Smillie v Legal Aid Commission of Tasmania - [2014] TASSC 19

[2014] TASSC 19

COURT: SUPREME COURT OF TASMANIA

CITATION: Smillie v Legal Aid Commission of Tasmania [2014] TASSC 19

PARTIES:  SMILLIE, Adrian Wayne
  v
  LEGAL AID COMMISSION OF TASMANIA

FILE NO/S:  1270/2013
DELIVERED ON:  8 April 2014
DELIVERED AT:  Hobart
HEARING DATES:  3 and 19 February 2014
JUDGMENT OF:  Wood J

CATCHWORDS:

Judicial Review – Reviewable decisions and conduct – Decisions to which judicial review legislation applies – Decisions under an enactment – Particular cases – Refusal to transfer grant of legal aid to private legal practitioner – Decision not made under an enactment.

Judicial Review Act 2000 (Tas), s4(1).
Griffith University v Tang (2005) 221 CLR 99, applied.
King v Director of Housing [2013] TASFC 9, considered.
Aust Dig Administrative Law [1013]

REPRESENTATION:

Counsel:
             Applicant:  D Barclay
             Respondent:  M E O'Farrell SC
Solicitors:
             Applicant:  Walsh Day James Mihal, Page Seager
             Respondent:  Legal Aid Commission of Tasmania

Judgment Number: [2014] TASSC 19
Number of paragraphs: 72

Serial No 19/2014
File No 1270/2013

ADRIAN WAYNE SMILLIE v LEGAL AID COMMISSION OF TASMANIA

REASONS FOR JUDGMENT WOOD J

8 April 2014

A recipient of legal aid, Adrian Wayne Smillie, requested the respondent to transfer his grant of aid so that he could have a private legal practitioner provide him with legal assistance and representation services, rather than a Legal Aid lawyer. A decision was made by an officer of the respondent to refuse the transfer. A committee established by the respondent reviewed that decision and confirmed that the transfer request was correctly refused. The applicant has applied for an order of review of the committee's decision under the Judicial Review Act 2000 ("JR Act").
The applicant was charged with the crimes of murder and attempted murder. Soon after he was charged, he requested that a legal practitioner employed by the respondent, Natalie Everett, act on his behalf. She had acted for him previously in other matters. He completed an application for legal aid which was later approved. Shortly afterwards, he decided he wanted Adrian Hall, a private practitioner, to act on his behalf instead. He submitted a fresh legal aid application communicating his request that Mr Hall act for him. The application was considered by an officer of the respondent, referred to as an assignments officer. As mentioned, the transfer of legal aid was refused, and subsequently that decision was confirmed by the Review Committee.
Since then, Mr Hall has acted on the applicant's behalf in the criminal proceedings, notwithstanding that the transfer was not approved and legal aid withheld.
The application for review of the Committee's decision sets out three grounds upon which it is made. It is said that, in making the decision, the Review Committee breached the rules of natural justice (JR Act, s17(2)(a)); that the making of the decision was an improper exercise of the power conferred by the enactment (s17(2)(e)), and that the decision involved the exercise of a power conferred by the Legal Aid Commission Act 1990 ("LACA"), that is so unreasonable that no reasonable person could so exercise the power (the common law ground of unreasonableness, known as Wednesbury unreasonableness: Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223, per Lord Greene MR, at 229 - 230. See Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 625).
A threshold issue arises as to the Court's jurisdiction. For the JR Act to apply, it is necessary that the decision be "of an administrative character made … under an enactment". The JR Act, s17(1), permits an application to this Court for an order for review if the applicant "is aggrieved by a decision to which this Act applies". In s4(1) that phrase is defined:
"(1) In this Act,
decision to which this Act applies means a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion)."

The history of the matter

Before turning to consideration of the issues, I set out below some details of the history of the matter relevant to the nature of the decision.
•     The applicant was charged with murder and attempted murder on or about 26 December 2012.
•     On that day, Ms Everett was contacted at home by police with a request from the applicant that she speak to him. She agreed, and she spoke to him by telephone. He asked her to act for him in relation to the charges.
•     The applicant appeared in the Devonport Magistrates Court on the same day. Ms Everett made arrangements for him to be represented by another Legal Aid lawyer, Ms Edwards. Before the court appearance the applicant signed an application for legal aid. He told Ms Edwards he wanted Ms Everett to act for him. It was explained to him that he had an option of another lawyer but he said he wanted Legal Aid, and particularly Ms Everett.
•     Ms Everett appeared for the applicant at his next court appearance on 28 December 2012. She obtained further instructions and she submitted his application for legal aid.
•     Mr Hall spoke to the applicant on 30 December 2012. Mr Hall took instructions. He understood that a Legal Aid lawyer had appeared for the applicant at an earlier court date but believed that they had acted as duty solicitor. He was unaware at that time that a Legal Aid lawyer had been instructed.
•     On 2 January 2013, the application for legal aid submitted by Ms Everett on 28 December 2012 was approved. The application which was approved was for aid to "investigate and report".
•     Later, on 2 January 2013, the respondent received an application for legal aid from the applicant. Mr Hall sought a grant of aid to act for the applicant in the same criminal proceedings. The application included the following:
"Mr Smillie and his partner have both contacted me and request that i attend at Devonport tomorrow to enter pleas. I will take the opportunity to look at the scene etc as well. I have met Mr Smillie twice and have full instructions. I am instructed to enter pleas of not guilty on the basis of self defence."
•     The application received on 2 January 2013 was considered by the assignments officer on the same day. It was refused. The basis for the refusal was that the applicant had been "appointed" a Legal Aid solicitor, and a condition of that grant is that a recipient is unable to change solicitors unless there are "exceptional circumstances".
•     Mr Hall appeared for the applicant on 2 January 2013 at a court appearance relating to the charges. He has acted for the applicant since that date.
•     Mr Hall sought a review of the assignments officer's decision in a letter of 16 January 2013.
•     Mr Hall repeated his request for a review of the assignments officer's decision in a letter dated 4 March 2013.
•     The Review Committee met on 5 April 2013 to consider the application. Mr Hall's letters of 16 January 2013 and 4 March 2013 were before the Committee. The Review Committee confirmed the refusal of aid and informed the applicant of that decision.
•     On 12 November 2013, Mr Hall sought reasons for that decision.
•     On 26 November 2013, Mr Hall received a letter from the respondent dated 25 November 2013 providing reasons.

