New South Wales Bills New South Wales Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Legal Aid Commission Amendment
Bill 2002
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Legal Aid Commission Act 1979 No 78 2
Schedule 1 Amendments 3
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE COUNCIL, has
finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of NEW
SOUTH WALES.
Clerk of the Parliaments
Legislative Council
2002
New South Wales
Legal Aid Commission Amendment
Bill 2002
Act No , 2002
An Act to amend the Legal Aid Commission Act 1979 with respect to the
performance of legal aid work by private legal practitioners; and for other purposes.
Clause 1 Legal Aid Commission Amendment Bill 2002
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Legal Aid Commission Amendment Act 2002.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Amendment of Legal Aid Commission Act 1979 No 78
The Legal Aid Commission Act 1979 is amended as set out in
Schedule 1.
Page 2
Legal Aid Commission Amendment Bill 2002
Amendments Schedule 1
Schedule 1 Amendments
(Section 3)
[1] Section 12 Duties to be observed in the provision of legal aid
Omit section 12 (f). Insert instead:
(f) ensure, if work is assigned to a private legal practitioner,
that the assignment is made in accordance with
principles determined from time to time by the
Commission and after consideration of the following:
(i) the interests of the legally assisted person,
(ii) any choice expressed by the legally assisted
person for a particular private legal practitioner,
(iii) the fair and reasonable distribution of work
among private legal practitioners who are
appointed to the relevant panel under Division 2
of Part 3,
and that the principles so determined by the
Commission are publicly notified or available on
request,
[2] Section 27 Immunity
Insert at the end of the section:
(2) No liability attaches to or is incurred by the Commission, the
Chief Executive Officer, a member of staff of the Commission,
a member of the Board, a member of a committee established
under this Act or a person acting under the direction of any of
them because of anything done, or omitted to be done, by a
private legal practitioner to whom work is assigned under this
Act.
(3) In this section, a reference to an act or omission includes (but
is not limited to) a reference to anything done or omitted to be
done in respect of:
(a) the appointment of a private legal practitioner to, or the
suspension or removal of a private legal practitioner
from, a panel under Division 2 of Part 3, or
Page 3
Legal Aid Commission Amendment Bill 2002
Schedule 1 Amendments
(b) the assignment of work to a private legal practitioner, or
(c) an audit in respect of a private legal practitioner.
[3] Section 43A Payment of costs to private legal practitioners
Insert after section 43A (1) (b) (iii):
(iv) any matter concerning the assignment of work
to, or the performance of work by, the
practitioner as a member of a panel established
under Division 2 of Part 3, or
[4] Section 43A (4)
Insert after section 43A (3):
(4) The Commission may reduce an amount payable by the
Commission to a private legal practitioner by an amount
payable by the private legal practitioner to the Commission.
[5] Section 44 Direction as to payment of certain money to the
Commission
Insert after section 44 (5):
(6) In this section, money includes a cheque.
[6] Part 3, Division 2
Insert after Division 1:
Division 2 Assignment of work through panels of private
legal practitioners
49 Assignment of work
Without limiting the ways in which the Commission may
assign work on behalf of legally assisted persons to private
legal practitioners in accordance with section 12 (f), the
Commission may assign work in accordance with this Division.
Page 4
Legal Aid Commission Amendment Bill 2002
Amendments Schedule 1
50 Panels of private legal practitioners
(1) The Commission may establish panels of suitably qualified and
experienced legal practitioners in private practice who have
notified the Commission that they are willing to act as legal
practitioners for legally assisted persons.
(2) A body, whether incorporated or unincorporated, which
provides community legal services is not eligible to be included
in a panel, unless the Commission otherwise determines.
(3) A panel may be established according to such criteria as the
Commission determines, and publicly notifies or makes
available on request, which may include (but are not
limited to):
(a) matters generally, or matters of a particular type or class,
or
(b) a specified jurisdiction, or
(c) a specified area of the State.
51 Application for appointment to panel
(1) A legal practitioner in private practice may apply to the
Commission for appointment to one or more panels.
(2) The Commission is to establish a selection committee under
this Act, comprising a nominee of the Law Society, a nominee
of the Bar Association and such other persons as may be
appointed by the Commission.
(3) All matters relating to the membership and procedure of a
selection committee are to be determined by the Commission
after consultation with the Law Society and the Bar
Association.
(4) An application is to be assessed by the selection committee
which, after its assessment is made, is to recommend to the
Commission whether, in its opinion, the applicant is a suitable
person to be appointed to the panel or panels for which the
person has applied.
(5) The Commission may not:
(a) refuse to appoint a legal practitioner to a panel for
which the legal practitioner has made application, or
Page 5
Legal Aid Commission Amendment Bill 2002
Schedule 1 Amendments
(b) suspend or remove a legal practitioner from a panel,
otherwise than at the legal practitioner's request,
unless the Commission has given written notice to the legal
practitioner of its reasons and has given the legal practitioner a
reasonable opportunity to be heard in relation to the proposed
refusal or removal.
(6) If, as a consequence of disciplinary proceedings taken against
a legal practitioner, the legal practitioner is prevented from
practising as a legal practitioner, the legal practitioner, if he or
she is a member of a panel, is taken to have been removed
from the panel.
52 Conditions applying to members of panels
(1) The appointment of a legal practitioner to a panel is for 2 years
(or such other term as may be specified by the regulations),
unless the legal practitioner is sooner removed from the panel
at his or her request or in accordance with this Division.
(2) A legal practitioner in private practice may re-apply under
section 51 for appointment to a panel.
(3) Before work may be assigned to a legal practitioner who is
appointed to a panel, the practitioner must enter into a service
provision agreement with the Commission.
