMENT AND UNFITNESS TO BE

TRIED) ACT 1997

4. Means test waived in certain circumstances

In section 24 of the Principal Act, after sub- section (2) insert—

"(2A) In the making of a decision whether legal

assistance is to be provided to a person who is subject to a supervision order under Part 5 of the Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997 (including
a person who is deemed to be subject to a
custodial supervision order by force of
clause 2 of Schedule 3 to that Act) in relation
to any proceeding under that Act with
respect to that supervision order, VLA is to
have regard only to the matters referred to in

sub-section (1)(b).".

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Legal Aid (Amendment) Act 1998

Act No. 93/1998 s. 5

PART 3—LEGAL AID FUND

5. Certain contributions deemed not to be trust money

In section 27 of the Principal Act, after sub-
section (3) insert—

"(4) All money paid by persons in accordance

with a condition imposed under sub-section
(1) on account of costs or out-of-pocket
expenses in advance of legal assistance to be

provided by VLA—

(a) is not required to be treated as trust money within the meaning of the Legal Practice Act 1996, despite anything to the contrary in that Act; and

(b) must be paid into the Fund.".

6. New section 27A inserted

After section 27 of the Principal Act insert—

"27A. Refund of money paid in accordance with

section 27

If a person has paid money in accordance with a condition imposed under section 27 on account of costs or out-of-pocket expenses in advance of legal assistance to be provided by VLA and that assistance is not provided, VLA must refund to that person any unexpended part of that money out of the Fund.".

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Legal Aid (Amendment) Act 1998

s. 7 Act No. 93/1998

PART 4—MATTERS RELATING TO PRACTITIONERS

7. New sub-sections (4) to (16F) substituted

In section 30 of the Principal Act, for sub-sections
(4) to (16) substitute—

"(4) A sole practitioner, firm or incorporated

practitioner may apply to VLA for inclusion
on a referral panel.

(5) A sole practitioner, firm or incorporated practitioner is not eligible to apply under sub-section (4) during any period—

(a) incorporated practitioner is disqualified

for which the sole practitioner, firm or section; or

(b) of removal under sub-section (10) or (11).

(6) On receiving an application under sub-

section (4), VLA may—

(a)	accept the application and include the name of the sole practitioner, firm or incorporated practitioner on a referral panel; or
(b)	application and may disqualify the sole practitioner, firm or incorporated practitioner from making another

subject to sub-section (14), refuse the specified period.

(7) VLA must prepare and maintain panels of

names of sole practitioners, firms and
incorporated practitioners from the names of
the sole practitioners, firms and incorporated

Legal Aid (Amendment) Act 1998

Act No. 93/1998 s. 7

practitioners who have applied under sub-

section (4) and been accepted for inclusion.

(8) If the name of a firm or incorporated

practitioner is included on a referral panel,
the names of all the partners or directors and
the practitioners who are employed by the
firm or incorporated practitioner are, by
force of this sub-section, also included on the
panel, except the name of any of those
partners, directors or practitioners employed
by the firm or incorporated practitioner
which has been removed under this section.

(9) If the name of a sole practitioner is included

on a referral panel, the names of all the
practitioners who are employed by the sole
practitioner are, by force of this sub-section,
also included on the panel, except the name
of any of those practitioners employed by the
sole practitioner which has been removed
under this section.

(10) Subject to sub-section (15), VLA may

remove from a referral panel for a specified

period the name of—

(a) any sole practitioner; or

(b) any firm or incorporated practitioner; or

(c)	any practitioner who is the employee of a sole practitioner; or
(d)	any partner or director of, or practitioner who is an employee of, a firm or incorporated practitioner.

(11) Without limiting VLA's powers to refuse an

application made under sub-section (4) or
remove a name from a referral panel, VLA
may—

Legal Aid (Amendment) Act 1998

s. 7 Act No. 93/1998

(a) refuse an application made under sub- section (4) or remove from a referral panel the name of—

(i)  a sole practitioner, if the name of a practitioner who is his or her employee is removed from the panel; or

(ii)  a firm or incorporated practitioner if the name of a partner or director of, or a practitioner who is an

employee of, the firm or
incorporated practitioner is
removed from the panel;

(b) of any sole practitioner, firm or
incorporated practitioner who or which
habitually takes an excessive time to

remove from a referral panel the name offences.

(12) VLA may amend a referral panel—

(a)	to remove the name of any sole practitioner, firm or incorporated practitioner who or which has ceased to practise; or
(b)	to record any change in name of a sole practitioner, firm or incorporated practitioner; or
(c)	to remove a name in accordance with a request under sub-section (13).