The request to transfer

In Mr Hall's letter of 16 January 2013 he urged the respondent to accede to the request to transfer legal aid. He made various points relevant as background to the Committee's reasons:
•     the applicant had confidence in Mr Hall and wanted Mr Hall to represent him;
•     the "interests of the affected person and any choice expressed by them must be of paramount importance";
•     if a person did not want to be represented by the Commission it "must surely affect the frankness of their instructions and the working relationship between solicitor and client";
•     Mr Hall asked, "what greater justification can one have than on a murder charge wanting to be represented by a solicitor in whom you have confidence rather than one in whom you do not?"
In his letter, Mr Hall also pointed to the basis given for the refusal of the application, that the change of solicitors can only occur in "exceptional circumstances". Mr Hall stated that this is not a concept that forms part of the terms and conditions of the application for legal aid assistance and is not stipulated in the respondent's guideline concerned with the transfer of a grant of legal aid assistance from one practitioner to another. Further, he referred to the paragraph relating to "change of solicitor" within the application for legal aid assistance, advising applicants that "You must obtain the permission of the Legal Aid Commission to change your solicitor. If permission is granted you may be responsible for any costs incurred as a result of changing your solicitor." He concluded his letter by suggesting that there was justification for the transfer of a grant of aid to his practice to assist the applicant since he had both the applicant's confidence and his instructions.
The respondent's guideline, referred to by Mr Hall in his letter, is published on the respondent's website and is in the following terms:
"Transfer of Legal Practitioner Guideline: State
Number: 36
Effective Date: 12/09
An applicant who wishes to change legal practitioner and continue to receive legal aid must write to the Commission to request approval of the change, setting out the reasons for the request. Approvals are not granted automatically, and must be justified by the circumstances.
An applicant or a legal practitioner acting for an applicant who wishes to brief the hearing of a matter to another legal practitioner (including a barrister) must write to the Commission to request approval. Approvals will not necessarily be given, and any approval will only be granted on the basis that the brief be offered to a Commission legal practitioner in the first instance."

The Committee's reasons

The Committee's reasons for decision included the following extracts:
"The Assignments Officer's original decision to refuse Aid was made in accordance with the Legal Aid Commission's 'transfer of legal practitioner policy'.
Similarly, the decision of the Review Committee to confirm the decision of the Assignments Officer was on the basis of this policy, and their findings record they concluded, there was no justifiable reason provided by the Applicant to warrant the transfer of his grant of aid to another legal practitioner.
The 'transfer of legal practitioner policy' to which both the Assignments Officer and Review Committee had reference is issued pursuant to s27(b) Legal Aid Commission Act 1990. …
As you would well appreciate the Commission has a statutory obligation to have regard to the amount of money available to it, and to ensure that Legal Aid is provided in the most effective, efficient and economical manner (s6(2) Legal Aid Commission Act 1990). This guideline exists in furtherance of this statutory obligation.
Any change of legal practitioner and transfer of grant of aid invariably involves additional cost, and Mr Smillie's request to transfer legal practitioner was no exception.
…
It is obvious therefore, that by the 2^nd January 2013 the Legal Aid Commission's In-house practitioner was comprehensively engaged in representing Mr Smillie and a substantive amount of work had commenced.
Any transfer of Aid thereafter to an alternate practitioner would have invariably involved additional cost and be contrary to the Commission's statutory obligation.
Of course, the Legal Aid Commission well recognises that on occasions transfer to an alternate legal practitioner is appropriate. Such occasions usually involve the client receiving a level of representation that could not be said to be the most effective, efficient and economical available, thus transfer is not deemed to be contrary to the Commission's statutory obligation.
Examples of where approval to change practitioner has been granted include:
1 The practitioner has failed to attend at the client's court appearances;
2The client has been unable to provide timely instructions to the practitioner because of the practitioner's continuing unavailability;
3The practitioner is not actioning the client's matter in a timely fashion for example by never returning the client's phone calls;
4 The practitioner has handled the matter in an apparently incompetent fashion;
5The practitioner is not sufficiently skilled in the particular area of law, or in dealing with difficult clients, and the request for transfer comes from the practitioner him/herself.
Mr Smillie's request to transfer to another legal practitioner did not fall within any of these example types. The only explanation offered was that contained in your letter dated 16^th January 2013, where you state 'He is charged with murder, needs representation and wants me to do it and not the Legal Aid Commission'.
The Assignments Officer did not accept that this explanation was a sufficient justification to allow the transfer of Aid to another legal practitioner, hence your original refusal dated 2^nd January 2013.
…
The Review Committee proceeded on the basis that given the 'transfer of legal practitioner policy' existed in furtherance of the Commission's statutory obligation and for budgetary reasons, there ought be strict compliance with it, unless there were justifiable reasons to allow the change of legal practitioner."
A chronology of the matter was also outlined in the reasons. Some of the history is at odds with information provided by Mr Hall in his letters. Largely, the difference is a matter of characterisation. It was said that the work undertaken by the Legal Aid lawyer was substantial, while that is not accepted by the applicant. The applicant argued that where there was such a difference between the information provided by the applicant and the information held by the respondent, the applicant should have been given an opportunity by the Review Committee to respond. Otherwise, the factual differences did not assume significance and do not need to be identified or resolved for the purpose of deciding this application.

