Legal Aid Commission Amendment Act 1982 (WA)

WESTsttN AUSTRALIA.

LEGAL AID COMMISSION.

No. 126 of 1982.

AN ACT to amend the Legal Aid Commission Act

1976-1982.

[Assented to 10 December 1982.]

BE it enacted by the Queen's Most ExcellentMajesty, by and with the advice and consent

of the Legislative Council and the Legislative

Assembly of Western Australia, in this present Parliament assembled, and by the authority of the same, as follows:—

1. (1) This Act may be cited as the Legal Aid ncierclittietion.

Commission Amendment Act 1982.

107.6143 of

(2) In this Act the Legal Aid Commission Act

amended bY

1976-1982 is referred to as the principal Act.	Acts Nos. 60
of 1977, 8 and

The principal Act as amended by this Act 106 of 1979

113 of 1978,

(3)	t and 10 of

may be cited as the Legal Aid Commission Act 1982.

1976-1982.

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Section 3

repealed.	2. Section 3 of the principal Act is repealed.
Section 4
amended.	3. Section 4 of the principal Act is amended in

subsection (1) by

(a)	inserting, after the definition of "legal aid", the following definition-

" "legal aid authority" means a legal aid committee, the Director or a member of the staff authorized under section 36 (2); " ;

(b)	deleting ", 1904" in the definition of "Public Service Board" and substituting the following-

" 1978 " ; and

(c)	deleting the definition of "the Common- wealth Commission" and substituting the following definition

"the Commonwealth Council" means the Commonwealth Legal Aid Council established under section 4 of the Commonwealth Legal Aid Act 1977, as amended, of the Parliament of the Common- wealth; " •

Section 12

amended.

4. Section 12 of the principal Act is amended in subsection (2) by deleting "wholly or partly at the expense of" and substituting the following

at no expense to, or wholly or partly at the

expense of, " .

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Section 15

5. Section 15 of the principal Act is amended (a) in subsection (1) by deleting-

amended.

(i) in paragraph (d) "the Common- wealth Commission" in the two places where it occurs and substituting in each case the following-

" the Commonwealth Council " ;

(ii) in paragraph (d) "that Commission" in the two places where it occurs and substituting in each case the following-

" the Commonwealth Council " ;

(iii) in paragraph (g) "committees and officers of the Commission" and substituting the following-

" authorities " ;

(iv) in paragraph (i) "the Common- wealth Commission" and substitut- ing the following-

" the Commonwealth Coun-

cil " ; and

(v)

in paragraph (i) "committees and stituting the following-

" authorities " ;

and

(b)	by inserting, after subsection (1), the following subsection

(la) Whenever this Act confers a power, or imposes a duty, on the Com- mission to make a determination or to give a direction, that power or duty shall be deemed, unless the contrary intention appears, to include a power

(a) to revoke the determination or

direction;

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(b)	to revoke the determination or direction and substitute there- for a fresh determination or direction; or
(c)	to vary the determination or direction. " .

Section 21

amended.

6. Section 21 of the principal Act is amended

(a)	in subsection (1) by deleting "or industrial agreement under the Industrial Arbitration Act, 1912," and substituting the following-

" under the Industrial Arbitration Act 1979 " ; and

(b)	in subsection (2) by deleting ", 1904" and substituting the following-

" 1978 " .

Section 25

amended.

7. Section 25 of the principal Act is amended in subsection (8) by deleting "Chairman" and sub- stituting the following-

" chairman " .

Section 36

amended.

8. Section 36 of the principal Act is amended

(a)	by repealing subsection (2) and substitut- ing the following subsection

'C (2) Subject to subsection (4), an

application for legal aid shall, in accordance with the directions of the Commission under subsection (3), be decided by a legal aid committee, by the Director or by a member of the staff authorized by the Director to decide applications for legal aid. " ;

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(b)	in subsection (3) by deleting "an officer of the Commission" in paragraph (b) and sub- stituting the following-

" the Director or by a member of the staff authorized by the Director under sub- section (2) " ; and

(c)	by inserting, after subsection (3), the following subsection

(4) The Commission may, notwith- standing anything in this section, at any time itself refuse any application for legal aid. " .

9. Section 37 of the principal Act is amended— gfgag.7

(a) in subsection (3) by deleting "committee or an officer of the Commission" and sub- stituting the following-

" authority " ;

(b) in subsection (4) by deleting

(i) "committee or an officer of the Commission shall" and substituting the following-

" authority shall, subject to any direction given and in force under subsection (4a), " ; and

(ii)	"all relevant matters" and substitut- ing the following-

" all relevant factors " ;

by inserting, after subsection (4), the

(c)	following subsection

(4a) The Commission may, having regard to the amount of the moneys in the Fund available for the provision of legal assistance and to the financial

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commitments of the Commission from time to time, direct that a legal aid authority shall not under subsection (4) have regard to any factor specified in that direction in deciding whether it is reasonable in all the circumstances to provide legal aid to a person in a matter of a class specified in that direction. " ; and

(d) in subsection (5) by deleting

(i) in paragraph (b) "committee or an officer of the Commission" and sub- stituting the following-

" authority " ; and

(ii)	"committee or officer" and substitut- ing the following- " legal aid authority " .

