Commonwealth Legal Aid Amendment Act 1988

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No. 2 of 1988

An Act to amend the Commonwealth Legal Aid Act 1977

[Assented to 1 March 1988]

BE IT ENACTED by the Queen, and the Senate and the House of Representatives of the Commonwealth of Australia, as follows:

Short title etc.

1. (1) This Act may be cited as the Commonwealth Legal Aid Amendment Act 1988.

(2) In this Act, “Principal Act” means the Commonwealth Legal Aid Act 19771.

Commencement

2. This Act shall come into operation on the day on which it receives the Royal Assent.

Title

3. The title of the Principal Act is amended by omitting “Commonwealth Legal Aid Council” and substituting “National Legal Aid Representative Council and of a National Legal Aid Advisory Committee”.

Interpretation

4. Section 3 of the Principal Act is amended:

(a) by omitting from subsection (1) the definition of “Council” and substituting the following definition:

“ ‘Council’ means the National Legal Aid Representative Council;”;

(b) by omitting from subsection (1) the definitions of “Chairman” and “member of the Council”; and

“ ‘Committee’ means the National Legal Aid Advisory Committee;

‘Committee Chairperson’ means the Chairperson of the Committee;

‘Committee member’ includes the Committee Chairperson;

‘Council Chairperson’ means the Chairperson of the Council;

‘Council member’ includes the Council Chairperson;”.

5. Parts II and III of the Principal Act are repealed and the following Parts are substituted:

“PART II—NATIONAL LEGAL AID REPRESENTATIVE COUNCIL

Establishment of Council

“4. The Minister may establish a National Legal Aid Representative Council.

Constitution of Council

“5. (1) The Council comprises the following members:

(a) the Chairperson of each legal aid commission;

(b) the Director of each legal aid commission;

(d) 2 persons appointed after consultation between the Minister and the Law Council of Australia;

(e) 2 persons appointed after consultation between the Minister and any person, association or body who, in the opinion of the Minister, is representative of community legal centres;

(f) a person appointed after consultation between the Minister and the Australian Council of Social Service;

(g) a person who is employed in the Australian Legal Aid Office;

(h) a person who is employed by the Commonwealth to administer the provision of legal assistance in Australia.

“(2) The Council members shall be appointed by the Minister to hold office on a part-time basis.

“(3) The Minister shall appoint a Council member to be the Council Chairperson for the period of 12 months commencing on the day of the appointment.

“(4) The Council may, at a meeting of the Council, recommend to the Minister that a specified person be appointed as the next Council Chairperson.

“(5) Subject to this Act, a Council member holds office for such period, not exceeding 3 years, as is specified in the instrument of appointment, but is eligible for re-appointment.

“(6) The performance of the functions, or the exercise of the powers, of the Council is not affected merely because of a vacancy or vacancies in the membership of the Council.

“(7) The Council Chairperson ceases to be the Council Chairperson if he or she ceases to be a Council member.

Functions of Council

“6. The functions of the Council are to advise and make recommendations to the Minister concerning:

(a) the extent of the need for legal assistance in Australia and the most effective, economical and desirable means of satisfying that need;

(b) the effectiveness and economy of methods used for providing legal assistance;

(d) the level of Commonwealth funds to be provided for legal assistance;

(e) the effectiveness of the arrangements for the application of Commonwealth funds for legal assistance;

(f) the funding of community legal centres;

(g) community legal education; and

(h) any other matter relating to the provision of legal assistance.

“PART III—NATIONAL LEGAL AID ADVISORY COMMITTEE

Establishment of Committee

“7. The Minister may establish a National Legal Aid Advisory Committee.

Constitution of Committee

“8. (1) The Committee comprises 7 members who shall be appointed by the Minister to hold office on a part-time basis.

“(2) The Minister shall appoint a Committee member to be the Committee Chairperson.

“(3) The Minister shall not appoint a person to be a Committee member unless the Minister is satisfied that the person has knowledge of, or experience in, legal assistance matters, or in matters related to the Commonwealth’s involvement in legal assistance matters.

“(4) Subject to this Act, a Committee member holds office for such period, not exceeding 3 years, as is specified in the instrument of appointment, but is eligible for re-appointment.

“(5) The performance of the functions, or the exercise of the powers, of the Committee is not affected merely because of a vacancy or vacancies in the membership of the Committee.

“(6) The Committee Chairperson ceases to be the Committee Chairperson if he or she ceases to be a Committee member.