The application for judicial review

The application for judicial review describes the decision, the subject of the application, as that of the Review Committee established by the respondent "by which the Respondent affirmed its determination not to transfer a grant of legal aid to the Applicant for a Commission lawyer to act for him to a private legal practitioner at the cost of the Respondent". The grounds of review state that decision was an improper exercise of power within the meaning of s17(2)(e) of the JR Act, in that "the Decision involved the exercise of a discretionary power conferred by section 34 of the LACA and the Respondent failed to have regard to the merits of the particular case in that the Respondent failed to pay regard" to particular matters.
Both this ground and the unreasonableness ground rely on various factual matters. These matters include: that the guideline concerning transfers required "justification", not exceptional circumstances, and that that requirement was satisfied given the applicant's wishes; the seriousness of the criminal charges; and the limited extent of work undertaken on his behalf by the Legal Aid practitioner. In terms of the ground asserting breach of the rules of natural justice, the matters raised included that the respondent determined that the transfer would involve additional cost to the respondent, without giving the applicant an opportunity to make submissions in respect of that determination.
The Court heard full submissions regarding these grounds. However, as noted, a consideration of these grounds is not reached unless there has been a decision made by the Review Committee "under an enactment".

"made … under an enactment"

The meaning of the expression "made … under an enactment" has been decided by the High Court in Griffith University v Tang (2005) 221 CLR 99.
In Tang, the High Court considered the nature of a "decision of an administrative character made … under an enactment" for the purpose of the Judicial Review Act 1991 (Qld). Griffith University excluded a postgraduate student from the University's PhD research program. There had been an allegation of academic misconduct, and, after a hearing, an assessment board had found against her. An internal University appeal committee confirmed the decision. The student brought proceedings in the Supreme Court of Queensland for review of the University's decisions. It was contended for the University that the decisions had not been made under an enactment. The powers that were exercised flowed from the general description in the statute of the University's functions and the general power to do anything necessary or convenient in connection with those functions; and/or the powers of the Council as the University's governing body, including its powers of delegation. The Higher Education (General Provisions) Act 1993 (Qld) conferred upon universities the exclusive right to confer higher education awards as a well as a power to delegate.
It was held by a majority (Kirby J dissenting) that the decisions were not properly regarded as having been made under an enactment. Gleeson CJ made observations about the governing statute:
"[11] The structure of the Griffith University Act follows a familiar form. In all Australian jurisdictions there are statutes which establish or incorporate particular institutions, such as schools, or hospitals, or universities, or charitable organisations, describe their functions, confer on them powers appropriate to those functions, and provide for their governance. Whatever the principal functions of such an institution may be, the statute by which it is established ordinarily confers upon some governing authority general powers appropriate to the discharge of those functions. It does not follow that any administrative decision made in the exercise of those powers is a decision made under the relevant enactment for the purposes of the ADJR Act, or legislation expressed in the same terms."
Later, Gleeson CJ said at [23]:
"[23] The question in the present case turns upon the characterisation of the decision in question, and of its legal force or effect. That question is answered in terms of the termination of the relationship between the appellant and the respondent. That termination occurred under the general law and under the terms and conditions on which the appellant was willing to enter a relationship with the respondent. The power to formulate those terms and conditions, to decide to enter the relationship, and to decide to end it, was conferred in general terms by the Griffith University Act, but the decision to end the relationship was not given legal force or effect by that Act."
At [89] the joint judgment of Gummow, Callinan and Heydon JJ articulated two criteria to be applied in determining whether a decision is "made … under an enactment":
"[89] The determination of whether a decision is 'made ... under an enactment' involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be 'made ... under an enactment' if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice."

King v Director of Housing [2013] TASFC 9 considered the nature of a decision made by the Director of Housing, through the agency of Housing Tasmania. The appellant, Ms King, who was a tenant of Housing Tasmania, was given notice in April 2012 that her lease would not be extended or renewed, and that she was to vacate the rented premises. The appellant sought judicial review of the decision. The Full Court of Appeal considered the question of whether the decision was one to which the JR Act applied. In coming to the conclusion that it was not, Porter J at [63], with whom Tennent J and I agreed, emphasised the need for the decision to derive its force and effect by virtue of the empowering statute:
"[63] I have set all of this out to show that it is abundantly clear that for a decision to be one under an enactment, it must be more than the exercise of a public power which affects legal rights in some way. The decision must be more than one expressly or impliedly authorised by the statute. The meaning of the second criterion of the plurality in Tang is plain. To use the description given in Aronson and Groves, Judicial Review of Administrative Action, 5^th ed (2013), at 93 [2.550], '… the decision must make a present or contingent difference in the realm of legal rights or obligations, and it must do this because of the force it derives from the relevant enactment' [original italics, bolding by Porter J]."