(4) Without limiting the matters for or with respect to which a
service provision agreement may make provision, a service
provision agreement may make provision for or with respect to
the following matters:
(a) the terms on which the legal practitioner is to provide
legal services to a legally assisted person or to legally
assisted persons,
(b) practice standards, and compliance with practice
standards,
(c) the provision of regular written reports on the progress
of an allocated matter,
(d) audits under section 52B,
(e) participation in a rostered duty lawyer service.
(5) Appointment to a panel does not confer an entitlement to work.
Page 6
Legal Aid Commission Amendment Bill 2002
Amendments Schedule 1
52A Breach of service provision agreement
(1) The Commission is to establish a monitoring committee under
this Act, comprising a nominee of the Law Society, a nominee
of the Bar Association and such other persons as may be
appointed by the Commission, for the purpose of monitoring
service provision agreements.
(2) All matters relating to the membership and procedure of a
monitoring committee are to be determined by the Commission
after consultation with the Law Society and the Bar
Association.
(3) If a legal practitioner appears to have breached a service
provision agreement, the Commission or the monitoring
committee may give written notice to the legal practitioner of
the apparent breach and direct the legal practitioner to provide
a written response to the monitoring committee by way of
explanation.
(4) After a legal practitioner has provided a written response to the
monitoring committee or, after having been given a reasonable
opportunity to provide a written response to the monitoring
committee, has failed to do so, the monitoring committee may
recommend to the Commission:
(a) that the legal practitioner be removed from the panel, or
(b) that no work be assigned to the legal practitioner for a
period of between 3 months and 2 years, or
(c) that no further action be taken.
(5) A recommendation under subsection (4) may be made
unconditionally or subject to conditions.
(6) On receipt of a recommendation from the monitoring
committee, the Commission is to determine what action (if
any) should be taken in respect of it.
52B Audits
(1) The Commission may, at any time, in relation to any work
assigned by the Commission to a legal practitioner (an assigned
matter), carry out an audit of the legal practitioner, or cause
such an audit to be carried out, in respect to any one or more of
the following:
Page 7
Legal Aid Commission Amendment Bill 2002
Schedule 1 Amendments
(a) claims for payment,
(b) compliance with practice standards,
(c) compliance with the terms and conditions of a service
provision agreement,
(d) compliance with the Commission's guidelines, policies
and delegations,
(e) substantial or unresolved complaints concerning service
delivery.
(2) An audit cannot be carried out until after written notice of the
intention to carry out the audit is given to the legal practitioner
concerned. The written notice must state the purpose and scope
of the audit.
(3) So far as practicable, an audit is to be carried out at a time that
is convenient to the legal practitioner concerned, having regard
to the needs of his or her practice.
(4) If an assigned matter comprises a matter in which a member of
staff of the Commission acts for a party, an audit is to be
carried out by:
(a) a person who is not a member of the staff of the
Commission, or
(b) a member of the staff of the Commission who does not
work in close and regular association with the member
of staff of the Commission who acts for the party,
and any information or document obtained in connection with
the audit must not be divulged by the auditor or any other
person to the member of staff of the Commission who acts for
the party if that information or document might unfairly
prejudice the interests of any other party.
(5) The relationship between a private legal practitioner and a
legally assisted person does not operate to prevent or limit an
audit under this section.
(6) For the purposes of an audit, the Commission, or a person
appointed by the Commission, may:
(a) require a legal practitioner to produce for inspection any
files, records or documents relating to an assigned
matter, and
Page 8
Legal Aid Commission Amendment Bill 2002
Amendments Schedule 1
(b) make copies of, or take extracts or notes from, any such
files, records or documents, and
(c) require a legal practitioner to provide the Commission,
or person, with such assistance and facilities as may be
reasonably necessary to enable the Commission, or
person, to exercise the functions under this section, and
(d) require a legal practitioner to give the Commission, or
person, such other information as is reasonably
necessary for the purposes of the audit.
(7) If a record relating to an assigned matter:
(a) is not in writing, or
(b) is written in a language other than English, or
(c) is not decipherable on sight,
a requirement under subsection (6) (a) to produce the record is
a requirement to produce, in addition to the record if it is in
writing, or instead of the record if it is not in writing, a
statement, in English and decipherable on sight, that contains
all the information in the record.
(8) The Commission must reimburse a legal practitioner for
disbursements, such as photocopying, and any other out-of-
pocket expenses reasonably incurred by the legal practitioner as
a consequence of an audit.
(9) Except in proceedings under Part 10 of the Legal Profession
Act 1987, the production of a file, record, document or
statement, or the giving of information, under this section does
not subsequently affect any legal professional privilege to
which, but for subsection (5), the file, record, document,
statement or information would be subject.
(10) The regulations may make provision for or with respect to
audits under this section.
(11) If a private legal practitioner fails or refuses to co-operate in the
carrying out of an audit under this section, the Commission
may do any one or more of the following:
(a) terminate the services of the practitioner in relation to
any work assigned by the Commission to the
practitioner,
Page 9
Legal Aid Commission Amendment Bill 2002
Schedule 1 Amendments
(b) remove the practitioner from a panel to which the
practitioner is appointed,
(c) refuse to pay to the practitioner any money payable by
the Commission to the practitioner.
(12) Nothing in section 12 (i) or section 25 prevents or restricts the
carrying out of an audit under this section.
[7] Section 72 Proceedings for offences
Omit "section 26, 32 or 41" from section 72 (2).
Insert instead "section 26 or 32".
[8] Schedule 7 Constitution and procedure of Legal Aid Review
Committees
Omit "all of its members" from clause 8 (1).
Insert instead "2 members".
[9] Schedule 8 Savings, transitional and other provisions
Insert at the end of clause 1A (1):
Legal Aid Commission Amendment Act 2002
Page 10
[Index] [Search] [Download] [Related Items] [Help]