(13) A sole practitioner, firm or incorporated

practitioner may, by writing to VLA, request
that their name be removed from a referral
panel and VLA must comply with that
request.

Legal Aid (Amendment) Act 1998

Act No. 93/1998 s. 7

(14) Before refusing an application made under sub-section (4), VLA must—

(a) give written notice to the applicant setting out—

(i)  the reasons for the proposed refusal; and

(ii)  the period of any proposed disqualification; and

(b)

afford the applicant a reasonable why the application should not be refused or the disqualification should not be made.

(15) Before removing a name from a referral

panel under sub-section (10) or (11), VLA

must—

(a) practitioner, firm, incorporated
practitioner, partner, director or

give written notice to the sole reasons for the proposed removal; and

(b) afford that person a reasonable opportunity to be heard and show cause why the removal should not be made.

(16) A notice given to a firm or incorporated

practitioner under sub-section (14) or (15) may be given to any partner or director of the firm or incorporated practitioner.

(16A) If a person wishes to be heard in accordance

with sub-section (14) or (15), the panel
chairperson must appoint an independent
reviewer to hear and determine the matter of
the refusal, removal or disqualification.

Legal Aid (Amendment) Act 1998

s. 7 Act No. 93/1998

(16B) Subject to this Act and the regulations (if any), in hearing and determining a matter under this section the reviewer—

(a) may consider any relevant matters as grounds for removal, refusal or disqualification and is not limited to consideration of the grounds set out in the notice provided by VLA under sub- section (14)(a) or (15)(a);

(b) may—

(i)

confirm, vary or refuse to confirm disqualification; or

(ii) determination for the proposed

substitute his or her own disqualification—

and make a determination accordingly;

(c) may regulate his or her own proceedings.

(16C) The independent reviewer must determine a matter under this section as expeditiously as possible after the end of the hearing.

(16D) After hearing the matter, the independent

reviewer must advise VLA of his or her
determination.

(16E) An independent reviewer must keep records of his or her determinations and proceedings under this section.

(16F) VLA must give notice of its decision under

sub-section (6)(b), (10) or (11) or the
determination of the independent reviewer
under sub-section (16A) to the sole

Legal Aid (Amendment) Act 1998

Act No. 93/1998 s. 8

practitioner, firm, incorporated practitioner,

partner, director or employee concerned.".

8. Appeal to Supreme Court removed

In section 30 of the Principal Act, for sub-section
(18) substitute—

"(18) A decision of VLA or a determination of an

independent reviewer under this section is
final and not subject to appeal.

(18A) Nothing in sub-section (18) prevents the

taking of proceedings—

(a)	seeking the grant of any relief or remedy in the nature of certiorari, prohibition, mandamus or quo warranto or the grant of a declaration or an injunction; or
(b)	seeking any order under the Administrative Law Act 1978—

in respect of any decision of VLA or
determination of an independent reviewer

under this section.".

9. New section 30A inserted

After section 30 of the Principal Act insert—

"30A. Immunity of participants

In a proceeding before an independent reviewer under section 30—

(a)	a person representing a party has the same protection and immunity as a legal practitioner has in a proceeding in the Supreme Court; and
(b)	a party to the proceeding has the same protection and immunity as a party to a proceeding has in a proceeding in the

Supreme Court; and

Legal Aid (Amendment) Act 1998

s. 10 Act No. 93/1998

(c) a person appearing as a witness has the same protection and immunity as a witness has in a proceeding in the Supreme Court.".

10. Repeal of section 40—complaints mechanism

(1) Section 40 of the Principal Act is repealed.

(2) In section 19(1) of the Principal Act, paragraph

(d) is repealed.

11. Supreme Court—limitation of jurisdiction

After section 49B(3) of the Principal Act insert—
"(4) It is the intention of section 30(18) as

substituted by section 8 of the Legal Aid (Amendment) Act 1998 to alter or vary section 85 of the Constitution Act 1975.".

12. Transitional provisions

After section 51 of the Principal Act insert—

"52. Transitional provisions: Legal Aid

(Amendment) Act 1998

(1) Section 30 of this Act as in force

immediately before the commencement of Part 4 of the Legal Aid (Amendment) Act 1998 continues to apply to—

(a)	the taking of any action or the making of any decision by VLA under that section; and
(b)

the hearing and determination of any under that section; and

(c) any application to the Supreme Court under section 30(18)—

which had begun before that
commencement.