The submissions

The issue of whether the decision was made under an enactment was not argued initially at the hearing of the application to review. In view of the significance of the issue and its potential ramifications, the parties were given an opportunity to make submissions as to the application of the Tang criteria, and relevant statutory provisions. The opportunity was taken and I have the benefit of written and oral submissions from counsel on this threshold issue.
It was argued for the respondent that this Court had no jurisdiction to consider the application for review because the decision was not made under an enactment. While it was conceded that the first criterion in Tang was satisfied, it was submitted that the second criterion was not satisfied for a number of reasons. It was submitted that the decision in question was not one to provide legal aid, under s17 of the LACA, because that had been done, and was not one to vary the original decision to grant legal aid under s18 of the LACA. Further, the decision does not make a difference to legal rights and obligations. It was submitted that there is no right to legal aid conferred under the LACA, or, where assistance is granted, to the services of a private legal practitioner. The applicant had a right to apply for legal aid and to have that application determined. The applicant may have had a right under the guidelines to request a transfer, but he had no right to have it determined in his favour.
The applicant submitted that the scheme of the LACA authorises the appointment of a private legal practitioner as the lawyer to represent a person on receipt of a grant of aid, satisfying the first criterion in Tang. Further, the decision was made under an enactment in that the force of the decision derives from the statute. It was submitted that the application for a transfer is an application to vary the nature or the extent of the legal aid within the meaning of s18(1)(b) of the LACA. An alternative argument was advanced that the decision was made pursuant to s17(3)(a) of the LACA; a transfer application is an application for the provision of legal assistance and legal services of a kind, with the assistance and those services sought to be carried out by a particular person. The decision confers, alters or otherwise affects legal rights or obligations. There is a right to legal aid, once it was granted. The decision not to transfer the grant of aid makes a present or contingent difference to the legal rights or obligations because it determines who shall do the legal work.

Characterisation of the decision

The correct characterisation of the decision in question is not contentious. It is agreed that the decision of the Review Committee should be characterised as confirming a decision refusing to transfer a grant of legal aid. At all relevant times, from the lodgement of the legal aid application by Mr Hall, the applicant was seeking a transfer of the original grant of aid so that he may be represented by Mr Hall. That was also the objective of pursuing a referral to the Review Committee. It seems clear, too, that that the respondent understood, that by lodging that application, the applicant was seeking a transfer of the original grant of aid to a private legal practitioner.