Section 38	10. Section 38 of the principal Act is amended
amended.

(a)	in subsection (1) by deleting "Where a legal aid committee or an officer of the Commis- sion decides that legal aid should be provided to an applicant the committee or officer shall also decide" and substituting the following

t If a legal aid authority decides that

legal aid should be provided to an applicant therefor, the legal aid auth- ority shall determine " ; and

(b)	in subsection (2) by deleting "committee or an officer of the Commission" and sub- stituting the following-

" authority " .

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11. Section 39 of the principal Act is amended— =n12

(a) in subsection (1) by deleting-

(i) "committee or an officer of the Com- mission" and substituting the following-

" authority " ;

(ii) "committee or officer" in paragraph (a) and substituting the following-

" legal aid authority " ;

(iii) "committee or officer" in paragraph (b) and substituting the following-

" legal aid authority " ;

(iv) "a contribution towards" in subpara- graph (i) of paragraph (b) and sub- stituting the following-

" the whole or any part of " ;

(b) in subsection (2) by-

(i) deleting "or" at the end of paragraph (d);

(ii) deleting the full stop at the end of paragraph (e) and substituting a semi-colon; and

(iii) inserting, after paragraph (e), the following paragraphs-

" (f) in a case where the decision was made under section 49A (2)—by the legal aid auth- ority which made the original decision in the matter reviewed; or

(g)	in any case—by the Com- mission. " ;

(c)	in subsection (3) by deleting "contribution

or"; and

(d)	in subsection (4) by deleting "contribu- tion or".

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Section 40

amended.

12. Section 40 of the principal Act is amended

(a)	by inserting, after subsection (1), the following subsection

C' (la) If an assisted person exercises

his right to select a private practitioner under subsection (1) and the legal aid authority by which the decision to provide legal aid to the assisted person was made considers that the selection so made is not in the interests of the assisted person, that legal aid authority may set aside the selection so made and select on behalf of that assisted person another private practitioner from a panel of names prepared under this section. " ;

(b)	in subsection (2) by deleting "committee or officer of the Commission by which or by whom" and substituting the following-

" authority by which " ;

(i) inserting before "(2)" the following- " (la) or " ; and

(ii) deleting "committees and officers of the Commission" and substituting the following-

" authorities " ; and

(d) in subsection (4) by-

(i)	inserting, after "subsection (1)", the following

(1a)

(ii) deleting "rights of a" in paragraph (a) and substituting the following-

" rights of the selected " ; and

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(iii) inserting, after "permit the selected" in paragraph (c), the following-

" private " .

13. Section 46 of the principal Act is amended— amended?

(a) in the definition of "decision" by-

(i) deleting "or" at the end of paragraph (d); and

(ii) inserting, after paragraph (d), the following paragraph-

" (da) a decision under section

40 (1a); or " ;

(b)	in the definition of "person affected" by inserting, after paragraph (c), the following paragraph

CC (d) in the case of a decision referred

to in paragraph (da) of that inter- pretation—the assisted person or the private practitioner whose selection is set aside under section 40 (1a). " ; and

(c)	by deleting the definition of "responsible authority".

14. Section 47 of the principal Act is amended by gggfier.

inserting, after subsection (3), the following

subsection

(4) In this section

"responsible authority", in relation to a decision made by

(a)

a legal aid committee, means

the legal aid committee;

(b)

an officer of the Commission, means the officer of the Com- mission; or

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(c)	the Commission, means the Commission. " .

Section 48

repealed and	15. Section 48 of the principal Act is repealed
substituted.

and the following section is substituted-

Reconsidera-

tion of

48. (1) A person affected by a decision (2) On receiving a request made under subsection (1), the Director shall, if the decision to which that request relates was made by

decision.

may by notice in writing to the Director

request that the decision be reconsidered.

(a)	a legal aid committee, refer that decision to a legal aid committee;
(b)	the Director, himself reconsider that decision or refer that decision to a member of the staff or to a legal aid committee;
(c)	a member of the staff, himself reconsider that decision or refer that decision to a member of the staff or to a legal aid committee; or
(d)	the Commission, refer that decision to the Commission,

for reconsideration.

(3) When a decision is referred under sub- section (2) to a legal aid committee or member of the staff or to the Commission for reconsideration, the legal aid committee or member of the staff or the Commission, as the case requires, shall reconsider the decision.