Functions of Committee

“9. The functions of the Committee are to advise and make recommendations to the Minister, either on its own motion or on a request made to it by the Minister, concerning:

(a) the extent of the need for legal assistance in Australia and the most effective, economical and desirable means of satisfying that need;

(b) the effectiveness and economy of methods used for providing legal assistance;

(d) the level of Commonwealth funds to be provided for legal assistance;

(e) the effectiveness of the arrangements for the application of Commonwealth funds for legal assistance;

(f) the funding of community legal centres;

(g) community legal education; and

(h) any other matter relating to the provision of legal assistance.

“PART IIIa—ADMINISTRATIVE PROVISIONS

Interpretation

“10. In this Part:

‘member’ means a Council member or a Committee member.

Remuneration and allowances

“11. (1) A member shall be paid such remuneration as is determined by the Remuneration Tribunal, but, if no such determination is in operation, the member shall be paid such remuneration as is prescribed.

“(2) A member shall be paid such allowances as are prescribed.

“(3) This section has effect subject to the Remuneration Tribunals Act 1973.

Resignation

“12. A member may resign by delivering to the Minister a signed notice of resignation.

Termination of appointment

“13. (1) The Minister may terminate the appointment of a member for misbehaviour or physical or mental incapacity.

“(2) If a member becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, the Minister shall terminate his or her appointment.

“(3) If:

(a) the Council Chairperson is absent, except with the leave of the Minister, from a meeting of the Council;

(b) a Council member other than the Council Chairperson is absent, except with the leave of the Council Chairperson, from a meeting of the Council;

(c) the Committee Chairperson is absent, except with the leave of the Minister, from 3 consecutive meetings of the Committee; or

(d) a Committee member other than the Committee Chairperson is absent, except with the leave of the Committee Chairperson, from 3 consecutive meetings of the Committee;

the Minister shall terminate his or her appointment.

Meetings of Council

“14. (1) Subject to subsection (2), the Council shall meet once in the period of 12 months commencing on the day on which the Council is established and once in each successive period of 12 months.

“(2) The Council may meet more frequently in each period of 12 months specified in subsection (1) if the Council Chairperson obtains the Minister’s approval for each additional meeting.

“(3) A meeting of the Council shall be convened:

(a) by the Council Chairperson; or

(b) if the Council Chairperson fails to convene the meeting—by the Minister.

“(4) The Council Chairperson shall preside at all meetings of the Council at which he or she is present.

“(5) If the Council Chairperson is absent from a meeting of the Council, the Council members present shall appoint one of their number to preside at that meeting.

“(6) At a meeting of the Council, a quorum is constituted by a majority of the Council members for the time being holding office as Council members.

“(7) Questions arising at a meeting of the Council shall be determined by a majority of the votes of the Council members present and voting.

“(8) The person presiding at a meeting of the Council has a deliberative vote and, in the event of an equality of votes, also has a casting vote.

Meetings of Committee

“15. (1) The Committee shall meet as often as is necessary for the efficient performance of its functions but shall meet at least twice in the period of 12 months commencing on the day on which the Committee is established and at least twice in each successive period of 12 months.

“(2) A meeting of the Committee shall be convened by the Committee Chairperson.

“(3) The Committee Chairperson shall preside at all meetings of the Committee at which he or she is present.

“(4) If the Committee Chairperson is absent from a meeting of the Committee, the Committee members present shall appoint one of their number to preside at that meeting.

“(5) At a meeting of the Committee, a quorum is constituted by a majority of the Committee members for the time being holding office as Committee members.

“(6) Questions arising at a meeting of the Committee shall be determined by a majority of the votes of the Committee members present and voting.

“(7) The person presiding at a meeting of the Committee has a deliberative vote and, in the event of an equality of votes, also has a casting vote.

Acting Committee Chairperson

“16. (1) The Minister may appoint a person (including a Committee member) to act as Committee Chairperson:

(a) during a vacancy in the office of Committee Chairperson (whether or not an appointment has previously been made to the office); or

(b) during any period, or during all periods, when the Committee Chairperson is absent from duty or from Australia or is, for any other reason, unable to perform the duties of the office of Committee Chairperson;

but a person appointed to act during a vacancy shall not continue so to act for more than 12 months.

“(2) The Minister may terminate an appointment at any time.

Disclosure of interests

“17. (1) A member who has a direct or indirect pecuniary interest in a matter being considered or about to be considered at a meeting of the relevant body shall, as soon as possible after the relevant facts have come

to his or her knowledge, disclose the nature of the interest at a meeting of that body.

“(2) A disclosure shall be recorded in a record of the meeting of the relevant body and the member shall not, unless the relevant body or the Minister otherwise determines:

(a) be present during any deliberation of the relevant body with respect to that matter; or

(b) take part in any decision of the relevant body with respect to that matter.