The statutory provisions

There are general provisions in the LACA as to the respondent's functions and powers that have relevance. The LACA establishes a Legal Aid Commission to administer the granting of legal aid: the Long Title and s4. The respondent is a body corporate, responsible for providing legal assistance in Tasmania pursuant to the LACA and responsible for administering the Legal Aid Fund. Section 6(1) sets out the respondent's functions:
"6   Functions of Commission
(1)   The functions of the Commission are as follows:
(a)   to provide legal aid in accordance with this Act;
(b)   to liaise and co-operate with, and to make reciprocal arrangements with, professional bodies representing private legal practitioners and other bodies engaged or interested in the provision of legal aid;
(c)   to liaise with professional bodies representing private legal practitioners to facilitate the use of services provided by private legal practitioners;
(d)   to make maximum use of services which private legal practitioners offer to provide on a voluntary basis;
(e)   to encourage and permit persons who are not legal practitioners or barristers to participate, so far as the Commission considers it practicable and proper to do so, on a voluntary basis and under professional supervision, in the provision of legal aid;
(f)   to provide agencies of the Commonwealth or another State or Territory of the Commonwealth concerned in the provision of legal aid with such statistical and other information as they may reasonably require;
(g)   to ascertain the most efficient, economical and effective means of maximizing rights and remedies under the law in Tasmania;
(h)   to perform such other functions as the Minister may direct."
Section 6(2) casts obligations on the respondent in relation to the performance of its functions:
"(2) In the performance of its functions, the Commission shall –
(a)   have regard to the amount of money standing to the credit of the Fund and any other money likely to be received for the purposes of that Fund; and
(b)   ensure that legal aid is provided in the most effective, efficient and economical manner; and
(c)   ensure that its activities are carried on consistently with, and do not prejudice, the independence of the private legal profession."
Section 7 extends the respondent's powers and relevantly provides:
"7 Powers of Commission
(1) The Commission has such powers as are necessary to enable it to perform its functions and exercise its powers."
There are sections relating to the provision of legal aid. The LACA has specific provisions which relate to officers. Section 11(1) and (2) provide:
"11    Professional conduct of officers
(1)   An officer, when practising as, or performing any of the functions of, a legal practitioner, in pursuance of this Act –
(a)shall observe the same rules and standards of professional conduct and ethics as those that a private legal practitioner is, by law or the custom of the legal profession, required to observe in the practice of the legal profession; and
(b)is subject to the same professional duties as those to which a private legal practitioner is, by law or the custom of the legal profession, subject.
(2)   The same privileges as those that arise from the relationship of client and legal practitioner acting in a professional capacity and in the course of professional employment shall arise –
(a)between a person who has applied for legal aid, or to whom legal aid is being provided, and an officer who practices as, or performs any of the functions of, a legal practitioner for the person under this Act; and
(b)between a private legal practitioner and the Commission in relation to services provided by the private legal practitioner for a person under this Act."
Section 15 envisages that legal aid may be provided by private legal practitioners:
"15    Provision of legal aid
(1)     The Commission may provide legal aid by arranging for the services of a private legal practitioner to be made available at the expense of the Commission or by making available the services of an officer.
(2)     The Commission shall issue directions for the allocation of work between officers and private legal practitioners.
(3)     In issuing directions under subsection (2), the Commission shall have regard to the desirability of enabling officers to engage in the practice of the law as comprehensively as reasonably practicable.
(4)     Where the Commission provides legal aid by arranging for the services of a private legal practitioner, the Commission shall, except where the services are provided on a voluntary basis, pay fees and disbursements to the private legal practitioner for the performance of those services."
The terms "legal aid", "officer" and "private legal practitioner" are defined in s3:
"legal aid means the provision of legal assistance and legal services;
…
legal assistance means any legal work or legal advice provided to a person;
…
officer means a State Service officer or State Service employee employed in the office of the Commission and who is a legal practitioner;
private legal practitioner means a person who is practising as a legal practitioner or a barrister; …".
Section 16 deals with applications for legal aid, and envisages that applications may be submitted by private legal practitioners: s16(3). Section 17 is concerned with deciding applications:
"17    Determination of applications
(1)     An application for legal aid shall be decided by a Legal Aid Committee, by the Director or by an officer authorized by the Director for the purpose, according to directions of the Commission.
(2)     The Commission shall give directions as to the classes of cases in which –
(a)     applications for legal aid are to be decided by a Legal Aid Committee; and
(b)     applications are to be decided by an officer.
(3)     Where a Legal Aid Committee or an officer decides to grant an application for legal aid, the Legal Aid Committee or officer shall also decide, in accordance with guidelines issued –
(a)whether the legal aid should be provided by making available the services of a private legal practitioner or by making available the services of an officer; and
(b)the nature and extent of the legal aid to be provided; and
(c)whether the legal aid is to be provided free of charge or subject to any of the conditions referred to in section 21(1); and
(d)whether legal aid is to be provided subject to such conditions as may be considered appropriate.
(4)     The Director shall ensure that a Legal Aid Committee is provided with such assistance as it requires for the purpose of the performance of its functions under this Act.
(5)     For the purpose of deciding an application for legal aid, a Legal Aid Committee or an officer may make such inquiries and obtain such advice and reports as the Committee or officer considers desirable.
(6)     The cost of making inquiries or obtaining such advice or reports shall be paid –
(a)if the Legal Aid Committee or officer so determines – by the applicant for the legal aid; or
(b)in any other case – out of the Fund."
Section 18 deals with the variation of grants of legal aid and states:
"18    Termination or variation of legal aid
(1)     A decision to provide legal aid may be varied at any time so as to –
(a)     terminate the provision of the legal aid; or
(b)     alter the nature or extent of the legal aid; or
(c)make the provision of the legal aid subject to a condition in accordance with section 21; or
(d)alter a condition to which the provision of the legal aid is subject in accordance with section 17 (3) (e) or 21.
(2)     A decision to provide legal aid may be varied –
(a)in a case where the decision was made by a Legal Aid Committee – by that Legal Aid Committee; or
(b)in a case where the decision was made by an officer – by the Director or by an appropriate officer in accordance with arrangements made or approved by the Director."
Section 22 requires that the respondent keep a list of private legal practitioners who have notified that they are willing to act, either generally or in particular classes of matters or courts, as legal practitioners on behalf of an assisted person. It also deals with matters concerning the list, and changes to the list. Section 23 obliges the respondent to allocate work among the private legal practitioners whose names are on that list, with regard to particular considerations. Paramount considerations are the interest of the assisted person and any choice expressed by the assisted person for a particular private legal practitioner: s23(2)(a) and (b).
Section 27, concerning guidelines, has relevance noting the guideline set out above at [9] relating to the transfer of legal aid. It provides that:
"27 Guidelines
The Commission shall issue guidelines to be applied in –
(a)determining whether legal aid is to be provided to a person; and
(b)determining the conditions subject to which legal aid is to be provided; and
(c)determining the extent to which the Commission shall pay costs awarded against an assisted person; and
(d)determining the amount of costs or disbursements required to be paid under section 25 by an assisted person."
There are statutory provisions empowering a Review Committee in Pt5 of the LACA. The function of a Review Committee is to review "any decision" referred to it under s29. Pursuant to that provision, a person may, by notice in writing, request the Commission to refer a decision made by an officer or a Legal Aid Committee to a Review Committee. The Act does not confine or impose limitations on the decisions which may be considered by the Review Committee. The Part enables the respondent to establish a Review Committee (s30); provides for the constitution of the Committee (s31); and provides that the function of the Review Committee is to review any decision referred to it, (s32). There is a provision relating to the procedures and processes which must be followed by a Review Committee before the making of a decision (s33), and the types of decision a Review Committee may make, which include confirming the decision or varying the decision (s34).

