Legal Aid Commission Amendment Act 2000 (NSW)

An Act to amend the Legal Aid Commission Act 1979 in relation to the constitution of the Board of the Legal Aid Commission and Legal Aid Review Committees, the management of the Commission and legal assistance arrangements between the Commission and the Commonwealth; and for other purposes.

1Name of Act

This Act is the Legal Aid Commission Amendment Act 2000.

2Commencement

This Act commences on a day or days to be appointed by proclamation.

3Amendment of Legal Aid Commission Act 1979 No 78

The Legal Aid Commission Act 1979 is amended as set out in Schedule 1.

4Amendment of other Acts

Each Act referred to in Schedule 2 is amended as set out in that Schedule.

Schedule 1Amendment of Legal Aid Commission Act 1979

(Section 3)

[1]Section 3

Insert after section 2:

3Notes

Notes included in this Act are explanatory notes and do not form part of this Act.

[2]Section 4 Definitions

Insert in alphabetical order in section 4 (1):

Board means the Board of the Commission constituted under section 14.

Chief Executive Officer means the Chief Executive Officer of the Commission.

[3]Section 4 (1), definitions of “commissioner” and “Managing Director”

Omit the definitions.

[4]The whole Act (except Schedule 8 and in provisions omitted or amended by this Act)

Omit “Managing Director”. Insert instead “Chief Executive Officer”.

[5]Part 2, heading

Omit the heading. Insert instead:

[6]Sections 7–9

Omit the sections.

[7]Part 2, Division 3 (sections 14 and 15)

Omit the Division. Insert instead:

Division 3Management of Commission14Constitution of Board(1)

There is to be a Board of the Commission.

(2)

The Board is to consist of:

• (a)

  the Chief Executive Officer, and

• (b)

  9 part-time members, appointed by the Minister, of whom:

  • (i)

    one is to be a person appointed as Chairperson of the Board (in and by the instrument of appointment as member or by a subsequent instrument executed by the Minister), and

  • (ii)

    one is to be a person nominated by the Bar Association, and

  • (iii)

    one is to be a person nominated by the Law Society, and

  • (iv)

    one is to be a person nominated by the Labor Council of New South Wales, and

  • (v)

    3 are to be persons who, in the opinion of the Minister, possess skills or experience that would benefit the Board, and

  • (vi)

    one is to be a person who, in the opinion of the Minister, represents consumer and community welfare interests, and

  • (vii)

    one is to be a person who, in the opinion of the Minister, represents such bodies, whether incorporated or unincorporated, as provide community legal services.

(3)

If a nomination for the purposes of subsection (2) (b) (ii), (iii) or (iv) is not received within the time or in the manner specified by the Minister by notice in writing given to the body entitled to make such a nomination, the Minister may appoint any person to be a part-time member of the Board instead of the person required to be appointed on that nomination.

(4)

Before appointing a person referred to in subsection (2) (b) (vi) or (vii), the Minister must:

• (a)

  cause to be published such advertisements (inviting applications from persons to apply for appointment as part-time members of the Board) in such form and manner as the Minister directs, and

• (b)

  take into consideration any such applications received by the Minister.

(5)

Schedule 2 has effect with respect to the membership of the Board.

(6)

Schedule 3 has effect with respect to the procedure of the Board.

15Function of Board

The Board has the function of establishing the broad policies and strategic plans of the Commission.

16Chief Executive Officer(1)

There is to be a Chief Executive Officer of the Commission.

(2)

The Chief Executive Officer is to be appointed by the Minister. The person so appointed may be, but is not required to be, a barrister or solicitor.

(3)

The employment of the Chief Executive Officer is subject to Part 2A of the Public Sector Management Act 1988, but is not subject to Part 2 of that Act.

17Functions of Chief Executive Officer(1)

The Chief Executive Officer:

• (a)

  is responsible for the day-to-day management of the affairs of the Commission (including managing financial and human resources and the provision of legal aid and other legal services) subject to, and in accordance with, the broad policies and strategic plans established by the Board and any general directions the Board may issue in connection with those policies and plans, and

• (b)

  has and may exercise such other functions as are conferred or imposed on the Chief Executive Officer by or under this or any other Act or law.

(2)

Any act, matter or thing done in the name of, or on behalf of, the Commission by or with the authority of the Chief Executive Officer is taken to have been done by the Commission.

[8]Section 23A Appointment of solicitor to be solicitor practising on own account

Omit “a person” from section 23A (1).

Insert instead “one or more persons”.

[9]Section 23A (2)

Omit “The person appointed”. Insert instead “A person so appointed”.

[10]Section 24 Performance of functions of solicitor

Omit “the member of staff” from section 24 (2A).

Insert instead “the relevant member of staff”.

[11]Section 25 Solicitor-client relationship

Omit “between the State and the Commonwealth under” from section 25 (4) (a).

Insert instead “referred to in”.

[12]Section 26 Divulging of certain information prohibited

Omit “a commissioner” from section 26 (3).

Insert instead “a member of the Board”.

