Legal Aid Amendment Act 2005 (ACT)

Legal Aid Amendment Act 2005

A2005-12

Contents

Page

1. Name of Act  2

2. Commencement  2

3. Legislation amended  2

4. Interpretation for Act

   
   

   Section 5, definitions of legal aid committee and member of a legal aid committee      2

5. Constitution of commission

   
   

   Section 7 (1) (c)  2

6. Section 7 (1)  2

7. Section 7 (6)  2

8. Guidelines for provision of assistance

   
   

   New section 12 (ab)  3

9. Section 12  3

10. Professional conduct by officers of commission

    
    

    Section 13 (4)  3

11. Establishment and functions of legal aid committees

    
    

    Part 3  3

12. Rights of officers of commission in relation to legal practice

    
    

    Section 22 (8)  3

13. Section 22  3

14. Legal practitioner on record

    
    

    Section 23 (2)  3

15. Application for legal assistance

    
    

    Section 25 (1)  4

16. Section 25  4

17. Sections 26 and 27  4

18. Circumstances in which legal assistance may be provided

    
    

    Section 28 (1)  6

19. Section 28  7

20. Legal assistance under the convention

    
    

    Section 28A (1)  7

21. New section 30A  7

22. Security for payment of contribution

    
    

    Section 31A (1)  8

23. Arranging for services of private legal practitioners

    
    

    Section 32 (1)  8

24. Section 32 (11)  8

25. Section 32  8

26. New section 32AA  9

27. Payment by commission of costs awarded against legally assisted persons

    
    

    Section 34 (2)  9

28. Section 34 (3)  10

29. Notification of decisions

    
    

    Section 35 (1)  10

30. Reconsideration of decision

    
    

    Section 36 (1) (e)  10

31. Section 36 (4) (b)  10

32. Section 36 (4)  10

33. Decision of review committee

    
    

    Section 40 (1)  11

34. Acting president of commission

    
    

    Section 53  11

35. Meetings

    
    

    Section 54 (10)  11

36. Interests to be disclosed

    
    

    Section 55 (3)  11

37. Section 62  11

38. Administrative provisions relating to legal aid committees

    
    

    Part 9  12

39. Liabilities of commission and Territory

    
    

    Section 91 (4)  12

40. Secrecy

    
    

    Section 92 (1)  12

41. False or misleading statements

    
    

    Section 95 (2)  12

42. Certificate as to amounts owing to commission

    
    

    Section 96  12

43. New part 14  13

Legal Aid Amendment Act 2005

A2005-12

An Act to amend the Legal Aid Act 1977

The Legislative Assembly for the Australian Capital Territory enacts as follows:

1. Name of Act

   This Act is the Legal Aid Amendment Act 2005.

2. Commencement

   This Act commences on the day after its notification day.

   NoteThe naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

3. Legislation amended

   This Act amends the Legal Aid Act 1977.

4. Interpretation for Act
   Section 5, definitions of legal aid committee and member of a legal aid committee

   omit

5. Constitution of commission
   Section 7 (1) (c)

   omit

6. Section 7 (1)

   renumber paragraphs when Act next republished under Legislation Act

7. Section 7 (6)

   omit

8. Guidelines for provision of assistance
   New section 12 (ab)

   insert

   (ab)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

9. Section 12

   renumber paragraphs when Act next republished under Legislation Act

10. Professional conduct by officers of commission
    Section 13 (4)

    omit

11. Establishment and functions of legal aid committees
    Part 3

    omit

12. Rights of officers of commission in relation to legal practice
    Section 22 (8)

    omit

13. Section 22

    renumber subsections when Act next republished under Legislation Act

14. Legal practitioner on record
    Section 23 (2)

    omit

15. Application for legal assistance
    Section 25 (1)

    substitute

    (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)).

    (1A)However, subsection (1) does not apply to legal assistance consisting of—

    (a)legal advice; or

    (b)duty lawyer services; or

    (c)minor legal assistance.

16. Section 25

    renumber subsections when Act next republished under Legislation Act

17. Sections 26 and 27

    substitute

18. 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).

19. 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.

20. Circumstances in which legal assistance may be provided
    Section 28 (1)

    substitute

    (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.