Application of Tang: first criterion

Clearly, the Review Committee was authorised by the LACA to make the decision in question and the first criterion of Tang is satisfied. The Review Committee has wide powers to review decisions made by officers, as defined, and relating to any decisions referred to it under s29. There is no suggestion that, in this case, s29 was not properly invoked or that the Committee lacked power to review the decision referred to it, noting in particular the express terms of s34 of the LACA. The broad powers of Review Committees under the LACA are the same kind of general statutory powers that Gleeson CJ in Tang referred to at [11] and [23]. Here, the decision confirming the decision of the assignments officer was not required by the enactment, but it was explicitly authorised. Additionally, it may be observed that the matter of transfer of legal aid to another legal practitioner decided by the assignments officer was within the broad statutory functions and powers of the respondent. So, for example, the respondent may make arrangements for the services of a private legal practitioner and there is provision for the division of work between private practitioners and officers of the respondent: s15(1) - (3).
Deciding whether to allow the transfer of legal aid falls within the type of decisions that would be expected to be made by the respondent in its day-to-day operations, having regard to the functions and powers of the respondent as set out in the LACA. Such decisions fell to be reviewed by a Review Committee appointed under the LACA, given the broad-based provision regarding referrals. The more contentious question is whether the decision of the Review Committee satisfies the second criterion in Tang. The decision must itself affect legal rights or obligations, and in that sense the decision must derive from the statute.

Application of the Tang criteria: force and effect

The second criterion of the test in the majority judgment of Tang is that the "decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment". (Emphasis added.) Notably, there is no statutory provision in the LACA that purports to deal with the matter of transferring legal aid to other legal practitioners.
The statutory pathway of an application for legal aid contemplates a sequence of decisions involving: whether aid should be granted, the imposing of any conditions, allocation to a practitioner, then subsequently, variation of a decision to provide legal aid. The sections governing these stages are silent as to transferring legal aid to another legal practitioner and, in fact, all of the provisions of the LACA are silent on this matter. The provisions empowering the Review Committee in s29 and following do not touch on the content of decisions. While the particular Review Committee depends for its existence and powers upon the provisions of the LACA, more is required to satisfy the second criterion; the decision itself must derive its force from the statute. Sections 29 - 34 in their broad and empowering terms do not give legal force to the decision in this way.
I put to one side for the moment the question of whether the decision does affect legal rights or obligations, and proceed to explore provisions of the LACA to ascertain whether there is within it a section which gives force to the decision. The applicant's submissions have sought to isolate statutory provisions which are concerned with or, in any way, deal with that type of decision. This search for statutory provisions which cover the matter decided, whether a transfer of legal aid should be permitted, does not mean that the enquiry is determinative. If there is a section which covers the matter decided, it will be necessary to see whether the terms of the section are such that it gives the decision its legal force and effect.
The applicant relied upon ss17(3)(a) and 18(1)(b) as being the statutory source of the legal effect of the decision.
Section 17(3)(a)
Section 17(3)(a) requires that when an application for legal aid is granted, a decision shall also be made as to whether legal aid should be provided by making available the services of a private legal practitioner or the services of a Legal Aid lawyer. It was argued for the applicant that, drawing on the definitions of "legal aid" and "legal assistance", a transfer application is an application for legal aid within s16, albeit for legal services to be carried out by a particular person. Thus the application for transfer may be the vehicle for a decision under s17(3)(a). It was argued for the respondent that this section was exhausted once the first application for legal aid was granted and allocated to a Legal Aid lawyer.
Having regard to the scheme of the LACA, and the relevant provisions, I do not accept that a request for a private legal practitioner, once legal aid has been granted, amounts to an application for legal aid as defined. There is a clear distinction between the grant of aid and allocation to a particular lawyer. Section 17(3)(a) is a stark example. The definitions relied upon are concerned with legal services in the broad. A grant of legal aid means simply that those services may be provided but does not speak to the identity of the lawyer who will provide them. I add, unnecessarily, that the fact that the request to transfer was made using a legal aid form does not make it a legal aid application. As I have noted, it was a request to transfer and sought to be treated as such.