[13]Section 27

Omit the section. Insert instead:

27Immunity

An act or omission of:

• (a)

  the Commission, the Chief Executive Officer or a member of staff of the Commission, or

• (b)

  the Board or a member of the Board, or

• (c)

  a committee established under this Act or a member of such a committee, or

• (d)

  a person acting under the direction of a person or body referred to in paragraph (a), (b) or (c),

does not subject the Commission, the Chief Executive Officer, a member of staff, a member of the Board, a member of the committee or a person so acting to any action, liability, claim or demand if the act or omission was done, or omitted to be done, in good faith for the purpose of executing this Act.

[14]Section 28 Solicitor on record

Omit “the member of staff” from section 28 (2).

Insert instead “the relevant member of staff”.

[15]Section 31 Application for legal aid

Omit section 31 (3) and (4). Insert instead:

(3)

An application is to be made in the manner and form approved by the Commission.

[16]Section 34 Determination of application

Omit “within 14 days” from section 34 (2).

Insert instead “as soon as practicable (and in any case not later than 14 days)”.

[17]Section 41

Omit the section. Insert instead:

41Demand for or receipt of certain payments prohibited(1)

Despite any Act or law to the contrary, a private legal practitioner is not entitled to charge or recover from a legally assisted person any amount:

• (a)

  by way of costs in respect of work assigned by the Commission to the private legal practitioner on behalf of that person, or

• (b)

  by way of disbursements incurred on behalf of that person in connection with that work,

except with the approval of the Commission.

(2)

A provision of any agreement (whether in writing or not and whether entered into before or after the commencement of this section):

• (a)

  under which the operation of this section is excluded, modified or restricted, or

• (b)

  which has the effect of excluding, modifying or restricting the operation of this section,

is void.

[18]Section 46 Liability of legally assisted person to pay costs and expenses

Omit section 46 (5).

[19]Sections 54 and 55

Omit the sections. Insert instead:

54Members(1)

A Legal Aid Review Committee is to consist of 3 members appointed by the Board, of whom:

• (a)

  one is to be a person nominated by the Minister, and

• (b)

  one is to be a person nominated jointly by the Bar Association and the Law Society, and

• (c)

  one is to be a person who is not a legal practitioner.

(2)

One of the members is, in and by the relevant instrument of appointment or in and by a subsequent instrument, to be appointed as Chairperson of the Committee.

55Provisions relating to constitution and procedure of Legal Aid Review Committees

Schedule 7 has effect with respect to the constitution and procedure of Legal Aid Review Committees.

[20]Section 56 Appeals

Omit “either of the following means” from section 56 (1AA).

Insert instead “any of the following means”.

[21]Section 56 (1AA) (c)

Insert after section 56 (1AA) (b):

(c)

by arranging for the services of private legal practitioners to be made available, wholly or partly at the expense of the Commission.

[22]Section 58

Omit the section. Insert instead:

58Functions of a Legal Aid Review Committee on an appeal

For the purposes of hearing and determining an appeal, a Legal Aid Review Committee:

• (a)

  has the functions and discretions that the person or body whose determination, variation or decision is the subject of the appeal had in respect of the matter the subject of the appeal, and

• (b)

  is required to comply with any policy guidelines with which that person or body was required to comply in respect of the matter the subject of the appeal.

[23]Section 64A Trust account

Omit “the member of staff” from section 64A (2).

Insert instead “the relevant member of staff”.

[24]Section 69

Omit the section. Insert instead:

69Delegation

The Commission may, by instrument in writing, delegate the exercise of such of the functions of the Commission (other than this power of delegation) as are specified in the instrument to any of the following:

• (a)

  a committee comprised of members of the Board, including the Chief Executive Officer or a member of the Board nominated by the Chief Executive Officer,

• (b)

  a member of staff of the Commission,

• (c)

  a person for the time being holding or acting in a specified position in the staff establishment of the Commission,

• (d)

  any person (including a private legal practitioner) of whose services the Commission makes use pursuant to this or any other Act.

Note—

Section 49 of the Interpretation Act 1987 contains general provisions relating to the delegation of functions.

[25]Section 70 Determination of pecuniary interests

Omit “commissioner” from section 70 (1).

Insert instead “member of the Board”.

[26]Section 72A Agreements or arrangements with Commonwealth

Insert “, or the Commission with the approval of the Attorney General,” after “The State” in section 72A (1).

[27]Section 72A (1A) (a)

Insert “(in the case of an agreement or arrangement between the State and the Commonwealth)” after “or”.

[28]Schedule 2, heading

Omit the heading. Insert instead:

Schedule 2Membership of Board

(Section 14 (5))

[29]Schedule 2, clauses 1 and 7 (g)

Omit “Commission” wherever occurring. Insert instead “Board”.

[30]Schedule 2, clauses 3–8

Omit “commissioner” and “commissioners” wherever occurring (including in headings to clauses).

Insert instead “member of the Board” and “members of the Board”, respectively.