(4) On reconsidering a decision under sub- section (2) or (3), a legal aid committee or officer of the Commission or the Commission, as the case requires

(a)	may confirm, vary or reverse the decision; and

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(b)	shall, in the manner prescribed in section 47 (2), communicate the result of the reconsideration to the person by whom the relevant request was made under subsection (1).

(5) Notwithstanding anything in this section, a legal aid committee or officer of the Commission or the Commission, as the case requires, may refuse to reconsider a decision if the relevant request was not received by the Director within 28 days from the day on which the decision was communicated to the person by whom that request was made under subsection (1), and shall, if it or he so refuses, communicate that refusal to that person in the manner prescribed by section 47 (2). " .

16. Section 49 of the principal Act is amended— amended.

(a)	by repealing subsections (1) and (2) and substituting the following subsections

(1) Subject to subsection (5), when a decision has been reconsidered under section 48, the person who made the request as a result of which the decision was so reconsidered may apply in writing to a review committee for a review of the matter concerned.

(2) On receiving an application made under subsection (1), a review committee shall, subject to subsection (4), review the matter to which that application relates and on so doing

(a)	may confirm, vary or reverse any decision relating to the matter concerned; and
(b)	shall, in the manner prescribed in section 47 (2), communicate its decision to the person by whom that application was made. "

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(b)	in paragraph (b) of subsection (2a) by deleting "committee or an officer of the Commission" and substituting the follow- ing

" authority " ;

(c)	in paragraph (a) of subsection (2b) by deleting "committee or officer of the Com- mission, as the case may be" and substitut- ing the following-

" authority " ;

(d)	in subsection (3) by inserting, before "final and conclusive", the following-

" , subject to section 49A, " ; and

(e)	by inserting, after subsection (3), the following subsections

C C (4) A review committee may refuse

to review the matter to which an application made under subsection (1) relates if it did not receive that applica- tion within 28 days from the day on which the result of the reconsideration concerned was communicated to the applicant, and shall, if it so refuses, communicate that refusal to the applicant in the manner prescribed by section 47 (2).

(5) This section does not apply to or in relation to decisions made by the Commission. " .

Section 49A

inserted.

17. The principal Act is amended by inserting,

after section 49, the following section-

Reopening

Of decision	49A. (1) The Commission may, if the
of review

committee.

circumstances under which the decision of a review committee was made have since changed in a material respect or if material information which was not before a review committee when it made a decision is avail- able or if the Commission considers that there

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is any other special reason why the decision of a review committee should not be allowed to stand, set aside the decision of the review committee and remit the matter to which that decision relates to a review committee for decision afresh.

(2) If a matter has been remitted under subsection (1) to a review committee for deci- sion afresh, the review committee shall decide the matter afresh and in so doing

(a)	may confirm, vary or reverse the decision set aside under that subsec- tion; and
(b)	shall, in the manner prescribed in section 47 (2), communicate its fresh decision to the person by whom the relevant application under section 49 (1) was made.

(3) A decision made under subsection (2) is final and conclusive. " .

18. Section 50 of the principal Act is amended— fly!

(a)	in paragraph (b) of subsection (2) by delet- ing "is" and substituting the following-

" may be " ; and

(b)	in subsection (8) by deleting "committee or officer of the Commission by which or by whom" and substituting the following-

" authority by which " .

Section 51A

19. Section 51A of the principal Act is amended

amended.

by deleting "the Commonwealth Commission" and

substituting the following-

" the Commonwealth Council " .

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20. Section 60 of the principal Act is amended in subsection (1) by deleting paragraph (c) and sub- stituting the following paragraph-

Section 63

repealed and

21. Section 63 of the principal Act is repealed

substituted.

and the following section is substituted-

Liability and

immunity.

63. (1) The Commission shall indemnify

(a)	the Director or a member of the staff against any liability incurred by him for any negligent act or omission by him in the course of the performance of his duties or in good faith in the purported performance of his duties;

(b)

a private practitioner who performs services by way of legal assistance under Division 2 of Part V of this Act against any liability incurred by him for any negligent act or omission by him in the course of the performance of those services or in good faith in the purported performance of those services.

(2) The Commission is liable for any act or omission by

(a)	the Director or a member of the staff in the course of the performance of his duties; or
(b)	a private practitioner in the course of the performance by him of services by way of legal assistance under Division 2 of Part V of this Act.

(3) No liability shall attach to a member, or the deputy of a member, of the Commission, or a member of a legal aid committee, or a member or substitute member of a review

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committee, for any act or omission by him, or by the Commission or committee, in good faith and in the exercise or purported exercise of his or its powers or functions, or in the discharge or purported discharge of his or its duties under this Act. " .

22. Section 64 of the principal Act is amended in =Akt4

paragraph (c) of the definition of "administrative information" in subsection (2b) by deleting "or reviewed under section 49" and substituting the following-

, reviewed under section 49 or dealt with

under section 49A " .