Further, a decision under s17(3)(a) as to allocation is not one that can be revisited under that provision. The proper construction of the section is that there could not be multiple decisions made under that subsection concerning an applicant and the same grant of aid. The section contemplates the decision to allocate being made by a particular Committee or officer, and for that to be the same Committee or officer who decided to grant the application for legal aid. It is a clear indication that the application of s17(3)(a) arises from the determination of applications for aid as a consequential matter. There is a further reason why s17(3)(a) could not apply to the decision here. Because of the terms of the subsection, the necessary precondition was a grant of aid. That had already led to an allocation to a Legal Aid lawyer. The second application could not provide a basis for another round of consideration because there was not a second grant of aid. I conclude that s17(3)(a) does not have application to the impugned decision, let alone to give it force and effect.
Section 18(1)(b)
It was contended for the applicant that the decision not to transfer was made pursuant to s18(1)(b), which gives power to vary a grant of aid by altering the nature or extent of the legal aid. It was argued that the decision of the assignments officer should be seen as concerning whether a grant should be varied. Certainly, this section permitting the variation of legal aid seems to be the best fit with a request to transfer an existing grant of aid. However, it is far from clear that the section applies.
The terms of the section are that a decision to provide legal aid may be varied at any time so as to "alter the nature or extent of the legal aid". The question is whether transferring from a Legal Aid lawyer to a private legal practitioner is altering the nature or extent of the legal aid granted. The same phrase is used elsewhere in the Act and there is a distinction drawn between the nature and extent of legal aid on the one hand and allocation on the other. This distinction is evident in the preceding section. As seen, s17(3)(a) deals with allocation, as a decision consequential to a grant of aid, and subs(3)(b) provides for a decision dealing with "the nature and extent of legal aid". Subsections 17(3)(c) and (d) go on to deal with conditions in s21(1) and such other conditions respectively. These distinctions drawn in s17(3)(b), (c) and (d) seem to have carried over to s18, noting the same categories are mirrored in s18. In s17(3), "nature and extent" is different to allocation. Unless there is some contrary indication, it should be presumed that the expression "nature and extent" has a consistent meaning throughout the Act. By comparison, see Baltas v VLA and Crundall [1998] VSC 39, at [11] and [23], and the terms of the Legal Aid Act 1978 (Vic), s29, which provide an indication to the contrary.
Elsewhere in the Act there is a distinction between the provision of legal aid and arrangements for the services of a private legal practitioner or the services of an "officer": see s15(1). Again, a distinction is drawn between who is to perform the service and the provision of legal aid.
I conclude that the impugned decision regarding whether legal aid may be transferred does not concern the "nature or extent of the legal aid" and does not invoke the specific terms of s18(1)(b). That is not to suggest that allocation could not be reconsidered by the respondent, just that s18(1)(b) does not give legal force to the decision.
Section 18(1)(c) and (d)
For the sake of completeness I consider whether the other sub-provisions of s18(1) apply so as to classify the decision as a variation of the provision of legal aid. Section 18(1)(c) provides that legal aid may be varied so as to make the legal aid subject to a condition in accordance with s21. This subsection could not have application here. Section 21 is concerned with contributions towards costs and expenses and is unrelated to matters of allocation.
Section 18(1)(d) relates to decisions to vary by altering a condition to which the provision of the legal aid is subject in accordance with ss17(3)(e) or 21. Section 17(3)(e) does not exist and, it seems, never has existed; I assume that this is a reference to s17(3)(d). This subsection relates to the consequential decision of whether legal aid is to be provided subject to such conditions as may be considered appropriate. Is there scope to suggest that the allocation of legal aid, or a transfer of legal aid, could fall within a "condition"?
Section 27 empowers the respondent to issue guidelines about conditions. By virtue of s27(b), guidelines are to be applied by the respondent in determining the conditions subject to which legal aid is provided. Presumably in exercising this power, the respondent has issued a guideline, published on its website, relating to the transfer of legal practitioner, as set out above at [9]. I will consider this guideline, in case it favours the applicant's position, for the purpose of ascertaining whether allocation somehow becomes a condition for the purpose of s17(1)(d). Of course, the content of guidelines cannot assist in the interpretation of the LACA; after all, the guideline could be drafted in such a way that it is ultra vires s27 of the LACA, or does not reflect its connection to s27.
The question arises, therefore, whether the respondent's application of this guideline to the transfer application involves a decision with regard to altering a "condition" for the purpose of s18(1)(d)?
There is a grammatical pathway by which it is open to find that a condition of legal aid was its provision by a certain legal practitioner (in-house or private). The LACA gives power to make guidelines for "determining the conditions" of the grant of aid. Potentially, a guideline could be drafted in terms that would make allocation to a particular legal practitioner a condition. However, this is not the effect of the guideline here. The guideline is about a decision-making process for transfer to a different legal practitioner. The condition which may be imported is, at most, no more than the process of obtaining permission prior to a transfer.
Even if the guideline had dealt with allocation to a particular legal practitioner and not process, it would not sit with the structure of s17 to regard it as a condition for the purpose of s17(1)(d).
It may be noted that s17(3)(d) refers to conditions which are the subject of a decision made at the stage of the grant of aid. It leads to s27(3)(b) and guidelines. The decision in s17(3)(d) is distinct from the decision about allocation, dealt with separately in s17(3)(a). It is in keeping with the structure of this section that conditions of a grant of aid would not extend to whether a particular practitioner is to act. This would mean that a guideline regarding allocation would fall outside s17(3)(d) and thus s18(1)(d).
I note that on the materials before me the need for permission to transfer appears on the legal aid form as a pro forma "application condition":
"Change of Solicitor
You must obtain the permission of the Legal Aid Commission to change your solicitor. If permission is granted, you may be responsible for any costs incurred as a result of changing your solicitor."
According to the legal aid form itself, the need for an applicant to apply for permission to transfer forms a condition of the grant of aid. Again, there is no suggestion that the allocation itself is a condition.
Allowing for the guideline to be taken into account for the purpose of identifying conditions of the grant of aid, or the pro forma "condition" to be regarded as a condition for the purpose of s17(3)(d), the application to transfer or change solicitor did not seek to vary them. In each case the applicant sought that a static condition be applied in his favour.
If s17(3)(d) is given its most expansive effect, it seems to me that the original application was granted subject, at most, to a condition that transfer to another legal practitioner could occur only if permission was granted by the respondent in accordance with the guideline. It therefore does not seem to be the case that legal aid was provided subject to a specific condition that Ms Everett, or the services of a legal practitioner employed by the respondent, be engaged.
I conclude that the decision falls outside s18.
Even if it could be maintained that the decision falls within s18, regarding variations, the section is couched in such general terms, and is so lacking in any reference to the kind of decision made here, that it does not give the decision its legal force and effect in terms of its impact upon rights or obligations. Section 18, if it applies, is so non-specific that at most it only gives authority to the making of the first decision by the assignments officer.
Conclusion: force and effect
In conclusion, the confirmation of the decision not to transfer legal aid to a private practitioner did not derive its force and effect from the legislation. The decision relates to what is no doubt a common enough development which would be expected to arise in consequence of grants of aid. Certainly, the legislation empowers the respondent to make this sort of day-to-day decision surrounding the delivery of aid and provides general guidance in terms of budgetary imperatives, and sets out broadly the respondent's responsibilities. However, the LACA does not descend to the subject-matter of this decision in either a sweeping fashion or in specific terms. The decision falls outside statutory concerns and the legislation is absent from its force and effect.
Whilst the authority for the Review Committee to act as it did comes from the LACA, the force or effect of the decisions does not. That derives from the respondent's guidelines, the Commissioner's exercise of discretionary power, and the relationship that then existed between the parties as recipient and grantor of legal aid. In terms of the guidelines, the LACA does not give force to the content of the guidelines beyond the existence of them.
The decision of the Review Committee was not a decision made under an enactment.
There are other hurdles arising from the Tang criteria. Of prominence is the question of whether the decision confers, alters or otherwise affects legal rights or obligations?