    (1A)However, subsection (1) does not apply to legal assistance consisting of—

    (a)legal advice; or

    (b)duty lawyer services; or

    (c)minor legal assistance.

21. Section 28

    renumber subsections when Act next republished under Legislation Act

22. Legal assistance under the convention
    Section 28A (1)

    substitute

    (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.

23. New section 30A

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

NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(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.

1. Security for payment of contribution
   Section 31A (1)

   substitute

   (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. Arranging for services of private legal practitioners
   Section 32 (1)

   substitute

   (1)The commission must keep a list of private legal practitioners who have told the commission that they are willing to act for legally assisted people—

   (a)generally; or

   (b)in particular kinds of matters; or

   (c)in particular courts or before particular tribunals.

3. Section 32 (11)

   omit

4. Section 32

   renumber subsections when Act next republished under Legislation Act

5. New section 32AA

   after section 32, insert

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 legal practitioner must give an invoice for the services to the commission within 6 months after the day the matter is finalised.

(3)The commission must pay the invoice in accordance with the fees decided under section 32.

(4)If the private legal practitioner does not give the commission an invoice for the services in accordance with subsection (2), the commission is not obliged to pay the legal practitioner for the legal services.

(5)The commission is not obliged to pay for legal services provided for a person before the person applies for legal assistance.

(6)However, the commission may pay for legal services mentioned in subsection (5) if the legal practitioner has given the chief executive officer notice that the person intends to apply for legal assistance for the services.

1. Payment by commission of costs awarded against legally assisted persons
   Section 34 (2)

   substitute

   (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 (c).

2. Section 34 (3)

   omit

   or the legal aid committee, as the case may be,

3. Notification of decisions
   Section 35 (1)

   omit

   commission, an officer of the commission or a legal aid committee

   substitute

   commission or an officer of the commission

4. Reconsideration of decision
   Section 36 (1) (e)

   substitute

   (e)requiring an applicant for legal assistance to pay expenses incurred by an officer of the commission in making inquiries, or obtaining, reports or advice, to decide an application for legal assistance; or

5. Section 36 (4) (b)

   omit

6. Section 36 (4)

   renumber paragraphs when Act next republished under Legislation Act

7. Decision of review committee
   Section 40 (1)

   omit

   commission, an officer of the commission or a legal aid committee

   substitute

   commission or an officer of the commission

8. Acting president of commission
   Section 53

   omit

9. Meetings
   Section 54 (10)

   omit

10. Interests to be disclosed
    Section 55 (3)

    omit

11. Section 62

    substitute

12. Delegation of commission’s power to appoint

    (1)The commission may delegate to the president its power to appoint a person to act in the office of chief executive officer.

    (2)The commission may delegate to the chief executive officer its power to appoint a person to act as an assistant executive officer.

    Note 1For the making of delegations and the exercise of delegated functions, see the Legislation Act, pt 19.4.

    Note 2For the making of appointments (including acting appointments), see the Legislation Act, pt 19.3.

13. Administrative provisions relating to legal aid committees
    Part 9

    omit

14. Liabilities of commission and Territory
    Section 91 (4)

    omit

    of a legal aid committee,

15. Secrecy
    Section 92 (1)

    omit

    a member of a legal aid committee,

16. False or misleading statements
    Section 95 (2)

    omit

    , or by a person acting in the office of chief executive officer,

17. Certificate as to amounts owing to commission
    Section 96

    omit

    , or by a person acting in the office of chief executive officer,

18. New part 14

    insert

Part 14Transitional

1. Secrecy—members of former legal aid committee

   (1)Despite the amendment of this Act by the Legal Aid Amendment Act 2004 (the amending Act), the Act, section 92 as in force immediately before the commencement of the amending Act continues to apply to a person who has been a member of a legal aid committee.

   (2)Subsection (1) is a law to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies.

   (3)This part expires 1 year after the day the amending Act commences.

Endnotes

1. Presentation speech

   Presentation speech made in the Legislative Assembly on 17 February 2005.

2. Notification

   Notified under the Legislation Act on 17 March 2005.

3. Republications of amended laws

   For the latest republication of amended laws, see certify that the above is a true copy of the Legal Aid Amendment Bill 2005, which was passed by the Legislative Assembly on 15 March 2005.

   Clerk of the Legislative Assembly

   © Australian Capital Territory 2005