[31]Schedule 2, clause 7 (d)

Omit the paragraph. Insert instead:

(d)

if the member becomes a mentally incapacitated person,

[32]Schedule 2, clause 7 (f)

Omit the paragraph. Insert instead:

(f)

if the member is absent from 3 consecutive meetings of the Board of which reasonable notice has been given to the member personally or by post, except on leave granted by the Board or unless the member is excused by the Board for having been absent from those meetings,

[33]Schedule 2, clause 9

Omit the clause. Insert instead:

9Effect of certain other Acts(1)

Part 2 of the Public Sector Management Act 1988 does not apply to or in respect of the appointment of a member of the Board.

(2)

If by or under any Act provision is made:

• (a)

  requiring a person who is the holder of a specified office to devote the whole of his or her time to the duties of that office, or

• (b)

  prohibiting the person from engaging in employment outside the duties of that office,

the provision does not operate to disqualify the person from holding that office and also the office of a member of the Board or from accepting and retaining any remuneration payable to the person under this Act as a member of the Board.

[34]Schedule 3, heading

Omit the heading. Insert instead:

Schedule 3Procedure of Board

(Section 14 (6))

[35]Schedule 3, clause 1

Omit the clause. Insert instead:

1Definition

In this Schedule, Chairperson means the Chairperson of the Board.

[36]Schedule 3, clause 11

Omit the clause.

[37]Schedule 3

Omit “Commission” wherever occurring. Insert instead “Board”.

[38]Schedule 3

Omit “commissioner”, “commissioner’s” and “commissioners” wherever occurring (including in headings to clauses).

Insert instead “member of the Board”, “member’s” and “members of the Board”, respectively.

[39]Schedule 7, heading

Omit the heading. Insert instead:

Schedule 7Constitution and procedure of Legal Aid Review Committees

(Section 55)

[40]Schedule 7

Omit “Commission” wherever occurring. Insert instead “Board”.

[41]Schedule 7, clause 1

Insert “and includes, where an alternate member is acting during the absence or illness of a member, that alternate member” after “Committee” in the definition of member.

[42]Schedule 7, clause 6 (d)

Omit the paragraph. Insert instead:

(d)

if the member becomes a mentally incapacitated person,

[43]Schedule 7, clause 8

Omit the clause. Insert instead:

8Quorum(1)

The quorum for a meeting of a Committee is all of its members.

(2)

The Chairperson of a Committee is to preside at all meetings of the Committee.

[44]Schedule 8 Savings, transitional and other provisions

Insert at the end of clause 1A (1):

Legal Aid Commission Amendment Act 2000

[45]Schedule 8, Part 11

Insert after Part 10:

Part 11Provisions consequent on enactment of Legal Aid Commission Amendment Act 200054Definition

In this Part:

amending Act means the Legal Aid Commission Amendment Act 2000.

55Commissioners(1)

A person who held office as a part-time commissioner immediately before the commencement of Schedule 1 [7] to the amending Act is taken, on that commencement, to be appointed as a part-time member of the Board under section 14 for the balance of his or her term of office as part-time commissioner.

(2)

A reference in any Act (including provisions of this Act as continued in force by clause 57) or instrument to a commissioner of the Commission is taken to be a reference to a member of the Board.

56Managing Director(1)

The person appointed as Managing Director immediately before the commencement of Schedule 1 [7] to the amending Act is taken, on that commencement, to be appointed as Chief Executive Officer under section 16 for the balance of his or her term of appointment as Managing Director.

(2)

A reference in any Act (including provisions of this Act as continued in force by clause 57) or instrument to the Managing Director of the Commission is taken to be a reference to the Chief Executive Officer of the Commission.

57Legal Aid Review Committees(1)

The substitution of section 54 by Schedule 1 [19] to the amending Act does not affect a Legal Aid Review Committee in existence immediately before the commencement of that item. Until such time as the Committee is reconstituted in accordance with section 54 (as substituted by the amending Act):

• (a)

  the members of the Committee continue to hold office as such as if that section had not been substituted, and

• (b)

  the substitution of clause 8 of Schedule 7 by Schedule 1 [43] to the amending Act has no effect in relation to that Committee.

(2)

A member of a Legal Aid Review Committee referred to in subclause (1) is eligible (if otherwise qualified) to be reappointed as a member of a Committee that is reconstituted in accordance with section 54 (as amended by the amending Act).

(3)

On the day that a Committee is reconstituted in accordance with section 54 (as substituted by the amending Act), any person who held office as a member of the Committee immediately before that day:

• (a)

  ceases to hold that office, and

• (b)

  is not entitled to any remuneration or compensation because of the loss of that office.

Schedule 2Amendment of other Acts

(Section 4)

Crimes (Sentencing Procedure) Act 1999 No 92

Insert after section 38 (4):

(5)

The Legal Aid Commission may make recommendations to the Senior Public Defender as to the exercise of any function conferred or imposed on the Senior Public Defender, or on any nominee of the Senior Public Defender, under this section.

Fair Trading Act 1987 No 68

Omit “Director” from section 14 (1) (a).

Insert instead “Chief Executive Officer”.

Public Sector Management Act 1988 No 33

Omit “* Managing Director of the Commission” from the matter relating to the Legal Aid Commission.

Insert instead “* Chief Executive Officer of the Commission”.