The application of the Tang criteria: rights or obligations

The question is whether the applicant enjoyed any legal rights or the respondent had any obligations under the LACA which were affected by the course of action the respondent adopted in not transferring the grant of aid. Australian law does not recognise a right of an indigent accused on trial for a serious criminal offence to be provided with counsel at the public expense. However, there is a right to a fair trial, and the courts have inherent jurisdiction to stay proceedings if the representation of the accused by counsel is essential to a fair trial: Dietrich v R (1992) 177 CLR 292.
As submitted by the respondent, the LACA does not confer a right to legal assistance on an applicant, or where assistance is granted, to the services of a private legal practitioner. It is conceded by the respondent that once the applicant's application for legal aid was successful, he had then a right to receive legal aid. It was argued though that he had no right to representation by a particular lawyer. The applicant did not argue to the contrary, but took the line that the matter of who was to deliver the services was so closely bound up with the right to legal aid once his application was granted that his entitlement was affected by the decision. Adopting the quote from Aronson and Groves, in the judgment of Porter J in King at [63], it was submitted that "the decision not to transfer the grant of aid makes a present or contingent difference to the legal rights or obligations – who shall do the legal work."
The importance of a decision as to who shall do the legal work is accepted. Indeed, the LACA acknowledges the significance of the choice expressed by the assisted person for a particular private legal practitioner: s23(2)(b). The decision carries particular significance for a recipient of legal aid when the work involves representation in a criminal trial and serious charges. There is a great deal at stake. That is so even noting the submissions before me which assumed the competency and professionalism of both the Legal Aid lawyer and the private legal practitioner. However, there is no right to a lawyer of choice. The applicant does not have an entitlement to have a transfer request decided in his or her favour. The respondent is obliged to make such decisions in accordance with the LACA and the statutory responsibilities. The provision of legal aid involves allocation of a limited resource and competing budgetary imperatives, reflected in the LACA: see Attorney-General (NSW) v Milat (1995) 37 NSWLR 370 at 374. The decision not to transfer undoubtedly is of real concern to the applicant but does not affect his legal rights.
It is arguable that not agreeing to a request to transfer to a private legal practitioner has an effect upon the obligations of the respondent. Once legal aid is granted, obligations arise on the part of the respondent. If the matter is allocated to a private practitioner, there is an obligation to pay disbursements and fees: s15(4). If not, legal aid would need to be provided by making available the services of a Legal Aid practitioner. There may be said to be an obligation in that regard. I do not need to decide this point. Given that counsel have not made submissions about obligations, as opposed to rights, and the outcome of the application is unaffected by this point, I will leave undecided the matter of whether the course of action affected the respondent's obligations.

Application of Tang: the impact of the decision

Another potential hurdle is whether any such rights or obligations are altered or affected by the decision of the Review Committee. As noted, once the original application for legal aid was granted, and the matter allocated to a legal practitioner employed by the respondent, there was a right to receive legal aid and an obligation to provide legal services. The potential difficulty is that that right or obligation has been unaffected and unaltered by the decision of the assignments officer, which was not to permit the transfer and, also, unaffected and unaltered by the decision of the Review Committee.
It was argued that the decision was merely to do nothing; that such a decision to take no action had no capacity to affect legal rights: Eastman v Australian Capital Territory (2009) 163 ACTR 29, at [37]. This argument also does not need to be determined, as the application fails for the reasons I have identified.

Outcome

The decision of the Review Committee was not made under an enactment. The decision does not derive its force from the LACA. It is not a reviewable decision for the purpose of the JR Act and I do not have jurisdiction to review it. The application is dismissed.