“(3) For the purpose of making a determination in relation to a member who has made a disclosure, a member who has a direct or indirect pecuniary interest in the matter to which the disclosure relates shall not:

(a) be present during any deliberation of the relevant body for the purpose of making the determination; or

(b) take part in the making by the relevant body of the determination.

“(4) In this section, ‘relevant body’ means:

(a) in relation to a Council member—the Council; and

(b) in relation to a Committee member—the Committee.

Annual reports

“18. (1) The Council shall, as soon as practicable after the end of each financial year, prepare and give to the Minister a report on the activities of the Council during that year.

“(2) The Committee shall, as soon as practicable after the end of each financial year, prepare and give to the Minister a report on the activities of the Committee during the year.

“(3) The Minister shall cause a copy of a report given under subsection (1) or (2) to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.”.

Repeal of section 33

6. Section 33 of the Principal Act is repealed.

NOTE

1. No. 80, 1977, as amended. For previous amendments, see No. 170, 1978; No. 62, 1981; and No. 91, 1983.

[Minister’s second reading speech made in—

Senate on 3 November 1987

House of Representatives on 16 February 1988]

Overview

The Commonwealth Legal Aid Amendment Act 1988 was enacted to address deficiencies in the existing framework for legal aid administration in Australia by amending the Commonwealth Legal Aid Act 1977. This Act was introduced by the Commonwealth Parliament and received Royal Assent on 1 March 1988. The primary objective of this amendment was to enhance the governance and advisory mechanisms for legal aid by establishing the National Legal Aid Representative Council and the National Legal Aid Advisory Committee to replace the Commonwealth Legal Aid Council. These new bodies were intended to provide more comprehensive and representative advice to the Minister on matters relating to legal aid, including the need for legal assistance, the effectiveness of legal aid methods, and the allocation of Commonwealth funds for legal assistance.

Scope and Application

The Commonwealth Legal Aid Amendment Act 1988 is an Act of the Commonwealth of Australia that amends the Commonwealth Legal Aid Act 1977. It establishes a National Legal Aid Representative Council and a National Legal Aid Advisory Committee, replacing the former Commonwealth Legal Aid Council, and outlines their functions and administrative provisions. The Act applies to the Minister for Justice, the National Legal Aid Representative Council, the National Legal Aid Advisory Committee, and their respective members. The Act has a national jurisdictional reach as it is a Commonwealth Act. The Act does not explicitly state any exclusions, exemptions, or thresholds, but the functions and membership of the Council and Committee suggest that they apply broadly to the provision of legal assistance in Australia. The Act may be extended or restricted through subordinate instruments, such as regulations or guidelines, which would need to be consistent with the objectives and provisions of the Act.

Key Provisions

The Commonwealth Legal Aid Amendment Act 1988 amends the Commonwealth Legal Aid Act 1977 by establishing two new bodies: the National Legal Aid Representative Council and the National Legal Aid Advisory Committee. Section 4 of the Act allows the Minister to establish the Council, while Section 7 enables the Minister to establish the Committee. The composition and functions of these bodies are detailed in Sections 5 to 9 of the Act. The Council is to be comprised of various representatives including legal aid commission officials, community representatives, and others with relevant expertise. The Committee is to consist of seven members appointed by the Minister, who must have knowledge or experience in legal assistance matters. Both bodies are tasked with advising the Minister on various aspects of legal assistance in Australia, such as the need for legal aid, funding, and community legal education. The Act imposes several obligations on the Council and the Committee. Members of these bodies are required to be appointed by the Minister, and they must meet regularly to fulfil their advisory functions. The Council must meet at least once a year, while the Committee must meet at least twice a year, though both bodies can meet more frequently if necessary. The Act also mandates that members disclose any pecuniary interests they may have in matters being considered by the Council or the Committee and prohibits them from participating in deliberations or decisions on those matters. Furthermore, both bodies are required to prepare and submit annual reports to the Minister, who must then lay these reports before Parliament. Breaches of certain provisions within the Act may lead to penalties or other consequences. For instance, members who fail to disclose relevant pecuniary interests as required by Section 17 may be subject to disciplinary action, including termination of their appointment by the Minister. Additionally, Section 13 of the Act provides that the Minister may terminate the appointment of a member for reasons such as misbehaviour, physical or mental incapacity, bankruptcy, or other specified incapacities. While the Act does not specify monetary penalties for these breaches, the consequences of such actions can be significant, including the potential loss of one’s position and reputation.

Area of Law: Administrative Law; Public Law
Instrument: Amending Act
Concepts: Definitions & Interpretation; Repeal & Amendment; Delegated & Subordinate Legislation; Administrative Discretion; Consultation Requirements

Interactions

Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.

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