Legal Aid (Amendment) Act 1998

Act No. 93/1998 s. 12

(2) Despite the substitution of section 30(18) of

this Act by section 8 of the Legal Aid
(Amendment) Act 1998, an application may
be made to the Supreme Court under that
sub-section as in force immediately before
the commencement of section 8 of that Act
for an order setting aside an exclusion or
removal that occurred—

(a)	before the commencement of Part 4 of that Act; or
(b)	after the commencement of Part 4 of that Act but to which section 30 as in force immediately before that
commencement continues to apply by virtue of sub-section (1)—

and that application may be dealt with and determined as if section 30(18) of this Act had not been so substituted.".

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Legal Aid (Amendment) Act 1998

s. 13 Act No. 93/1998

PART 5—FUNDING ARRANGEMENTS AND AGREEMENTS

13. New definition inserted

In section 2(1) of the Principal Act insert—

' "legal aid arrangement" means an arrangement

with respect to the provision of legal aid

under which—

(a) the Commonwealth—

(i)

makes available amounts of aid; and

(ii)  specifies the legal aid VLA is to provide in consideration of those amounts of money, including any priorities to be observed by VLA in providing legal aid as between classes of persons or classes of

matters; and

(b) VLA provides that legal aid in accordance with that arrangement;'.

14. Attorney-General may give directions

(1) In section 12M(1) of the Principal Act, after

paragraph (b) insert—

"(c) the provision of legal aid by VLA in

accordance with a legal aid arrangement.".

(2) After section 12M(1) of the Principal Act

insert—

"(1A) The Attorney-General may only give a

direction under sub-section (1)(c) if that
direction has been requested in writing by
the Commonwealth Attorney-General after
the Commonwealth Attorney-General has

Legal Aid (Amendment) Act 1998

Act No. 93/1998 s. 15

consulted with the Attorney-General and

VLA.".

15. Power to enter legal aid arrangements

After section 49 of the Principal Act insert—

"49AA. VLA's power to enter legal aid

arrangements

(1) Despite anything to the contrary in section

49, VLA may enter into legal aid
arrangements.

(2) The Attorney-General must approve a legal aid arrangement before VLA enters into that arrangement.".

16. Amendments consequential on new section 49AA

(1) In the Principal Act—

(a)	in section 6(2)(f), after "State" (where first occurring) insert "under section 49";
(b)	in section 6(2), after paragraph (f) insert— "(fa) subject to this Act, enter into legal aid

arrangements and provide legal aid in accordance with those arrangements;";

(c) in section 7(c)—

(i)  after "in accordance with" insert "any legal aid arrangement and";

(ii) after "State" insert "under section 49";

(iii) omit "in that behalf";

(d)	in section 7(d), before "determine" insert "subject to any legal aid arrangement,"
(e)	in section 8(2), after paragraph (a) insert— "(ab) the requirements (if any) of any legal

aid arrangement;";
Legal Aid (Amendment) Act 1998

s. 17 Act No. 93/1998

(f)	in section 9, after "funds available" insert ", any legal aid arrangement";
(g)	in section 10(f), for "and 9" substitute ", 9 and 49AA";

(h) in section 32—

(i)

in sub-section (2), for "VLA" arrangement, VLA";

(ii)

in sub-section (2BA), after "this Act" subject to any legal aid arrangement";

(i)  in section 35(2A)(b), after "this Act" insert ", any legal aid arrangement";

(j) in section 36(2A)(b), after "this Act" insert ", any legal aid arrangement".

(2) In section 12 of the Principal Act, after sub-

section (3) insert—

"(4) The board must have regard to any legal aid

arrangement in carrying out its role under

sub-sections (2) and (3).".

(3) In section 24 of the Principal Act, after sub-

section (6) insert—

"(7) This section is subject to any legal aid

arrangement.".

17. Repeal of spent provisions relating to funding

In section 49(1) of the Principal Act—

(a) in paragraph (c), sub-paragraph (i) is repealed;

(b) paragraphs (d) and (e) are repealed;

(c) in paragraph (f), for ", (c), (d) or (e)" substitute "or (c)".

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Legal Aid (Amendment) Act 1998
Act No. 93/1998
Legal Aid (Amendment) Act 1998

Notes Act No. 93/1998

NOTES

†

Minister's second reading speech—

Legislative Assembly: 22 October 1998

Legislative Council: 12 November 1998

The long title for the Bill for this Act was "to amend the Legal Aid Act
1978 to provide for funding matters, to clarify powers in relation to legal

practitioners and for other purposes."

Constitution Act 1975:

Section 85(5) statement:

Legislative Assembly: 22 October 1998

Legislative Council: 12 November 1998

Absolute majorities:

Legislative Assembly: 11 November 1998

Legislative Council: 17 November 1998